PETITIONER: THE COLLECTOR OF MONGHYR AND OTHERS Vs. RESPONDENT: KESHAV PRASAD GOENKA AND OTHERS(And connected appeals) DATE OF JUDGMENT: 28/03/1962 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. MUDHOLKAR, J.R. CITATION: 1962 AIR 1694 1963 SCR (1) 98 CITATOR INFO : F 1974 SC 87 (28) ACT: Private Irrigation Works-Repairs to works-Notice to landlord-Collector's power to direct repairs Without notice- Statute requiring reasons to be recorded by Collector-If mandatory-Demand on landlord for share of costs-Legality- Bihar Private Irrigation Works Act, 1922(Bihar and Orissa 5 of 1922),ss. 3, 4, 5, 5A, 5B, 11, 12-Constitution of India, Art. 226. HEADNOTE: The Bihar Private Irrigation Works Act, 1922, was enacted to provide, inter alia, for the repairs and improvements 99 of certain irrigation works. Under ss.3 to 5 of the Act the Collector was empowered to take action, where he was satisfied that the matter was of sufficient importance for the repairs etc. of the existing irrigation works after causing a notice to be served on the landlord of the land in which the irrigation work was situated and after making the necessary enquiries. Section 5A provided : "Notwithstanding anything to the contrary contained in this Act, whenever the Collector, for reasons to be recorded by him, is of opinion that the delay in the repair of any existing work which may be occasioned by proceedings commenced by a notice under s. 3 adversely affects or is likely to affect adversely lands which are dependent on such irrigation work for a supply of water, he may forthwith cause the repair of such irrigation work to be begun...... In pursuance of a circular issued by the Government of Bihar to the District Officers, the officials of the revenue department submitted reports pointing out that the irrigation works specified by them needed repairs. The Collector of Monghyr, on receipt of the report passed an order under s. 5A of the Act on the terms as recited in that section, but he did not record the reasons why he considered that the delay in issuing the notice under s. 3 would bring about the consequences which were recited in s. 5A. After the work was completed, there was an apportionment of the total cost and a demand was made on the landlord under s. 11 of the Act for his share of the contribution. The landlord challenged the legality of the demand by filing an application before the High Court of Patna under Art. 226 of the Constitution of India on the grounds, inter alia, that it was an essential requirement of s. 5A that the Collector should record his reasons for departing from the normal procedure of an order based on an enquiry under ss. 3 to 5, and that the failure to do so rendered the action taken under s. 5A void, so as to render invalid all further proceedings for the recovery of the landlord's share of the apportioned cost. Held, that in the context in which the words "for the reasons to be recorded by him" occur in s. 5A of the Bihar Private Irrigation Works Act, 1922, and considering the scheme of the Act, the requirement of these words was manda- tory ; that as in the present case, the requirement was not complied with, the order of the Collector under s. 5A was null and void. State of Uttar Pradesh v. Manbodhan Lal Srivaslava [1958] S.C.R. 533, considered. 100 Held, further, that even assuming that the order of the Collector under s. 5A was administrative in its nature, the landlord was entitled to relief under Art. 226 of the Constitution because the demand which was made against him under s. II of the Act and which was sought to be recovered as arrears of public demands under s. 12, was based on the order under s. 5A found to have been passed without jurisdiction. Held, also, that s. 5B of the Act was applicable only to cases of compensation for loss sustained by third parties and not where a liability arose under ss. 11 and 12. JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 53 to
81, 133 to 137 253 to 263 of 1960.
Appeals by special leave from the judgments and orders
dated March 28, 1957, April 20, 1956, July 12, 1960 and
March 14, 1956, of the Patna High Court in Misc. Judicial
Cases Nos. 531, 535, 539, 541, 543, 548 to 552, 554 to 557,
559, 560, 562 to 572 and 574 of 1956 and 141, 142, 256, 271
to 273 and 349 to 358 of 1955.
L. K. Jha, Bhagawat Prasad, D. P. Singh, R. K. Garg, S. C.
Agarwala and M. K. Ramamurthi, for the appellants in C. As.
Nos. 53 to 81 of 1960.
