KUMBARA THIMMAPPA v. STATE OF KARNATAKA — 1997 DIGILAW 710 (KAR)

FAROOQ, J. ( 1 ) THIS writ appeal had earlier come up for hearing before the Division Bench consisting of the Hon'ble C. J. and myself. During the course of arguments, the learned counsel appearing for the appellants cited two Division Bench judgments of this Court in Kalappa v. Dy. Commr. , Mandya reported in AIR 1973 Mysore 32 (34) and submitted that in view of these judgment, the impugned order passed by the learned single Judge in the writ petitions cannot be sustained. The Division Bench felt that the above cited judgments require reconsideration by a larger bench for an authoritative pronouncement. Since the interpretation given in the aforesaid judgment apparently was found to be contrary to the statutory provisions under the Karnataka Irrigation Act, 1965 (hereinafter referred to as the Act), the matter has now been placed before us. ( 2 ) THE appellants in this writ appeal are the petitioners who filed the writ petition. The petitioners sought for a writ of certiorari to quash the notifications dated 6-1-1989 produced as per Annexure-C in the writ petition and notification dated 23-2-1991 produced as per Annexure-D and also the notice dated 25-7-1991 produced by them as per Annexure-E. ( 3 ) THE petitioners questioned the proposed acquisition of 9 cents of land from their land bearing Sy. No. 268 situated at Kuruvalli village in Siriguppa Taluk of Bellary District for construction of an irrigation channel under the provisions of the Karnataka Irrigation Act. Admittedly, the petitioners are the owners of the said land. A notification was issued under Section 15 (1) of the Act by the irrigation officer with a corrigendum Annexure-C and latter notice Annexure-D issued to the Assistant Commissioner proposing to acquire 9 cents of land out of the said survey number for construction of irrigation channel. It was contended by them that a notification under Section 15 (2) of the Act which was mandatory was not issued by the authorities before initiating proceedings under Section 16 of the Act. The petitioners further contended that the notification issued under Section 15 (2) of the Act was also not valid since the same did not give the boundaries of the land sought to be acquired. According to them, such a requirement was mandatory in the light of the Division Bench judgments of this Court referred to above. The petitioners further contended that the notification issued under Section 15 (2) of the Act was also not valid since the same did not give the boundaries of the land sought to be acquired. According to them, such a requirement was mandatory in the light of the Division Bench judgments of this Court referred to above. They further submitted that even in the notification issued under Section 15 (1) of the Act no boundaries and alignment of the field channels proposed to be constructed were indicated and further that the proposed acquisition was not for a public purpose but the same was meant to benefit only one owner for whose land alone the proposed construction of the channel was being undertaken. ( 4 ) THE respondents filed detailed objections to the writ petition denying all the averments made by the petitioners. They contended that notifications under Section 15 (1) and 15 (2) of the Act, were issued and particulars were given to the petitioners to file their objections and sufficient identity of the property to be acquired has been given in the notifications. ( 5 ) BEFORE the learned single Judge, the respondents produced the relevant records and the Court was satisfied that the respondents have complied with the relevant statutory provisions under the Act before finally issuing notice. Annexure-D, to the petitioners. The learned single Judge perusing the records produced by the respondents found that the respondents have complied with all the statutory provisions required under the Act. The learned single Judge has also rejected the contention of the petitioners that the notification issued under Section 15 (2) of the Act does not mention the total area or that it does not identify the area to be acquired. The learned single Judge also rightly rejected the arguments addressed on behalf of the petitioners that Section 15 (1) of the Act require the respondents to indicate either the alignment or the boundaries of the area sought to be acquired. It was also found that there was no merit in the submission made by the petitioners that the proposed acquisition was not for a public purpose and the same was meant to benefit only one owner 3rd respondent for whose land alone the proposed construction of the channel was being undertaken. It was also found that there was no merit in the submission made by the petitioners that the proposed acquisition was not for a public purpose and the same was meant to benefit only one owner 3rd respondent for whose land alone the proposed construction of the channel was being undertaken. The learned single Judge ultimately held that in terms of Section 16 (2) of the Act any such acquisition for the purpose of construction of a field channel is deemed to be a public purpose and the mere fact that the channel will benefit only one individual as claimed by the petitioners will not make much difference. The writ petition was accordingly, dismissed. ( 6 ) BEFORE, us, the learned counsel