The Collector Of Monghyr And Others vs Keshav Prasad Goenka And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 53 to 81, 133 to 137, 253 to 263 of 1960

Decision Date: 28/03/1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J.R. Mudholkar

The case was titled The Collector of Monghyr and Others versus Keshav Prasad Goenka and Others, and the judgment was delivered on 28 March 1962 by a bench of the Supreme Court of India consisting of Justice N. Rajagopala Ayyangar, Justice Bhuvneshwar P. Sinha, and Justice J. R. Mudholkar. The petitioner was the Collector of Monghyr together with other officials, while the respondents were Keshav Prasad Goenka and other landowners. The matter concerned the interpretation of the Bihar Private Irrigation Works Act, 1922 (Bihar and Orissa Act 5 of 1922), particularly sections 3, 4, 5, 5A, 5B, 11 and 12, and the jurisdiction of the High Court of Patna under Article 226 of the Constitution of India. The Act had been enacted to authorise the repair and improvement of certain irrigation works. Under sections 3 to 5, the Collector was empowered to act when he was satisfied that a repair was of sufficient importance, provided that he first served a notice on the landlord of the land on which the irrigation work was situated and after making the necessary inquiries. Section 5A added a further power: “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 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…”. In accordance with a circular issued by the Government of Bihar to the district officers, the revenue department officials submitted reports identifying irrigation works that required repair. Upon receiving these reports, the Collector of Monghyr issued an order under section 5A authorising the commencement of repairs, but he failed to record the reasons required by the provision for believing that the delay in serving the notice under section 3 would cause the adverse consequences described in section 5A. After the repairs were completed, the total cost was apportioned and a demand was made on the landlord under section 11 for his share of the contribution. The landlord contested the legality of that demand by filing an application before the Patna High Court under Article 226, arguing, among other points, that section 5A made it essential for the Collector to record his reasons for departing from the normal procedure of issuing a notice under sections 3 to 5, and that the failure to do so rendered the order under section 5A void and consequently invalidated the subsequent proceedings for recovery of the landlord’s share.

In this matter the Court held that the phrase “for the reasons to be recorded by him” appearing in section 5A of the Bihar Private Irrigation Works Act, 1922, imposed a mandatory requirement on the Collector. Considering the overall scheme of the Act, the Court concluded that the Collector was obliged to set out his reasons when deviating from the normal procedure of an order based on an enquiry under sections 3 to 5. The Court found that the Collector had failed to record any reasons, and therefore the order made under section 5A was void. Consequently, all subsequent proceedings seeking to recover the landlord’s share of the apportioned cost were rendered invalid. The Court referred to the decision in State of Uttar Pradesh v. Manbodhan Lal Srivaslava [1958] S.C.R. 533 in support of this finding. Even if the order under section 5A were characterized as administrative, the Court held that the landlord was entitled to relief under Article 226 of the Constitution because the demand made against him under section II of the Act, and later sought to be recovered as arrears of public demands under section 12, was grounded on an order that lacked jurisdiction. The Court further clarified that section 5B of the Act applied only to compensation claims by third parties and did not extend to liabilities arising under sections 11 and 12.

The Court noted that the appeals fell under civil appellate jurisdiction and comprised three batches of cases, identified as Civil Appeals Nos. 53 to 81, 133 to 137, and 253 to 263 of 1960. These appeals were taken by special leave from judgments and orders dated 28 March 1957, 20 April 1956, 12 July 1960, and 14 March 1956 of the Patna High Court, involving numerous miscellaneous judicial cases filed in 1955 and 1956. Counsel for the appellants, representing the State of Bihar, appeared for the appeals numbered 53 to 81, while counsel for the respondents represented the landlords in those same appeals and in the appeals numbered 77 to 81. Separate counsel teams represented the parties in the appeals numbered 133 to 137 and in the appeals numbered 253 to 263. The judgment was delivered on 28 March 1962 by Justice Ayyangar, who observed that the three batches of appeals were before the Court because they raised a common issue concerning the proper construction of section 5A of the Bihar Private Irrigation Works Act, 1922.

