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PETITIONER: JAWALA RAM

       Vs.

RESPONDENT: STATE OF PEPSU

DATE OF JUDGMENT: 27/04/1961

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR 1246            1962 SCR  (2) 503  CITATOR INFO :  R          1984 SC1194  (26)

ACT: Canal  Charges-Use  of water, if "offence"-Levy  of  special charges,  if amounts to "Penalty"--Northern India Canal  and Drainage Act, 1873 (VII of i873), s. 31-Pepsu Sirhind  Canal and Western jamuna Canal Rules (Enforcement and  Validation) Act (No.  IV Of 1954), ss. 3, 4-Sirhind Canal Rules, rr. 32, 33.

HEADNOTE: Certain persons were prosecuted but acquitted of a charge of having  damaged  a  canal.  Thereafter  the  canal  officers levied special canal charges on the appellants on the  basis of the conclusion that the villagers were responsible for  a cut  in the canal.  The High Court is missed the  appellants petition under Arts. 226 and 227 of the Constitution on  the ground that the case was covered by the case of Mukundi  Ram v.  The  Executive  Engineer,  decided  by  the  High  Court (LPA/FAO  NO.  58 of 1954), On appeal by special  leave  the appellants contended that ss. 3, and 4 Of the Pepsu  Sirhind Canal  and  Western  jamuna  Canal  Rules  (Enforcement  and validation) Act (No.  IV of 1954) are unconstitutional being in contravention of Art. 20(1) of the Constitution  inasmuch as  they have been subjected to a penalty greater than  that which  might have been inflicted under the law in  force  at the time of the commission of the offence. Held,  that  the use of water by the appellants was  not  an "offence"  and the levy of special rates under Rules 32  and 33  of  the  Sirhind  Canal Rules read with  s.  31  of  the Northern  India Canal and Drainage Act, i873, for  such  use was  not  the imposition of a "penalty" for  an  offence  as contemplated under Art. 20(1) of the Constitution. Maqbool Hussain’s case, [1953] S.C.R. 730, referred to.

JUDGMENT: CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 43 of 1958.

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Appeal  by special leave from the judgment and  order  dated April  11,  1956, of the former PEPSU High  Court  in  Civil Misc.  Case No. 173 of 1955. Naunit Lal, for the appellants. S.   M. Sikhri, Advocate-General, Punjab, Gopal Singh and D. Gupta, for the respondents. 504 1961.  April 27.  The Judgment of the Court was delivered by DAB  GUPTA,  J.-The  51 appellants all  of  whom  belong  to village  Simla,  Tehsil, Narwana, filed in  the  Pepsu  High Court  at Patiala a petition under Art. 226 and Art. 227  of the  Constitution  for relief against an order made  by  the Divisional  Canal  Commissioner,  Narwana,  for  payment  of certain water rates and Tawan.  It appears that on the night of  September 1, 1951, there was a cut on the left  bank  of Sirsa  Branch Canal.  Certain persons were prosecuted  on  a charge for having damaged the Canal but they were acquitted. Thereafter,  the Divisional Canal Officer, Narwana,  on  the recommendation of the Sub-Divisional Officer, Canal, Narwana made   an  order  levying  special  charges  against   these appellants.    On  appeal  the  Divisional  Canal   Officer, Narwana,  ordered in partial modification of the order  made by  the  Sub-Divisional Officer, the levy of six  times  the crop  rates on cultivated area and six times the charges  on uncultivated  area  and single bulk rate on water  store  of village  Simla.   This  levy was made on the  basis  of  his conclusion that the villagers of Simla were responsible  for the cut and joined hands for the common good. The  High Court dismissed the application by a  short  order stating that the points involved in this petition were fully covered by the decision of a Division Bench of the same High Court in Mukandi Ram v. The Executive Engineer (LPA/FAO  No. 58  of  1954) and that the counsel for the  petitioners  had therefore nothing to say in support of the petition and  did not  press it.  Against this order of dismissal the  present petition has been filed by special leave obtained from  this Court. Before  mentioning  the points raised by Mr. Naunit  Lal  in support of the appeal it would be convenient to refer to the provisions of law that require consideration. Section  31  of the Northern India Canal and  Drainage  Act, 1873,  which  admittedly applies to the Sirsa  Branch  Canal provides for the levy of water rates for 505 supply  of canal water taken in the absence of  contract  at the  rates  and subject to the condition prescribed  by  the rules to be made by the State Government in respect thereof. No  rules have however been made as regards the rates to  be charged  for  such  unauthorised supply of  canal  water  in respect of the Sirsa Branch Canal which was in the State  of Patiala.   Rules  had  however  been  made  by  the  ’Punjab Government  in  respect of the Sirhind  Canal  and  branches thereof as also the Western Jumna Canal and branches thereof as early as April 1873 and August 1878 respectively.   These rules  had been amended from time to time.  At the time  the Sub-Divisional  Officer  made  his  recommendation  and  the Divisional Canal Officer made his order these rules had  not been  extended  to the Pepsu.  It was when  the  appeal  was pending before the Commissioner that the Pepsu Sirhind Canal and  Western Jumna Canal Rules (Enforcement and  Validation) Act   No.  IV  of  1954  was  passed  by  the  Pepsu   State Legislature.    Section   3  of  this   Act   applied   with retrospective effect from August 1, 1948, the Sirhind  Canal Rules and the Western Jumna Canal Rules to the Pepsu  State. Section  4  provided that as from August 1,  1948,  anything

