Canal and Drainage Act, 1873

 

CANAL AND DRAINAGE ACT, 1873

 

CANAL AND DRAINAGE ACT, 1873

 

ACT No. VIII OF 1873

 

11^th  February, 1873

An Act to regulate Irrigation, Navigation and Drainage

Preamble. WHEREAS, throughout the territories to which this Act extends, [the Provincial Government] is entitled to use and control for public purposes the water of all rivers and streams following in natural channels, and of all lakes and other natural collections of still water; and whereas it is expedient to amend the law relating to irrigation, navigation and drainage in the said territories; it is hereby enacted as follows:–

1.         Short title.   This Act may be called the Canal and Drainage Act, 1873.

Local extent. It extends to [the Punjab]; and applies to all lands, whether permanently settled, temporarily settled, or free from revenue. 

           

2.                  ¹[Repealed]

Legal Amendments

1.         Rep. by the Repealing Act, 1873 (XII of 1873), S. 1 and Sch., Pt. II.

 

3.         Interpretation-clause. In this Act, unless there be something repugnant in the subject or context: –

(1)        “Canal” “Canal” includes-

(a)        all canals, channels and reservoirs constructed, maintained or controlled by [the Provincial Government] for the supply or storage of water;

(b)        all works, embankments, structures, supply and escape channels connected with such canals, channels or reservoirs;

(c)        all water courses as defined in the second clause of this section;

(d)        all parts of a river, stream, lake or natural collection of water or natural drainage-channel, to which the [Provincial Government] has applied the provisions of Part II of this Act;

(2)        “Watercourse” “Watercourse” means any channel which is supplied with water from a canal, but which is not maintained at the cost of “[the Provincial Government], and all subsidiary works belonging to any such channel;

(3)        “Drainage-work” “Drainage-work” includes escape-channels from a canal, dams, weirs, embankments, sluices, groins and other works for the protection of a lands from flood or from erosion, formed or maintained by “[the Provincial Government] under the provisions of Part VII of this Act, but does not include works for the removal of sewage from towns:

(4)       “Vessel” “Vessel” includes boats, rafts, timber and other floating bodies:

(4.A)    “Board of Revenue” means the Board of Revenue established under the west Pakistan Board of Revenue Act, 1957( West Pakistan Act XI of 1957);

(5)        “Commissioner”. “Commissioner” means a Commissioner of a division, and includes any offer appointed under this Act to exercise all or any of the powers of a Commissioner:

(6)        “Collector”. “Collector” means the head revenue-officer of a district and includes a Deputy Commissioner or other officer appointed under this Act to exercise all or any of the powers of a Collector.

(7)        “Canal-officer”. “Canal-officer” means an officer appointed under this Act to exercise control or jurisdiction over a canal or any part thereof:

“Superintending Canal-officer.” “Superintending Canal-officer” means an officer exercising general control over a canal or portion of a canal:

“Divisional Canal-officer”. “Divisional Canal-officer” means an officer exercising control over a division of a canal:

“Sub-divisional Canal-officer”. “Sub-divisional Canal-officer” means an officer exercising control over a sub-division of a canal:

(8)        “District”. “District” means a district as fixed for revenue-purposes.

(9)        “Canal Outlet” means a work which passes water from a canal, including a tube-well, to a water-course and is constructed, maintained or controlled by Government and

(10)      “Internal khal” means any channel supplied with water from a course for watering fields.

 

Court Decisions

                        Nakka” and “new watercourse” – Not synonymous or interchangeable terms, rather having their own connotation and significance. PLD 2003 SC 344

                        Canal water, payment for‑Private channels maintained by private owners in private lands‑Included within definition of "watercourse" and therefore part of a canal‑Tube well water supplied through any watercourse‑Canal water within meaning of S. 36‑Occupier of land accepting canal water‑Liable to be charged water rate or occupiers' rate according to Rules made by Government.

Even private channels, maintained by the private owners in private lands are included in the definition of "watercourse" and, therefore, must be regarded as a part of a canal. Reading the above mentioned two clauses together the inference is irresistible that tube‑well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupiers rate in accordance with the charges determined by the Rules to be made by the Provincial Government. As the petitioners admittedly accepted canal water and the rate payable for occupiers accepting canal water, has been fixed by a rule framed by the Provincial Government, the petitioners are, in law, bound to pay it.  P L D 1975 Lahore 237

M. Abdul Bari and others v. West Pakistan Soil Reclamation Board Lahore and others P L D 1966 S C 451 held not applicable.

  

S 3, Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment.

It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water.

Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lahore 237

S.3-Grant of land to defendant under old Land Grant Policy on Harap basis in open Katchery in 1959-Defendant paid 3/4 instalments but could not pay further instalments due to financial conditions and for non‑payment of instalments grant in his name was cancelled in 1965-Subsequently, land in question was re-granted to defendant in 1986-Plaintiff challenged re-grant of land to defendant on the ground that land in question was admittedly within 20 chains of established village and same could not be granted unless same was separated by a working canal-Revenue Authorities were competent to grant such lands to Haris for agricultural purposes which though lying within 20 chains of village were separated either by working watercourse or working water canal.  1997 C L C 875

 Muhammad Yasin and others v. Wali Muhammad and others PLD 1983 Lah. 253; Abdul Hameed v. Ghulam Muhammad 1987 SCMR 1005; S. Zafar Ahmed v. Abdul Khaliq PLD 1964 (W.P.) Kar. 149 and Concise Oxford Dictionary ref.

 Section 3 of the Act of 1873, which is an interpretation clause, merely defines a "canal" and section 5 thereof gives to the Provincial Government the power to declare that the water of any river, stream flowing in a natural channel, any lake or other natural collection of still water may be applied or used for the purpose of any existing or projected canal or drainage work, but there is nothing in the Canal and Drainage Act itself which would seem to prevent the authorities from using the water from any other source, e.g., a deep artesian tube‑well, for the same purpose. There is no reason, therefore, as to why section 36 cannot apply to any kind of water supplied through a canal.

It is clear that tire imposition of a flat rate on all culturable lands, whether irrigated or not, would be bad under section 36 of the Canal and Drainage Act which only makes the occupier liable if he accepts the water.

The Punjab Soil Reclamation Act of 1952 gave no power either to the Board or the Provincial Government to levy the flat water rate and, therefore, the fiat rate purported to be levied under the Jaranwala Reclamation Scheme was ultra vires and of no legal effect. P L D 1966 Supreme Court 451

S 3  Provisions of S. 36 applicable to any kind of water supplied through canal including tube‑well water. P L D 1966 Supreme Court 451

Abdul Haque Advocate, Supreme Court, instructed by M. B. Khizar Tamimi Attorney for Appellants.

 S. 3‑Water‑course through which no right to take water exists is not covered by S. 70.

A water‑course on another's land through which no right to take water exists is not covered by section 70 of Act VIII of 1873. The right may come into existence by virtue of section 21 of the Act, or, apart from it, by private contract or as an easement. The right to take water must be there, before section 70 can apply.

Where there was no evidence that the water‑course was constructed by the Provincial Government, or that it was constructed under section 21 of the Act, neither was there evidence that water was taken through the water‑course by private contract with the owner of land on which the water­course had existed, but, there was evidence that water had been taken through the water‑course for a considerable time, the case was remanded for ascertaining whether a right to take water through the water‑course had ripened into an easement, so as to sustain a conviction under section 70, Canal and Drainage Act (VIII of 1873), under the relevant circum­stances.  P L D 1956 Lahore 490

Hukman and others v. Emperor 611 C 717 fol.

 

4.         Power to appoint officers. The [Provincial Government] may from time to time declare, by notification in the official Gazette, the officers by whom, and -the local limits within which, all or any of the powers or duties hereinafter conferred or imposed shall be exercised or performed.

All officers mentioned in section 3, clause (7), shall be respectively subject to the orders of such officers as the Provincial Government from time to time directs.

 

        4.A      Constitution of irrigation committees.–The Provincial Government may from time to time, by notification in the official Gazette, constitute irrigation committees comprising of not less than three members from amongst the local cultivators for each outlet, or group of outlets and for a canal or portion of canal, for the assistance of the canal officers for matters mentioned in Section 70 of this Act.

5.         Notification to issue when water supply is to be applied for public purposes. Where it appears expedient to the [Provincial Government] that the water of any river or steam flowing in a natural channel, or of any lake or other natural collection of still water, should be applied or used by [the Provincial Government] for the purpose of any existing or projected canal or Drainage-work, the [Provincial Government] may, by notification in the official Gazette, declare that the said water will be so applied or used after a day to be named in the said notification, not being earlier than three months from the date thereof.

 

Court Decisions

    Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment. 

It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water. 

Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lahore 237

 

6.         Powers of Canal-officer. At any time after the day so named, any Canal-officer, acting under the orders of the [Provincial Government] in this behalf, may enter on any land and remove any obstructions, and may close any channels, and do any other thing necessary for such application or use of the said water. 

 

 

7.         Notice as to claim for compensation. As soon as is practicable after the issue of such notification, the Collector shall cause public notice to be given at convenient places, stating that [the Provincial Government] intends to apply or use the said water as aforesaid, and that claims for compensation in respect of the matters mentioned in section 8 may be made before him.

 

8.         Damage for which compensation shall not be awarded. (1) No compensation shall be awarded for any damage caused by-

(a)        stoppage or diminution of percolation or floods;

(b)        deterioration of climate or soil;

(c)        stoppage of navigation, or of the means of drifting timber or watering cattle;

(d)        displacement of labour.

(e)        stoppage or diminution of supply of water through any natural channel to any defined artificial channel, whether above or underground, in use at the date of the said notification;

(f)         stoppage or diminution of supply of water to any work erected for purposes of profit on any channel, whether natural or artificial, in use at the date of the said notification;

(g)        stoppage or diminution of supply of water through any natural channel which has been used for purposes of irrigation within the five years next before the date of the said notification;

(h)        damage done in respect of any right to a water-course or the use of any water to which any person is entitled under the “Indian Limitation Act, (XV of 1877) Part IV;

(2)        No right to any such supply of water as is referred to in clauses (e), (f) or (g) of this section, in respect of a work or channel not in use at the date of the notification, shall be acquired as against [the Provincial Government!, except by grant or under the Indian Limitation Act, (XV of 1877), Part IV;

 

Old section

8.         Damage for which compensation shall not be awarded. No compensation shall be awarded for any damage caused by-

(a)        stoppage or diminution of percolation or floods;

(b)        deterioration of climate or soil;

(c)        stoppage of navigation, or of the means of drifting timber or watering cattle;

(d)        displacement of labour.

 

Matters in respect of which compensation may be awarded. But compensation may be awarded in respect of any of the following matters:-

 (i)        any other substantial damage, not falling under any of the above clauses (a), (b), (r) or (d), and caused by the exercise of the powers conferred by this Act, which is capable of being ascertained and estimated at the time of awarding such compensation.

In determining the amount of such compensation, regard shall be had to the diminution in the market-value, at the time of awarding compensation, of the property in respect of which compensation is claimed; and, where such market-value is not ascertainable, the amount shall be reckoned at twelve times the amount of the diminution of the annual net profits of such property caused by the exercise of the powers conferred by this Act.

and no right to any of the advantages referred to in clauses (a), (b) and (c) of this section shall be acquired, as against [the Provincial Government] under the same Part.

  

9.         Limitation of claims. No claim for compensation for any such stoppage, diminution or damage shall be made after the expiration of one year from such stoppage, diminution or damage unless the Collector is satisfied that the claimant had sufficient cause for not making the claim within such period.

 

10.       Enquiry into claims and amount of compensation. The Collector proceed to enquire into any such claim, and to determine the amount of compensation, if any, which should be given to the claimant; and sections 9 to 12 (inclusive), 14 and 15, 18 to 23 (inclusive), 26 to 40 (inclusive), 51, 57, 58 and 59 of the land Acquisition Act, (X of 1870), shall apply to such inquiries:

Provided that, instead of the last clause of the said Section 26, the following shall be read:

The provisions of this section and of section 8 of the  Canal and Drainage Act, (VIII of 1873), shall be read to every assessor in a language which he understands, before he gives his opinion as to the amount of compensation to be awarded”.

 

11.       Abatement of rent on interruption of water-supply. Every tenant holding under an unexpired lease, or having a right of occupancy, who is in occupation of any land at the time when any stoppage or diminution of water-supply, in respect of which compensation is allowed under section 8, takes place, may claim an abatement of the rent previously payable by him for the said land, on the ground that the interruption reduces the value of the holding.

 

Court Decisions

­Petitioners' land being irrigated by canal water through outlet distributory‑‑On application filed by respondent, area purchased by him was ordered by Divisional Canal Officer to be included in Canal Area and irrigation from said outlet was allowed to respondent‑‑On appeal by petitioner said order was upheld by. Superintending Canal Officer‑‑Petitioner challenged two orders of Canal Authorities by filing a suit for declaration inter alia on ground that petitioners were not served with any notice by Divisional Canal Officer before he passed impugned order‑‑Petitioner filed an application for grant of temporary injunction along with suit which was rejected by Trial Court/Appellate Court‑‑Petitioner challenging said order of rejection‑‑High Court, with the consent of parties ordered that respondents would be bound to maintain volume of water which was being received by petitioners before, even if timing might be changed.  1989 M L D 240

 

12.       Enhancement of rent on restoration of water-supply. If a water-supply increasing the value of such holding is afterwards restored to the said land, the rent of the tenant may be enhanced, in respect of the increased value of such land due to the restored water-supply, to an amount not exceeding that at which it stood immediately before the abatement.

Such enhancement shall be on account only of the restored water-supply, and shall not affect the liability of the tenant to enhancement of rent on any other grounds.

 

13.      Compensation when due. All sums of money payable for compensation under this Part shall become due three months after the claim for such compensation is made in respect of the stoppage, diminutation or damage complained of, Interest, and simple interest at the rate of six per cent per annum shall be allowed on any such sum remaining unpaid after the said three months, except where the non-payment of such sum is caused by the willful neglect or refused of the claimant to receive the same.

 

        14.       Power to enter and survey, etc. Any Canal-officer, or other person acting under the general or special order of a Canal-officer, may enter upon any lands adjacent to any canal, or through which any canal is proposed to be made, and undertake surveys or leaves thereon;

and dig and bore into the sub-soil;

and make and set up suitable land-marks, level-marks, and water-gauges;

and do all other acts necessary for the proper prosecution of any enquiry relating to any existing or projected canal under the charge of the said Canal-officer;

Power to clear land. And, where otherwise such enquiry cannot be completed, such officer or other person may cut done and clear away any part of any standing crop, fence or jungle;  Power to inspect and regulate water-supply. And may also enter upon any land, building or water-course on account of which any water-rate is chargeable, for the purpose of inspecting or regulating the use of the water supplied, or of measuring the lands irrigated thereby or chargeable with a water-rate, and of doing all things necessary for the proper regulation and management of such canal:

Notice of intended entry into houses. Provided that, if such Canal-officer or person proposes to enter into any building or enclosed Court or garden attached to a dwelling house not supplied with water following from any canal he shall previously give the occupier of such building, Court or garden at least seven days” notice in writing of this intention to do so.

Compensation for damage caused by entry. In every case of entry under this section, the Canal-officer shall, at the time of such entry, tender compensation for any damage which may be occasioned by any proceeding under this section; and, in case of dispute as to the sufficiency of the amount so tendered, he shall forthwith refer the same for decision by the Collector, and such decision shall be final.

 

15.       Power to enter for repairs and to prevent accidents. In case of any accident happening or being apprehended to a canal any Divisional Canal-officer or any person acting under his general or special orders in this behalf may enter upon any lands adjacent to such canal, and may execute all works which may be necessary for the purpose of repairing or preventing such accident.

Compensation for damage to land. In every such case such Canal-officer or person shall tender compensation to the proprietors or occupiers of the said lands for all damage done to the same. If such tender is not accepted, the Canal-officer shall refer the matter to the Collector, who shall proceed to awarded compensation for the damage as though the [Provincial Government] had directed the occupation of the lands under section 43 of the Land Acquisition Act, (X of 1870).

 

16.       Application by persons desiring to use canal-water. Any persons desiring to use the water of any canal may apply in writing to the Divisional or Sub-divisional Canal-officer of the division or sub-division of the canal from which the water-course is to be supplied, requesting such officer to construct or improve a water-course at the cost of the applicants.

Contents of application. The application shall state the works to be undertaken, their approximate estimated cost, or the amount which the applicants are willing to pay for same, or whether they engage to pay the actual cost as settled by the Divisional Canal-officer, and how the payment is to be made.

Liability of applicants for cost of works. When the assent of the Superintending Canal-officer is given to such application, all the applicants shall, after the application has been duly attested before the Collector, be jointly and severally liable for the cost of such works to the extent mentioned therein.

Recovery of amount due. Any amount becoming due under the terms of such application, and not paid to the Divisional Canal-officer, or the person authorised by him to receive the same, on or before the date on which it becomes due, shall, on the demand of such officer, be recoverable by the Collector as if it were an arrear of land-revenue.

 

Court Decisions

Allottees of such scheme securing order from Minister for inclusion of allotted land in cultivable‑‑Commanded area‑‑Departmental Authorities not complying with order but seeking advice from authority‑‑Effect‑‑Order passed by Minister, held, could not be treated to be effective per force‑‑Same would have to be given effect to by Authority under relevant statute in accordance with requirements of law.   1986 C L C 286

P L D 1969 S C 407 ref.

Supply of irrigation water– Requirements of S. 16 read with rr. 7 & 7-A fully satisfied­ Refusal to supply water for reasons extraneous to law, held, without lawful authority and of no legal effect.   1980 C L C 128

 

17.       Government to provide means of crossing canals. There shall be provided, at the cost of [the Provincial Government], suitable means of crossing canals constructed or maintained at the cost of [the Provincial Government], at such places as the [Provincial Government] thinks necessary for the reasonable convenience of the inhabitants of the adjacent lands.

On receiving a statement in writing, signed by not less than five of the owners of such lands, to the effect that suitable crossing have not been provided on any canal, the Collector shall cause enquiry to be made into the circumstances of the case, and if he thinks that the statement is established, he shall report his opinion thereon for the consideration of the “[Provincial Government] and the “[Provincial Government] shall such measures in reference thereto to be taken as it thinks proper.

 

18.       Persons using water-course to construct works for passing water across roads, etc. The Divisional Canal-officer may issue any order to the persons using any water-course to construct suitable bridges, culverts or other works for the passage of the water of such water-course across any public road, canal or drainage-channel in use before the said water-course was made, or to repair any such works.

Such order shall specify a reasonable period within which such construction or repairs shall be completed;

If they fail, Canal-officer may construct. And if, after the receipt of such order, the persons to whom it is addressed do not, within the said period, construct or repair such works to the satisfaction of the said Canal-officer, he may, with the previous approval of the Superintending Canal-officer, himself construct or repair the same;

And recover cost. And if the said persons do not, when so required, pay the cost of such construction or repairs as declared by the Divisional Canal-officer, the amount shall, on the demand of the Divisional Canal-officer, be recoverable from them by the Collector as if it were an arrear of land-revenue. 

 

19.       Adjustment of claims between persons jointly using water-course. If any person, jointly responsible with others for the construction or maintenance of a water-course, or jointly making use of water-course with others; neglects or refuses to pay his share of the cost of such construction or maintenance, or to execute his share of any work necessary for such construction or maintenance, the Divisional or Sub-divisional Canal-officer, on receiving an application in writing from any person injured by such neglect or refusal, shall serve notice on all the parties concerned that, on the expiration of a forthnight from the service, he will investigate ,he case; and shall, on the expiration of that period, investigate the case accordingly, and make such order thereon as to him seems fit.

Such order shall be appealable to the [Commissioner], whose order thereon shall be final.

Recovery of amount found due. Any sum directed by such order to be paid within a special filed period may, if not paid within such period, and if the order remains in force, be recovered by the Collector, from the person directed to pay the same, as if it were an arrear of land-revenue.

 

20.       Supply of water through intervening water-course or change of source of water supply.-Whenever application is made to a Divisional Canal officer for a supply of water from a canal thought water course or change of source of water supply of any land and be considers it expedient, shall give notice to all persons interested including the land owners through whose land any link watercourse is to pass to show cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed or the source of supply be chanced: and after making enquiry on such day the Divisional canal officer shall determine, whether and on what conditions the said supply shall be conveyed through such water course or that the source of water supply shall be changed or the link water course shall be aligned and constructed, After the expiry of thirty days of the announcement of the decision of the divisional canal officer, if no objection is received and after giving due opportunity of hearing if an objection is received, the superintending Canal officer may confirm or modify that decision The decision of the superintending canal officer shall be binding on the applicant, the persons responsible for the maintenance of the said water course, all the persons affected by the change of source of water supply, and the land owners through whose land the link water course shall pass.

Such applicant shall not be entitled to use the said water course until he has paid the expenses of alteration of such water course necessary in order to his being supplied through it, and also such share of the first cost of such water course as the divisional or superintendent canal of officer may determine.

The applicant shall not be entitle to use the link water course if any until (a) he has paid to the land owner the compensation for the land occupied by such link wart course in whatever shape if it is determined through mutual agreement or (b) possession of land for the said link water course has been acquired under the provisions of this Act.

Such applicant shall also be liable for his share of cost of maintenance of he water course as long as he uses it.     

Old Section

20.       Supply of water through intervening water-course. Whenever application is made to a Divisional Canal-officer for a supply of water from a canal, and it appears to him expedient that such supply should be given and that it should be conveyed through some exiting water-course, he shall give notice to the persons responsible for the maintenance of such water-course to show cause, on a day not less than fourteen days from the- date of such notice, why the said supply should note be so conveyed: and, after making enquiry on such day, the Divisional Canal-officer shall determine whether and on what conditions the said supply shall be conveyed through such water-course.

When such officer determines that a supply of canal-water may be conveyed through any water-course as aforesaid, his decision shall, when confirmed or modified by the Superintending Canal-officer, be binding on the applicant and also on the persons responsible for the maintenance of the said water-course.

Such applicant shall not be entitled to use such water-course until he has paid the expense of any alteration of such water-course necessary in order to his being supplied through it, and also such share of the first cost of such water-course as the Divisional or Superintending Canal-officer may determine.

Such applicant shall also be liable for his share of the cost of maintenance of such watercourse so long as he uses it.

