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P L D 1955 Lahore 88

Before M. R. Kayani, J

MALIK KHIZAR HAYAT KHAN TIWANA

Plaintiff

versus

PUNJAB PROVINCE‑Defendant

Civil Original Case No. 9 of 1954, decided on 22nd July 1954.

(a) Civil Procedure Code (V of 1908),

S. 80‑Notice Not meant as a trap for the plaintiff.

Per Kayani, J

‑A notice is but a statement of the case according to the plaintiff's lights; and not a complete and correct judgment of a Court of law. And when I use the word "correct " here, I mean that it should have been tested up to the final Court of appeal. It would mean that, in a difficult case, the notice should be the resultant effort of all avail able legal talent in the country as to the exact inferences to be drawn from a certain set of facts, but as even with that effort the ultimate judges may not agree, section 80 would prove a trap in many cases.

AIR 1927 P C 176, AIR 1947 P C 197=P L D 1947' PC160,AIR1949PC143,AIR1949Mad.416,AIR1949 Mad. 214 I L R 38 Cal. 797, A I R 1926 Mad. 408, A I R 1938 Nag. 415 A I R 1943 Bom. 138, A I R. 1934 Pat. 701, A I R. 1942 Cal. 343 and I L R 2 Bom. 189 ref.

(b) Specific Relief Act (1 of 1877),

S. 56 (d)‑"Public duty" does not mean tortious act of officer of Government.

Section 56 (d) of the Specific Relief Act does lay down that an injunction cannot be granted to interfere with the public duties of any department of a Provincial Government 1‑gut one could hardly imagine a tortious act of an officer of Government to be a "public duty".

Lahore Electric Supply Co. Ltd., v. Province of Punjab A I R 1943 Lah. 41 (F B) ref.

(c) Specific Relief Act (I of 1877),

S. 55‑Injunction to prevent breach of obligation can be issued.

Section 55 enables the issue of an injunction "to prevent the breach of an obligation" and to compel performance of acts which are necessary to prevent such breach.

Administrator Lahore Municipality v. Munirud Din A I R 1941 Lah. 200 ref.

(d) Punjab Minor Canals Act (III of 1905),

S. 2 (3)‑Has no reference to relief to which canal‑owner may be entitled under Ss. 5 to 8 of Canal and Drainage Act.

Section 2 (3) of the Minor Canals Act has no reference to any relief to which a canal‑owner may be entitled under sections 5 to 8 of the Canal and Drainage Act.

(e) Government of India Act, 1935,

S. 299‑"Immovable property"‑Water‑Right to use water is immovable property.

Water, as long as it is flowing in the bed of a stream or river, is attached to the earth, and is therefore immovable property, though it can be made into movable property by severance or removal from the earth, but the subject‑matter of the suit is not any particular water, but the right to the use of water. The right to such use is certainly a benefit, and it arises out of land, because the water of a perennial stream comes out of land. Even if it came out of the clouds, the benefit arises out of land, because the water must be first received by the land before it can be beneficially diffused.

Kunwar Lai Singh v. Provincial Govt. of C. P. & Berar A I R 1944 Nag. 201, 1933 A C 411, Maharana Fattehsangji v. Hakoomatraiji (1873) 1 Ind. App. 34, Alam Sher v. Ram

Chand 11 P R 1898, 24 Cal. 504 (P C), 12 Bom. 1 21, 20 Cal. 446, 19 Cal. 544, 3 Cal. 276, A I R 1931. All. 392 and A I R 1921 Bom. 417 ref.

(f) Government of India Act, 1935,

S. 299‑"Compen sation"‑Meaning.

It is not possible to compensate a man without requiting, an him for his "land", without the rendering to him of an equivalent in money.

A I R 1946 Born. 216, Nichols v. Baker (1890) 44 Chancery 262 and Julius v. Bishop of Oxford (1880) 5 A C 214 ref.

(g) Government of India Act,

1935, S. 299‑"Compen sation"‑Canal and Drainage (Amendment) Act XIV of 1952 and Punjab Minor Canals (Amendment) Act XVII of 1952 are ultra vires.

It is contended that section 299 declares a law void if it authorises compulsory acquisition without providing for com pensation, and as the amendments do not, by themselves, authorise any acquisition, they are not hit. It is true that the amendments only nullify the provisions of the original Acts relating to compensation, and that the power of acquisi tion is conferred by those Acts themselves. But then the legislature could always adopt the ingenious device of first passing an Act which provides for compensation in case of compulsory acquisition and subsequently amending it so as to nullify those provisions. Consequently, an amendment should not, for the purposes of section 299, be examined without reference to the original Act, and indeed it is never so examined. It is by the amending Acts in this case that the legislature has made the original Acts into a law authorising compulsory acquisition without compensation, because the original Acts did provide compensation.

The whole scheme of Par 2 of the Canal and Drainage Act points to the conclusion that compensatory relief was intended to be mandatory.

In the present case, the persons for whose benefit the Collector is empowered to exercise his powers have been specifically pointed out : they are those whose water supply has been adversely affected: In their favour section 7 has created a right to make an application. The conditions upon which the power is exerciseable are also given in section 8. "Something in the nature of the thing empowered to be done, something in the object . . . . something in the conditions .... , something in the title of the person . . . . " All these consider ations create a duty corresponding to the power.

The amending Acts are hit by section 299 of the Govern ment of India Act, and they are consequently ultra vires the Provincial Legislature.

(h) Specific Relief Act (1 of 1877),

S. 42‑Suit for mere declaration lies in certain circumstances.

It was contended that even if the amending Acts are bad in law, a suit for a mere declaration to that effect does not lie. Section 42 of the Specific Relief Act permits a declaration only in favour of a person entitled to any legal character or to any right as to property, and it was argued that there was neither any legal character nor any right to property involved in having a statute declared void. The plaintiff, however, has a right to compensation in respect of the canals, a right which the defendant has denied by introducing amendments, and the Court cannot make a declaration that the plaintiff is entitled to this property without first declaring the amend ments to be void.

M. Yagub Ali and T. A. Faruqi, for Plaintiff.

M. Mahmud Ali, for Respondent.

JUDGMENT

KAYANI, J

.‑Malik Khizar Hayat Khan Tiwana has sued the Punjab Government for a declaration that certain enact ments affecting the amount of compensation payable to him in respect of the acquisition of two of his private canals, Malik Sahib Khan Wala and Piranwala, and of the stoppage of water in two other canals, Chaharmi and Tootanwala, are ultra vires, and seeks a mandatory injunction directing the Collector to assess compensation without being influenced by these enactments.

Before the .present canal system was introduced, the District of Shahpur had a number of inundation canals, private and State‑owned, with the following history. (See Assessment of Behra Tahsil, 1891, pages 58 to 69.) They were taken from the river Jhelum, but had fallen into disuse and had silted up until, in 1860, Mr. MacNabb, the Deputy Commissioner, (not the well‑known MacNabb of our times) got one of them cleared out experimentally, at his own expense, "with great benevolence and public spirit", and thereafter it took his name. Mr. MacNabb induced Malik Sahib Khan Tiwana, grandfather of the plaintiff, to excavate an entirely new canal to water a grant of waste land at Kalra. This is now known as Malik Sahib Khan Wala or the Great Kalra Canal, and was alleged to have cost Rs. 9,550. In 1863‑64, Lala Amir Chand and Pandit Rup Lal of Bhera partially reopened the old Raniwah, but the present Raniwah was commenced in 1870. Thereafter, about a dozen private canals were excavated, but I shall mention only those which form the subject‑matter of the suit. In 1870, Malik Sahib Khan dug up the Chaharmi canal, "seemingly without express permission", at a cost of Rs. 2,000. In 1871, Malik Sahib Khan and Pir Haider Shah constructed Piranwala at a cost of Rs. 5,500 or Rs. 8,000, according as one or the other of two accounts is accepted. The fourth canal, Tootanwala, receives no mention in the various reports. These private canals were excavated in land which did not always belong to the excavators, and they irrigated land both belonging to the owners and other persons, the latter being charged about one fourth of produce by the owners.

In 1865, the Lieutenant‑Governor expressed himself thus, both in respect of private and State canals "Government will no doubt be hereafter entitled to a share in the profits resul ting from irrigation, as guardian on behalf of the people and lord of the waters of the great rivers ; but at no time will it be allowable to fix such an assessment as would interfere with the legitimate profits on capital expended in the an canals that may be formed."

In 1885, the Financial Commissioner, Col. Davies, while considering the question of assessing profits on private canals, observed that it was not possible to raise objections to the sale of water "which is a real benefit to the country" and has been recognised by Government for years, and cannot properly be stopped now except by purchase of the water- sellers' vested interest. He, however, suggested legislation to enable him to fix the maximum rates for water supplied to private irrigators and to take over the management of the canal if the canal owner should refuse to supply at these rates. The Lieutenant Governor preferred a different course to assert the right of Government in respect of itself and the private irrigators at the time of Settlement and the intentions of Government were intimated to the canal- owners.

At the Settlement (Final Report on the Revision of Settlement of the Shahpur District, 1887‑94, pages 66‑67) the owners of private canals were required to execute an agreement‑

(1) to pay four annas per acre of royalty to Government on all land irrigated by the canal ;

(2) to charge private irrigators one‑fourth of every kind of produce ;

(3) to continue giving water to private irrigators, with preferential right for their own land.