Special leave was granted for these appeals, and they were heard together because each appeal raised the same legal question concerning the proper interpretation of section 5A of the Bihar Private Irrigation Works Act, 1922 (referred to as the Bihar and Orissa Act, 5 of 1922, and hereinafter as “the Act”). The State of Bihar, which is the appellant in all of the appeals, challenged the correctness of several orders of the Patna High Court. Those orders had allowed a number of writ petitions filed by landlords who contested the legality of contributions demanded from them under section 11 of the Act. For the purpose of deciding these appeals it was unnecessary to set out the detailed facts of every case. It sufficed to refer to any one of the orders that were passed under section 5A and that formed the basis of the contribution demand that had been successfully challenged. All of the orders that were the subject of the various appeals shared a single defect, which the Court would describe later, and that common defect was sufficient to resolve all of the appeals.

Before outlining the factual background that gave rise to the present proceedings, it was appropriate to consider the relevant provisions of the Act. The preamble to the Act states: “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 matters dealing with the repair and improvement of irrigation works are contained in Chapter II, and those provisions are material to the controversy before the Court. Section 3, which opens this Chapter, provides, in substance, that whenever the Collector is satisfied that (a) 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 work would adversely affect, or is likely to affect, the lands dependent on it for water, or (b) it is desirable to settle or prevent disputes, to avoid waste of water, or to prevent injury to land caused by wrongful diversion of a stream or channel, then the Collector may, if he considers the matter of sufficient importance, (i) issue a notice, in the manner prescribed, to the landlord of the land where the irrigation work is situated and give public notice at convenient places in every village where the work is located, stating his intention to take action under this Chapter for repair, extension, or alteration of the work and specifying the date for the inquiry under section 4, and (ii) serve a notice, in the prescribed manner, on every person known or believed to be under an obligation to maintain the irrigation work in an efficient state, calling upon that person to show cause on the specified date why he should not be required to repair or alter the work as proposed.

In the situation described, the Collector declared that he would commence proceedings under the relevant Chapter for either the repair of the irrigation work in question or for its extension or alteration in any manner enumerated in clause (b). He indicated that the notice would contain the date on which the inquiry prescribed by section 4 was to be held. In addition, the Collector would issue a further notice, in the manner prescribed, to every individual who was known or was believed to be bound by an obligation to keep the irrigation work in an efficient condition. That notice would command each such person to appear on the date specified and to show cause why he should not be required to undertake the repair or alteration referred to. Section 4 provides for the conduct of an inquiry and states: “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, enumerates the powers of the Collector and 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 to materially affect or is likely to materially affect the irrigation of the lands dependent on it for 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 a written order 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 agree to carry out the work, or (b) by any agency the Collector thinks proper, if, for reasons recorded by him, he considers that adequate reasons exist for not entrusting any person mentioned in clause (a) with the work; provided that the Collector shall, if he is satisfied that the cost of carrying out the proposed work will be prohibitive, issue an order declaring that such work shall not be carried out. (2) Every order made under sub‑section (1) shall specify, as closely as may be practicable, the nature of the work to be performed, the estimated cost of executing it, and the manner, time and conditions within which it shall be executed.”

The Court observed that an order issued by the Collector must state the estimated cost of executing the work, describe the manner in which the work shall be carried out, and specify the time within which the work is to be completed. At this point, reference could be made to section 47, which provides that any person dissatisfied with an order of the Collector made under section 5 may, within three months from the date on which the first act is taken pursuant to that order, institute a limited suit in a civil court. The Court further noted that section 5A, whose interpretation is central to the present appeals, was introduced by an amendment effected by Bihar Act X of 1939 and therefore required full disclosure. The full text of section 5A reads as follows: “(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.” The Court then recorded that counsel for the appellant had referred to the provisions of section 5B, and that it would be appropriate to extract the relevant portion of that section for the purposes of the judgment.

Section 5B provides that “(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 5A 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.” The Court explained that section 7 makes provision for the recovery of the cost of the work by persons who effected the work under section 5(1)(a) or under section 5A, upon application to the Collector. Once the cost has been ascertained under section 7, section 8 empowers the Collector to apportion that cost among the persons concerned, taking into account “the obligations under which they were to maintain the irrigation work in an efficient state, the reason for their failure 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.” After such apportionment is made, the Collector is further empowered to make an award specifying the person or persons by whom the apportioned sum is to be paid. The Court therefore set out the full statutory scheme governing the initiation, execution, notification, completion, compensation, cost recovery and apportionment of irrigation works as provided in sections 5A, 5B, 7 and 8 of the Private Irrigation Works Act.

