MUSHTAQ HUSSAIN, J.--A large number of Writ Petitions have been filed challenging the vires of Notifications (1) No, 2/72-S. 0. (Rev.)/65 dated 11-4-1966 and (ii) No, A & W-10(1)/64/372 dated 5-2- 1966 issued by the Government of West Pakistan whereby (i) "occupiers' rate" in respect of the area covered by the Salinity Control and Reclamation Project No, 1 comprising the sub-Schemes mentioned in column 2 of the table annexed to it has been ordered to be charged at double the occupier's rate prescribed for the Lower Chenab Canal except villages under sub-schedules and Upper Chenab Canal (as applicable to perennial canals) in Schedule I to the Government of West Pakistan, Irrigation and Communication and Works Department Notification No, 10/55/S. 0. VIII(I)/59 dated the 23rd November 1959 and (ii) a Reclamation fee @ Rs, 19 per acre has been levied on culturable commanded area comprised in the Reclamation Scheme mentioned in the Schedule annexed to it.
2. All these Writ Petitions, the number of which are appended at the end of this judgment shall be disposed of by this judgment.
3. The Soil Reclamation Board levied an Annual Flat Water rate of Rs, 22 per acre on all culturable land irrespective of whether the area is brought under cultivation or not. This levy was in respect of Jaranwala Reclamation Scheme. The levy of this flat rate was challenged, and in M. Abdul Bari and others v. The West Pakistan Soil Reclamation Board, Lahore and others, it was held 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. The levy was therefore held to be ultra vires and of no legal effect since by it a flat water rate1 had been prescribed irrespective of whether water was accepted by an occupier or not.
4. The Government of West Pakistan consequently withdrew the levy in respect of the entire area covered by the various Schemes under SCARP-I.
5. The impugned Notification issued by the Government in 1966 has enhanced the occupier's rate (water rate) to double the existing normal rates, in respect of the area covered by SCARP-I.
6. This levy has been challenged by the writ petitions before us on various grounds, . one of them being that certain tube-wells had to be closed down because it was found that they were pumping out brackish water which cannot be used for the purpose of irrigation and it was consequently claimed that there was no justification for the assessment and recovery of the enhanced occupiers rate when there had been no accretion to the water supply.
7. This argument was based on the assumption that the occupier rate had been doubled because the supply of water had been augmented by the availability of tube-well water. It was submitted that since the petitioners did not accept the water supplied by the tube-wells because of its being brackish and unfit for irrigation the water could not have been enhanced in their case.
8. The Soil Reclamation Board was succeeded on 1-7-1964 by the Land and Water Development Board as provided by Ordinance V of 1964. It would be proper, therefore, at this stage to narrate the genesis, history, progress and result of the Reclamation Scheme already referred to as SCARP-I.
9. The Punjab Soil Reclamation Act was passed in the year 1952 by the Punjab Legislature with a view to making provision for the speedy reclamation and improvement of the area damaged by sem and thur and for preventing further damage. Section 3 of this Act provides for the setting up of a Punjab Soil Reclamation Board and one was brought into being in due course. This Board prepared Schemes for implementation of the purpose of the aforesaid Act in the different areas.
One such scheme was known as the Salinity Control and Reclamation Project No, I which has commonly come to be known as SCARP-I. This Project went into full scale operation in 1962. It includes 12 contiguous scheme are as serving a gross area of 1.2 million acres. As a country with a marked agricultural bias in its overall economy Pakistan has been seriously concerned over the problem of waterlogging and salinity "which threatened the livelihood of millions of cultivators living on the Indus Plain".
10.It has been found that as soon as the perennial canals of the Punjab were constructed and filled in the beginning of the century, it was noticed that the level of water in wells began to rise. In the centre of the Doabs away from the active flood plains, the depth of water was initially 50 to 70 feet. `This topography of the water table represented a dynamic equilibrium between infiltration and river and rain water in the Northern Region, underground floor, and evaporation in the Southern parts of the Doabs. The equilibrium was upset by leakage from the new canals and watercourses'.
