1. The three applicants have been convicted of an offence under Section 70, Canal and Drainage Act (Northern India), No. 8 of 1873. It applies to these provinces and to the Punjab. The applicants are much concerned at not knowing the exact clause of Section 70 under which they have been convicted. The learned Assistant Government Advocate has been pleased to satisfy their curiosity by stating that the clause is No. (2) of Section 70 in so far that they interfered with the supply of water through a canal passing through their field. It is hoped that this explanation will now satisfy them.
2. The argument of learned Counsel was that the water-course was private and not the property of the Canal Department, and that, therefore, the complainant had no right to flow water through it. The lower appellate Court has rightly pointed out that there being evidence of the supply of water through this water-course for thirty years it must be presumed that either there was an agreement between the parties, or action had been taken under Section 20 or 21 of the Act. A canal is a water-course according to Section 3(1)(c) and a water-course is defined in Clause (2) of that section
as any channel which is supplied with water from a canal, but which is not maintained at the cost of Government, and all subsidiary works belonging to any such channel.
3. There cannot be the slightest doubt that what was stopped by the applicants was a water-course. The question then remains whether this water-course was started through agreement or under the provisions of Section 20 or Section 21, Canal Act. The learned Counsel on behalf of the applicants argued that in every case the burden should be thrown on the complainant to prove either an agreement or action under the sections mentioned above. Any such specific proof is not necessary. If the water-course were recent say, of a year or two ago, such proof may be required. In the present case when this water-course is thirty years old a Court will be entitled to draw a presumption that it was started by agreement or under the provisions of the Act. Even the defence witnesses speak of a water-course by agreement. Their allegation, however, was that it was started only seven or eight years earlier, and that the water was not stopped by the applicants but by some other person. In the trial Court the refinement as to water-course was the defence of the learned Counsel of that Court and not the defence of the applicants, whose real defence was that they were not the culprits, but that someone else was. Reference was made to a ruling of the Punjab High Court that such a water-course should be established either by agreement or under the provisions of Sections 20 and 21 of the Act in order to make a person interfering with such water-course liable under the penal provisions of the Act. The law applicable will vary with the circumstances of every case. Where a water-course is flowing for thirty years it would be impossible to discover papers relating thereto and the presumption would in the absence of rebutting evidence amount in such a case to proof that there had been an agreement between the parties, or action had been taken under the Act. It is certain, therefore, that the water-course was one which could not be interfered with by any person without rendering himself liable to the penal clauses of the statute. The lower appellate Court recorded some further evidence, but did not comment on it. The case, however, is proved by the evidence in the trial Court, and no further evidence was necessary.
4. My attention was drawn to the large amount of fine imposed on every one of the applicants. It appears, however, that a very large portion thereof has been paid to the complainant by way of compensation. Under the circumstances the fine was justified. I dismiss this application.