P L D 1977 Lahore 226 (PLP)

"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. A rate so charged shall be called the 'occupier's rate'." (Underlining* is mine). It was pointed out that as the admitted position was that water was being accepted, it was found that the provisions of section 36 were applicable with full force.

6. The circumstances in which the Scheme referred as SCARP‑I was framed were explained in the following words:‑ "The Punjab Soil Reclamation Act was passed in the year 1952 by the Punjab Legislature with a view to making provision for the speedy reclamation and improvement of the area damaged by sem and thur and for preventing further damage. Section 3 of this Act provides for the setting up of a Punjab Soil Reclamation Board and one was brought into being in due course. This Board prepared Schemes for implementation of the purpose of the aforesaid Act in the different areas. One such scheme was known as the Sailinity Control and Reclamation Project No. 1 which has commonly come to be known as SCARP‑I. This Project went into full scale operation in 1962."

7. The above extracts from the judgment afore‑cited show that the Court found that the notification dated 11‑4‑1966 whereby the occupiers rate in respect of the area covered by the Salinity Control and Reclamation Project No. 1 was increased to double of the occupiers rate was quite valid and unexceptionable. The ratio of this judgment was upheld by the Supreme Court in Muhammad Alam etc. v. The Province of West Pakistan through Secretary, Irrigation and Power Department, Lahore etc. 1972 S C M R 151 Thus, the validity of the levy at double the occupiers rate as from Ribi 1965‑66 in the areas covered by the SCARP‑I stands established beyond doubt.

8. Coming now, to the notification impugned in these writ petitions, suffice it to say 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 with effect from Rabi 1965‑66 but also w. e. f. Kharif 1962, i. e., with retrospective effect. The relevant portion of the notification dated 1‑12‑1966 is reproduced below:‑ "In exercise of the powers conferred by section 75 of the Canal and Drainage Act, 1873 (Act VIII of 1873) read with section 36 thereof and in supersession of the Governor of West Pakistan a notification dated 11‑4‑1966, the Governor of the West Pakistan is pleased to direct that:‑‑ (i) with effect from Kharif, 1962, the occupiers rate in respect of the areas covered by the Salinity Control and Reclamation Project No. 1 comprising the schemes mentioned in column 2 of the table annexed hereto . . . . . . . shall be charged as double the occupiers rate prescribed for Lower Chenab Canal."

9. The contention raised in these writ petitions is that the levy of the double occupiers rate from Kharif, 1962 to the date of the issuance of the notification is illegal and ultra vireo as a levy is sought to be male with retrospective effect, not by the terms of a statute but by the issuance of mere notification.

10. Section 75 of the Canal and Drainage Act which confers the rule‑making power on the Provincial Government provides, to the extent relevant, as follows:‑ "S.

75. The Provincial Government may from time to time make rules to regulate the following matters:‑ (1) . (2) . (3) (4) the amount of any charge made under this Act, (5) generally to carry out the provisions of this Act."

11. By West Pakistan Ordinance XXIII of 1965 the following amend ment was carried out in section 75 of the Act, namely in clause (5):‑ rules made in clause (4) may be made to have effect retrospectively from any date not earlier than the date on which water has been supplied or the charge has otherwise become leviable under this Act."

12. The case of the Provincial Government is that the relevant scheme came into operation from 1962 and water was supplied to the petitioners, who are land‑owners in the area served by the afore‑mentioned scheme. Section 75 authorises the making of rules which may have effect retrospec tively, from any date not earlier than the date on which water has been supplied. As water was supplied to the petitioners in Kharif, 1962, the notification dated 1‑12‑1966, which has the force of a rule, could validly be issued under the terms of the amending Ordinance No. XXIII of 1965.