The water rose steadily season after season, until it came within 10 to 15 feet of the land surface. It did not stop to rise thereafter though the process became slow. When the water table reached the root zone in the farmers' fields, a marked tendency `to drown out the crops by preventing much needed aeration of the roots became noticeable'.
11. Another phenomena, i,e,, capillary rise and evaporation of the underground water that occurs whenever the water table is within 10 feet of the surface made its appearance. The salts left behind by evaporation were deposited on the fields and in the soil ; within few years the soil salt content started building up to a level which seriously inhibited and in some cases completely prevented plant growth. It is said that in an area where the underground water has a salinity of one thousand parts per million, evaporation at a rate of 2 feet per year (a typical value when the water table is only a few feet deep) will raise the salt content of the top three feet of soil to about 1 per cent. in 20 years. This is much too high for even the hardiest crops.
12.This problem was further accentuated by the fact that having been initially a desert, 'the alluvial deposits laid down by intermittent floods which left salt residues underwent only a moderate weathering, and at least in a large part of the area very little leaching of its original salt content took place.' Salt accumulation also got an impetus from irrigation practices. None of the irrigation water washes down very far beneath the root zone before it has evaporated, with the result that the salt remaining after evaporation concentrates in the upper layers of the soil. Despite the low salt content in the canal water its accumulation over a large number of decades does convert it into a problem to be reckoned with.
13.The problem of salinity and waterlogging as it is commonly called was found to be most severe in Gujranwala, Sheikhupura and Muzaffargarh districts. In these writ petitions we are concerned mostly with the first two.
14.These two districts contained nearly a million acres of severely salined or waterlogged land. In fact, it covered no less than 50 per cent. of the cultivated area in Sheikhupura and 40 per cent. in Gujranwala.
15.By research done over the years in the countries faced with similar problems it was found that this menace could be contained in areas of relatively fresh and usable ground water by constructing a system of tube-wells to provide vertical drainage. It was found that most of the water pumped to the surface by these wells was subject to 'evapo-transpiration'. Some of it percolated back into the ground carrying the soil salt with it ; a small amount would be disposed of in the rivers. By this procedure a large part of the saline soils could be reclaimed.
16.It was found by the experts that when the water table rises close to the surface in low-lying areas, the rate of evaporation rapidly increases to 2" or more per year. This evaporation lowered the water level if undergound inflow from surrounding high lands did not occur. This phenomena highlighted the fact that the higher land is protected by the low-lying land by draining of a part of the water leaked from the canals which would have otherwise raised the water table under the higher land.
17.Expert opinion pointed out that the remedial efforts should be in the shape of concentration on a "series of limited project areas." The size of the project area was estimated at a unit of about a million acres on the basis of "hydrology of ground water, control of tube-wells and consideration of effective management".
18. The project was based on the principle that "by pumping water for use in irrigation and leaching of land near a waterlogged area, the direction of undergound flow will be reversed, and the water table in the waterlogged area will gradually be lowered, without the necessity of an attempt to drain it directly".
19. As a result of the creation of the Soil Reclamation Board in the year 1962 and as a result of the implementation of the Scheme for Sinking Tube-wells "a trend towards improvement in ground water quality has been noted".
20. The project was aimed at exploiting the large reservoir of ground water available under the Indus plains by means of vertical drainage through several thousand tube-wells. The intention was to lower the water table to a reasonable depth, to leach down the salts from the soils with increased water allowances and to add to the total quantity of irrigation supplies".
21. In SCARP-I, there are in all 2057 tube-wells which were commissioned varyingly from the years 1959-1962. Out of these 2057 tube-wells, only 74 tube-wells are stopped as a result of their water being brackish. These tube-wells do not form a single cluster but are wide spread over and located in the following four schemes:
1. Jaranwala 14
2. Shahkot 30
3. Sanglahill 5
4. Beranwala 25
22. The effect of continuous pumping through 1983 tube-wells over a period of eight years have apart from lowering the water table and providing effective drainage facilities in 1.2 million acres in the project area has also resulted infringe benefits to the adjoining areas which are estimated to be another, 42 million acres.
