1. G. SAFDAR SHAH, J.-These eight appeals arising under the Canal and Drainage Act (VIII of 1873), which were disposed of on the basis of the main judgment of the Lahore High Court, dated 3-3- 1971, delivered in Writ Petition No. 1143 of 1962, are being taken up together for disposal, as the essential facts and the questions of law involved therein are the same. In order to appreciate the background of these appeals, however, it would be necessary to refer only to the facts of Civil Appeal No. 49 of 1974, as the same is directed against the said main judgment of the High Court.
2. The case of the appellant is that on the night between 18th/19th of October, 1961, the respondents herein deliberately made a cut in the Gujjiana Distributory for the purpose of irrigating the excess area sown by them for the Kharif rice crop. On coming to know of the said act of the respondents, the Sub-Divisional Officer concerned personally went to the spot and discovered that the said cut in the Distributory was man made and there was no truth in the assertion made by the Zamindars of the area that it was a case of leakage of water developing into a breach. The Sub-Divisional Officer, therefore, drew up a report accordingly stating therein, amongst others, that he had served on the respondents notice No. 1 as prescribed by the rules and had conducted the inquiry in their presence. The record would show that the said report was accepted by the Divisional Canal Officer by a brief order, dated June 29, 1962. But the learned Additional Commissioner, in the appellate proceedings before him, adversely commented on his failure to record a self-contained speaking order and instead preferring the order of the Sub-Divisional Officer dismissed the appeal of respondents holding them guilty for the said unauthorised cut in the Gujjiana Distributory and consequently imposed on them under section 33 of the Canal and Drainage Act, 1873 (hereinafter called the Act) read with rule 33 of the rules framed thereunder, special charges equal to two times the highest crop rate, in addition to the ordinary crop rate, on account of illicit irrigation alleged to have been obtained by them through the said breach. Being aggrieved of the said order, the respondents filed in the High Court Writ Petition No. 1143 of 1962 contending therein inter alia, (a) that the order in question was bad for the reason that there was no provision in the Act levying special charges on account of the unauthorised use of canal water, as section 33 of the Act was meant to deal only with a "watercourse" as distinguished from a canal ; (b) that in any case, the order suffered from a patent illegality on account of the fact that the Divisional Canal Officer had not held any personal inquiry in the matter and had merely acted mechanically on the report of the Sub---Divisional Officer ; and (c) that even if the special charges had been validly imposed, they should have been apportioned between the landlords and the tenants as required by section 15-A of the Punjab Tenancy Act.
3. The judgment of the High Court would show that out of the said three contentions, only the first contention urged by the respondents was accepted with the result that the impugned order passed by the appellant to their detriment was held to be without jurisdiction. The view taken by the High Court, after reproducing section 33 of the Act, was that "the term canal is wider and more exhaustive in scope, and includes a watercourse in its ambit, the term watercourse is restricted in meaning and scope so as to apply to only those channels which are not maintained at the cost of the Provincial Government. In other words, whenever the Act makes a specific provision relating to a watercourse, its application' has to be confined to those channels which are not maintained at the cost of the Provincial Government. It is common ground that the Gujjiana Distributory in which the cut was made by the petitioners, was constructed by the Provincial Government and is being maintained at the cost of that Government. This Channel cannot, therefore, be regarded as a watercourse according to the definitions contained in the Act. Accordingly, it follows that the provisions of section 33 of the Act are not attracted in this case".
4. Leave to appeal was granted to the appellants by this Court, vide order, dated October 7, 1971, the relevant part of which reads as under :- "It was contended before the High Court on behalf of the respondents that the order imposing the special charges was bad for the reason that there was no provision in the said Act for levying charges on account of the unauthorised use of Canal water as section 33 of the Act, whereunder the imposition had been made, dealt only with a watercourse. Admittedly the Distributory in question is maintained at the cost of the Provincial Government. That being so, it was not a `watercourse' as defined in section 3(2) of the Act, and section 33 of the Act applies only to a watercourse. The High Court, therefore, appears to be right in holding that the impugned imposition could not be legally made under section 33 of the Act read with rule 33 thereunder. But is there really any lacuna in the Act and has the Legislature really failed to provide for such imposition in the case of illicit use of water from a canal as the High Court seems to think.
5. This is a question of law of general public importance and requires to be considered."
6. It would thus be seen that by the leave granting order the impugned judgment of the High Court was approved by this Court, and the limited point on which leave was granted to the appellants was to consider the question whether there really existed any lacuna in the Act for not providing for an eventuality in which it is found that water from a Canal had been illicitly used for the irrigation of lands.
7. Sheikh Riaz Ahmad, the learned Assistant Advocate-General argued that by Ordinance XV11I of 1971 (Canal and Drainage (Punjab Amendment) Ordinance), 1971, section 33 of the Act was substituted by a new section and the said lacuna removed. The substituted section, in so far as it is relevant, reads "33. Liability when water is unauthorisedly taken from canal or watercourse.-When the water of a canal be used in an unauthorised manner, the Divisional Canal Officer shall, after holding an enquiry, 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 Provided that---------------------------------------------------------
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8. He, therefore, argued that the erstwhile objection to the unsubstituted section 33 of the Act is no more available to the respondents, and so the impugned judgment of the High Court cannot be permitted to hold the: field any longer. Now this contention of the learned Assistant Advocate--- General would seem to be partly right, because by section 2 of the said Ordinance, the substituted section 33 of the Act has been made to apply retroactively as the, language employed therein is that it "shall be deemed always to have been so substituted". But all * the same his contention cannot be wholly accepted. The judgment of the High Court in this case was delivered on March 3.
9. 1971, whereas the said Ordinance was promulgated subsequently on September 29, 1971. It is, therefore, obvious that the High Court had no occasion to consider the effect of the said substituted section 33 of the Act - consequently it had no occasion to give any finding thereon, and se it cannot be contended that the effect of the said substituted section can be made the subject of attack in this appeal. Furthermore, in the petition for leave to appeal, no mention of the said substituted section 33 of the Act had been made by the appellants ; in fact the existence of the said substituted section 33 seems to have occurred to them subsequently at the stage of filing of the concise statement by them in which they have relied on it in support of the contention urged by the learned Assistant Advocate-General. In these circumstances, the learned counsel cannot be permitted to impugn the judgment of the High Court on this ground, although we agree that by the substituted section 33 of the Act the effect of the judgment in question has been set at naught by the Act of The Legislature.
10. The result, therefore, is that by the Amending Ordinance XVIII of. 1971, by which the original section 33 of the Act was substituted by a new section, the object of the appellants seems to have been achieved in that the effect of the impugned judgment has been nullified. Therefore, the view that we now take is that all these appeals, in view of the effect of the Amending Ordinance XVIII of 1971, have become infructuous, and the same are dismissed. However, since the respondents have chosen not to contest the proceedings, there will be no order as to costs.