# JAWALA RAM v. STATE OF PEPSU

- **Citation:** [1962] 2 S.C.R. 503
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 43 of 1958
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. WANCHOo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jawala-ram-v-state-of-pepsu-2269
- **Pages:** 6

## Headnote

Canal Ch•rges-Use cf. water, if "offence"-Levy of special
charges, if amounts to "penalty"-Northern India Canal and Drainage Act, r873 (VII of r873). s. JI-Pepsu Sirhind Canal and Western J amuna Canal Rules (Enforcement and Validation) Act (No. IV
of r954), 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 dismissed 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 \'alidation) 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 offence.
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 withs. 31 of the Northern India
Canal and Drainage Act, 1873, for such use was not the imposition of a "penalty" for an offence as contemplated under Art.
20(1) of the Constitution.
Maqbool Hussain's case, [1953] S.C.R. 730, referred to.
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.
I96I
April a7
]awala Ram
v.
State of Pepsu
Das GHpla J.
504
SUPREME COURT REPORTS
[1962]
1961.
April 27. The Judgment of the Court was
delivered by
DAs 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 ofSirsa 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, Cana.I, Narwana made an order levying special
charges against these appellants. On appeal the
Divisional Canal Officer, N arwana, 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 B{'nch of the same High Court in M ukandi Ram
v. The Executive Engineer (LPA/FAO No 58of1954)
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 wat

## Text

2 S C.R. SUPREME COURT REPORTS
503
JAWALA RAM
v.
STATE OF PEPSU
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANCHOo,K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Canal Ch•rges-Use cf. water, if "offence"-Levy of special
charges, if amounts to "penalty"-Northern India Canal and Drainage Act, r873 (VII of r873). s. JI-Pepsu Sirhind Canal and Western J amuna Canal Rules (Enforcement and Validation) Act (No. IV
of r954), 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 dismissed 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 \'alidation) 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 offence.
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 withs. 31 of the Northern India
Canal and Drainage Act, 1873, for such use was not the imposition of a "penalty" for an offence as contemplated under Art.
20(1) of the Constitution.
Maqbool Hussain's case, [1953] S.C.R. 730, referred to.
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.
I96I
April a7
]awala Ram
v.
State of Pepsu
Das GHpla J.
504
SUPREME COURT REPORTS
[1962]
1961.
April 27. The Judgment of the Court was
delivered by
DAs 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 ofSirsa 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, Cana.I, Narwana made an order levying special
charges against these appellants. On appeal the
Divisional Canal Officer, N arwana, 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 B{'nch of the same High Court in M ukandi Ram
v. The Executive Engineer (LPA/FAO No 58of1954)
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
2 S.C.R. SUPREME COURT REPORTS
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 J umna 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 J umna 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 J umna 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 ExecutiveEngineer(1), on the
basis of which without further discussion the petition
in this case was dismiased 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
(I) LPA/FAO No. 58 of 1954.
jawala Ram
v.
State of Pepsu
Das Gupta j
Jawala Ram
v.
Slate of Pepstt
Das Gupta J.
506
SUPREME COURT REPORTS
[1962]
under Rule 33 of the Sirhind Canal Rules read with
s. 31 of the Act.
The main contention raised by Mr. Na.unit 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
w he th er s. 3 and s. 4 of the Pepsu Sir hind Canal and
Western J umna 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 Jaw 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 -
2 S.C.R.
SUPREME COURT REPORTS
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"
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.
Pnnishment 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 "punishable". Have we in the present case any law forbidding
the unauthorised user of the water which section 31
of the Cana,! 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) [1953) S.C.R. 730.
jawala Ram
v.
State of Pepsu
Das G1tpta ].
jawala Ram
v.
State of Pepsu
Das Gupta ].
508
SUPREME COURT REPORTS
[1962]
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 costs.
Appeal dismissed.