There then existed no legislation bearing directly on private canals. The Northern India Canal and Drainage Act of 1873 concerned itself generally with "the law relating to irrigation, navigation and drainage" and asserted in the pre amble the Government's title to "use and control for public purposes the water of all rivers and streams and of lakes and other natural collections of still. water". It provided for the construction and maintenance of canal works controlled by Government, the supply of water to land‑owners, the impo sition of water‑rates etc. Private canals were affected only when the application of water by Government from the river to an existing or projected canal diminished their supply and entitled the private owners to compensation under section 8. In such cases, the Government previously expressed its intention by a notification under section 5. Such a notification was issued in 1900 when the Jhelum Canal (now known as the Lower Jhelum) was constructed.

The Punjab Minor Canals Act came into force in 1905. It applied to canals mentioned in two Schedules, the First Schedule including such minor canals as belonged wholly or in part to Government, the second relating to private canals. Three of the four canals in suit‑Malik Sahib Khan Wala, Piranwala and Chaharmi‑are mentioned in Schedule II ; the fourth, Tootanwala, is not mentioned in either Schedule.

The Act stated in section 2 (3) that the Northern India Canal and Drainage Act, 1873, shall not apply "to any canal which is for the time being included under either Schedule I or Schedule II". By this Act, the administration of the minor canals becomes generally vested in the Collector, who can, in case of mismanagement, appoint a manager, or assume control. It also provides for the acquisition of a canal by Government.

In 1905 (1900 according to the Settlement Report of 1911‑16) "it was decided to take time by the forelock and insure in advance against .deterioration by constructing a kharif distributary of the Lower Jhelum Canal to irrigate all this tract ; the bed was dug, bridges and bungalows built and trees planted, at a cost of eight lakh, but owing to the private canal‑owners' shrewd defence of their own vested interests, this interesting and expensive embryo is still nascent." Thus wrote Mr. Leigh, the Settlement Officer, in 1916 or 1917, in respect of the Shahpur Branch, which is of vital interest to us in this suit. Most of its bed was then dug up, except in places where it cut across the private canals. The scheme was then dropped either because it was opposed by private canal- owners, as Mr. Leigh said, of because it was an expensive enterprise, as the plaintiff says. It was taken up afresh in 1951.

In November of that year the Punjab Government promulgated two Ordinances which in due course became Act 14 of 1952 and Act 17 of 1952. They respectively amended the Canal and Drainage Act of 1873 and the Punjab Minor Canals Act of 1905 so as to alter the mode of assessing compensation to private canal‑owners affected by the advent of the Shahpur Branch and of compensation resulting from the acquisition of private canals. On the 12th of January, 1952, two notifications were issued, No. 2476/W, under section 5 of the Canal and Drainage Act, intimating the intention of Government to use the waters of the river Jhelum for the Shahpur Branch, and No. 2477/ W, under section 45 of the Minor Canals Act, notifying an intention to acquire Malik Sahib Khan Wala and Piranwala canals by a certain date. On the 19th April, 1952, Notification No. 24131‑W/440/1949 was issued under section 48 of the Minor Canals Act, declaring that the two canals aforesaid had been acquired.

Subsequently, the same year, Ordinance I of 1952 was promulgated to effect a further amendment of the Minor Canals Act in section 47, by providing a fresh mode of assessing compensation in substitution of the mode available under the Land Acquisition Act, which by the original Act, was applicable to such cases. This Ordinance was in due course replaced by a Bill which has not so far received the assent of the Governor‑General.

The plaintiff claims that these amendments are ultra vires the legislature.

How exactly the amendments alter the existing law, so far as relevant to the present case, will be patent from the Schedule which I have appended to this judgment. It is necessary, however, to notice these effects briefly here. Under section 5 of the Canal arid Drainage Act, the Government issues a notification whenever it intends to use the water of a river for the purpose of an existing or projected canal. Under section 7, as soon as is practicable after the notification, the Collector shall cause public notice to be given stating the Government intend using the said water and that claims for compensation in respect of matters mentioned in section 8 may be made before him. That section is in two parts. The first part, consists of four clauses, (a), (b), (c) and (d), mentioning matters in respect of which "no compensation shall be awarded." The second part consists of five clauses, mentioning matters in respect of which "compensation may be awarded". Clauses (e), (g) and (f) of this part may be particularly mentioned here

"(e) Stoppage or diminution of supply of water through any natural channel to any defined artificial channel, whether above or under ground in use at the date of the said notification ;

(g) Stoppage or diminution of supply of water through any natural channel, which has been used for purposes of irrigation within the five years next before the date of the said notification ;

(i) Any other substantial damage not falling under any of the above clauses (a), (b), (c) or (d), and caused by the exercise of the powers conferred by this Act, which is capable of being ascertained and estimated at the time of awarding such compensation.

The amending Act of 1952 says no compensation shall be awarded in respect of any of the matters mentioned in clauses (a) to (h) and omits (i).

Next, the amending Act deletes sections 9, 10 and 13, of these, section 10 provided that if any claim to compensation is made under section 7, the Collector "shall proceed to inquire into" it, and sections 9 to 12, 14 and 15, 18 to 23, and certain other sections of the Land Acquisition Act "shall apply to such inquiries".

Section 9 of the Land Acquisition Act provides for notice by the Collector to persons claiming compensation. Under section 11, the Collector inquires into objections and makes an award. Section 15 provides that in determining the amount of compensation the Collector shall be guided by sections 23 and 24. Under section 18, any person dissatisfied with the award can require the Collector to make a reference to the Court of the District Judge. The succeeding sections lay down the procedure for a reference. Section 23, the most important of these sections, provides that in determining the amount of compensation, the Court shall take into consider ation six matters, four of these being (1) market‑value at the date of acquisition, (2) damage to standing crops or trees, (3) damage by reason of severing the objector's land from his other land, and (4) damage by reason of the acquisition injuriously affecting his other property or his earnings.

The deletion of all these provisions and the complete substitution of section 8 by a totally negative section constitute, in my opinion, some good demolition work. But the legislative draftsman overlooked section 7, which still requires the Collector to invite claims for compensation, although under no conceivable ground can compensation be claimed now under section 8. That . it was intended that no compensation should be claimed is clear from the demoli tion of all reference to the Land Acquisition Act, which was the only method employed by the original Act for the assess ment of compensation. Both the Collector and the Court disappear, and the Collector in section 7 therefore exists only in the Law Department of the Government.

Next come the amendments made in the Minor Canals Act. Under section 45 Government can acquire any canal within six months of a notification to this effect. The period has now been reduced to one month. Section 46, (which corresponds to section 7 of the Canal and Drainage Act), provides that, as soon as practicable, after the notification, the Collector shall cause public notice to be given stating the Government's intention and inviting claims for compensation. Section 47 provides that in assessing compensation the Collec tor shall proceed in accordance with section 55, but he shall also have regard to "the history of the canal, the expenditure incurred thereon and the profits of the owner". By an amendment, "the profits of the owner" now read as "the profits already earned by the owner", that is to say, if he has already made tremendous profits, then, notwithstanding a history of enterprise, he should be made to disgorge them. Lastly, under section 55, in assessing compensation the Collec tor was to proceed under the Land Acquisition Act, "and the provisions of that Act regarding inquiries and awards by the Collector, reference to the Civil Court and procedure thereon, apportionment of compensation, payment and appeals shall, so far as may be, be applicable to all proceedings under this section". The amendment also said that the Collector shall proceed under the Land Acquisition Act, but added that the provisions of sections 18 to 28, subsection (3) of section 38 and section 54 of that Act shall not apply. Now sections 18 to 28 constitute Part III of the Act, which provides a reference to Court, and includes section 23, which, as already noticed, lays down six matters which the Court ought to take into consideration in determining compensation. The result is that the Collector will be deprived of the use of section 23, and as even the Collector is required by section 15 of the Land Acquisition Act to guide himself by section 23 when determining compensation, his lights have been effectively extinguished by the amendment. This defect was apparently noticed by somebody, and was sought to be rectified by Ordinance I of 1952, the Punjab Minor Canals (Amendment) Ordinance, though the purpose was stated differently. Several subsections were added to section 47, but the most interesting is subsection 1‑A, in two parts. The first part says‑as though making a Statement of Objects and Reasons‑that "in order to give effect to the provisions of subsection (1) and to assess compensation for any canal on the principles set out therein" the history of the canal, the expenditure incurred thereon and the profits already earned by the owner‑"and notwithstanding ;n any provision to the contrary, the amount of compensation to be awarded shall be"‑

(a) the market‑value of the land under the canal at the time of its construction,

(b) the amount spent on its construction,

(c) the amount spent on its maintenance, and

(d) interest at 4 per cent. on the above amounts.

The second part takes away with the right hand whatever little the left hand gives. Thus:

Deduction shall be made in respect of‑--

(a) profits earned or which could be earned with the exercise of due diligence from the time of construction ;

(b) depreciation in the value of the canal ; and

(c) simple interest on (a) at 4 per cent.