J. C. Sinha, K. K. Sinha and R. R. Biswas, for the
respondents Nos. 1, 3 to 6 and 8 to 11 in C. As. Nos. 53 to
56 of 1960, and the respondents in C. As. Nos. 77 to 81 of
1960.
L. K. Jha and R. C. Prasad, for the appellants in C. As.
Nos. 133 to 137 of 1960.
J. C. Sinha and R. R. Biswas, for the respondents in C.
As. Nos. 133 to 137 of 1960.
T. P. Sinha and S. P. Varma, for the appellants in C. As.
Nos. 253 to 263 of 1960.
A. V. Viswanatha Sastri, Ugra Singh and D. Goburdhan, for
the respondents in C. As. Nos. 253 to 263 of 1960.
1962. March, 28. The Judgment of the Court was delivered
by
101
AYYANGAR, J.-These three batches of appeals are before us by
virtue of special leave and have been, heard together
because of the common point raised in them which relates to
the proper construction of s. 5A of the Bihar Private
Irrigation Works Act, 1922 (Bihar and Orissa Act, 5 of
1922), which will be hereafter referred to as the Act. The
State of Bihar which is the appellant in these appeals
questions the correctness of the orders of the High Court by
which a number of writ petitions filed by landlords
challenging the legality of demands for contribution made on
them under s. 11 of the Act were allowed by the High Court
of Patna.
For the purposes of the ‘decision of these appeals it is not
necessary to state the detailed facts of any of the cases
but it is sufficient if a reference were made to any One of
the orders passed under s. 5 A of the Act which was the
basis of the demand for contribution which was successfully
impugned, since it is common ground that every one of these
orders concerned in the several appeals was subject to one
infirmity to which we shall presently refer and that is
sufficient to dispose of these appeals.
Before setting out in brief outline the facts which led to
the present proceedings it would be convenient to refer to
the relevant provisions of the Act. The preamble to the Act
reads :
“Whereas it is. expedient to provide for the
construction repair, extension or alteration
of certain kinds of irrigation works and to
secure their maintenance and to regulate the
supply or distribution of water by means of
such works and to facilitate and regulate
their construction, extension and alteration.”
The repairs and improvement of Irrigation Works are dealt
with in Ch. II whose provisions are material for the
controversy before us. Section 3 with
102
which this Chapter opens enacts, to quote the of material
words :
“Whenever it appears to the Collector
(a) that the repair of an existing
irrigation work is necessary for the benefit
of any village or local area within the
district and that the failure to repair such
irrigation work adversely affects, or is
likely to affect adversely, the lands which
are dependent thereon for a supply of water,
or
(b) that it is desirable for the purpose of
settling or averting disputes. or preventing
waste of water or injury to land by the
wrongful or undue diversion of a stream or
channel that any sluice, weir, outlet, escape,
head work, dam or other work should be
constructed in any irrigation work, in order
to regulate the supply or distribution of
water for agricultural purposes,
he may, if satisfied that the matter is of
sufficient importance to justify his
intervention,-
(i) cause in the prescribed manner a notice
to be served on the landlord of the land in
which the irrigation work is situated and
public notice to be given at convenient places
in every village in which the irrigation work
is situated stating that he intends to take
action under this Chapter for the repair of
the said work or for extending or altering it
in any of the ways specified in clause (b) and
specifying the. date on which the inquiry
under section 4 will be held, and
(ii) serve a notice in the prescribed manner
on every person known or believed to be under
an obligation to maintain
103
the irrigation work in an efficient state,
calling on him to show cause on the date
specified in the notice why he should not be
required to repair the said work or alter it
as aforesaid;
Section 4 makes provision for an inquiry and
it reads:
“14. On the date stated in the notices issued
under section 3, or on any other date to which
the proceedings may be adjourned, the
Collector shall hold an inquiry and shall hear
the persons on whom the notices have been
served if they appear) and any other persons
affected or likely to be affected by the order
who may attend; and may take down in writing
any evidence that he may think fit regarding-
(a) the necessity for repairing, extending or
altering the said irrigation work,
(b) the nature of the works required for
such repair, extension or alteration,
(c) the obligation to maintain the
irrigation work in an efficient state and the
reasons why the person under such obligation
has failed to repair it, and
(d) the probable cost of the proposed work
of repair, extension or alteration.”
