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PETITIONER: THE COLLECTOR OF MONGHYR AND OTHERS

       Vs.

RESPONDENT: KESHAV PRASAD GOENKA AND OTHERS(And connected appeals)

DATE OF JUDGMENT: 28/03/1962

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1962 AIR 1694            1963 SCR  (1)  98  CITATOR INFO :  F          1974 SC  87  (28)

ACT: Private   Irrigation   Works-Repairs  to   works-Notice   to landlord-Collector’s power to direct repairs Without notice- Statute  requiring  reasons to be recorded  by  Collector-If mandatory-Demand  on landlord for share of  costs-Legality- Bihar Private Irrigation Works Act, 1922(Bihar and Orissa  5 of 1922),ss.   3,  4,  5,  5A, 5B,  11,  12-Constitution  of India, Art. 226.

HEADNOTE: The Bihar Private Irrigation Works Act, 1922, was enacted to provide, inter alia, for the repairs and improvements                              99 of certain irrigation works.  Under ss.3 to 5 of the Act the Collector  was  empowered  to  take  action,  where  he  was satisfied  that the matter was of sufficient importance  for the  repairs  etc. of the existing  irrigation  works  after causing a notice to be served on the landlord of the land in which the irrigation work was situated and after making  the necessary enquiries.  Section 5A provided : "Notwithstanding anything to the contrary contained in this Act, whenever the Collector, for reasons to be recorded by him, is of  opinion that the delay in the repair of any existing work which  may be occasioned by proceedings commenced by a notice under  s. 3  adversely affects or is likely to affect adversely  lands which are dependent on such irrigation work for a supply  of water, he may forthwith cause the repair of such  irrigation work to be begun...... In pursuance of a circular issued by the Government of Bihar to  the  District Officers, the officials  of  the  revenue department   submitted   reports  pointing  out   that   the irrigation  works  specified by them  needed  repairs.   The Collector  of  Monghyr, on receipt of the report  passed  an order under s. 5A of the Act on the terms as recited in that section, but he did not record the reasons why he considered that the delay in issuing the notice under s. 3 would  bring about  the consequences which were recited in s. 5A.   After

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the  work was completed, there was an apportionment  of  the total cost and a demand was made on the landlord under s. 11 of the Act for his share of the contribution.  The  landlord challenged   the  legality  of  the  demand  by  filing   an application before the High Court of Patna under Art. 226 of the  Constitution of India on the grounds, inter alia,  that it was an essential requirement of s. 5A that the  Collector should  record  his reasons for departing  from  the  normal procedure of an order based on an enquiry under ss. 3 to  5, and  that  the failure to do so rendered  the  action  taken under  s.  5A  void, so as to  render  invalid  all  further proceedings for the recovery of the landlord’s share of  the apportioned cost. Held,  that  in  the context in which  the  words  "for  the reasons  to be recorded by him" occur in s. 5A of the  Bihar Private  Irrigation  Works Act, 1922,  and  considering  the scheme of the Act, the requirement of these words was manda- tory ; that as in the present case, the requirement was  not complied  with, the order of the Collector under s.  5A  was null and void. State  of Uttar Pradesh v. Manbodhan Lal  Srivaslava  [1958] S.C.R. 533, considered. 100 Held,  further,  that even assuming that the  order  of  the Collector under s. 5A was administrative in its nature,  the landlord  was  entitled  to relief under  Art.  226  of  the Constitution  because the demand which was made against  him under      s.  II  of the Act and  which  was  sought  to be recovered  as  arrears of public demands under  s.  12,  was based  on  the order under s. 5A found to have  been  passed without jurisdiction. Held,  also,  that s. 5B of the Act was applicable  only  to cases  of compensation for loss sustained by  third  parties and not where a liability arose under ss.  11 and 12.

