M.M. Ismail, J.
1. This writ petition challenges the levy of betterment contribution under the Madras Irrigation (Levy of Betterment Contribution) Act, 1955 (Madras Act III of 1955). The facts giving rise to this writ petition are not in dispute. The petitioner-Adheenam owns lands in a number of villages in Ambasamudram Taluk in Tirunelveli district. The main river in Tirunelveli district is the Thambarabarani, which rises from Papanasam Dam and flows from west to east. In its course there are several channels branching off from the river. Among them are two channels in the nothern side of the river called North Kodaimelazhagiyankal and Nadiyunnikal and one channel on the southern side of the river, South Kodaimelazhagiyankal. All three channels take off from upper dams across the river called dams one and two. These dams and these channels have been in existence for a very long time and they are known as upper reaches of the river. The river called Manimuthar flowing from south to north mingles with the river Thamparabarani below the above three said channels. The Government have constructed a dam across the Manimuther river some miles south of the river Thambarabarani called the Manimuthar Reservior Project Dam. It is because of the construction of this dam betterment (sic) is made against the petitioner. It is admitted that the lands of the petitioner are fed by North Kodaimelazhagiankal, Nadiyunnikal and South Kodaimelazhagiankal channels and again it is admitted that since these channels are in the upper reaches far ahead of the place where Manimuthar joins Thambarabarani water from Manimuthar Reservoir cannot directly flow into these upper anicuts. Consequently, the question for consideration is whether the petitioner's lands, which are fed by the above three channels, are liable to pay betterment contribution under the provisions of the Act. For the purpose of fixing up the liability, it is necessary to refer to certain statutory provisions. The relevant section is Section 4--B (1) which says that the Government shall be entitled to levy a betterment contribution from the landholder on every acre of land in any improved old ayacut in accordance with the provisions of the section. Section 2 (3-A) defines what is meant by 'Improved old ayacut'. According to that definition, it means 'all lands which are significantly benefited by the execution of the notified work but does not include the ayacut of any existing irrigation or drainage work which has been merely repaired or restored to its original state after decay or injury '. Explanation I to this clause creates a fiction as to what lands shall be deemed to be significantly benefited by the execution of a notified work and states that if such lands--
(a) having been under single crop irrigation or double crop irrigation from a Government source of irrigation before the execution of the notified work continue to be under such irrigation and are provided with a more adequate supply or better assured supply of water for irrigation as a result of the execution of the notified work.
Here again it is admitted that the lands in question are double crop lands having Government source of irrigation and therefore the only question will be whether as a result of Manimuthar Reservoir Project, they have been provided with a more adequate supply or better assured supply of water for irrigation. Again for the purpose of finding out whether a particular land is provided with a more adequate supply or better assured supply of water for irrigation, Explanation II to the same clause has enumerated certain considerations. The consideration relevant for the purpose of this case is 'supply of larger volume of water or supply of water for a longer duration'. Therefore the matter for consideration, so far as the present case is concerned, is to find out as to whether the petitioner's lands have obtained, as a result of the execution of the Manimuthar Reservoir Project dam, supply of larger volume of water or supply of water for a longer duration. It is these statutory provisions that have been sought to be applied by the Authorised Officer (Betterment Levy), Tirunelveli and on appeal by the District Collector, Tirunelveli. After referring to the circumstances, connected with the lands in question along with similar lands, the Authorised Officer pointed out:
But the points for consideration are whether the lands commanded by the upper anicuts also have been benefited by the Manimuthar Project and whether there has been stabilisation of the supply of water consequent on the construction of the project. The rules of regulation of supplies into Kodamelazhagian and Nedhiunni channels at the two upper anicuts permit the closing of the head sluices for periods not exceeding 3 days at a time in cases of emergency for the water being diverted to lower down anicuts. The Chief Engineer (Irrigation), Madras, has observed that after coming into operation of the Manimuthar Reservoir the deficits for lower down anicut channels can be met from the special releases obtained from the Manimuthar Reservoir and thereby the full needs of the two upper anicuts can be met from the Thambarabarani flows. He has further observed that when special releases are drawn from Papanasam during scarcity periods all the 8 anicuts get benefited. Similarly when special releases are obtained from Manimuthar the two upper anicuts can utilise their full requirements from the Thambarabarani flows as explained above. Hence in both the cases the two upper anicuts are benefited. The poorest supply in a worst year from Papanasam will be more than the requirements for the two upper anicuts and they would be in a better position always. Similar views have also been expressed by the previous Collectors. The Board of Revenue has also accepted the views of the Chief Engineer and observed that though water from the Manimuthar Reservoir does not flow directly into the upper anicuts, there is still the indirect effect of the Manimuthar Reservoir on the two upper anicuts. What is essential is whether there is stabilisation of supplies under the two upper anicuts and the answer is in the affirmative. Stabilisation after all means that periods of scarcity are avoided. The two upper anicuts get full supplies even during emergency as they would not be closed now in favour of the lower anicuts. The Board has accordingly held in B.P. Ms. No. 684 (H) dated 19th April, 1965, that there is justification to treat the two upper anicuts also as having been benefited by Manimuthar Reservoir Scheme and that the existing rules providing enhanced water cess for dry lands and raising the classification of all tanks including those under the two upper anicuts can stand. It can therefore be seen that there is significant benefit to the ayacut lands under the upper anicuts consequent on the construction of Manimuthar Reservoir Project and the levy of betterment contribution for the lands under the two upper anicuts are quite justifiable. Accordingly, the objections put forth in petitions 1 to 25 are overruled.