23. The effect of pumping in the areas covered by brackish tube-wells is almost as pronounced as elsewhere within the project area. This is because the ground water in the brackish tube-wells' areas is continuously on the move to the adjacent depressions of funnels caused by continuous pumping through the adjoining tube-wells. The net result is that water table even in areas of brackish tube-wells has also been lowered substantially as is evident from two blue print plans showing the water depth which were produced for our inspection in Court.
24. Plan "A" which has been shown to us indicates the pre-project average sub-soil water levels. It demonstrates that the water table in the area covered by the cluster of brackish tube-wells in Beranwala and Sanglahill scheme was on the average between 5 to 10 feet. The water level in the 2nd cluster of tube-wells falling in Shahkot and Jaranwala Schemes was between 5 to 10 feet and 10 to 15 feet on the average. Furthermore the water table was continuously on the rise in these areas prior to the commissioning of the tube-wells. As a result of continuous pumping spread over a period of about eight years, the water-table has been lowered all over the scheme areas and plan "B" shown to us indicates the average depths of water table according to the latest observations. It was seen from the comparison of the two plans that the water table in the area of brackish tube-wells in Beranwala and Shahkot Schemes have gone down from the average of 5 to 10 feet to 15 feet and above excepting in the area of two tube-wells where the lowering has been of the order of about 5 feet. In case of area covered by brackish tube-wells in Shahkot and Jaranwala Schemes, water-table lowering has been of the order of 15 feet and above as compared to 10 to 15 feet previously. In a small patch covered by 13 brackish tube-wells namely Nos, 203, 203-A, 204, 204-A, 196, 195, 194-A, 201, 202, 205, 166-A, 155, 162-A, although the water-table still continues to be within the same range i,e,, 10 to 15 feet with nominal lowering but further rise in the sub-soil water has been checked effectively.
25. The lowering of water table in the areas covered by brackish tube-wells has proved effective drainage. It has reversed the movement of underground injurious salts which hitherto were concentrating near the root zones of the crops. As a result of this phenomenon, there has been marked improvement in the fertility and productivity of the lands covered by these few brackish wells.
The result achieved by SCARP-I is as follows:-- (i)Waterlogging has been totally eliminated and the sub-soil water level now stands at 18'-8". Out of a total affected area of 4.25 lacs of acres, 2.61 lacs of acres have been reclaimed. The area still to be reclaimed mainly represent the marginal lands which were never under cultivation or the area affected by Salinity only. Efforts are being made to bring such area under cultivation as well.
(ii)The cropping intensity has gone up appreciably in the project area since the commissioning of tube-wells. The intensity stands at 109% in 1968-69 as compared to 74.5% in 1959-60. The areas under irrigation has increased from 850120 acres to 1241986 acres during the same period.
(iii)The water allowance has increased to one cusec for 163 acres as against the pre-project figure of one cusec for 350 acres.
(iv)With the increase in area under crops and in yields per acre of major crops the production of major crops has more than doubled as compared to the annual production of pre-project year".
The year-wise area reclaimed in acres is as follows :- 1961-62 108569 1962-63 217138 1963-64 227539 1964-65 247682 1965-66 254245 1966-67 244975 1967-68 259157 1968-69 261203 It is thus clear that the Scheme is not aimed merely at augmenting the water supply to the land within the area served by it. Augmentation of water supply here and there is only one of the methods that is being adopted with a view to achieving the ultimate object of the promulgation of the law referred to above i,e, the elimination of sem and thur, salinity and waterlogging from that area. The results already achieved from 1961 to 1969 are phenomenal and are demonstrated by what has been stated earlier.
26.The mere fact, therefore, that the water pumped out by certain tube-wells proved to be brackish and the tube-wells had, therefore, to be closed down does not detract from the advantage or benefit that will accrue to every parcel of land reclaimed in that area on account of the overall lowering of the water-table and other matters.
27.The argument that unless the water supplied to a particular farmer before the Scheme came into force has been increased, it is not open to the Government to raise the occupiers rate is, therefore, devoid of all force because the rationale of the doubling of the water rate is the benefit derived by the cultivators of the area generally as a result inter alia augmentation of water supply by the pumping of tube-well water into canals and irrigation channels.