JUDGMENT: CIVIL     APPELLATE JURISDICTION Civil Appeals Nos.    53 to 81, 133 to 137 253 to 263 of 1960. Appeals   by  special  leave from the judgments  and  orders dated  March  28, 1957, April 20, 1956, July  12,  1960  and March  14, 1956, of the Patna High Court in Misc.   Judicial Cases Nos. 531, 535, 539, 541, 543, 548 to 552, 554 to  557, 559, 560, 562 to 572 and 574 of 1956 and 141, 142, 256,  271 to 273 and 349 to 358 of 1955. L.   K. Jha, Bhagawat Prasad, D. P. Singh, R. K. Garg, S. C. Agarwala and M. K. Ramamurthi, for the appellants in C.  As. Nos. 53 to 81 of 1960.  J.  C.  Sinha,  K.  K. Sinha and  R.  R.  Biswas,  for  the respondents Nos. 1, 3 to 6 and 8 to 11 in C. As.  Nos. 53 to 56 of 1960, and the respondents in C. As.  Nos. 77 to 81  of 1960. L.   K.  Jha and R. C. Prasad, for the appellants in C.  As. Nos. 133 to 137 of 1960. J.   C. Sinha and R. R. Biswas, for the respondents in C. As.  Nos. 133 to 137 of 1960. T.   P. Sinha and S. P. Varma, for the appellants in C.  As. Nos. 253 to 263 of 1960. A.   V. Viswanatha Sastri, Ugra Singh and D. Goburdhan,  for the respondents in C. As.  Nos. 253 to  263 of 1960. 1962.   March, 28.  The Judgment of the Court was  delivered by 101 AYYANGAR, J.-These three batches of appeals are before us by

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virtue  of  special  leave and  have  been,  heard  together because of the common point raised in them which relates  to the  proper  construction  of s. 5A  of  the  Bihar  Private Irrigation  Works  Act,  1922 (Bihar and Orissa  Act,  5  of 1922), which will be hereafter referred to as the Act.   The State  of  Bihar  which is the appellant  in  these  appeals questions the correctness of the orders of the High Court by which  a  number  of  writ  petitions  filed  by   landlords challenging the legality of demands for contribution made on them  under s. 11 of the Act were allowed by the High  Court of Patna. For the purposes of the ’decision of these appeals it is not necessary  to state the detailed facts of any of  the  cases but it is sufficient if a reference were made to any One  of the  orders  passed under s. 5 A of the Act  which  was  the basis of the demand for contribution which was  successfully impugned, since it is common ground that every one of  these orders  concerned in the several appeals was subject to  one infirmity  to  which we shall presently refer  and  that  is sufficient to dispose of these appeals. Before  setting out in brief outline the facts which led  to the  present proceedings it would be convenient to refer  to the relevant provisions of the Act.  The preamble to the Act reads :               "Whereas  it is. expedient to provide for  the               construction  repair, extension or  alteration               of  certain kinds of irrigation works  and  to               secure  their maintenance and to regulate  the               supply  or distribution of water by  means  of               such  works  and to  facilitate  and  regulate               their construction, extension and alteration." The  repairs and improvement of Irrigation Works  are  dealt with  in  Ch.   II whose provisions  are  material  for  the controversy before us.  Section 3 with 102 which  this Chapter opens enacts, to quote the  of  material words :               "Whenever it appears to the Collector               (a)   that   the   repair   of   an   existing               irrigation  work is necessary for the  benefit               of  any  village  or  local  area  within  the               district  and that the failure to repair  such               irrigation  work  adversely  affects,  or   is               likely  to affect adversely, the  lands  which               are  dependent thereon for a supply of  water,               or               (b)   that it is desirable for the purpose  of               settling  or averting disputes. or  preventing               waste  of  water  or injury  to  land  by  the               wrongful  or  undue diversion of a  stream  or               channel that any sluice, weir, outlet, escape,               head work,  dam  or  other  work  should  be               constructed  in any irrigation work, in  order               to  regulate  the supply  or  distribution  of               water for agricultural purposes,               he  may,  if satisfied that the matter  is  of               sufficient    importance   to   justify    his               intervention,-               (i)   cause in the prescribed manner a  notice               to  be served on the landlord of the  land  in               which  the  irrigation work  is  situated  and               public notice to be given at convenient places               in every village in which the irrigation  work               is  situated stating that he intends  to  take               action  under this Chapter for the  repair  of

