Bachawat, J. - (1.) In 1954, the Assam Government took possession of the lands of , the respondent and several other persons situated in the District of Kamrup for the construction of the Pagdalia embankment. In 1955, the Assam Acquisition of Land for Flood Control and Prevention of Erosion Ordinance, 1955 (Assam Ordinance No. 2 of 1955) was passed enabling the State Government to acquire lands for works or other development measures in connection with flood control or prevention of erosion. The Ordinance was replaced by the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955 (Assam Act No. 6 of 1955) which was passed on April 11, 1955 with the assent of the President. In April 1956, the State Government passed an order in writing acquiring the lands taken over in 1954 for the construction of the Pagdalia embankment under Section 3 of Ordinance No. 2 of 1955. It seems that the reference to the Ordinance was a mistake and the acquisition was made under Act No. 6 of 1955. On April 26, 1956, the respondent was served with the notice of the acquisition. By an order dated September 10, 1959 the Deputy Commissioner, Kamrup acting on behalf of the State Government quashed the Order dated April 19, 1956 and directed that fresh acquisition proceedings under the Land Acquisition Act, 1894 should be started. Pursuant to this order, some of the lands required for the Pagdalia embankment were acquired under the Land Acquisition Act on payment of full compensation. A draft notification for the acquisition of the respondent's lands under the Land Acquisition Act was sent by the Collector of Kamrup to the Assam Government for approval, but this proposal was eventually dropped. On May 27. 1960, the Assam Acquisition of Land for Flood Control and Prevention of Erosion (Validation) Act, 1959 (Assam Act No. 21 of 1960) was passed with the assent of the President. In November 1960, the State Government passed an order for the acquisition of the respondents lands under Sec. 3 of the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act. It was common case before the High Court that this acquisition was made under Sec. 3 of Act No. 21 of 1960. On November 6 1960, the Collector of Kamrup served a notice upon the respondent informing him of the acquisition order and asking him to submit his claim for compensation. On September 30, 1961, the respondent filed a writ petition in the Assam High Court asking for an order declaring Act No. 6 of 1955 and Act No. 21 of 1960 to be invalid and directing the State Government to forbear from giving effect to the notices issued thereunder. The High Court allowed the petition and issued a writ of mandamus directing the State Government not to give effect to the notices issued under Act No. 21 of 1960. The present appeal has been filed under a certificate granted by the High Court.
(2.) It is convenient at this stags to refer to the provisions of the impugned Acts. The preamble to Act No. 6 of 1955 shows that it was passed to make provision for the speedy acquisition of lands necessary for works or other development measures in connection with flood or prevention of erosion. Section 3 gives power to the State Government to acquire land for those purposes by an order in writing. It is in these terms: "3.Power to acquire land.- If in the opinion of the State Government or such officer as is empowered in this behalf by the State Government it is necessary or expedient to acquire speedily any land for works or other development measures in connection with flood control or prevention of erosion the State Government or such officer may by an order in writing acquire any land stating the area and boundaries of the land." Section 4 provides for the service and publication of the order of acquisition. Under Section 5 on such service or publication the land vests in the State Government and may be taken possession of by the Collector. Section 6 as amended by Act No. 17 of 1959 which provides for compensation is in these terms: "6. Compensation.- The owner of the land which has vested in the Government under Section 5 (1) shall get compensation at the following rate:- (1) for land including standing crops and trees if any but excluding building or structure a sum not exceeding forty times the annual land revenue in case of Periodic Patta Land and fifteen times the annual land revenue in Code of Annual Patta land:- Provided that in case of revenue free land and land paying revenue at concessional rate the compensation will be assessed on the basis of the revenue of similar revenue paying land of the neighbourhood. In determining this sum the Collector shall take the following into consideration - (a) The value of the land as at the date of acquisition; (b) the adverse effect on the value of the land due to possible floods on the land or danger of erosion of such land; (c) The benefit the owner is likely to derive in respect of his other lands in the area due to the control measures; (d) The damage sustained by the person interested by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector taking possession thereof: 2. For building or structure if any a sum, equivalent to the sale proceeds of the materials of the same plus 15 per cent thereof:- Provided that if in lieu of this compensation the owner chooses to take away the materials the Collector shall allow him to do so within such time as specified by him and the cost of the shifting of the buildings or structures as the case may be as may be approved by the Collector in the manner prescribed shall be borne by the Government which cost however shall not exceed 20 per cent of the value of the buildings or structures as the case may be as determined by the Collector." Section 7 provides for payment of interim compensation. Under Section 8 the Collector is required to make an award of the compensation allowable for the land and its apportionment among the persons interested in the land. Under Section 9, on the application of any person aggrieved by the award the Collector is required to refer the matter to the decision of an arbitrator appointed by the State Government. Section 10 empowers the Collector to use such force as may be necessary to evict any person from the land. Section 11 imposes penalties on persons obstructing the taking of possession of the land by the Collector. Section 12 gives protection for action taken in good faith under the Act. Section 13 bars the jurisdiction of the Courts to question the legality of actions taken or orders made under the Act. Section 14 empowers the State Government to make rules. Section 16 repeals Ordinance No. 2 of 1955. Ordinance No. 2 of 1955 contained similar provisions, and it is not necessary to repeat them.
(3.) The preamble to Act No. 21 of 1960 shows that its object is to validate the acquisition of lands taken over for flood control and prevention of erosion. Section 2 is in these terms: "2. (1) Notwithstanding anything contained in the Assam Acquisition of Land for Flood Control and Prevention of Erosion Act, 1955 (hereinafter referred to as the 'said' Act') , any land taken over for the purposes of construction of embankments or carrying out works or other development measures in connection with flood control or prevention of erosion before this Act came into force, except where acquisition was made validly under any other law for the time being in force, shall be deemed to have been validly acquired under the provisions of the 'said Act' and the land shall absolutely vest and shall always be deemed to have been vested in the State Government from the date the land was actually taken possession of. (2) The Collector shall, as soon as may be, after the commencement of this Act, publish by notification in the Official Gazette the description of land deemed to have been acquired under sub-section (1) ." Section 3 provides for payment of compensation. It is in these terms: "3. The Collector shall, within a period of six months from the date of commencement of this Act, assess the value of land deemed to have been acquired under Section 2 in accordance with the principles contained in Section 6 and make an award under Section 8 of the said Act respectively. The owner of the land shall further be entitled to an interest at the rate of 6 per cent per annum on the value of the award for the period from the date the land was actually taken possession of to the date of the award." Section 4 gives protection for action taken in good faith in connection with the land deemed to have been acquired under S. 2. Section 5 provides: "Except as otherwise provided in this Act, the provisions of the said Act shall apply, mutatis mutandis in respect of the acquisition of the land deemed to have been acquired under Section 2 of this Act." Section 6 provides that if any question arises as to the interpretation of the Provisions of the Act or the applicability of any of its provisions in respect of any land the matter shall be referred to the Governor of Assam whose decision shall be final.;