Judgement

BACHAWAT, J. :- 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