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             the said work or for extending or altering  it               in any of the ways specified in clause (b) and               specifying  the.  date on  which  the  inquiry               under section 4 will be held, and               (ii)  serve a notice in the prescribed  manner               on every person known or believed to be  under               an obligation to maintain                103               the  irrigation  work in an  efficient  state,               calling  on  him  to show cause  on  the  date               specified  in the notice why he should not  be               required  to repair the said work or alter  it               as aforesaid;                Section 4  makes provision for an inquiry and               it reads:               "14.  On the date stated in the notices issued               under section 3, or on any other date to which               the   proceedings   may  be   adjourned,   the               Collector shall hold an inquiry and shall hear               the  persons  on whom the  notices  have  been               served  if they appear) and any other  persons               affected or likely to be affected by the order               who  may attend; and may take down in  writing               any evidence that he may think fit regarding-                (a) the necessity for repairing, extending or               altering the said irrigation work,               (b)   the  nature  of the works  required  for               such repair, extension or alteration,               (c)   the    obligation   to   maintain    the               irrigation work in an efficient state and  the               reasons  why the person under such  obligation               has failed to repair it, and               (d)   the  probable cost of the proposed  work               of repair, extension or alteration." Section 5 which follows sets out the powers of the Collector and it reads :               "5.  (1)  If, after making  an  inquiry  under               section 4, the Collector is satisfied that the               state of disrepair of the irrigation work               104               is such as materially affects or is likely  to               affect materially the irrigation of the  lands               which  are dependent thereon for a  supply  of               water, or that any extension or alteration  of               such irrigation work is necessary for the pur-               poses specified in clause (b) of section 3, he               shall issue an order in writing requiring that               the  proposed  work of  repair,  extension  or               alteration shall be carried out-               (a)   by  one or more of the persons  on  whom               notices  under clause (ii) of section  3  have               been  served and who agrees or agree to  carry               out the said work, or               (b)   by any such agency as he thinks  proper,               if,  for  reasons to be recorded  by  him,  he               considers that there are adequate reasons  why               any person mentioned in clause (a) should  not               be entrusted with the carrying out of the said               work;               Provided  that the Collector shall, if  he  is               satisfied  that the cost of carrying  out  the               proposed work of repair, extension or  altera-               tion  will  be  prohibitive,  pass  an   order               declaring that such work shall not be  carried               out :

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             (2)   Every order made under sub-section               (1)   shall specify, as closely as may be pra-               cticable,  the nature of the work to  be  done               the  estimated  cost of executing it  and  the               manner  in which and the time within which  it               shall be executed." At  this stage reference may be made to the terms of  s.  47 under which any person aggrieved by an order of a  Collector under  s. 5 has, within three months from the date on  which the  first over act is taken in pursuance of such  order,  a limited right of suit in a civil court,                             105 Section 5A, whose construction is involved in these  appeals was  introduced by an amendment effected by Bihar Act  X  of 1939 and it is necessary to set it out in full :               "5  A.  (1) Notwithstanding  anything  to  the               contrary  contained in this Act, whenever  the               Collector, for reasons to be recorded by  him,               is of opinion that the delay in the repair  of               any  existing  irrigation work  which  may  be               occasioned  by  proceedings  commenced  by   a               notice under section 3 adversely affects or is               likely  to  affect adversely lands  which  are               dependent on such irrigation work for a supply               of  water,’ he may forthwith cause the  repair               of such irrigation work to be begun by any one               or  more  of the persons mentioned  in  clause               (ii)  of  section 3 or by such  agency  as  he               thinks proper:               Provided that the Collector shall cause public               notice  to  be given at convenient  places  in               every village in which the irrigation work  is               situated  stating  that  the  work   mentioned               therein has already been begun.               (2)   When  any such work has been  completed,               the  Collector shall cause notice to be  given               in the manner aforesaid stating that the  work               mentioned therein has been completed." As  some  reference  was made by learned  Counsel.  for  the appellant  to the provisions of s. 5B, we might extract  the relevant portion of it:               "5B. (1) Any person who has sustained any loss               by  anything done by the Collector or  by  any               person   acting  under  the  orders   of   the               Collector under sub-section (1) of section 5 A               may  make  an application  to  the  prescribed               authority  for compensation for such loss  and               for an order directing the restoration of  the               land  or  the irrigation work  to  its  former               condition.               106 Section  7 makes provision for the recovery of the  cost  of the work by persons who effected them under s. 5 (1) (a)  or under s. 5A by application to the Collector.  When the  cost has been ascertained under s. 7 s. 8 empowers the  Collector to apportion the cost between persons "having regard to  the obligations under which they were to maintain the irrigation work in an efficient state, the reason for their failure  so to  maintain it, the benefit which is likely to result  from the   work   of  repair  or  construction  and   any   other considerations which in the circumstances of the case he may deem it fair and equitable to take into account".  And after such  apportionment  is made the Collector is  empowered  to make  an award specifying the person or persons by whom  the sum  so apportioned is payble.  The other provisions of  the