13. Learned counsel for the petitioners, however, contended that the notification partakes the character of a subordinate legislation and such legislation cannot be promulgated with retrospective effect. In this con nection reliance was placed on Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre 'A', Karachi etc. P L D 1963 S C 633 and Sh. Fazal Ahmad v. Raja Zia Ullah Khan etc. P L D 1964 S C

494. In the first‑mentioned case, reliance was placed on the following observations:‑ "It is, of course settled law that power given by a statute to act by notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect, whatever the language that may be employed, and consequently the Central Government's notification of the 12th September 1959, must be supposed to have effect from that date and no earlier date, notwithstanding the use of words calculated to give it effect as from 8th August 1959."

14. In the other case, namely Sh. Fazal Ahmad v. Raja Ziaullah Khan etc. the observations relied upon are the following:‑ "An obvious object to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect." While deciding this case, the Supreme Court relied upon its earlier decision in the case of Sh. Rahmatullah v. The Deputy Settlement Commissioner, Centre 'A', Karachi etc. noticed already.

15. In my view, the above judgments are not relevant in the circum stances of this case. In the instant case, 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.

16. A somewhat similar situation arose in the case of Mst. Bibi Jan etc. v. Miss R. A. Money etc. PLD 1961 S C

69. The question arose in that case whether the Government could issue a notification under section 7 (2) of the North West Frontier Province Pre‑emption Act, 1950 so as to affect the right of pre‑emption in respect of a sale that took place prior to the date of the notification. Subsection (2) of section 7 of the N.‑W. F. P. Pre‑emption Act, 1950 was in the following terms:‑ "The Provincial Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre emption shall exist." This Act was passed on 15‑3‑1950. On 7‑11‑1951 in exercise of the powers conferred by this enactment a notification was issued in the name of the Governor of the Province in these terms:‑ "In exercise of the powers conferred by subsection (2) of section 7 of the North‑West Frontier Province Pre‑emption Act, 1950, the Governor is pleased to declare that no right of Pre‑emption shall exist in the Municipal area of Abbottabad from the date of the enforcement of the said Act."

17. The validity of the notification was attacked on the ground that it operated with retrospective effect, namely, from the date of the enforcement of the Act itself viz. 15‑3‑1950, whereas the notification itself bore the date 7‑11‑1951. This argument was repelled and the Supreme Court observed that although ordinarily a notification, issued under statutory powers, should be deemed to come into effect on the date when it is published and not from anterior date but this was not a universal rule. It was then observed :‑ ". . . But whether it should have any retrospective or retroactive effect would depend entirely on the terms of notification itself and the statutory mandate behind it." On this view of the matter it was held that the right of pre‑emption in respect of the sales that took place prior to the date of notification would be effected by the issuance of the notification.

18. This judgment of the Supreme Court appears to be more apposite in the circumstances of the present case than the judgments relied upon by the counsel for the petitioners. 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. A careful consideration of the two judgments of the Supreme Court relied upon by the learned counsel for the petitioners also do not lay down any contrary rule. In Sh. Rahmatullah's case the observation is:‑ "It is, of course, settled law that power given by a statute to act by notification with prospective effect as in section 3, cannot be effectively exercised with retrospective effect." Thus their Lordships have observed that the provisions of section 3 were prospective in effect, and, therefore, the attempt to give retrospective effect to a notification issued under the terms of the aforesaid section 3 was not possible in view of the prospective nature of the provisions of the said sec tion

3. Similarly, in the case of Sh. Fazal Ahmad the Supreme Court reitrated its dictum made in the earlier case of Sh Rahmatullah which, as explained already, dealt with a different situation. ' Accordingly, the observations in Fazal Ahmad's case to the effect that:‑ "However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of its function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation." must be understood in the light of the entire discussion made above that the rule‑making authority cannot normally make rules or issue notifications under a statute so as to give them retrospective effect, unless the statute itself expressly grants such a power.

19. This brings me to the question whether the notification in question can be considered to be a rule made under clause (4) of section 75 of the ‑anal and Drainage Act, 1873? Almost an identical question came up for consideration in the case of Hamid Khan Durrani etc. v. Government of West Pakistan P L D 1975 Lah.

