# Ch11v'1lier /. /, l7yappon v. The D/iarmod_oyam Ctnnpany

- **Citation:** [1963] 1 S.C.R. 98
- **Court:** Supreme Court of India
- **Decided:** 1960-07-12
- **Bench:** B. P. Sinka, K: Subba Rao, N. Rajagopala Ayyangar, J. R. MuDHOLKAR, T. L. VENXATAB.illi AIYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ch11v-1lier-l7yappon-v-the-d-iarmod-oyam-ctnnpany-2652
- **Pages:** 23

## Headnote

Private Irrigation Work-Repairs to worka-Nolice to
landlord-Collector' B power to direct repairo wilhout notice--
Statute requiring reasons to be recorded by Oollecf,or-Jf mandatory-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
1\
i s.c.R..
SUPREME COURT REPORTS
99
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 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 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 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 c(!use the iepair of such irrigation work to be
begun •... "
In pursuance of a 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 consequences which were recited ins. SA.
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. 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 mandatory ; 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'.
1962
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 Constitution 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 a 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,

## Text

_Characters 0–39,846 of 44,102. This is a partial read: ask again with offset=39846 for what follows._

1961!
Ch11v'1lier /. /,
l7yappon
v.
The D/iarmod_oyam
Ctnnpany
Eop.. J.
1962
March ZS.
98
SUPREME COURT REPORTS [1963)
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 different from what has now been executed by the
appellant and from the manner in which the new
trust has been constituted into a lessee of the company without the company's agreement it is not
possible for a court in equity to accept the new
trust as a 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' B power to direct repairo wilhout notice--
Statute requiring reasons to be recorded by Oollecf,or-Jf mandatory-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
1\
i s.c.R..
SUPREME COURT REPORTS
99
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 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 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 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 c(!use the iepair of such irrigation work to be
begun •... "
In pursuance of a 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 consequences which were recited ins. SA.
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. 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 mandatory ; 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'.
1962
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 Constitution 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 a 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 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. 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
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 cor;tstruction 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 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 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 material for the controversy befol'e us. Section 3 with
1962
The Colltctor of
Monghyr
v.
Keshav Prasad
Goenka
A_vangai J.
1962
1lt• Ctll"tor of
Monghyr
••
K111a•t.1 Prtuad
Goen/co
A7yangor J.
102
SUPREME COURT REPORTS [1963)
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 a supply of
water, or
( b) that it is desirable for the purpose
of settliDg 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 sufficien~ importance to justify his interv'ention,-
(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 oblii;;ation to maintain
(
i s.c.R.
SUPREME OOURT REPORTS
103
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 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
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.
J96S
The Collector of
Monghyr
••
KeshlltJ Prasad
Goeni'a
104
SUPREME COURT REPORTS [1963]
· 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 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 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 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 a Collector under s. 5 has, within three
months from the date on which the first over aot
is taken in pursuance of such order, a limited right
of suit in a civil court.
1 s.c.R.
SUPREME COURT REPORTS
105
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 a
notice under section 3 adversely affects or is
likely to affect adversely lttnds 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. (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 A
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.
1962
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.
106
SUPREME COURT REPORTS [I963J
"
.............................................................
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 construction and any other oonsiderations 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 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 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 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.
SUPREME COURT REPORTS
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 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) construction of Ahar or bundh (2) clearance of
pynes and khanra and (3) re-examination if
siJted up pynes and khantas, on which Government desirA you to concentrate this year, a
small pancha.yat office public spirited and reliable persons should be formed with a headman ............................................ ........ .
(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 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
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 a 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 adversely the lands whioh are dependent thereon for
supply of water, and
Whereas I am satisfied that my intervention 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 therefore hereby order that the said work be
forthwith put to execution under section 5A
of the said Act. A public notice under
eeotion 5A (I) be given at a. convenient pl~e
1 s.d.R.
SUPREME COURT REPOR'rS
100
at the aforesaid village that the work mentioned 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 apportionment 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 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 I 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 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 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_ 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
1g6s
fhe Collector of
Monghyr
v.
Kuhao Prasad
Goenka
.4)')'angor J,
11161
TIM Ooluclor'•I
M .. gAyr
•
Eeslrav Prasad
Ghr.ko
.AJt1•ngar J.
110
SUPREME COURT REPORTS [1963]
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 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 had not applied
their minds to the question before thEm, the
recitals
therein being merely a
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 a village and
----' j
i S.C.R.
SUPHEME COURT REPORTS
ut
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 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 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 a 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 •
1962
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 submitted 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 a subjective
satisfaction or posits also that he should reach that
satisfaction only on relevaDt 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. a. 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 t0 the consequences set out in the latter part of sub-a. ( 1) of
a. 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 -0f 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 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
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. 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 consultation did not afford a pubJic 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 UJ. Art. 20 (3) appeared imperative
in that it enacted "that the Public Service Commission shall be con,:tu.Ue.d," 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 submissio~ of learned.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 absence of the imperative is not conclusive either.
The question whether any requirement is mandatory
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 -
n, Coll<clor o/
M..,if1r
v.
X11Mo Prtu•d
t.:otdo
114 SUPREME COURT REPORTS [1963)
other provisions of the Act and the general scheme
thereof. It would, inter alia, depend on whetbor
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 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 opportunity afforded to persons affected to put forward their objections and prove them hefore any
pecuniary liability is fastened upon them. Section
5A constitutes a 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 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(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 a 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 appellant had to concede.
But if in those circumstances
I
1 S.C.R.
SUPREME COURT REPORTS
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 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 alternative 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 a 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 somewhat inter-related are never the less distinct. aud
separate. One is the conclusion or finding of the
196'
Tlt1 Colleetor of
MonthJr
v.
K11hav Prasad
<Joenlca
Ayyongar ,1,
,J961
n, c.11«1 .. •I
},{ ""'""'
v.
J['., ... Praslld
q.,,,p -
A.oangar J.
'
I
I
116 SUPREME COURT REPORTS (1963] SUPP.
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 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 as. 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 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 repairs 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 comply 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 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 Collecto~ that it was a fit case for action being taken
under a.' 5A. What the section requires is that on
the basis of materials which exist-this might include the reports of officers as well as inform a ti on
gathered by the Collector himself by per son al inspection 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 tmergency in having the work completed which will not
I S.C.R.
SUPREME COURT REPORTS
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 CoJlector'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 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 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
therefor 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) 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 a loss by reason of a
thing done by the Collector and that the statute
provided 11 remedy therefor by permitting a claim
for compensation under the provisions of s. 5B.
\Ve consider that this submis::don arises wholly on
a 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 --
Tiu Collector of
Mongflyr
v.
Kes'AatJ Prasad
<1Hnka
AyyangarJ.
1962
The Col/1ctor of
Monghyr
••
K11,.av Pr1sa<l
Votnlta
--
Ayraiigar J.
118
SUPREME COURT REPORTS [1963]
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 a contention 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 jurisdiction of the High Court for the issue of a writ of
<Jertiorari. 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 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.