1972 PLP 151 (SCMR)

SALAHUDDIN AHMED, J.‑These four petitions have been heard together as common questions of fact and law are involved in them, and they are being disposed of by one order. The petitioners are owners of agricultural lands in what is known as SCARP‑I area, situated in different districts of the Punjab. They have challenged the imposition of enhanced occupier's rate as prescribed under the impugned Notification of the Government of West Pakistan dated 11‑4‑1966, as well as the imposition of a Reclamation Fee at a certain rate levied under another impugned Notification of the Government of West Pakistan dated the 5th February 1966. As regards the Notification enhancing the occupier's rate, it has been contended that inasmuch as certain Tubewells from which water was supplied to the petitioners' land had to be closed down, and in consequence far from any accretion to the water supply there had been in fact diminution in the supply, the imposition of the enhanced occupier's rate was neither legal nor justified. It has been stated that the said Tubewells were pumping out brackish water which could not be used for irrigation and it was for that reason that the Tubewells were closed down. On a reference, to the Notification in question it appears that the enhancement has been made under section 36 read with 75 of the Canal and Drainage Act (Act VII of 1873). Section 36 is as follows :‑

"Charge on occupier .for water, how determined.‑The rate to be charged for canal‑water supplied for purposes of irriga tion 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." Under section 75 the Provincial Government has been authorised to make rules from time to time to regulate, inter alia, the following matters :‑ 1.. . . . . . . . . .. . . . . .. . 2. . . . . . . . . . .. . . . . .. . 3. . . . . . . . . . .. . . . . .. . 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." The rules so framed, in order to have the force of law, require publication in the official Gazette. It is thus evident that the water rates are determined by the rules made by the Provincial Government and "such occupiers as accept the water shall pay" the rates. The Notification which was published in the official Gazette has enhanced the occupier's rate as originally charged and it is payable by such occupiers as accept the water. The learned Judges of the High Court have observed :‑

"It has been categorically stated before us that the water is being accepted by the petitioners in all these cases and hence the provisions of section 36 are applicable with full force." The Notification, therefore, is perfectly legal and the liability of the petitioners to pay the occupier's rate at the enhanced rate mentioned in the Notification cannot be questioned. As regards the Notification levying the Reclamation Fee it has been contended that inasmuch as the value of the lands in question has not increased, the levying of the Reclamation Fee under section 38 of the Punjab Soil Reclamation Act, 1952, is illegal. Section 38, subsection (1) is as follows :‑

"When by the execution of any scheme, the value of the land included therein is expected to be increased the Board may at any time after the sanction of the scheme under section 21 proceed to levy and recover reclamation fee in respect of such land in accordance with the rules framed by Government under subsection (4):" The West Pakistan Land and Water Development Board Reclamation (Fee) Rules, 1965, were framed under this Act and rule 3 thereof has prescribed "a Reclamation Fee shall be levied on all culturable commanded area at such rates as may be notified by Government from time to time." The Reclamation Fee in question has been levied under section 38 of the Act read with the said rule. It is evident that not only actual increase in the value of the; land but also if the value of the land is expected to be increased, a levy under section 21 of the Act can be made. It appears from the impugned judgment of the High Court that a categorical statement was made on behalf of the department concerned that Lice value has in fact immensely increased. We, therefore, find no substance in., the contentions raised before us. All the four petitions are accordingly dismissed. Leave refused.