P L D 1975 Lahore 237 (PLP)

By these writ petitions the charge of Rs. 14.20 per acre in addition to the occupier's rates prescribed in the Schedule already being paid by them, is questioned.

3. The main contention raised is that different rates are prescribed for different crops in the Schedule of occupier's rates notified under rule 21 of the Canal and Drainage Rules in accordance with the requirement of water for each crop. But in the instant case the flat rate of Rs. 14.20 is fixed per acre. in addition to the above-mentioned occupier's rate. The prescription of the flat rate, it is argued, is against law, besides being arbitrary and unfair. In support of this contention it is submitted that under rule 21 of the Canah and Drainage Rules it is laid down that "the charge for the use of water shale be made on the area irrigated at the rates specified in the Schedule for the lime being in force." The Schedule for the time being in force was the revised Schedule of occupier's rates, 1965, wherein the rates payable on various kinds of crops on acre-wise basis has been prescribed. It is explained that the above basis for charging occupier's rates or in other words the reason for imposing differential crops rates is that the factor to determine the pitch of the rate should be the amount of water ordinarily required to ripen a particular crop. It is added that only a certain volume of water is needed to ripen a crop and the availability of additional water supply will not help in this process, indeed the extra supply might destory or damage the crop. Thus the only advantage to be gained by the additional supply of water will be to stake cultivation of additional area possible. In this way more acreage would come under crops and on the aforementioned further acreage, occupier's rates .can be charged for different crops, cultivated in the aforementioned additional area, in accordance with the revised Schedule.

4. In support of these submissions, the learned counsel for the petitioner ,drew my attention to Part V of the Rules, starting from Rule 21, which deals with the water rates, in order to show that the criterion on which water rates .can be charged is the basis of the crop sown in the area under cultivation and that the prescription of a flat rate is not contemplated by the Rules. Furthermore, the basis of the new levy is most arbitrary and unreasonable inasmuch as occupiers of land, under the Schedule, who are cultivating sugarcane are liable to pay Rs. 24 per cropped acre while occupiers of land cultivating Baira, grams and pulses, are liable to pay Rs. 4.80 per cropped acre. However, under the impugned notification both will be called upon to pay Rs. 14.20 per cropped acre, which is most unreasonable. Reliance was also placed on the observations of the Supreme Court in M. Abdul Bari and others v. West Pakistan Soil Reclamation Board, Lahore and others (1) where their Lordships observed that "the imposition of a flat rate on all culturable lands, whether irrigated or not, would be bad under section 36 of the Canal .and Drainage Act which only makes the occupier liable if he accepts the water".

5. It may be mentioned in passing that in the writ petitions a further .contention was raised that the additional levy was being levied with retros pective effect and that this was contrary to law. During the hearing of these cases this contention was not pressed because it was asserted on the side of the respondents, without any contradiction, that the charge had been levied only after Rabi 1967-68 and not before. Thus the questions that fall for determination are whether the impugned notification is lawful and if so, is it so manifestly unjust as to be struck down on the ground of unreason ableness.

6. The levy of occupier's rates is authorised by section 36 of the Canal and Drainage Act. It provides as follows :- "The rates 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. A rate so charged shall be called the occupier's rate."

7. Section 3 which is the interpretation clause of the Act, defines the ,canal, inter alia as follows "(1) Canal includes-- (a) all canals, channels, tube wells and reservoirs constructed, maintained (1)PLD1966SC451 or controlled by the Provincial Government for the supply or storage of water : (A). (c) . (d) .

8. Sub-clause (2) defines "watercourse" as follows t- "(2) 'watercourse' means any channel which is supplied with water from a canal, but which is not maintained at the cost of the Provincial Government and all subsidiary works belonging to any such channel." A.xordingly even private channels, maintained by the private owners :L private lands are included in the definition of "watercourse" and, therefore., must be regarded as a part of a canal. Reading the above-mentioned two clauses together, the inference is irresistible that tube-well water being supplied through any watercourse is canal water within the meaning of section 36 of the Act. Any occupier of land accepting canal water is liable to be charged water rate or occupier's rate in accordance with the charges determined by the Rules to be made by the Provincial Government.

9. Learned counsel for the petitioner argued that though they were accepting the canal water from the Haveli Canal, but after the Tube-well Scheme was put into force, it was necessary that acceptance from them for the additional supply of tube-well water should have been obtained before the petitioners could be saddled with the liability of paying a further charge imposed by the impugned notification. In support of this contention three provisions of the Act were referred to, namely section 5 of the Act which provides for the issuance of a notification by the Provincial Government when water is to be supplied for public purposes ; Section 16, which lays down .- "Any person desiring to use the water of any canal may apply in writing to the Divisional or Sub-Divisional Canal Officer of the division or sub-division of the canal from which the watercourse is to be supplied, requesting such officer to construct or improve a water course at the cost of the applicants." and to section 31, which states :- "In the absence of a written contract, or so far as any such contract does not extend, every supply of canal water shall be deemed to be given at the rates and subject to the conditions prescribed by the rules to be made by the Provincial Government in respect thereof." On the basis of these provisions, it was sought to be argued that demand is contemplated for the supply of water and payment is made for the water asked for, such a contract cannot be extended unilaterally by the Provincial Government, and if further supply is to be provided the acceptance of the user is necessary. In this case the petitioners are not desirous of using the tube-well water.

