Jawala Ram Vs. State of Pepsu 
INSC 191 (27 April 1961)
GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.
AYYANGAR, N. RAJAGOPALA
CITATION: 1962 AIR 1246 1962 SCR (2) 503
CITATOR INFO :
R 1984 SC1194 (26)
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.
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
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
Maqbool Hussain's case,  S.C.R. 730,
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 43 of 1958.
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 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 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)  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