P L D 1971 Lahore 979 (PLP)

They are:‑ (a) That the order is bad for the reason that there is no provision in the Act for levying special charges on account of the un-authorised use of canal water, as section 33 of the Act deals only with a "watercourse" as distinguished from a canal; (b) that in any case, the order suffers from a patent illegality on account of the fact that the learned Divisional Canal Officer has not held any personal inquiry in the matter and has merely acted mechanically on the report of the Sub Divisional Officer; and (c) that even if the special charges have been validly imposed, they should have been apportioned between the landlords and the tenants as required by section 15‑A of the Punjab Tenancy Act. After hearing the learned counsel for the parties at some length we are of the view that there is no merit in the second and third contentions raised on behalf of the petitioners, but the petition must be allowed on the first ground.

5. Section 33 of the Act, under which action has been taken by the Canal Authorities, is in the following terms:‑ "

33. If water supplied through a watercourse be used in an un-authorised 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 there from, or if such person cannot be identified or if such land has not derived benefit there from, 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."

6. The term "watercourse" has been defined in clause (2) of section 3 of the Act as meaning "any channel which is supplied with water from a canal, but which is not maintained at the cost of the Provincial Government and subsidiary works belonging to any such channel." The term "canal" has been defined as including:‑ (a) All canals, channels, tube‑wells and reservoirs con structed, maintained or controlled by the Provincial Government for the supply or storage of water. (b) All works, embankments, structures, supply and channels or reservoirs. (c) All watercourses 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 .."

7. From the definitions quoted above, it would be seen that whereas the term canal is wider and more exhaustive in scope, and includes a watercourse in its ambit, the term water course 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 A 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.

8. It is also significant that the opening words of section 33 are "if water supplied through a watercourse be used in an un-authorised manner . . . . ." These words can mean only one thing, namely, that the water used in an un-authorised manner must be that which is being supplied by the Irrigation Department through a watercourse. The inten tion appears to be to ensure the proper and authorised utilization of such water.

9. This intention becomes further clear when we refer to section 34 of the Act which provides that if water supplied through a watercourse 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 watercourse shall be jointly liable for the charges made in respect of the water so wasted." Whereas section 33 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 water course, in case the culprits cannot be identified. These provisions leave no doubt in our mind 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 B made in those water channels which do not come within the definition of the terms watercourse as contained in clause (2) of section 3 of the Act; nor do they apply to the un-autho rised 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 of 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.

10. 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." It will be seen that the distinction between a canal and a water. course was maintained even in the amended rule 33.

11. It was stated at the bar that the amendment in the rules was made in the light of ,a decision given by Mr. C: A. H. Townsend, the then Financial Commissioner, on the 16th of December 1930 in the case of Lal Singh and another v. The Crown (P L D 1950 Pb. (Rev.) 1193) to the effect "that punishment bas been imposed under section 33 of the Canal Act, but it only speaks of water‑course, which are defined in section 3f 2) of the Act. But this cut was made from a rajbah, maintained by Government, and a very different thing from a watercourse. There is an obvious lacuna in the Act on this point."

12. As the date of the learned Financial Commissioner's decision is subsequent be that of the notification, it is perhaps not correct to say that the notification was the result of this decision. However, the opinion expressed by the learned Financial Commissioner does make it clear that the distinction between a watercourse and a canal, and the restricted scope of section 33 of the Act, were appreciated by .the relevant authorities as early as 1950. The question is whether the notification relied upon by the respondents has, in any manner, improved the position.

13. It was conceded at the bar that 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 resi duary 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.

14. It was contended on behalf of the respondents that as the petitioners had not raised the question of jurisdiction before the Divisional Canal Officer or even before‑the Additional Commissioner, in appeal, they should not be allowed to do so for the first time in the High Court. In support of this submission reliance was placed on the dictum of their Lordships of the Supreme Court in Ghulam Mohi‑ud‑Din v. Chief Settle ment Commissioner and another (P L D 1964 S C 829) and Majlis Intizamia, Jamia Masjid, Ghulam Mohammad Abad Colony, Lyallpur v. Secretary to Government of West Pakistan Communication and Works Department, Lahore (P L D 1967 Lah.709).

