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Kalappa Vs. Deputy Commissioner, Mandya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 4368 of 1969
Judge
Reported inAIR1973Kant32; AIR1973Mys32; (1972)2MysLJ265
ActsMysore Irrigation Act, 1965 - Sections 15(1) and 15(2)
AppellantKalappa
RespondentDeputy Commissioner, Mandya and ors.
Appellant AdvocateB. Tilak Hedge, Adv.
Respondent AdvocateH.N. Narayan, High Court Government Pleader
DispositionPetition allowed
Excerpt:
.....section 15 of the act is that the irrigation officer on being satisfied that the construction of field channels in any area is necessary in public interest for supply of water from an irrigation work to lands requiring such supply for purpose of cultivation, shall declare by notification that such field channels may be constructed after a date to be specified in the notification, not being earlier than thirty days from the date of publication thereof. 4. section 16 of the act provides that on receipt of a copy of a notification under section 15 the deputy commissioner shall, on being satisfied that such land is required for a field channel, proceed to acquire and take possession of such land under the provisions of the land acquisition act. 6. sub-section (1) of section 15 of the act,..........section 15 of the act is that the irrigation officer on being satisfied that the construction of field channels in any area is necessary in public interest for supply of water from an irrigation work to lands requiring such supply for purpose of cultivation, shall declare by notification that such field channels may be constructed after a date to be specified in the notification, not being earlier than thirty days from the date of publication thereof. a copy of such notification shall be sent to the tahsildar of the area for publication in the village concerned. after the date specified in the notification issued under section 15 (1) of the act, the irrigation officer is required to determine the suitable alignment for the field channels and to mark out that land, which in his opinion,.....
Judgment:

Malimath, J.

1. The petitioner has challenged in this writ petition the notification dated 17th August, 1967 issued by the 2nd respondent, the Executive Engineer-cum-Irrigation Officer, V. C. Division. Mandya, under Section 15 (1) of the Irrigation Act, 1965, as well as the notification dated 8th December. 1967 Issued by the same officer under Section 15 (2) of the said Act.

2. The petitioner is the owner of the land bearing Survey Nos. 62/3 and 62/5 of Halavadi village in Mandya Taluk. They together measure 1 acre and 3 guntas. On the 17th of August, 1967 the Irrigation Officer, issued the notification under Section 15 (1) of the Mysore Irrigation Act, 1965 (hereinafter referred to as (the Act) which has been produced in the case as Exhibit A. That was followed by the notification dated 8th December, 1967, issued by the Deputy Commissioner, under Section 15 (2) of the Act, which has been produced in the case as Ex. B.

3. The contention of the petitioner is, that the notification issued under Section 15 (1) and (2) of the Act, are not in accordance with law. The scheme of Section 15 of the Act is that the Irrigation Officer on being satisfied that the construction of field channels in any area is necessary in public interest for supply of water from an irrigation work to lands requiring such supply for purpose of cultivation, shall declare by notification that such field channels may be constructed after a date to be specified in the notification, not being earlier than thirty days from the date of publication thereof. A copy of such notification shall be sent to the Tahsildar of the area for publication in the village concerned. After the date specified in the notification issued under Section 15 (1) of the Act, the Irrigation Officer is required to determine the suitable alignment for the field channels and to mark out that land, which in his opinion, is necessary to occupy for the construction of the field channels. Thereafter he is required to publish a notification by affixture on the Notice Board, in his office that so much of such land as is situated within such village or villages has been so marked out and shall send a copy of such notification to the Tahsildar for publication in every village through which the field channel is taken on such lands. He is also required to send a copy of such notification to the Deputy Commissioner of every District in which such land is situated.

4. Section 16 of the Act provides that on receipt of a copy of a notification Under Section 15 the Deputy Commissioner shall, on being satisfied that such land is required for a field channel, proceed to acquire and take possession of such land under the provisions of the Land Acquisition Act. 1894, as if a declaration had been issued by the State Government for the acquisition thereof under Section 6 of that Act and as if the State Government had thereupon directed the Deputy Commissioner to take order for the acquisition of such land under Section 7 of the said Act and as if the State Government had issued order for immediate possession being taken under Section IV of the said Act Sub-section (2) of Section 16 of the Act provides that notwithstanding anything contained in the Land Acquisition Act, 1894, the acquisition of any land for the purpose of - constructing a field-channel under Section 15 shall be deemed to be for a public purpose and compensation has to be awarded as per the said subsection.