Section 5 which follows sets out the powers of the Collector
and it reads :
“5. (1) If, after making an inquiry under
section 4, the Collector is satisfied that the
state of disrepair of the irrigation work
104
is such as materially affects or is likely to
affect materially the irrigation of the lands
which are dependent thereon for a supply of
water, or that any extension or alteration of
such irrigation work is necessary for the pur-
poses specified in clause (b) of section 3, he
shall issue an order in writing requiring that
the proposed work of repair, extension or
alteration shall be carried out-
(a) by one or more of the persons on whom
notices under clause (ii) of section 3 have
been served and who agrees or agree to carry
out the said work, or
(b) by any such agency as he thinks proper,
if, for reasons to be recorded by him, he
considers that there are adequate reasons why
any person mentioned in clause (a) should not
be entrusted with the carrying out of the said
work;
Provided that the Collector shall, if he is
satisfied that the cost of carrying out the
proposed work of repair, extension or altera-
tion will be prohibitive, pass an order
declaring that such work shall not be carried
out :
(2) Every order made under sub-section
(1) shall specify, as closely as may be pra-
cticable, the nature of the work to be done
the estimated cost of executing it and the
manner in which and the time within which it
shall be executed.”
At this stage reference may be made to the terms of s. 47
under which any person aggrieved by an order of a Collector
under s. 5 has, within three months from the date on which
the first over act is taken in pursuance of such order, a
limited right of suit in a civil court,
105
Section 5A, whose construction is involved in these appeals
was introduced by an amendment effected by Bihar Act X of
1939 and it is necessary to set it out in full :
“5 A. (1) Notwithstanding anything to the
contrary contained in this Act, whenever the
Collector, for reasons to be recorded by him,
is of opinion that the delay in the repair of
any existing irrigation work which may be
occasioned by proceedings commenced by a
notice under section 3 adversely affects or is
likely to affect adversely lands which are
dependent on such irrigation work for a supply
of water,’ he may forthwith cause the repair
of such irrigation work to be begun by any one
or more of the persons mentioned in clause
(ii) of section 3 or by such agency as he
thinks proper:
Provided that the Collector shall cause public
notice to be given at convenient places in
every village in which the irrigation work is
situated stating that the work mentioned
therein has already been begun.
(2) When any such work has been completed,
the Collector shall cause notice to be given
in the manner aforesaid stating that the work
mentioned therein has been completed.”
As some reference was made by learned Counsel. for the
appellant to the provisions of s. 5B, we might extract the
relevant portion of it:
“5B. (1) Any person who has sustained any loss
by anything done by the Collector or by any
person acting under the orders of the
Collector under sub-section (1) of section 5 A
may make an application to the prescribed
authority for compensation for such loss and
for an order directing the restoration of the
land or the irrigation work to its former
condition.
106
Section 7 makes provision for the recovery of the cost of
the work by persons who effected them under s. 5 (1) (a) or
under s. 5A by application to the Collector. When the cost
has been ascertained under s. 7 s. 8 empowers the Collector
to apportion the cost between persons “having regard to the
obligations under which they were to maintain the irrigation
work in an efficient state, the reason for their failure so
to maintain it, the benefit which is likely to result from
the work of repair or construction and any other
considerations which in the circumstances of the case he may
deem it fair and equitable to take into account”. And after
such apportionment is made the Collector is empowered to
make an award specifying the person or persons by whom the
sum so apportioned is payble. The other provisions of the
Act enable demands to be issued on the persons who are
liable to make the payment and for the recovery of the case
sums as a public demand payable to the Collector.
The facts giving rise to these petitions were briefly as
follows: On 19th April, 1948 the Government of Bihar issued
a circular letter signed by the Additional Secretary to
Government to the District Officers of various districts
including Monghyr from which these appeals arise. In this
communication the Additional Secretary stated.