The plaintiff states that these four canals were constructed about 90 years ago by his grandfather at the request of Government and at considerable expense, what time the Government had no canal system of its own. (Paragraph 2). The question whether the private canals should be acquired and replaced by the Shahpur Branch engaged the attention of Government in 1905, when the Shahpur Branch .was partially constructed, but expert investigations led the Government to the conclusion that the compensation payable to the owners was so great and the advantage to be reaped there from so problematical that the scheme should be dropped (Paragraph 3). In 1951, however, without any further inquiry, and for the victimisation of the plaintiff, the Government decided to take over the private canals which are quasi‑perennial, and to replace them by the Shahpur Branch which is a six‑monthly canal. (Paragraph 4). Thus in November, 1951, before even the issue of the requisite notification, Shahpur Branch began to be reconstructed, and it cut through the private canals of the plaintiff, severing them from Jhelum, and took unlawful possession of parts of them, rendering them useless. (Paragraph 5). Then, to avoid payment of compensation, the Canal and Drainage Act and the Minor Canals Act were amended, bringing the operation of sections 5 and 8 of the former into conflict with section 299 of the Government of India Act. (Paragraph 6). On 12th January, 1952, a notification purporting to be under section 5 of the Canal and Drainage Act was issued for appropriating the waters of Jhelum. This was illegal. (Paragraph 7). On the same day, another notification was issued under section 45 of the Minor Canals Act, acquiring Piranwala and Malik Sahib Khan Wala, and pursuant thereto, the Collector had invited claims for compensation. This notification is also illegal in so far as the amendment of the Act contravenes section 299 of the Government of India Act, and in any case it does not affect the plaintiff's right to acquire a compensation under the two original Acts. (Paragraph 8). Further, the amendments are opposed to the Fundamental Rights of all citizens as defined in the Objectives Resolution adopted by the Constituent Assembly. (Paragraph 9). The cause of action arose on the dates of the notifications. (Paragraph 11).

The plaintiff, therefore, claimed the following reliefs. (Paragraph 15).

(1) A declaration that the amendments being void, do not affect the amount of compensation payable to him under section 47 of the Minor Canals Act and section 8 of the Canal and Drainage Act for the acquisition of the two canals and for stopping the flow of water in these and the other two canals ; and

(2) a mandatory injunction directing the defendant acting through the Collector to assess and award compensation according to the two Acts as they stood before the amend ments.

In paragraph 7, the notification under section 5 of the Canal and Drainage Act was alleged to be illegal. The intention, I think, was to say, as was said in paragraph 8 in respect of the other notification that its "operation" was illegal, being based on an illegal amendment.

Thus the pith and substance of the plaint is that the amendments of the two Acts contravene section 299 of the Government of India Act inasmuch as they virtually delete or nullify the provisions relating to compensation and that compensation should be assessed according to the old Acts.

Apart from preliminary and technical objections, which will be found reflected in the issue (where they were insisted upon), the defendant's case in the written statement was as follows. It was denied that the canals were built at the request of the Government or that any obligation arose out of any such request. Canal making was started by Mr. MacNabb in 1860, and other people, including the plaintiff's ancestor, were attracted by its advantages and reaped fabulous profits. (Paragraph 2). As regards the Shahpur Branch, it was denied that its construction was dropped as a result of expert advice. In 1910, when the project was abandoned, more than 50 per cent of the expense had already been incurred, land had already been acquired and dug up, and there was no economic or social justification for the Govern ment to have given up the project at that stage. The canal owners had always opposed the scheme with a view to preserving their economic and political strangle‑hold over the district and the British Government had yielded to their pressure. The present Government had considered it afresh and found it ever so much more beneficial to the public than the old system of uncertain supplies and exorbitant profits. (Paragraph 3).

It was true that three out of the four canals had been cut across by the Shahpur Branch, but there was nothing illegal in that, for the Government was the lord of the waters, and compensation was being assessed for the acquisition of Malik Sahib Khan Wala and Piranwala canals.,. (Paragraph 5).

It was denied that the amending Acts come into conflict with section 299 of the Government of India Act, or that they result in depriving the plaintiff of compensation. Secondly, the Canal and Drainage Act is by reason of section 2 (3) of the Minor Canals Act not applicable to any of the canals in suit. Thirdly, payment of compensation under section 8 of the Canals and Drainage Act was apparently discretionary. Fourthly, under section 299 of the Government of India Act, constitutional obligation is satisfied by the mere making of a provision for compensation, without emphasis on its adequacy. Nor can the sovereign right of the Legislature to fix the amount of compensation or specify the principles on which it is to be determined, in a manner acceptable to itself, be subordinated to judicial determination as to adequacy. Fifthly, the rules for compensation provided by the amending Acts are just and equitable. (Paragraph 6) The plaintiff's right to take water from the river or to claim compensation for it was not admitted. The obligation under section 299 to provide for compensation related to the acquisition of land, not of water. (Paragraph 7) The objectives Resolution was not so far a part of the Constitution. (Paragraph 8) Lastly, the suit was not in accordance with the notice under section 80 C. P. C. and was liable to dismissal. The notice contemplated a suit for possession (of the canals and water), coupled with a claim for damages to the extent of eight lakh. In the alter native, the major claim was for damages and the declaratory relief was sought in respect of the amendments to the Minor Canals Act, not of the Canal and Drainage Act, and no relief was claimed under the latter Act. (Paragraph 12).

Mr. Yaqub Ali, counsel for the plaintiff, placed on the file a copy of the notice which had been served on the Government under section 80 C. P. C. while Mr. Mahmud Ali, counsel for the Punjab Government made a statement in ex planation of the official documents which he exhibited. These documents show that formal proceedings for the acquisition of land under the Shahpur Branch were taken in 1905 and 1906 and that compensation was paid to the plaintiff's father for that part of the land under his three canals where the Shahpur Branch was to cut across them.

The following issues were framed with the assistance and consent of the counsel for the parties

(1) Is the suit in accordance with the notice served under section 80 C. P. C. and can it proceed in respect of that part of the claim which is not covered by the notice under section 80

(2) Cannot the suit proceed while the proceedings relating to the determination of compensation in respect of the subject‑matter of the suit are pending before the Collector of Shahpur

(3) Does section 8 or any other part of the Canal and Drainage Act, 1873, apply to any of the canals in suit If it does not, should not the suit qua the relief claimed with reference to the Canal and Drainage Act, 1873, be dismissed

(4) Are the injunctions sought barred by clause (d) or any other clause of section 56 of the Specific Relief Act

(5) Is the suit barred by time

(6) Was not the plaintiff the owner of any part of the land under the bed of the Shahpur Branch at the time when the suit was instituted What is the effect of his not having been such owner

(7) Has Tootanwala canal been cut by the Shahpur Branch (Mr. Yaqub Ali now states that it has not been cut and that this issue is unnecessary).

(8) Are the Punjab Acts XIV and XVII of 1952 bad in law because they violate the provisions of section 299 of the Government of India Act, 1935 If they are bad in law, is not a suit competent for declaring them as such (The second part was added by order of 1st July, 1954).

(9) Do any Fundamental Rights exist as a part of the Constitution of the country If so, do the provisions of the Acts mentioned in issue No. 8 violate such rights

(10) Is the present a suit which falls solely under section 45 of the Specific Relief Act, and if so, can a civil Court in the Punjab issue a direction to the Government or a public officer to award compensation claimed under the provisions of section 47 of the Minor Canals Act and section 8 of the Canal and Drainage Act

(11) To what relief is the plaintiff entitled

Issue No. 1.‑Notice under section 80 C. P. C.‑Section 80 states imperatively that no suit shall be instituted against the Government without a two‑months' notice "stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims", and it was objected that the relief claimed in the notice was partly different from that claimed in the suit. This requires an examination of the notice.

In the first four paragraphs of the notice, the history of the four canals and of the Shahpur Branch, including the action of Government in 1951, has been given as in the plaint. Paragraph five stated that in November, 1951, Government had started reconstructing the Shahpur Brach and had illegally cut through the plaintiff's canals. severing them from river and rendering them useless. So much is stated in paragraph five of the plaint also. But the notice adds that as a result of this wrongful act t4ie plaintiff had suffered losses which amounted approximately to Rs. 8,00,000 up to date. There after, says paragraph six, the Government amended the Canal and Drainage Act and the Minor Canals Act so as to avoid payment of compensation. Both measures were con fiscatory, the one openly so, the other in the form of a veiled device.

In paragraph seven, it is stated that the notification of 12th January 1952 under section 5 of the Canal and Drainage Act, which was issued "in pursuance of the above design",

that is, to avoid payment of compensation, was in excess n of the authority conferred upon Government by that section and did not, therefore, affect the plaintiff's right to take water from the river. Therefore, the stoppage of water had entitled the plaintiff to damages mentioned in paragraph five.

Paragraph eight says that by deleting the provisions relat ing to compensation contained in the Canal and Drainage Act, the amending Act 14 of 1952 has brought, the operation of section 8 of the former Act into conflict with section 299 of the Government of India Act and to that extent section 5 of the Canal and Drainage Act had been rendered ultra vices.

Paragraphs seven and eight are thus on the same subject the ultra vires of section 5 and the reason therefor. Paragraph seven may be ignored as redundant.

Paragraph nine.‑Since (by section 2, subsection (3) the Canal and Drainage Act is not applicable to private canals, all acts performed in pursuance of the notification under section 5 to stop the flow of water into these canals are illegal.

Paragraph eleven.‑The amendment of the Minor Canals Act being opposed to section 299 of the Government of India Act, there could be no legitimate transfer of the two canals acquired by Government.

