S.K. Ray, J.
1. This is a plaintiff's second appeal from the confirming decision of the Subordinate Judge of Bhadrak by which their suit has been dismissed.
2. Plaintiffs filed the suit for a declaration that the land acauisition proceedings for acquiring their lands in Land Acquisition Case No. 4 of 1958-59 and No. 8 of 1961-62 were invalid and to restrain the defendants which include the Collector and the Land Acauisition Officer of Balasore from proceeding with the said Land Acauisition Cases.
Their case is that the villagers previously tried to forcibly construct a road upon the suit-lands belonging to them. They had to file a Title Suit No. 112 oi 1956 (1) against the villagers. Their suit was a representative suit and was decreed on 29-6-62, and the defendants in that suit were directed to restore the status duo. Thereafter the plaintiffs filed some suits for damages against some of the defendants in the aforesaid representative suit and those suits were decreed and the decree was levied in execution for realisation of the amount. The villagers, therefore, moved the S. D. O. Bhadrak. to assist them in getting the lands acquired and agreed to deposit the cost of acauisition when so required. Then Section 4 notification was issued and the ordersheet of the Land Acquisition Case indicates that on 13-5-60 at the instance of the villagers the S. D. O. also gave a contribution of Rs. 5/- from the public revenue. Obiections against the acquisition were preferred, heard and rejected. The entire compensation amount, it also appears, was deposited by the villagers in the treasury. Thereupon Section 6 notification was issued.
3. The main contentions raised In this appeal on behalf of the appellants are: (i) The first proviso (sic) to Section 6 of the Land Acquisition Act provides that before a declaration can be made under Section 6(1) of the Land Acquisition Act it should be decided that the compensation is to be paid either by the company or out of public revenue or out of the funds of a local authority, and where when the declaration is made no such decision has been arrived at and there was only the money contributed by the villasers for payment of compensation, the declaration is not a valid one.
(ii) Public revenue are revenues consisting mostly of exactions which the State makes under a law from its citizens such as taxes, land revenues, duties, fees. cesses and so on, and constitute part of the consolidated fund of the State which can be appropriated only in accordance with law and in the manner provided by the Constitution. In view of this conception of 'public revenue', the sum of Rs. 5/-contributed by the S. D. O. from out of the development fund is not public revenue within the meaning of Section 6(1) proviso of the Land Acquisition Act
(iii) The contribution in question being only for the purpose of construction of a road, could not be considered as a fund controlled or managed by the local authority, and in dealing with this question some important items of documentary-evidence have been omitted from consideration by the courts below, and the lower appellate court has also ignored some important evidence in this respect.
(iv) The lower appellate court has not considered the effect of Exts. 1. 1 (a). Q. T. T/l. J. B. Q and Q/3 and Exts. T and T/1 in finding that the acquisition proceeding, is not a colourable exercise of power.
(v) There Is no evidence, at any rate there is no discussion of evidence by the lower appellate court that the amount deposited is a part of the Grama fund and was in the disposing power of Grama Sasan and that it was sanctioned under the provisions of Sections 5 and 98 of the Gram Panchayat Act
(vi) Further, such fund cannot be said to be a fund managed and controlled by the local authority, and the letter from the S. D. O. to the Grama Panchayat requesting the latter to pass appropriate resolutions, amounts to colourable exercise of power.
4. The Supreme Court in the case of Somawanti v. State of Punjab. AIR 1963 SC 151 while upholding, the decision in AIR 1927 Mad 245 on the principle of stare decisis observed :
'We would, however, guard ourselves against being understood to say that a token contribution by the State towards the cost of acquisition will be sufficient compliance with the law in each and every case. Whether such contribution meets the requirements of the law would depend upon the facts of every case. Indeed the fact that the State contribution is nominal may well indicate, in particular circumstances, that the action of the State was a colourable exercise of power.'
In view of this observation it is the duty of the courts-of-fact to judge the question of colourable exercise of power under Section 6 from the standpoint of a token contribution by the State from out of the public revenue. This, it appears, has not been done.
5. Counsel for the appellant as well as the counsel for the State both agreed that disposal of the appeal by the lower appellate court has not been proper and has not been made from all legitimate aspects of the correct legal perspective as indicated by the contentions raised as enumerated above. I also agree with those learned counsel that there has not been a fair and proper disposal of the appeal. I would, therefore, set aside the judgment and decree of the lower appellate court and send the case back to him for a fresh disposal in accordance with law. He will, while rehearing the appeal, keep in mind these specific arguments urged by learned Counsel for the appellant as recorded above. He will also consider the effect of Exts. Q to Q/5, V. T, T/l, J. R and Ext. 2. the order-sheet and particularly the orders dated 10-5-1958 along with Ext. P dated 28-3-1958 along with the oral and other documentary evidence in the case while adjudicating upon the question as to whether acquisition of the property was mala fide and a colourable exercise of jurisdiction on the part of the authorities concerned, keeping in mind the principles enunciated in the decision of the Supreme Court quoted above. He shall also decide whether the money deposited by the Si D. O. can be said to have been done wholly or partly out of the public revenue or some funds controlled by the local authority. It is needless to say that in considering this question he will consider the relevant questions under the Grama Panchayat Act. All these questions have a bearing on the ultimate finding on the question as to whether the requirements of the proviso to Section 6(1) of the Land Acquisition Act have been satisfied in this case, which he must render. Cost will abide the result. The aP-peal is, thus, allowed and remanded.