15. It is true that the petitioners did not raise the question of jurisdiction or the validity of rule 33 before the statutory authorities concerned, but there are at least two circumstances which militate against the strict application of the dictim in Ghulam Mohi‑ud‑Din's case. The first is the fact that this petition has remained pending in the High Court for more than eight years, and it would amount to a denial of justice to refuse to interfere, after the lapse of such a long time, on the technical ground, that the legal question regarding the application of section 33 and rule 33 was not raised before the Canal Authorities. The second circumstance is that the facts of this case appear to be analogous to those in the case of Muhammad Afzal v. Board of Revenue, West Pakistan (P L D 1967 S C 314), in which it was observed that by more submission, in the capacity of a respondent, to the authority of the Member, the appellant could not be thought to have conferred jurisdiction on the Member which he did not possess, or to have waived his right to challenge the Member's power to interfere with the order of the Commissioner." In the instant case, the juris diction of the Canal Authorities was not invoked by the petitioners; on the contrary they were arraigned before those authorities for the purpose of being penalized for the alleged un-authorised use of water. The Canal Authorities had all along, since 1930, acted under the belief that they had the jurisdiction to proceed in such matters. In these circumstances it is not possible for us to accept the respondent's objection that the question of jurisdiction should not be allowed to be raised in the present proceedings.

16. On the view, that we have taken regarding the validity of the special charges imposed on the petitioners, it is not really necessary to deal with the other contentions raised on behalf of the petitioners. As, however, considerable arguments were addressed at the bar on these points, which are of general importance, we think it expedient to give our opinion on these aspects of the case as well. Taking first the contention that the Divisional Canal Officer could not act mechanically on the report of the Sub‑Divisional Officer, we agree with the learned counsel for the petitioners that this proposition finds support from the decisions in the cases of Ghulam‑Mohi‑ud‑Din already referred to and Muhammad Iqbal and 11 others v. The Chief Settlement and Rehabilitation Commissioner (P L D 1970 Lah. 780), both of which have laid down the rule that it is incumbent upon the statutory authority concerned to apply his own independent mind to the questions raised before him and to deal with the proceedings in accordance with law. It was observed that there was no proper disposal of the revision petitions where the Chief Settlement Commissioner had merely countersigned the note put up to him by his subordinate. 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 to us 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.

17. Judged in this light, we agree that the order passed by the Divisional Canal Officer in this case falls short of the requisite standard, and it has, therefore, been rightly adversely commented upon by the learned Additional Commissioner in appeal. The learned Divisional Canal Officer did not write a speaking order at all and contented himself by merely saying that as repeated by the Sub‑Divisional Officer the petitioners were liable to pay special charges for illicit irrigation, although he did not accept the quantum of the penalty as proposed fn the report. The matter, however, does not rest here. The learned Additional Commissioner had examined the whole question carefully, and has consciously adopted the conclusions reached by the Sub‑Divi sional Officer as against the opinion expressed by a police officer, who investigated the case on the criminal side. It is, therefore, a case in which the appellate authority has fully applied its mind to the relevant questions. There is authority for the view that if the appellate or the revisional authority has given a proper hearing to the affected person and has applied its independent mind to the questions arising in the proceedings, then the infirmity attaching to the original order does not vitiate the entire proceedings. The impugned order was, therefore, not liable to be set aside simply on the ground that the spot inquiry had not been conducted by the Divisional Canal officer or that this officer had not applied his independent mind to the question. This defect stood cured by the appellate order.

18. The last contention that the special charges should have been apportioned between the landlords and the tenants in accordance with the ratio mentioned in subsection (2) of section 15‑A of the Punjab Tenancy Act, is clearly untenable. In the first place, no such question was raised before the statutory authorities, and it would need factual investigation to determine as to whether the lands, receiving illicit irrigation in this case, were indeed being cultivated by tenants so as to require appor tionment of the special charges between the landlords and the tenants. Secondly the argument overlooks the fact that the subsection relied upon deals with the apportionment of "all government dues levied on the land comprised in a tenancy . , .", and does not extend to charges and levies which do not fall within the definition of the government dues as given in the explanation to section 15‑A. This explanation lays down that "for the purposes of this subsection "Government dues" means the sum total of land revenue, water rate, local rate, and all other sums levied by Government on the land, except the tax levied under the Punjab Urban Immovable Property Tax Act, 1940". The special charges in question do not appear to us to fall within any of the categories enumerated in the explanation. The special charges in question are not sums levied by Govern ment on the land, but are in the nature of a penalty imposed on persons connected with land receiving illicit irrigation. The intention of the provision embodied in subsection (2) of section 15‑A of the Punjab Tenancy Act, is to apportion the normal legitimate dues levied by the Government for the cultiva tion and irrigation of land, but not for the apportionment of penal charges or levies which may be imposed on the persons concerned for their illegal activities, section 15‑A of the Punjab Tenancy Act is, therefore, not attracted to the present case.

19. For the foregoing reasons, the petition succeeds and the impugned order is declared to be without lawful authority and of no legal effect as it is not covered by any of the pro visions of the statute. In view of the legal questions involved, the parties are left to bear their own costs. Petition accepted.