28.The levy of the "occupiers' rate" is authorised by section 36 of the Canal and Drainage Act (No, VIII) of 1873. It provides :-- "The rates to be charged for canal-water supplied for purposes of irrigation 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'."
29.Section 3 of subsection 1(a) includes tube-well in the definition of 'canal' it includes all water courses as defined in the second clause of that section. The second clause of that section lays down that '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 subsidiary works belonging to any such channel". Even private channels maintained by private owners in private lands are included in the definition of water course and therefore form part of canals. The provisions of this Act applicable to occupiers rate is not calculated on the basis of the quantity of water supplied to a cultivator but on the area of land in his occupation.
30.Rule 21 of the Rules made under the Act provides that the charge for the use of water shall be made on the area irrigated at the rates specified in the schedules. The revised schedule of Occupiers Rates, 1965 shows that the rate is levied per acre of land and not per cusec of water. The volume of water is, therefore, not relevant at all for the calculation of the occupiers rate.
31.Rule 27 deals with the fields which are partly irrigated with canal water and partly by water from well or any other source. It lays down that in such a case "the whole field will be treated as irrigated with canal water" except in the circumstances noted thereunder. The mere fact, therefore, that a field is not being irrigated in its entirety by canal water would not lead to the reduction of the charge on account of the reduction of acreage irrigated by canal water.
32.Rule 28 goes on to clarify that if a channel conveying canal water also carries water from a well or any other source, the entire irrigation from that channel is liable to be treated as irrigation from the canal. The very basis of the argument that supposed non-augmentation of the water supplied is a bar to the doubling of the occupiers rate is, therefore, bereft of any foundation.
33.No objection can be taken to the charge of occupiers rate merely on the ground that (1) the volume of water supplied is more or less, (ii) the whole field is not irrigated by canal water or (iii) the water supplied through the channel partly comes from a canal and partly from a tube-well. All that is necessary under section 36 of the Act is that only such occupiers shall be charged "as accepted the water". It has been categorically stated before us that water is being accepted by the petitioners in all these cases and hence the provisions of section 36 are applicable with full force.
34. The conclusion therefore is that the non-increase in the volume of water supply to some users is not a bar to the enhancement in the water rate which can be changed from time to time by an amendment of the schedule prescribed by the rules and, in fact, it has been subjected to amendments. The mixing of tube-well water with canal water also does not change the situation even a bit.
35. The preamble of the Canal and Drainage Act provides for the use and control by the Provincial Government for public purposes of the water not only of all rivers and streams flowing in natural channels but inter alia also of sub-soil water and other collection of still water. It follows from the preamble that even the use of sub-soil water and other natural collection of still water is under the control of the Government and extraction therefrom could well be charged for. Those who install their own tube-wells in the area with which we are concerned may also be liable to be charged occupiers' rate.
36.It has been urged before us by the learned Advocate-General without any contradiction from the other side that the expense of supplying water to the petitioners and other cultivators in the area is not being wholly met by the charge of occupiers' rate and the Government continues to subsidise it with a view to providing water to the agriculturists at a rate cheaper than that at which it casts the Government.
37.The assessm ent 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.
38.Coming now to the other notification i,e,, the one of the 5th of February 1966.
39.Section 2 (xxii) of the Punjab Soil Reclamation Act of 1952 defines 'sem' as "the rise of sub-soil water-table so high that the water actually oozes out of the land or the land remains constantly damp and where the context so permits `sem', 'sem land' or 'sem affected land', means any land or area affected by `sem' and includes such land or areas as may by notification be declared as 'sem' land or areas as may by notification be declared as 'sem' from time to time".
40.Section 2 (xxiii) defines 'Soil Reclamation' and 'Reclama-tion' as "rendering thur and sem lands from excessive salts and water respectively so as to make them fit for normal cropping and includes preventive measures adopted for avoiding increase of the maladious of thur and sem".
41.Section 2 (xxvi) defines thur' as "salt e li orescence at the surface of the land rendering the surface white ash coloured, black or brown or not discoloured but presenting an oily appearance and where the context so permits `thur', `thur land' or `thur affected land' means any land or area affected by thur and includes such land or area as may by Notification be declared as `thur' from time to time".