 

Court Decisions

Interpretation and scope of S.20, — Application to Divisional Canal Officer for supply of water from a canal through watercourse or change of source of water supply of any land-Procedure-Due opportunity of hearing to the objector by the Divisional Canal Officer -Necessity‑‑­Confirmation or modification of decision of Divisional Canal Officer by Superintending Canal Officer‑‑Binding nature-Request for change of watercourse having once been rejected by the Superintending Canal Officer, he could not review his order under law-Superintending Canal Officer before review had not issued notice to all the shareholders of the Moga, such order in the absence of said shareholders was also violative of principles of natural justice and thus not maintainable-Supreme Court declined to interfere with the concurrent findings of the Courts below and dismissed the petition for leave to appeal.  2002 S C M R 1466

S. 20 of the Canal and Drainage Act, 1873 stipulates that whenever an application is made to a Divisional Canal Officer for supply of water from a canal through watercourse or change of source of water supply of any land and he considers it expedient, shall give notice to all persons interested including the landowners through whose land any link watercourse is to pass, to show cause on a day not less than fourteen days from the date of such notice why the said supply should not be so conveyed, or the source of supply be changed and after making enquiry on such day the Divisional Canal Officer shall determine, whether and on what conditions the said supply shall be conveyed through such watercourse or that the source of water supply shall be changed or the link watercourse shall be aligned and constructed.

After the announcement of the decision of the Divisional Canal Officer, if no objection is received or an application is received, then due opportunity of hearing is to be provided. It is thereafter that Superintending Canal Officer may confirm or modify that decision and such orders are binding on all persons responsible for the maintenance of the said water‑course. The request for change of watercourse, in the present case, was rejected by the S.C.O. and it was thereafter that matter was re‑opened on review application about which there was no such provision. Moreover, from the record as well as from the impugned order, it transpired that no notice was issued to all the shareholders of the Moga. Such order having been passed in absence of shareholders was violative of principle of natural justice and thus was not sustainable in law.

Since there were concurrent finding on the question of facts and law recorded by the lower Courts as such Supreme Court declined to interfere with the same. Moreover, no illegality in the impugned judgment of the High Court was pointed out which accordingly was maintained.   2002 S C M R 1466

Shifting of water outlet Presence of affected parties in proceedings-Effect-Where orders for shifting of water outlet (Moga) were passed in presence of affected parties, violation of the provisions of S.20 of the Canal and Drainage Act, 1873, was not relevant.  2002 C L C 333

Ghulam Muhammad and others v. Hafiz Ahmed and others PLD 1960 (W.P.) Lah. 1179; Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Ghazanfar Khan and others v. Taj Muhammad and others 1970 SCMR 139 ref.

Proper and necessary parties-Order for shifting of water outlet (Moga)-Failure to implead the officers making the order-Effect-Where the officers who passed the order for shifting of water outlet (Moga) were not impleaded as defendants in the suit the plaint was not properly constituted-Suit was rightly dismissed by the Appellate Court.  2002 C L C 333

Zulfiqar Ali and another v. Superintending Engineer, Multan and others PLD 1957 (W.P.) Lah. 703; Mst. Maqbool Bibi v. Ibrahim and others 1982 SCMR 78; Fateh Muhammad and others v. Muhammad Bashir and others 1968 SCMR 1220 and Muhammad Ishaq and 13 others v. Muhammad Iqbal and 3 others PLD 1975 Lah. 1314 ref.

Revision petition‑‑­Respondent's application for shifting of his land from one outlet to another outlet was dismissed by Divisional Canal Officer but Superintending Canal Officer, on appeal reversed the order and ordered shifting of respondent's land to outlet in question wherefrom petitioners also got their land irrigated‑‑­Petitioners' suit against such shifting was dismissed as also their appeal‑‑­Validity-Notices were admittedly issued to petitioners by functionaries under Canal and Drainage Act and they were heard-Both Courts below on that question of fact had concurred and there was no scope for reopening the same in revision-Scheme of law comprised in Canal and Drainage Act, 1873 showed that order of Divisional Canal Officer was only of tentative nature and would only attain finality after confirmation or modification of same by Superintending Canal Officer-Decision of Superintending Canal Officer was, thus, final‑‑­Superintending Canal Officer while exercising power of modification or confirmation the order of Divisional Canal Officer, could also set aside the same and could allow appropriate relief to deserving party as controlling or superintending Authority-. 1997 M L D 403

1984 CLC 2158 rel.

Constitutional jurisdiction — Government, competent to revise scheme with regard to construction of Link Channel and Head Regulator, had revised that scheme depending on feasibility of the project, its advantages and disadvantages and availability of resources-Implementation of such project fell within competence of Government and interference of High Court in exercise of its Constitutional jurisdiction, was not called for-Controversy wholly depending on determination of difficult question of fact, could not be gone into by High Court in exercise of its Constitutional jurisdiction.  1997 M L D 819

Quashing of F.I.R.-Pending matters with regard to irrigation before the Civil Court, Deputy Commissioner ordered registration of criminal case against the petitioner-Magistrate in his enquiry report in fact had made          recommendation for registration of criminal case against the Government officials who had issued notification under S.20 of Canal and Drainage Act, 1873 but the case was registered against the petitioner who had filed application to the Authority in the Irrigation Department complaining that proper water was not being given to his land through the Mogha concerned -Validity‑‑­ Deputy Commissioner had no authority to get a case registered against the petitioner or interfere into order passed by Canal Authority when he was neither the Appellate nor the Revisional Authority and even did not figure anywhere in the Canal and Drainage Act, 1873-Even otherwise matter of F.LR. being sub judice before Court, same could not be registered against petitioner. 2001 Y L R 2686

1997 MLD 2097; 1991 PCr.LJ Note 126 at p.92 and 2000 PCr.LJ 888 ref.

Wara Bandi-Normally a `Wara-Bandi' arrangement, ordered by Canal Authorities, has to remain in force, unless it was set aside by Civil Court.  1993 M L D 716

Transfer Of Land Respondents' plea for their lands to be transferred from one outlet of irrigation to another outlet of irrigation-Respondents' plea was ultimately rejected by Chief Engineer of the area concerned-High Court, in Constitutional petition directed irrigation authority to include respondents' land in the scheme to be irrigated from the outlet of their choice-Leave to appeal-Appellant/Chief Engineer of the concerned area when called in Supreme Court agreed to take over lands of respondents and include them in his circle and to presently supply them 0.42 cusecs of water, instead of 0.83 cusecs, recommended by subordinate staff‑‑­Appeal was partly accepted in terms of statement of Chief Engineer/Appellant.  1991 S C M R 974

Notice­ : Process server reporting making of proclamation and affixing copy of notice in chowk‑Any effort to serve petitioners personally or by post or their refusal to accept notice not discernible from record‑Record not suggesting satisfaction of officer with service of notice in accordance with Rules‑Held, in circumstances, petitioners not duly served and requirements of Rules not at all satisfied‑Order passed without notice set aside ‑ 1982 C L C 804

         Mandatory Relief under sections to be sought in writing and not orally—Affected parties also to be served with notice to state their case—Procedure as laid down in Ss. 20 & 68 not followed while sanctioning new water course impugned order geld not maintainable. P L D 1977 Lahore 220

Notice issued to all land-owners including appellant who initiated proceedings under S.68–Notices were duly served and application was decided only when it was established on record that notices had been served upon all land-owners–Appellant, although was duly served but sent his grandson either to represent him or to watch proceedings–Grandson of appellant giving consent to sanction of watercourse–Original plaint filed by appellant had not challenged correctness of sanctioning of watercourse and said plaint showed that appellant (plaintiff) was agreeable to construction of watercourse through his area–High Court finding that consent of grandson was consent of grandfather (applicant)–Appellant unable to refute inference drawn by High Court with regard to contents of plaint nor was able to point of any other material on record to show that finding was not well-founded Contentions on basis of which leave was granted by Supreme Court having not been established by appellant, Supreme Court dismissed appeal. 1985 S C M R 208

Non­compliance of provision of S. 20 – Judgment of trial Court having been armed up to High Court in second appeal bad acquired finality-Supreme- Court not called upon to examine its correctness­ Supreme Court having been satisfied that High Court has rightly interpreted judgment of lower Court-Leave to appeal refused. 1983 S C M R 1054

Finality of orders ‑ Contention that Superintending Canal Officer was not com­petent to reverse order of Divisional Canal Officer but only confirm or modify such order under S. 20 of Canal and Drainage Act, 1873‑Held, S. 20 nowhere envisages that order of Divisional Canal Officer is final when he rejects application moved under S. 20 of Act‑Decision of Canal Officer either way is ‑subject to scrutiny of Superintending Canal Officer which may be confirmed or modified.  1984 C L C 2158

Words and phrases. A decision may be defined as a determination arrived at after consi­deration of facts, and, in legal context, law. The decision can be regarded the rejection of the application o r its acceptance subject to the confirma­tion and modification by the Superintending Canal Officer. 1984 C L C 2158

`Modify'‑Meaning.‑The word 'modify' means to alter ; a change ; an alteration or amendment which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter intact. The word modify' means change (to make suitable or less severe). It shows that the word `modify' connotes that the order can be altered, changed or varied or it can be made suitable or less severe. 1984 C L C 2158

Injunction ‑ Injunction against water supply to a nursery granted by Addi­tional District Judge without examining point as to which party would suffer irreparable injury by grant of injunction and balance of convenience lay in whose favour‑Non‑supply of water to nursery for irrigation purposes likely to result in its annihilation and material injury to petitioners‑District Judge while deciding interlocutory matter seemingly giving a conclusive finding as to case having fell within ambit of S. 20 of Canal and Drainage Act, 1873, and Sub‑Divisional Canal Officer passed order under S. 68 being without jurisdiction­ Finding of District Judge tending to prejudice course of action before trial Court order of District Judge set aside. 1982 C L C 59

­         Injunction,  Sub‑Divisional Canal Officer purporting to act under S. 68 permitting petitioners to take water from same water­course as irrigating respondents' lands‑Respondent challenging legality of order in civil Court and suit still pending‑Contentions that case fell under S. 68 and not under S. 20, Sub‑Divisional Canal Officers' orders being final until varied by civil Court, no injunction could be granted during pendenoy of suit, and plaintiffs not showing any justification for suspension of impugned order injunction not justifiably issued‑Held, such contentions having direct bearing on final disposal of pending suit, no views could be expressed so as to prejudice one side or other‑Petitioners, however, getting their supply of water from another watercourse, though taking of from same outlet, lower Courts' order merely maintained status quo between parties in holding that petitioners irrigated their lands from their own watercourse and therefore no irreparable loss or injury was to be caused to them‑Temporary injunction in favour of plaintiff respondent, held, admitted of no interference at such stage.­ 1976 S C M R 473

Water supply, sanction of‑High Court's order holding impugned order of Executive Engineer to be without lawful authority and respondent being legally entitled to supply of water pursuant to decree of civil Court‑Leave to appeal having been granted only to consider propriety of direction issued by High Court, conclusion reached by High Court assumed finality‑Foundation of Divisional Canal Officer's order being previous sanction accorded by Superintend­ing Engineer, pursuant to legal obligation created by civil Court decree, direction given by High Court nothing more than expression of consequences flowing from such order‑Contention that High Court could not in its writ jurisdiction pass any consequential order and could only decree impugned act to be without lawful authority, held, not tenable in circumstances nor High Court bound to remand case to Superintending Engineer to pass a fresh order inasmuch as Superintending Engineer already accorded sanction to supply of water and High Court gave finding on merits of case  1979 S C M R 385

Shahadat ‑Khan and another v. Home Secretary to the Government of Pakistan and others P L D 1969 S C 158 distinguished.

         Watercourse in dispute pre-existing and not newly constructed –Warabandi order passed several years back mentioning existence of watercourse in dispute but such order not challenged by plaintiff'–Formalities prescribed in Ss. 21-23, hence, not required to be gone through–Order allowing respondent to take canal water from such   watercourse,  in circumstances, not bad.  1975 S C M R 465

        Supply of canal water ‑Appli­cants. not irrigating land from outlet in dispute under any valid order ‑Divisional Canal officer deciding that such persons ought to receive water from such outlet‑Such decision an order under S. 20‑Orders of Divisional Canal Officer under S. 20‑Not final and inoperative unless confirmed by Superintending Canal Officer‑Superintending Canal Officer not having confirmed such order, his order binding on applicants and also on person responsible for maintenance of watercourse‑Canal Officers cannot confer rights of irrigation without recourse to provisions of S. 20 or 23 P L D 1974 Lahore 248

Kadir Bakhsh v. Bhagat Ram and others 71 P R 1888 ; Kania Lal and .others v. Narain Singh and others 50 1 C 299 and Zulfiqar Ali and ,smother v. Superintending Engineer, Multan and another P L D 1957 Lah. 703 ref.

        Order of Superintending Engineer final‑Order refusing to confirm order of Divisional Engineer covered by sub­section‑Final order binding on canal authorities‑Northern India Canal and Drainage Rules, rule 81. 

Held, that an order passed by the Superintending Engineer under section 20 (2), Northern India Canal and Drainage Act (VIII of 1873), confirming or modifying an order of the Divisional Engineer is final and is binding also on canal authorities. 

Refusal by the Superintending Engineer to confirm an order of the Divisional Engineer is an order under subsection (2) of section 20, and is therefore final under that sub section.  

As no appeal is provided against an order under section 20 (2), the order becomes final also in view of rule 81 of the Northern India Canal and Drainage Rules. P L D 1957 (W. P.) Lahore 703 

        Constitutional petition-Maintainability-Change of source of water supply-Order passed under S.20, Canal and Drainage Act,. 1873-Mode to challenge-Any type of order passed under S.20, Canal and Drainage Act, 1873 can be assailed through civil suit-Questions of fact being involved in such cases these have to be considered after the same were highlighted through production of evidence-Order in question, passed by Canal Authorities was challenged. by petitioners through filing of Constitutional petition on the ground that same was illegal, void, without authority and without Jurisdiction-All averments and assertions raised in Constitutional petition could be agitated before Civil Court where analysis would have to be made/effected on the basis of production of evidence and submissions through arguments-Even if order passed by Canal Authorities was without Jurisdiction, same would have to be got set aside by adopting correct procedure and availing remedy before competent forum-Civil suit being efficacious remedy against order passed by Canal Authorities under Ss. 20 & 68, Canal and Drainage Act, 1873, Constitutional petition challenging such orders would not be maintainable.  1996 C L C 1747

PLD 1961 (W.P.) Lah.439 rel.

Wara Bandi-Normally a `Wara-Bandi' arrangement, ordered by Canal Authorities, has to remain in force, unless it was set aside by Civil Court. 1993 M L D 716

Revisional Jurisdiction, exercise of-Order passed by Divisional Canal Officer as affirmed in appeal by Superintending Engineer,, was assailed on ground that before passing such orders plaintiffs were neither served nor heard and that order passed in their absence was without Jurisdiction-Question as to whether notices were issued to plaintiffs or they were given opportunity of being heard being a question of fact, Courts below had concurrently found that not only notices were issued to plaintiffs but same were also served upon them–No misreading/non-reading of evidence by Courts below had been pointed out–Onus to prove nonService was on plaintiffs who failed- to prove non-issuance of notice-Trial Court had also stated in its Judgment that plaintiffs had been appearing in appeal before Superintending Engineer and that it was his order which could effectively determine rights of irrigation under those proceedings and that order of Divisional Canal Officer was Just a simple suggestion to Superintending Engineer-Plaintiffs had not been able to controvert such observations made by Trial Court-No exception could be taken to the findings arrived at by Courts below, with regard to service of notice issued by Divisional Canal OfficerRevision was dismissed in circumstances: 1991 M L D 534

Sanctioning of new Khal-Respondents without adopting proper course envisaged by Ss.20 & 21, Canal and Drainage Act, 1873, which was prerequisite for sanctioning of new Khal approaching High Court through Constitutional petition for direction to Canal Authorities to provide Khal to them-High Court without examining legal difficulty expressed by Canal Authorities that new source of water could not be opened for respondents except in pursuance of proceedings under Ss. 20 to 23, Canal and Drainage Act, 1873, directing Canal Authorities to provide canal water to respondents within 10 days-Validity-Disputes with regard to supply of water or apportionment of water were to be decided by Canal Authorities under the provisions of Canal and Drainage Act, 1873-High Court could not give direction which would enable or force Canal Authorities to bypass or violate provisions of the Act-Order of High Court was set aside‑‑­Canal Authorities, however, were directed to resolve the dispute between parties amicably,, but strictly in accordance with provisions of Canal and Drainage Act, 1873.  1996 SCMR 536

Order of Authority below shifting respondents' land from one outlet to another in interest of better irrigation which was affirmed by Appellate Authority was challenged in Constitutional petition, but petition was also dismissed-Despite order of Authority having attained finality up to level of High Court, petitioners who were very influential persons did not let order implemented for a period of more than two decades in collusion with officials of Department and by bringing frivolous litigation-After having failed twice in their civil suits, a similar type of suit was again filed and object of that suit clearly was to get the order cancelled which had attained finality up to level of High Court-Suit was definitely a suit which was based upon a different cause of action, but object was simply vacation of final order-Suit being barred on the principle that no one was to be twice vexed for same cause of action stay application had rightly been dismissed by Appellate Court below by setting aside a sketchy, unjust, illegal and perverse order passed by Trial Court-Case being not fit for exercise of revisional jurisdiction of High Court particularly, when justice had been done by Appellate Court below dismissing stay application of petitioners, High Court dismissed suit being incompetent and frivolous and barred under S.11, C.P.C. 1994 M L D 295

Shah Muhammad v. Nawab Khan and 5 others PLD 1966 Lah. 904; Muhammad Swaleh and another v. M/s. United Grain & Food Agencies PLD 1964 SC 97; Mst. Gul Farosha v. Umar Gul and 11 others 1985 CLC 810; Mst. Zubaida Begum v. Muhammad Saeed through L.Rs. and 2 others 1991 MLD 1312; Outab-ud-Din. v. Gulzar and 2 others PLD 1991 SC 1109; Saifur Rehman etc. v. Rehmat Ali etc. 1989 ALD 485; Aziz Ahmad and others v. Mst. Hajran Bibi and another 1987 SCMR 527; Amir Din Shahab Din v. Shiv Dev Singh AIR 1947 Lah. 102; Asif Jah Siddiqui v. Government of Sindh and others PLD 1983 SC 46 and Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 ref.

 

20.A    Special powers of Divisional Canal officer to initiate cases under Section 20.–Whenever Government considers it expedient for a specific purpose to empower a Divisional Canal Officer to undertake proceedings under section 20 on his own initiative it may confer such a power by a general or special order issued on that behalf;

 

20.B    Cutting of supply for any land out being irrigated at site.– (1) Whenever, on an application or otherwise , the divisional Canal officer considers it expedient to terminate the water supply or any land which cannot be used for agriculture or has become un-irrigable, he shall give notice of not less than fourteen days to the land owners and the persons responsible for the maintenance of the water-course through which such supply is conveyed, to show cause why such supply should not be cut of, and after making enquiry, the said Canal Officer may pass orders to stop the complete or partial supply of water.

(2)        After the expiry of thirty days of the announcement of the decision by the Divisional Canal officer, if no objection is received and after giving the opportunity of hearing, if any objection is received, the superintending Canal Officer may confirm or modify it. The decision of the Superintending Canal Officer shall be final and binding on the parties concerned.

 

21.       Application for acquisition of land and construction of works thereafter.- Whenever it is considered necessary to acquire land for construction of a link water-course sanctioned under Section 20, or Section 68 or deposit of soil from a water-course clearances permitted under Section 68 and transfer of an exsting water course sanctioned under Section 23, the interested person may apply in writing to the Divisional Canal Officer stating-

(i)         that he has endeavored unsuccessfully to acquire, from the owners of the land through which he desires such water-course to pass, a right to occupy so much of the land a will be needed for such water-course;

(ii)        that he desires the said Canal-officer, in his behalf and at his cost, to do all things necessary for acquiring such land; and

(iii)       that he is able to defray all costs involved in acquiring such land and constructing such water-course with connected works.

Old Section

21.       Application for construction of new water-course. Any person desiring the construction of a new water-course may apply in writing to the Divisional Canal-officer, stating-

(a)        that he has endeavoured unsuccessfully to acquire, from the owners of the land through which he desires such water-course to pass, a right to occupy so much of the land a will be needed for such water-course;

(b)        that he desires the said Canal-officer, in his behalf and at his cost, to do all things necessary for acquiring such right;

(c)        that he is able to defray all costs involved in acquiring such right and constructing such water-course.

 

Court Decisions

21, Canal and Drainage Act, 1873, which was prerequisite for sanctioning of new Khal approaching High Court through Constitutional petition for direction to Canal Authorities to provide Khal to them-High Court without examining legal difficulty expressed by Canal Authorities that new source of water could not be opened for respondents except in pursuance of proceedings under Ss. 20 to 23, Canal and Drainage Act, 1873, directing Canal Authorities to provide canal water to respondents within 10 days-Validity-Disputes with regard to supply of water or apportionment of water were to be decided by Canal Authorities under the provisions of Canal and Drainage Act, 1873-High Court could not give direction which would enable or force Canal Authorities to bypass or violate provisions of the Act-Order of High Court was set aside‑‑­Canal Authorities, however, were directed to resolve the dispute between parties amicably,, but strictly in accordance with provisions of Canal and Drainage Act, 1873. 1996 SCMR 536

Private Khal-. Eventualities where a private watercourse or a Khal may be thrown open by the Canal Authorities for use by another person for passage of water, for irrigation of his lands and lend him aid if any obstruction is caused in the user thereof. There are only three eventualities where a private watercourse or a Khal may be thrown upon by the Canal Authorities for use by another person for passage of water, for irrigation of his lands and lend him aid if any obstruction is caused in the user thereof. Firstly, such right is obtained under a mutual agreement between the parties; secondly, it is secured as an easement and thirdly after acquisition of the land, in pursuance of an application under section 21 of the Act on payment of compensation to the land owner. Unless the land owner gives his consent or a right of easement in respect thereof is acquired by another person, orders by the Canal Authorities for utilization of his property without payment of compensation would be violative of his Fundamental Rights granted under Article 24 of the Constitution.  1992 S C M R 613

 

22.       Procedure of Canal-officer thereupon. If the Divisional Canal-officer considers- (a) that the construction of such water-course is expedient, and

(b) that the statements in the application are true,

he shall call upon the applicant to make such deposit as the Divisional Canal-officer considers necessary to defray the cost of the preliminary proceedings, and the amount of any compensation which he considers likely to become due under section 28;

and, upon such deposit being made, he shall cause enquiry to be made into the most suitable alignment for the said water-course, and shall mark out the land which, in his opinion, it will be necessary to occupy for the construction thereof, and shall forthwith publish a notice in every village through which the water-course is proposed to be taken, that so much of such land as belongs to such village has been so marked out, and shall send a copy of such notice to the Collector of every district in which any part of such land is situate.