Relief is claimed in paragraph 13. In the first instance, the Government is called upon to restore the status quo ante and pay damages as mentioned in paragraph five ; failing which, a suit was threatened‑

A. (1) for a declaration that the amendments of the two Acts relating to acquisition and the notifications to the effect that henceforth the water of Jhelum shall be used‑ for the Shahpur Branch, being ultra vires, the plaintiff remains owner of the aforesaid canals and entitled to take water ; (2) for a permanent injunction restraining Government from interfering with his right to take water ; (3) for possession of portions of the aforesaid canals which had been acquired for the Shahpur Branch.

B. In the alternative, the plaintiff asked (1) for a decla ration that the Minor Canals (Amendment) Act and Ordinance I of 1952 being ultra vices, did not affect the amount of compensation payable to the plaintiff under section 47, and (2) for a mandatory injunction directing the Collector of Shahpur to make an assessment according to the Act as it stood before amendment.

C. The plaintiff also asked for damages tentatively fixed at rupees eight lakh as compensation for losses suffered on account of "the various wrongful acts of the Punjab Govern ment referred to above".

D. Any other relief to which on the facts the plaintiff may be found entitled according to law.

I must say the notice does not disclose that Mr. Yaqub Ali was clear in his mind as to the exact reliefs to which he was entitled ; consequently, he made a statement of all the facts and drew from them legal inferences which then appeared to him correct. In paras. 7 to 9 he said that the amendment of the Canals and Drainage Act being illegal, all acts pursuant to the notification under section 5 were illegal. In para 11 he said the same thing about the amendment of the Minor Canals Act. The result of these illegalities, he thought, was that the plaintiff was still the owner of the two acquired canals and entitled to the flow of water from Jhelum.

That is the relief sought in part A of paragraph 13. In the alternative he prayed that as the amendment of the Minor Canals Act was ultra vires, compensation should be determined under section 47 of that Act as it stood before amendment, but he said nothing as to the amendments effected in the Canal and Drainage Act. In both cases, however, he asked for damages. In the suit he has given up the claim for damages and has claimed a declaration that compensation should be assessed under both Acts as they stood before amendment. It is clear that he had begun to see more light, when he was drawing up the plaint.

Mr. Mahmud Ali argued that 'the Government had no notice of the fact that the plaintiff claimed relief under the Canal and Drainage Act also, and as to the relief claimed in alternative A of the notice, the Government did not worry as it was confident that such a relief was not open to the plaintiff.

I do not think that, as a matter of fact, the Government could complain of want of notice in respect of the Canal and Drainage Act after reading the notice itself. It is the reiterated burden of the sixth, seventh and eighth paragraphs that the amendment of the Canal and Drainage Act is illegal, and the relief claimed in respect of it at all stages is that it should be declared illegal. It is in respect of the further relief‑the relief consequential upon a declaration of its illegality‑that the notice has fallen into error. The plaintiff: then thought that the illegality would vitiate all proceedings taken under the notification. He now thinks it has the effect of avoiding the amendments only, leaving the original Act whole. Thus the Government had notice of a more devastating relief than has been actually claimed in the suit. Even if it had not been said in part of the relief para graph that the Court may grant any other relief to which, on the facts of the case, the plaintiff was found entitled in law, it is clear that a notice is but a statement of the case according to the plaintiff's lights, and not a complete and correct judgment of a Court of law. And when I use the word "correct" here, I mean that it should have been tested up to the final Court of appeal. It would mean that, in a difficult case, the notice should be the resultant effort of all available legal talent in .the country as to the exact inferences to be drawn from a certain set of facts, but as even with that effort the ultimate judges may not agree, section 80 would prove a trap in many cases. Then, in this particular case, it is obvious that a much larger relief has been abandoned' and substituted by a smaller relief, both arising out of the same contention. What would happen if the plaintiff had chosen one relief from alternative A, another from alternative B ; if he had claimed damages because the entire proceedings under section 5 of the Canal and Drainage Act were illegal and at the same time claimed compensation for the acquisition of the two canals on the assumption that the Minor Canals Act had been wrongly amended Could the defendant argue that he had notice of only one alternative, or that, although he had notice of both, he had adjusted his mental equipment to the shock of only one alter native at the time

The defendant's counsel relied principally on three rulings of the Privy Council‑A I R 1927 P C 176, A I R 1947 PC197=PLD1947PC160andAIR1949PC143‑merely for the fact that the provisions of section 80 are mandatory. On facts, however, these cases render little assistance. In the first of these, no notice had been issued in an injunc tion suit, as it was believed by certain High Courts that such a suit requires a speedy remedy and cannot wait for two months. The Privy Council, however, held that section 80 made no distinction. In the other two cases, the name of the plaintiff had not been disclosed, and the Privy Council pointed out that section 80 required the notice to state "the name, description and place of residence of the plaintiff".

Other cases on which the defendant relied may also be mentioned here briefly. In A I R 1949 Mad. 416, the notice by the plaintiff was in his individual capacity, while the suit was in his capacity as manager of a Hindu joint family. It was held that the judicial capacity of the person suing should not alter materially between the notice and the suit. In A I R 1949 Mad. 214, the amendment of the plaint had introduced a fresh cause of action. In I L R 38 Cal. 797, plaintiff's cause of action purported to be based on negligence in relation to a plank which had been left in the maidan and which caused injury to the plaintiff. After the suit was instituted, it transpired that the plank lay on a public path in the maidan ; wherefore, an amendment was sought so as to enable damages to be claimed on the ground of nuisance. It was held that the cause of action had altered.

The plaintiff relied on the following cases.

A I R 1926 Mad. 408.‑The notice claimed the right to plant trees; the plaint claimed ownership in the site also. This was regarded permissible, and it was observed that notices should not be construed strictly, like plaints. This, I say with respect, went a little too far.

A I R 1938 Nag. 415.‑The notice claimed ownership, the plaint claimed a mere easement. It was observed that a bigger relief had been dropped in favour of a smaller relief.

A I R 1943 Born. 138.‑The notice challenged an assess ment. The suit claimed, in addition, a refund of money that had been paid to Government as assessment after the issue of notice. This was held to be permissible.

A I R 1934 Pat. 701.‑The notice did not ask for the recovery of a specific amount which was claimed in suit. This part of the relief was disallowed, but as regards the rest, it was held that the notice should merely give substantial information to Government.

A I R 1942 Cal. 343.‑A copy of the plaint was attached to the notice, which did not clearly say that the plaintiff was suing in a representative capacity as a Shia. During the suit, the plaintiff sought to amend the plaint so as to be allowed to insert the words "on behalf of the Shia community". This was allowed. It was held that the plaint, a copy of which had been attached to the notice, sufficiently disclosed, without stating it expressly, that the suit was in a representa tive capacity.

I L R 27 Bom. 189.‑‑The notice did not say the defendant's act was with malice, while the plaint did. This affected neither the cause of action nor the relief sought.

Although none of these cases can be regarded as strictly opposite, some of them do contain views which favour the plaintiff's case.

I find this issue for the plaintiff.

Issues 2, 4 and 10.‑These were not argued by Mr. Mahmud Ali, "in the present state of case‑law". The contention in issue No. 2 is clearly enough untenable. The plaintiff complains that the Collector is assessing compensation under the wrong law, and seeks a declaration that the law enacted is in excess of legislative authority. This question could not be decided by the Collector ; nor could the plaintiff assume that the Collector would ignore the amendments.

As regards issue No. 4, section 56 (d) of the Specific, Relief Act does lay down that an injunction cannot be granter to interfere with the public duties of any department of a Provincial Government, but one could hardly imagine a ‑B tortious act of an officer of government to be a "public duty." In Lahore Electric Supply Co., Ltd., v. Province o/' Punjab (A I R 1943 Lah. 41 (F B)) a Full Bench of this Court granted an injunction against the Government where it was held that in assuming control of the Lahore Electric Supply Company the Govern ment had acted in excess of the powers conferred by the Defence of India Act. In the Province of Madras v. Baddu Paidanna & Sons where an Act of the Provincial Legislature was held ultra vires, although an injunction was not granted to restrain the Government from enforcing its provisions, the reason for doing so was that "there could be no reasonable doubt that the Provincial Government would honour a decree of a Court of Law". In the present case, it would be a better use of discretion to give clear instructions to the Collector.

As regards issue No. 10, the contention was that the matter falls solely under section 45 of the Specific Relief Act, which empowers only the East Bengal High Court, as ‑a successor of the Presidency Court at ‑Fort William, to issue an injunction. It is clear, however, that section 55 enables the issue of an injunction "to prevent the breach of an obligation" and to compel performance of acts which are necessary to prevent such breach. It was held in Administrator Lahore Municipality v. Munirud Din (A I R 1941 Lah. 200) that an injunction can be issued to a public body under section 55 even where section 45 did not apply.

Issue No. 3.‑It was contended for the defendant that since three of the canals in dispute‑Piranwala, Malik Sahib Khan Wala and Chaharmi‑were scheduled canals under the Minor Canals Act, they were excluded from the operation of the Canal and Drainage Act, by virtue of section 2 (3) of the Minor Canals Act, and that, consequently, any relief otherwise open under section 8 of the Canal and Drain age Act had been excluded. This necessitates a somewhat searching examination of the two Acts.