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Act  enable  demands  to be issued on the  persons  who  are liable to make the payment and for the recovery of the  case sums as a public demand payable to the Collector. The  facts  giving rise to these petitions were  briefly  as follows: On 19th April, 1948 the Government of Bihar  issued a  circular  letter signed by the  Additional  Secretary  to Government  to  the District Officers of  various  districts including  Monghyr from which these appeals arise.  In  this communication the Additional Secretary stated.               "I  am  directed to say that  Government  have               decided  that  in addition to  the  irrigation               work  under the Grow More Food Scheme  of  the               Development,  each  of  the  District  Officer               mentioned  above  should take up  and  execute               before the rains one hundred Minor  Irrigation               works in his district under section 5, 5A, 32A               and 32B of the Private Irrigation Works Act on               an  approximate average cost  of  Rs.2,000/for               each work ...............                107               (2)   To  finance  these  schemes  under   the               Revenue  department a sum Rs. 1,00,000/to  the               district of Monghyr (is allowed)               (3)   Government  have decided that the  minor               irrigation work should continue to be executed               both  under the Development  department  (Grow               More Food section) and the Revenue  Department               but  the  Collector of  the  district  village               responsible  for the entire  minor  irrigation               works  under  both  the  categories  Even  the               schemes  to  be  executed  under  the  Revenue               department should be treated as Grow More Food               scheme,  but all use of the provision  of  the               Private Irrigation works should be made in all               cases  in order to ensure that quick  work  on               the  initiative of the Collector is  done  and               cost  recovered  later on after-the  work  has               been completed.               (4)   In deciding upon the scheme to be  taken               up under the Revenue Department, the  District               Officers are requested to consider those  sent               by    the   Presidents,   District    Congress               Committee, for which special request was  made               to them.               (5)   The  cost will in the first instance  be               met by Government but 50% of the same will  be               realised from the persons benefited               (6)   In every village selected for one of the               following  items  of work,  namely  (1)  cons-               truction  of  Ahar or bundh  (2  clearance  of               pynes  and  khanra and (3)  re-examination  if               silted up pynes and khantas, on which  Govern-               ment  desire you to concentrate this  year,  a               small  panchayat  office public  spirited  and               reliable persons should be formed with a head-               man               (7)   You  are therefore requested to  contact               immediately the District Supervisor               108               and the President, District Congress Committee               of your district.               (9)   Government  have authorised  expenditure               to be incurred in anticipation of provision of               funds." Some time after this circular, and as stated by the State in

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the  counter-affidavit  filed by it in answer  to  the  writ petitions  under  Art. 226 from the orders  on  which  Civil Appeals 53-81 of 1960 arise, in pursuance of this  circular, the officials of the Revenue Department submitted reports to Sub-Divisional Officers who were vested with the powers of a Collector under s. 5A pointing out that the irrigation works specified by them needed repairs and thereafter orders  were passed by the Collector in these terms:               "whereas  it appears to me that the repair  of               an  existing  irrigation  work,   viz.........               situated  in  ’village    Thana...............               District Monghyr is necessary for the  benefit               of  the aforesaid village and the  failure  of               repair  of  such  irrigation  work   adversely               affects and is likely to affect adversely  the               lands  which are dependent thereon for  supply               of water, and               Whereas I am satisfied that my intervention is               necessary because, in my opinion, delay in the               repair  of the existing irrigation work  which               may be occasioned by the proceedings commenced               by a notice under s.3 adversely affects or  is               likely  to  affect adversely  the  land  which               depends on such irrigation work for supply  of               water it is deemed expedient to proceed  under               section  5A  of  the BPIW  Act.   I  therefore               hereby  order that the said work be  forthwith               put to execution under section 5A of the  said               Act.  A public notice under section 5A (1)  be               given at a convenient place                                    109               at  the aforesaid village that the  work  men-               tioned therein has already begun." The  public notice that the work has already been  commenced s. 5A(1) was issued and the work was completed.   Thereafter there  was an apportionment of the total cost and   in  line with  the  circular  of Government  which  we  have  recited earlier,  the  landlord’s  share  of  the  contribution  was determined  as  500 % of the total cost of the  work.   When these  sums  were sought to be demanded from  the  landlords (from  whom  it might be ,stated that by the  date  of  this demand their estates had been taken over by Government under the provisions of the Bihar Land Reforms Act (Act 1 of 1950) they came forward to question the legality of the demand. Pausing here, it is ’necessary to mention a few matters: The first  is  that  the orders  passed  by  the  Sub-Divisional Officers in each of these several cases was on a cyclostyled form  in  which only the name of the work and  its  location with  reference to the village, Thana, district etc. had  to be  filled  up.  In some of the cases even the name  of  the work  which was left blank in the cyclostyled form. was  not filled in by the Collector before he signed this order.  Mr. Varma  learned Counsel who appeared for the  appellant-State in  Civil Appeals 53-81 of 1960 in which some of the  orders suffered  from this infirmity, suggested that  these  orders might stand on a different footing.  But in the view we  are taking  of the requirements of s. 5A it is not necessary  to separate  these  cases.   Secondly, in none  of  the  orders passed  under  s. 5A whose legality has been  challenged  in these  several  appeals,  has  the  Collector  recorded  the reasons  why  he considered that the delay  in  issuing  the notice  under s. 3 would bring about the consequences  which are recited in s.   5A(1) of the Act. Though, as stated earlier, it was the case of State, in  the High  Court at least in the petitions which have given  rise