“I am directed to say that Government have
decided that in addition to the irrigation
work under the Grow More Food Scheme of the
Development, each of the District Officer
mentioned above should take up and execute
before the rains one hundred Minor Irrigation
works in his district under section 5, 5A, 32A
and 32B of the Private Irrigation Works Act on
an approximate average cost of Rs.2,000/for
each work ……………
107
(2) To finance these schemes under the
Revenue department a sum Rs. 1,00,000/to the
district of Monghyr (is allowed)
(3) Government have decided that the minor
irrigation work should continue to be executed
both under the Development department (Grow
More Food section) and the Revenue Department
but the Collector of the district village
responsible for the entire minor irrigation
works under both the categories Even the
schemes to be executed under the Revenue
department should be treated as Grow More Food
scheme, but all use of the provision of the
Private Irrigation works should be made in all
cases in order to ensure that quick work on
the initiative of the Collector is done and
cost recovered later on after-the work has
been completed.
(4) In deciding upon the scheme to be taken
up under the Revenue Department, the District
Officers are requested to consider those sent
by the Presidents, District Congress
Committee, for which special request was made
to them.
(5) The cost will in the first instance be
met by Government but 50% of the same will be
realised from the persons benefited
(6) In every village selected for one of the
following items of work, namely (1) cons-
truction of Ahar or bundh (2 clearance of
pynes and khanra and (3) re-examination if
silted up pynes and khantas, on which Govern-
ment desire you to concentrate this year, a
small panchayat office public spirited and
reliable persons should be formed with a head-
man
(7) You are therefore requested to contact
immediately the District Supervisor
108
and the President, District Congress Committee
of your district.
(9) Government have authorised expenditure
to be incurred in anticipation of provision of
funds.”
Some time after this circular, and as stated by the State in
the counter-affidavit filed by it in answer to the writ
petitions under Art. 226 from the orders on which Civil
Appeals 53-81 of 1960 arise, in pursuance of this circular,
the officials of the Revenue Department submitted reports to
Sub-Divisional Officers who were vested with the powers of a
Collector under s. 5A pointing out that the irrigation works
specified by them needed repairs and thereafter orders were
passed by the Collector in these terms:
“whereas it appears to me that the repair of
an existing irrigation work, viz………
situated in ‘village Thana……………
District Monghyr is necessary for the benefit
of the aforesaid village and the failure of
repair of such irrigation work adversely
affects and is likely to affect adversely the
lands which are dependent thereon for supply
of water, and
Whereas I am satisfied that my intervention is
necessary because, in my opinion, delay in the
repair of the existing irrigation work which
may be occasioned by the proceedings commenced
by a notice under s.3 adversely affects or is
likely to affect adversely the land which
depends on such irrigation work for supply of
water it is deemed expedient to proceed under
section 5A of the BPIW Act. I therefore
hereby order that the said work be forthwith
put to execution under section 5A of the said
Act. A public notice under section 5A (1) be
given at a convenient place
109
at the aforesaid village that the work men-
tioned therein has already begun.”
The public notice that the work has already been commenced
s. 5A(1) was issued and the work was completed. Thereafter
there was an apportionment of the total cost and in line
with the circular of Government which we have recited
earlier, the landlord’s share of the contribution was
determined as 500 % of the total cost of the work. When
these sums were sought to be demanded from the landlords
(from whom it might be ,stated that by the date of this
demand their estates had been taken over by Government under
the provisions of the Bihar Land Reforms Act (Act 1 of 1950)
they came forward to question the legality of the demand.
Pausing here, it is ‘necessary to mention a few matters: The
first is that the orders passed by the Sub-Divisional
Officers in each of these several cases was on a cyclostyled
form in which only the name of the work and its location
with reference to the village, Thana, district etc. had to
be filled up. In some of the cases even the name of the
work which was left blank in the cyclostyled form. was not
filled in by the Collector before he signed this order. Mr.
Varma learned Counsel who appeared for the appellant-State
in Civil Appeals 53-81 of 1960 in which some of the orders
suffered from this infirmity, suggested that these orders
might stand on a different footing. But in the view we are
taking of the requirements of s. 5A it is not necessary to
separate these cases. Secondly, in none of the orders
passed under s. 5A whose legality has been challenged in
these several appeals, has the Collector recorded the
reasons why he considered that the delay in issuing the
notice under s. 3 would bring about the consequences which
are recited in s. 5A(1) of the Act.
