P L D 1966 Supreme Court 451 (PLP)

HAMOODUR RAHMAN, J.‑This appeal,. by special leave, is directed against the judgment and order of a Divisio4 Bench of the High Court of West Pakistan dismissing a petition filed under clause (4) of Article 2 of the Laws (Continuance in force Order, 1958, to challenge the validity of the imposition of an annual fiat water rate of Rs. 22 per acre on all culturable land. A irrespective of whether the area is brought under cultivation or not. This levy was purported to be made under a scheme called the Jaranwala Reclamation Scheme framed under the provisions of the Punjab Soil Reclamation Act, 1952, and sanctioned by the Government of West Pakistan by its Notification No. 3/7/RGWD / 50‑VIII (1)/57‑59, dated the 29th January 1959. The legality of the levy was, challenged on, in inter alia, the grounds that it was ultra vires the powers of the Punjab Soil Reclamation Board constituted under the said Act of 1952 and that it was unjust and inequitable, as it sought to levy the rate even on lands which remained unirrigated and uncultivated and as the water supply from tube‑wells was not always fit for irrigation. The contention of the appellants appears to have been that the Soil Reclamation Board being a statutory body set up under the Soil Reclamation Act, 1952, had only such powers as were derivable from the said Act. Hence, since the Act of 1952 itself contained no provision for the levy of any water rate, the Board could not purport to impose such a rate. The water irate, according to the appellants was chargeable only under section 36 of the Canal and Drainage Act, 1873, from "such occupiers as accept the water" and the rate so charged was called "the occupier's rate." The levy of this rate was to be in accordance with the procedure laid down in the latter Act and not otherwise, The Canal and Drainage Act being further mare a Central Act, which extended to the whole of the Punjab, could not be treated to have been superseded by the Provincial Soil Reclama tion Act of 1952, particularly, since the latter contained no provision contrary to the provisions of section 36 of the former Act. The power claimed by the Reclamation Board was, therefore, clearly not derivable from the provisions of the Soil Reclamation Act. Indeed, where by the provisions of the Soil Reclamation Act it was intended to supersede the provisions of the Canal and Drainage Act, it had been expressly so provided, e.g. in clause (xx) of section 17 of the Soil Reclamation Act it is specified as to what the Board may do "notwithstanding anything contained in the Canal and Drainage Act, VIII of 1873". On the other hand, the Board and the Government of West Pakistan, which was later added as a respondent to the petition, both maintained that since the Canal and Drainage Act of 1873 dealt only with the supply of canal water and not tube‑well water, the said Act was not applicable and the Soil Reclamation Board had all the necessary powers by implication to implement its scheme including; if necessary, the power to levy the impugned rate under clause (xix) of section 17 of the Soil Reclamation Act read with section 21 thereof. Both the Government and the Board also maintained that the levy of the rate was, in fact, under the Canal and Drainage Act, in the sense that the Board purchased the water from the Irrigation Department and recovered from the land‑holders what was payable to the Irrigation Department. It was also denied that the levy was either unjust or inequitable. A Division Bench of the High Court took the view that since the Canal and Drainage Act did not concern itself at all with the supply of tube‑well water and the scheme framed under the Soil Reclamation Act provided for the supply of both canal and' tube‑well water, the rate imposed under the scheme was outside the scope of the Canal and Drainage Act. In any event, the levy was, in its opinion, valid, as it appeared to be authorised by the provisions of clauses (xvi), (xix) and (xx) of section 17 of the Soil Reclamation Act. The levy had, it was also held, been made in furtherance of the objective of the Act, namely, the reclamation and improvement of land by elimination of Sem and Thur and, as such, it could not be expected that the Board would be capable of performing this service without levying any charge for it. The petition was, accordingly, dismissed. Leave was granted in this case to consider whether the levy of the flat rate was within the powers of the Soil Reclamation Board. To determine this point it is necessary to examine the provisions of the Soil Reclamation Act. The object of the Act, as set out in its preamble, is to "make provision for the speedy reclamation and improvement of the areas damaged by Thur and Sem and for preventing further damage". The Act extended to the whole of the Punjab and was to come into force at once. But the provisions of Chapters IV to VI thereof were to apply to such areas and from such ‑date as were specified in a notification issued under section