 

Court Decisions

Ss. 22 & 68‑‑Order of Divisional Canal Officer passed in favour of petitioner was sent to Superintending Engineer for confirmation or modification, if any, in accordance with law Superintending Engineer after having kept matter with himself for six months, set aside order of D.C.O. without giving notice to petitioners and without assigning any cogent reason‑‑Petitioners who were being supplied water for their area since 1950 and were entitled to get their area included in C.C.A. so as to continue receiving water, held, were entitled to show‑cause notice before passing adverse order against them ‑­Principles of natural Justice having been violated as petitioners were condemned unheard, order of Superintending Engineer and order of Appellate Court upholding that illegal order were set aside and case remanded to Superintending Engineer to pass fresh order after affording petitioners opportunity of being heard. 1988 C L C 2262

P L D 1983 SC 183 and 1971 S C M R 653 rel.

 

23.       Application for transfer of existing water-course. Whenever application is made to a Divisional Canal officer for transfer of an existing water-course from its present owner to the applicant, and it appears to him expedient that such transfer should be made in the interest of irrigation, hi shall give notice to the person owing such water-course to show cause, on a day not less than fourteen days from the date of such notice, why the said water course should not be so transferred, and after making enquiry on such day, the Divisional Canal officer shall determine whether and on what conditions the said water-course shall be transferred.

After the expiry of thirty days of the announcement of the decision of the divisional Canal officer, if no objection is received and after giving due opportunity of haring, if any objection is received, the Superintending Canal Officer may confirm or modify that decision. The decision of the superintending canal officer shall be final and binding on the parties concerned.

The applicant shall not be entitled to use the said water course, until–

(a)        he has paid to the owner the compensation thereof in whatever shape it is determined through mutual agreement; or

(b)        Possession of the water course has been acquired under the provisions of this Act.

Old Section

23.       Application for transfer of existing water-course. Any person desiring that an existing water-course should be transferred from its present owner to himself may apply in writing to the Divisional Canal-officer, stating-

(1)        that he has endeavoured unsuccessfully to procure such transfer from the owner of such water-course;

(2)        that he desires the said Canal-officer, in his behalf and at his cost, to do all things necessary for procuring such transfer;

(3)        that he is able to defray the cost of such transfer.

Procedure thereupon. If the Divisional Canal-officer considers-

(a)        that the said transfer is necessary for the better management of the irrigation from such water-course, and

(b)        that the statements in the application are true.

he shall call upon the applicant to make such deposit as the Divisional Canal-officer considers necessary to defray the cost of the preliminary proceedings, and the amount of any compensation that may become due under the provisions of section 28 in respect of such transfer;

and upon such deposit being made, he shall publish a notice of the application in every village, and shall send a copy of the notice to the Collector of every district through which such water-course passes.

 

24.      Objections to construction or transfer applied for.- Notwithstanding anything to the contrary contained in the land Acquisition Act, 1894 or any other law for the time being in force all land within the province shall be liable to acquisition at any time under this Act for constructing a water course or an internal khal.

Old Section

24.       Objections to construction or transfer applied for.- Within thirty days from the publication of a notice under section 22 or section 23, as the case may be, any person interested in the land or water-course to which the notice refers may apply to the Collector by petition, stating his objection to the construction or transfer for which application has been made.

The Collector may either reject the petition or may proceed to inquire into the validity of the objection, giving previous notice to the Divisional Canal-officer of the place and time at which such inquiry will be held.

The Collector shall record in writing all orders passed by him under this section and the grounds thereof.

Any person interested in the land, or the water-course to which the notice refers, has a right to life objections and therefore the occupancy tenants of a land over which the proposed right to object to the construction of a water-course through that land although that land although the are not the owner of the land.

Court Decisions

Acquisition of land‑‑Question of change of source of irrigation to respondent decided more than once‑‑Irrigation to respondent repeatedly found adequate‑‑Case of acquisition of land for construction of watercourse also finally determined‑‑Orders of Divisional Canal Officer had attained finality as they were not challenged at any stage‑‑Matter having already beep decided more than once, held, could not be re‑opened by Revisional Canal Officer, without any fresh dispute having been arisen. 1985 C L C 2679

­Order of warabandi‑Not open to question before Additional Commissioner. P L D 1964 W. P. (Rev.) 71

Mst. Maryam Sultana v. Nur Muhammad P L D 1963 W. P. (Rev.) 48 ref.

 

25.       When applicant may be placed in occupation. (1) Within fourteen days of the publication of the notice under Section 22, any person interested in the land to which the notice refers, may apply to the superintending canal officer by petition, stating his objection to the acquisition of land for which the application has been made.

The superintending canal officer may either reject the petition or may make alteration in the alignment of the proposed water-course as he thinks fit after hearing the Divisional canal officer or his representative and the application or interested person by giving them previous notice.

Notwithstanding anything to the finality of orders made under section 20, Section 23 and Section 68, the alteration made under this section by the superintending canal officer shall be construed as modification made in the orders already made under the above said Sections to the extent of orders passed under this section.

The superintending canal officer shall record in writing all orders passed by him under this Section and grounds thereof the orders of the superintending canal officer shall be final and binding on all the parties.

The superintending canal officer shall inform the collector of the district, Decisional Canal officer and the application of the order passed by him.

(2)        After the expiry of fourteen days of the publication of the notice under section 22, if on appeal is preferred to the Superintending Canal officer and on the announcement of the decision of the superintending canal officer when appeal is preferred to him as aforesaid, such land or transfer such water course and determine the necessary compensation;

Provided that the Collector shall take possession under this section after giving to the occupier thereof notice of fourteen days of his intention to do so.

 

Old Section

25.       When applicant may be placed in occupation. If no such objection is made, or (where such objection is made) if the Collector over-rules it, he shall give notice to the Divisional Canal-officer to that effect, and shall proceed forthwith to place the said applicant in occupation of the land marked out or of the water-course to be transferred as the case may be.

 

26.       Appeal against awards and review.-(1) The person entitled to compensation under the awards may accept the award and intimate acceptance in writing to the Collector within fifteen days from the date of the announcement of award

(2)        Any person aggrieved by the award of the collector may within one month of such award appeal to the commissioner. Where the affected party had no intimation of the award, the appeal may be filed within six weeks of the award. The Commissioner may after giving the person affected an opportunity of being heard make such order as he may deem fit.

(3)        The order of the Commissioner made an appeal shall be final and shall not be called into question in any court.

(4)        The Collector or the Commissioner either of his own motion or on application made to him in this behalf by any affected person may at any time review an order made by himself or his predecessor in so far as it corrects and arithmetical, clerical or patent error or mistake only.

 

Old Section

26.       Procedure when objection is held valid. If the Collector considers any objection made as aforesaid to be valid he shall inform the Divisional Canal-officer accordingly; and, if such officer sees fit, he may, in the case of an application under section 21, alter the boundaries of the land so marked out, and may give fresh notice under section 22; and the procedure hereinbefore provided shall be applicable to such notice, and the Collector shall thereupon proceed as before provided.

 

27.       Collector, Commissioner and canal officer to have powers of Civil courts etc. The Collector, Commissioner and a Canal officer making an enquiry or conducting any proceedings or exercising the powers of appeal or review under section 25 and 26 of this Act shall have the same powers in respect of the following matters as are bested in a Civil Court, when trying a suit, under the code of civil procedure, 1908 (Act V of 1908), namely:-

(a)        Summoning and enforcing attendance of any person, examining him on oath or affirmation;

(b)        requiring the discovery and production of any document;

(c)        requisitioning any record from any court or office;

(d)        issuing commissions for examination of witnesses, inspection of property or making any local investigation;

(e)        appointing guardian ad-litem or next friends;

(f)         adding or substituting representatives of deceased parties to proceedings;

(g)        adding or dropping parties from pending proceedings;

(h)        dismissal in default of appearance and restoration of cases dismissed for default;

(i)         consolidating and splitting up cases; and

(j)         any other matter connected with the holding of any inquiry or hearing of and appeal.

 

Old Section

27.       Procedure when Canal-officer disagrees with Collector. If the Canal-officer disagrees with the Collector, the matter shall be referred for decision to the “[Commissioner].

Such decision shall be final, and the Collector, if he is so directed by such decision, shall, subject to the provisions of Section 28, cause the said applicant to be placed in occupation of the land so marked out or of the water-course to be transferred, as the case may be.

 

28.       Expenses to be paid by applicant before receiving occupation. On completion of proceedings under section 25 and delivery of possession of land, the Divisional Canal officer may allow the applicant to construct the water course but no such applicant shall be permitted to make use of such land or water course for the requisite purpose, until he has paid such amount as the Collector determines to be due as compensation of the land or water course so occupied or transferred, and for any damage caused by the marking out or occupation of such land together with all expenses incidental to such occupation or transfer.

If any party of compensation and expenses are not paid when demanded by the person entitled to receive the same, the amount may be recovered by the Collector as if it were and arrear of land revenue, and shall, when recovered, be paid by him to the person entitled to receive the same.

 

Old Section

28.       Expenses to be paid by applicant before receiving occupation. No such applicant shall be placed in occupation of such land or water-course until he has paid to the person named by the Collector such amount as the Collector determines to be due as compensation for the land or watercourse so occupied or transferred, and for any damage caused by the marking out or occupation of such land, together with all expenses incidental to such occupation or transfer.

Proceeding in fixing compensation. In determining the compensation to be made under this section the Collector shall proceed under the provisions of the Land Acquisition Act, (X of 1870)2;

but the may, if the person to be compensated so desires, award such compensation in the form of a rent-charge payable in respect of the land or water-course occupied or transferred.

Recovery of compensation and expenses. If such compensation and expenses are not paid when demanded by the person entitled to receive the same, the amount may be recovered by the Collector as if it were an arrear of land-revenue, and shall, when recovered, be paid by him to the person entitled to receive the same.

 

29.       Conditions binding on applicant placed in occupation. When any such applicant is placed in occupation of land or of a water-course as aforesaid, the following rules and conditions shall be binding on him and his representative in interest:-

First.- All works necessary for the passage across such water-course, or water-courses, existing previous to its construction and of the drainage intercepted by it, and for affording proper communications across it for the convenience of the neighbouring lands, shall be constructed by the applicant, and be maintained by him or his representative in interest to the satisfaction of the Divisional Canal-officer.

Second.- Land occupied for a water-course under the provisions of section 22 shall be used only for the purpose of such water-course.

Third. The proposed water-course shall be completed to the satisfaction of the Divisional Canal-officer within one year after the applicant is placed in occupation of the land.

In cases in which land is occupied or a water-course is transferred on the terms of a rent-charge.

Fourth. The applicant or his representative in interest all, so long as he occupies such land or water-course, pay rent for the same at such rate as on such days as are determined by the Collector when the applicant is placed in occupation.

Fifth. If the right to occupy the land cease owing to a breach of any of these rules, the liability to pay the said rent shall continue until the applicant or his representative in interest has restored the land to its original condition, or until he has paid, by way of compensation for any injury done to the said land, such amount and to such persons as the Collector determines.

Sixth. The Collector may, on the application of the person entitled to receive such rent or compensation, determine the amount of rent due or assess the amount of such compensation; and, if any, such rent or compensation be not paid by the applicant or his representative in interest, the Collector may recover the amount, with interest thereon at the rate of six per cent per annum from the date on which it became due, as if it were an arrear of land-revenue, and shall pay the same, when recovered, to the person to whom it is due.

If any of the rules and conditions prescribed by this section are not complied with,

or if any water-course constructed or transferred under this Act is disused for three years continuously, the right of the applicant, or of his representative in interest, to occupy such landlord water-course shall cease absolutely.

 

30.     Procedure applicable to occupation for extensions and alterations. The procedure hereinbefore provided for the occupation of land for the constructed of a watercourse shall be applicable to the occupation of land for any extension or alteration of a watercourse, and for the deposit of soil from watercourse clearances.

 

31.       In absence of written contract, water-supply to be subject to rules. In the absence of a written contract, or so far as any such contract does not extend, every supply of canal-water shall be deemed to be given at the rates and subject to the conditions prescribed by the rules to be made by the [Provincial Government] in respect thereof.

 

Court Decisions

“Tawan" imposed on petitioners by Divisional Canal Officer‑‑­Validity-"Tawan" in question, having been imposed by competent Authority acting under Ss.31 & 33, Canal and Drainage Act, 1873, no justifiable exception could be taken to such imposition-Constitutional petition against the imposition of "Tawan" was dismissed in circumstances. 1991 C L C 1423

Kania Lal and others v. Narain Singh and others 50 IC 299 and Zulfiqar Ali and another v. Superintending Engineer, Multan etc. P L D 1957 Lah. 70 ref.

    Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment. It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water.Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lahore 237

Ss. 31 & 33-Canal and Drainage Rules, R.33‑Constitution of Pakistan, 1973, Art. 199-"Tawan" imposed on petitioners by Divisional Canal Officer‑‑­Validity-"Tawan" in question, having been imposed by competent Authority acting under Ss.31 & 33, Canal and Drainage Act, 1873, no Justifiable exception could be taken to such imposition-Constitutional petition against the imposition of "Tawan" was dismissed in circumstances. 1991 C L C 1423

 50 IC 299 and P L D 1957 Lah.70 ref.

 

32.       Conditions as to-power to stop water-supply. Such contracts and rules must be consistent with the following conditions: –

(a)        The Divisional Canal-officer may not stop the supply of water to any water-course, or to any person, except in the following cases: –

(1)        whenever and so long as it is necessary to stop such supply for the purpose of executing any work ordered by competent authority and with the previous sanction of the [Provincial Government];

(2)        whenever and so long as any water-course is not maintained in such proper customary repair as to prevent the wasteful escape of water therefrom;

(3)        within periods fixed from time to time by the Divisional Canal-officer;

 

(b)        Claims to compensation in case of, failure or stoppage of supply. No claim shall be made against “[the Provincial Government] for compensation in respect of loss caused by the failure or stoppage of the water in a canal, by reason of any cause beyond the control of “[the Provincial Government] or of any repairs, alterations or additions to the canal, or of any measures taken for regulating the proper flow of water therein, or for maintaining the established course of irrigation which the Divisional Canal-officer considers necessary; but the person suffering such loss may claim such remission of the ordinary charges payable for the use of the water as is authorised by the [Provincial Government]:

 

(c)        Claims on account of interruption from other causes. If the supply of water to any land irrigated from a canal be interrupted otherwise than in the manner described in the last preceding clause, the occupier or owner of such land may present a petition for compensation to the Collector for any loss arising from such interruption, and the Collector may award to the petitioner reasonable compensation for such loss:

 

(d)        Duration of supply. When the water of a canal is supplied for the irrigation of a single crop, the permission to use such water shall be held to continue only until that crop comes to maturity, and to apply only to that crop; but, if it be supplied for irrigating two or more crops to be raised on the same land within the year, such permission shall be held to continue for near from the commencement of the irrigation, and to apply to such crops only as are matured within that year:

 

(e)        Sale or subletting of right to use canal water. Unless with the permission of the Superintending Canal-officer, no person entitled to use the water of any canal, or any work, building o land appearing to any canal, shall sell or sublet or otherwise transfer his right to such use:

Provided that the former part of this clause shall not apply to the use by a cultivating tenant of water supplied by the owner of a water-course for the irrigation of the land held by such tenant:

Transfer, with land, of contracts for water. But all contracts made between “[The Provincial Government] and the owner or occupier of any immovable property, as to the supply of canal-water to such property, shall be transferable therewith, and shall be presumed to have been so transferred whenever a transfer of such property takes place;

 

(f)        No right acquired by user. No right to the use of the water of a canal shall be, or be deemed o have been, acquired under the Indian Limitation Act, (XV of 1877), Part IV, nor shall “[the Provincial Government] be bound to supply any person with water except in accordance with the terms of a contract in writing.

 

Court Decisions

Nikkal : Mere fact that there was possibility of the respondents giving up or not utilizing the extra irrigation time for the orchard would not be a ground for depriving them at present of their extra utilization of the Nikkal. 1989 S C M R 1186

Reduction of irrigation water‑Peti­tioners failing to bring on record any material to show that they were deprived of some irrigation water available to them before introduc­tion of new Warabandi‑Courts below, held, rightly declined to issue temporary injunction in favour of petitioner. P L D 1984 Peshawar 48

Water, supply of‑Petitioners purchasing land in 1976 not applying for regularisatton of water supply continued since 1962­ On application by vendor sanction for supply of water cancelled­ Petitioners not entering into agreement with department as contem­plated under S. 32 (e)‑Held, may apply for supply of water even at this stage and department to decide matter to accordance with law after providing adequate opportunity of hearing to parties concerned. 1983 C L C 84

 

33.       Liability when water is unauthorisedly taken from canal of water course. When the water of a canal be used in an unauthorised manner, the Divisional canal officer shall after holding an enquiry or causing the enquiry to be held including identification of the person committing the offence and considering the evidence of the irrigation committee wherever it exists levy charges in the matter and to the extent provided in the rules framed under this Act from the person by whose Act such use has occurred and if such person cannot be identified from the person on whose land the water has flowed and such land has derived benefit there from;

Provided that where the water so used has been supplied through a water course, the charges shall be levied–

(a)        from the person by whose act or neglect such use has taken place; or

(b)        if such person cannot be identified from the person on whose land the water has flowed and such land has derived benefit there from; and

(c)        if such person cannot be identified or the land on which the water has flowed has derived no benefit there from for all persons chargeable in respect or the water supplied through such water course. 

 

Court Decisions

"Tawan" imposed on petitioners by Divisional Canal Officer‑‑­Validity-"Tawan" in question, having been imposed by competent Authority acting under Ss.31 & 33, Canal and Drainage Act, 1873, no justifiable exception could be taken to such imposition-Constitutional petition against the imposition of "Tawan" was dismissed in circumstances. 1991 C L C 1423

Kania Lal and others v. Narain Singh and others 50 IC 299 and Zulfiqar Ali and another v. Superintending Engineer, Multan etc. P L D 1957 Lah. 70 ref.

 Tampering with outlet‑‑Levy of special charges‑‑Accused responsible for tampering with outlet had remained untraced‑‑Land owners whose lands had been unauthorisedly irrigated in consequence of such tampering, being beneficiaries of illicit irrigation, held, could not escape from liability of special charges levied against them.  1988 M L D 1763

Liability for unauthorised use of water­course or canal water‑Section 33 of Act XIII of 1873‑Applied only to a watercourse‑Distributory maintained at cost of Govern­ment‑Not a watercourse as defined in S. 3 (2) of Act XIII of 1873‑High Court, held, right in holding that special charges could not be imposed for unauthorised use of distributory's water under S. 33 read with r. 33‑Legislature having provided for imposition of charges in case of illicit use of water from canal by Amending­ Ordinance XVIII of 1971, object of appellants (canal authorities) held, achieved and effect of High Court's judgment holding r. 33 (seeking to levy special charges in respect of illicit use of canal water) to be ultra vires of Act XIII of 1873 set at naught yet notwithstanding amendment in S. 33 being retroactive, substituted section could not be made subject of attack in appeal before Supreme Court, High Court having had no occasion to consider effect of substituted section enacted much after delivery of its judgment. 1979 S C M R 62

Persons found taking unauthorised water from canal or a water course of canal‑Held, liable for levy of special charges.  1971 S C M R 787

"Watercourse" and "canal"‑Defini­tions‑Term "canal" wider and more exhaustive in scope­ Term "watercourse" restricted in meaning and scope so as to apply to only those channels not maintained at cost of Provincial Government‑Deliberate cuts made in water channel constructed by and maintained at cost of Provincial Government ‑Provisions of Ss. 33& 34, held, not applicable and hence order imposing special charges, in circumstances, could not be made‑Rule 33 providing for levy of charges for water used un-authorisedly, held, goes beyond substantive provisions of Act and hence ultra vires of parent statute. Whereas the term canal is wider and more exhaustive in scope, and includes a watercourse in its ambit, the term water­course is restricted in meaning and scope so as to apply to only those channels which are not maintained at the cost of the Provincial Government. In other words, whenever the Act makes a specific provision relating to a watercourse, its applica­tion has to be confined to those channels which are not maintained at the cost of the Provincial Government. It is common ground that the Gajjiana Distributory, in which the cut was made by the petitioners, was constructed by the Provincial Government and is being maintained at the cost of that Govern­ment. This channel cannot, therefore, be regarded as a water­course according to the definitions contained in the Act. Accordingly, it follows that the provisions of section 33 of the Act are not attracted in this case.

Whereas section 33 of the Canal and Drainage Act, 1873, deals with un-authorised use of water supplied through a water­course, section 34 deals with wastage of water through neglect or otherwise. Both the sections have a common feature inasmuch as the persons made chargeable in respect of the water used in an un-authorised manner or allowed to run to waste are those who would be chargeable in respect of water supplied through such watercourse, in case the culprits cannot be identified. These provisions leave no doubt that the Legislature was providing, in both these sections, measures for the preservation and proper utilization of water supplied by the Department through a watercourse. These sections do not apply to deliberate cuts made in those water channels which do not come within the definition of the term watercourse as contained in clause (2) of section 3 of the Act ; nor do they apply to tae un-authorised use or wastage of that water which is not supplied by the Department through a watercourse. It must be remembered that both these sections are in the nature of penal provisions, and cannot,, therefore, be interpreted in a manner so as to include within their ambit situations or acts or omission or commission not expressly, or by necessary intendment, included by the Legis­lature. For these reasons as well it appears that the impugned order could not be made under section 33 of the Act.

It was, however, submitted on behalf of the respondents that the lacuna noticed by the Court in section 33 of the Act, was removed by means of a notification issued by the Provincial Government on the 5th of May 1930. By this notification a new rule 33 was substituted so as to provide for the levying of charges for "canal water used in an un-authorised manner or suffered to run to waste". It was stipulated that "in the case of supply through a watercourse the persons chargeable shall be determined in accordance with the provisions of section 33 or 34 of Act VIII of 1873, as the case may be. In the case of a supply through an un-authorised cut or breach in a canal, other than watercourse, the persons chargeable shall be the occupiers of the land on which such water has flowed".

Held: The only provisions contained in the Act relating to the un-authorised use or wastage of water are those to be found in sections 33 and 34, dealing with watercourses, and there is no separate provision in respect of water supplied or flowing through a canal as distinct from a watercourse. The rules have been framed under section 75 of the Act, which gives power to the Provincial Government to make rules to regulate the matters enumerated in clauses (1) to (5) of that section. Clause (4) is relevant in the present context as it deals with "the amount of any charge made under this Act." The residuary clause (5) provides for the framing of rules, "generally to carry out the provisions of this Act." Both in terms of section 75 of the Act, as well as on general principles relating to subsidiary or delegated legislation, it is clear that the rules cannot go beyond the substantive provisions contained in the Act. There being no provision in the Act providing for the levy of special charges in respect of canal water used in an un-autho­rised manner or allowed to run to waste, rule 33 has to be declared to be ultra vires of the Act in so far as it seeks to levy special charges in respect of canal water, as distinguished from water supplied through a watercourse. It seems, there­fore, that the special charges levied in this case cannot be validated with reference to rule 33, taken independently of section 33 of the Act. P L D 1971 Lahore 979

Lal Singh and another v. The Crown P L D 1950 Pb. (Rev.) 1193 ref.