The Canal and Drainage Act states in the preamble that it was intended to amend the law relating to irrigation, navigation and drainage, and proceeds on the assumption that the Provincial Government is entitled to use and control for public purposes, the water of all rivers and streams flowing in natural channels, and a canal under this Act is a canal "constructed, maintained or controlled by the Provincial Government for the supply or storage of water". The defini tion of a canal under the Minor Canals Act itself shows the difference between the two sets of canals. The words "by the Provincial Government" do not occur in the latter definition. From the preamble and the definition, therefore, one can see that the Canal and Drainage Act intends to make use of rivers and streams for the purpose of constructing canals and running them under the management of Govern ment exclusively. Part II‑"Of the Application of Water for Public Purposes"‑makes the intention further clear. Under section 5 in this Part, whenever the Government intends to use the water of a river for an existing or projected canal, a notification is issued to that effect, and under section 7, claims for compensation are invited. This invitation assumes that some private canals would be affected by the diversion of water from the river to the State canal, and recognises the right of the canal owner to be compensated for.

The remaining Parts of the Act deal with the construction and mintenance of works, the supply of water to land‑owners, water‑rates charged on such supply, canal navigation, drainage, etc. It will be noticed that no provision of this Act applies to a private canal and that the administration of the canals rests thereunder with "canal‑officers"‑the Irrigation De partment.

"It was inevitable", states Donie's Land Administration Manual (1931 edition, pages 324, 325) "that difficult questions should arise in connection with private canals, and it was evident that the eLahorate provisions of the Northern India Canal and Drainage Act, 1873, were not well suited to many smaller irrigation works, whether private or not, which were managed and controlled by Government." "The owner of a private canal is not, like the owner of an irrigation well, independent of relations with the persons outside the ringfence of his own property. Even when the canal is constructed solely to irrigate the owner's land, the interests of the State are involved in the detraction of water from the river or natural stream, and it is rarely the case that the supply channel can be constructed without its bed passing through land belonging to other persons. When, as is more commonly the case, irrigation is supplied not only to the canal‑owner's land, but also to whatever area, however owned, may be commanded by the available supply, relations arise which, in the interest of canal‑owners and irrigators and of peace and good government generally, require to be controlled and regulated." (Statement of Objects and Reasons.) "Moreover, it was possible that a private individual having secured a monopoly of the water‑supply might charge others so high a price for it as to interfere with the legitimate claims of Government to land revenue." (Donie's Manual). It was in this context that the Minor Canals Act of 1905 was passed.

But it was not primarily for the control of private canals that the Act was brought into being. It was the control and administration of the "minor" canals, whether private or State‑owned, that the Act intended. These canals were put in two Schedules. The second Schedule included only private canals and the first included those which were owned in whole or in part by Government or managed by Government officers or by any local authority. (Proviso to section 2) The Government has power under subsection (2) of section 2 to transfer a canal from one Schedule to the other or to include a canal in either Schedule .or to exclude it from both. Thus a canal in Schedule II may be acquired by Government under section 45 and be transferred to Schedule I. Or a canal‑like the Nammal Canal of Mianwali recently‑may be excluded from both Schedules (it was in Schedule I origi nally) and therefore become subject to the Canal and Drainage Act.

Chapter III of the Act applies exclusively to canals in Schedule I and Chapter IV to those in Schedule II. Under Chapter III, the Collector exercises all powers of control, management and direction, "notwithstanding the existence of any rights in or over a canal or water‑course" (section 10), and these rights can be extinguished by Government, subject to compensation, if their exercise is prejudicial to other irrigators or to good management. (Section 11). Under section 29 the Government may charge water‑rates of the use of water.

Chapter IV provides in section 34 that the Collector may appoint a manager in respect of a private canal where there are many shareholders and there is no proper manager.

Section 36 provides for the assumption of complete control by the Collector if the owner either consents or conducts the management injuriously to certain interests and if the Collector's management exceeds six years, the owner may require the Government under section 37 to acquire the canal.

Chapter V contains provisions applicable to all minor canals, principal among these being the provisions relating to acquisition. These we have already noticed in another part of the judgment. A notification that Government intends acquiring a canal is issued under section 45 and claims for compensation are invited under the following section.

It should be evident that when section 2(3) of the Act says that the Canal and Drainage Act "shall not apply to any canal which is for the time being included under either Schedule I or Schedule 11. "It is not intended to imply that if a private canal had not been included in Schedule Il, the Canal and Drainage Act would have applied to it, for that Act was never applicable to private canals. The reference to Schedule II canals should, therefore, be regarded as redundant. The object merely was to exclude the State‑owned or State controlled "minor" canals from the administration of the Canal and Drainage Act. The administration of minor canals, it will have been noticed, is with the Collector, not with the Irrigation Department. It only means that a canal mentioned in the two Schedules will be managed in a manner, and by authorities, different from the manner and authorities pres cribed in the Canal and Drainage Act. It does not mean that if any rights arise from an Act of Government under section 5 of the Canal and Drainage Act, they have been taken away by a simple proviso in section 2(3) of the Minor Canals Act. One reason why this interpretation should be rejected is that the extinction of a right without providing for compensation would itself raise the question of legislative incapacity, and we see no provision in the later Act which can compensate for the loss of rights resulting from a notifi cation under section 5. There are only two sections in the Minor Canals Act which might have been regarded as compensatory. Under section 4, the Government may "notify" any natural channel, lake or other collection of water, and thereafter no person may take a canal from it except by application to the Collector, When the Collector himself wants to construct a canal to be fed by such channel, he will "give notice by general proclamation to all persons interested of his intention to construct such canal." (Section 6). If no, "objection" is preferred, or if such objection is over‑ruled, the Collector may proceed to construct the Canal. Appa rently, objection will be raised by persons whose private canals are affected, but there is no mention of any compensation to them and no further explanation as to what will happen if the objection is accepted.

Mr. Mahmud Ali himself referred to section 39, which gives power to Government, in respect of Schedule II canals,

(a) to fix the limits of irrigation, (8) to fix the amount and character of water‑rates leviable by the owner and (c) to regulate the supply and distribution of the water to and from such canal. If the income of a canal‑owner from such canal is materially reduced by reason of any orders passed under this section, he may be compensated in the manner provided in the Land Acquisition Act. It will be noticed that a cause of action arises under clause (c) of this section only if the Collector regulates the supply and distribution of water to and from such canal, not if Government takes a canal from the river, with resultant loss of water to the minor canal. Consequently section 39 will not apply to a case of the present nature.

I, therefore, hold that section 2(3) of the Minor Canals Act has no reference to any relief to which a canal‑owner may be entitled under sections 5 to 8 of the Canal and Drainage Act.

Issue No. 5.‑Limitation‑The plaintiff's case is that limita tion is governed by section 120 of the Limitation Act, which provides a period of six years from the date when the right to sue accrues. This is an omnibus provision, and for the defen dant no other article is relied upon, except Article 2, which provides ninety days for a suit for compensation arising out of an act done in pursuance of an enactment. Article 2 is clearly inapplicable, because the suit is not for compensation, but for a declaratory relief.

The plaintiff said the cause of action arose out of the two notifications issued on the 12th January 1952, one of them giving notice of the intention to use of water of Jhelum for the Shahpur Branch, the other of the projected acquisition of Piranwala and Malik Sahib Khan Wala canals. The suit having been instituted on the 25th January 1954 is within six years. It is true that in 1907 acquisition proceedings under the Land Acquisition Act were completed in respect of those portions of the three canals‑Piranwala, Malik Sahib Khan Wala and Chaharmi‑which were to be cut across by the Shah pur Branch but the canals were not actually cut across and the plaintiff continued to use them to full capacity as before. He asks for relief under the two Canal Acts, not under the Land Acquisition Act, and that relief was not open so long as notifications had not been issued as on the 12th January, 1952, enabling relief in the one case under sections 7 and 8 of the Canal and Drainage Act, in the other under sections 47 and 55 of the Minor Canals Act. This is obvious enough.

The defendant's counsel, Mr. Mahmud Ali, contends, however, that an earlier notification under section 5 of the Canal and Drainage Act was issued on the 12th January, 1900, when the Jhelum Canal (now the Lower Jhelum) was dug up, and that the Shahpur Branch is merely a branch of the Lower Jhelum, requiring no fresh notification. The Government do not appear to have been of that view when they issued a fresh notification, but assuming that the Government had acted by way of abundant caution, it remains to be seen whether the plaintiff's canals were affected by the Lower Jhelum. The plaintiff's counsel says they were not affected, and there is no evidence one way or the other. The very circumstance that Government has found it necessary to issue a fresh notification may be used by the plaintiff to support his argument that it is the Shahpur Branch, not the present canal which affects the flow of water in his canals, and it is pertinently suggested that Government will find it necessary to diverst as much further water from the river into the Lower Jhelum as will keep the Shahpur Branch running. The "head‑works" of the plaintiff's canals being admittedly down stream his supply will be seriously effected. The notification of 1952, therefore, is the one that affects the plaintiff. The suit is within time.

Issue No. 6.‑The plaintiff's counsel conceded that he w a5 not the owner of any part of the land under the bed of the Shahpur Branch, at the time when the suit was instituted, No relief claimed by him, however, is dependent on that circumstance.

