' On a complaint made by the Irrigation Partwari and endorsed by the Gardawar Irrigation, Naib Tehsilar Irrigation and the Special Tehsildar Irrigation, the Collector of the District Dera Ismail Khan, by his order dated 26-8-1968 followed by his order dated 23-11-1967, imposed a penalty of Rs, '7,017.95 on the residents of village Gara Mohabbat for unauthorized use of water, silting the land illegally and wasting the water of Nala Gumal. From this order an appeal was preferred to the Additional Commissioner on 10-9-1968 but the same was dismissed by him by order dated 7-9- 1969 holding it to be barred by time.
2. The Zamindars of village Gara Mohabbat through Hafiz Allahyar son of Sardar filed a representative suit in accordance with the provisions of rule 8 of Order I of the First Schedule to the Code of Civil Procedure, challenging the order of the Collector as upheld by the Additional Commissioner, by which the said villagers were required to pay the penalty. The suit was for a declaration that the orders of the Collector and that of the Additional Commissioner were patently wrong against law and constitution and the principles of natural justice and were consequently inoperative. An injunction was sought to restrain the Province of West Pakistan (now N.-W. F. P.) through the Collector of D. I. Khan from recovering the impugned amount from the Zamindars of the village.
3. In the plaint the impugned orders were questioned inter alia on the ground that they were passed behind the back of the affected persons and as such there was a violation of the rule of natural justice that "no one shall be condemned unheard". Impliedly the jurisdiction of the Collector in imposing the penalty was also questioned.
4. The province of West Pakistan (now N-W. F. P.) through the Collector of the District of D. I. Khan raised several objections but for the purposes of the disposal of the present petition, the objections relating to the jurisdiction of the civil Court, the limitation for filing the civil suit and the violation of the principle of natural justice that "no one shall be condemned unheard" alone are relevant. - 5. The learned Civil Judge, in whose Court the representative suit was lodged, decreed the suit of the villagers mainly on the ground that the villagers were not heard during the proceedings for imposition of penalty, and that since as such there was violation of the principle of natural justice, the impugned orders-:: were of no consequence. He granted the declaration and the injunction prayed for to the plaintiffs. The appeal filed by the Province of N.-W. F. P. Before the District Judge was dismissed in limine on the sole ground that there was violation of the principle of natural justice and that it was proved from record that the villagers had not been heard when the penal Proceedings were taken against them. The order of the Senior Civil Judge was passed on 18-6-1971 and the appeal was dismissed on 19-10-1972.
6. The Province of N.-W. F. P. Through the Collector has come up in revision petition, under section 115 of the Code of Civil Procedure, wherein the orders of the two Courts below have been challenged on several grounds but the main grounds on which the arguments have been addressed before me are the same which I have referred to above, namely, that of jurisdiction.
Limitation and the violation of the rules of natural justice.
7. Mr. Zaffar Abbas Zaidi, the learned counsel appearing for the petitioner, has first of all contended that the findings of the two Courts below that the villagers were condemned unheard and there was violation of the rule of natural justice are erroneous and consequently the Courts had no jurisdiction to adjudicate upon the matter which was in the exclusive jurisdiction of the Revenue Authorities. Reference was made to section 60 and subsection (21 of section 67 of the Punjab Minor Canals Act, 1905, (hereinafter referred to as the Act) wherein it is laid down that civil Court shall have no jurisdiction in any such matter in which the Revenue Court is empowered uncle the Act and that no suit shall lie against the State in respect of any thing done by the Collector in exercise of any power conferred on him by the Act. The learned counsel referred to subsection (2) of section 29 of the Act which is to the effect that the Provincial Government may by notification impose a special rate for water obtained or used without authority or in an/unauthorized manner. The relevant notification issued under the said subsection is No, 2918-REB dated 20-2-1942 which provides that water rate Re. 1 per kanal shall be levied on irrigators for illicitly using water from Nala Gumal Canal. The learned counsel for the petitioner contends that the imposition of special rate is authorized by the said notification issued under the statute and that since the levy of the rate is in the exclusive jurisdiction of the Provincial Government through the Collector, the civil Court by virtue of sections 60 and 67(2) of the Act has no jurisdiction to call in question the impugned action.
8. Mr. Zaidi did not deny that the jurisdiction of the Civil Court would ordinarily be attracted if the rules of natural justice are violated and the affected persons are condemned unheard, but he contends that since the villagers had chosen to go in appeal to the Commissioner they got an opportunity of being heard and, therefore, they cannot now complain that no opportunity of being heard was given to them. Reliance in this respect was placed on the case of Sardar Khan v, District Magistrate, Kohat (1) wherein it was held that when an opportunity of hearing is given to a party in appeal, such party could not voice grievance of not being fully heard in the Court of first instance.
This authority, in my view, is not on point inasmuch as the Additional Commissioner also did not afford full opportunity to the villagers of hearing and he dismissed their appeal mainly on the ground that it was barred by time. Reference was also made to the case of Muhammad Shafi v.