Levy of special charges‑Divisional Canal Officer, under legal obligation to apply his own mind whether there was un-authorised use or wastage of water by accused before passing order such officer can also act upon report of his Subordinate Officer‑Report of Subordinate Officer, however, not to be accepted by competent authority without critical examination of relevant facts and circumstances, and without taking into account objections raised thereto by persons affected.

It is clear that the Divisional Canal Officer is under a legal obligation to apply his own mind to the question whether there has been un-authorised use or wastage of water by the persons accused in this behalf before he can order the levy of special charges under sections 33 to 35 of the Act. This does not, however, mean that he cannot act on the report made to him by the Sub‑Divisional Officer after a spot inspection. The procedure whereby a Court acts on the basis of an investigation conducted by a Subordinate Officer or by an agency, specially appointed for this purpose such as a police officer or a Local Commissioner, is too well‑known to need any elaboration or comments. The essential requirement in this behalf is that such a report is not to be accepted by the competent authority without a critical examination of the relevant facts and circum­stances, and without taking into account the objections raised thereto by the persons affected. It seems that the require­ment of an independent application of mind would be adequately fulfilled if the inquiry report, submitted by a subordinate, is properly scrutinised by the competent authority and accepted or rejected for reasons to be recorded in the order. P L D 1971 Lahore 979

Muhammad Iqbal and 11 others v. The Chief Settlement and Rehabilitation Commissioner P L D 1970 Lah. 780 ref.

33, 34 & 35 read with Punjab Tenancy Act (XVI of 1887), S.1 S‑A(2)‑Levy of special charges under Act VIII of 1873‑Apportionment between landlord and tenant‑Section IS‑A(2) of Tenancy Act does not extend to charges and levies not falling within definition of "Government dues" and hence not attracted to special charges levied under Ss. 33 to 35 of Act VIII of 1873. P L D 1971 Lahore 979

S. 33‑Penalty-Basis for imposing penalty, stated.

Where the irrigation supplies drawn in the Kharif were in excess of the authorised discharges. Held, a penalty could be rightly imposed in respect of the Kharif irrigation as' also in respect of the Rabi irrigation.

A penalty at twice the crop rates is not very excessive. However one change is to be introduced that is in respect of the area described as `Rawani' in the figures of irrigation of both Kharif 1954 and Rabi 1955. The `Rawani' of Kharif would in due course be transferred to the next Rabi. The `Rawani' should not be charged on the basis of Rs. 13 per acre which is the Abiana due for an acre of sugarcane. The Irrigation Department took a long time in deciding the case and could have easily ascertained what were the crops actually grown in the fields entered as `Rawani'. The rates applicable to these crops should have been taken into account. If the `Rawani' was not converted into a crop, then the highest rate due for Rabi could be taken as a basis in respect of such fields. P L D 1959 W. P. (Rev.) 49

S. 33‑Tampering of moga intended for purposes of obtaining unauthorised supplies during subsequent months‑No penalty can be imposed on that account. P L D 1959 W. P. (Rev.) 119

S. 33‑‑Tampering with outlet‑‑Levy of special charges‑‑Accused responsible for tampering with outlet had remained untraced‑‑Land owners whose lands had been unauthorisedly irrigated in consequence of such tampering, being beneficiaries of illicit irrigation, held, could not escape from liability of special charges levied against them.  1988 M L D 1763

S. 33 [as substituted by Canal and Drainage (Punjab Amendment) Ordinance (XVIII of 1971), S. 2] read with Rules framed under Canal and Drainage Act, 1873, r. 33‑Liability for unauthorised use of water­course or canal waterSection 33 of Act XIII of 1873‑Applied only to a watercourse‑Distributory maintained at cost of Govern­ment‑Not a watercourse as defined in S. 3 (2) of Act XIII of 1873‑High Court, held, right in holding that special charges could not be imposed for unauthorised use of distributory's water under S. 33 read with r. 33‑Legislature having provided for imposition of charges in case of illicit use of water from canal by Amending­ Ordinance XVIII of 1971, object of appellants (canal authorities) held, achieved and effect of High Court's Judgment holding r. 33 (seeking to levy special charges in respect of illicit use of canal water) to be ultra vires of Act XIII of 1873 set at naught yet notwithstanding amendment in S. 33 being retroactive, substituted section could not be made subject of attack in appeal before Supreme Court, High Court having had no occasion to consider effect of substituted section enacted much after delivery of its Judgment1979 S C M R 62

S. 33 read with Canal and Drainage Rules, rr. 32 & 33Special leave to appeal‑­Granted to consider point whether levy of special charges by Canal Authorities was legally maintainable . 1971 S C M R 787

S. 33 [as substituted by Canal and Drainage (Punjab Amendment) Ordinance (XV111 of 1971)] read with S. 75 and Canal and Drainage Rules, rr. 33 & 33‑Persons found taking unauthorised water from canal or a water course of canal‑Held, liable for levy of special charges.  1971 S C M R 787

Ss. 33 & 34 read with Ss. 3(2)& 75 and Rules framed under Canal and Drainage Act, 1873, r. 33 [as inserted by Government Notifica­tion dated 5th May 1930]‑"Watercourse" and "canal"‑Defini­tions‑Term "canal" wider and more exhaustive in scope­ Term "watercourse" restricted in meaning and scope so as to apply to only those channels not maintained at cost of Provincial Government‑Deliberate cuts made in water channel constructed by and maintained at cost of Provincial Government ‑Provisions of Ss. 33& 34, held, not applicable and hence order imposing special charges, in circumstances, could not be made‑Rule 33 providing for levy of charges for water used un-authorisedly, held, goes beyond substantive provisions of Act and hence ultra vires of parent statute. Whereas the term canal is wider and more exhaustive in scope, and includes a watercourse in its ambit, the term water­course is restricted in meaning and scope so as to apply to only those channels which are not maintained at the cost of the Provincial Government. In other words, whenever the Act makes a specific provision relating to a watercourse, its applica­tion has to be confined to those channels which are not maintained at the cost of the Provincial Government. It is common ground that the GajJiana Distributory, in which the cut was made by the petitioners, was constructed by the Provincial Government and is being maintained at the cost of that Govern­ment. This channel cannot, therefore, be regarded as a water­course according to the definitions contained in the Act. Accordingly, it follows that the provisions of section 33 of the Act are not attracted in this case.Whereas section 33 of the Canal and Drainage Act, 1873, deals with un-authorised use of water supplied through a water­course, section 34 deals with wastage of water through neglect or otherwise. Both the sections have a common feature inasmuch as the persons made chargeable in respect of the water used in an un-authorised manner or allowed to run to waste are those who would be chargeable in respect of water supplied through such watercourse, in case the culprits cannot be identified. These provisions leave no doubt that the Legislature was providing, in both these sections, measures for the preservation and proper utilization of water supplied by the Department through a watercourse. These sections do not apply to deliberate cuts made in those water channels which do not come within the definition of the term watercourse as contained in clause (2) of section 3 of the Act ; nor do they apply to tae un-authorised use or wastage of that water which is not supplied by the Department through a watercourse. It must be remembered that both these sections are in the nature of penal provisions, and cannot,, therefore, be interpreted in a manner so as to include within their ambit situations or acts or omission or commission not expressly, or by necessary intendment, included by the Legis­lature. For these reasons as well it appears that the impugned order could not be made under section 33 of the Act.  It was, however, submitted on behalf of the respondents that the lacuna noticed by the Court in section 33 of the Act, was removed by means of a notification issued by the Provincial Government on the 5th of May 1930. By this notification a new rule 33 was substituted so as to provide for the levying of charges for "canal water used in an un-authorised manner or suffered to run to waste". It was stipulated that "in the case of supply through a watercourse the persons chargeable shall be determined in accordance with the provisions of section 33 or 34 of Act VIII of 1873, as the case may be. In the case of a supply through an un-authorised cut or breach in a canal, other than watercourse, the persons chargeable shall be the occupiers of the land on which such water has flowed".

 Held: The only provisions contained in the Act relating to the un-authorised use or wastage of water are those to be found in sections 33 and 34, dealing with watercourses, and there is no separate provision in respect of water supplied or flowing through a canal as distinct from a watercourse. The rules have been framed under section 75 of the Act, which gives power to the Provincial Government to make rules to regulate the matters enumerated in clauses (1) to (5) of that section. Clause (4) is relevant in the present context as it deals with "the amount of any charge made under this Act." The residuary clause (5) provides for the framing of rules, "generally to carry out the provisions of this Act." Both in terms of section 75 of the Act, as well as on general principles relating to subsidiary or delegated legislation, it is clear that the rules cannot go beyond the substantive provisions contained in the Act. There being no provision in the Act providing for the levy of special charges in respect of canal water used in an un-autho­rised manner or allowed to run to waste, rule 33 has to be declared to be ultra vires of the Act in so far as it seeks to levy special charges in respect of canal water, as distinguished from water supplied through a watercourse. It seems, there­fore, that the special charges levied in this case cannot be validated with reference to rule 33, taken independently of section 33 of the Act.  P L D 1971 Lah.979

P L D 1950 Pb. (Rev.) 1193 ref.

Ss. 33, 34 & 35­-Levy of special charges‑Divisional Canal Officer, under legal obligation to apply his own mind whether there was un-authorised use or wastage of water by accused before passing order such officer can also act upon report of his Subordinate Officer‑Report of Subordinate Officer, however, not to be accepted by competent authority without critical examination of relevant facts and circumstances, and without taking into account objections raised thereto by persons affected  It is clear that the Divisional Canal Officer is under a legal obligation to apply his own mind to the question whether there has been un-authorised use or wastage of water by the persons accused in this behalf before he can order the levy of special charges under sections 33 to 35 of the Act. This does not, however, mean that he cannot act on the report made to him by the Sub‑Divisional Officer after a spot inspection. The procedure whereby a Court acts on the basis of an investigation conducted by a Subordinate Officer or by an agency, specially appointed for this purpose such as a police officer or a Local Commissioner, is too well‑known to need any elaboration or comments. The essential requirement in this behalf is that such a report is not to be accepted by the competent authority without a critical examination of the relevant facts and circum­stances, and without taking into account the objections raised thereto by the persons affected. It seems that the require­ment of an independent application of mind would be adequately fulfilled if the inquiry report, submitted by a subordinate, is properly scrutinised by the competent authority and accepted or rejected for reasons to be recorded in the order. P L D 1971 Lah.979

P L D 1970 Lah.780 ref.

Ss. 33, 34 & 35 read with Punjab Tenancy Act (XVI of 1887), S.1 S‑A(2)Levy of special charges under Act VIII of 1873‑Apportionment between landlord and tenantSection IS‑A(2) of Tenancy Act does not extend to charges and levies not falling within definition of "Government dues" and hence not attracted to special charges levied under Ss. 33 to 35 of Act VIII of 1873. P L D 1971 Lah.979

S. 33‑Penalty-Basis for imposing penalty, stated. Where the irrigation supplies drawn in the Kharif were in excess of the authorised discharges. Held, a penalty could be rightly imposed in respect of the Kharif irrigation as' also in respect of the Rabi irrigation.  A penalty at twice the crop rates is not very excessive. However one change is to be introduced that is in respect of the area described as `Rawani' in the figures of irrigation of both Kharif 1954 and Rabi 1955. The `Rawani' of Kharif would in due course be transferred to the next Rabi. The `Rawani' should not be charged on the basis of Rs. 13 per acre which is the Abiana due for an acre of sugarcane. The Irrigation Department took a long time in deciding the case and could have easily ascertained what were the crops actually grown in the fields entered as `Rawani'. The rates applicable to these crops should have been taken into account. If the `Rawani' was not converted into a crop, then the highest rate due for Rabi could be taken as a basis in respect of such fields. P L D 1959 W. P. (Rev.) 49

S. 33‑Tampering of moga intended for purposes of obtaining unauthorised supplies during subsequent months‑No penalty can be imposed on that account. P L D 1959 W. P. (Rev.) 119

 

Old Section

33.       Liability when person using unauthorisedly cannot be identified. If water supplied through a water-course be used in an unauthorised manner, and if the person-by whose act or neglect such use has occurred cannot be identified, the person on whose land such water has flowed if such land has derived benefit therefrom, or if such person cannot be identified or if such land has not derived benefit therefrom, all the persons chargeable in respect of the water supplied through such water-course, shall be liable, or jointly liable, as the case may be, to the charges made for such use.

 

        34.       Liability when water runs to waste. If water supplied through a water-course be suffered to run to waste, and if, after enquiry by the Divisional Canal-officer, the person through whose act or neglect such water was suffered to run to waste cannot be discovered, all the persons chargeable in respect of the water supplied through such water-course shall be jointly liable for the charges made in respect of the water so wasted.

 

        35.       (1) All charges for the unauthorised use or for waste of water may be recovered in addition to any penalties incurred on account of such use or waste.         

            (2)        All questions under Sections 33 or 34 shall be decided by the Divisional Canal officer.

            (3)        Any person aggrieved by an order passed by the Divisional Canal Officer in respect of a question under section 33 may, within thirty days of the passing of such order, appeal:–

(i)         to the Superintending Canal officer when the special charges levied by the Divisional Canal Officer are upto ten times the occupier’s rates; or

(ii)        to the Commissioner of the Division when the charges levied are more than ten times.

            The Superintending Canal officer or the commissioner after giving such person an opportunity of being heard, may confirm, modify or set aside the order of the Divisional canal officer.

            (4)        Any person aggrieved by any order passed by the divisional Canal officer under section 34, may within thirty days of  the passing of such order, appeal to the Head Revenue officer of the district, who after giving such person an opportunity of being heard may confirm, modify or set aside the order of the divisional canal officer.

            (5)        The Commissioner, on an application made to him by any person aggrieved by an order passed in appeal under sub-section (4) and the Board of Revenue, on an application made to it by any person aggrieved by an order passed in appeal under sub-section (3) within ninety days of the passing of such order, and after giving such person an opportunity of being heard, may revise the order passed in appeal. The order passed by the commissioner of the Board of Revenue, as the case may be, in revision shall be final;

            Provided that before filing the revision under this sub-section, it shall necessary to deposit the amount of charges and penalties with the revisional authorities which according to the diction passed in revision shall be liable to be adjusted or refunded.

Old Section

 

35.       Charges recoverable in addition to penalties. All charges for the unauthorised use or for waste of water may be recovered in addition to any penalties incurred on account of such use or waste.

Decision of questions under sections 33 and 34. All questions under section 33 or section 34 shall be decided by the Divisional Canal-officer, subject to an appeal to the Head Revenue-officer of the district, or such other appeal as may be provided under section 75.

 

        36.       Charge on occupier for water, how determined. The rates to be charged for canal-water supplied for purposes of irrigation to the occupiers of land shall be determined by the rules to be made by the [Provincial Government], and such occupiers as accept the water shall pay for it accordingly.

“Occupier rate”. A rate so charged shall be called the “occupier’s rate”.

The rules hereinbefore referred to may prescribe and determine what persons or classes of persons are to be deemed to be occupiers for the purposes of this section, and may also determine the several liabilities, in respect of the payment of the occupier’s rate, of tenants and of persons to whom tenants may have sublet their lands or of proprietors of persons to whom proprietors may have let the lands held by them in cultivating occupancy.

 

Court Decisions

36 and Canal and Drainage Rules, r. 21­Canal water, payment for‑Private channels maintained by private owners in private lands‑Included within definition of "watercourse" and therefore part of a canal‑Tube well water supplied through any watercourse‑Canal water within meaning of S. 36‑Occupier of land accepting canal water‑Liable to be charged water rate or occupiers' rate according to Rules made by Government.

Even private channels, maintained by the private owners in private lands are included in the definition of "watercourse" and, therefore, must be regarded as a part of a canal. Reading the above mentioned two clauses together the inference is irresistible that tube‑well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupiers rate in accordance with the charges determined by the Rules to be made by the Provincial Government.

 As the petitioners admittedly accepted canal water and the rate payable for occupiers accepting canal water, has been fixed by a rule framed by the Provincial Government, the petitioners are, in law, bound to pay it. P L D 1975 Lahore 237

M. Abdul Bari and others v. West Pakistan Soil Reclamation Board Lahore and others P L D 1966 S C 451 held not applicable.

36 ‑Government of West Pakistan Notification No. 2/78 S. O. (Rev.)/66 dated 24th August 1967 read with Notification No. 2/78 S. O. (Rev.)/66 dated 30th July 1968 and Notification No. 10/55­5. O. Vlll(I)/59 dated 23rd November 19‑59‑Notifization issued under S. 75 real with S. 36 and published in official Gazette‑A rule framed , under S. 75 with force of law for purpose of S. 36. P L D 1975 Lahore 237

Pakistan v. Abdul Hamid P L D 1961 S C 105 and Province of West Pakistan v. Din Muhammad P L D 1964 S C 21 ref.

Inayat Ullah v. Province of West Pakistan P L D 1971 Lah. 482 ands Muhammad Alam v. Province of West Pakistan 1972 S C M R 152 rel.

Ss. 36 & 75­Rate of water charge‑Provincial Government authorised tinder S. 75 to frame Rules to determine water rates and "such occupiers as accept the water shall pay" the rates‑Notification published in official Gazette enhancing occupiers' rate‑Occupiers, accepting water, cannot question enhanced rate mentioned in Notification-­Government of West Pakistan Notification dated 11‑4‑1966. 1972 S C M R 151

Ss. 36, 3 & 5 provisions of S. 36 applicable to any kind of water supplied through canal including tube‑well water. P L D 1966 S.C 451

36, 5 & 31‑Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment.

It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water.

Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lah.237

Ss. 75 At 36‑Imposition of levy on flat rate‑Additional supply of irrigation water resulting in increase of production of crops‑Additional occupiers' rate also not in excess of costs incurred in maintenance of tube‑wells‑Refusal to follow differential crop rates in circumstances not unreasonable‑Wisdom underlying imposition of levy on flat rate‑Matter for determination of rule‑making authority and not for Court. P L D 1975 Lah.237

P L D 1971 Lah.482 rel.

Canal and Drainage Act (VII of 1873), Ss. 36 & 75­Rate of water charge‑Provincial Government authorised tinder S. 75 to frame Rules to determine water rates and "such occupiers as accept the water shall pay" the rates‑Notification published iii official Gazette enhancing occupiers' rate‑Occupiers, accepting water, cannot question enhanced rate mentioned in Notification-­Government of West Pakistan Notification dated 11‑4‑1966. 1972 S C M R 151

36.Salinity Control and Reclamation ProJect No. I (SCARP‑1) prepared by Soil Reclamation Board under S. 3 of Act XXI of 1952‑Notification Nos. 2/72S. O. (Rev.)/65 dated 11‑4‑66 and A & W 10(1)64/372 dated 5‑2‑66‑Not illegal‑Enhancement of "occupiers' rate" in respect of area covered by SCARP‑I‑Could not be objected to merely on ground that (i) water supplied is less or more ; (ii) whole field was not irrigated by canal water and (iii) water supplied through channel partly from canal and partly from tubewells‑Non‑increase in volume of water to some users, no bar to enhancement of water rate­ Levy of Reclamation fee under S. 38 of Act XXI of 1952, not dependent on actual rise in value of property‑Criterion for levy of fees : not that value should have actually increased but only that it is "expected to be increased."

The Soil Reclamation Board constituted under section 3 of the Punjab Soil Reclamation Act, 1952, prepared a scheme known as Salinity Control and Reclamation ProJect No. I (shortly known as SCARP‑I) This proJect went into full scale operation in 1962. The West Pakistan Government issued two Notifications (i) No. 2/72S. O. (Rev.)/65 dated 11‑4‑66 and (ii) No. A. & W.‑10(1)/64/372 dated 5‑2‑66 whereby (i) "occupiers rate" in respect of area covered by the scheme had been doubled and (ii) a Reclamation fee was levied on culturable area com­prised in the Reclamation Scheme. Both these notifications were impugned, in a writ petition, as illegal. It was urged that certain tube‑wells had to be closed down because the water obtained was brackish and, therefore, there had been no increase in the water supply to Justify enhancement of "occupiers' rate". Secondly, it was urged, that the imposition of Reclamation‑fees was void for the reason that the value of the property had not increased.

Held : The lowering of water table in the areas covered by brackish tube‑wells has proved effective drainage. It has reversed the movement of underground injurious salts which hitherto were concentrating near the root zones of the crops. As a result of this phenomenon there has been marked improve­ment in the fertility and productivity of the lands covered by these few brackish, wells. The mere fact, therefore, that the water pumped out by certain tubewells proved to be brackish and the tube‑wells had, therefore, to be closed down does not detract from the advantage or benefit that will accrue to every parcel of land reclaimed in that area on account of the overall lowering of the water table and other matters. The argument that unless the water supplied to a particular farmer before the scheme came into force has been increased, it is not open to the Government to raise the occupiers rate is, therefore, devoid of all force because the rationale of the doubling of the water rate is the benefit derived by the cultivators of the area generally as a result inter alia augmentation of water supply by the pumping of tube‑well water into canals and irrigation channels. The provisions of the Canal and Drainage Act, 1873 applicable to occupiers rate is not calculated on the basis of the quantity of water supplied to a cultivator but on the area of land in his occupation. The mere fact, therefore, that a field is not being irrigated in its entirety by canal water would not lead to the reduction of the charge on account of the reduction of acreage, irrigated by canal water. No objection can be taken to the charge of occupiers rate merely on the ground that (i) the volume of water supplied is more or less, (ii) the whole field is not irrigated by canal water or (iii) the water supplied through the channel partly comes from a canal and partly from a tube­well. All that is necessary under section 36 of the Canal and Drainage Act is that only such occupiers shall be charged "as accepted the water". The conclusion, therefore, is that the non-­increase in the volume of water supply to same users is not a bar to the enhancement in the water rate which can be changed from time to time by an amendment of the schedule prescribed by the rules and, in fact, it has been subjected to amendments. The mixing of tube‑well water with canal water also does not change the situation even a bit. Those who install their own tube‑wells in the area may also be liable to be charged occupiers rate. P L D 1971 Lah.482

P L D 1961 S C 451 ref.