42.Section 3 provides that the duty and power of carrying out its provisions shall be vested in the Punjab Soil Reclamation Board.
Section 8 runs thus : "The Board may from time to time appoint Committees consisting of such persons of any of the following classes as it may deem fit, namely:-
(i) members ; (ii)persons associated with the Board under section 7 ; and (iii)other persons whose services, assistance or advice the Board may desire as members of such Committees : Provided that no such Committee shall consist of less than three persons and that at least one of them shall be a member of the Board and the Secretary shall be ex officio Secretary of every such committee.
(2) The Board may--
(a) refer to a Committee for inquiry and report any matter relating to any of the purposes of this Act ; and
(b) delegate to a Committee by resolution and subject to any bye-laws made under section 49, any of the powers or duties of the Board.
(3)The Board may at any time dissolve or, subject to the provisions of subsection (1), alter the constitution of any Committee.
(4)Every Committee shall conform to instructions given to it by the Board from time to time.
(5)All proceedings of a Committee shall be subject to confirmation by the Board.
(6)Any person associated with the Board under sub-section (1) of section 7 or appointed as member of a Committee under clause (iii) of subsection (1) shall be entitled to receive such remuneration as may be prescribed."
Section 17 of the Act empowers the Board to frame a Scheme for a local area or part thereof for prevention of the spread of thur and sem. The same section confers powers upon the Board necessary for the acquisition of land and performing other functions in this connection. Section 20 empowers the Board to apply to the Government for sanction of the scheme so framed, while section 21 vests in the Government the power to sanction any scheme submitted to it under section 20.
43. Section 26 lays down that as soon as a scheme sanctioned by the Government under section 21 is notified under section 22. The use of underground water in that area except the water used for domestic purposes or for watering livestock, shall come under the control of the Board. Section 26(5) provides that :-- "In the area for which the scheme has been sanctioned, the Board may order any tube-well or well worked by electricity, steam, oil or wind power, for using underground waters, to be closed down either temporarily during specified periods of the year or permanently provided that such order shall not prohibit the use of underground waters by any owner or occupier of land for domestic purposes and for watering live-stock. In cases where permanent closing down is ordered, the Board shall either provide some alternative source of water-supply or award reasonable compensation. In determining such compensation, regard shall be had to the diminution in the market value, at the time of making the order of closing down, of the property in respect of which compensation is claimed and where such market value is not ascertainable, the amount shall be reckoned at 12 times the amount of diminution of the annual net profits of such property by the said closing down."
Section 38 lays down that "when by the execution of any scheme, the value of the land included therein is expected to be increased the Board may at any time after the sanction of the scheme under section 21 proceed to levy and recover Reclamation Fee in respect of such land in accordance with the rules framed by Government under subsection (4)".
44.The third part of this section provides that "in fixing the rent or reclamation fee to be charged in respect of any land or class of land, the Board shall also take into consideration the actual expenditure incurred or to be incurred on the execution of the Scheme and the degree to which the land or any part of the land is or will be benefitted thereby".
45.The Government has framed the West Pakistan Land and Water Development Board Reclamation (Fee) Rules, 1965 under this Act. Under rule 3 "a Reclamation fee shall be levied on all culturable commanded area at such rates as may be notified by Government from time to time". It is under this rule that the Reclamation fee objected to has been levied.
46.The respondent has raised a preliminary objection which is to the effect that since rule 7 provides for a representation to the Divisional Canal Officer against the statement of demand and rule 10 provides for an appeal against the order of the Divisional Canal Officer, there were at least two alternative remedies available to the petitioners which are more adequate in nature than a petition under Article 98 of the Constitution and since they have failed to avail of these remedies their petitions are liable to be rejected straightaway. This preliminary objection had gone unanswered but since we have already heard the arguments at length, therefore, although the preliminary objection could be allowed to prevail, we have nevertheless chosen to give our considered decision on the points raised before us.
47.Rule 3 which has been quoted above provides for the levy of fee "on all culturable commanded area". This expression has been defined in rule 2(ii) as "the area within a canal system which can be irrigated by gravity from the canals". Except in respect of the land involved in Writ Petition No, 321/69 all the areas with which these petitions are concerned are such as can be irrigated by gravity from the canals and are therefore liable to Reclamation subject to the examination of other objections raised by the petitioners.