Issue No. 7.‑This was conceded by Mr. Yaqub Ali at the time when the issues were framed but his case is not affected thereby.

Issue No. 8.‑This is the principal issue, the question being whether the amending Acts and Ordinance of 1952 are ultra vires the Provincial Legislature by reason of any repugnancy with the provisions of section 299 of the Government of India Act.

Section 299, so far as relevant, is as follows :‑

Section 299 (1). No person shall be deprived of his property save by authority of law.

(2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking . . . unless the law provides for giving compensation for the property acquired and either fixes the amount of compensation, or specifies the principles on which, and the manner in which, it is to be determined and given.

(5) In this section "land" includes immovable property of every kind and any rights in or over such property, and "undertaking" includes part of an undertaking.

Mr. Yaqub Ali's contention is that the right to use water in the plaintiff's own canals is a right to immovable property, that this right was recognized in the earlier Acts by a provision for compensation and that since the amendments have so modified the original Acts as virtually to take away that right they have hit the constitution.

Mr. Mahmud Ali's reply to these contentions has numberless ramifications. Firstly, the right in question is not immovable property. Secondly, section 299 provides for "com pensation" only, not for "adequate" or "just" compensation, and it is not for the Court to decide whether any principles laid down by the Legislature for assessing compensa tion lead to the award of just compensation. Thirdly, the amendments by themselves do not, in the language of the section, "authorise the compulsory acquisition"; it is the original Acts which make that provision. The amendments. therefore, are not hit by section 299. Fourthly, section 299 requires compensation to be paid "for the property acquired" not for the property not acquired ; and section 23 of the Land Acquisition Act provided compensation, so far as the plaintiff goes merely for damage by severing one part of his land from another part or by injuriously affecting his earnings. Fifthly, compensation under section 8 of the Canal and Drainage Act was discretionary. Sixthly, the amendment of section 47 of the Minor Canals Act has not damaged the measure of the plaintiff's right. Seventhly, the right to compensation was provided for under sections 11 and 12 of that Act, and these have not been altered. Eighthly, elimination of a reference to the Civil Court merely alters the Procedure, in which nobody has any vested right.

Objections of a less aggressive character, if they were made by Mr. Mahmud Ali, have escaped my memory.

1. Whether the right of the plaintiff in the four canals "immovable property" or a right therein. The term "immovable property" has not been defined in the Govern ment of India Act, nor in the Interpretation Act. In the General Clauses Act, section 3 (25), it is defined so as o include "land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth". Whether this definition should be accepted for our purposes is a question which directly faced Bose J. in Kaunwar Lal Singh v. Provincial Government of C. P. & Berar (A I R 1944 Nag. 201) where the enhancement of a cess known as takoli without providing for compensation was contended to be a violation of section 299. In a learned judgment, Bose J. agreed with the contention that "Parliament meant to include in the definition of land all the various and varying definitions of immovable property which have been given to that expression in India both by Acts of the Legislature as well as by judicial decisions". Among others he relied on the following opinion of Lord Macmillan in the House of Lords' decision reported as 1933 A. C. 411

"The principle of the rule is that where the language of a statue has received judicial interpretation and Parliament again employs the same language in a subsequent statute dealing with the same subject‑matter, there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which meantime has been judicially attributed to it. Parliament, in short, is to be presumed to have given statutory effect to the judicial interpretation so as to render it as binding on the Courts as if it had been expressly enacted in an interpretation section."

In Maharana Fattehsingji v. Dessai Hakoomatraiji (1837 1 Indian Appeals 34) the Privy Council had to adjudicate upon the quality of a right called the toda gira hug‑a payment made by the inamdar out of the rents of the village, a hereditary right of the plaintiff to receive an annual payment, the liability being not personal to the inamdar, but one which attaches to the inamdar to whom the village may pass. Their Lordships observed that "the interest does possess the qualities both of immobility and of indefinite duration in a degree which in English law would entitle it to the character of a freehold interest in real property‑that upon the general principles of construction applicable to an Indian statute it must be held to be an interest in immovable property within the meaning of" the Limitation Act.

I see no way out of the definition given in the General Clauses Act. In Alam Sher v. Ram Chand (11 P R 1898) applying this definition, Stogdon J. observed that "water, as long as it is flowing in the bed of a stream or river, is attached to the earth, and is therefore immovable property, though it can be made into, movable property by severance or removal from the earth, but the subject‑matter of the suit is not any particular water, F but the right to the use of water. The right to such use is G certainly a benefit, and it arises out of land, because the water of a perennial stream comes out of land. Even if it came out of the clouds, I should be inclined to hold that the benefit arises out of land, because the water must be first received by the land before it can be beneficially diffused." I think, with great respect, that this is a very sound exposition of the matter. We have not, in our judicial interpretation, accepted the sheer quality of immobility as a determining factor, for if a thing were to be regarded as immovable only if it cannot be moved, then even the solid earth is not immovable, at least when it is shaken by an earthquake.

There is a string of cases laying down that water‑rights (jalkar, fishing, etc.) are immovable property. See 24 Cal. 504 (P. C.), 12 Born. 221, 20 Cal. 446 (benefit arising out of land), 19 Cal. 544 (F. B.) (even if water covers land belonging to another). Mr. Mahmud Ali referred to 3 Cal. 276 for the reason why jalkar was regarded as immovable property, not an easement, as it would be under the amended Limitation Act but the distinction is futile for our purpose, since an easement is itself a right in or over immovable property, and will, as such, be covered by the definition of land in subsection (5) of section 299.

He also relied on A I R 1931 All. 392, where growing timber was held to be movable property for the purpose of the Stamp Act, the question being whether the sale of timber was a lease of immovable property. The decision, however, was based on the fact that the contract was for the removal of timber, which amounted to a sale of goods or merchandise.

In A I R 1921 Bom. 417, another case cited by Mr Mahmud Ali, the right to take water from a well was not held to be a right or interest in immovable property, but an easement. There, however, the right was held to be an easement on the facts of that case.

II. Whether "compensation" means adequate compensa tion. Mr. Mahmud Ali referred to the constitution of some other States where "just compensation" was provided for compulsory acquisition, as in the American Constitution, Fifth Amendment‑‑"nor shall property be taken for public use without just compensation." In the French Constitution, "previous just indemnity" is provided for in similar circum stances. (Fundamental Rights of Man, 17th Clause.) In the Australian Commonwealth Constitution the words used are "just terms" and in the constitution of Lugemburgh "just and prior compensation." He argued that the omission of the word "just" from the Constitution of British India, knowing as Parliament did that it had been used in other countries, was deliberate, and that, consequently, it was not intended that the Court should inflict on the Legislature its own notions of just compensation.

At least it is now clear that section 299 is not a limitation on legislative power, and that other countries also have, as a fundamental right of the citizen, provided for compensation in similar cases. Indeed, it was said in A I R 1946 Born. 216 that the provisions of section 299 represent the fundamental principles of British jurisprudence and International law, which should never be departed from in the exercise of legislative power, an observation over which the legislative advisers of the Punjab Government in 1952 could well afford to ponder again and again, with great advantage to their breadth of vision. Bearing this in mind, we have to see whether the British Parliament intended that in some cases the compensation awarded might be unjust.

That is a notion too preposterous for words. Indeed I am not going to say, for the benefit of a head‑note in a law journal, that "compensation means just compensation," for it means neither more nor less than what it means to the English language. It means "counter‑balancing", "rendering of equivalent", "requital", "weighing one thing against another". (Oxford Dictionary, Volume II), but it does not mean weighing copper against gold. Therefore, you cannot compensate. a man without requiting him for his "land", without the rendering to him of an equivalent in money. If the Government; acquire the Shah Din Building on the Mall .for twenty‑five rupees, will the owner be compensated Then if the Court is not to decide whether a person has been "compensated" under section 299, and the reference to the District Court is also excluded by the amending Acts, let it not be said in this new era of freedom and conscience that this is a fundamental principle of British jurisprudence and International Law ; let us not profane the Fundamental Rights of Man.

The use of the word "just" or "adequate" with "compensation" is, I shall permit myself to say, a tautological aberration.

III. It is contended that section 299 declares a law void. if it authorises compulsory acquisition without providing for compensation, and as the amendments do not, by themselves, authorise any acquisition they are not hit. It is true that the amendments only nullify the provisions of the original Acts relating to compensation, and that the power of acquisition' is conferred by those Acts themselves. But then the legislature could always adopt the ingenious device of first passing an Act which provides for compensation in case of compulsory acquisition and subsequently amending it so as to nullify those provisions. Consequently, an amendment should J not, for the purposes of section 299, be examined without reference to the original Act, and indeed it is never so examined. It is by the amending Acts in this case that the legislature has made the original Acts into a law authorising compulsory acquisition without compensation, because the original Acts did provide compensation. This objection is meaningless.

IV. The next contention is that while section 299 requires compensation to be paid "for the property acquired", section 23 of the Land Acquisition Act, to the elimination of which exception is taken by the plaintiff, merely deals with the effects of severance, not with acquisition. The short answer to this contention is that the effect of severing one part of a property from another has been recognized as an incident of compulsory acquisition by the Land Acquisition Act itself. That Act provides for the compulsory acquisition of land, and in laying down an eLahorate procedure for the assessment of compensation, requires the Collector and the Court, each in his respective sphere to be guided by certain principles stated in section 23, one of these being that if the acquisition of any land results in dividing the property into inconvenient or unprofitable blocks, the measure of compensation should vary according to the injury thus caused. This is elementary enough.