Canal and Drainage Act, 1873 Ss. 36, 3& 5 provisions of S. 36 applicable to any kind of water supplied through canal including tube‑well water. P L D 1966 S.C 451

 

37.       “Owner’s rate”. In addition to the occupier’s rate, a rate to be called the “owner’s rate” may be imposed, according to rules” to be made by the [Provincial Government], on the owners of canal irrigated lands, in respect of the benefit which they drive from such irrigation.

           

38.       Amount of owner’s rate. The owner’s rate shall not exceed the sum which, under the rules for the time being in force for the assessment of land-revenue, might be assessed on such land on account of the increase in the annual value or produce thereof accused by the canal-irrigation. And, for the purpose of this section only, land which is permanently settled or held free of revenue shall be considered as though it were temporarily settled and liable to payment of revenue.

           

39.       Owner’s rate, when not chargeable. No owner’s rate shall be chargeable either on the owner or occupier of land temporarily assessed to pay land-revenue at irrigation-rates, during the currency of such assessment.

 

¹[40.     When occupier is to pay both owner’s rate and occupier’s rate. If such land is occupied by the owner,

or if it is occupied by a tenant whose rent is not liable to enhancement not the ground that the value of the produce of the land or the productive powers of the land has or have been increased by irrigation;

such owner or tenant shall pay the owner’s rate as well as the occupier’s rate.

 

41.       Power to make rules for apportioning owner’s rate. In the case of a tenant with a right of occupancy, the [Provincial Government] shall have power to make rules for dividing the owner’s rate between such tenant and his landlord, proportionately to the extent of the beneficial interest of each in the land.

 

42.       When owner is to pay owner’s rate. If the owner of the land is not the occupier, but has power to enhance the rent of the occupier on the ground that the value of the produce or the productive powers of the land has or have been increased by irrigation;

or if, when the amount of a rent was fixed, the land was irrigated from the canal, the owner shall pay the owner’s rate.

 

43.       Effect of introduction of canal irrigation on landlord’s right to enhance. If a revision if settlement is a ground for entertaining a suit for the enhancement of rent, the introduction of canal irrigation into any land shall have the same effect on the landlord’s right to re-enhance the rent of a tenant with a right of occupancy of such land, as if a revision of settlement had taken place, under which the revenue payable in respect of such land had been increased.]

Legal Amendments

1.         Sections 40-43 repealed by the Punjab Tenancy Act,1887

 

44.    Water-rate by whom payable when charged on land held by several owners. Where a water-rate is charged on land held by several joint owners, it shall be payable by the manager or other person who receives the rents or profits of such land, and may be deducted by him from such rents or profits before division, or may be recovered by him from the persons liable to such rate in the manner customary in the recovery of other charges on such rents or profits.

 

Recovery of charges

45.        Certified dues recoverable as land revenue. Any sum lawfully due under this Part, and certified by the Divisional Canal-officer to be so due, which remains unpaid after the day on which it becomes due, shall be recoverable by the Collector from the person liable for the same as if it were an arrear of land-revenue.

 

46.       Power to contract for collection of canal-dues. The Divisional Canal-officer or the Collector may enter into an agreement with any person for the collection and payment to [the Provincial Government] by such person of any sum payable under this Act by a third party.

When such agreement has been made, such person may recover such sum by suit as though it were a debt due to him, or an arrear of rent due to him on account of the land, work or building in respect of which such sum is payable, or for or in which the canal-water shall have been supplied or used.

If such person makes default in the payment of any sum collected by him under this section, such sum may be recovered from him by the Collector under section 45; and, if such sum or any part of it be still due by the said third party, the sum or part so due may be recovered in like manner by the Collector from such third party.

            47.       Lambardar may be required to collect canal-dues. The Collector may require the Lambardar, or person under engagement to pay the revenue of any estate, to collect and pay any sums payable under this Act by a third party, in respect of any land or water in such estate.

Such sums shall be recoverable by the Collector as if they were arrears of land-revenue due in respect of the defaulter’s share in such estate;

and for the purpose of collecting such sums from the subordinate zamindars, raiyats, [tenants or sub-tenants], such Lambardar or person may exercise the powers, and shall be subject to the r unless, laid down in the law for the time being in force in respect to the collection by him of the rents of land or of shares of land-revenue.

The [Provincial Government] shall provide-

(a)        for remunerating persons collecting sums under this section; or

(b)        for indemnifying them against expenses properly incurred by them in such collection; or

(c)        for both such purposes.

 

48.       Fines excluded from section 45, 46, or 47. Nothing in sections 45, 46 or 47 applies to fines.

 

49.       Detainer of vessels violating rules. Any vessel entering or navigating any canal contrary to the rules made the that behalf by the provincial Government], or so as to cause danger to the canal or the other vessels therein, may be removed or detained, or both removed and detained, by the Divisional Canal-officer, or by any other person duly authorised in this behalf.

Liability of owners of vessels causing damage. The owner of any vessel causing damage to a canal, or removed or detained under this section, shall be liable to pay to [the Provincial Government] such sum as the Divisional Canal-officer, with the approval of the Superintending Canal-officer, determines to be necessary to defray the expenses of repairing such damage or of such removal or detention, as the case may be.

 

50.       Recovery of fines for offences in navigating canals. Any fine imposed under this Act upon the owner of any vessel, or the servant or agent of such owner or other person incharge of any vessel, for any offence in respect of the navigation of such vessel, may be recovered either in the manner prescribed by the Code of Criminal Procedure or, it the Magistrate imposing the fine so directs, a though it were a charge due in respect of such vessel.

 

51.       Power to size and detain vessel on failure to pay charges. If any charge due under the provisions of this Part in respect of any vessel is not paid on demand to the person authorised to collect the same, the Divisional Canal-officer may seize and detain such vessel and the furniture thereof, until the charge so due, together with all expenses and additional charges arising from such seizure and detention, is paid in full.

 

52.       Power to seize cargo or goods, if charges due thereon are not paid. If any charge due under the provisions of this Part in respect of any cargo or goods carried in a Government vessel on a canal, or stored on or in lands or warehouses occupied for the purposes of a canal is not paid on demand to the person authorised to collect the same, the Divisional Canal-officer may seize such cargo or goods and detain them until the charge so due, together with all expenses and additional charges arising from such seizure and detention, is paid in full.

 

53.       Procedure for recovery of such charges after seizure. Within a reasonable time after any seizure under section 51 or section 52, the said Canal-officer shall give notice to the owner or person in charge of the property seized that it, or such portion of it as may be necessary, will, on a day to be named in the notice, but not sooner than fifteen days from the date of the notice, be sold in satisfaction of the claim on account of which such property was seized, unless the claim be discharged before the day so named.

And, if such claim be not so discharged, the said Canal-officer may, on such day, sell the property seized or such part thereof as may be necessary to yield the amount due, together with the expenses of such seizure and sale:

Provided that no greater part of the furniture of any vessel or of any cargo or goods shall be so sold than shall, as early as may be, suffice to cover the amount due in respect of such vessel, cargo or goods.

The residue of such furniture, cargo or goods, and of the proceeds of the sale, shall be made over to the owner or person in charge of the property seized.”

 

54.       Procedure in respect of vessels abandoned and goods unclaimed. If any vessel be found abandoned in a canal, or any cargo or goods carried in a Government vessel on a canal, or stored on or in lands or warehouses occupied for the purposes of a canal, be left unclaimed for a period or two months, the Divisional Canal-officer may take possession of the same.

The officer so taking possession may publish a notice that, if such vessel and its on tenants, or such cargo or goods, are not claimed previously to a day to be named in the notice, not sooner than thirty days from the date of such notice, he will sell the same; and, if such vessel, contents, cargo or goods be not so claimed, he may, at any time after the day named in the notice, proceed to sell the same.

Disposal of proceeds of sale. The said vessel and it so tenants, and the said cargo or goods if unsold, or, if a sale has taken place, the proceeds of the sale, after paying all tolls, charges and expenses incurred by the Divisional Canal-officer on account of the taking possession and sale, shall be made over to the owner of the same, when his ownership is established to the satisfaction of the Divisional Canal-officer.

If the Divisional Canal-officer is doubtful to whom such property or proceeds should be made over, he may direct the property to be sold as aforesaid, and the proceeds to be paid into the district treasury, there to be held until the right thereto be decided by a Court of competent jurisdiction.

55.       Power to prohibit obstructions or order their removal. Whenever it appears to the “[Provincial Government] that injury to any land or the public health or public convenience has arisen or may arise from the obstruction of any river, stream or drainage-channel, such Government, may, by “notification published in the official Gazette, prohibit, within limits to be defined in such notification, the formation of any obstruction, or may, within such limits, order the removal or other modification of such obstruction.

Thereupon so much of the said river, stream or drainage-channel as is comprised within such limits shall be held to be a drainage-work as defined in section 3.

 

56.       Power to remove obstruction after prohibition. The Divisional Canal-officer, or other person authorised by the “[Provincial Government] in that behalf, may, after such publication issue an Order to the person causing or having control over any such obstruction to remove or modify the dame within a time to be fixed in the order.

If, within the time so fixed, such person does not comply with the order, the said Canal-officer may himself remove or modify the obstruction; and if the person to whom the order was issued does not, when called upon, pay the expenses involved in such removal or modification, such expenses shall be recoverable by the Collector from him or his representative in interest as an arrear of land-revenue.

           

57.       Preparation of schemes for works of improvement. Whenever it appears to the “[Provincial Government] that any drainage-works are necessary for the improvement of any lands, or for the proper cultivation or irrigation thereof,

or that protection from floods or other accumulations of water, or from erosion by a river, is required for any lands,

the [Provincial Government] may cause a scheme for such drainage-works to be drawn up and published, together with an estimate of its cost and a statement of the proportion of such cost which [the Provincial Government] proposes to defray, and a Schedule of the lands which it is proposed to make chargeable in respect of the scheme.

 

58.       Powers of persons employed on such schemes. The persons authorised by the [Provincial Government] to draw up such scheme may exercise all or any of the powers conferred on the Canal-officers by section 14.

 

59.       Rate on lands benefited by works. An annual rate, in respect of such scheme, may be charged, according to rules to be made by the [Provincial Government], on the owners of all lands which shall, in the manner prescribed by such rules, be determined to be so chargeable.

Such rate shall be fixed, as nearly as possible, so as not to exceed either of the following limits: –

(1)        six percent per annum on the first cost of the said works adding thereto the estimated yearly cost of the maintenance and supervision of the same, and deducting there from the estimated income, if any, derived from the works, excluding the said rate:

(2)        in the case of agricultural land, the sum which under the rules then in force for the assessment of land-revenue might be assessed on such land on account of the increase of the annual value or produce thereof caused by the drainage-work.

Such rate may be varied from time to time, within such maximum, by the [Provincial Government].

So far as any defect to be remedied is due to any canal, water-course, road or other work or obstruction, constructed or caused by the

[Provincial Government] or by any person, a proportionate share of the” cost of the drainage-works required for the remedy of the said defect shall be borne by such Government or such person, as the case may be.

 

60.       Recovery of rate. Any such drainage-rate may be collected and recovered in manner provided by sections 45, 46 and 47 for the collection and recovery of water-rates.

 

61.       Disposal of claims to compensation. Whenever, in pursuance of a notification made under section 55, any obstruction is removed or modified,

or whenever any drainage-work is carried out under section 57,

all claims for compensation on account of any loss consequent on the removal or modification on account of any loss consequent on the removal or modification of the said obstruction or the construction of such work may be made before the Collector, and he shall deal with the same in the manner provided in section 10.

 

62.       Limitation of such claims. No such claim shall be entertained after the expiration of one year from the occurrence of the loss complained of, unless the Collector is satisfied that the claimant had sufficient cause for not making the claim within such period.

Section 63 to 66 are missing

 

67.       Jurisdiction under this Act of Civil Courts. Except where herein otherwise provided, all clause against [the Provincial Government] in respect of anything done under this Act may be tried by the Civil Courts; but no such Court shall in any case pass an order as to the supply of canal-water to any crop sown or growing at the time of such order.

 

68.       Settlement of differences as to mutual rights and liabilities of persons interested in water-course:- (1) Whenever a difference arises between two or more persons with regard to the distribution of water from a canal outlet, construction, use, or maintenance of the water-course supplied with water from that outlet, or deposit of soil from water course clearance, or mutual rights and liabilities in that regard, any such person may apply in writing ot the sub-Divisional Canal officer stating the matter in dispute, the sub-Divisional Canal Officer shall thereupon proceed in the matter as laid down hereafter.

(2)        Such officer shall give notice to all persons interested and liable to be affected that on a day to be named in such notice be will proceed to enquire into the said matter and after such inquiry he shall pass his order thereon unless he transfers (as he is hereby empowered to do) the matter to the Collector, who shall thereupon enquire into and pass his order on the said matter.

(3)        Any person aggrieved by an order made by such officer under sub-section (2) may within fifteen days of the passing of such order, prefer an appeal against the order to the Divisional Canal Officer.

(4)        Where and appeal has been preferred under sub-section (3), the Divisional Canal officer–

(a)        shall decide the appeal as expeditiously as possible; and

(b)        may pending the disposal of the appeal stay the operation of the order appealed against; Provided the stay order does not adversely effect any standing crops.

(5)        The applicant shall not be entitled to use the water course that may be sanctioned under sub-sections (2) or (3) above for conveyance of water to his land or the land required for the deposit of soil from water course clearances, until-

(a)        he has paid to the land owner the compensation for land occupied for any of the aforesaid purposes in whatever shape it is determined thought mutual  agreement ; or

(b)        Possession of the land has been acquired under the provisions of this Act.

(6)        Any order passed under sub section (2) if there be no appeal preferred against it and an order passed in appeal under sub section (3) shall be final as to the use or distribution of water for any crop sown or growing at the time when such order is made, and shall thereafter remain in force until it is set aside by a decree of a civil court. 

 

Court Decisions

Ss. 20 & 68- Sanctioning of wara bandi by divisional Canal officer, assailed—orders of canal functionaries being without reason and application of mind were thus, not sustainable in the eyes of law—Canal functionaries had not considered application of respondents in terms of S. 20 of Canal And Drainage Act, 1868—Petitioners were directed to file proper application under Section 20, canal and Drainage Act within 10 days—competent Authority must decide such application within 1½ months. PLJ 2004 Lah. 45

 

            S. 68-Constitution of Pakistan (1973), Art. 185(3)-Sanction of "Warabandi"-Jurisdiction of Divisional Canal Officer-Trial Court in view of Revenue Manual of the Irrigation Department and other relevant factors, came to the conclusion that since a dispute had arisen among the shareholders of the outlet of watercourse in dispute, Divisional Canal Officer was competent to amend "Warabandi" under S. 68, Canal and Drainage Act, 1873 and found respondents entitled to the Nikal Water-High Court after taking stock of all relevant factors upheld judgment of Trial Court–­Petitioner having failed to point out any illegality committed by Trial Court in approving amended "Warabandi" by Divisional Canal Officer under S. 68 Canal and Drainage Act, 1873, judgment of High Court upholding decision of Trial Court could not be interfered with by Supreme Court. 2000SCMR 219

 

S. 68-Canal and Drainage Rules, 1957, Rr. 8 & 13-Dispute relating to ' Nikal' water-' Nikal' water sanctioned in favour of defendants by Canal Officer-Plaintiff's suit was dismissed by Trial Court while decreed by First Appellate Court-Validity-Order passed by Divisional Canal Officer under S.68, Canal and Drainage Act, 1873 would be final as to use and distribution of water for any sown or standing crop-Divisional Canal Officer has got exclusive jurisdiction to decide dispute relating to 'Warabandi' and distribution of 'Nikal' water was also within competence of such officer-Civil Court would have no power to set aside order of Divisional Canal Officer so far as the same related to distribution of water for any crop sown or standing at the time of such order–Such prohibition was absolute and Civil Courts were completely debarred from interfering with the order to that extent-Order of Divisional Canal Officer would, however, remain in force until same was set aside by decree of Civil Court-Civil Court would set aside order of Divisional Canal Officer where it had caused legal injury to some persons' legal rights-Civil Court in such case could draw new order of rotation-Courts would have powers to go into the question whether order of Canal Authorities had resulted in stoppage of water to which party to litigation was entitled-Dispute about distribution of Nikal water could be decided by Divisional Canal Officer at the time of preparation of Warabandi for the same was not independent proceeding and was very much connected with Warabandi-Order passed by Divisional Canal Officer could not be declared as illegal or void-Judgment and decree of Appellate Court whereby plaintiffs were found entitled to 'Nikal' water were set aside and that of Trial Court dismissing plaintiff's suit was restored in circumstances. P L D 1998 Lahore 142

 

S. 68-Amendment of Warabandi-Petitioner's application for amendment of Warabandi was necessitated for the simple reason that he being vendee wanted substitution of his name instead of vendor in Warabandi-Sub-Divisional Canal Officer instead of substituting petitioner's name for vendor entered Upon another field involving dispute regarding "Nikal water"-Petitioner in his application had not made any request regarding "Nikal water"-Order of Sub-Divisional Canal Officer on that score was rightly declared illegal and without jurisdiction. P L D 1998 Lahore 420

 

68-Suit against order of Sub-Divisional Officer -Competency-Order of Sub-Divisional Officer, after withdrawal of appeal by plaintiff against the same had become final and operative against him-Such order for all intents and purposes having become final, same had been rightly challenged and set aside by Courts below-Concurrent findings of Courts below would warrant no interference. P L D 1998 Lahore 420

 

S. 68-Civil Procedure Code (V of 1908), S. 115-Change of Nakka from one Killa of specific square to another Killa of same square owned by defendants on their application-Plaintiff assailed such change with no success from Courts below-Validity-In changing Nakka from one piece of land to other piece of land neither land of plaintiff nor anybody else was involved-Plaintiff failed to point out that by change of Nakka he had suffered in any way-Authorities were fully competent to make necessary changes in arrangements earlier made by them-There being concurrent findings of fact, plaintiff had failed to make out case for interference in revisional jurisdiction. 1998 C L C 233

Munshi v. Ali Muhammad 1980 CLC 234 rel.

 

S.68-Civil Procedure Code (V of 1908), O.I., R.10 – Impleading of necessary parties- Notice to plaintiff by Canal Authorities to change alignment of his watercourse-Plaintiff challenged such notice in civil suit but did not make persons interested in changing such alignment as party to suit-Persons so interested applied to Trial Court to be impleaded as defendants but to no avail- Appellate Court, however, directed such persons to be impleaded in suit- Validity-Plaintiff had himself stated in his plaint that he had been using existing watercourse for a number of years without official hindrance or objection from private persons-Alleged private persons were neither named nor joined as defendants in suit-Plaintiff, thus, purposely omitted to disclose their names or to join them as defendants-Applicants had asserted in their application under O.I, R.10 C.P.C. that plaintiff had illegally encroached upon area of 350 yards of alignment of watercourse and was illegally flowing his watercourse and that plaintiff had illegally and without lawful authority constructed three aqueducts over their watercourse and due to such illegal acts of plaintiff their water supply was adversely affected and upon their representation to Authorities, plaintiff was required to remove his illegal encroachments and aqueducts-Such contentions/allegations of persons desirous to be joined as party to suit clearly indicated that they were the persons whom plaintiff had referred in his plaint-Appellate Court had rightly deemed applicants' presence to be necessary in suit 'and had rightly remanded case to Trial Court for fresh decision after joining them as party to suit-Order in question, would not call for interference in revisional jurisdiction-In post remand proceedings each party would have equal chance to put up his case before Trial Court-Order of Appellate Court remanding case to Trial Court for impleading applicants as party to suit was maintained in circumstances. 1997 M L D 1113

Sardar Sakhawat‑ud‑Din and 5 others v. Muhammad Iqbal and 2 others PLD 1983 Lah. 448; The Province of Punjab and others v. Muhammad Yousaf Khan 1981 SCMR 590; Sarwat Kazmi v. State Life Insurance Corporation 1980 CLC 1779; Manzur Qadir v. Mst. Amtul Hussain and 2 others PLD 1971 Lah, 537; Syed Irshad Ali Shah v. Rahim Bibi and others 1984 SCMR 175; Mrs. Hajra Begum and 2 others v. Aga Khan University Hospital, Karachi PLD 1995 Kar. 603 and Uzin Export Import Enterprises for Foreign Trade, Karachi v. Union Bank of Middle East Ltd. Karachi and another PLD 1994 SC 95 ref.

 

S. 68-Civil Procedure Code (V of 1908), O.I, R. 10 & S. 115-Dispute relating to construction of "Nali" for irrigation of land -Intervenors applying to be impleaded as party to suit filed by plaintiff-Trial Court impleading intervenors as party to suit-Validity-High Court with consent of parties and for resolving controversy appointed Commissioner for ascertaining location of "Nali" and for verifying whether water flow in "Nali" in question, irrigated land in command of specific watercourse-Report of Commission indicated that land of intervenors were not being irrigated by the flow of watercourse in "Nali" in question-Lands of intervenors were in command of different watercourse‑‑­Question involved in suit relating to such "Nali" being authorized or unauthorised and whether same was located on Government land or not, were questions between plaintiffs and official defendants-Decree in suit, if granted, would not affect rights of intervenors in respect of their land-Reasons incorporated in affidavit filed alongwith application under O.I, R.10, C.P.C., did not at all reveal any interest of intervenors in flow of water in "Nali" in question -Intervenors' claim that "Nali" in question was for flow of water to irrigate their land stood contradicted by report of Commissioner against which no one had filed any objection-Order of Trial Court impleading intervenors as defendants in suit was set aside in circumstances. 1997 M L D 2549

Ghulam Muhammad and others v. Mehtab Baig and others 1983 SCMR 849; Muhammad Yasin Khan Sherpao v. Rawat Busal Private Limited 1989 ALD 246; Muhammad Kalim Khan and 2 others v. Muhammad Farouk Khan and another PLD 1987 Kar. 38; M/s. Paragon Company v. Government of Sindh 1993 MLD 853; Ashraf Muhammad Ismail v. C.V.E. Endeavour and 2  others 1988 MLD 2457; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 and A.M. Qureshi v. Deputy Commissioner (East), Karachi 1989 MLD 4543 ref.

