P L D 1956 Lahore 490 (PLP)

Mokha in person, KAIKAUS, J.--‑Hetam petitioner was convicted under section 70 of the Northern India Canal and Drainage Act and sentenced to pay a fine of Rs. 30 or in default of payment to undergo simple imprisonment for a period of one month. The case against him was that he had demolished a water course running through his land which irrigated Killas Nos. 21, 22, 23/1 and 23/2 of square No. 46 in Chak No. 426 belonging to the father of Mokha respondent. This case has been reported by the learned Sessions Judge, Lyallpur, with the recommendation that the conviction be set aside because the channel in dispute, which is alleged to have been demolished, is not one which was maintained by the Government. It appears from the evidence that for about twenty years past, the father of Mokha respondent had been using this channel, which passes through the fields of the petitioner, for carrying canal water to his land. It is further clear that this water‑channel is not being maintained by the Government, and the question is whether under the circumstances the demolition of this water‑channel constitutes an offence under section 70 of the Northern India Canal and Drainage Act. The relevant clauses of section 70 run :‑ '

70. Whoever, without proper authority and voluntarily, does any of the acts following, that is to say :‑ (1) damages, alters, enlarges or obstructs any canal or drainage‑work ; (2) interferes with, increases or diminishes the supply' of water in, or the flow of water from, through, over or under, any canal or drainage‑work ; shall be liable, on conviction before a Magistrate of such class as the Provincial Government directs in this behalf, to a fine not exceeding fifty rupees, or to imprisonment not exceeding one month, or to both." According to this section, anyone who either" demolishes a canal or interferes with the supply of water in a canal commits an offence. Although it is stated that the petitioner has demolished the channel, his real purpose was to prevent the water from passing through his land, so that both the clauses mentioned above would apply if the water channel is a "canal". Canal is defined in section 3 of the Act as follows :‑ "

3. In this Act, unless there be something repugnant in the subject or context :‑ (1) canal include‑‑ (a) all canals, channels and reservoirs constructed, maintained or controlled by the Provincial Government for the supply or storage of water ; (b) all works, embankments, structures, supply and escape‑channels connected with such canals, channels or reservoirs ; (c) all water‑courses 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 (2) `water‑course' 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 It will be observed that 'water‑course' is also included in the definition of a canal. A water‑course is a water‑channel which is supplied with water from a canal but is not maintained at the cost of the Government. Apparently, therefore, the words of this definition would cover the present case. The water‑channel in dispute is being supplied with water from a canal and it is also not being maintained by the Provincial Government. Learned counsel for the petitioner has, however, relied upon the case repeated as Hukman and others v. Emperor (1) wherein it was held that section 70 of the Northern India Canal and Drainage Act would be inapplicable to a water channel through which water was being carried unless (61 I C 717) the Canal Department either on their own or on application of a party, acting under section 21 of the Act, secured the right of passage of water for the purpose of irrigating through a canal, or (2) there was a private contract between the parties for allowing the water to pass,. or (3) an easement had been acquired. Although every water‑course "which is supplied with water from a canal is according to subsection (2) of section 3, a canal, it should be clear that this cannot have reference to any water‑channel which may have existed without any right and for howsoever short a period, If, for instance, an owner of land were to allow a person to take canal water through his land for two days, it would not imply that after the expiry of two days that water‑channel would still be a water‑course within the meaning of section 3 of the Canal and Drainage Act, and will attract the operation of section 70 if it is demolished or if the flow of water through it is interfered with. A 'water‑course' can refer only to such channels through which a right to take water exists. This right may have come into existence by virtue of section 21 or apart from it, but the right must be there. If this condition is satisfied the channel will be a water‑course and interference with it will be an offence under section

70. The attention of the learned Sessions judge does not seem to have been drawn to that part of the judgment in Hukman and others v. Emperor (supra), which refers to user of water course for twenty years or more and the acquisition of an easement. The learned Sessions Judge has not considered whether an easement has in this case been acquired. He does refer to the user of this channel "since the last twenty years or so" but without reference to its relevance to the point for decision. I may point out that under section 26 of the Limitation Act if a water‑course is enjoyed as of right and as an easement for a period of twenty years or more without interruption, a right to such passage of water is acquired. I may also point out that such a right can also be acquired by immemorial user. In order to determine the guilt of the accused it was necessary to determine in the first instance whether the complainant had acquired a right for passage of canal water for obviously section 21 of the Northern India Canal and Drainage Act has not been resorted to in this case. The trial Court has not decided that question. There is no doubt that the matter is one which is more appropriate for a Civil Court to consider, but unfortunately this matter has to be gone into by a Criminal Court. Truly the finding of a Civil Court on this point would not be legally relevant, for the findings of a Civil Court as held in B. T(. Kashvap v. Emperor (A I R 1945 Lah. 23 (F B)) are irrelevant in a dispute with respect to the same matter in a Criminal Court. Under the circumstances I set aside this conviction and order a retrial in‑the light of what is stated above. The trial Magistrate will now go into the question as to whether there exists in the respondent a right to take water through the land of the petitioner. A. H. Retrial ordered.