The Act also contains provisions that allow the issuance of demands on persons who are liable to make payment, and these demands may be presented as a public demand payable to the Collector. On the factual side, the matter originated from a circular dated 19 April 1948, which was signed by the Additional Secretary to the Government of Bihar and addressed to the District Officers of several districts, including the district of Monghyr from which the present appeals arise. In that communication the Additional Secretary conveyed a series of directives. First, the Government decided that, in addition to the irrigation work already planned under the Grow More Food Scheme of the Development Department, each named District Officer should undertake and complete before the onset of the monsoon one hundred minor irrigation projects within his district, to be carried out under sections 5, 5A, 32A and 32B of the Private Irrigation Works Act, each work being estimated at an average cost of Rs 2,000. Second, a sum of Rs 1,00,000 was authorised by the Revenue Department for the district of Monghyr to finance these schemes. Third, the Government resolved that minor irrigation works should continue to be executed jointly by the Development Department (under the Grow More Food heading) and the Revenue Department, with the Collector of each district bearing overall responsibility for all such works, irrespective of the department under which they were executed. Moreover, even those works undertaken by the Revenue Department were to be treated as part of the Grow More Food scheme, and every use of the provisions of the Private Irrigation Works Act was to be employed so that the Collector could ensure swift implementation and later recover the costs after completion. Fourth, the District Officers were asked to give consideration to proposals submitted by the Presidents of the District Congress Committees, for which special requests had been made. Fifth, the initial cost of the works would be borne by the Government, but half of that amount was to be recovered from the persons who benefited from the irrigation. Sixth, in every village selected for any of the following items of work—construction of an Ahar or bundh, clearance of ponds and khanras, or re‑examination of silted ponds and khantas—a small panchayat office consisting of public‑spirited and reliable persons, headed by a head‑man, was to be formed. Seventh, the District Officers were directed to contact immediately the District Supervisor and the President of the District Congress Committee of their district. Finally, the Government authorised the expenditure to be incurred in anticipation of the provision of funds. Subsequent to the issuance of this circular, as noted by the State in its counter‑affidavit filed in answer to the writ petitions under Article 226 and reflected in the orders that gave rise to Civil Appeals 53‑81 of 1960, officials of the Revenue Department forwarded reports to Sub‑Divisional Officers who possessed the powers of a Collector under section 5A, indicating that the irrigation works identified required repairs, and the Collector thereafter issued orders for their execution.

Sub‑Divisional Officers, who were empowered with the authority of a Collector under section 5A, received reports indicating that certain irrigation works required repair. In response, the Collector issued orders stating that the repair of an existing irrigation work situated in village Thana, District Monghyr, was necessary for the benefit of that village and that failure to repair would adversely affect lands dependent on the water supply. The Collector expressed that his intervention was essential because any delay caused by proceedings initiated under a notice of section 3 could harm the lands relying on the irrigation work, and therefore it was expedient to act under section 5A of the Bihar Provincial Irrigation Works Act. The order directed that the work be executed immediately under section 5A and that a public notice under section 5A(1) be posted at a convenient place in the village, announcing that the work had already begun. The public notice was issued, the repair work was completed, and the total cost of the work was apportioned. In accordance with the earlier Government circular, the landlords’ contribution was fixed at five hundred percent of the total cost. When the authorities attempted to recover these sums from the landlords—who claimed that, by the time of the demand, their estates had been taken over by the Government under the Bihar Land Reforms Act of 1950—they contested the legality of the demand. It is necessary to note that the orders issued by the Sub‑Divisional Officers in the various cases were prepared on a cyclostyled form that required only the name of the work and its location, with some entries left blank; in certain instances the name of the work was omitted entirely, and the Collector signed the order without completing that field. Counsel for the State, appearing in Civil Appeals 53‑81 of 1960, argued that orders suffering from such deficiencies might be regarded on a different basis, but the Court held that for the purposes of section 5A it was unnecessary to treat those cases separately. Moreover, none of the challenged orders under section 5A contained the Collector’s reasons for concluding that the delay in issuing a notice under section 3 would produce the adverse consequences described in section 5A(1).