Abdur Rashid (2) wherein the same view was taken and it was held that when a party went in appeal before the Additional Rehabilitation Commissioner against the order of the Deputy Rehabilitation Commissioner where there was proper opportunity of being heard, it could not take advantage of omission of the Deputy Rehabilitation Commissioner to afford an opportunity of hearing as the same was of no significance. This authority too I shall distinguish from the circumstances of the present case inasmuch as the Additional Commissioner did not hear the villagers on the merits of the case but dismissed their appeal in a slipshod manner without discussing B the merits mainly on the ground that the appeal was barred by time. In the case of Nabi Ahmad Shah v. Mir. Wazir Muhammad Abdullah (3) the Supreme Court had held that by giving proper hearing at the appellate or revisional stage may cure in appropriate cases where no opportunity was given in the first instance but where some positive rule has been infringed, the defect of giving no opportunity of being heard is not curable on the ground that the party has been heard by the appellate or the revisional authorities. In the present case since the Additional Commissioner has not gone into the merits of the case but has refused to exercise jurisdiction on the question of limitation, only casually mentioning that there was no illegality or irregularity, it cannot be said that the affected persons were given opportunity of being heard and the rule of natural justice that "no one shall be condemned unheard" was not violated.
9. In view of the above finding, therefore, I am of the firm opinion that the civil Court had jurisdiction in the matter and has rightly annulled the orders of the Collector on the ground that the affected persons were not given opportunity of being heard.
(1) PLD 1970 Pesh. 1 (2) P D 1962 Lah. 254 (3) 1976 SCMR 132
10. The learned counsel for the petitioner then raised the question of limitation and contended that the two Courts below have wrongly held that the suit of the respondents was within time in view of Article 120 of the First Schedule to the Limitation Act, 1908. He rightly pointed out that the said Article would be applicable only when there is no other provision in the Limitation Act, 1908, or in any other law for the time being in force. Reference was made to Article 14 of the First Schedule to the aforesaid Act which provides the limitation period of only one year for setting aside any act or order of an officer of the Government in his official capacity. It was contended that since the villagers were challening the orders of the Collector and the Addititional Commissioner who are the officers of the Government, they should have brought the suit within one year of the date of last order passed by the Additional Commissioner on 7-5-1969 and that it the time for obtaining the copy is excluded then the last date for filing the suit was 7-5-1970 whereas the suit was filed on 11- 7-1970.
11. I have examined the file of the case and f I find that the date of institution shown as 11-7-1970 is the date on which the case was transferred from the Court of Civil Judge to the Court of Senior Civil Judge. In fact the suit had originally been filed in the Court of Civil Judge on 10-9-1969 and, therefore, even if Article 14 is applicable the suit falls within time.
12. The learned counsel for the respondent has, however, contended that Article 14 is not applicable in the present case inasmuch as the Collector acted without jurisdiction and it cannot be said that his order was the one as contemplated by Article 14 ibid. The learned counsel pointed out that subsection (2) of section 29 under which the Notification of 20th February, 1942, had been issued is wholly irrelevant for the purposes of the decision on the issue before the Court inasmuch as the said notification refers to the use of water without authority and in an unauthorized manner by specific persons. In the instant case, it was stated the proceedings had not been taken against specific persons but the entire village had been involved and that such an action could not be taken under aforesaid notification.
13. I have gone through the text of the Act and it appears to me that subsection (2) of section 29 of the Act can be invoked when the water is used by a person without authority or in an unauthorized manner. The water rate is to be levied in such cases on those persons who use the water and not on the entire village. All persons chargeable in respect of water can be held jointly responsible under section 31 of the Act and not under section 29(2), the notification issued where under had been invoked. Section 31 of the Act refers to the water supplied through a "Watercourse" and not to the water supplied through a "Canal". The First Schedule to the Act shows that Nala Gumal, the water of which was used without authority and in an unauthorized manner, is a "Canal" and not a "Watercourse". Watercourse has been separately defined in section 3 (xii) of the Act as a channel which is supplied with water from a canal and which is maintained at the cost of the irrigators, and includes all subsidiary works connected with such channels except the sluice or outlet through which the water is supplied to such channels. No doubt the word "Canal" used in the Act by virtue of section 3 (ii) includes "Watercourse" but the word "Watercourse" does not include the word "Canal".
In the scheme of the Act where the watercourse is maintained by the villagers, the unauthorized use of the water of such watercourse is a penal act which under section 31 of the Act makes liable all the persons concerned to pay the water rate irrespective of the fact that they had or had not used the water of the Watercourse. The entire class of irrigators cannot be subjected to levy of water rate by virtue of the notification issued under section 29(2) of the Act ; for that provision contemplates the use of water by identified persons from a "Canal". Since in the present case the persons who used the water were not identified, the provisions of the notification issued under section 29(2) are not attracted and if any action was to be taken, that could be taken under section 31 of the Act. Under that section, however, the use of the "water of canal" as such is not contemplated but the use of water of a "watercourse" alone is to be taken into consideration. In view of this fact, therefore, it cannot be said that the order of the Collector was an order contemplated under Article 14 or the Limitation Act, 1908, because an order without jurisdiction is no order in the eye of law and if such an order is challenged then the residuary Article 120 of the Second Schedule to the Limitation Act, 1908, would be applicable. In any case whether Article 14 or Article 120 ibid is applied the suit of the respondents falls within time and cannot fail on the question of limitation.
14. In view of what I have said above, I hold that the order of the Collector was without jurisdiction not only for the reason that the affected persons were not heard but also because he could not initiate action by virtue of powers derived under the notification of 20th February, 1942, against the whole community when the breach is made in respect of a canal H by unidentified persons. Action could be taken under. Section 31 of the Act but since in the present case 'unidentified persons' did not use the water of the "watercourse" but used the water of "Canal", that section is not attracted.
The impugned orders being wholly illegal have rightly been declared by the two Courts below to be of no consequence and the petitioner has rightly been restrained from recovering the amount from the respondents. I uphold the judgments and decrees of the two Courts below and dismiss this petition with costs.