Case: Collector of Monghyr &amp; Others Vs. Keshav Prasad Goenka &amp; Others

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. 53. 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 had 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.18. Both Mr. Jha and Mr. Varma who appeared for the State in these batches of appeals raised a contention that the High Court had no jurisdiction to afford the respondents relief under Art. 226 of the Constitution. In support of this argument two grounds were urged: First, that the orders of the Collector under S. 5A were administrative in their nature and therefore not amenable to the jurisdiction of the High Court for the issue of a writ of 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 jurisdiction and therefore void. It would therefore be seen that type respondents were not seeking to set aside type 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 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 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 reasuning 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.19. The other submission was that several of the orders under S. 5A were passed before the Constitution and that as 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 the Constitution. For the reasons for which we have rejected the submission just now dealt with the argument in the present form trust also be repelled.20. 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 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 rests 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]12. We feel unable to accept the submission of learned Counsel 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 basic of any specific provision which, for instance, sets out the consequences 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.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.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 type 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 Collectors 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 works 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- be should reach the conclusion that irrigation works for the purposes set out in S. 5A should be immediately taken on hand and completed and that there is such an emergency in having the work completed which will not 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 Collectors opinion as to the urgency coupled with his recording 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 that the reports of the Overseers or the Estimating Officers would obviate the infirmity arising from the failure of the Collector to record his reasons as required by S. 5A(1). From the fact that under S. 5A(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 he has formed that opinion are immaterial, or that it is unnecessary for him to state those reasons in the order that he makes, and that his omission to do so could be made up by the State adducing sufficient grounds therefor when the validity of the order is challenged. We have thus no hesitation in holding (a) that the requirement that the Collector should record his reasons for the order made is mandatory and (b) 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.17. 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. 53. 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 had 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 theour 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 jurisdiction and therefore void. It would therefore be seen that type respondents were not seeking to set aside type 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 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 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 reasuning 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 suchis 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 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 rests 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.