P L D 1973 Lahore 552 (PLP)

Then the petitioners without approaching the Board of Revenue, filed this writ petition.

4. Mr. Buttar has raised the following three contentions:‑ (i) That the area which could have been irrigated by normal flow of water should have been deducted from the area irrigated by unauthorised flow and the balanced area only, could be made the subject of penalty. He also contended that the water should have been measured in cusecs. In this connection he has relied on three judgments of the Board; of Revenue reported as Sharaf Din v. The State P L D 1959 W P (Rev.) 10; Irrigators of Chak No. 68/D. B. v. The State P L D 1959 W P (Rev.) 11 and Mahinwal v. The State P L D 1959 W P (Rev.) 38; (ii) that Malik, the person by whose act the land was unauthorisedly irrigated, having confessed his guilt was con victed, therefore, he being an identified person section 33 of the Canal and Drainage Act was not applicable. According to the learned counsel, it was the turn of water of Malik on the night between 10th and 11th October 1960 when the offence was detected and he having confessed his guilt before the Magistrate, no other presumption could have been raised against the petitioners under section

33. The basis of his assertion on the question of turn of water on that night is a police report, a copy of which Is in his brief. According to him, this position was not contested by any party; and (iii) that the uncultivated area should not have been charged at the highest crop rate and further that the authorities should have noted the actual crop subsequently sown by the petitioners on the then uncultivated area and the penalty should not have been on the basis of any crop other than the one subsequently sown. He has in this behalf relied on two judgments of the Board of Revenue reported as Malik Mitha v. The State P L D 1959 W P (Rev.) 47 and Muhammad Islam v. The State P L D 1959 W P (Rev.) 49.

5. Section 33 of the Act was amended in 1971, by Punjab Ordinance No. XVIII. The amendment is with retrospective effect and has been noticed to Jamil Dad Khan v. Divisional Canal Officer (1971 S C M R 787). That is why probably the learned counsel has not raised any contention with regard to Vie distinction between "canal" and "watercourse". According to the reports sub mitted by the Department and the findings of fact in the impugn ed orders, the land of the petitioners which was seen and noted in the official record by the canal authorities had derived benefit from unauthorised flow of water. This (specified) area was to be irrigated in normal course from 6th to 8th October. When detected, unauthorised flow of water had benefited this very land. The report shows that the water that had flown on this land was "far in excess" of the normal flow. This clearly means that the land had derived benefit from the unauthorised flow of water. It is therefore, not a case of deduction of one area (which could be irrigated in an authorised manner) from another area (which had in fact been irrigated from unauthorised flow). The cases decided by the Board of Revenue are dis tinguishable. The main distinguishing feature being that In this case a specified area which was to get the normal flow of water was Irrigated by unauthorised flow of water which was so in excess that according to the findings of fact it benefited this wand. Moreover, according to the rules which, as held by the Supreme Court in the cited case, were validly made, the penalty could be imposed qua the area which derived benefit from the unauthorised flow. Therefore, the penalty in this case is not illegal on the contention raised by the learned counsel. Even if there is any compassionate ground for reduction of penalty, the appellate authority in this case having fully applied its mind no legal justification has been made out for interference by this Court in writ jurisdiction. The side argument of the learned counsel that the water should have been measured in cusece is too general and vague to be taken any serious note of. He has not cited any law in this behalf. The rules also do not require any such measurement.

6. No doubt Malik confessed the guilt before a Magistrate and he was convicted but the charge against him was that on the night between 10th and 11th October he irrigated his land "by excess water". It was a summary trial. The copy of the order of conviction does not show that Malik admitted the fact that he had removed the inner pipe from the reclamation shoot. He admitted only the fact that he had utilized the excess water which was flowing in an unauthorised manner. The appellate authority has come to the conclusion that Malik's confession was inspired by wrongful act of the petitioners and that actually they put him up as a saving device because in case of conviction in such a case the sentence would not be very heavy. This is a finding of fact which normally cannot be interfered with in writ juris diction. However, even according to the facts asserted by the' learned counsel, Malik irrigated his land on the night between 10th and I lth when the unauthorised flow was detected and on this very night was his turn. It cannot be assumed that the land of all the petitioners wag irrigated on that night and that too after Malik had irrigated his own land from unauthorised flow. The area is so large that the water must have flown for a long time earlier than that night and. as found by the autho rities. It was far in excess of the normal flow. Therefore, a conclusion can legitimately be drawn that some one had tempered with the shoot sometime before the night of detection. Thai being so, lands of so many persons (the petitioners) were irrigated by unauthorised flow and the land of Malik included in the entire irrigated area his confession cannot be read as more than a admission that he also utilized the unauthorised flow. It does not mean that he admitted to have tempered with the shoot itself which (tempering) as discussed above must have occurred much before the night when it was Malik's turn to irrigate his land. There is yet another aspect of the matter. Even If Malik would have admitted that he once tempered with the shoot for the purpose of irrigating his own land it would not necessarily mean that no other person out of the petitioners would have tempered with the shoot to irrigate his or their lands. There can be more than one person responsible for such act or acts. If one has confessed his guilt it does not mean all others have been indemnified. In the peculiar circumstances of this case as they emerge from the facts acted In the orders and the reports, the person/persons who tempered with the shoot earlier to the night of detection remained unidentified; though one person, who on that night used the unauthorised flow of water, had confessed that he did so (used the excess water). I, therefore, do not find any force in the second contention raised by the learned counsel.

7. The last contention of the learned counsel has also no force. Rule 32 reads as follows:‑

32. Charge leviable for taking water from a canal without permission or at times prohibited by proper authority (i.e., during tatils.‑Persons taking water from a canal without per mission or at times prohibited by proper authority shall be chargeable with special rate as below, in respect of all lands on which water has flowed:‑ (i) Cultivated land‑the special rate in the case will be equal to and in addition to the ordinary occupier's rate leviable on the crop standing at the time in the area ; (ii) Uncultivated land‑equal to the highest rate prescribed by the local Government in the schedule of occupier's rates for any one crop; (iii) Ponds, etc.‑the bulk rate sanctioned for the time being by the local Government: Provided that in each case the Divisional Canal Officer may Impose a lower charge if he thinks fit, and provided further, that this charge may be made for each distinct and separate: occasion on which water is so taken. If the person or persons taking water from a canal in am unauthorised manner cannot be identified, the persons chargeable shall be determined in accordance with the provisions of section 33 of the Canal Act, provided the water is conveyed through a watercourse. It is clear that the penalty qua uncultivated area can be with reference to the highest rate of any one crop. There is no justi fication for reading something more in the rule in the nature of that has been urged by the learned counsel in his third conten tion; namely, that even with regard to the uncultivated area the authorities should take note of what subsequently is cultivated and the penalty should be qua the crop actually sown in the area which, at the time of the detection, was uncultivated. With respect to the learned Member, Board of Revenue, in the two cases by the learned counsel, he had gone beyond the scope of the rule by indirectly suggesting that the authority should take note of the actual cultivation. It is not necessary that the authorities should wait till the cultivator takes a decision as to what he is going to sow in the then uncultivated area. The intervening period between the offence and the sowing season might be too long to await enquiry and decision on unauthorised flow and use of water. Such offences sometime need immediate action and there is nothing in law to suggest that the authorities should wait till the culprit takes a decision with regard to the crop he would sow in such an area. There is' no ambiguity in the rule nor there is anything which could make it ultra vires. I therefore, repel the third contention of the learned counsel as well.

8. No other point has been urged.

9. There is no force in this petition and the same is dis missed. There shall be no order as to costs. Appeal dismissed