appearing for the writ petitioners/appellants contended that in view of the Division Bench judgments cited (supra) the impugned order passed by the learned single Judge cannot be sustained. The appellants have also assailed the judgment of the learned single Judge on all the other aspects of the case. However, we do not find any merit in the latter submission made on behalf of the appellants. The learned single Judge has perused the records pertaining to the acquisition and has correctly dealt with all the points on hand and negatived the contentions raised before him on behalf of the appellants. ( 7 ) THE only point to be reconsidered in this appeal is whether the Division Bench judgments cited by the appellants has to be followed and whether the writ petition is to be allowed following the said judgments. The Act intended to make provision relating to the construction, maintenance and regulation of irrigation works the supply of water therefrom obtaining labour in emergencies and certain other matters pertaining to irrigation in the State of Karnataka. Chapter III of the Act dealt with field channels. Field Channel is defined under the Act means any water course, hikkal or pipe having a capacity not exceeding one cubic foot per second, which is supplied with water from an irrigation work, and includes all subsidiary works belonging to such field channels, except the sluice or outlet through which water is supplied to such channel or pipe. Field Channel is defined under the Act means any water course, hikkal or pipe having a capacity not exceeding one cubic foot per second, which is supplied with water from an irrigation work, and includes all subsidiary works belonging to such field channels, except the sluice or outlet through which water is supplied to such channel or pipe. Sec. 15 of the Act reads as under :-"15 (1) 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 purposes 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 villages concerned. 15 (2) After the date specified in the notification under sub-section (1), the Irrigation Officer shall determine the suitable alignment for the field channels and shall mark out the land, which in his opinion, it is necessary to occupy for the construction thereof. He shall forthwith publish 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 coppy of such notification to the Tahsildar for publication in every village through which the field channel is taken on such lands. He shall also send a copy of such notification to the Deputy Commissioner of every District in which such land is situated. "u/s. 15 (1) of the Act, the Irrigation Officer on being satisfied about the necessity in public interest for construction of field channels in any area has to declare the same by a notification. A copy of which has to be sent to the Tahsildar of the area and u/s. 15 (2) the Irrigation Officer is required to determine the suitable alignment for the field channels and he has to mark out the land which in his opinion it is necessary to occupy for the construction thereof and u/s. 16 the Deputy Commissioner is empowered to acquire the land. ( 8 ) NOTIFICATION u/s. 15 (1) of the Act has to be issued under Form No. 2 which is as under :- @@ form 2notificationnotification under Sec. 15 (1) of the Mysore Irrigation Act, 1965. Whereas, I. . . . . . . . . . . . . . . . . . . Irrigation Officer. . . . . . . . . . . . . . . . . . . . am satisfied that the construction of field channels for the lands specified in the Schedule hereto is necessary in public interest for supply of water to lands requiring such supply for purposes of cultivation from outlet No. . . . . . . . . . . . . . . at Chainage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . of Distributary Sub-Distributory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Now, therefore, in exercise of the powers conferred on me by sub-section (1) of Section 15 of the Mysore Irrigation Act, 1965 (Mysore Act 16 of 1965 ). I,. . . . . . . . . . . . . . Irrigation Officer,. . . . . . . . . . . . . hereby declare that the field channels may be constructed for this area after. . . . . . . . . . . . . . . . SCHEDULE OF LANDS FOR WHICH FIELD CHANNELS ARE NECESSARY Name of Districttalukname of villagesurvey No. Area likely to be irrigated 1. 2. 3. 4. 5. Irrigation Officer. . . . . . . . . . . . . . . Division. Tothe Complier Mysore Gazette, for publication in the Mysore Gazette,dated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Subs. by G. S. R. 174 dt. . . . . . . . . . . . Division. Tothe Complier Mysore Gazette, for publication in the Mysore Gazette,dated. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1. Subs. by G. S. R. 174 dt. 6-5-74under Form No. 2 it is not necessary for the Irrigation Officer to specify the boundaries of the land to be acquired u/s. 15 (2) notification has to be issued in Form No. 3 which is as under :form 3notification under S. 15 (2) of the Mysore Irrigation Act. 1965. NOTIFICATIONWhereas in my opinion, it is necessary to occupy the lands specified in the Schedule hereto for construction of field channels under outlet No. . . . . . . . . . . . . . . . . . at Chain. . . . . . . . . . . . . . . . . of Distributary/sub-Distributary. . . . . . . . . . . . . . . . . . . . for purposes of cultivation and such lands have been marked out. NOW THEREFORE, in exercise of the Powers conferred on me by sub. sec. (2) of S. 15 of the Mysore Irrigation Act, 1965 (Mysore Act 16 of 1965) I,. . . . . . . . . . . . . . . . . Irrigation Officer,. . . . . . . . . . . . . . . . . . . . . hereby declare that the said lands have been marked out for the construction of field channels. SCHEDULESl. No. Name of Dist. Name of Talukname of villagesurvey No. Area marked out for construction of field channels 1. 