Judgment

DAS GUPTA, J. : The 51 appellants all of whom belong to village Simla, Tehsil, Narwana, filed in the Pepsu High Court at Patiala a petition under Art. 226 and Art. 227 of the Constitution for relief against an order made by the Divisional Canal Commissioner, Narwana for payment of certain water rates and Tawan. It appears that on the night of September 1, 1951, there was a cut on the left bank of Sirsa Branch Canal. Certain persons were prosecuted on a charge for having damaged the canal but they were acquitted. Thereafter, the Divisional Canal Officer, Narwana, on the recommendation of the Sub-Divisional Officer, Canal, Narwana made an order levying special charges against these appellants. On appeal the Divisional Canal Officer, Narwana, ordered in partial modification of the order made by the Sub-Divisional Officer, the levy of six times the crop rates on cultivated area and six times the charges on uncultivated area and single bulk rate on water slow of village Simla. This levy was made on the basis of his conclusion that the villagers of Simla were responsible for the cut and joined hands for the common good.

2. The High Court dismissed the application by a short order stating that the points involved in this petition were fully covered by the decision of a Division Bench of the same High Court in Mukandi Ram v. Executive Engineer, LPA/FAO No. 58 of 1954 and that the counsel for the petitioners had therefore nothing to say in support of the petition and did not press it. Against this order of dismissal the present petition has been filed by special leave obtained from this Court.

3. Before mentioning the points raised by Mr. Naunit Lal in support of the appeal it would be convenient to refer to the provisions of law that require consideration.

4. Section 31 of the Northern India Canal & Drainage Act, 1873, which admittedly applies to the Sirsa Branch Canal provides for the levy of water rates for supply of canal water taken in the absence of contract at the rates and subject to the condition prescribed by the rules to be made by the state Government in respect thereof. Nor rules have however been made as regards the rates to be charged for such unauthorised supply of canal water in respect of the Sirsa Branch Canal which was in the State of Patiala, Rules had however been made by the Punjab Government in respect of the Sirhind Canal and branches thereof as also the Western Jumna Canal and branches thereof as early as April 1873 and August 1878 respectively. These rules had been amended from time to time. At the time the Sub-Divisional Officer made his recommendation and the Divisional Canal Officer made his order these rules had not been extended to the Pepsu. It was when the appeal was pending before the Commissioner that the Pepsu Sirhind Canal and Western Jumna Canal Rules (Enforcement and Validation) Act No. IV of 1954 was passed by the Pepsu State Legislature. Section 3 of this Act applied with retrospective effect from August 1, 1948. the Sirhind Canal Rules and the Western Jumna Canal Rules to the Pepsu State. Section 4 provided that as from August 1, 1948, anything done or any action taken in, accordance with the Pepsu Sirhind Canal Rules or the Western Jumna Canal Rules shall not be called in question in any proceedings before any court or other authority merely on the ground that the Sirhind Canal Rules or the Western Jumna Canal Rules were not in force in the Pepsu State on the date on which such thing was done or such action was taken. It may be mentioned that this Act replaced the Pepsu Sirhind Canal and Western Jumna Canal Rules (Enforcement. and Validation) Ordinance, 1954, which had been made shortly before this.

5. In AIR 1956 Pepsu 40, on the basis of which without further discussion the petition in this case was dismissed the Pepsu High Court held on facts practically identical with the facts of this case that the levy of special rates by the Canal Commissioner was justified under Rule 32 and in a