The Court observed that invoking section 3 of the Act would inevitably lead to the consequences enumerated in clause 5A(1) of the same Act. Although it had previously been submitted on behalf of the State, and this submission had been accepted by the High Court in the petitions that gave rise to Civil Appeals 53‑81 of 1960, that the Collector’s orders were issued under the authority of a Government policy disclosed in the circular dated April 19, 1948, the Court decided, for the purpose of addressing the matters presently before it, to disregard that aspect. Instead, the Court proceeded on the assumption that the Collector had acted on his own initiative—suo motu—and had exercised his discretionary powers without any external inducement or direction from the aforementioned circular.

The Court further noted that, even when the Collector’s order was completed on the prescribed form, the document failed to state the reasons why the Collector deemed it unnecessary to follow the procedure that ordinarily requires a notice to the affected party and a subsequent enquiry as laid down in sections 3 to 5. The learned judges of the High Court had ruled in favor of the respondents on two principal grounds. First, they held that, in view of the language of the order, it was evident that the Collectors had not given any genuine thought to the issue at hand; the recitals in the order were merely a mechanical repetition of the provisions of section 5A. Second, the High Court pronounced that an essential requirement of section 5A is that the Collector must record his reasons for deviating from the normal procedure of issuing a notice and conducting an enquiry under sections 3 to 5; the omission of such reasons, according to the High Court, rendered the action taken under section 5A void and consequently invalidated all subsequent proceedings aimed at recovering the landlords’ share of the apportioned cost from the respondents. The Court expressed a clear opinion that the second ground relied upon by the High Court was correct and therefore found it unnecessary to examine the first ground, that is, whether the High Court was right in holding that the first ground was established in the present case.

Subsequently, the Court turned to the placement of section 5A within the overall scheme of the Act. It observed that Section 3(a) deals with the same category of cases as section 5A, namely situations where the repair of an existing irrigation work is necessary for the benefit of a village and where the failure to repair such work would adversely affect, or is likely to adversely affect, the lands that depend on the irrigation work for water supply. The language of Section 3(a) is repeated in section 5A. The Court explained that if action were taken under Section 3, then notices would have to be issued to the landlords because, under Section 3(b)(ii), the landlords are considered to be under an obligation to effect the repair and are therefore sought to be made liable for the cost of those repairs. By issuing such notices, the landlords would be given an opportunity to dispute: (1) the existence of any obligation on their part to carry out the repair; (2) whether the repair proposed was in fact necessary; and (3) whether an alternative, possibly less costly, method of achieving the same result might be sufficient. The Court thereby highlighted the procedural safeguards intended by the provisions of Sections 3 to 5, which require notice, opportunity to be heard, and a quasi‑judicial enquiry before any liability for repair costs could be imposed.

The Collector, after receiving any objections, had to examine three specific matters: first, whether the landholder was truly bound to perform the repair; second, whether the repair that had been proposed was indeed necessary; and third, whether an alternative method of repair could achieve the same result at a lower cost. Once the Collector had evaluated the objections and considered the evidence presented on these points, he was required, under section 5, to determine whether the repair should be carried out, and if it was to be carried out, to specify the exact nature of the repair and the manner in which it should be executed. In proceeding under sections 3 to 5, the Collector functioned as a quasi‑judicial authority and was obligated to make an objective decision based solely on the material placed before him. The process envisioned by sections 3 to 5 involved issuing a notice, making a determination, and conducting an enquiry, all of which normally required a short period before the decided work could be put into execution. The Court recognized that emergencies such as sudden inundation or unexpected rainfall might arise, compelling immediate repairs to prevent damage to an irrigation work that could not tolerate delay.