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to Civil Appeals 53-81 of 110 1960,  that  the  orders of the Collectors  were  passed  in pursuance  of  Government’s  policy  as  disclosed  in   the circular dated April 19, 1948, we shall, for the purposes of dealing   with  the  points  urged  before  us,  omit   from consideration this feature and proceed on the basis that the Collector  had passed these orders suo moto in  exercise  of their own discretion without having been induced to do so by an  external authority.  It will be noticed from the  sample order of the Collector we have extracted earlier, that  even where  the form was properly filled up, it does not  recite the  reason  why  the  Collector  considered  the  procedure requiring  a  notice to the affected party  followed  by  an enquiry outlined by ss. 3 to 5 could not be adopted. The learned Judges of the High Court have decided in  favour of the respondents on two grounds; (1) that having regard to the  order  it  was apparent that  the  Collectors  bad  not applied  their  minds  to  the  question  before  them,  the recitals  therein being merely a mechanical reproduction  of the  terms  of,%.  5A, and ( 2) that  it  was  an  essential requirement  of s: 5A that the Collector should  record  his reasons  for  departing from the normal procedure  of  order based  on an enquiry under ss. 3 to 5 and the failure to  do so  rendered  the action taken under s. 5A void,  so  as  to render, invalid all further proceedings for the recovery  of the  landlords’  share  of the  apportioned  cost  from  the respondents.   As  we are clearly of the  opinion  that  the learned Judges of the High Court were   right    in    their second ground it is unnecessary to consider the first’ viz., whether the learned Judges    were right in holding that the first ground was made out in the present case or not. We shall first proceed to consider the place of s. 5A in the scheme of the Act, Section 3(a) deals with the same type  of oases,  as that dealt’ with by s. 5A,viz., that the  repairs of an existing irrigation work is necessary for the  benefit of a village and                             111 that  the failure to repair such irrigation  work  adversely affects or is likely to affect adversely the lands which are dependent  thereon for the supply of water words which  are repeated in the latter Provision. if action was taken  under s.  3  then notices would have to be issued in  the  present case to the landlords for it is on the basis that they  were under  an  obligation to ’effect the repair  that  they  are sought  to be made liable for the cost of the repairs  [vide s. 3(b)(ii)].  The landlords would then have an  opportunity of  disputing: (1) their obligation to make the repair,  (2) whether  the repair suggested is necessary or not,  and  (3) whether  to  achieve  the same result any  other  manner  of repair which might cost less might not suffice, and it would be  after considering the objections made and  the  evidence led on these points that the Collector would have to  decide under the terms of s. 5 whether the repair should be carried out  and if so, what repairs and in what manner.   When  the Collector proceeds under ss. 3 to 5 he will undoubtedly be a quasi-judicial   authority   and  would   have   to   decide objectively on the basis of the materials placed before him. The notice, determination and enquiry contemplated by ss.  3 to  5 would normally take some little time before the  work, it  decided  upon,  could  be  put  into  execution  and  be effected.    Emergencies  might  arise  such  as  a   sudden inundation, unexpected rains etc. by reason of which repairs have  to be undertaken immediately in order to avoid  danger to  an irrigation work which would not brook any delay.   It