V. Whether compensation under section 8 of the Canal and Drainage Act was discretionary. It is true that section 8 in its original form provided that compensation "may" be awarded in respect of certain matters, and there is scope for the argument that if the award of compensation had been obligatory, the legislature would have used the word "shall". It was contended that section 8 gave a power to Government to award compensation, but that since there was no corres ponding "right" in any person to receive compensation, the Government could award it or not in its discretion. One strong objection to this argument is that, according to this interpretation, there would be no person at all who would be entitled to compensation under the Act, thus rendering the provisions as to compensation a decorative absurdity; and just as there is nothing without use on God's earth, so is there nothing useless in a legislative measure. But Mr. Mahmud Ali argued that this was not so, that section 8 was not exhaustive of the persons to whom compensation could be given, and that an example of an "entitled" person was to be found in sections 31 and 32 (f). According to section 31, supply of canal‑water to irrigators was governed, "in the absence of a written contract" by rules, a provision which implied that if there were a written contract, Government would be bound to supply water. Similarly, under section 32 (f), no right to the use of water can be acquired by prescription, and Government is not bound to supply water "except in accordance with the terms of a contract in writing." These provisions, however, relate to the supply of water by the Government from its own canals to the irrigators, not to the water which the plaintiff's canal divert from the river. The objection, therefore, does not cease to have force. As a matter of fact, one finds a direct answer to this particular argument in clause (h) ‑of section 8, which provides compensation for "damage done in respect of any right to a water‑course or the use of any water to which any person is entitled under the Indian Limitation Act, 1877, Part IV." This right is substantial enough, and it has been pro nounced in the section itself as a right. According to Mr. Mahmud Ali's argument, the word "may" should be treated as imperative only when you deal with a case under clause (h), but in respect of the other clauses it is discre tionary.

Apart from this unjustified discrimination between the various clauses of section 8, the whole scheme of Part II of the Act points to the conclusion that compensatory relief was intended to be mandatory. After the issue of a notification under section 5, declaring the Government's intention to use the water of a river for an existing or projected canal, the Collector "shall" cause public notice to be given and invite "claims" for compensation. A person "claims" a thing as a matter of right, and it would be a remarkable abuse of a notification to invite claims, put some people to the expense of preparing eLahorate estimates‑which, in a case like the present, could not be accomplished without expensive legal advice, the study of fiscal history from the annexation down wards, the examination of voluminous records, the preparation of certified copies, . . . . and then dismiss the case because you are not inclined to use your discretion.

Next, under section 10, the Collector "shall" proceed to inquire into the claim and not only to inquire, but also "to determine the amount of compensation", and certain provisions of the Land Acquisition Act "shall" apply to such inquiries. Now look at some of those provisions. Under section 11 of the Land Acquisition Act the Collector "shall" hold an inquiry and "shall" make an award. Section 15 requires that in determining the amount of compensation, "the Collector shall be guided by the provisions contained in sections 23 and 24." Under section 18, any person who had not accepted the Collector's award may "require" the Collector to refer the matter for the determination of the Court and the Collector is bound to make the reference. Under section 23, in determin ing the amount of compensation "die Court shall take i71to con sideration" a number of matters stated therein in six clauses.

Can it be said that the Collector has any discretion in the matter from beginning to end A power has been conferred on him, true enough, but if he is not to deprive some others of a recognized right to compensation, he must exercise it.

After this scrutiny of the Act, it hardly seems necessary to decide how such words and phrases as "may" and "it shall hr' lawful" should be interpreted, but I think two of the several cases cited by Mr. Mahmud Ali may be examined with advantage. The first is Nichols v. Baker, ((1890), 44 Chancery 262) where section 125 of the Bankruptcy Act was under examination. It provided that the Court of Chancery "may" make an order transferring a case where insolvency is established from the Chancery Division to the Court of Bankruptcy, and it was held that the order was optional. Cotton L. C. observed : " I think that great misconception is caused by saying that in some cases may means must. It never can mean must, so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases, where a Judge has a power given him by the word may, it becomes his duty to exercise it."

The second is Julius v. Bishop of Oxford ((1880) 5 A C 214). The third section of the Church Discipline Act provided that where a clerk in holy orders was charged with any offence against the Laws Ecclesiastical, "it shall be lawful" for the bishop of his diocese, on the application of any party or of his own motion, to issue a commission of enquiry. It was held that this gave the bishop complete discretion to issue or deck issue commission.

But the reasons which Their Lordships gave for their decision are more important than the decision itself. "The words it shall be lawful', " said the Lord Chancellor, Earl Cairns, "are not equivocal. They are plain and unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is done something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."

Then he examined some cases where the word 'may' had been interpreted as introducing compulsion. "The earliest case . . . . is that of Alderman Backwell before Lord Keeper North. The creditors of Alderman Backwell petitioned for a commission of bankruptcy against him and they would have been obviously exposed to prejudice and hazard, if it had not been granted. The words of the statute are that the Chancel lor 'may grant a commission', and the Lord Keeper held that he was bound to excercise the power which was in effect reposed in him for the benefit of those who asked for its exercise."

In the next case King v. Barlow, there was an indictment against the churchwardens for not making a rate to reimburse the constables. The words used were "may make a rate", but "it was naturally held that the constables were entitled to be reimbursed, and that the churchwardens, being made the depositories of a power for that purpose, could not refuse to exercise it."

Referring to Macdougall v. Paterson, where the question was whether. the costs of the suit should be allowed to the plaintiff when the law provided that they "might" be allowed, the Lord Chancellor quoted Chief Justice Jervice to have held "that when a statute confers authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority, when the case arises, and its exercise is duly applied for by a party interested, and having the right (that is, having by statute the right) to make the application."

Finally: "My Lords, the cases to which I have referred appear to decide nothing more than this; that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised."

In the present case, the persons for whose benefit the Collector is empowered to exercise his powers have been spe cifically pointed out: they are those whose water supply has ; been adversely affected. In their favour section 7 has created a right to make an application. The conditions upon which the power is exercisable are also given in section 8. "Some thing in the nature of the thing empowered to be done, some thing in the object .. . . something in the conditions . . . something in the title of the person . . . . "All these considerations create a duty corresponding to the power.

VI. Effect of the amendment of section 47 of the Minor Canals Act.‑Originally, the Collector, in assessing com pensation, was to proceed under section 55 (which will be referred to later), "but, for the purposes of this section, he shall also have regard to the history of the canal, the expendi ture incurred thereon and the profits of the owner." The "profits of the owner" have now been replaced by the "profits already earned by the owner", and Mr. Mahmud Ali says it has made no difference. It has made some little difference, because while originally the Collector had to see what the plaintiff was earning, say yearly, on the date of the compulsory acquisition, and establish some sort of concord between that figure and the amount of compensation to be awarded, he has now to ascertain what "fabulous amounts" the plaintiff has already earned during the course of the last eighty or ninety years and cut down compensation accordingly. Lest the Collector should have any doubts, Ordinance I of 1952 provides that "in order to give effect to the provisions of subsection (1)", deduction shall be made from the amount to be awarded as compensation "of the profits actually earned or which could be earned with the exercise of ordinary diligence plus simple interest on those profits at four per cent. Mr. Mahmud Ali says we should not look at the later Ordinance for the purpose of ascertaining the earlier intentions of Gov ernment, and I think he is right if he means that only the Collector should look at the Ordinance or the subsequent Bill at the time of assessing compensation.

I have not been able to appreciate the argument that the latter part of original subsection (1)‑"the history of the canal, the expenditure incurred and the profits of the owner was intended to have the effect of "depressing" the value of the property acquired. The argument was that since under section 55, the provisions of the Land Acquisition Act, particularly of section 23 thereof, were applicable, subsection (1) of section 47, superadding thereto the history, the expendi ture and the profits, was by implied intendment, a devaluating provision. Thus "the expenditure incurred" of section 47 was naturally much less than "the market‑value" of section 23 first, of the Land Acquisition Act. It is true that normally the expenditure incurred fifty years ago would be much less in terms of money than it would be today, but the Collector would certainly be misguided if he is oblivious of the money market. And there may possibly be cases where, although the expenditure incurred was great, the market‑value has fallen The Collector will, therefore, try to arrive at an agree able mean.

But the other two factors mentioned have by no standard a "depressing" effect. Profits of the owner clearly mean profits that he is making at the date of assessment, and as regards the history of the canal, it may be found that, at a time when large tracts of land lay barren, when vast wildernesses bred panthers, pigs and mosquitoes, when rainfall was scanty and people diverted themselves from starvation with tent pegging, there could be found some men of enterprise, some pioneers of husbandry, who could be "induced" to excavate a canal even with free Lahour.

VII. It is true that sections 11 and 12 of the Land Acqui sition Act have not been touched by the amendments. They provide for an inquiry by the Collector and the making of an award. The deletion of section 15, however, robs the Col lector of the benefit of section 23, with the result that, so long as the amending Bill of 1952 does not receive the assent of the Governor‑General, there exists no procedure by which the Collector should guide himself. And when the Bill does receive such assent, the Collector will take into consideration the market‑value of land at the date of construction (not acquisition) and the expenditure incurred on it, which may total up to Rs. 20,000, deducting therefrom the profits already made during the last eighty or ninety years, which should be any amount upwards of a lakh of rupees ; deducting also interest at four per cent on these profits. Whatever be the ethics of the matter, it is not in good taste to pretend that this measure has not inflicted a severe blow on compensation. In the result, it is the Government, not the plaintiff, that will have to be compensated.

