- (1.) This is a second appeal by the plaintiffs-appellants, who were unsuccessful in both the courts below.
(2.) The plaintiffs-appellants, who are residents of village Urlana, Tehsil Gulha, Distt. Kurukshetra filed a suit for permanent injunction against the State Govt. from charging Abiana/Water Charge from them. It was pleaded that the village of the plaintiffs-appellants was towards the southern side of river Ghagar, which was flowing from the eastern side to western side. It was also averred that Ghagar river does not flow continuously and it was only during the rainy season that there was a continuous flow of water therein. The case set up, accordingly was that the Ghagar river would not fall within the expression "Canal" under the Haryana Canal and Drainage Act, 1974 (herein after referred to as the 1974 Act) or the rules made thereunder. No notification had been issued under the 1974 Act or the rules declaring Ghagar river to be a canal. It was further pleaded that the State Govt. had not spent any money so as to control the flow of water in Ghagar river and consequently the charging of Abiana/Water Charge was illegal. Written statement was filed by the State and reliance was placed upon a notification dated 28.6.1897 issued under Section 5 of the Northern India Canal & Drainage Act, 1873. It was denied that Ghagar river was unregulated and that the Govt. had not taken any steps to regulate the flow. On the basis of the notification dated 28.6.1897 the State Govt. justified the levy of Abiana/Water Charge. On the pleadings of the parties the following issues were framed:- "1. Whether the demand of impugned amount of abiana dhalbush is illegal, void and not binding upon the plaintiffs, as alleged? 2. Whether the suit in the present form is not maintainable?OPD 3. Whether the verification of the plaint is not in accordance with the rules, if so, to what effect? OPD 4. If Issue No.1 is not proved then whether the defendants validly and illegaly claim abiana for the plaintiffs, as alleged?OPD 5. Relief."
(3.) The Trial Court dismissed the suit of the plaintiffs-appellants and the Lower Appellate Court dismissed the appeal thereby confirming the order dated 30.1.1988 passed by the Sub Judge Ist Class, Kaithal. I have heard learned counsel for the parties and perused the record. It has been argued on behalf of learned counsel for the plaintiffsappellants that both the courts have grossly erred in law. As per learned counsel for the plaintiffs-appellants the following substantial questions of law arise for determination before this Court. (i) As to whether the findings of the courts below suffer from perversity based upon misreading of evidence? (ii) As to whether the Abiana/Water Charge could have been levied by the State Govt. without any statutory sanction? (iii) The Northern India Canal & Drainage Act, 1873 having since been repealed, could the State Govt. levy Abiana/Water Charge on the basis of a notification issued under an Act which stood repealed?;