 

S. 68-Constitution of Pakistan (1973), Art. 185(3)-Warabandi-Right to use of "Nikal"-Preparation of Warabandi, distribution of canal water and fixation of turn of water of each irrigator is the exclusive responsibility of the Canal Authorities who are supposed to be well versed in the technical subject and perform their duties with the situation prevailing at the spot-First Appellate Court and the High Court on appraisal of evidence and decision of Divisional Canal Officer, had concurrently found the Warabandi in question, to be valid, legal and factual-No fault could be pointed out in the impugned judgments-Leave to appeal was refused in circumstances. 1995 S C M R 891

 

        S. 68-Civil Procedure Code (V of 1908), S.115-Qanun‑e‑Shahadat (10 of 1984), Art.33-Appointment of referee for decision of suit between parties in ex parte proceedings-Decree in suit beyond the prayer in relief‑‑­Validity-Suit was for setting aside Warabandi in question while decree for fresh Warabandi was granted by Trial Court thus, travelling beyond the scope of plaint and over‑stepping its jurisdiction-Referee's appointment at the instance of plaintiff while defendants were not represented was not warranted-Order of Court for fresh Warabandi was void and without jurisdiction-High Court was fully competent under 5.115, C.P.C. to suo motu revise such void, without jurisdiction and perverse orders of Courts below-Case was remanded to Trial Court for decision afresh in circumstances. P L D 1995 Lahore 305

Muhammad Hanif Khan and another v. Ghulam Farid Khan and others PLD 1988 Lah. 250; Muhammad Uiaar v. Muhammad Yousaf PLD 1977 Lah. 676; Badar Din v. Bahadur Ali anti others PLD 1968 Lah. 573; Barkat Ali etc. v. Muhammad Yaqoob 1981 C L C 1197; Syed Nazir Hassain v. Settlement Commissioner, Lyallpur and another PLD 1974 Lah. 434; Jamal Bhai and 2 others v. Admiinstrator, Evacuee Trust Property and 6 others 1985 CLC 1411; Nawab Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236 and Karim Bux and 4 others v. Riaz Hussain and another 1993 SCMR 1667 ref.

 

S. 68-Civil Procedure Code (V of 1908), S.12(2), OXXVI, R.9 & O.XLI, R.5-Setting aside order of Warabandi by Court-Petitioners challenging such decree of Court under S.12(2), C.P.C., seeking appointment of Local Commissioner . and suspension of Civil Court's decree-Petitioner's both applications were dismissed by Trial Court as also by Appellate Court-Validity-Courts below were correct in holding that what petitioners might establish by leading evidence might not necessarily be elicited on spot inspection by Local Commissioner and that there was no point in staying the process and suspending implementation of Civil Court decree, when same had already been acted upon and canal department had taken all necessary steps in that behalf. 1995 C L C 26

 

S.68-Civil Procedure Code (V of 1908), Ss.12(2), 115 & O.XXVI, R.9‑‑­Decree for setting aside Warabandi in question, was assailed in application under S.12(2), C.P.C. which was dismissed-Application for appointment of Local Commissioner was also dismissed-Appellate Court upholding both 'the findings relating to setting aside of decree and dismissal of application for appointment of Local Commissioner-Validity‑;‑Matter in issue was primarily the subject of Authorities of Canal Department, who were expert in their own field-Civil Court's decree had been implemented by the Canal Authorities‑‑­Petitioners allegedly were petty land owners and they generally sold canal water to others for they had been getting it in excess of their actual requirement; and since their such business enterprise had .received a jolt by the decree of Civil Court, enforced by the Canal Department, they had decided not to put up with the latest position and not to accept the change, which had been given effect to in the larger interest of all the shareholders of the outlet in question-Decree of Civil Court as affirmed by Appellate Court being correct and within jurisdiction and same having been implemented, interference therewith in revisional jurisdiction was not warranted.  1995 M L D 999

 

S. 68-Constitution of Pakistan (1973), Art, 185(3)-Modification of existing Warabandi was effected on the application of defendant-Order of Divisional Canal Officer, however, did not show and gave no reason as to why turn of plaintiff was changed-Plaintiff being a small farmer had to bring water from a distance of five Killas because of the modification of the earlier Warabandi and he was adversely affected by the order of modification of Warabandi-Order of modification was not justifiable on any ground-High Court was correct in upholding first Appellate Court's order in setting aside modification of Warabandi-Leave to appeal was refused in circumstances: 1994 S C M R 1631

 

S.68-Pending appeal before Appellate Authority against order of Sub­-Divisional Officer of Canal Department with regard to `Wara Bandi', plaintiffs/petitioners filed civil suit and obtained stay order from the Court with the result that Appellate Authority could not proceed with the matter–­For invoking-jurisdiction of Civil Court under S.68 condition precedent was that `Wara Baridi' order must have attained finality-Order of Sub-Divisional Officer, unless approved by Appellate Authority, would not finally be operative-Civil suit filed to 'challenge order of Sub-Divisional Officer, in circumstances, was premature-Contention that pendency of appeal before Appellate Authority, would not operate as bar against institution of civil suit, could not be endorsed-Plaintiffs/petitioners, should have waited for result of appeal pending before Appellate Authority. 1993 M L D 716

 

S.68‑‑Wara‑holder, locus standi to claim a right to water flowing through the outlet‑‑Existing Wara‑holder whether he may be situated upstream his adversary who is under contemplation of being given an extra supply of water or he may be located after him, cannot claim a right to the whole lot of water flowing through the outlet  1989 C L C 1813

 

S.68‑‑Wara‑holder, locus standi to claim a right to water flowing through the outlet‑‑Existing Wara‑holder whether he may be situated upstream his adversary who is under contemplation of being given an extra supply of water or he may be located after him, cannot claim a right to the whole lot of water flowing through the outlet  1989 C L C 1813

 

Ss. 68& 68‑A‑‑Interim order passed by Divisional Canal Officer assailed through civil suit‑‑Jurisdiction and competency of civil Court‑‑ Divisional Canal Officer is authorised to pass only an interim order which had to be made final after observing procedure laid down in S.68‑‑Suit, held, would lie only to challenge an order finally passed under S. 68 of Canal and Drainage Act‑‑interim order passed by Canal Authority could not be assailed in civil suit. 1987 C L C 2093

 

Ss. 68& 68‑A‑‑Object, scope and comparison of Ss. 68 & 68‑A‑­Section 68‑A, has a cross‑reference to S. 68 of Canal and Drainage Act to the extent that interim order passed initially could be confirmed in any final order to be passed after inquiry envisaged by S.68‑‑Both Ss.68& 68‑A are inter‑connected; one meant for interim and the other for passing a final order‑‑Civil Court would come in, after the order was made final‑‑Suit against interim order being incompetent, revision was accepted thereagainst and judgment and decree of lower Court were set aside. 1987 C L C 2093

 

68‑‑Civil Procedure Code (V of 1908), S. 115 and O.XXXIX, Rr. 1 & 2‑‑Temporary injunction against implementation of new Warabandi refused by Courts below‑‑Plea of reduction of irrigation time at expense of plaintiff and undue benefit thereof to defendant, held, was established by comparison of previous and current Warabandis‑‑Besides amendment in Warabandi directing plaintiff and some others to take their turn of water alternately being irrational, was apt to prove source of trouble for concerned parties ‑No reasons for amendment of Warabandi which would prejudice plaintiff having beers given by Canal authorities, plaintiffs case would warrant issuance of temporary injunction and same was, granted in exercise of revisional jurisdiction of High Court till decision bf, suit pending in Trial Court. 1986 M L D 1178

 

Ss.68 & 20 to 28–Constitution of Pakistan (1973), Art. 1850) –Sanction of watercourse–Notice–Notice issued to all land-owners including appellant who initiated proceedings under S.68–Notices were duly served and application was decided only when it was established on record that notices had been served upon all land-owners–Appellant, although was duly served but sent his grandson either to represent him or to watch proceedings–Grandson of appellant giving consent to sanction of watercourse–Original plaint filed by appellant had not challenged correctness of sanctioning of watercourse and said plaint showed that appellant (plaintiff) was agreeable to construction of watercourse through his area–High Court finding that consent of grandson was consent of grandfather (applicant)–Appellant unable to refute inference drawn by High Court with regard to contents of plaint nor was able to point of any other material on record to show that finding was not well-founded Contentions on basis of which leave was granted by Supreme Court having not been established by appellant, Supreme Court dismissed appeal. 1985 S C M R 208

 

S. 68 (2) [Before amendment by virtue of Canal and Drainage (Punjab Amendment) Act (XXXII of 1975]‑Appeal against order of Divisional Canal Officer, held, competent before Superintending Canal Officer.  1984 C L C 2981

S. 68‑Canal and Drainage Rules, r. 85‑Right of appeal having been conferred upon an aggrieved person by S. 68, natural incidences of appeal which inter alia, include right of being heard in support of appeal also stand conferred on such person and could not be taken away by framing of Rules to the contrary‑Power under rule 85 to dismiss appeal in limine without hearing appellant cannot, therefore, be given effect to.‑1984 C L C 2981

 

S. 68‑Canal and Drainage Rules, r. 85‑Appeal‑Rules 85 to be read in context that a hearing has to be afforded to appellant before disposing of appeal to bring provision in accord with section 68, Canal and Drainage Act, 1873‑Principles of natural justice that one shall not be adjudged adversely without affording him an opportunity of being heard also to be complied with.  1984 C L C 2981

 

S. 68‑Warabandi‑Divisional Canal Officer allowing appeal against petitioner without affording opportunity of hearing‑Such order, held, prima facie void and does not exist bar provided by section 68, cannot be invoked to deprive petitioner of plea of temporary injunction. 1983 C L C 83

P L D 1962 Lah. 317 held not applicable.

Muhammad Swaleh v. United Grain and Fodder Agencies P L D 1964 S C 97 ref.      

 

S. 68‑`Warabandi'‑No evidence to show fresh dispute between parties. regarding which Sub‑Divisional Canal Officer exercised his powers' of Warabandi‑Issue of `Nakal' determined in 1967 without objection and Warabandi order remaining in force for four years ­Decision of Sub‑Divisional Officer ordering `Warabandi', in 1967, held, final and not open to alteration, in circumstances.

 

S. 68‑`Warabandi'‑No evidence to show fresh dispute between parties. regarding which Sub‑Divisional Canal Officer exercised his powers' of Warabandi‑Issue of `Nakal' determined in 1967 without objection and Warabandi order remaining in force for four years ­Decision of Sub‑Divisional Officer ordering `Warabandi', in 1967, held, final and not open to alteration, in circumstances. 1981 C L C 810

 

S. 68‑Jurisdiction‑Mere existence of Warabandi, does not oust jurisdiction of Divisional Canal Officer to pass an order relating to use or distribution of water whenever a difference arose between two co‑sharers—Case remanded in circumstances.‑ 1981 C L C 1197

Badar Din v. Bahadar Ali P L D 1968 Lab. 573; Din Muhammad v. Tufail Muhammad etc. P L D 1979 Lah. 826; Shahab‑ud‑Din v. Muhammad Sharif P L, D 1958 Lah. 333 and Faqir Muhammad and others v. Ganda Singh and others A I R 1929 Lah. 260 ref.

 

S. 68‑Principles of natural justice‑Petitioners being not associ­ated with enquiry nor given chance to present their case before sanctioning additional water supply to respondent‑Share of water supply of petitioners, held, cannot be reduced without giving them a chance to be heard‑Order of Canal Officer being violative of principles of natural justice, set aside, in circumstances. 1981 C L C 1197

 

S. 68‑Interpretation‑Panel warabandi‑Canal Officer's order (regarding distribution of water) once passed is final qua him and could only be set aside by a civil Court‑Canal Officer not competent to set aside or reverse his previous order without assigning any reason and without any change in facts and circumstances.

 A number of co‑sharers on a nakah in question used to irrigate their lands under a mutual private warabandi in vogue between them. One of the co‑sharers G applied in 1955, for permission to shift his nakah from one killa to another. The application of G was refused and the existing arrangement continued. Thereafter another co‑sharer N applied in 1957, for fixing a panel warabandi and the Canal Officer sanctioned the warabandi between all co‑sharers and gave approval also to change of the nakah previously refused by him in 1955, on the application of G.

Held : The previous order passed by the Divisional Canal Officer was final and binding between the parties and was not liable to be set aside or reversed afterwards by the Canal Officer concerned without assigning any reason and to the absence of any new facts and circumstances justifying the change. The provision of section 68 of the Canal and Drainage Act is divided into two parts. The first part deals with the use or distribution of water for any crops sown or growing at the time. The order of the Canal Officer in this respect is final and read with section 67 of the Act the civil Court has no jurisdic­tion to pass any order as to the supply of Canal water to any crop sown or growing at the time of such order. The second part of the section further lays down that the order passed by the Canal Officer shall thereafter remain in force until set aside by the decree of a civil Court. In other words, so far as the Canal Officer is concerned, he cannot vary or alter his order afterwards and is final qua him.  P L D 1971 Lahore 371

Nawab Ghulam Mahboob Subhani v. Prem Narayan 25 P R 1893 and Shahabuddin v. Muhammad Sharif and others P L D 1958 Lab. 333 ref.

Fazal Muhammad and others v. Ganda Singh and others A I R 1929 Lah. 260 considered.

Ss. 68, 24 & 27­ Order of warabandi‑Not open to question before Additional Commissioner. P L D 1964 W. P. (Rev.) 71

Mst. Maryam Sultana v. Nur Muhammad P L D 1963 W. P. (Rev.) 48 ref.

 

Plaintiffs filing suit challenging order of Divisional Canal Officer‑No temporary injunction suspending operation of warabandi sanctioned by Divisional Canal Officer under S. 68, can be issued by Civil Court‑

Order passed under section 68, Northern India Canal and Drainage Act, 1873 is final as to the use or distribution of water for any crop sown or growing at the time when such an order is made, which means that a Civil Court will have no power to set aside the order so far as it relates to the distribution of water for any crop sown or standing at the time of the order. The prohibition is absolute and the Civil Courts are completely debarred from interfering with the order to that extent. However, the power to set aside the order is not completely taken away from the Civil Courts and it is provided that the order shall remain in force thereafter until set aside by the decree of a Civil Court.

The operation of such order cannot, in any way, be suspended or affected unless there is a final adjudication by a Civil Court setting aside the order of the Divisional Canal Officer. P L D 1962 (W. P.) Lahore 317

Muhammad Ishaq v. Muhammad P L D 1958 Lah. 717 overruled.

 

S. 68‑Makes it imperative for Canal Officer to issue notices to all concerned‑Order Passed by Canal Officer without giving chance of hearing to Persons concerned‑ultra vires. 

Section 68 of the Northern India canal and Drainage Act makes it imperative for the Canal Officer to issue notices.

The relevant rule provides that if a person cannot be served personally, service should be effected on him either through his authorised agent or failing that by giving the notice to an adult male member of his family generally residing with him.

Proclamation should be accepted as effective service only in case of a special direction to that effect given by the issuing authority.

The order which was passed by the Divisional Canal Officer without giving a chance of haring to the two plaintiffs, above­named, could not be held to be binding on them and should be regarded as ultra wires and of no effect. P. L. D. 1951 Lahore 166

A. I. R. 1933 Lah. 76 relied on. Ind. Rul. 1932 Lah. 762, referred to.

 

S. 68-Civil Procedure Code, 1908, S. 115-Change of Nakka from one Killa of specific square to another Killa of same square owned by defendants on their application-Plaintiff assailed such change with no success from Courts below-Validity-In changing Nakka from one piece of land to other piece of land neither land of plaintiff nor anybody else was involved-Plaintiff failed to point out that by change of Nakka he had suffered in any way-Authorities were fully competent to make necessary changes in arrangements earlier made by them-There being concurrent findings of fact, plaintiff had failed to make out case for interference in revisional Jurisdiction. 1998 C L C 233

1980 CLC 234 rel.

 

Impleading of necessary parties- Notice to plaintiff by Canal Authorities to change alignment of his watercourse-Plaintiff challenged such notice in civil suit but did not make persons interested in changing such alignment as party to suit-Persons so interested applied to Trial Court to be impleaded as defendants but to no avail- Appellate Court, however, directed such persons to be impleaded in suit- Validity-Plaintiff had himself stated in his plaint that he had been using existing watercourse for a number of years without official hindrance or objection from private persons-Alleged private persons were neither named nor Joined as defendants in suit-Plaintiff, thus, purposely omitted to disclose their names or to Join them as defendants-Applicants had asserted in their application under O.I, R.10 C.P.C. that plaintiff had illegally encroached upon area of 350 yards of alignment of watercourse and was illegally flowing his watercourse and that plaintiff had illegally and without lawful authority constructed three aqueducts over their watercourse and due to such illegal acts of plaintiff their water supply was adversely affected and upon their representation to Authorities, plaintiff was required to remove his illegal encroachments and aqueducts‑Such contentions/allegations of persons desirous to be Joined as party to suit clearly indicated that they were the persons whom plaintiff had referred in his plaint-Appellate Court had rightly deemed applicants' presence to be necessary in suit 'and had rightly remanded case to Trial Court for fresh decision after Joining them as party to suit-Order in question, would not call for interference in revisional Jurisdiction-In post remand proceedings each party would have equal chance to put up his case before Trial Court-Order of Appellate Court remanding case to Trial Court for impleading applicants as party to suit was maintained in circumstances. 1997 M L D 1113

PLD 1983 Lah.448; 1981 SCMR 590; 1980 CLC 1779; PLD 1971 Lah., 537; 1984 SCMR 175; PLD 1995 Kar. 603 and PLD 1994 SC 95 ref.

 

S. 68-Civil Procedure Code, 1908, O.I, R. 10 & S. 115-Dispute relating to construction of "Nali" for irrigation of land -Intervenors applying to be impleaded as party to suit filed by plaintiff-Trial Court impleading intervenors as party to suit-Validity-High Court with consent of parties and for resolving controversy appointed Commissioner for ascertaining location of "Nali" and for verifying whether water flow in "Nali" in question, irrigated land in command of specific watercourse-Report of Commission indicated that land of intervenors were not being irrigated by the flow of watercourse in "Nali" in question-Lands of intervenors were in command of different watercourse‑‑­Question involved in suit relating to such "Nali" being authorized or unauthorised and whether same was located on Government land or not, were questions between plaintiffs and official defendants-Decree in suit, if granted, would not affect rights of intervenors in respect of their land-Reasons incorporated in affidavit filed alongwith application under O.I, R.10, C.P.C., did not at all reveal any interest of intervenors in flow of water in "Nali" in question -Intervenors' claim that "Nali" in question was for flow of water to irrigate their land stood contradicted by report of Commissioner against which no one had filed any objection-Order of Trial Court impleading intervenors as defendants in suit was set aside in circumstances. 1997 M L D 2549

1983 SCMR 849; 1989 ALD 246; PLD 1987 Kar. 38; 1993 MLD 853; 1988 MLD 2457; PLD 1975 SC 463 and 1989 MLD 4543 ref.

 

S. 20 & 68-Civil Procedure Code, 1908, S.9-Constitution of Pakistan, 1973, Art.199-Constitutional petition-Maintainability-Change of source of water supply-Order passed under S.20, Canal and Drainage Act,. 1873-Mode to challenge-Any type of order passed under S.20, Canal and Drainage Act, 1873 can be assailed through civil suit-Questions of fact being involved in such cases these have to be considered after the same were highlighted through production of evidence-Order in question, passed by Canal Authorities was challenged. by petitioners through filing of Constitutional petition on the ground that same was illegal, void, without authority and without Jurisdiction-All averments and assertions raised in Constitutional petition could be agitated before Civil Court where analysis would have to be made/effected on the basis of production of evidence and submissions through arguments-Even if order passed by Canal Authorities was without Jurisdiction, same would have to be got set aside by adopting correct procedure and availing remedy before competent forum-Civil suit being efficacious remedy against order passed by Canal Authorities under Ss. 20 & 68, Canal and Drainage Act, 1873, Constitutional petition challenging such orders would not be maintainable.  1996 C L C 1747

PLD 1961 (W.P.) Lah.439 rel.

 

68-Constitution of Pakistan, 1973, Art. 185(3)Warabandi-Right to use of "Nikal"-Preparation of Warabandi, distribution of canal water and fixation of turn of water of each irrigator is the exclusive responsibility of the Canal Authorities who are supposed to be well versed in the technical subject and perform their duties with the situation prevailing at the spot-First Appellate Court and the High Court on appraisal of evidence and decision of Divisional Canal Officer, had concurrently found the Warabandi in question, to be valid, legal and factual-No fault could be pointed out in the impugned Judgments-Leave to appeal was refused in circumstances. 1995 S C M R 891

 

S. 68-Civil Procedure Code, 1908, S.115-Qanun-e-Shahadat, 1984, Art.33-Appointment of referee for decision of suit between parties in ex parte proceedings-Decree in suit beyond the prayer in relief‑‑­Validity‑Suit was for setting aside Warabandi in question while decree for fresh Warabandi was granted by Trial Court thus, travelling beyond the scope of plaint and overStepping its Jurisdiction-Referee's appointment at the instance of plaintiff while defendants were not represented was not warranted-Order of Court for fresh Warabandi was void and without Jurisdiction-High Court was fully competent under 5.115, C.P.C. to suo motu revise such void, without Jurisdiction and perverse orders of Courts below-Case was remanded to Trial Court for decision afresh in circumstances. P L D 1995 Lah.305

PLD 1988 Lah.250; PLD 1977 Lah.676; PLD 1968 Lah.573; 1981 C L C 1197; PLD 1974 Lah.434; 1985 CLC 1411; PLD 1973 SC 236 and 1993 SCMR 1667 ref.

