The mandatory requirement of Section 53 (3) of the Orissa Irrigation Act, 1959, that the rules be laid before the Assembly for a total period of 14 days comprised in one or more sessions, was not satisfied.

R. C. PATNAIK, J.

( 1 ) THE petitioner has in this writ application under Art. 226 of the Constitution of India assailed the Orissa Irrigation (Amendment) Rules, 1979, enhancing the basic water rate and the Rabi water rate as ultra vires S. 53 (3) of the Orissa Irrigation Act, 1959 (for short, 'the Act') and sought its nullification by a declaration.

( 2 ) THE petitioner owns about 5 acres of irrigated land located in villages Arana, Sahu Sahi, Brahmana Bhuin and Berhampur in the district of Cuttack and has been receiving supply of water from Taladanda canal, which is an irrigation work classified as First class under the Act and the Rules framed thereunder.

( 3 ) ORISSA Irrigation Act, 1959, was enacted with a view to consolidating and amending the laws relating to irrigation, assessment and levy of water rate and cess in force in different parts of the State of Orissa. The scheme of the Act indicates that the lands within the irrigable command would be liable to compulsory basic water rate which would be in the nature of a tax and it would be leviable whether water is actually utilised or not, from irrigation work. While the scheme under Chapter IV makes provision for supply of water on payment of money, any levy under Chapter VI is correlated to actual supply.

( 4 ) 'compulsory basic water rate' has been defined to mean a flat water rate per acre of land within the culturable commanded area of an irrigation work payable to the State Government for supply of water, whether used or not, from an irrigation work for irrigation of staple cereal crop generally grown in such area. But the expression 'land within culturable commanded area' shall not include any land which does not except, under circumstances specified in Section 22, actually get water from an irrigation work. 'culturable commanded area' has been defined to mean all lands under irrigable command of an irrigation work which are fit for cultivation. 'staple cereal crop' has been defined to mean any crop notified as such by the State Government and different crops may be notified in respect of different areas. Section 20 reads as under :"water supply to be subject to rules. All supply of water from an irrigation work shall be subject to such rules or orders as may be prescribed or issued by the State Government from time to time with respect to rates, conditions or any other matter. "rule 23 framed under Section 53 (1) of the Act reads as under :"schedule of water-rate and special rates. The compulsory basic water rate, water rate and special rates for supply of water for purposes other than irrigation shall be levied at the respective rates and on the principles specified in the Schedule annexed to these rules. "in exercise of the aforesaid powers, the State Government had prescribed the basic water rate and water rates under Schedules A and B to the Orissa Irrigation Rules, 1961. In 1979, the Government proposed to enhance the rates and published the same in the official Gazette by notification dated 28-3-79 inviting objections/suggestions by 15th of April, 1979. The draft rules were finalised and as required by Section 53 (3) were laid before the 7th Orissa Legislative Assembly for a period of 11 days from 12-9-79 and before the 8th Orissa Legislative Assembly on 21-9-81 for 3 days and by a Press-Note dated 8/03/1982, the Government notified that the rates enhanced by the Amendment Rules would be effective from 24-9-81, vide Annexure-1.

( 5 ) THE petitioner has assailed the validity of the Amendment Rules enhancing the rate as ultra vires Section 53 (3) on the ground that the said Amendment Rules were not laid before the Orissa Legislative Assembly for a total period of 14th days comprised in one or more sessions.

( 6 ) MR. S. Misra, the learned counsel for the petitioner has contended that the Amendment Rules of 1979 not having been laid for a total period of 14th days before the 7th Orissa Legislative Assembly lapsed on its dissolution and not having been la