2. 3. 4. 5. 6. Irrigation Officer,. . . . . . . . . . . . . . . . . . . . Division. Copy to :1. The Tahsildar. . . . . . . . . . . . . Taluk for information and publication in every village through which thefield channel passes in accordance with Sec. 15 (2) of the Act. 2. The Assistant Engineer. . . . . . . . . . . . Sub-Division,3. The Deputy Commissioner. . . . . . . . . . . . . . . . . . . . Taluk for information and publication in every village through which thefield channel passes in accordance with Sec. 15 (2) of the Act. 2. The Assistant Engineer. . . . . . . . . . . . Sub-Division,3. The Deputy Commissioner. . . . . . . . . . . . . . . . Dist. 4. The Superintending Engineer. . . . . . . . . . . . . . Circle. 5. Notice Board. Subs. by G. S. R. 174 dt. 6-5-74. Under Form No. 3 it is necessary for the Irrigation Officer to mark out the area required for construction of field channels@@ ( 9 ) IN the instant case, Annexure-C is the notification issued u/s. 15 (1) of the Act conforms to Form No. 2. The appellants have not produced notification issued u/s. 15 (2) of the Act. In Annexure-C itself, the survey number of the land is mentioned and the extent of the land to be acquired for the channel is also mentioned and the boundaries of the survey number have been mentioned. Under Annexure-D, modified order has been issued for acquisition of 9 cents instead of 7 cents. In Kalappa's case cited (AIR 1973 Mysore 32) (supra), it has been held that after considering the provisions of Ss. 15 (1) and 15 (2) of the Act it was necessary for the Irrigation Officer to determine the alignment and mark out the land which is necessary to occupy for the construction of field channels and the said determination serves an important purpose of notifying the precise land or portion of the land sought to be acquired and therefore, it was not enough to state in the notification issued u/s. 15 (2) of the Act that a particular extent of land in a Sy. No. that is required for construction of field channels but, the precise extent the boundaries and measurement thereof have to be given in the notification issued under S. 15 (2) of the case. No. that is required for construction of field channels but, the precise extent the boundaries and measurement thereof have to be given in the notification issued under S. 15 (2) of the case. Considering the facts in the said case, the Division Bench has observed that under the notification impugned in the case issued u/s. 15 (2) of the Act all that was mentioned was that 3/4 of a gunta in the lands bearing two survey numbers was marked out for construction of field channels and it is impossible to know from that notification as to where that 3/4 of a gunta in the land in question is located. The Division Bench therefore, quashed the notification. ( 10 ) IN Amareshappa's case, reported in AIR 1987 Kant 34, the writ appeal was taken up before the Division Bench against an order passed by the learned Single Judge dismissing the writ appeal. In the said case, Kalappa's case (AIR 1973 Mysore 32) was cited before the learned single Judge and the learned single Judge felt that it was difficult for him to follow the Division \bench ruling reported in Kalappa's case and decided the matter and dismissed writ petitions without following the Division Bench judgment which we feel was not correct. The Division Bench in para 4 of the judgment has observed that there is a mistake in preparing the head note in Kalappa's case in the reports and it should be understood that the principle laid down in the judgment is with reference to sub-sec (2) of Sec. 15 of the Act and not sub. sec. (1) of Sec. 15 of the Act. ( 11 ) THE Division Bench in the said case has held :"5. So far as the merits of the case are concerned, we must point out that the question of applying the law laid down in Kalappa's case AIR 1973 Mys 32, does not at all arise. Not a single ground has been taken in the writ petition bearing on S. 15 (2) of the Karnataka Irrigation Act. Hence, the question of relying upon the decision of Kalappa's case does not at all arise for consideration. The principal grievance, as can be seen from the writ petition is that the irrigation channel is being laid solely for the purpose of benefiting the third respondent and only to irrigate his land. Hence, the question of relying upon the decision of Kalappa's case does not at all arise for consideration. The principal grievance, as can be seen from the writ petition is that the irrigation channel is being laid solely for the purpose of benefiting the third respondent and only to irrigate his land. The purpose of the Irrigation Act is to provide water to all the lands within the achkut area of the project. If the field channel is required to be laid for reaching water to a particular land of a particular person, we fail to see how an objection can be raised on the ground that you cannot lay a channel for the purpose of reaching water for a