27. It was contemplated by section 3 of the Act that the duty and power of carrying out the provisions of the Act were to be vested in a Board to be set up for that purpose, and the Board when so set up was to be a body corporate having a common seal and a perpetual succession. Sections 4 to 9 dealt with the constitution of the Board and its Committees, their functions and their meetings. Sections 10 and 11 dealt with the appointment of officers and servants of the Board and made provision for the punishment, promotion and leave of such officers. Sections 12 to 16 dealt with other matters which are not relevant for our present purposes. Section 17, which is in Chapter IV, deals with schemes. It gives to the Board the power to frame a scheme for the reclama tion of any local area or part thereof or for prevention of the spread of Thur and Sem, and its various clauses expressly specify the matters which may be provided fox by such a scheme. It is not necessary to refer to all the said clauses, for, only three have been relied upon by the High Court and they are clauses (xvi), (xix) and (xx). These read as follows: ‑ "17. (xvi) Replacement of canal Water supply by tube‑well or open well in part or whole. (xix) All other matters which the Board with the approval of the Government or the Government may deem necessary to promote the general efficiency 'of a scheme or for the reclama tion and improvement of any local area. (xx) Notwithstanding anything contained in the Canal and Drainage Act, VIII of 1873. to provide for, in a local area‑ (a) the improvement, alteration, extension or curtailment of any water course; (b) the amalgamation or separation of any irrigation chak; (c) the transfer of any area from one source of irrigation to another ; (d) the temporary increase or decrease of water allowance to any area or total curtailment of water supply ; (e) the alteration, amendment or cancellation of any order already in force regarding the distribution of water on any water course or the mutual rights or liabilities in respect of the use, construction or maintenance of a water course or the issue of afresh order superseding any existing order or mutual agreement; (f) the prohibition of growing of any crops or laying down any specific crop rotation; (g) the application of any type and quantity of manuring whether green, artificial or farm yard; and (h) the construction of any field drains and drainage works." Sections 18 to 20 lay down the procedure for the framing of a scheme. When such a scheme` is framed, it has to be submitted to Government and the Government under section 2.1 has the power to sanction the scheme with or without modifications, or refuse to sanction the same or return for further re‑consideration any scheme submitted to it. Where the Government sanctions the scheme, it has under section 22 to announce the fact by notification and only when such a notification has been made the Board acquires the power to, execute the scheme. In the present case, the appellant maintains that the notifica tion of the 20th of January 1959, which announced the Government's sanction of the scheme, expressly stated that the sanction was conditional. The notification; inter alia, provided as follows "(6) Reclamation fee.‑The Reclamation fee under the Scheme will be Rs. 48 per acre, recoverable in eight half yearly instalments of Rs. 6 commencing from the third year of the commencement of reclamation operations. (7) Water Supply and water rates.‑The Irrigation Department will provide 170 tube‑wells of varying discharges to provide a total quantity of about 318 cusecs of water, in addition to the canal water supply, already available, to allow for a full supply factor of 150 acres to a cusec and the main Drainage system, subject to the arrangement that accounts in respect of the tube‑wells sunk under the Rasul Tube‑well Project are kept separate from those sunk under the Ground Water Development Programme. The expenditure in respect of installation and maintenance of tube‑wells will be borne by the Irrigation Department. The revenue in the form of water rates will also be credited to the Irrigation Department in the manner outlined in paragraph 30 of the scheme. Subject to final approval by Government the water rate will be Rs: 22 per culturable acre per year." It is unnecessary for the present purposes to refer to the provisions of sections 23 to 37 of the Act but it has to be mentioned that under section 38 the Board has been given the power to levy a reclamation fee, This section reads as follows:‑ "(38) Reclamation fee.‑(1) 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). (2) When by the execution of any scheme under this Act increase has actually taken place in the value of any land in the area comprised therein or the expenditure actually incurred on the execution of the scheme is in the opinion of the Board more than the increase or expenditure anticipated at the time of assessing the reclamation fee recovered under subsection (1), the Board may, before restoring the land levy and recover in respect of the land such further amount of reclamation fee as it may consider suitable. (3) In fixing the amount of reclamation fee to be charged in respect of any land or class of land, the Board shall also take into consideration the actual expenditure incurred or to be incurred on the execution of the scheme and the degree to which the land or any part of the land has or will be benefited thereby. (4) The Government may frame rules providing for: (a) the manner in which the demand for the reclamation fee shall be assessed and distributed on the land comprised in the scheme and the person or persons by whom the fee shall be payable; (b) the acceptance by the Board of a satisfactory and sufficient security in lieu of immediate payment of recla mation fee by an owner of land or any person interested therein; (c) the mode by which the reclamation fee shall be realised and the number of instalments to be allowed in this connection and the interest chargeable on balances outstand ing from time to time; and (d) the mode of preferring appeal from assessment by the Board and the authority to which the appeal shall lie." Then comes Chapter VII of the Act which deals with the finances of the Board. The provisions of this Chapter have been strongly relied upon by the appellant. We, therefore, propose to set out here the whole of it:‑‑‑ (40) Board Fund.‑‑(1) There ‑ shall be a fund to be known as `Board Fund' vested in the Board which shall be utilised by the Board to meet charges in connection with its functions under this Act including the salaries and other remunerations of the staff of the Board and the Tribunal and any officers and servants duly appointed under the Act. (2) All sums received by the Board shall be credited to the Board Fund. (41) Board to levy taxes.