Though, as stated earlier, it was the case of State, in the
High Court at least in the petitions which have given rise
to Civil Appeals 53-81 of
110
1960, that the orders of the Collectors were passed in
pursuance of Government’s policy as disclosed in the
circular dated April 19, 1948, we shall, for the purposes of
dealing with the points urged before us, omit from
consideration this feature and proceed on the basis that the
Collector had passed these orders suo moto in exercise of
their own discretion without having been induced to do so by
an external authority. It will be noticed from the sample
order of the Collector we have extracted earlier, that even
where the form was properly filled up, it does not recite
the reason why the Collector considered the procedure
requiring a notice to the affected party followed by an
enquiry outlined by ss. 3 to 5 could not be adopted.
The learned Judges of the High Court have decided in favour
of the respondents on two grounds; (1) that having regard to
the order it was apparent that the Collectors bad not
applied their minds to the question before them, the
recitals therein being merely a mechanical reproduction of
the terms of,%. 5A, and ( 2) that it was an essential
requirement of s: 5A that the Collector should record his
reasons for departing from the normal procedure of order
based on an enquiry under ss. 3 to 5 and the failure to do
so rendered the action taken under s. 5A void, so as to
render, invalid all further proceedings for the recovery of
the landlords’ share of the apportioned cost from the
respondents. As we are clearly of the opinion that the
learned Judges of the High Court were right in their
second ground it is unnecessary to consider the first’ viz.,
whether the learned Judges were right in holding that the
first ground was made out in the present case or not.
We shall first proceed to consider the place of s. 5A in the
scheme of the Act, Section 3(a) deals with the same type of
oases, as that dealt’ with by s. 5A,viz., that the repairs
of an existing irrigation work is necessary for the benefit
of a village and
111
that the failure to repair such irrigation work adversely
affects or is likely to affect adversely the lands which are
dependent thereon for the supply of water words which are
repeated in the latter Provision. if action was taken under
s. 3 then notices would have to be issued in the present
case to the landlords for it is on the basis that they were
under an obligation to ‘effect the repair that they are
sought to be made liable for the cost of the repairs [vide
s. 3(b)(ii)]. The landlords would then have an opportunity
of disputing: (1) their obligation to make the repair, (2)
whether the repair suggested is necessary or not, and (3)
whether to achieve the same result any other manner of
repair which might cost less might not suffice, and it would
be after considering the objections made and the evidence
led on these points that the Collector would have to decide
under the terms of s. 5 whether the repair should be carried
out and if so, what repairs and in what manner. When the
Collector proceeds under ss. 3 to 5 he will undoubtedly be a
quasi-judicial authority and would have to decide
objectively on the basis of the materials placed before him.
The notice, determination and enquiry contemplated by ss. 3
to 5 would normally take some little time before the work,
it decided upon, could be put into execution and be
effected. Emergencies might arise such as a sudden
inundation, unexpected rains etc. by reason of which repairs
have to be undertaken immediately in order to avoid danger
to an irrigation work which would not brook any delay. It
is obvious that it is to provide for such a contingency that
s.5A was introduced. It dispenses with notice of an enquiry
and an enquiry which might follow the notice and denies to
the landholder or other person who is ultimately charged
with the liability to meet the cost of the repair the’
opportunity of pointing out to the Collector that there is
no need for the repair or that the repair could be effected
at less cost.
112
That the power under the section can be invoked only in an
emergency is not disputed before us but what the learned
counsel for the appellant submitted was that s. 5A vested in
the Collector an administrative jurisdiction and that it
contemplated action being taken on his objective
satisfaction that an emergency exists. It is unnecessary
for the purposes of the present that appeals to consider the
question whether the satisfaction of the Collector under a.
5A indicated by the words “whenever the Collector………
is of opinion” is purely a subjective satisfaction or posits
also that he should reach that satisfaction only on relevant
material and that it would be open to a party affected by
the order to challenge the validity of the order by
establishing the absence of any relevant material for such
as satisfaction. We shall assume that (a) The Collector is
exercising merely an administrative jurisdiction and not
functioning as, a quasi-judicial authority, (b) that what
matters and what confers on him jurisdiction to act under s.
