TMI Blog1962 (3) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 which this Chapter opens enacts, to quote th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 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 rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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, 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 th ..... 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