‑(1) The Board may, with the previous sanction of the. Government, levy on any local area or part thereof a tax to be known as `Land Improvement Tax' to implement various measures of reclamation: Provided that the Board may exempt any person or class of persons from the payment of whole or part of any such tax due from him or them on such conditions as it may impose. (42) Grants‑in‑aid.‑(1) The Government may allow any grantee to the Board for carrying out its duties under the Act. (2) Any local body may, and when so required by the Government shall, grant such amount of money to the Board as may be specified in the requisition. (43) Borrowing of money.‑The Board shall be deemed to be a local authority for the purpose of borrowing money under the Local Authorities Loans Act, IX of 1914, and the making and execution of any scheme under this Act shall be deemed to be a work which such Board is legally authorised to carry out. (44) Custody and investment of Board Funds.‑(1) In any place in the Punjab where there is a Government treasury or sub‑treasury, or a bank to which the Government treasury business has been made over, all moneys at the credit of the. Board shall be kept in such treasury, sub‑treasury or bank. (2) In places where there is no such treasury or sub‑treasury or bank, such money may be kept with a banker or person acting as a banker, who has given such security for the safe custody and repayment on demand of the sums so kept as the Government may in each case deem sufficient. (3) Nothing in the foregoing provision of this section shall be deemed to preclude the Board from investing any such moneys as are not required for immediate expenditure in any of the securities described in section 20 of the Trust Act, II of 1882, or placing them in fixed deposit with a bank approved by the Government. (45) Procedure on failure of the Board to repay loans.‑If any money borrowed under section 43 or any interest or costs due in respect thereof is or are not repaid according to the conditions of the loans the Government may itself make much payment and may attach the rents and other‑ income of the Board and thereupon the provisions of section 5 of the local Authorities Loans Act, IX of 1914 shall, with all necessary modifications, be deemed to apply. (46) Recouping of payments made by Government.‑The Government may further impose or increase a tax on the annual value of buildings of lands situated within the local area and enhance the rate of land revenue and occupiers' rates within the local area to such extent as may be necessary for the purpose of recouping a payment made by Government under section 45. (47) Payment by Government to be a charge on the property of the Board. All moneys paid by the Government under section 45 shall constitute a charge upon the property of the Board." Section 48 gives the Government the power to make rules and section 49 gives the Board the power to make bye‑laws. No rule or bye‑law having any bearing on the question of the right to levy the water rate has, however, been placed before us. None of the other provisions of the Act except section 70 is relevant for our present purposes. Under section 70 the Chairman or any person authorised by him has been given the power to recover dues through the agency of the Collector in the same way as an arrear of land revenue. It will be observed that in section 46 of the Act it has been specifically mentioned in what circumstances the "occupier's rates" may be recoverable and by whom. Now the "occupier's rates", as we have already indicated, mean under section 36 of the Canal and Drianage Act the rates to be charged for canal water supplied for purposes of irrigation to occupiers of land It will not, in the circumstances, be unreasonable to presume that these words have been used in the same sense in the later cognate Act. Where certain words have been given a statutory definition in one statute and the same words are used in a similar connection in a later statute then, in the absence of any contrary indication in the later statute, it may be presumed that the same meaning attaches to the said words. It would seem, therefore, that even under the Soil Reclamation Act the only way iii which the "occupier's rate" can be recovered is under‑ the provisions of section 46 thereof. It is difficult, therefore, to appreciate how in the face of such an express provision the High Court was able to read into section 17 an implied power to levy such a rate. The express enactment shuts the door to any further implication. Resort to implication was not proper in the face of the express, provisions of the said section

46. None of the clauses of section 17, upon their plain reading, appear to us to vest the Board with such a power as a necessary incident of the power of framing a scheme. The mere fact that the scheme may provide for the replacement of canal water by tube-well water, does not necessarily lead to the inference that the Board must thereby also be deemed to have been given the authority to levy a rate for the supply of such water for, no levy or imposition could have been made even in 1952, when the late Constitution was not in force, save by authority. of law. We are also unable to appreciate how the High Court could come to the conclusion that the Canal and Drainage Act could have no application to tube‑well water even when supplied through canals as in the present case. Section 36 of the Canal and Drainage Act talks of rates to be charged for canal water but nowhere in the Canal and Drainage Act has "canal water" itself been defined. In its ordinary sense it would, in our view, mean water supplied through a canal, for, a canal b5, itself cannot be the source of the water. The water must necessarily be derived from some other source. 