5A is his subjective satisfaction that the delay in the
repair of an existing irrigation work which may be
occasioned by a proceedings commenced by notice under s. 3,
leads or is likely to lead to ‘the consequences set out in
the latter’ part of sub-s. (1) of s. 5A. If these had been
the only statutory requirements, learned Counsel would
certainly be on firmer ground, but the statute does not stop
with this but proceeds to add a direction to the Collector
that the reasons for his opinion should be recorded by him.
There is no doubt that on the texture of the provision the
recording of the reasons is a condition for the emergency of
the power to make the order under sub-s. (1)
The question, however, debated before us was that the
condition or the requirement was not mandatory what was only
directory with the result that the failure on the part of
the Collector to record his reasons was at the
113
worst an irregularity which would not affect the legality of
the order. In this connection learned Counsel placed strong
reliance on the judgment of this Court in State of Uttar
Pradesh v. ManboclhanLal Srivastava (1) where it held that
Art. 320(3)(c) of the Constitution was not mandatory and
that the absence of consultation or any irregularity in con-
sultation did not afford a public servant whose case was
omitted to be referred to the Public Service Commission a
cause of action in a court of law. Learned Counsel pointed
out that even though the language used in Art. 20 (3)
appeared imperative in that it enacted “that the Public
Service Commission shall be consulted,” those words were
held not to be mandatory. The present case was, according
to him, a fortiori, because the imperative word “shall” had
not been used. He also referred us to other decisions were
the requirements of the law had been held to be directory,
but to these it is not necessary to refer, for it ultimately
depends on the construction of each enactment and none of
the decisions relied on were really in pari materia with the
case now before us.
We feel unable to accept the submission of learned Counsel
that in the context in which the words’ “for the reasons to
be recorded by him” occur in s. 5A and considering the
scheme of Ch. II of the Act, the requirement of these words
could be held to be otherwise than mandatory. It is
needless to add that the employment of the auxiliary verb ”
shall” is inconclusive and similarly the mere absence of the
imperative is not conclusive either. The question whether
any requirement is mandatory or directory has to be decided
not merely on the basis of any specific provision which, for
instance, sets out the consequence of the omission to
observe the, requirement, but on the purpose for which the
requirement has been enacted, particularly in the context of
the
(1) [1958] S.C.R. 533.
114
other provisions of the Act and the general scheme thereof.
It would, inter alia, depend on whether the requirement is
insisted on as a protection for the safeguarding of the
right of liberty of person or of property which the action
might involve.
Let us now examine the provision with reference to the
several relevant matters we have just set out. Firstly, on
the main scheme of the Act and what one might term the
normal procedure, is that indicated by ss. 3 to 5 where
there is ample opportunity afforded to persons affected to
put forward their objections and prove them before any
pecuniary liability is fastened upon them. Section 5A
constitutes a departure from this norm. It is obviously
designed to make provision for cases where owing to an
emergency it is not possible to comply with the requirements
of ss. 3 to 5 of affording an opportunity to affected
persons to make out a case that there is no justification
for burdening them with any pecuniary obligation or
pecuniary obligation beyond a particular extent. It is in
the context of this consideration that the Court has to
consider whether the requirement that reasons should be
recorded by the Collector is mandatory or not. If the ques-
tion whether the circumstances recited in s. 5A(1) exist or
not is entirely for the Collector to decide in his
discretion, it will be seen that the recording of the
reasons is the only protection which is afforded to the
persons affected to ensure that the reasons which impelled
the Collector were those germane to the content and scope of
the power vested in, him. It could not be disputed that if
the reasons recorded by him were totally irrelevant as a
justification for considering that an emergency had arisen
or for dispensing with notice and enquiry under ss. 3 to 5,
the exercise of the power under s. 5A would be void as not
justified by the statute. So much learned Counsel for the
appellant had to concede. But if in those circumstances
115
the section requires what might be termed a “speaking order”
before persons are saddled with liability we consider that
the object with which the provision was inserted would be
wholly defeated and protection afforded nullified, if it
were held that the requirement was anything but mandatory.