particular individual. There is, therefore, no substance in this part of the case. There is absolutely no substance in the case put forward that the action taken in this behalf is to support the third respondent and is therefore not bona fide. As there is no other infirmity pointed out in this case, this writ has to fail. " ( 12 ) WE find that the Division Bench eventhough, asserted the law laid down in Kalappa's case (AIR 1973 Mys 32) did not follow the same in Amareshappa's case (AIR 1987 Kant 34) and felt that if the field channel is required to be laid for reaching water to a particular land of a particular person, they fail to see how an objection can be raised on the ground that a channel cannot be laid for the purpose of reaching water for a particular individual. ( 13 ) AS stated earlier, the Act was intended to make provisions relating to construction, maintenance and regulation of irrigation works. In considering the provisions of the statute, it is essential for a Court in the first instance to give effect to the natural meaning of the words used therein. If those words are clear enough and it is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the legislature by construing the provisions of the statute as a whole and taking into consideration other matters and the circumstances which lead to the enactment of the statute. If those words are clear enough and it is only in the case of any ambiguity that a Court is entitled to ascertain the intention of the legislature by construing the provisions of the statute as a whole and taking into consideration other matters and the circumstances which lead to the enactment of the statute. Even if some words have to be supplied to the provision, the Court has to supply the words in order to make the meaning of the statute clear and the Court will naturally prefer the construction which is more in consonance with reason and justice. Under Sec. 15 (1) of the Act which is to be published in the village by the Tahsildar it does not require to specify the details of the piece of land for a field channel. It requires only to give the identity of the land through which the field channel has to be constructed. After publication of the notification u/s. 15 (1) of the Act, an Irrigation Officer has to determine the suitable alignment for the field channels and has to mark out the land which is necessary to be occupied for the construction thereof. By the time notification under S. 15 (2) of the Act is determined the owners of the land to be acquired would have already the notice u/s. 15 (1) and they would come to know the specific area of the land which is being acquired. In the present case, the irrigation officer has marked out 9 cents of the land which is necessary to be occupied for the construction of the field channel from the land bearing Sy. No. 268 and thereafter, the same has been published as provided under the sub-section. ( 14 ) THE intention of the provisions is to provide field channels for irrigation and for the purpose of construction of field channels and it is only small portions of land which will be required and if the field channel has to pass through a certain land bearing certain survey number it is almost impossible for the irrigation officer to give the boundaries of the small extent of the land carved out by him for acquisition for the purpose of constructing the field channels. Moreover, the land owner would have already come to know the piece of land that is going to be acquired since 15 (1) notification is already issued and he would have appeared before the concerned authorities. If the sub-section is to be construed as contended by the learned counsel for the appellants and as decided in the above mentioned judgments. it will be almost impossible task for the irrigation officers to specify the boundaries of those small extent of the land which is to be acquired. What the sub- section says is that the required determination of suitable alignment and marking out the land which is necessary to occupy for construction thereof. Under the notification, survey number of the land is given and in this case the irrigation officer has determined 9 cents of land suitable for alignment for the field channel and has marked out the land from the survey number. ( 15 ) WE do not find any illegality in the impugned notification Annexure. C. The words of a statute when there is doubt about their meaning has to be understood in the sense in which they best hormonise with the subject of the enactment and object which the legislature has in view. Their meaning has to be found not so much in a strictly grammatical or an etymological propriety of language nor even in its popular use, as in the subject or in the occasion on which their use and the object to be obtained. ( 16 ) CONSIDERING the object of the Act, as discussed above, we are of the view that the interpretation given to Sec. 15 (1) and 15 (2) of the Act by the Division Bench in Kalappa's case (AIR 1973 Mys 32) and Amareshappa's case is not based on the principles of law and the object of the Act. When the above mentioned judgments are held to be not good law and when we have already upheld the judgment of the learned single Judge on other points there is nothing more to be considered. There is no merit. In this appeal and it is accordingly, dismissed. Appeal dismissed. --- *** --- .