237. In that case, a notification issued by Order of the Governor of West Pakistan, by the Secretary to Government, West Pakistan, Irrigation and Works Department, under section 75 read with motion 36 of the Canal and Drainage Act, as is the case here, was challenged and the question in that case also was whether the said notification .amounted to a rule? The question was answered as follows:‑ " . The impugned notification was issued by the Governor of West Pakistan who was the rule making authority. It has been published in the official Gazette and has all the characteristics of rule as explained in Pakistan v. Abdul Hamid (P L D 1961 S C 105) and Pro vince of West Pakistan v. Din Muhammad (P L D 1964 S C 21). It must, therefore, be regarded as a "rule" for the purposes of section 36 of the Act. The impugned notification having been found to be of the nature of a "rule" within the meaning of section 36 of the Act, the liability of the petitioners to pay the additional occupier's rate at the rate mentioned in the said notification cannot be questioned." The position in this case is identical. It may be mentioned that in addition to the judgments of the Supreme Court noticed in the above quotation, for reaching the conclusion that the notification in question could be assimilated to a rule, the Supreme Court has expressed the same view in its recent judgment, in the case of Faiz Ullah Khan v. Government of Pakistan P L D 1974 S C 291 wherein two other judgments, in addition to those referred to in the extract quoted above have been referred to.

20. The conclusion is that the impugned notification can be treated, to be a "rule", and, further, that it does net suffer from any legal defect nor is its validity open to question.

21. This does not, however, conclude the matter; because besides the purely legal questions examined above some questions of a factual nature also require attention. It was submitted that in certain areas included in the project area either no water at all was supplied or if supplied it was brackish water which was not of any use for cultivation, in fact, harmful for it, while in other areas, although tube‑wells had been installed, they did not function at all or functioned only for a limited time. It was submitted that in such cases the enhanced occupier's rate could not be charged.

22. The learned Advocate‑General submitted that although on the legal plane the validity of these submissions was debatable, the Government bad, as a measure of grace, agreed to charge only the single occupier's rate in SCARP‑1 and 11 in respect of tube‑wells which were abandoned due to bore damage or because they were pumping out brackish water. Similarly, where tube‑wells were not installed by the Government in the first instance. double occupier's rate was not to be charged. Two notifications bearing No. 2/200‑SO (Rev.)/73 dated 1‑8‑1973 issued by the Government in implementation of this decision were also produced before me. The tables attached to these notifications indicate the details of the areas and the crop period for which single occupier's rate is to be charged. Certain charts were also presented before me setting forth the position of the respondents, in answer to the stand taken by the petitioners in their writ petitions. In these charts, the numbers of the tube‑wells and scheme involved in the writ petitions in question, the dates of closure of the tube‑wells, the crop from which the single occupier's rate was notified, the reasons for closing the tube‑wells. and the notifications issued by the Government on the subject mentioned above, have been detailed.

23. Counsel for the petitioners claimed that these charts did not accurately reflect the position on the ground, The learned Advocate‑General conceded that as the Government had agreed to charge only single occupier's rate in the areas where the tube‑wells were not installed, or if installed had stopped functioning (as from the said date), or where brackish water was supplied the petitioners whose case fell within the purview of the above situations could apply for being charged single occupier's rate only and if their contention was found to be correct, the necessary adjustment would be made.

24. To avoid difficulties in the implementation of the above decision, the following procedure was agreed upon. The petitioner claiming that he was liable to pay the single occupier's rate only may apply to the Divisional Canal Officer concerned, setting out his claim in his petition. If the claim is admitted to be correct, the D. C. O. concerned should pass orders accord ingly. If not, he shall summon the claimant and after giving him an opportunity of being heard and causing such inquiries to be made as are considered necessary by him in order to ascertain the factual position pass a speaking order in connection with the claim of the said claimant

25. The overall result is that these petitions partly succeed. Since the success is divided, the parties shall bear their own costs. S. Q. Order accordingly