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done  or  any  action taken in  accordance  with  the  Pepsu Sirhind  Canal Rules or the Western Jumna Canal Rules  shall not  be  called in question in any  proceedings  before  any court  or  other  authority merely on the  ground  that  the Sirhind  Canal Rules or the Western Jumna Canal  Rules  were not  in force in the Pepsu State on the date on  which  such thing  was  done  or  such action  was  taken.   It  may  be mentioned that this Act replaced the Pepsu Sirhind Canal and Western  Jumna  Canal  Rules  (Enforcement  and  Validation) Ordinance, 1954, which had been made shortly before this. In  Mukandi Ram v. The Executive Engineer (1), on the  basis of  which  without further discussion the petition  in  this case  was  dismissed  the Pepsu High  Court  held  on  facts practically  identical with the facts of this case that  the levy  of  special  rates  by  the  Canal  Commissioner   was justified under Rule 32 and in any case (1)  LPA/FAO No. 58 of 1954. 506 under Rule 33 of the Sirhind Canal Rules read with s.  31 of the Act. The  main contention raised by Mr. Naunit Lal before  us  in support  of the present appeal is that s. 3 and s. 4 of  the Pepsu   Sirhind   Canal  and  Western  Jumna   Canal   Rules (Enforcement  and  Validation)  Act  No.  IV  of  1954   are unconstitutional being in contravention of Art. 20(1) of the Constitution.  Other points that he wanted to urge were  (i) that  the provisions of Rules 32 and 33 do not apply to  the facts  of the present case and (ii) that the  notice  served before the levy was made was not sufficient.  As however  it appeared clear to us that neither of these points was  taken before  the High Court we have not given him  permission  to raise  these points before us, in the circumstances of  this case.   Another  point that Rules 32 and 33 are  beyond  the scope of the rule-making provisions of the Act was mentioned by the learned counsel but was later abandoned. The only point for our consideration therefore is whether s. 3  and  s. 4 of the Pepsu Sirhind Canal  and  Western  Jumna Canal   Rules  (Enforcement  and  Validation)   Act,   1954, infringes the provisions of Art. 20(1) of the  Constitution. Art. 20(1) provides that no person shall be convicted of any offence  except for violation of a law in force at the  time of  the commission of the act charged as an offence, nor  be subjected  to a penalty greater than that which  might  have been  inflicted  under the law in force at the time  of  the commission  of the offence.  It is argued on behalf  of  the appellants  that the application by these sections of  rules allowing  the  imposition of special rates which  have  been imposed under the provisions of Rules 32 and 33 of the Pepsu Sirhind  Canal Rules, which could not have been  imposed  at the  time  the  water  was  used  is  bad,  as  thereby  the appellants  have  been subjected to a penalty  greater  than that which might have been inflicted under the law in  force at the time of the commission of the offence. This  argument  is based on the assumption that the  use  of water by the appellants was an "offence" and 507 that the imposition of an enhanced water charge under  Rules 32 and 33 read with section 31 of the Canal Act for such use was  "a penalty" for such an "offence".  This assumption  is clearly wrong.  "Offence" s as was pointed out by this Court in  Maqbool  Hussain’s  case (1) where  Art.  20(2)  of  the Constitution came up for consideration has not been  defined in the Constitution.  So under Art. 367 which provides  that the   General  Clauses  Act,  1897,  shall  apply  for   the interpretation of the Constitution the word "offence" in the

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several clauses of Art. 20 must be understood to convey  the meaning given to it in section 3(37) of the General  Clauses Act.   That section defines an "offence" to mean an  act  or omission  made punishable by any law for the time  being  in force. Punishment is the mode by which the State enforces its  laws forbidding  the  doing  of  something,  or  omission  to  do something.  Punishment may take different forms.  It may  be a  mere reprimand; it may be a fine; it may be whipping;  it may  be imprisonment-simple or rigorous; it may even  extend to  death.  But whatever the form, punishment is always  co- related  to a law of the State forbidding the doing  or  the omission  to do something.  Unless such a law exists,  there is  no question of any act or omission being made  "-punish- able".   Have we in the present case any law forbidding  the unauthorised user of the water which section 31 of the Canal Act provides will be charged at rates that may be prescribed by rules?  Quite clearly, there is none.  In providing for a charge  to  be made for use of water at rates  that  may  be prescribed  by rules the legislature is not prohibiting  the use  of water.  The word "unauthorised use" in  the  section does  not import any idea of prohibition.  The intention  of the law clearly is to obtain payment for water used; and the fact that the rates prescribed may be high cannot alter this position. We are therefore of opinion that the use of the water by the petitioners  was not an "offence" and the order for levy  of special rates for user thereof was not (1)  [1953] S.C.R. 730. 508 the  imposition of a penalty for an offence.  When the  Sub- Divisional  Canal  Officer  or the  Canal  Commissioner  was dealing  with  the matter they had to decide  whether  these petitioners had used water in an unauthorised manner and  if so  at what rates they should be charged for such  use.   In doing  this, they were not trying anybody for  any  offence; and the fact that special rates were imposed did not deprive these  rates  of their essential character of a  charge  for water used and did not convert them into any penalty for the commission of an offence.  There is therefore no scope  here for  the application of the provisions of Art. 20(1) of  the Constitution. The appeal is accordingly dismissed with costs.                                Appeal dismissed. 509