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is obvious that it is to provide for such a contingency that s.5A was introduced.  It dispenses with notice of an enquiry and  an enquiry which might follow the notice and denies  to the  landholder  or other person who is  ultimately  charged with  the  liability  to meet the cost of  the  repair  the’ opportunity  of pointing out to the Collector that there  is no need for the repair or that the repair could be  effected at less cost. 112 That  the power under the section can be invoked only in  an emergency  is  not disputed before us but what  the  learned counsel for the appellant submitted was that s. 5A vested in the  Collector  an administrative jurisdiction and  that  it contemplated   action   being   taken   on   his   objective satisfaction  that an emergency exists.  It  is  unnecessary for the purposes of the present that appeals to consider the question whether the satisfaction of the Collector under  a. 5A  indicated by the words "whenever the  Collector......... is of opinion" is purely a subjective satisfaction or posits also that he should reach that satisfaction only on relevant material  and that it would be open to a party  affected  by the  order  to  challenge  the  validity  of  the  order  by establishing  the absence of any relevant material for  such as satisfaction.  We shall assume that (a) The Collector  is exercising  merely  an administrative jurisdiction  and  not functioning  as, a quasi-judicial authority, (b)  that  what matters and what confers on him jurisdiction to act under s. 5A  is  his subjective satisfaction that the  delay  in  the repair   of  an  existing  irrigation  work  which  may   be occasioned by a proceedings commenced by notice under s.  3, leads  or is likely to lead to ’the consequences set out  in the  latter’ part of sub-s. (1) of s. 5A. If these had  been the  only  statutory  requirements,  learned  Counsel  would certainly be on firmer ground, but the statute does not stop with  this but proceeds to add a direction to the  Collector that the reasons for his opinion should be recorded by  him. There  is no doubt that on the texture of the provision  the recording of the reasons is a condition for the emergency of the power to make the order under sub-s. (1) The  question,  however,  debated before  us  was  that  the condition or the requirement was not mandatory what was only directory  with the result that the failure on the  part  of the Collector to record his reasons was at the                             113 worst an irregularity which would not affect the legality of the order.  In this connection learned Counsel placed strong reliance  on  the judgment of this Court in State  of  Uttar Pradesh  v. ManboclhanLal Srivastava (1) where it held  that Art.  320(3)(c)  of the Constitution was not  mandatory  and that the absence of consultation or any irregularity in con- sultation  did  not afford a public servant whose  case  was omitted  to be referred to the Public Service  Commission  a cause of action in a court of law.  Learned Counsel  pointed out  that  even  though the language used  in  Art.  20  (3) appeared  imperative  in that it enacted  "that  the  Public Service  Commission  shall be consulted," those  words  were held  not to be mandatory.  The present case was,  according to him, a fortiori, because the imperative word "shall"  had not been used.  He also referred us to other decisions  were the  requirements of the law had been held to be  directory, but to these it is not necessary to refer, for it ultimately depends  on the construction of each enactment and  none  of the decisions relied on were really in pari materia with the case now before us. We  feel unable to accept the submission of learned  Counsel

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that in the context in which the words’ "for the reasons  to be  recorded  by  him" occur in s. 5A  and  considering  the scheme of Ch.  II of the Act, the requirement of these words could  be  held  to  be otherwise  than  mandatory.   It  is needless to add that the employment of the auxiliary verb  " shall" is inconclusive and similarly the mere absence of the imperative  is not conclusive either.  The question  whether any requirement is mandatory or directory has to be  decided not merely on the basis of any specific provision which, for instance,  sets  out  the consequence  of  the  omission  to observe  the, requirement, but on the purpose for which  the requirement has been enacted, particularly in the context of the (1)  [1958] S.C.R. 533. 114 other provisions of the Act and the general scheme  thereof. It  would, inter alia, depend on whether the requirement  is insisted  on  as a protection for the  safeguarding  of  the right  of liberty of person or of property which the  action might involve. Let  us  now  examine the provision with  reference  to  the several relevant matters we have just set out.  Firstly,  on the  main  scheme  of the Act and what one  might  term  the normal  procedure,  is that indicated by ss. 3  to  5  where there  is ample opportunity afforded to persons affected  to put  forward  their  objections and prove  them  before  any pecuniary  liability  is  fastened upon  them.   Section  5A constitutes  a  departure from this norm.  It  is  obviously designed  to  make  provision for cases where  owing  to  an emergency it is not possible to comply with the requirements of  ss.  3  to 5 of affording  an  opportunity  to  affected persons  to make out a case that there is  no  justification for   burdening  them  with  any  pecuniary  obligation   or pecuniary  obligation beyond a particular extent.  It is  in the  context  of this consideration that the  Court  has  to consider  whether  the requirement that  reasons  should  be recorded by the Collector is mandatory or not.  If the ques- tion whether the circumstances recited in s. 5A(1) exist  or not  is  entirely  for  the  Collector  to  decide  in   his discretion,  it  will  be seen that  the  recording  of  the reasons  is  the only protection which is  afforded  to  the persons  affected to ensure that the reasons which  impelled the Collector were those germane to the content and scope of the power vested in, him.  It could not be disputed that  if the  reasons  recorded by him were totally irrelevant  as  a justification  for considering that an emergency had  arisen or for dispensing with notice and enquiry under ss. 3 to  5, the  exercise of the power under s. 5A would be void as  not justified  by the statute.  So much learned Counsel for  the appellant had to concede.  But if in those circumstances                             115 the section requires what might be termed a "speaking order" before  persons are saddled with liability we consider  that the  object with which the provision was inserted  would  be wholly  defeated  and protection afforded nullified,  if  it were held that the requirement was anything but mandatory. If,  as  we hold, the requirement was mandatory it  was  not disputed  that  the orders of the Collector  which  did  not comply  with the statutory condition precedent must be  null and  void and of no effect altogether.  Learned Counsel  for the  State  however draw our attention to the fact  that  in several of these appears, before the Collectors passed these orders under s. 5A they had before them reports of Overseers or Estimating Officers who had reported about the  condition of the irrigation work and had     suggested   that   action