The Court explained that section 5A was introduced precisely to address such urgent situations. Section 5A omitted the requirement of a notice of enquiry and the enquiry itself, thereby depriving the landholder or any other person ultimately liable for the cost of repair of the opportunity to point out to the Collector that the repair was unnecessary or could be accomplished at a reduced expense. While it was not contested that the power conferred by section 5A could be invoked only in an emergency, counsel for the appellant argued that the provision granted the Collector an administrative jurisdiction and that action under it was based on his objective satisfaction that an emergency existed. The Court held that it was unnecessary for the present appeal to decide whether the Collector’s opinion expressed in the words “whenever the Collector … is of opinion” was purely subjective or required relevant material, nor whether a party could challenge the order by showing absence of such material. For the purpose of analysis, the Court assumed that (a) the Collector was exercising only an administrative jurisdiction and not acting as a quasi‑judicial authority, and (b) that his jurisdiction under section 5A depended on his subjective satisfaction that a delay in repairing an existing irrigation work—delay that might result from proceedings initiated under section 3—would lead, or was likely to lead, to the consequences described in sub‑section (1) of section 5A. The Court noted that if these were the sole statutory requirements, the appellant’s counsel would be on firmer ground, but the statute contains further provisions that must also be considered.

The provision does not end merely with the power to act but also imposes a direction on the Collector to record the reasons for his opinion. The language of the statute makes clear that the recording of reasons functions as a condition for the exercise of the emergency power to issue an order under sub‑section (1). The issue placed before the Court was whether this condition is mandatory or merely directory, and consequently whether a failure by the Collector to record his reasons would constitute a fatal flaw or only an irregularity that would not invalidate the order. In support of the view that the requirement was directory, counsel relied heavily on the Court’s decision in State of Uttar Pradesh v. Manboclhan Lal Srivastava, wherein it was held that Article 320(3)(c) of the Constitution was not mandatory and that the absence of a consultation, or any irregularity in the consultation process, did not give a public servant whose case was omitted a cause of action in a court. Counsel also emphasized that, although Article 320(3) uses the word “shall” and appears imperative, the Supreme Court had previously held that the word “shall” did not make the requirement compulsory. He further argued that the present provision was even less compulsory because the word “shall” was absent. Counsel cited other judgments in which statutory requirements were deemed directory, but the Court noted that those authorities were not directly on point and that the proper answer depends on the construction of each enactment.

The Court, however, was unable to accept the contention that, in the context of the phrase “for the reasons to be recorded by him” in section 5A and in view of Chapter II of the Act, the requirement could be treated as non‑mandatory. The Court observed that the presence or absence of the auxiliary verb “shall” is not decisive, and the mere lack of an imperative word does not settle the question. Whether a stipulation is mandatory or directory must be determined not solely by the wording of a single provision that may prescribe a consequence for non‑compliance, but by the purpose for which the stipulation was enacted, especially when read against the backdrop of the other provisions of the Act and its overall scheme. The analysis would consider whether the requirement serves as a safeguard for the liberty of a person or for property rights that may be affected by the action. The Court then proceeded to examine the provision in light of the various considerations previously outlined, beginning with the primary scheme of the Act and its usual procedural provisions.

In this case the Court explained that the ordinary procedure, as laid down in sections 3 to 5 of the Act, provides a wide opportunity for persons who may be affected to present objections and to substantiate those objections before any monetary liability is imposed on them. Section 5A, however, departs from that ordinary procedure. The provision was clearly intended to address situations in which an emergency makes it impossible to follow the requirements of sections 3 to 5, namely the opportunity for affected persons to demonstrate that there is no justification for imposing any pecuniary burden or for imposing a burden that exceeds a prescribed limit. The Court therefore had to examine whether the statutory requirement that the Collector record the reasons for invoking section 5A is mandatory. If the question of whether the circumstances listed in section 5A(1) exist is left entirely to the Collector’s discretion, the recording of reasons becomes the sole protection available to the persons affected, ensuring that the Collector’s decision is based on reasons that fall within the scope of the power conferred on him. The Court observed that it could not be contested that if the reasons recorded by the Collector were wholly irrelevant as a justification for declaring an emergency or for dispensing with notice and enquiry under sections 3 to 5, then the exercise of power under section 5A would be invalid because it would not be authorized by the statute. This point was conceded by counsel for the appellant. The Court added that if, under those circumstances, the section required what might be described as a “speaking order” before a person is burdened with liability, then treating the requirement as anything other than mandatory would defeat the purpose of the provision and nullify the protection it seeks to afford. Consequently, the Court held that the requirement is indeed mandatory and that any order issued by the Collector that fails to satisfy this statutory condition precedent must be considered null, void and without any legal effect. Counsel for the State, however, drew the Court’s attention to the fact that, in several of the cases, before the Collectors issued orders under section 5A, they possessed reports prepared by Overseers or Estimating Officers concerning the condition of the irrigation works, and those reports had recommended that action under section 5A was warranted. It was therefore submitted that because the Collectors had, prior to issuing their orders, material on which an order under section 5A could be justified, the report of the Overseer or Estimating Officer and the Collector’s order should be read together as a single composite document, resulting in the conclusion that the statutory requirement that reasons be recorded in writing had been satisfied.

