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Revision Side No. 52 and 53 of 1955‑56, decided on 25th January, 1957. District Bahawalpur.
S. 33--‑Irrigators failed to prove their innocence‑Penalty not remitted.
S. 33‑---Matters to be taken into consideration while assessing penalty, stated.
Held, that the Commissioner was probably working under the assumption that he would reduce the penalty to an equivalent of single crop rates. He, however, treated the irrigation in preparation for the Rabi as a matter of a Rawani' only and he did not take into account the fact that the Rawani' may not have led to the production of some Rabi crops. Technically, the crop rates applicable should have been in accordance with the actual crops which were produced in Rabi. This would justify an increase in the penalty levied against the irrigators on the assumption that the penalty should be equivalent to single crop rates.
Nisar Ahmad for Petitioner.
This order will dispose of two petitions for Revision Nos, 52 and 53 of 1955‑56.
The question of imposing a penalty on the irrigators from outlet No. 38 on the distributary No. 6‑L of Ahmadpur Branch arose from the fact that the socket in the outlet was found to have been damaged on 1‑9‑53, so that the opening was 10" instead of 5" and the discharge was 2.7 instead of 1.26 cusecs. The unauthorised irrigation covered standing Kharif crops and also some irrigation in preparation for the coming Rabi. The Divisional Canal Officer imposed the maximum special rates amounting to Rs. 7,492‑6‑0. An appeal was lodged before the Deputy Commissioner exercising powers as Commissioner and he decided on 19‑6‑54 to reduce the special charges to Rs. 601‑4. The irrigators want me in case No. 52 to remit even this amount.
The Irrigation Branch want me in case No. 53 to raise the level of the penalty to what the Divisional Canal Officer had decided in the first instance.
The irrigators had put up a defence to the effect that they had noticed the damage to the outlet themselves and had reported the matter in the Zilledar a few days before the Overseer detected the defect on 1‑9‑53. The Zilledar made a report to the superior officers stating that the irrigators had never made such a report to him about the alleged damage. The question arises whether it was necessary for the Sub‑Divisional Officer to take the statement of the Zilledar in the presence of the irrigators or to permit the irrigators to produce some other evidence on the point. The procedure on the subject has not been laid down in law but taking the various factors into account, I would be inclined to say that the Zilledar's version will have to be accepted for purposes of deciding the present matter.
If the irrigators did not prove that they were innocent, the could not except that I would reduce the penalty below the figure announced by the Commissioner. I have, therefore, no hesitation in dismissing their petition for revision.
The case of the Irrigation Branch is legally quite strong. The Commissioner was probably working under the assumption: that he would reduce the penalty to an equivalent of single crop rates. He, however, treated the irrigation in preparation for the Rabi as a matter of a Rawani' only and he did not take into account the fact that the Rawani' may not have led to the pro duction of some Rabi crops. Technically, the crop rates applicable should have been in accordance with the actual crops which were produced in Rabi. This would justify an increase in the penalty levied against the irrigators on the assumption that the penalty should be equivalent to single crop rates. I would, however, be loath to raise the figure merely on this technical ground. The statement of the case which I have given above would help to clear up the legal position for future guidance. I would, however, leave the penalty at the level to which the Commissioner reduced it. I, therefore, dismiss the Petition No. 53 also.
K. M. A. Petitions dismissed.
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