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under s. 5A was called for.   It  was, therefore,  suggested that  as the Collectors had, before they passed these  order under s. 5A, materials on the basis of which an order  under s. 5A could be justified, it should be held that the  report of  the Overseer or Estimating Officer and the order of  the Collector  should be read as part and parcel of each  other, with  the result that the requirement of the reasons  having to  be  recorded  in writing should be  held  to  have  been complied with.  In the alternative it was submitted that  as "reasons"  which could justify an order under s. 5A did  in fact  exist, the Collectors should be deemed to  have  taken them  into account when in the course of the impugned  order they  recorded  their opinion that "the delay which  may  be occasioned by a notice under s. 3 would adversely affect the lands  dependent on the irrigation works".  We must  express our inability to accept either submission. There  are two matters which though  somewhat  inter-related are  never  the  less distinct, and separate.   One  is  the conclusion or finding of the 116 Collector  that  the state of circumstances set  out  in  s. 5A(1)  exist, and the other the reasons why and the  grounds upon which the Collector reaches that conclusion that in the circumstances existing in a particular case it cannot  brook the delay which the resort to the normal procedure of notice and enquiry for which provision is made by ss. 3 to 5 should be departed from. To  suggest that by a recital of the nature of  the  repairs required to be carried out and employing the language of  s. 5A(1)  the officer has recorded his reasons for invoking  s. 5A  is  to confuse the recording of the conclusion’  of  the officer  with  the  reasons for which  he  arrived  at  that conclusion.   Besides  just  as  it would  not  be  open  to argument  that  the terms of s. 5A(1) will be  attracted  to cases where there is factually an emergent need for  repairs of the type envisaged by the section but the Collector  does not so record in his order ; similarly the factual existence of  reasons for the Collector’s conclusion would  not  avail where  he does not comply with the statutory requirement  of stating  them in his order.  The reports of  the  Estimating Officer  or  of the Overseer which were relied  on  in  this context  would only indicate that those officers  considered that  action  under s. 5A was called for.   Several  of  the reports referred to in this connection extract the  material words of s. 5A(1) and conclude with a recommendation to  the Sub-Divisional  Officer who was vested with the powers of  a Collector  that  it was a fit case for  action  being  taken under s. 5A.  What the section requires is that on the basis of  materials which exist-this might include the reports  of officers  as well as information gathered by  the  Collector himself  by personal inspection or after enquiry  he  should reach the conclusion that irrigation works for the  purposes set  out  in s. 5A should be immediately taken on  band  and completed and that there is such an emergency in having  the work completed which will not                             117 brook that amount of delay which the notice and  proceedings under  ss.  3 to 5 would entail.  It is  not  therefore  the presence  of the material that is of sole relevance  or  the only criterion but the Collector’s opinion as to the urgency coupled  with  his recordings his reasons why  he  considers that  the  procedure  under ss. 3 to 5 should  not  be  gone through.   We are therefore unable to accept the  submission the  reports of the Overseers or Estimating  Officers  would obviate  the  infirmity  arising from  the  failure  of  the