4-A. The procedure prescribed under the Land Acquisition Act, for the purpose of acquiring the land is modified to a considerable extent. It is clear, that no opportunity is given to the persons whose lands are sought to be acquired to submit their objections to the proposed acquisition for the purpose of constructing field channels under the Irrigation Act. The procedure contemplated under Section 5(A) of the Land Acquisition Act is dispensed with and the notification issued under Section 15 (2) of the Act on its publication is treated as a notification issued under Section 6 of the Land Acquisition Act. The citizen whose lands are acquired under the Irrigation Act for construction of field channels has thus no right to submit his objections. The provisions of Section 15 are mandatory and therefore the authorities concerned must strictly comply with the same before taking action to acquire lands for the construction of field channels under the Act.

5. It is no doubt true as pointed out by Shri Narayan, the learned High Court Government Pleader, the impugned notifications issued under Sub-sections (1) and (2) of Section 15 are in form Nos. 2 and 3 prescribed under Rule 7 of the Mysore Irrigation Rules, 1965. But if the notifications have been issued in contravention of the provisions of Subsections (1) and (2) of Section 15, they cannot be treated as valid on the ground that they have been issued in the form prescribed under the rules.

6. Sub-section (1) of Section 15 of the Act, requires the Irrigation Officer on being satisfied that the construction of field channels in any area is necessary in public interest for supply of water from an irrigation work to lands requiring such supply to make a declaration, to that effect. It also requires that the Irrigation Officer should satisfy himself that construction of the field channels in any particular area is necessary. The purpose of notification under Section 15 (1) of the Act is to apprise persons who are likely to be affected by the action proposed to be taken by the Irrigation Officer. It is therefore of the essence of the matter that the notification under Section 15 (1) of the Act should clearly state the area where the field channel are proposed to be constructed. This essential requirement is lacking in the impugned notification issued under Section 15 (1) of the Act. Hence it is liable to be Quashed.

7. After the issue of a notification under Section 15 (1) of the Act, the Irrigation Officer has to wait for the specified period before he takes action to issue a notification under Section 15 (2) of the Act. According to Section 15 (2) the Irrigation Officer is required to determine the suitable alignment for the field channels and to mark out the lands which in his opinion are necessary to occupy for the construction thereof. It is thereafter that he is required to publish a notification that so much of such land as situated within such village or villages has been so marked out and shall send a copy of the same for publication in every village through which the field channel is taken end on such lands. A copy of the same notification is also required to be sent to the Deputy Commissioner concerned. It is therefore necessary that the Irrigation Officer should determine the alignment and mark out the land which is necessary to occupy for the construction of field channels. The determination of the alignment and marking out the land contemplated under Section 15 (2) serves the important purpose of notifying the precise land or portion of the land sought to be acquired. It is therefore clear that it is not enough to state in the notification issued under Section 15 (2) that a particular extent of land in a survey number that is required for construction of field channels but that the precise extent, boundary and measurements thereof have to be given in the notification issued under Section 15 (2). In the impugned notification issued under Section 15 (2) of the Act in this case, all that is mentioned is that 3/4th of a gunta in the lands bearing survey numbers 62/3 and 52/5 is marked out for construction of field channels. It is impossible to know from that notification as to where that 3/4th of a gunta in the land in question is located. We are therefore clearly of the opinion, that the notification not being in accordance with Section 15 (2) is liable to be quashed.

8. As we are allowing this writ petition and quashing both the notifications it is not necessary to consider the other contentions raised in the writ petition.

9. For the reasons stated above, we allow this writ petition and quash both the impugned notifications Exhibits 'A' and 'B' issued under Sub-sections (1) and (2) of Section 15 of the Mysore Irrigation Act, 1965, by the Irrigation Officer, V. C. Division, Mandya.

10. In the circumstances of the case there will be no order as to costs.


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