 

S. 68-Civil Procedure Code, 1908, S.12(2), OXXVI, R.9 & O.XLI, R.5‑Setting aside order of Warabandi by Court-Petitioners challenging such decree of Court under S.12(2), C.P.C., seeking appointment of Local Commissioner . and suspension of Civil Court's decree-Petitioner's both applications were dismissed by Trial Court as also by Appellate Court-Validity-Courts below were correct in holding that what petitioners might establish by leading evidence might not necessarily be elicited on spot inspection by Local Commissioner and that there was no point in staying the process and suspending implementation of Civil Court decree, when same had already been acted upon and canal department had taken all necessary steps in that behalf. 1995 C L C 26

 

S.68-Civil Procedure Code, 1908, Ss.12(2), 115 & O.XXVI, R.9‑‑­Decree for setting aside Warabandi in question, was assailed in application under S.12(2), C.P.C. which was dismissed-Application for appointment of Local Commissioner was also dismissed-Appellate Court upholding both 'the findings relating to setting aside of decree and dismissal of application for appointment of Local Commissioner-Validity‑;‑Matter in issue was primarily the subject of Authorities of Canal Department, who were expert in their own field-Civil Court's decree had been implemented by the Canal Authorities‑‑­Petitioners allegedly were petty land owners and they generally sold canal water to others for they had been getting it in excess of their actual requirement; and since their such business enterprise had .received a Jolt by the decree of Civil Court, enforced by the Canal Department, they had decided not to put up with the latest position and not to accept the change, which had been given effect to in the larger interest of all the shareholders of the outlet in question-Decree of Civil Court as affirmed by Appellate Court being correct and within Jurisdiction and same having been implemented, interference therewith in revisional Jurisdiction was not warranted. 1995 M L D 999

 

S. 68-Constitution of Pakistan, 1973, Art, 185(3)Modification of existing Warabandi was effected on the application of defendant-Order of Divisional Canal Officer, however, did not show and gave no reason as to why turn of plaintiff was changed-Plaintiff being a small farmer had to bring water from a distance of five Killas because of the modification of the earlier Warabandi and he was adversely affected by the order of modification of Warabandi-Order of modification was not Justifiable on any ground-High Court was correct in upholding first Appellate Court's order in setting aside modification of Warabandi-Leave to appeal was refused in circumstances: 1994 S C M R 1631

 

S.68-Pending appeal before Appellate Authority against order of Sub­-Divisional Officer of Canal Department with regard to `Wara Bandi', plaintiffs/petitioners filed civil suit and obtained stay order from the Court with the result that Appellate Authority could not proceed with the matter–­For invoking-Jurisdiction of Civil Court under S.68 condition precedent was that `Wara Baridi' order must have attained finality-Order of Sub-Divisional Officer, unless approved by Appellate Authority, would not finally be operative-Civil suit filed to 'challenge order of Sub-Divisional Officer, in circumstances, was premature-Contention that pendency of appeal before Appellate Authority, would not operate as bar against institution of civil suit, could not be endorsed-Plaintiffs/petitioners, should have waited for result of appeal pending before Appellate Authority. 1993 M L D 716

 

Ss.20 & 68-Wara Bandi-Normally a `Wara-Bandi' arrangement, ordered by Canal Authorities, has to remain in force, unless it was set aside by Civil Court. 1993 M L D 716

 

S.68‑‑Wara‑holder, locus standi to claim a right to water flowing through the outlet‑‑Existing Wara‑holder whether he may be situated upstream his adversary who is under contemplation of being given an extra supply of water or he may be located after him, cannot claim a right to the whole lot of water flowing through the outlet.  1989 C L C 1813

 

Ss. 22 & 68‑‑Order of Divisional Canal Officer passed in favour of petitioner was sent to Superintending Engineer for confirmation or modification, if any, in accordance with lawSuperintending Engineer after having kept matter with himself for six months, set aside order of D.C.O. without giving notice to petitioners and without assigning any cogent reason‑‑Petitioners who were being supplied water for their area since 1950 and were entitled to get their area included in C.C.A. so as to continue receiving water, held, were entitled to show‑cause notice before passing adverse order against them ‑­Principles of natural Justice having been violated as petitioners were condemned unheard, order of Superintending Engineer and order of Appellate Court upholding that illegal order were set aside and case remanded to Superintending Engineer to pass fresh order after affording petitioners opportunity of being heard. 1988 C L C 2262

P L D 1983 SC 183 and 1971 S C M R 653 rel.

 

Ss. 22 & 68‑‑Order of Divisional Canal Officer passed in favour of petitioner was sent to Superintending Engineer for confirmation or modification, if any, in accordance with law Superintending Engineer after having kept matter with himself for six months, set aside order of D.C.O. without giving notice to petitioners and without assigning any cogent reason‑‑Petitioners who were being supplied water for their area since 1950 and were entitled to get their area included in C.C.A. so as to continue receiving water, held, were entitled to show‑cause notice before passing adverse order against them ‑­Principles of natural Justice having been violated as petitioners were condemned unheard, order of Superintending Engineer and order of Appellate Court upholding that illegal order were set aside and case remanded to Superintending Engineer to pass fresh order after affording petitioners opportunity of being heard. 1988 C L C 2262

 P L D 1983 SC 183 and  1971 S C M R 653 rel.

 

Ss. 68 & 68‑A‑‑Interim order passed by Divisional Canal Officer assailed through civil suit‑‑Jurisdiction and competency of civil Court‑‑ Divisional Canal Officer is authorised to pass only an interim order which had to be made final after observing procedure laid down in S.68Suit, held, would lie only to challenge an order finally passed under S. 68 of Canal and Drainage Act‑‑interim order passed by Canal Authority could not be assailed in civil suit. 1987 C L C 2093

 

Ss. 68 & 68‑A‑‑Object, scope and comparison of Ss. 68 & 68‑ASection 68‑A, has a cross‑reference to S. 68 of Canal and Drainage Act to the extent that interim order passed initially could be confirmed in any final order to be passed after inquiry envisaged by S.68‑‑Both Ss.68 & 68‑A are inter‑connected; one meant for interim and the other for passing a final order‑‑Civil Court would come in, after the order was made finalSuit against interim order being incompetent, revision was accepted thereagainst and Judgment and decree of lower Court were set aside. 1987 C L C 2093

 

68‑‑Civil Procedure Code, 1908, S. 115 and O.XXXIX, Rr. 1 & 2‑‑Temporary injunction against implementation of new Warabandi refused by Courts below‑‑Plea of reduction of irrigation time at expense of plaintiff and undue benefit thereof to defendant, held, was established by comparison of previous and current Warabandis‑‑Besides amendment in Warabandi directing plaintiff and some others to take their turn of water alternately being irrational, was apt to prove source of trouble for concerned parties ‑No reasons for amendment of Warabandi which would prejudice plaintiff having beers given by Canal authorities, plaintiffs case would warrant issuance of temporary injunction and same was, granted in exercise of revisional Jurisdiction of High Court till decision bf, suit pending in Trial Court. 1986 M L D 1178

 

Ss.68 & 20 to 28–Constitution of Pakistan, 1973, Art. 1850) Sanction of watercourse–Notice–Notice issued to all land-owners including appellant who initiated proceedings under S.68–Notices were duly served and application was decided only when it was established on record that notices had been served upon all land-owners–Appellant, although was duly served but sent his grandson either to represent him or to watch proceedings–Grandson of appellant giving consent to sanction of watercourse–Original plaint filed by appellant had not challenged correctness of sanctioning of watercourse and said plaint showed that appellant (plaintiff) was agreeable to construction of watercourse through his area–High Court finding that consent of grandson was consent of grandfather (applicant)Appellant unable to refute inference drawn by High Court with regard to contents of plaint nor was able to point of any other material on record to show that finding was not well-founded Contentions on basis of which leave was granted by S.Chaving not been established by appellant, S.Cdismissed appeal. 1985 S C M R 208

 

S. 68 (2) [Before amendment by virtue of Canal and Drainage (Punjab Amendment) Act (XXXII of 1975]‑Appeal against order of Divisional Canal Officer, held, competent before Superintending Canal Officer.  1984 C L C 2981

S. 68‑Canal and Drainage Rules, r. 85‑Right of appeal having been conferred upon an aggrieved person by S. 68, natural incidences of appeal which inter alia, include right of being heard in support of appeal also stand conferred on such person and could not be taken away by framing of Rules to the contrary‑Power under rule 85 to dismiss appeal in limine without hearing appellant cannot, therefore, be given effect to. 1984 C L C 2981

 

S. 68‑Canal and Drainage Rules, r. 85‑Appeal‑Rules 85 to be read in context that a hearing has to be afforded to appellant before disposing of appeal to bring provision in accord with section 68, Canal and Drainage Act, 1873‑Principles of natural Justice that one shall not be adjudged adversely without affording him an opportunity of being heard also to be complied with. 1984 C L C 2981

 

S. 68‑Warabandi‑Divisional Canal Officer allowing appeal against petitioner without affording opportunity of hearingSuch order, held, prima facie void and does not exist bar provided by section 68, cannot be invoked to deprive petitioner of plea of temporary injunction. 1983 C L C 83

 

Ss. 20 & 68 and Civil Procedure Code, 1908, O. XXXIX, rr. 1 & 2‑Injunction against water supply to a nursery granted by Addi­tional District Judge without examining point as to which party would suffer irreparable injury by grant of injunction and balance of convenience lay in whose favour‑NonSupply of water to nursery for irrigation purposes likely to result in its annihilation and material injury to petitioners‑District Judge while deciding interlocutory matter seemingly giving a conclusive finding as to case having fell within ambit of S. 20 of Canal and Drainage Act, 1873, and Sub‑Divisional Canal Officer passed order under S. 68 being without Jurisdiction­ Finding of District Judge tending to prejudice course of action before trial Court order of District Judge set aside. 1982 C L C 59

 

S. 68‑`Warabandi'‑No evidence to show fresh dispute between parties. regarding which Sub‑Divisional Canal Officer exercised his powers' of Warabandi‑Issue of `Nakal' determined in 1967 without objection and Warabandi order remaining in force for four years ­Decision of Sub‑Divisional Officer ordering `Warabandi', in 1967, held, final and not open to alteration, in circumstances. 1981 C L C 810

 

S. 68‑`Warabandi'‑No evidence to show fresh dispute between parties. regarding which Sub‑Divisional Canal Officer exercised his powers' of Warabandi‑Issue of `Nakal' determined in 1967 without objection and Warabandi order remaining in force for four years ­Decision of Sub‑Divisional Officer ordering `Warabandi', in 1967, held, final and not open to alteration, in circumstances. 1981 C L C 810

 

S. 68‑Jurisdiction‑Mere existence of Warabandi, does not oust Jurisdiction of Divisional Canal Officer to pass an order relating to use or distribution of water whenever a difference arose between two co-Sharers—Case remanded in circumstances  1981 C L C 1197

P L D 1968 Lab. 573; P L D 1979 Lah.826; P L, D 1958 Lah.333 and A I R 1929 Lah.260 ref.

 

S. 68‑Principles of natural Justice‑Petitioners being not associ­ated with enquiry nor given chance to present their case before sanctioning additional water supply to respondentShare of water supply of petitioners, held, cannot be reduced without giving them a chance to be heard‑Order of Canal Officer being violative of principles of natural Justice, set aside, in circumstances. 1981 C L C 912

 

S. 68‑Interpretation‑Panel warabandi‑Canal Officer's order (regarding distribution of water) once passed is final qua him and could only be set aside by a civil Court‑Canal Officer not competent to set aside or reverse his previous order without assigning any reason and without any change in facts and circumstances. A number of co-Sharers on a nakah in question used to irrigate their lands under a mutual private warabandi in vogue between them. One of the co-Sharers G applied in 1955, for permission to shift his nakah from one killa to another. The application of G was refused and the existing arrangement continued. Thereafter another co-Sharer N applied in 1957, for fixing a panel warabandi and the Canal Officer sanctioned the warabandi between all co-Sharers and gave approval also to change of the nakah previously refused by him in 1955, on the application of G. Held : The previous order passed by the Divisional Canal Officer was final and binding between the parties and was not liable to be set aside or reversed afterwards by the Canal Officer concerned without assigning any reason and to the absence of any new facts and circumstances Justifying the change. The provision of section 68 of the Canal and Drainage Act is divided into two parts. The first part deals with the use or distribution of water for any crops sown or growing at the time. The order of the Canal Officer in this respect is final and read with section 67 of the Act the civil Court has no Jurisdic­tion to pass any order as to the supply of Canal water to any crop sown or growing at the time of such order. The second part of the section further lays down that the order passed by the Canal Officer shall thereafter remain in force until set aside by the decree of a civil Court. In other words, so far as the Canal Officer is concerned, he cannot vary or alter his order afterwards and is final qua him.  P L D 1975 Lah.1314

 25 P R 1893 and P L D 1958 Lab. 333 ref.

 

S. 68‑Plaintiffs filing suit challenging order of Divisional Canal Officer‑No temporary injunction suspending operation of warabandi sanctioned by Divisional Canal Officer under S. 68, can be issued by Civil Court‑Civil Procedure Code, 1908, O. XXXIX, rr. 1 & 2 . Order passed under section 68, Northern India Canal and Drainage Act, 1873 is final as to the use or distribution of water for any crop sown or growing at the time when such an order is made, which means that a Civil Court will have no power to set aside the order so far as it relates to the distribution of water for any crop sown or standing at the time of the order. The prohibition is absolute and the Civil Courts are completely debarred from interfering with the order to that extent. However, the power to set aside the order is not completely taken away from the Civil Courts and it is provided that the order shall remain in force thereafter until set aside by the decree of a Civil Court. The operation of such order cannot, in any way, be suspended or affected unless there is a final adjudication by a Civil Court setting aside the order of the Divisional Canal Officer. P L D 1962 (W. P.) Lah.317

P L D 1958 Lah.717 overruled.

 

68‑A      Powers of Canal officer to restore interrupted supply: If Canal- water supply of any land is interrupted by dismantling a water-course or international khal, the Divisional Canal Officer may, upon application made to him in this behalf and after such enquiry as he may deem necessary order interim restoration of the dismantled water-courses or the internal khal and the interrupted supply of water at the cost of person who interrupted the supply and if necessary by use of such agency or force as may be called for and such order shall remain in force until the dispute is finally settled under sec. 68 and if necessary a water-course link is constructed under this act.

Any charge determined for restoration of the water-course or internal khal shall be recoverable from the person at fault as arrear of land revenue.

Court Decisions

Ss. 68 & 68‑A‑‑Interim order passed by Divisional Canal Officer assailed through civil suit‑‑Jurisdiction and competency of civil Court‑‑ Divisional Canal Officer is authorised to pass only an interim order which had to be made final after observing procedure laid down in S.68Suit, held, would lie only to challenge an order finally passed under S. 68 of Canal and Drainage Act‑‑interim order passed by Canal Authority could not be assailed in civil suit. 1987 C L C 2093

 

Ss. 68 & 68‑A‑‑Object, scope and comparison of Ss. 68 & 68‑ASection 68‑A, has a cross‑reference to S. 68 of Canal and Drainage Act to the extent that interim order passed initially could be confirmed in any final order to be passed after inquiry envisaged by S.68‑‑Both Ss.68 & 68‑A are inter‑connected; one meant for interim and the other for passing a final order‑‑Civil Court would come in, after the order was made finalSuit against interim order being incompetent, revision was accepted thereagainst and Judgment and decree of lower Court were set aside. 1987 C L C 2093

 

S. 68‑A-Constitution of Pakistan (1973), Art. 199-Restoration of dismantled Khal-Constitutional jurisdiction, exercise of-Order restoring dismantled Khal, was subsequently reviewed by Authority on application of respondent and petitioner had challenged order of Authority passed in review-Order of Authority could not be interfered with by High Court in exercise of Constitutional jurisdiction as petitioner's land admittedly was getting water from regular Khal duly sanctioned by Authorities. 1993 C L C 200

 

S.68‑A-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted to determine as to whether or not watercourse in question was a private one, and therefore, is a dispute pertaining to that or whether or not proceedings could be taken under S. 68‑A, Canal and Drainage Act 1873. 1992 S C M R 803

S.68‑A-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted to determine as to whether or not watercourse in question was a private one, and therefore, is a dispute pertaining to that or whether or not proceedings could be taken under S. 68‑A, Canal and Drainage Act 1873. 1992 S C M R 803

 

68-A-Civil Procedure Code (V of 1908), S.115-Revisional jurisdiction, exercise of-Order passed by Divisional Canal Officer as affirmed in appeal by Superintending Engineer,, was assailed on ground that before passing such orders plaintiffs were neither served nor heard and that order passed in their absence was without jurisdiction-Question as to whether notices were issued to plaintiffs or they were given opportunity of being heard being a question of fact, Courts below had concurrently found that not only notices were issued to plaintiffs but same were also served upon them–No misreading/non-reading of evidence by Courts below had been pointed out–Onus to prove non-service was on plaintiffs who failed- to prove non-issuance of notice-Trial Court had also stated in its judgment that plaintiffs had been appearing in appeal before Superintending Engineer and that it was his order which could effectively determine rights of irrigation under those proceedings and that order of Divisional Canal Officer was just a simple suggestion to Superintending Engineer-Plaintiffs had not been able to controvert such observations made by Trial Court-No exception could be taken to the findings arrived at by Courts below, with regard to service of notice issued by Divisional Canal Officer–­Revision was dismissed in circumstances: 1991 M L D 534

 

68‑A‑‑Interim order passed by Divisional Canal Officer assailed through civil suit‑‑Jurisdiction and competency of civil Court‑‑ Divisional Canal Officer is authorised to pass only an interim order which had to be made final after observing procedure laid down in S.68‑‑Suit, held, would lie only to challenge an order finally passed under S. 68 of Canal and Drainage Act‑‑interim order passed by Canal Authority could not be assailed in civil suit. 1987 C L C 2093

 

Ss. 68& 68‑A‑‑Object, scope and comparison of Ss. 68 & 68‑A‑­Section 68‑A, has a cross‑reference to S. 68 of Canal and Drainage Act to the extent that interim order passed initially could be confirmed in any final order to be passed after inquiry envisaged by S.68‑‑Both Ss.68& 68‑A are inter‑connected; one meant for interim and the other for passing a final order‑‑Civil Court would come in, after the order was made final‑‑Suit against interim order being incompetent, revision was accepted thereagainst and judgment and decree of lower Court were set aside. 1987 C L C 2093

 

68‑A‑‑Interim order passed by Divisional Canal Officer assailed through civil suit‑‑Jurisdiction and competency of civil Court‑‑ Divisional Canal Officer is authorised to pass only an interim order which had to be made final after observing procedure laid down in S.68Suit, held, would lie only to challenge an order finally passed under S. 68 of Canal and Drainage Act‑‑interim order passed by Canal Authority could not be assailed in civil suit. 1987 C L C 2093

 

Ss. 68 & 68‑A‑‑Object, scope and comparison of Ss. 68 & 68‑ASection 68‑A, has a cross‑reference to S. 68 of Canal and Drainage Act to the extent that interim order passed initially could be confirmed in any final order to be passed after inquiry envisaged by S.68‑‑Both Ss.68 & 68‑A are inter‑connected; one meant for interim and the other for passing a final order‑‑Civil Court would come in, after the order was made finalSuit against interim order being incompetent, revision was accepted thereagainst and Judgment and decree of lower Court were set aside. 1987 C L C 2093

 

S. 68‑A-Constitution of Pakistan, 1973, Art. 199-Restoration of dismantled Khal-Constitutional Jurisdiction, exercise of-Order restoring dismantled Khal, was subsequently reviewed by Authority on application of respondent and petitioner had challenged order of Authority passed in review-Order of Authority could not be interfered with by High Court in exercise of Constitutional Jurisdiction as petitioner's land admittedly was getting water from regular Khal duly sanctioned by Authorities. 1993 C L C 200

 

S.68‑A-Constitution of Pakistan, 1973, Art.185(3)Leave to appeal was granted to determine as to whether or not watercourse in question was a private one, and therefore, is a dispute pertaining to that or whether or not proceedings could be taken under S. 68‑A, Canal and Drainage Act 1873. 1992 S C M R 803

 

Ss. 20 & 68-A-Civil Procedure Code, 1908, S.115-Revisional Jurisdiction, exercise of-Order passed by Divisional Canal Officer as affirmed in appeal by Superintending Engineer,, was assailed on ground that before passing such orders plaintiffs were neither served nor heard and that order passed in their absence was without Jurisdiction-Question as to whether notices were issued to plaintiffs or they were given opportunity of being heard being a question of fact, Courts below had concurrently found that not only notices were issued to plaintiffs but same were also served upon them–No misreading/non-reading of evidence by Courts below had been pointed out–Onus to prove nonService was on plaintiffs who failed- to prove non-issuance of notice-Trial Court had also stated in its Judgment that plaintiffs had been appearing in appeal before Superintending Engineer and that it was his order which could effectively determine rights of irrigation under those proceedings and that order of Divisional Canal Officer was Just a simple suggestion to Superintending Engineer-Plaintiffs had not been able to controvert such observations made by Trial Court-No exception could be taken to the findings arrived at by Courts below, with regard to service of notice issued by Divisional Canal OfficerRevision was dismissed in circumstances: 1991 M L D 534

 

Ss. 68 & 68‑A‑‑Interim order passed by Divisional Canal Officer assailed through civil suit‑‑Jurisdiction and competency of civil Court‑‑ Divisional Canal Officer is authorised to pass only an interim order which had to be made final after observing procedure laid down in S.68Suit, held, would lie only to challenge an order finally passed under S. 68 of Canal and Drainage Act‑‑interim order passed by Canal Authority could not be assailed in civil suit. 1987 C L C 2093

Ss. 68 & 68‑A‑‑Object, scope and comparison of Ss. 68 & 68‑ASection 68‑A, has a cross‑reference to S. 68 of Canal and Drainage Act to the extent that interim order passed initially could be confirmed in any final order to be passed after inquiry envisaged by S.68‑‑Both Ss.68 & 68‑A are inter‑connected; one meant for interim and the other for passing a final order‑‑Civil Court would come in, after the order was made finalSuit against interim order being incompetent, revision was accepted thereagainst and Judgment and decree of lower Court were set aside. 1987 C L C 2093

 

69.       Power to summon and examine witnesses. Any officer empowered under this Act to conduct any inquiry may exercise all such powers connected with the summoning an examining of witnesses as are conferred on Civil Courts by the “Code of Civil Procedure, and every such inquiry shall be deemed a judicial proceeding.

 

Court Decisions

S. 69‑‑Canal and Drainage Rules, Rr. 80 6 96‑‑Water, distribution of‑‑Divisional Canal Officer, while hearing appeal from order of Sub Divisional Canal Officer sits as a Court‑‑"Enquiry" before him deemed to he "a judicial enquiry"‑‑Decision under r. 96(c) should contain "the Substance"‑‑Order of Divisional Canal Officer in appeal, not disclosing arguments of appellant and why were those accepted which was maintained by appellate Court;. set aside. 1986 M L D 863

 

70.       Offences under Act. Whoever, without proper authority and voluntarily, does any of the acts following, that is to say:-

(1)        cuts through, pierces, damages, alters, enlarges or obstructs any canal or  canal outlet or drainage work;

(2)        interferes with increases or diminishes the supply of watering, or the flow of water from , through, over or under any canal or drainage work or by any means raises or lowers the level of the water in any canals;

(3)        interferes with or alters the flow of water in any river or stream, so as to endanger, damage or render less useful any canal or drainage work;

(4)        makes any dam or obstruction for the purpose of diverting or opposing the current of a river on the bank whereof there is a flood embankment or refuses or neglects to neglects to remove any such dam or obstruction when lawfully required so to do;

(5)        prevents or interferes with the lawful use of a water course by any person authorised to use the same;

(6)        being responsible for the maintenance of a water course or using a water course neglects to take proper precautions for the prevention of waste of the water thereof, or interferes with the authorised distribution of water there from, or uses such water in an unauthorised manner;

(7)        dismantles water course or internal khal thereby interrupting or obstructing the irrigation of the land of another person;

(8)        corrupts or fouls the water of any canal so as to render it less fit for the purpose for which it is ordinarily used;

(9)        causes any vessel to enter or navigate any canal contrary to the rules for the time being prescribed by Government for entering or navigating such canal;

(10)      While navigating on any canal, neglects to take proper precaution for the safety of the canal and of vessels thereon;

(11)      neglects, without reasonable cause to assist or to continue to assist in supplying the labourers required of them or being a labourer to supply his labour for the execution of any work, when lawfully so bound to do under part VIII of this Act;           

(12)      destroys, defaces or moves any land or level mark, rain-gauge or water gauge fixed by a public servant;

(13)      destroy tampers with or removes any apparatus, or part of any apparatus for hydrological observations or for controlling, regulating or measuring the flow of water in any canal, river or stream;

(14)      passes or causes animals or vehicles to pass, on or across any of the works, banks or channels of a canal or drainage work contrary of rules made under this act;

(15)      causes or knowingly and willfully permits cattle to graze upon any canal or drainage work or tethers or knowingly and willingly permits cattle to be tethered upon any such canal or drainage work or uproots grass or other vegetation growing on any such canal or drainage work, or removes, cuts or in any way injures or causes to be removed cuts or other wise injures any tree, bush, grass or hedge intended for the protection of such canal or drainage work:

(16)      makes or any manner voluntarily abets the making of an encroachment of any king within the limits of a canal or drainage work, or refuses or neglect to revue any such encroachment when so required to do by canal officer ,or

(17)      violates any rules made under this Act, for breach whereof a penalty may be incurred;

shall be liable, on conviction before a Magistrate of such class as the provincial Government directs in this behalf, to a fine not exceeding two hundred rupees or the imprisonment not exceeding three months or both.