48.The areas to which the petitions relate are, admittedly, under the Scheme known as SCARP-I which is a scheme duly framed under this Act. It was objected that the Notification impugned before us is void, for the reason that the value of the property has not been increased. Section 38(1) which has been already noted above, clearly provides that Reclamation fee could be levied in respect of land when by the execution of any scheme, its value is "expected to be increased". Apart from the fact that it is for the Department to judge whether the value is expected to be increased and it was for the petitioners to have convinced the Department by their representation followed, if necessary by appeals as provided under the Rules, that the value was not expected to be increased, we have before us the categorical statement of the Department that the value has immensely increased. It has been stated before us that people had started migrating from the area because of the problem of sem and thur and in consequence of the implementation of the scheme not only has this migration came to a stop but even those who had migrated have started returning. It is even otherwise common knowledge that the sem and thur infected area of SCARP-I has now risen in value by several times.
49.Be that as it may the criterion is not that the value should have been increased but only that it is "expected to be E increased". The facts and figures given above which have been called out from authoritative reports prepared by both local and foreign Agencies and placed before us by the Department clearly show such an enormous improvement in the quality of the land that increase in its value must follow as the day follows the night.
50.We consequently see no force in the argument of the petitioners on this score.
51.It has been represented before us by Government that the Reclamation fee which is proposed to be levied once for all, and of course it cannot be repeated, will reimburse the Government only to the extent of 22 out of the 10 crores spent by it upon the scheme. The object of the Government is, therefore, not to recover the whole cost.
52.It was submitted that the Government was recouping payments made by it to the Board which can be done only under section 36 of the Act but as the stage for so doing had not yet arrived the action could, not be defended. This argument is again incorrect because the Notification do not support it and the Government has categorically denied before us that it is acting under section 36.
53.The learned Advocate-General has informed us that the area involved in Writ Petition No, 321/69 is not commanded by any canal. Such an area is exempted from the Reclamation fee under amended rule 6 of the Government of West Pakistan Land and Water Development Board (Control over underground water) Rules, 1965. The amended rule runs as follows :- "The licensee shall be liable to pay the water charges levied by Government in the area as if the appliance installed by him did not exist, provided that he shall not be so liable if the land for the irrigation of which he utilise his appliance is not within the command of a canal". Section 2 subsection (11) defines" an improvement "as" improving or preserving productive capacity of a soil'.
54.The Government is consequently not going to charge any Reclamation fee from the petitioner in that writ petition. That petition is, therefore accepted.
55.Writ Petitions Nos, 1119/66, 466/67, 497/67, 1352/66, 65/67, 122/67, 371/67, 372/67, 2048/67, 135/67, 138/67, 156/67, 165/67, 180/67, 199/67, 205/67, 388/67, 212/67, 225/67, 229/67, 245/67, 255/67, 1126/67, 257/67, 267/67, 291/67, 305/67, 359/67, 394/67, 426/67, 771/67, 430/67, 468/67, 498/67, 499/67, 652/67, 653/67, 681/67, 682/67, 683/67, 738/67, 791/67, 850/67, 873/67, 879/67, 928/67, 948/67, 1011/67, 1043/67, 1044/67, 276/67, 277/67, 278/67, 1059/67, 1089/67, 1090/67, 1144/67, 1153/67,1165/67, 1191/67, 1203/67, 2018/67, 173/67, 234/67, 235/67, 375/69, 57/70, 268/67, 1171/67, 227/68, 1179/67, 993/68, 227/69, 1038/68, 1860/68, 122/69, 504/69, 1210/68, 801/69, 1060/69, 1101/69, 422/70, 74/67, 106/67, 195/67, 1483/67, 246/67, 1065/67, 503/67, 429/67, 485/67, 159/69, 589/69, 1689/67, 87/70, 348/70, 1097/69, 930/69 and 383/70, have no merit and are dismissed.
56. There shall be no order as to costs. PLD 1966 SC 451