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Collector  to  record his reasons as required by  s.  5A(1). From  the  fact  that  under s.5 A  (1)  the  power  of  the Collector  to make an order emerges on his being  bona  fide satisfied regarding the matters set out in the  sub-section, it does not follow either that the reasons why be has formed that  opinion are immaterial, or that it is unnecessary  for him  to state those reasons in the order that he makes,  and that  his  omission to do so could be made up by  the  State adducing  sufficient grounds therefore when the validity  of the  order  is challenged.  We have thus  no  hesitation  in holding  (a) that the requirement that the Collector  should record  his reasons for the order made is mandatory and  (b) that  this  requirement has not been complied  with  in  the cases before us, and (c) that in the circumstances the order of the Collector was therefore null and void. Before proceeding further, it would be convenient to dispose of  an  argument based on s. 5B.  It was  faintly  suggested that  the respondents were persons who had sustained a  loss by  reason  of a thing done by the Collector  and  that  the statute  provided a remedy therefore by permitting  a  claim for compensation under the provisions of s. 5B.  We consider that this submission arises wholly on a misreading of s. 5B. The  "loss" for which the section provides  compensation  is that  directly  arising from the doing of the work,  i.  e., loss  sustained  by third parties and not the  liability  to make the 118 apportioned  cost under ss. 11 and 12 for the very basis  of the liability under these provisions is that the person from whom  payments are demanded has benefited by the work  being done  in  that he being under an obligation  to  effect  the repairs, that obligation was discharged by the work done  at the instance of the Collector. Both  Mr.  Jha and Mr. Varma who appeared for the  State  in these  bathes of appeals raised a contention that  the  High Court  bad no jurisdiction to afford the respondents  relief under  Art.  226 of the Constitution.  In  support  of  this argument  two grounds were urged: First, that the orders  of the  Collector  under  s. 5A were  administrative  in  their nature and therefore not amenable to the jurisdiction of the High  Court for the issue of a writ of certiorari.   In  our opinion,  the contention proceeds upon a misapprehension  as to  the  nature of the objection raised and as  regards  the particular  orders  which were challenged  before  the  High Court  What the High Court set aside were the demands  which were issued against the landlords under s. 11 of the Act and which  were  sought  to be recovered as  arrears  of  public demands  under  s. 12.  No doubt, those  demands  had  their origin  in or were ultimately based upon an order passed  by the   Collector  under  s.  5A.   The  argument  which   the respondents  presented  to  the High  Court  and  which  the learned  Judges accepted was that the demands  were  illegal and not justified by law, because they had ultimately to  be based upon orders (under s. 5A) which were without jurisdic- tion  and therefore void.  It would therefore be  seen  that the  respondents were not seeking to set aside  the  several orders  passed  by the Collector under s. 5A  but  only  the demands based on them on the ground that they were  illegal. The  High  Court had certainly jurisdiction to  direct  that these demands be quashed and should not be enforced.  If the orders under s. 5A on which these demands  119 were based were void, i.e., as passed without  jurisdiction, they did not need to be set aside and therefore there was no necessity  for  taking any proceedings  for  obtaining  such

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relief.  They were non est.  If they were of that  character they could not serve as a foundation for the liability which was   sought  to  be  fastened  upon  the   respondents   by apportionment under ss. 7 and 8 and by the issue of a notice of  demand  under s. 10.  It was on this line  of  reasoning that the learned Judges have proceeded and we consider  that they  were  right.  If the orders under s. 5A had  no  legal foundation as being wholly without jurisdiction because  the statutory requisites or conditions precedent for such orders were  not  satisfied, no liability to make a  payment  could arise out of such orders. The other submission was that several of the orders under  s 5A  were  passed  before the Constitution and  that  is  the Constitution was not retrospective the High Court could  not exercise  the  jurisdiction  which was for  the  first  time conferred  on it by Art. 226 of the Constitution in  respect of  orders  passed  before  January 26,  1950.   It  is  not disputed  that  all the several demands which  were  quashed were made after rejected the constitution.  For the  reasons for  which  we have the submission just now dealt  with  the argument in the present form must also be repelled. Mr. Varma next contended that the respondents must be deemed to  have acquiesced in the orders passed under s. 5A by  not objecting  to  them  immediately  and  that  they  were  now estopped from contending that they were void having, by  the execution  of the work, obtained a benefit by the repair  of the  irrigation work.  There is no substance at all in  this argument.  Section 5A does not contemplate any notice to the affected party, and the public notice that the proviso to s. 5A provides for is a notice that the work has begun.’  There is thus, 120 before  the  completion  of the work, no  provision  in  the statute  for the landlord to make his representations,  even assuming  that he is shown to have knowledge of the  passing of  the order.  Seeing that the very object of s. 5A  is  to preclude  any objection which a landlord might have  to  the repair  of  an  irrigation  work,  we  consider  it   rather anomalous  that- an argument should be addressed which  rest on the basis of a failure to object.  Reference was, in this connection, made to the terms of s. 46 under which the Board of  Revenue have a general power of supervision and  control over all orders and proceedings of the Collector and it  was urged  that  the failure on the part of the  respondents  to have availed themselves of this provision debarred them from moving  the High Court.  This would turn upon  the  question whether  the relief by resort to proceedings under  the  Act would  be  sufficient  and adequate which  would  render  it unnecessary  for  the  respondents to have  moved  the  High Court.  Though an objection of this sort appeared in some of the  counter-affidavits  filed  before the  High  Court  the matter does not appear to have been pressed before the  High Court  at the time of the arguments.  As the High Court  had certainly  a discretion to grant relief under Art, 226  even if  there were other alternative statutory remedies,  we  do not propose to entertain this objection at this stage. The result is that these appeals fail and are dismissed with costs.   There  will  be only one hearing  fee  as  all  the appeals were heard together.                                Appeals dismissed.                             121