The Court observed that the alternative submission claimed that because reasons capable of justifying an order under section 5A were in fact present, the Collectors ought to be considered as having taken those reasons into account when, in the impugned order, they recorded the view that a delay caused by a notice under section 3 would adversely affect the lands dependent on the irrigation works. The Court expressed its inability to accept either of the submissions advanced.

Two matters, although somewhat inter‑related, were identified as distinct and separate. The first matter concerned the Collector’s conclusion or finding that the state of circumstances described in subsection (1) of section 5A existed. The second matter concerned the reasons and the grounds upon which the Collector arrived at that conclusion and determined that, in the particular circumstances, the delay inherent in the ordinary procedure of notice and enquiry provided by sections 3 to 5 could not be tolerated. The Court warned that it would be a mistake to confuse the recording of the Collector’s conclusion with the recording of the reasons that led to that conclusion.

The Court explained that merely reciting the nature of the repairs required and employing the language of subsection (1) of section 5A did not amount to a statement of reasons for invoking the power. Likewise, it would be untenable to argue that the terms of section 5A(1) would apply to cases where a factual emergency for the type of repair existed but the Collector failed to set out his reasons in the order. The existence of factual reasons would not cure the statutory requirement that the Collector state those reasons in the order.

Accordingly, the reports of the Estimating Officer or the Overseer, which were relied upon, could only demonstrate that those officers considered action under section 5A to be appropriate. Several of the reports quoted the material words of subsection (1) and concluded with a recommendation to the Sub‑Divisional Officer, who possessed the powers of a Collector, that the case was suitable for action under section 5A. The Court stressed that the section required the Collector, on the basis of all available material—including such reports and any information gathered by personal inspection or enquiry—to reach the conclusion that the irrigation works must be taken on band and completed immediately, and that the emergency did not permit the delay that the notice and proceedings under sections 3 to 5 would entail.

The Court therefore clarified that the relevant criterion was not merely the presence of material, but the Collector’s opinion on the urgency of the situation, together with a recorded statement of the reasons why he considered the normal procedure could not be followed. The Court concluded that the submissions arguing that the reports of Overseers or Estimating Officers eliminated the defect arising from the Collector’s failure to record his reasons were untenable.

The Court observed that the Collector could not bypass the procedure laid down in sections 3 to 5. Consequently, the Court rejected the argument that the reports prepared by the Overseers or the Estimating Officers could cure the defect created by the Collector’s failure to set out his reasons as required by section 5A(1). The Court explained that although section 5A(1) empowers the Collector to issue an order once he is honestly satisfied that the conditions specified in the subsection exist, this satisfaction does not render the reasons for his conclusion irrelevant. It is also not sufficient for the Collector to simply make the order without explaining why he reached that conclusion. The omission of such reasons cannot be compensated by the State later producing adequate grounds when the order’s validity is challenged. Accordingly, the Court said it had no hesitation in holding three points: first, that the Collector is mandatorily required to record the reasons for any order he makes; second, that this mandatory requirement was not fulfilled in the cases before it; and third, that because of this failure, the Collector’s orders were void and of no legal effect.

