The Collector of Monghyr & Ors Vs.
Keshav Prasad Goenka & Ors [1962] INSC 114 (28 March 1962)
28/03/1962 AYYANGAR, N. RAJAGOPALA 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 noticeStatute
requiring reasons to be recorded by Collector-If mandatory-Demand on landlord
for share of costs-LegalityBihar 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 mandatory ; 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.
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 purposes 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 alteration 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 practicable, 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) construction of Ahar or bundh (2 clearance of pynes and khanra and
(3) re-examination if silted up pynes and khantas, on which Government desire
you to concentrate this year, a small panchayat office public spirited and
reliable persons should be formed with a headman (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 mentioned 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
consultation 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 question
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 117 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 118
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 jurisdiction 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 119 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, 120 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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