Mr. Mahmud Ali argued, basing his argument on the good conscience of the Collector, that the latter might suo motu take into consideration such matters as "severance", and that Government itself might make rules under section 74 of the Minor Canals Act, providing for the matters excluded by the amendments. I think the plaintiff could reasonably expect the Collector's conscience to be loyal to the law as it stands, and as for the rule‑making power, it could not be expected that what was taken away by the law would be restored by the rules.

VIII. Elimination of reference to the Court.‑The plain tiff does not complain that he has been deprived of a reference to Court, but he complains that with the elimination of the entire Part III of the Land Acquisition Act, section 23, which belongs to that Part, has also disappeared. The intention of Government, however, were it relevant, is made clear. A tribunal which has kept in restraint the enthusiasm of the Collector for sixty years has at once been dissolved to meet a particular situation in Shahpur District, and if, while the Court existed, the Collector could not restrain himself in many cases, it is not expected that in the absence of that restraint, the tendency to error on the side of enthusiasm for a public cause will not assert itself with full vigour.

I hold that the amending Acts are hit by section 299 of the Government of India Act, and that they are consequently ultra vices the Provincial Legislature.

Issue No. 8, second part.‑It was contended that even if the amending Acts are bad in law, a suit for a mere declara tion to that effect does not lie. Section 42 of the Specific Relief Act permits a declaration only in favour of a person, entitled to any legal character or to any right as to property, and it was argued that there was neither any legal character nor any right to property involved in having a statute declared void. The plaintiff, however, has a right to compensation in respect of the canals, a right which the defendant has denied by introducing amendments, and the Court cannot make a declaration that the plaintiff is entitled to this property with out first declaring the amendments to be void.

Issue No. 9.‑Fundamental Rights.

Notwithstanding that the Objectives Resolution has been " adopted " by the Constituent Assembly, it is not so far the law of the land, and the plaintiff cannot rely on it.

Issue No. 11.‑Relief.

Mr. Mahmud Ali argued that even if section 8 of the Canal and Drainage Act and sections 47 and 55 of the Minor Canals Act were held to be invalid, the result will be that the old Acts will stand repealed to that extent and the acquisition will become illegal. But that, he said, was not the relief the plaintiff asked for. Frankly, I do not appreciate this argument. If the amendments are held to be bad, the original Acts are left intact; It is not as though the original Acts had been physically " killed " by the amendments, so that, if the amend ments themselves were killed ", the original Acts could not be restored to full life. They are. restored to full life, and that is what I declare to be my finding.

It is, therefore, declared that Acts 14 and 17 of 1952 and Bill No. 6 of 1952 are in excess of the legislative powers of the province and, therefore, bad in law. A permanent injunction is granted to the plaintiff restraining the defendant, acting through the Collector of Shahpur, from assessing compensa tion in accordance with these enactments, and a mandatory injunction is granted directing the defendant, acting as before to award compensation in accordance with the original Acts, (1) for the acquisition of Piranwala and Malik Sahib Khan Wala and (2) for the stoppage of the flow of water from Jhelum into Chaharmi and Tootanwala. If any item o compensation under the two Acts is overlapping, it will be allowed only once, in a manner advantageous to the plaintiff.

The suit is decreed with costs.

I certify under section 205 of the Government of India Act, for the purposes of an appeal to the Federal Court, that this case involves a substantial question of law as to the interpretation of the aforesaid Act.

SCHEDULE

Showing alterations effected in existing law by the amend ing Acts etc.

(In most cases, only the substance of the section is given).

Canal and Drainage Act Old Act Amendments Section S.‑Notification to issue when Government intends to use the water of any river for the purpose of any existing or projected canals. Section 6.‑Thereafter a Canal officer may enter on any land and remove any obstructions and may close any channels for the use of the said water. Section 7.‑As soon as is practicable after the notification, the Collector shall cause public notice to be given stating the intention of Government to use the said water and that claims for compensation in respect of matters mentioned in section 8 may be made before him. Section 8.‑No compensation shall be No compensation shall be awarded awarded for any damage caused by- awarded for any damage caused by- (a) . . . . . . (a) . . . . . (b). . . . . (b) . . . . . (c) . . . . . (c) . . . . . (d) . . . . . (d) . . . . . But compensation may be awarded (e) . . . . in respect of any of the following (f) . . . . . matters :‑ (g) . . . . . (h) ...... (e) Stoppage or diminution of supply of water through any natural channel to any defined artificial channel in use at the date of the notification. (f) . . . . . (g) Stoppage or diminution of supply of water through any natural channel which has been used within five years. (h)...... (i) any other substantial damage which is capable of being ascertained. Section 9.‑No claim for compensation Deleted. shall be made after the expiration of one year from such stoppage. Section 10.‑The Collector shall proceed Deleted to enquire into any such claim and to determine the amount of compensa tion, if any, which should be given to the claimant, and sections 9 to 12, 14 and 15, 18 to 23, 26 to 40, 51, 57, 58 and 59 of the Land Acquisition Act shall apply. Section 13.‑Compensation shall become Deleted. due three months after the claim. Thereafter interest at six per cent. should be paid. Land Acquisition Act Section 9.‑Notice by Collector to per sons claiming compensation. Section 10.‑Power ro require and en force the making of statements as to names and interests. Section 11.‑On the day fixed, the Collector shall enquire into the objections as to measurements an and into the value of the land at the date of the publication of the notification and into the res pective interests of the persons claiming compensation and shall make an award. Section 12.‑Award of Collector when to be final. Section 14.‑C. .P. C. applicable to attendance, etc., of witnesses. Section 15.‑In determining the amount of compensation, the Collector shall be guided by sections 23 and 24. Section 18.‑Reference to Court. Section 19.‑Collector shall communicate certain information to Court. Section 20.‑Service of notice. Section 21.‑Inquiry restricted to interests of the persons affected by the objection. Section 22.‑Proceedings to be in open Court. Section 23.‑In determining the amount of compensation to be awarded for land acquired, the Court shall take into consideration‑ first, the market‑value of the land at the date of the notification ; secondly, damage to standing crops or trees thirdly, damage by reason of severing such land from his other land ; fourthly, damage by reason of the acquisition injuriously affecting his other property or his earnings;" fifthly, . . . . . . . . . . . sixthly, . . . . . . . . . . . . Minor Canals Act of 1905 Section 3 (ii).‑" Canal " means any " Canal means any canal, natural or artificial channel; canal, etc., and in etc., and includes any water‑course cludes any portion of or subsidiary works as defined in this a canal or any water‑section. course etc. Section 39 (c).‑The Provincial Government may issue orders regulating the supply and distribution of the water to and from such canal : Provided that if the income of the canal owner ' from such canal is materially reduced by reason of any orders passed under this section, he shall be paid by Government such compensation as the Collector may consider reasona ble. Section 45.‑Government may acquire Six months shall be any canal by notification within six replaced by one months thereof. month. Section 46.‑As soon as practicable after the notification, the Collector shall cause public notice to be given stating the Government's intention to acquire the said canal and that claims for compensation may be made before him. Section 47.‑In assessing compensation . . . . . . but for the the Collector shall proceed as pro‑ purposes of this vided in section 55, but for the section, the Collector purposes of this section he shall also shall also have regard have regard to the history of the to the history of the canal, the expenditure incurred canal, the expenditure thereon and the profits of the incurred thereon and owner. the profits already earned by the owner. Section 55.‑In assessing the amount of In assessing the amount compensation the Collector shall of compensation to be proceed under the provisions of the paid, the Collector Land Acquisition Act and the pro‑ shall proceed under visions of that Act regarding in‑ the provisions of the quiries and awards by the Collector, Land Acquisition Act reference to the Civil Courts and and the provisions of procedure thereon, apportionment that Act, except sec of compensation, payment and appeals tions 18 to 28, sub shall, as far as may be, be applicable section (3) of sec to all proceedings under this tion 38 and section 54 section. shall be applicable.

(Sections 18 to 28 of the Land Acquisition Act constitute part 3 " Reference to Court " and includes section 23 which gives the principles which the Court shall take into considera tion when awarding compensation).

Punjab Minor Canals (Amendment) Ordinance I of 1952

The following subsections should be added to section 47 of the Minor Canals Act, 1905 :‑

I‑A (i) In order to give effect to the provisions of subsection (1) and to assess compensation for any canal on the principles set out therein, and notwithstanding any pro vision to the contrary in any law, the amount of compensation to be awarded shall be‑

(a) the, market‑value of the land under the canal at the time of its construction ;

(b) the amount spent on its construction ;

(c) the amount spent omits maintenance ; and

(d) interest at 4 per cent on the above amounts.

(ii) Deduction shall be made in respect of the following:-

(a) the profits actually earned or which could be earned with the exercise of ordinary diligence from the time of the construction till the date of notification ;

(b) the depreciation in‑the value of the canal ; and

(c) simple interest at 4 per cent on the amount worked out under (a).

K. M. A. Suit decreed.

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