(2)        Whenever any person is convicted under this section the convicting Magistrate may order that the cost as certified by the sub-Divisional canal officer for removal of the obstruction or repairing the damage in respect of which the conviction is held, shall be payable by him, and if such person neglects or refuses to obey such order within the period to be fixed the cost of such removal or repair shall be recoverable from such person b the collector as arrears of land revenue.

 

Court Decisions

Water‑course through which no right to take water exists is not covered by S. 70.

A water‑course on another's land through which no right to take water exists is not covered by section 70 of Act VIII of 1873. The right may come into existence by virtue of section 21 of the Act, or, apart from it, by private contract or as an easement. The right to take water must be there, before section 70 can apply.

 Where there was no evidence that the water‑course was constructed by the Provincial Government, or that it was constructed under section 21 of the Act, neither was there evidence that water was taken through the water‑course by private contract with the owner of land on which the water­course had existed, but, there was evidence that water had been taken through the water‑course for a considerable time, the case was remanded for ascertaining whether a right to take water through the water‑course had ripened into an easement, so as to sustain a conviction under section 70, Canal and Drainage Act, 1873 under the relevant circum­stances. P L D 1956 Lah.490

payment for‑Private channels maintained by private owners in private lands‑Included within definition of "watercourse" and therefore part of a canal‑Tube well water supplied through any watercourse‑Canal water within meaning of S. 36‑Occupier of land accepting canal water‑Liable to be charged water rate or occupiers' rate according to Rules made by Government.

Even private channels, maintained by the private owners in private lands are included in the definition of "watercourse" and, therefore, must be regarded as a part of a canal. Reading the above mentioned two clauses together the inference is irresistible that tube‑well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupiers rate in accordance with the charges determined by the Rules to be made by the Provincial Government.Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lah.237

Grant of land to defendant under old Land Grant Policy on Harap basis in open Katchery in 1959-Defendant paid 3/4 instalments but could not pay further instalments due to financial conditions and for non‑payment of instalments grant in his name was cancelled in 1965‑Subsequently, land in question was re-granted to defendant in 1986-Plaintiff challenged re-grant of land to defendant on the ground that land in question was admittedly within 20 chains of established village and same could not be granted unless same was separated by a working canal-Revenue Authorities were competent to grant such lands to Haris for agricultural purposes which though lying within 20 chains of village were separated either by working watercourse or working water canal. 1997 C L C 875

 

Old Section

70.       Offences under Act. Whoever, without proper authority and voluntarily, does any of the acts following, that is to say:-

(1)        damages, alters, enlarges or obstructs any canal or drainage work;

(2)        interferes with, increases or diminishes the supply of water in, or the flow of water from, through, over or under, any canal or drainage-work;

(3)        interferes with or alters the flow for water in any river or stream, so as to endanger, damage or render less useful any canal or drainage-work;

(4)        being responsible for the maintenance of a water-course, or using a water-course, neglects to take proper precautions for the prevention of waste of the water thereof, or interferes with the authorised distribution of the water therefrom, or uses such watering an unauthorised manner;

(5)        corrupts or fouls the water of any canal so as to render it less fit for the purposes for which it is ordinarily used;

(6)        causes any verses to enter or navigate any canal contrary to the rules for the time being prescribed by the [Provincial Government] for entering or navigating such canal;

(7)        while navigating on any canal, neglects to take proper precautions for the safety of the canal and of vessels thereon;

(8)        being liable to furnish labourers under Part VIII of this Act, fails without reasonable cause, to supply or to assist in supplying the labourers required of him;

(9)        being a labourer liable to supply his labour under Part VIII of this Act, neglects, without reasonable cause, so to supply, and to continue to supply, his labour;

(10)      destroys or moves any level-mark or water-gauge fixed by the authority of a public servant;

(11)      passes, or causes animals or vehicles to pass, on or across any of the works, banks or channels of a canal or drainage-work contrary to rules made under this Act, after he has been desired to desist therefrom;

(12)      violates any rule made under this Act, for breach whereof a penalty may be incurred,

Penalty shall be liable, on conviction before a Magistrate of such class as the [Provincial Government] directs in this behalf, to a fine not exceeding fifty rupees, or to imprisonment not exceeding one month, or to both.

 

70.A    Compensation to persons injured.– (1) Whenever any person is fined for an offence under this Act, the Court which imposes such fine, or which confirms, in appeal of revision, a sentence of such fine, or a sentence  of which such fine froms a part, may direct that the whole or any part of such fine, may be paid as compensation to be injured person or as  reward to the informant.

(2)        If the fine be awarded by a court, whose decision is subject to appeal or revision, the amount awarded by way of compensation or reward as the case may be, shall not be paid the period prescribed for appeal or revision has elapsed, and when an appeal or revision is filed, till the same finally disposed of.

 

71.       Saving of prosecution under other laws. Nothing herein contained shall prevent any person from being prosecuted under any other law for any offence punishable under this Act:

            Provided that no person shall be punished twice for the same offence.

 

72.       Compensation to person injured. Whenever any person is fined for an offence under this Act, the Magistrate may direct that the whole or any part of such fine may be paid by way of compensation to the person injured by such offence.

 

73.       Power to arrest without warrant. Any person incharge of or employed upon any canal or drainage-work may remove from the lands or buildings belonging thereto, or may take into custody without a warrant and take forthwith before Magistrate or to the nearest police-station, to be dealt with according to law, any person who, his view, commits any of the following offences: –

(1)        wilfully damages or obstructs any canal or drainage-work;

(2)        without proper authority interferes with the supply or follow of water in or from any canal or drainage-work, or in any river or stream, so as to endanger, damage or render less useful any canal or drainage-work.

 

74.       Definition of “canal”. In this Part the word “canal” shall (unless there be something repugnant or context) be deemed to include also all lands occupied by [the Provincial Government] for the purposes of canals, and all buildings, machinery, fences, gates and other erections, trees, crops, plantations or other produce occupied by or belonging to [the Provincial Government] upon such lands.

 

75.       Power to make, alter and cancel rules. The [Provincial Government] may, from time to time  make rules to regulate the following matters:-

(1)        the proceedings of any officer who, under any provision of this Act, is required or empowered to take action in any matter;

(2)        the cases in which, and the officers to whom, and the conditions subject to which, orders and decisions given under any provision of this Act, and not expressly provided for as regards appeal, shall be appealable;

(3)        the persons by whom, “[and] the time, place or manner at or in which anything for the doing of which provision is made under this Act, shall be done;

(4)        the amount of any charge made under this Act; and

(5)        generally to carry out the provisions of this Act.

The [Provincial Government] may from time to time alter or cancel any rules so made.

 

Court Decisions

Ss. 70 & 75- Penal Code (XLV of 1860), S. 40 -Criminal Procedure Code (V of 1898), S.407- Complaint against diversion/stoppage of water-Appeal to District Magistrate-Competency-Any offence mentioned in S.70 of Canal and Drainage Act, 1873, would be an offence within definition of S.40, P.P.C. as on conviction by Magistrate 2nd Class appeal would be to District Magistrate within the contemplation of S.407, Cr.P.C.-Appeal filed and decided by District Magistrate was within his jurisdiction.  2002 P Cr. L J 1384

S. 75(4), (5) read with Government of West Pakistan Notifica­tions No. 2/72‑S. O. (Rev.) 65, dated 11‑4‑1966 and 1‑12‑1966 ­Occupiers' water rate‑Section 75(5) conferring on rule‑making autho­rity power to make rules retrospectively with condition that retrospec­tivity should not extend beyond period charge became leviable under Act‑Rules framed with retrospective effect under such statute‑­Held, not bad‑Notification under S. 75(5) imposing occupier's water rate with retrospective effect‑Held, to be treated a "rule" and its validity not open to question.

The facts of the instant case were that shortly after the issuance of the notification dated 11‑4‑1966, the Secretary to the Government of West Pakistan, Irrigation and Power Department, by order of the Governor of West Pakistan, issued a fresh notification dated 1‑12‑1966, superseding the aforesaid notification dated 11‑4‑1966 and levying the double occupiers rate not only w. e. f. Rabi 1965‑66 but also w. e. f. Kharif 1962, i. e., with retrospective effect.

It was contended that the levy of the double occupiers rate from Kharif, 1962 to the date of the issuance of the notification is illegal and ultra vires as a levy is sought to be made with retrospective effect, not by the terms of a statute but by the issuance of mere notification.

Held, the relevant statutory instrument has conferred on the rule‑making authority the power to make rules retrospectively, laying down, however, the condition that retrospectivity should not extend beyond a certain period viz. not before the period that the water was actually supplied or the charge had become leviable under the Act. Thus, in the instant case, the rule­ making authority has not legislated with retrospective effect but has merely given effect to the mandate of the law‑maker and has acted strictly within the four corners thereof.

Clause (5) of section 75 of the Canal and Drainage Act, 1873, as amended, authorises the making of rules, to have effect retrospectively from any date not earlier than the date from which water has been supplied. The statute, therefore, itself, visualises the making of rules with retrospective effect. Rules framed with retrospective effect, under such a statute are not bad.

The impugned notification can be treated to be a "rule", and, further, that it does not suffer from any legal defect, nor is its validity open to question. P L D 1977 Lahore 226

Ch. Inayat Ullah and others v. The Province of West Pakistan and others P L D 1971 Lah. 482 ; Muhammad Alain and others v. The Province of West Pakistan 1972 S r M R 151 ; Mst. Bibi fan and others v. Miss R. A. Monny and others P L D 1961 S C 69 ; Hamid Khan Durrant and others v. Government of West Pakistan PAL D 1975 Lah. 237 and Faiz Ullah Khan v. Government of Pakistan P L D 1974 S C 291 ref.

Sh. Rahmatullah v. The Deputy Settlement Commissioner Centre 'A', Karachi and others P L D 1963 S C 633 and Sh. Fazal Ahmad v. Roja Zia Ullah Khan and others P L D 1964 S C 494 not relevant.

S. 75 read with Ss. 3, 36 and Canal and Drainage Rules, r. 21­Canal water, payment for‑Private channels maintained by private owners in private lands‑Included within definition of "watercourse" and therefore part of a canal‑Tube well water supplied through any watercourse‑Canal water within meaning of S. 36‑Occupier of land accepting canal water‑Liable to be charged water rate or occupiers' rate according to Rules made by Government.

Even private channels, maintained by the private owners in private lands are included in the definition of "watercourse" and, therefore, must be regarded as a part of a canal. Reading the above mentioned two clauses together the inference is irresistible that tube‑well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupiers rate in accordance with the charges determined by the Rules to be made by the Provincial Government.

 As the petitioners admittedly accepted canal water and the rate payable for occupiers accepting canal water, has been fixed by a rule framed by the Provincial Government, the petitioners are, in law, bound to pay it. P L D 1975 Lahore 237

M. Abdul Bari and others v. West Pakistan Soil Reclamation Board Lahore and others P L D 1966 S C 451 held not applicable.

Ss. 75, 3, 36, 5 & 31‑Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment.

It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water.

Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lahore 237

Ss. 75 At 36‑Imposition of levy on flat rate‑Additional supply of irrigation water resulting in increase of production of crops‑Additional occupiers' rate also not in excess of costs incurred in maintenance of tube‑wells‑Refusal to follow differential crop rates in circumstances not unreasonable‑Wisdom underlying imposition of levy on flat rate‑Matter for determination of rule‑making authority and not for Court. P L D 1975 Lahore 237

Inayat Ullah v. Province of West Pakistan P L D 1971 Lah. 482 rel.

 75­Rate of water charge‑Provincial Government authorised tinder S. 75 to frame Rules to determine water rates and "such occupiers as accept the water shall pay" the rates‑Notification published iii official Gazette enhancing occupiers' rate‑Occupiers, accepting water, cannot question enhanced rate mentioned in Notification-­Government of West Pakistan Notification dated 11‑4‑1966. 1972 S C M R 151

S. 75 read with Ss. 3, 36 and Canal and Drainage Rules, r. 21­Canal water, payment for‑Private channels maintained by private owners in private lands‑Included within definition of "watercourse" and therefore part of a canal‑Tube well water supplied through any watercourse‑Canal water within meaning of S. 36‑Occupier of land accepting canal water‑Liable to be charged water rate or occupiers' rate according to Rules made by Government.

Even private channels, maintained by the private owners in private lands are included in the definition of "watercourse" and, therefore, must be regarded as a part of a canal. Reading the above mentioned two clauses together the inference is irresistible that tube‑well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupiers rate in accordance with the charges determined by the Rules to be made by the Provincial Government.

As the petitioners admittedly accepted canal water and the rate payable for occupiers accepting canal water, has been fixed by a rule framed by the Provincial Government, the petitioners are, in law, bound to pay it. P L D 1975 Lahore 237

M. Abdul Bari and others v. West Pakistan Soil Reclamation Board Lahore and others P L D 1966 S C 451 held not applicable.

Ss. 75, 3, 36, 5 & 31‑Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment.

It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water.

Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lahore 237

Ss. 75 & 36 ‑Government of West Pakistan Notification No. 2/78 S. O. (Rev.)/66 dated 24th August 1967 read with Notification No. 2/78 S. O. (Rev.)/66 dated 30th July 1968 and Notification No. 10/55­5. O. Vlll(I)/59 dated 23rd November 19‑59‑Notifization issued under S. 75 real with S. 36 and published in official Gazette‑A rule framed , under S. 75 with force of law for purpose of S. 36. P L D 1975 Lahore 237

Pakistan v. Abdul Hamid P L D 1961 S C 105 and Province of West Pakistan v. Din Muhammad P L D 1964 S C 21 ref.

Inayat Ullah v. Province of West Pakistan P L D 1971 Lah. 482 ands Muhammad Alam v. Province of West Pakistan 1972 S C M R 152 rel.

Ss. 75 At 36‑Imposition of levy on flat rate‑Additional supply of irrigation water resulting in increase of production of crops‑Additional occupiers' rate also not in excess of costs incurred in maintenance of tube‑wells‑Refusal to follow differential crop rates in circumstances not unreasonable‑Wisdom underlying imposition of levy on flat rate‑Matter for determination of rule‑making authority and not for Court. P L D 1975 Lahore 237

Inayat Ullah v. Province of West Pakistan P L D 1971 Lah. 482 rel.

75 and Rules framed under Canal and Drainage Act, 1873, r. 33 [as inserted by Government Notifica­tion dated 5th May 1930]‑"Watercourse" and "canal"‑Defini­tions‑Term "canal" wider and more exhaustive in scope­ Term "watercourse" restricted in meaning and scope so as to apply to only those channels not maintained at cost of Provincial Government‑Deliberate cuts made in water channel constructed by and maintained at cost of Provincial Government ‑Provisions of Ss. 33& 34, held, not applicable and hence order imposing special charges, in circumstances, could not be made‑Rule 33 providing for levy of charges for water used un-authorisedly, held, goes beyond substantive provisions of Act and hence ultra vires of parent statute. Whereas the term canal is wider and more exhaustive in scope, and includes a watercourse in its ambit, the term water­course is restricted in meaning and scope so as to apply to only those channels which are not maintained at the cost of the Provincial Government. In other words, whenever the Act makes a specific provision relating to a watercourse, its applica­tion has to be confined to those channels which are not maintained at the cost of the Provincial Government. It is common ground that the GajJiana Distributory, in which the cut was made by the petitioners, was constructed by the Provincial Government and is being maintained at the cost of that Govern­ment. This channel cannot, therefore, be regarded as a water­course according to the definitions contained in the Act. Accordingly, it follows that the provisions of section 33 of the Act are not attracted in this case.Whereas section 33 of the Canal and Drainage Act, 1873, deals with un-authorised use of water supplied through a water­course, section 34 deals with wastage of water through neglect or otherwise. Both the sections have a common feature inasmuch as the persons made chargeable in respect of the water used in an un-authorised manner or allowed to run to waste are those who would be chargeable in respect of water supplied through such watercourse, in case the culprits cannot be identified. These provisions leave no doubt that the Legislature was providing, in both these sections, measures for the preservation and proper utilization of water supplied by the Department through a watercourse. These sections do not apply to deliberate cuts made in those water channels which do not come within the definition of the term watercourse as contained in clause (2) of section 3 of the Act ; nor do they apply to tae un-authorised use or wastage of that water which is not supplied by the Department through a watercourse. It must be remembered that both these sections are in the nature of penal provisions, and cannot,, therefore, be interpreted in a manner so as to include within their ambit situations or acts or omission or commission not expressly, or by necessary intendment, included by the Legis­lature. For these reasons as well it appears that the impugned order could not be made under section 33 of the Act.  It was, however, submitted on behalf of the respondents that the lacuna noticed by the Court in section 33 of the Act, was removed by means of a notification issued by the Provincial Government on the 5th of May 1930. By this notification a new rule 33 was substituted so as to provide for the levying of charges for "canal water used in an un-authorised manner or suffered to run to waste". It was stipulated that "in the case of supply through a watercourse the persons chargeable shall be determined in accordance with the provisions of section 33 or 34 of Act VIII of 1873, as the case may be. In the case of a supply through an un-authorised cut or breach in a canal, other than watercourse, the persons chargeable shall be the occupiers of the land on which such water has flowed".

 Held: The only provisions contained in the Act relating to the un-authorised use or wastage of water are those to be found in sections 33 and 34, dealing with watercourses, and there is no separate provision in respect of water supplied or flowing through a canal as distinct from a watercourse. The rules have been framed under section 75 of the Act, which gives power to the Provincial Government to make rules to regulate the matters enumerated in clauses (1) to (5) of that section. Clause (4) is relevant in the present context as it deals with "the amount of any charge made under this Act." The residuary clause (5) provides for the framing of rules, "generally to carry out the provisions of this Act." Both in terms of section 75 of the Act, as well as on general principles relating to subsidiary or delegated legislation, it is clear that the rules cannot go beyond the substantive provisions contained in the Act. There being no provision in the Act providing for the levy of special charges in respect of canal water used in an un-autho­rised manner or allowed to run to waste, rule 33 has to be declared to be ultra vires of the Act in so far as it seeks to levy special charges in respect of canal water, as distinguished from water supplied through a watercourse. It seems, there­fore, that the special charges levied in this case cannot be validated with reference to rule 33, taken independently of section 33 of the Act.  P L D 1971 Lah.979

P L D 1950 Pb. (Rev.) 1193 ref.

S. 75 read with Ss. 3, 36 and Canal and Drainage Rules, r. 21­Canal water, payment for‑Private channels maintained by private owners in private lands‑Included within definition of "watercourse" and therefore part of a canal‑Tube well water supplied through any watercourse‑Canal water within meaning of S. 36‑Occupier of land accepting canal water‑Liable to be charged water rate or occupiers' rate according to Rules made by Government.

Even private channels, maintained by the private owners in private lands are included in the definition of "watercourse" and, therefore, must be regarded as a part of a canal. Reading the above mentioned two clauses together the inference is irresistible that tube‑well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupiers rate in accordance with the charges determined by the Rules to be made by the Provincial Government. P L D 1975 Lah.237

P L D 1966 S C 451 held not applicable.

Ss. 75, 3, 36, 5 & 31‑Canal water, payment for‑Contention that payment has to be made only for water asked for‑Held, not accept­able‑Occupier may accept supply of canal water (which also includes tube‑well water) or refuse to accept any supply‑Partial acceptance of canal water‑Not permissible‑Unless canal water declined to be received for purposes of irrigation, rates determined by Government for supply of canal water cannot be declined payment.

It was sought to be argued that a demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners were not desirous of using the tube‑well water.

Held: This argument cannot be accepted The occupier of land may accept supply of canal water, and this will also include supply of tube-well water or re use to accept any supply. There can be no partial acceptance of the canal water. The law, as it stands, allows the petitioners either to accept the canal water or to decline to receive it. It has already been seen that tube‑well water­ is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation, it is not possible for them to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water. P L D 1975 Lah.237

Ss. 75 Art 36‑Imposition of levy on flat rate‑Additional supply of irrigation water resulting in increase of production of crops‑Additional occupiers' rate also not in excess of costs incurred in maintenance of tube‑wells‑Refusal to follow differential crop rates in circumstances not unreasonable‑Wisdom underlying imposition of levy on flat rate‑Matter for determination of rule‑making authority and not for Court. P L D 1975 Lah.237

P L D 1971 Lah.482 rel.

Canal and Drainage Act (VII of 1873), Ss. 36 & 75­Rate of water charge‑Provincial Government authorised tinder S. 75 to frame Rules to determine water rates and "such occupiers as accept the water shall pay" the rates‑Notification published iii official Gazette enhancing occupiers' rate‑Occupiers, accepting water, cannot question enhanced rate mentioned in Notification-­Government of West Pakistan Notification dated 11‑4‑1966. 1972 S C M R 151

 

        76.       Publication of rules.- Such rules, alterations and cancelments shall be published in the official Gazette and shall thereupon have the force of law.

            Rules made under clause (4) may be made to have effect respectively from any date not earlier than the date on which water has been supplied or the charge has otherwise become leviable under this Act.

 

 

 

SCHEDULE

 

[Rep. By Act XII of 1873, S. 1 and Sch. Pt. 11]