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
section M Sikhri Advocate General Punjab Gopal Singh and D Gupta for the respondents
504 1961
April 27
The Judgment of the Court was delivered by DAB 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 article 226 and article 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 of Sirsa 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 Canal Narwana made an order levying special charges against these appellants
On appeal the Divisional Canal Officer Narwana 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 Bench of the same High Court in Mukandi Ram vs The Executive Engineer LPAFAO No 58 of 1954 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  which admittedly applies to the Sirsa Branch Canal provides for the levy of water rates for 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 Jumna 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 Jumna 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 Jumna 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 vs The Executive Engineer 1 on the basis of which without further discussion the petition in this case was dismissed 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 1 LPAFAO No 58 of 1954
506 under Rule 33 of the Sirhind Canal Rules read with section 31 of the Act
The main contention raised by Mr Naunit Lal before us in support of the present appeal is that section 3 and section 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 article 201 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 whether section 3 and section 4 of the Pepsu Sirhind Canal and Western Jumna Canal Rules Enforcement and Validation Act 1954 infringes the provisions of article 201 of the Constitution
article 201 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 law 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 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 s as was pointed out by this Court in Maqbool Hussain s case 1 where article 202 of the Constitution came up for consideration has not been defined in the Constitution
So under article 367 which provides that the  shall apply for the interpretation of the Constitution the word offence in the several clauses of article 20 must be understood to convey the meaning given to it in section 337 of the 
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
Punishment 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  punish able
Have we in the present case any law forbidding the unauthorised user of the water which section 31 of the Canal 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  508 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 article 201 of the Constitution
The appeal is accordingly dismissed with costs
Appeal dismissed


Summary:
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 is missed the appellants petition under articles 226 and 227 of the Constitution on the ground that the case was covered by the case of Mukundi Ram vs The Executive Engineer decided by the High Court LPAFAO NO 58 of 1954 On appeal by special leave the appellants contended that sections 3 and 4 Of the Pepsu Sirhind Canal and Western jamuna Canal Rules Enforcement and validation Act No IV of 1954 are unconstitutional being in contravention of article 201 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 with section 31 of the Northern India Canal and Drainage Act i873 for such use was not the imposition of a penalty for an offence as contemplated under article 201 of the Constitution
Maqbool Hussain s case   referred to