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Revision Side No. 5 of 1955‑56, decided on 28th June, 1957. District Bahawalpur. .
S. 33--‑No proof that irrigation was done through unauthorised means--‑Penalty remitted.
Fazal Elahi for Petitioner.
In this case, the file of the Irrigation Department is not traceable and has probably been lost.
The allegation is that the irrigators of this out let irrigated as much as 70 acres of land in one night by obtaining un authorised supplies in the minor by opening the gate at the head of the minor. The Divisional Canal Officer and the Deputy Commissioner have both omitted to say whether there were any outlets in the minor higher than the outlet in question or whether there was any illegal irrigation through such higher outlets also. Their orders are also silent on the point whether the unauthorised supplies drawn in the minor were also available to the lower outlets. I cannot imagine that the irrigators who are before me should force the water into the minor than close every higher outlet and place an obstruction in the minor just below their outlet so that all the water‑supplies drawn into the minor get used for irrigating their lands. 1n any case, if they did so, they can be penalised only if there is some direct evidence (explicit or implicit) on the point.
The only reason why the irrigators have been penalised in this case is that 70 acres of land were shown as recently irrigated. I am not in a position to judge in the absence of the Irrigation Department's file whether the allegation relating to the 70 irrigated acres is proved and, if so, whether this fact by itself justified a conclusion that the irrigation was done through un authorised means.
In the above circumstances, the case against the petitioners has become doubtful. I, therefore, accept this petition for revision and direct that the penalty imposed against them should be remitted.
K. M. A. Petition accepted.
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