10. I am afraid that this argument cannot be accepted. The occupier o land may accept supply of canal water, and this will also include supply of tube-well water or refuse to accept any supply. There can be ho partial acceptance of the canal water. The law, as it stands, allows-the petitioners either' to accept the canal water or to decline to receive it. It ha already been seen that tube-well water is canal water and consequently, unless the petitioners decline to receive canal water for purposes of irrigation it is not possible for them-to refuse to pay the rates determined in accordance with the Rules framed by the Provincial Government for supply of canal water.

11. This brings me to the question whether the impugned notification can be regarded as rule made by the Provincial Government in the relevant record. Under secion 75 the Provincial Government has been authorised to make Rules from time to time to regulate, inter alla, 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." Under section 76 such rules, alterations and concealments, in order to have the force of law, require publication in the official Gazette. The impugned notification has been issued in exercise of the powe conferred by section 75 read with the provisions of section 36 of the Act. It has been published in the official Gazette and, therefore, has the force of law.

12. Learned counsel for the petitioners submitted that the impugned notification cannot be treated as a rule because it has not been so stated, nor has any number been assigned to it, nor does it in terms alter or cancel rule 21 of the Canal and Drainage Rules. Hence it is not a "rule" within the meaning of section 36 of the Act and that the levy of occupier's rate, notwithstanding the said notification, can only be made in conformity with the provisions of rule 21 aforesaid and not under the aforesaid notification. 13. 1 do not find force in the above contention. 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 Province of West Pakistan v. Din Muhammad (P L D 1964 S G 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 same view, in somewhat similar circumstances, has been taken in Inayat Ullah v. Province of West Pakistan (P L D 1971 Lah. 482) and Muhammad Alam v. Province of West Pakistan (1972 S C M R 152). 14. --As for the submission that levy can only be made according to the rates prescribed in the Revised Schedule issued under the provisions of rule 21 the same overlooks from consideration the circumstance that in the impugned notification it has been clearly stated that the occupiers of land shall be charged, in addition to the occupiers rates prescribed for Havell Caw, in Schedule 1, the further amount of Rs. 14.20 per acre in respect of the areas irrigated by the Multan Grow More Food Tube-well Scheme No.

1. As the petitioners are admittedly accepting canal water and the above further rat payable for occupiers accepting canal water, has been fixed by a rule framed by the Provincial Government, the petitioners are, in law, bound to pay it. The ratio of the judgment of the Supreme Court in M. Abdul Bari v. West Pakistan Soil Reclamation Board (P L D 1966 S C 451) is not attracted in the circumstances o this case because it was held therein that the levy of the impugned flat rate was not in conformity with the provisions of section 36 of the Canal and Drainage Act, which is not the case here.

15. Coming to the question of the unreasonableness of the impugned notification, the submission, as already noted, is that occupiers of land cultivating cash crops, such as sugarcane and who are liable to pay Rs. 24 per cropped acre, as per the Schedule, have been put at par with cultivators of such modest crops as grams and pulses, who under the Schedule are liable to pay Rs. 4.80 only per cropped acre on account of the flat rate of Rs. 14.20 per acre imposed on all occupiers of land falling within the Scheme Area The learned Assistant Advocate-General appearing on behalf of the respondents, on the other hand submitted that occupiers of land in the Scheme area have been enormously benefited by the introduction of the Tube-well Scheme. According to him the non-perennial channel which was formerly flowing for six months in a year has been converted into a perennial channel flowing throughout the year and to meet the shortage of canal water supply the tube well water is supplied during the currency of both the Bab! and Khar of food crops and this additional supply through tube-wells is designed to achieve the maximum produce of food crops. The intensity of irrigation which was 60 p.c. formerly, has been raised to 100.50 p.c., and water-logging has been controlled. The imposition of Tube-well levy is accordingly being charged for the additional service that is being provided by way of additional supply from Tube-wells and the levy has been worked on the basis of running, tubewells on no profit and no loss basis and is simply to defray the costs for maintaining the tube wells in an operational condition and the additional occupier's rate that has been prescribed in the impugned notification is neither oppressive, exorbitant or unreasonable.

16. Learned counsel for the petitioners have not disputed the fact that the additional supply of water has resulted in increase of production of crops, although they do not accept that the non-perennial channel has become perennial. Nor has it been denied that the additional occupier's rate is in~ excess of the costs being incurred to keep the Tube-wells in an operation condition. The only criticism is that the system of differential crop rates laid down in the Schedule should have been followed, as it is more fan, equitable and reasonable. It has already been held that the additional levy is not ultra vires of the provisions of section 36 of the Act and if the petitioners wish to accept canal water, they are bound to pay this additional levy also. So far as the wisdom underlying the imposition of a levy on flat rate is concerned, this is a matter which should be taken up with the Rule-making authority. In the case of Inayat Ullah v. Province of West Pakistan (P L D 1971 Lah. 482) the following pertinent observations occur at page 491 of the report .- "The assessment was sought to be avoided also on the ground that.it is harsh and-inequitable. This is hardly a question which could be gone into by us at this stage. It is one which could have been raised before the authorities. The impugned notification is unexceptionable and the pleas against it are imponderable." The saAe remarks apply to the plea raised before me, which is to a similar effect.

17. The result is that these petitions are found to be without merits. They are accordingly dismissed, but the parties are left to bear their own costs. Petition dismissed.