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

5. 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 statedam directed to say that Government have decided that in addition to the irrigation works 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 . .. . .. . . . . . . . . .. . . . . . .(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 request 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 per cent. of the same will be realised from the persons benefited ............(6) In every village selected for one of the following items of work, namely (1) construction of Ahar or bundh (2) clearance of pynes and khanra and (3) reexamination if silted up pynes and khantas, on which Government desire you to concentrate this year, a small panchayat office public spirited and reliable persons should be formed with a headman . . . . . .(7) .. . .. . You are therefore requested to contact immediately the District Supervisor and the President, District Congress Committee of your district.(9) .......... Government have authorised expenditure to be incurred in anticipation of provision ofafter this circular, and as stated by the State in the counter-affidavit filed by it in answer to the writ petitions under Art. 226 from 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 termsit appears to me that the re- pair 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, andWhereas 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 S. 5A of the BPIW Act. I therefore hereby order that the said work be forthwith put to execution under S. 5A of the said Act. A public notice under S. 5A (1) be given at a convenient place at the aforesaid village that the work mentioned therein has alreadypublic notice that the work had already, been commenced under 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 landlords share of the contribution was determined as 50 per cent of the total cost of the work. When these sums were sought to be demanded from the landlords (from whom it might be stated that by the date of this demand their estates had been taken over by Government under the provisions of the Bihar Land Reforms Act (Act I of 1950) ) they came forward to question the legality of the demand.6. 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 538l 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.7. Though, as stated earlier, it was the case of the state, in the High Court at least in the petitions which have given rise to Civil Appeals 53-81 of 1960, that the orders of the Collectors were passed in pursuance of Governments 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 Collectors had passed these orders suo motu 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 that the procedure requiring a notice to the affected party followed by any enquiry outlined by Ss. 3 to 5 could not be adopted.8. The learned Judges of the High Court have decided in favour of the respondents on two grounds : (1)that having regard to the form of the orders it was apparent that the Collectors had not applied their minds to the question before them, the recitals therein being merely a mechanical reproduction of the terms of S. 5A, and (2) that it was an essential requirement of S. 5A that the Collector should record his reasons for departing from the normal procedure of an 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.

Reasoning:
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.