The Court then turned to the argument that relied on section 5B. It noted that the respondents had suggested that they had suffered a loss because of an act of the Collector and that section 5B therefore allowed them to claim compensation. The Court held that this submission was based on a mistaken reading of section 5B. The “loss” contemplated by the section is the loss directly caused by the execution of the irrigation work, which is loss suffered by third parties, not the liability of the person from whom the cost is demanded. The liability under sections 11 and 12 arises because the person from whom payment is demanded has benefited from the work; his obligation to repair was satisfied by the Collector’s action. The Court also addressed the contention raised by the State counsel that the High Court lacked jurisdiction to grant relief under Article 226 of the Constitution. The State argued, first, that the Collector’s orders under section 5A were purely administrative and therefore not subject to a writ of certiorari. The Court rejected this view, stating that the contention was based on a misunderstanding of the nature of the objection and of the specific orders under review. The High Court had set aside demands issued to the landlords under section 11 of the Act, which were being recovered as arrears, and those demands were linked to the Collector’s order under section 5A. The Court affirmed that the High Court possessed the requisite jurisdiction to intervene in that context.

In this case the Court observed that the public demands issued under section 12 were certainly derived from, or ultimately based upon, an order that the Collector had made under section 5A. The respondents had argued before the High Court, and the learned Judges had accepted, that those demands were illegal and could not be sustained because they rested on orders under section 5A that were itself without jurisdiction and therefore void. Consequently the respondents were not asking that the various orders passed by the Collector under section 5A be set aside; rather they sought only the quashing of the demands that had been issued on the basis of those orders, on the ground that those demands were unlawful. The High Court was correctly held to have jurisdiction to direct that the demands be annulled and not enforced. If the orders under section 5A on which the demands were founded were indeed void—because they had been made without any jurisdiction—there was no need to set them aside, for they were non est. A void order could not serve as a foundation for any liability that the respondents were alleged to have incurred through the apportionment mechanisms of sections 7 and 8 or through a notice of demand issued under section 10. The Court agreed with this line of reasoning, holding that when an order under section 5A lacks a legal basis because the statutory requisites or conditions precedent have not been satisfied, no liability to pay can arise from such an order.

The respondents also submitted that several of the orders under section 5A had been made before the Constitution came into force, and that because the Constitution was not retrospective, the High Court could not exercise the jurisdiction conferred for the first time by article 226 over orders that had been passed prior to 26 January 1950. It was not contested that all of the demands that were set aside had been issued after the Constitution had become operative. For the reasons already addressed, that argument was also rejected. Further, counsel for the respondents contended that the respondents should be deemed to have acquiesced in the orders passed under section 5A by failing to object to them immediately, and that they were therefore estopped from claiming the orders were void, since they had obtained a benefit from the repair of the irrigation works. The Court found no substance in this contention. Section 5A does not provide for any notice to the affected party; the proviso to section 5A only requires a public notice that the work has commenced. Accordingly, before the completion of the work there is no statutory provision that allows a landlord to make representations, even assuming he had knowledge of the order. Hence the argument of estoppel on the ground of non‑objection could not succeed.

In this case the Court observed that the landlord was shown to have knowledge of the order that had been passed. The Court noted that the principal purpose of section 5A is to prevent any objection that a landlord might raise against the repair of an irrigation work. Because the statute is intended to bar such objections, the Court found it unusual that an argument was being advanced on the basis that the landlord had simply failed to object. The discussion then turned to section 46, which confers on the Board of Revenue a general power of supervision and control over all orders and proceedings of the Collector. It was submitted that the respondents’ failure to invoke the supervisory power granted by section 46 should preclude them from approaching the High Court. The Court explained that this question depends on whether recourse to the remedy provided under the Act would be sufficient and adequate, thereby making a separate petition to the High Court unnecessary. Although a similar objection appeared in certain counter‑affidavits filed before the High Court, the Court observed that the objection had not been formally raised during the arguments before that Court. The Court further stated that the High Court possessed a discretionary authority to grant relief under article 226 of the Constitution even when alternative statutory remedies were available. Consequently, the Court declined to consider the objection at this stage. As a result, the Court held that the appeals were to fail and ordered them dismissed with costs. The Court further directed that only a single hearing fee would be charged because all the appeals had been heard together, and it formally recorded that the appeals were dismissed.