If, as we hold, the requirement was mandatory it was not
disputed that the orders of the Collector which did not
comply with the statutory condition precedent must be null
and void and of no effect altogether. Learned Counsel for
the State however draw our attention to the fact that in
several of these appears, before the Collectors passed these
orders under s. 5A they had before them reports of Overseers
or Estimating Officers who had reported about the condition
of the irrigation work and had suggested that action
under s. 5A was called for. It was, therefore, suggested
that as the Collectors had, before they passed these order
under s. 5A, materials on the basis of which an order under
s. 5A could be justified, it should be held that the report
of the Overseer or Estimating Officer and the order of the
Collector should be read as part and parcel of each other,
with the result that the requirement of the reasons having
to be recorded in writing should be held to have been
complied with. In the alternative it was submitted that as
“reasons” which could justify an order under s. 5A did in
fact exist, the Collectors should be deemed to have taken
them into account when in the course of the impugned order
they recorded their opinion that “the delay which may be
occasioned by a notice under s. 3 would adversely affect the
lands dependent on the irrigation works”. We must express
our inability to accept either submission.
There are two matters which though somewhat inter-related
are never the less distinct, and separate. One is the
conclusion or finding of the
116
Collector that the state of circumstances set out in s.
5A(1) exist, and the other the reasons why and the grounds
upon which the Collector reaches that conclusion that in the
circumstances existing in a particular case it cannot brook
the delay which the resort to the normal procedure of notice
and enquiry for which provision is made by ss. 3 to 5 should
be departed from.
To suggest that by a recital of the nature of the repairs
required to be carried out and employing the language of s.
5A(1) the officer has recorded his reasons for invoking s.
5A is to confuse the recording of the conclusion’ of the
officer with the reasons for which he arrived at that
conclusion. Besides just as it would not be open to
argument that the terms of s. 5A(1) will be attracted to
cases where there is factually an emergent need for repairs
of the type envisaged by the section but the Collector does
not so record in his order ; similarly the factual existence
of reasons for the Collector’s conclusion would not avail
where he does not comply with the statutory requirement of
stating them in his order. The reports of the Estimating
Officer or of the Overseer which were relied on in this
context would only indicate that those officers considered
that action under s. 5A was called for. Several of the
reports referred to in this connection extract the material
words of s. 5A(1) and conclude with a recommendation to the
Sub-Divisional Officer who was vested with the powers of a
Collector that it was a fit case for action being taken
under s. 5A. What the section requires is that on the basis
of materials which exist-this might include the reports of
officers as well as information gathered by the Collector
himself by personal inspection or after enquiry he should
reach the conclusion that irrigation works for the purposes
set out in s. 5A should be immediately taken on band and
completed and that there is such an emergency in having the
work completed which will not
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brook that amount of delay which the notice and proceedings
under ss. 3 to 5 would entail. It is not therefore the
presence of the material that is of sole relevance or the
only criterion but the Collector’s opinion as to the urgency
coupled with his recordings his reasons why he considers
that the procedure under ss. 3 to 5 should not be gone
through. We are therefore unable to accept the submission
the reports of the Overseers or Estimating Officers would
obviate the infirmity arising from the failure of the
Collector to record his reasons as required by s. 5A(1).
From the fact that under s.5 A (1) the power of the
Collector to make an order emerges on his being bona fide
satisfied regarding the matters set out in the sub-section,
it does not follow either that the reasons why be has formed
that opinion are immaterial, or that it is unnecessary for
him to state those reasons in the order that he makes, and
that his omission to do so could be made up by the State
adducing sufficient grounds therefore when the validity of
the order is challenged. We have thus no hesitation in
holding (a) that the requirement that the Collector should
record his reasons for the order made is mandatory and (b)
that this requirement has not been complied with in the
cases before us, and (c) that in the circumstances the order
of the Collector was therefore null and void.
Before proceeding further, it would be convenient to dispose
of an argument based on s. 5B. It was faintly suggested
that the respondents were persons who had sustained a loss
by reason of a thing done by the Collector and that the
statute provided a remedy therefore by permitting a claim
for compensation under the provisions of s. 5B. We consider
that this submission arises wholly on a misreading of s. 5B.