2. I have extracted the relevant paragraph from the order of the Authorised Officer in extenso for the purpose of showing that not in one place he has taken into account the statutory provisions referred to already for the purpose of determining whether the lands are liable to make betterment contribution or not. On the other hand, the language in the above paragraph of the order of the Authorised Officer clearly indicates that the Authorised Officer has merely adopted the language contained in the Board's proceedings referred to and relied on by him. It may be seen, therefore, that the Authorised Officer has failed to apply his mind to the statutory requirements expressly provided in Explanation I and Explanation II to Clause (3-A) of Section 2 of the Act for the purpose of finding out whether the lands in question can be said to come within the scope of 'improved old ayacut' and attract the charging provision, namely, Section 4-B of the Act. Apart from this failure of the Authorised Officer, which failure is reflected in the order of the appellate authority also, I am of the opinion that the reason given by the Authorised Officer, as well as the appellate authority for upholding the levy of betterment contribution in the particular case cannot be sustained. The reasons given by the Authorised Officer for sustaining the levy of betterment contribution are two-fold. The first is that according to the rules of regulation, the head sluice with regard to the two upper anicuts can be closed for a period of three days at a time during the scarcity period and the need to close the sluices will not arise because of the Manimuthar Reservoir Project. The second reason given is that special releases obtained from Papanasam during the scarcity period will benefit all the eight anicuts. In my opinion, neither of these two grounds can support the levy of betterment contribution in the particular case. In the first place, the rules or regulation referred to by the Authorised Officer are merely administrative instructions for the guidance of the local officers. The relevant provision is:
In cases of emergency, the Executive Engineer or the Sub-Division Officer can, in consultation with the Revenue Department, close the head sluice of the channel for periods not exceeding three days at a time and divert the water to Kannadiyan anicut.
Thus it will be seen that discretion is given in case of emergency to the Executive Engineer to close the head sluice for a period of three days at a time in times of scarcity and that discretion even now exists. There are no materials to show that this discretion was exercised in the past and as a result of the exercise of the discretion, the petitioner's lands were deprived of their accustomed or usual water supply during the course of any of these years in the past. Further, there is no material to show at what part of the year, the head sluice happened to be closed for three days and what exactly the prejudice, danger or the difficulty the petitioner suffered with regard to its lands. In the absence of a specific finding that, in the past, the petitioner's lands did not get water supply for these three days and that after the execution or construction of the Manimuthar Reservoir Project, the petitioner's lands are getting water even for these three days, the case cannot be brought within the scope of Clause (a) to Explanation I read with Clause (1) (ii) to Explanation II of Clause (3-A) of Section 2 of the Act, namely, that the petitioner's lands began to get supply of water for a longer duration. Nowhere in the order, there is any finding that the petitioner's lands get a supply of larger volume of water as a result of the construction of the Manimuthar Reservoir Project. Therefore, the first reason based upon the existence of administrative instructions giving a discretion to the Executive Engineer or the Sub-Division Officer to close the head sluice for a period f three days during the period of scarcity will not justify the levy of betterment contribution. Equally, with regard to the second reason, I must point out that there is no finding anywhere recorded in any of the orders that prior to the execution of the Manimuthar Reservoir Project, there had not been special releases from Papanasam and therefore the petitioner's lands did not get the benefit of those special releases previously. Only if there is a definite and express finding that prior to the construction of the Manimuthar Reservoir Project, the petitioner's lands did not get any benefit from the special releases from Papanasam and those lands began to get the benefit only after the construction of the Manimuthar Reservoir Project, the Authorised Officer will have jurisdiction to demand betterment contribution in respect of the petitioner's lands. Under the circumstances, the order of the Authorised Officer levying betterment contribution in respect of the petitioner's lands pursuant to the statutory provisions referred to by me cannot be sustained.
The Writ petition is therefore allowed and the order of the Authorised Officer confirmed as it is by the appellate authority (District Collector) demanding betterment contribution from the petitioner in respect of the lands covered by the writ petition is quashed. There will be no order as to costs.