1. SAJJAD AHMAD, J.-On a surprise inspection of the Ladhewal minor at 11-30 a. m. On the 30th September 1964, the Divisional Canal Officer, Khanwah Division, detected at the site of the outlet R D-11843-R that a rubber syphon 6" in size and about 15 ft. Long was fixed at the aforesaid minor for pumping unauthorised supply of water from the minor into the water-course of the outlet. It was also found that the rubber syphon belonged to the appellant, Jamil Dad Khan, and that he was to have his turn of wari from the outlet at that hour of the day. The Divisional Canal Officer took hold of the syphon, and also directed his Overseer and the S. D. O., to record the statements of Muhammad Yar and Ismail, who were present at the time of the inspection. A tawan case was framed against the appel--lant, whereupon special charges were levied against him equal to six times the crop rate in respect of cultivated and six times the occupier's rate in respect of uncultivated areas, in addition to the ordinary charges under sections 31 to 33 of the Canal and Drainage Act (hereinafter described as `the Act,) and rules 32 and 33 framed under the Act. The total amount of special charges was worked out at Rs. 3,891.18.
2. The appellant preferred an appeal to the Additional Com--missioner, Revenue, Multan, which was rejected on the 5th of July 1966. Thereafter, he filed a writ petition in the former High Court of West Pakistan, Lahore seat, which was also dismissed. On a petition to this Court against the decision of the High Court, leave was granted to consider the point whether the levy of special charges made against the appellant by the Canal authorities under section 33 of the Act, read with rules 32 and 33 framed thereunder, was legally maintainable.
3. The learned counsel for the appellant contended that since the appellant was claimed to have been identified by the Canal authorities as the culprit, responsible for the unauthorised user of the canal water, and a challan under section 430 of the Penal Code was also put in Court against him as an identified offender, although ultimately it resulted in the discharge of the accused, section 33 was inapplicable to his case. It was contended that this section could be invoked for action against persons, who were not identified for committing the act of unauthorised irrigation, and that, alternatively, the section could be used against those persons, whose land had benefited by user of the unauthorised irrigation, of which there was no proof in this case. The contention is devoid of any force. It is illogical to interpret section 33 to hold that whereas a person who is unidentified but whose land benefits from the flow of unauthorised water is liable under this section but such a person, if identified, is not liable. In the present case, the Divisional Canal Officer, after a proper inquiry and after taking into account the appellant's own statement, came to the conclusion that the appellant was responsible for the unauthorised irrigation in question, and therefore, he was quite competent to take action against him under section 33 of the Act.
4. It has been brought to our notice that section 33 of the Act has now been substituted by a new section 33 under Ordi--nance No. XVIII of 1971 (The Canal and Drainage (Punjab Amendment)
5. Ordinance, 1971), which was issued by the Governor of the Punjab and gazetted on the 29th of September 1971. The new section reads as follows :- "33. When the water of a canal be used in an un--authorised manner, the Divisional Canal Officer shall, after holding an inquiry, levy charges in the manner and to the extent provided in the rules framed under this Act from the person by whose act such use has occurred, or if such person cannot be identified, from the person on whose land the water has flowed and such land has derived benefit therefrom.
6. Provided that where the water so used has been supplied through a water-course, the charges shall be levied :-
(a) from the person by whose act or neglect such use has taken place ; or
(b) if such person cannot be identified, from the person on whose land the water has flowed and such land has derived benefit therefrom ; or
(c) if such person cannot be identified or the land on which the water has flowed has derived no benefit therefrom, from all persons chargeable in respect of the water supplied through such water-course."
7. Under section 2 of this Ordinance, the new section shall be deemed always to have been so substituted, that is to say, it has been enacted with retrospective effect.
8. The new section has now more explicitly and without any ambiguity fixed the liability on the persons found liable for unauthorised irrigation whether the same is done from the canal e water or through a water-course of the canal.
9. The learned counsel for the appellant also contended that the levy of special charges at six times the crop rate, as done in the present case, was not covered by any .Valid rule framed under section 75 of the Act. Rules 32 and 33, which pertain to the charges leviable for taking unauthorised water from a canal, permit the levy of a special rate equal to six times, in addition to the ordinary occupier's rate on the crop standing at the time in the cultivated land, and six times the occupier's rate in respect of the uncultivated land. These rules were .Compe--tently framed under section 75, subsection (4) of the Act, which gives powers to the Provincial Government to frame rules to regulate the amount of any charge leviable under the Act.
10. There is no substance in this appeal, which is dismissed with no order as to coats.