HIS HOLINESS SRI LA SRI AMBALAVANA PANDARA SANNADHI AVERGAL, ADHEENAKARTHAR Vs. AUTHORISED OFFICER (BETTERMENT LEVY) AND ANR

JUDGEMENT

(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--

(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: