THE COLLECTOR OF MONGHYR AND OTHERS versus KESHAV PRASAD GOENKA AND OTHERS

Ch[1]1v'1lier /. /, l7yappon v.

The D/iarmod_oyam Ctnnpany

Eop.. J.

March ZS.

agreement if any of the parties but it is unnecessary to go into these caseR because the offer which was originally m.ade by the appellant and accepted by the respondent company has not been adhered to and the appellant is now proceeding on an entirely new basis.

In our opinion the offer and the aooeptence of the terms of the trust deed being wholly diffe-rent from what has now been executed by the appellant and from the manner in which the new trust has been constituted into lessee of the com-pany without the company's agreement it is not possible for court in equity to accept the new trust as bar to the respondent's claim for posses· sion. In this case the appellant has suffered no loss. The amount which he has expended has been returned to him.

In our opinion the judgment of the High Court Wllll right and we therefore dismiss this appeal with costs.

Appeal dismisstd.

THE COLLECTOR OF MONGHYR AND OTHERS v.

KE8HAV PRASAD GOENKA AND OTHERS

(And connected appeals)

(B. P. SINKA, C.J., K: SUBBA RAO, N. RAJAGOPALA AYYANGAR, J. R. MuDHOLKAR and T. L. VENXATAB.illi AIYAR, JJ.)

Private Irrigation Work-Repairs to worka-Nolice to landlord-Collector' power to direct repairo wilhout notice--Statute requiring reasons to be recorded by Oollecf,or-Jf manda-tory-Demand on landlord for share of cosla-Legatity-Bihar Private Irrigation Worka Act, 1922(Bihar and Oriasa 5 of 1922), as. 8, 4, 5, 5A, 5B, 11, 12-0onotitvlion of India, Art. 226.

The Bihar Private Irrigation Works Act, 1922, was enacted to provide, inter alia, for the repairs and improvements

i s.c.R.. SUPREME COURT REPORTS

of certain irrigation works. Under ss. 3 to S of the Act the Collector was empowered to take action, where he was satisfif'd that the matter was of sufficient importance for the repairs etc. of the existing irrigation works after causing notice to be served on the landlord of the land in which the irrigation work was situated and after making the necessary enquiries. Section SA provided : "Notwithstanding anything to .. the contrary contained in this Act, whenever the Collector, for reasons to be recorded by him, is of o¢nion that the delay in the repair of any existing work which may be occ~sioned by proceedings commenced by notice under s. 3 adversely affects or is likely to affect adversely lands which are depen-dent on such irrigation work for supply of water, he may forthwith c(!use the iepair of such irrigation work to be begun •... "

In pursuance of circular issued by tpe 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 p,assed an ~rder under s. 5.A of the Act on the terms as recited m 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 conse-quences which were recited ins. SA. After the work was completed, there was an apportionment of the total cost and 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. SA that the Collector should record his reasons for departing from the normal procedure of an order based on an enquiry under ss. 3 to S, 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 ins. SA 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, \he order of the Collector under s. 5A was null and void.

State of Uttar Prad.eah v. Manbodhan Lal Srivaatava l 9S8J S.C R. 533, considered'.

The Collector of Monghyr v. Kes/iatJ Prastd Goenka

J98B Thi Coll1elnr of Mohg/iy>' •• Kuhao Pr-.sad Ga..k1

100 StJl>REME COURT REPORTS [1963]

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 Constitu-tion because the demand which was made against him under s. 11 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 ilpplicable only to cases of ~ompensatio~ for loss sustained by third parties and not where liability arose under ss. 11 and 12.

CIVIL AI'PELLATE 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 Comt in Miso. Judicial Cases Nos. 531, 535, 539, 541, 543, 548 to 552, 554 to 557, 559, 560, 562 to 572 and 574 of 1956 and 1°41, 142, 256, 271 to 273 and 349 to 358of1956.

L. K. Jha, Bhagawat Prasad, D. P. Singh, R. K.

Garg, S. 0; Agarwal.a and M. K-. RomuJmurlhi, for the appellants in C.,As. Nos. 53 to 81 of 1960.

J. O. Sinha, K. K. Sinha and R. R. BiswaB, for

the respondents Nos. I, 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. 0. Prasad, for the appellants

in C. As. Nos. 133 to 137 of 1960.

J. O. Sinha and R.R. Bistoaa, for the respon-dents 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. ViBwanatha Saatri, Ugra Si'll(lh and D. Goburdhan, for the respondents in C. As. Nos. 253 'to 283 of 1960. 1962. Maroh, 28. The Judgment of the Colll't was delivered by

I S.C.R. SUPREME COURT REPORTS

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 cor;tstruc-tion of s. 5A 'of the Bihar Private Irrigation Works Act, 1922 (Bibar. and Orissa Act, 5 of 1922), which will be hereafter ref erred 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 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 reference were 'made to any one of the orders passed under s. 5 of the Act which was the basis of the demand for contribution which was successfully impugned, since it is common gl'.ound that every one of these orders concerned in the several appeals was subject to one infirmity to which we shall presently ref~r and that is sufficient to dispose of these appeals.

Before setting out in brief outline the facts which led to the present prooeedings it would be convenient to refer to the relevant provisions of the Act. The preamble to the Act reads :

"~ereas it· is expedient to provide for

the construction repair, extension ~r 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. 1I whose provisions are mate-rial for the controversy befol'e us. Section 3 with

The Colltctor of Monghyr v. Keshav Prasad Goenka A_vangai J.

1lt• Ctll"tor of Monghyr •• K111a•t.1 Prtuad Goen/co A7yangor J.

which this Chapter opens enacts, to quote the material words :

"Whenever it appears to the Collector

(a) that the- repair or 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 aff'ect l\dversely, the lands which are dependent thereon for supply of water, or

( b) that it is desirable for the purpose of settliDg or averting disputes or prevent-ing waste of water or injury to land by the wrongful or undue diversion of stream or channel that any sluice, weir, outlet, escape, head work, dam or other work should be constructed in any irriga-tion work, in order to regulate the supply or distribution of water for agricultural purposes,

he may, if satisfied that the matter is of suffi-cien~ importance to justify his interv'ention,-

(i) cause in the prescribed manner

notice to be served on the landlord of the land in which the irrigation work is situa-ted and public notice tO' be given at con-venient 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 sec-tion 4 will be held, and

(ii) serve notice in the prescribed

manner on every person known or belie-ved to be under an oblii;;ation to maintain

the irrigation wor~ 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:

"4. 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 bJ 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 irriga-tion 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

Co Hector and it reads :

"5. (I) If, after making an inquiry under

section 4, the Collector is satisfied th:.tt

t~e state of disrepair of the irrigation work

1962 Thi Collector of .11.onghyr v. K1shav P1asad Goin/ta Ayyangor J.

The Collector of Monghyr •• KeshlltJ Prasad Goeni'a

· is such as materially affects or is likely to affect materially the irrigation of the lands which are dependent thereon for 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 writin!( 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) bJ 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 declar-ing 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 na.ture 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 Collector under s. 5 has, within three months from the date on which the first over aot is taken in pursuance of such order, limited right of suit in civil court.

1 s.c.R.

Section 5A, whose construction is involved

in these appeals was introduced by an amendment effected by Bibar Act X of 1939 and it is necessary to set it out in full :

''5 A. (I) Notwithstanding anything to

the contrary contained in this Act, whenever the CoJlector, 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 notice under section 3 adversely affects or is likely to affect adversely lttnds which are ~ dependent on such irrigation work for supply of water, he may forthwith cause the repair of such irrigation work to be begun by any one or more of the persons mention-ed 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 com-

pleted, the Collector shall cause notice to be given in the manner aforesaid stating that the work mentioned therein has been comple-ted."

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. (l) 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 may make an application to the prescribed authority for compensation for such loss and for an order directing the restoration of the l&nd or the· irrigation work to its former ooiacfition.

T/11 Colkclor oj Mongh? v. /l esha" Pr'lad G<>1nhl Ayyangar J.

1961 Thi Coll1etor of /4onghyr v. Kuhov Ptasad Ga1nb

.ot}yangor J.

.............................................................

Section 7 makes provision for the recovery of the cost of the work by persons who effected them under s. 5 (l)\a) or under s. 5A by application to the Collector. When the cost has been ascertained raider s. 7 s. 8 empowers the Collector to apportion the cost between persons "having regard to the obli· gations 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 tho worl~ of repair or construc-tion and any other oonsiderations which in the cir-cumstances 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 appoi·tioned is payble. The other pr9visions of the Act enable demands to be issued on the persons who are liable to make the payment and for the recovery of these sums as public demand payable to the Collector.

The facts giving rise to these petitions were briefly as follows: On 19th April, 1948 the Govern-ment of Bihar issued 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 th.at 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 avE1raii:e cost of Rs.2,000/-for each work ...•...........

1 S.C.R.

(2) To finance these schemes under the Revenue department 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 depart-ment (Grow More Food section) and the Revenue Department but the Collector of the district village responRible for the entire minor irrigation works under both the cate-. gories ..•... 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 Privite 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 Cotnmittee, for which special request was ma.de 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 siJted up pynes and khantas, on which Govern-ment desirA you to concentrate this year, small pancha.yat office public spirited and relia-ble persons should be formed with head-man ............................................ ........ .

(7) ......... You are therefore requested ~O contact immediately the District Supervisor

T"4 Coll1t:lor of Mong hp v.

Kululv PrlU«d G01nka

1961 The Col'4ot,,, of Monghyr •• Ke•Mv Prasad Goenka AJJongat J.

108 SUPREME COURT RE.PORTS [1963]

and the President, District Congress Com-mittee 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 1the orders on which Civil Appeals 53-S.l of 1960 a.rise, in pursuance of this circular, the officials of the Revenue Department submitted reports to Sub-Divisional Officers who were vested with the powers of Collector under s. 5A pointing out that the irrigation works specified by tham 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 •••............ Tha.na ............... 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 a.ffeot adver-sely the lands whioh are dependent thereon for supply of water, and Whereas I am satisfied that my interven-tion is necessary beoa.use, in my opinion, delay in the repair of the existing irrigation work which may be oooa.sioned by the proceedings commenced by a. notice under s.3 adverselv 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 there-fore hereby order that the said work be forthwith put to execution under section 5A of the said Act. public notice under eeotion 5A (I) be given at a. convenient pl~e

1 s.d.R.

at the aforesaid village that the work men-tioned therein has already begun."

The public notice th.at the work has already been commenced s. 5A(l) was issued and the work was completed. Thereafter there was an apportion-ment of the total cost and in line with the circular of Government which we have reoited earlier, the landlord's share of the contribution was determined as 50% of the total cost of the work. When these sums were sought to be demand-ed 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 I of 1950) they came forward to question the legality of the demand.

Pausing here,· it is necessary to mention few matters: The first. is that the orders passed by the Sub-Divisional Officers in each of these several cases was on cyclostyled form in which only the name qf the work and its focation with referenoe to the village, Thana, district etc. had to be filled up. In some of the cases even the name of the work whioh was left blank in the 9yclosty led form was not filled in by the Collector before he signed thiE order. Mr. Va.rma~learned Counsel who appeared for the appellant-State in Civil Appeals 53-81 of 1960 in which some of the orders im1l"erred from this infirmity, suggested. that these orders might stand on 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_ a.re reoited in s. 5A(l)' of the Act.

Though, as stated earlier, it was t.he case of

State, in ~he High Court at least in the petitions wlaioh have given riae to Civil Appeals 63!'81 of

fhe Collector of Monghyr v. Kuhao Prasad Goenka .4)')'angor J,

11161 TIM Ooluclor'•I M .. gAyr • Eeslrav Prasad Ghr.ko .AJt1•ngar J.

1960, that the orders of the Collectors were pas1ed 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 Collecter we have extracted earlier, that evell' where the form was properly filled up, it does not recite the reason why the Collector considered the procedure requiring 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 had not applied their minds to the question before thEm, the recitals therein being merely mechanical reproduction of the terms of s. 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 acti0n 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 n6068B&ry for the benefit of village and

i S.C.R. SUPHEME COURT REPORTS

thA.t the failure to repair SUCh irrigation WOrk a.dver· , se]y aff e\}ts or is likely to affe~t adversely the lands which are dependent thereon for the supply of .water -words which are repeated in the latter Pro-;vision. [faction 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 e.re . sought to be made liab~e for the cost of the repairs [vide s. 3(b)(ii)]. The landlords would then have an 6pportunity 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 su, what repairs and in what manner. When the Collector proceeds under ss. 3 to 5 h~ will undoubtedly be quasi-judicial authority and would have to decide objectively on the basis of the materials placed before him.The notice, determination and enquiry contem-plated 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. Emergen-cies might arise such as sudden inundation, unexpected ra.ins 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 i~ obvious that it is to provide for such contingency that s.5A was introduced. It dispenses with notice of an enquiry and an enquiry which UJight fo1Iow the notice and denies to the Jandholder or other penon who is ultim:i,tely charged with the liability to meet the oost of the repair the opportunity of pointing out to the .Collector that there is no n<ed for the repair or that the repair could be effected at less oost.

I9tJ! Tli1 Oollector oJ MIJflghJr •• K11fzaf1 Prasad Goenka

.byang11r J •

Thi Collector of Mungliyr v. Eesha-q ProstJd QoFnlca

112 SUPREME OOURT REPORTS [1963]

That the power under the section can be invoked only in an emergency is not disputed befo'l-e ue, but what the learned counsel for the appellant sub-mitted was that s. 5A vested in the Collector ab administrative jurisdiction and that it contemplated action being taken on his objective satiafaetioD that an emergency exists. It is unneceBBary for the purposes of the present that appeals to consider the question whether the satisfaction of the Collector under s. 5A indicated by the words "whenever the Collector ........ .ia of opinion" is purely subjective satisfaction or posits also that he should reach that satisfaction only on relevaDt material and that it would be open to 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 quasi-judi-cial authority, (b) that what matters and what con-fers on him jurisdiction to act under. a. 5A is his subjective satisfaction that the delay in the repair of an existing irrigation work which may be occasioned by proceedings commenced by notice under s. 3, leads or is likely to lead t0 the conse-quences set out in the latter part of sub-a. ( 1) of a. 5A. If these had been the only statutory require-ments, learned Counsel would certainly be on firmer ground, but the statute does not stop with this but proceeds to add direction to the Collector that the reasons for his opinion should be recorded by him. There is no doubt that on the texture -0f the provi-sion the recording of the reasons is 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 requi1ement 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

1 s.c.~. SUPREltE COURT REPORTS

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. ManbodhanLaJ Srivastava (')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 pubJic servant whose case was omitted to be referred to the Public Service Commission cause of action in court of law. Learned Counsel pointed out that even though the language used UJ. Art. 20 (3) appeared imperative in that it enacted "that the Public Service Commis-sion shall be con,:tu.Ue.d," those words were held not to be mandatory. The present case was, according to him, 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 submissio~ of lea-rned.Counsel that·in the context in whicl1 the words #•for the reasons to be r~corded by him" occur in s. 5A and considering the scheme of Ch. II of the Act, the requireIDent of these words. eould be held to be otherwise than mandatory. It is needless to adP that the erpployment of the auxiliary verb "shall'' is inconclusive and similarly the mere abse-nce of the imperative is not conclusive either. The question whether any requirement is manda-tory or directory has to be decided n.ot :qierely on the basis of any specific provi~ion . which, for instance, sets out the consequence of' the om1ss1on to observe the requirem~nt, but on the purpose for whioh the requirement has been en~cted, particularly . in the context, of the . ll) u~1s.c.R. sss.

TM Ct1lltel11r.of MoftpJr . "'· .· Eeshq.v Prasad Ot11~

19~2 -Coll<clor

-n, Coll<clor o/ M..,if1r v. X11Mo Prtu•d t.:otdo

other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whetbor the requirement is insisted on as 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 witL refe· rence 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, i8 that indicated by ss. 3 to 5 where there is ample op-portunity afforded to persons affected to put for-ward their objections and prove them hefore any pecuniary liability is fastened upon them. Section 5A constitutes departure from this norm. It is obviously designed to make proviliion for cases where owing to an emergency it is not possible to comply with the requirements of as. '.i to 5 of afford-ing an opportunity to affected persons to make out case that there is no justification for burdening them with any pecuniary obligation or pecuniary obligation beyond particular extent. It is in the context of this considera-tion 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(l) exist or not is entirely for tho Collector to decide in hie 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 jqatification 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 appel-lant had to concede. But if in those circumstances

the section requires what might. be termed "speak-ing order'' before persons are saddled with liability we consider that the object with which the provi-sion 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 Collec-tor which did not comply with the statutory condi-tion pre-cedent must be null and void and of no effect altogether. Learned Counsel for the State however drew our attention to the fact that in several of these appeals, 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 ea.oh 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 alter-native it was submitted that as "reasons" which could justify an order under s. 5A did in fact exil'!t, 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 not.ice 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 some-

what inter-related are never the less distinct. aud separate. One is the conclusion or finding of the

Tlt1 Colleetor of MonthJr v. K11hav Prasad <Joenlca

Ayyongar ,1,

,J961 n, c.11«1 .. •I },{ ""'""' v. J['., ... Praslld q.,,,p -A.oangar J. '

Collector that the state of circumstances set out in s. 5A(l) exist, and the other the reasons why and the grounds upon which the Collector reaches that conclusion that in the circumstances existing in particular case it cannot brook the delay which the resort to the normal procedure of notice and enqui-ry for which provision is made by as. 3 to 5 should be departed from.

To suggest that by recital of the nature- of the repairs required to be carried out and employ-ing the language of a. 5A(l) the officer has recorded his reasons for invoking a. 5A is to confusr; 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( l) will be attracted to cases where there is factually an emergent need for re-pairs of the type envisaged by the section but the Collector does not so record in his order ; similarly the factual exi8tence of reasons for the Collector's conclusion would not avail where he does not com-ply with the statutory requirement of stat.ing 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 con-sidered 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 recommendation to the Sub-Divisional Officer who was vested with the powers of Col-lecto~ that it was fit case for action being taken under a.' 5A. What the section requires is that on the basis of materials which exist-this might inclu-de the reports of officers as well as inform ti on gathered by the Collector himself by per son al ins-pection or after enquiry-he should reach the conclusion that irrigation works fol'I the purposes set out in s. 5A should be immediately tali en on hand and completed and that there is such an tmer-gency in having the work completed which will not

I S.C.R.

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 CoJlec-tor'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 Estima-ting Officer~ would obviate the infirmity arising from the failure of the Collector to record his reasons as required by s. 5A(l). From the fact that under s.5A( l) 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 he has formed that opinion are immaterial, or that it is unneces-sary 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 therefor when the validity of the order is challen-ged. 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) t.hat this re<1uirement 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 conv· enient to dispose of an argument based on s. 5B. [t was faintly suggested that the respondents were persons who had sustained loss by reason of thing done by the Collector and that the statute provided 11 remedy therefor by permitting claim for compensation under the provisions of s. 5B. \Ve consider that this submis::don arises wholly on misreading of s. 5B. The ''loss" for which the section provides oompensation is that directly arising from the doing of the work, i. e., loss sustained by third parties and not t~e liability to malte th~

1952 --Collector of

Tiu Collector of Mongflyr v. Kes'AatJ Prasad <1Hnka AyyangarJ.

1962 The Col/1ctor of Monghyr •• K11,.av Pr1sa<l Votnlta --Ayraiigar J.

apportioned cost under ss. II and 12 for the very basis. of the liability uncier 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 bathPs of appeals raised con-tention that the High Court had 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 jurisdic-tion of the High Court for the issue of writ of <Jertiorari. In our opinion, the contention proceeds upon misapprehension as to the nature of the objection raised and as regards the particular orders which were challenged before the Hi~h 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 ~n 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 demi.nda

I S.C.R. SUPREME COURT REPORTS 119

were based were void,, i.e., as passed without jurisdiction, they did not need to be set aside a.nd therefore there was no necessity for takin~ any proceedings for obtaining such relief. They were non est. If they were of that character they could not serve as foundation for the liability which was sought to be fastened upon the respondents .by apportionme11t under ss. 7 and 8 and by the issue of 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 becaµse the statutory requisites or condi-tions precedent for such orders wera not satisfied, no liability to make payment could a.rise out of suoh orders.

The other submission was that several of the

order8 under s. 5A were passed before the Consti-tution and that as the Constitution was not retrospec-tive th~ High Court o'Ould not exercise the jurisdiction which was for the first time conferred on it by Art. 226 of the Constitution in respect of orders passed be-fore 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 argu· ment in the present form must also be repelled.

Mr. Varma next contended that the respon-

dents must be deemed to have acquiesced in the orders passed under s. 5A by not objecting to them immediately and that t.hey were now estopped 'from contending that they were void having, by the execu · tion of the work, obtained 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 notice that the work ha.s begun. · There is thus,

The Coll1dor of Monghyr · Keshav '· Prasad GOida .thyangsr J,

120 SUPREME COtJR'.r REPORTS [1963)

before the complet-ion of the work, no provision in the.statute for the landlord to make his representa-tions, 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 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 failure to object. Reference was, in this connection, made to the terms of s. 46 under which the Board of Revenue have 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 doee not appear to have been press~d before the Hil!'h Court at the time of the arguments. As the High Court had certainly 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 dismidsed with costs. There will be only one hear-ing fee as all the appeals were heard together.

ppe.als diamissed.