The “loss” for which the section provides compensation is
that directly arising from the doing of the work, i. e.,
loss sustained by third parties and not the liability to
make the
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apportioned cost under ss. 11 and 12 for the very basis of
the liability under these provisions is that the person from
whom payments are demanded has benefited by the work being
done in that he being under an obligation to effect the
repairs, that obligation was discharged by the work done at
the instance of the Collector.
Both Mr. Jha and Mr. Varma who appeared for the State in
these bathes of appeals raised a contention that the High
Court bad no jurisdiction to afford the respondents relief
under Art. 226 of the Constitution. In support of this
argument two grounds were urged: First, that the orders of
the Collector under s. 5A were administrative in their
nature and therefore not amenable to the jurisdiction of the
High Court for the issue of a writ of certiorari. In our
opinion, the contention proceeds upon a misapprehension as
to the nature of the objection raised and as regards the
particular orders which were challenged before the High
Court What the High Court set aside were the demands which
were issued against the landlords under s. 11 of the Act and
which were sought to be recovered as arrears of public
demands under s. 12. No doubt, those demands had their
origin in or were ultimately based upon an order passed by
the Collector under s. 5A. The argument which the
respondents presented to the High Court and which the
learned Judges accepted was that the demands were illegal
and not justified by law, because they had ultimately to be
based upon orders (under s. 5A) which were without jurisdic-
tion and therefore void. It would therefore be seen that
the respondents were not seeking to set aside the several
orders passed by the Collector under s. 5A but only the
demands based on them on the ground that they were illegal.
The High Court had certainly jurisdiction to direct that
these demands be quashed and should not be enforced. If the
orders under s. 5A on which these demands
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were based were void, i.e., as passed without jurisdiction,
they did not need to be set aside and therefore there was no
necessity for taking any proceedings for obtaining such
relief. They were non est. If they were of that character
they could not serve as a foundation for the liability which
was sought to be fastened upon the respondents by
apportionment under ss. 7 and 8 and by the issue of a notice
of demand under s. 10. It was on this line of reasoning
that the learned Judges have proceeded and we consider that
they were right. If the orders under s. 5A had no legal
foundation as being wholly without jurisdiction because the
statutory requisites or conditions precedent for such orders
were not satisfied, no liability to make a payment could
arise out of such orders.
The other submission was that several of the orders under s
5A were passed before the Constitution and that is the
Constitution was not retrospective the High Court could not
exercise the jurisdiction which was for the first time
conferred on it by Art. 226 of the Constitution in respect
of orders passed before January 26, 1950. It is not
disputed that all the several demands which were quashed
were made after rejected the constitution. For the reasons
for which we have the submission just now dealt with the
argument in the present form must also be repelled.
Mr. Varma next contended that the respondents must be deemed
to have acquiesced in the orders passed under s. 5A by not
objecting to them immediately and that they were now
estopped from contending that they were void having, by the
execution of the work, obtained a benefit by the repair of
the irrigation work. There is no substance at all in this
argument. Section 5A does not contemplate any notice to the
affected party, and the public notice that the proviso to s.
5A provides for is a notice that the work has begun.’ There
is thus,
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before the completion of the work, no provision in the
statute for the landlord to make his representations, even
assuming that he is shown to have knowledge of the passing
of the order. Seeing that the very object of s. 5A is to
preclude any objection which a landlord might have to the
repair of an irrigation work, we consider it rather
anomalous that- an argument should be addressed which rest
on the basis of a failure to object. Reference was, in this
connection, made to the terms of s. 46 under which the Board
of Revenue have a general power of supervision and control
over all orders and proceedings of the Collector and it was
urged that the failure on the part of the respondents to
have availed themselves of this provision debarred them from
moving the High Court. This would turn upon the question
whether the relief by resort to proceedings under the Act
would be sufficient and adequate which would render it
unnecessary for the respondents to have moved the High
Court. Though an objection of this sort appeared in some of
the counter-affidavits filed before the High Court the
matter does not appear to have been pressed before the High
Court at the time of the arguments. As the High Court had
certainly a discretion to grant relief under Art, 226 even
if there were other alternative statutory remedies, we do
not propose to entertain this objection at this stage.
The result is that these appeals fail and are dismissed with
costs. There will be only one hearing fee as all the
appeals were heard together.
Appeals dismissed.
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