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 of other natural collection of still water may be, applied or used for the purpose of any existing or projected canal or drainage work, but we have not been able to discover anything else 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. We see no reason, therefore, as to why section 36 cannot apply to any kind of water supplied through a canal: It is unnecessary, however 'to pursue this point any further, for, we are even to understand that the Act of 1873 has itself now been amended to include "tube‑well" water as well in "canal water". The relevant provisions of the scheme which deal with this question are to be found in paragraphs 28 and 30 of Chapter V thereof. The relevant provisions of these paragraphs read as follows:‑ "(28) Cost of canal and Tube‑well Supply.‑The canal supply is 237 cusecs, which may be taken from the Irrigation Depart ment at Rs. 1,500 per cusec on contract. The total value of canal water will be Rs. 3,55,

500. The tube‑well supply will also be taken from the same Department at the rate of Rs. 4,600 per cusec and the cost of 318 cosecs of tube‑well supply required for this Scheme would come to Rs. 14,62,

800. Thus, the totalcost of canal and tube‑well supply would be Rs. 18,18,

300. This supply was irrigate the total culturable area of 83,235 acres under the scheme. The rate of canal‑cum‑tube‑well supply per culturable acre thus comes to 18,18,300/83,235 = Rs. 22 per acre per year. It is recommended that instead of levying the water rates for each kind of crop as is the practice in the Irrigation Department, the water rates for the Scheme area should be on flat rate basis for the total culturable holding of each cultivator irrespective of whether the area is brought under cultivation or not. This method will eliminate the chances of fraud, concealment of irrigation and corruption. The water would also be used with maximum efficiency resulting in benefit to the crops and consequently to the land‑owners . . . (30) Assessment and Recovery of Water‑rates.‑The Irrigation Department will charge from the Soil Reclamation Board the amount of water rates for .the canal‑cum‑tube‑well water supply provided to the Scheme area on contract. The total amount will be communicated by the Divisional Canal Officers of the Land Reclamation Officer of the Soil Reclamation Board. The Land Reclamation Officer will supply to the Divisional Canal Officers concerned on the 31st October and the 31st March every year a list of the persons responsible, for the payment together with the amount chargeable from each. The amount remitted by the Board and payable by it will also be shown in the list. In other words, the Khatauni for water rates will be prepared by the Land Reclamation Officer and passed on to the Divisional Canal Officers for incorporation of Land Revenue and other cases and completion of proper Khatauni. The amount shall be recovered by the Revenue Authorities along with other Khataunis of the Divisions. The amount thus realised will be placed at the credit of the Irrigation Department by the Revenue Department under intimation to the Land Reclamation Officer of the Board from time to time." Paragraph 30 seems to indicate that the amount of the fiat water rate, though assessed by the Soil Reclamation Board, was to be recoverable by the Revenue Authorities along with other Khataunis of the Divisions and placed at the credit of the Irrigation Department under intimation to the Reclamation Board. This was also what was envisaged in the Notification of the 20th January 1959. But even so, it is clear that the imposition of a fiat rate on all culturable lands, whether irrigated or not, would still be bad under section, 36 of the Canal and Drainage Act which only makes the occupier liable if he accepts the water. The Government of West Pakistan, it appears, has also now, in spite of the decision of the High Court in its favour, revised its point of view, for, learned counsel appearing on behalf of the Government has placed before us a communication sent by the Secretary to the Chairman, West Pakistan Land and Water Development Board to the Advocate‑General. In this document it is stated that "the Canal and Drainage Act of 1873 has since been amended to include tube‑well water in the definition of canal water" and that "the Government has no intention now to levy a flat water rate. It has now been decided that the water rates in reclaimed areas will be levied varying according to crops and on area actually irrigated. Such a water rate will be levied under Canal and Drainage Act of 1873. The revised water rates in accordance with this decision will be notified shortly." On the basis of this communication the learned counsel for the Government has sought to contend that this appeal has become infructuous. The learned counsel for the appellants, however, points out that since the decision contained in this letter has not yet been notified and implemented, the position still remains unchanged and this appeal should be disposed of on its merits. We are in agreement with the learned counsel that the mere expression of opinion by the Government is not sufficient to alter the situation. Unless the decision is notified and put into effect the appellants are entitled to ask for a decision in the appeal. For the reasons given above we are clearly of the view that the 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. This appeal must, accordingly, be allowed with costs and a Mandamus will now issue to the Board to withdraw and/or cancel that portion of the scheme which purports to levy the impugned fiat water rate of Rs. 22 per acre on all culturable lands and the Board will be prohibited from recovering the same. The appellants will also be entitled to the costs of this appeal. K. B. A Appeal accepted