1. Challenge to demands for contribution under Section 11 of the Bihar Private Irrigation Works Act, 1922, following emergency repair orders passed under Section 5A. (Para 1 , 5 )
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1962 Supreme(SC) 123
SUPREME COURT OF INDIA
28th March 1962.
B.P. SINHA, C.J.I., K. SUBBA RAO, N. RAJAGOPALA AYYANGAR, J.R. MUDHOLKAR AND T.L. VENKATARAMA AYYAR, JJ.
Collector of Monghyr and others etc. Appellants
Versus
Keshav Prasad Goenka and others etc. Respondents.
Civil Appeals Nos. 53 to 81, 133 to 137 and 253 to 263 of 1960.
Advocates appeared
Mr. L. K. Jha, Senior Advocate, (Mr. Bhagawat Prasad, Advocate and M/s. D. P. Singh, R. K. Gang, S. C. Aggarwala and M. K. Ramamurthi, Advocates of M/s. Ramamurthi and Co., with him), for Appellants (In C. As. Nos. 53 to 81 of 1960); M/s. J. C. Sinha, K. K. Sinha and R. R. Biswas, Advocates, for Respondents Nos. 1, 3 to 6 and 8 to 11 (In C. As. Nos. 53 to 56 of 60) and the Respondents (In C. As. Nos. 77 to 81 of 60);
In C. As. Nos. 133 to 137 of 60:
Mr. L. K. Jha, Senior Advocate, (Mr. R. C. Prasad, Advocate, with him), for Appellants; M/s J. C. Sinha and R. R. Biswas, Advocates, for Respondents.
In C. As. Nos. 253 to 263 of 60:
M/s. T. P. Sinha & S. P. Varma, Advocates for Appellants; Mr. A. V. Viswanatha Sastri, Senior Advocate (M/s. Ugra Singh and D. Goburdhan, Advocates, with him), for Respondents.
Advocates:
A.V.VISHWANATHA SASTRI, BHAGVAT PRASAD, D.GOVERDHAN CHARY, D.P.Singh, J.C.SINHA, K.K.SINHA, L.K.JHA, M.K.RAMAMURTHI, R.C.Prasad, R.K.GARG, R.R.BISWAS, RAMAMURTHI, S.C.AGRAWAL, S.P.Varma, TRIBENI PRASAD SINHA, UDAY SINGH
A.V.VISHWANATHA SASTRI, BHAGVAT PRASAD, D.GOVERDHAN CHARY, D.P.Singh, J.C.SINHA, K.K.SINHA, L.K.JHA, M.K.RAMAMURTHI, R.C.Prasad, R.K.GARG, R.R.BISWAS, RAMAMURTHI, S.C.AGRAWAL, S.P.Varma, TRIBENI PRASAD SINHA, UDAY SINGH
The requirement for a Collector to record reasons under Section 5A(1) of the Private Irrigation Works Act is mandatory. As this section bypasses the normal procedure of notice and inquiry, recording reasons is the sole safeguard; failure to do so renders the order null and void.
Headnote:(A) Private Irrigation Works Act - Sections 3, 4, 5, 5A, 5B, 7, 8, 11 and 12 - Emergency repairs of irrigation works - Requirement to record reasons - Whether the provision requiring the Collector to record reasons for bypassing the normal procedure of notice and inquiry under Section 5A(1) is mandatory or directory - Section 5A constitutes a departure from the normal procedure provided in Sections 3 to 5, which allows affected persons to object to the necessity or cost of repairs - In the absence of such notice and inquiry, the recording of reasons is the only protection afforded to ensure the power is exercised within its statutory scope - The requirement to record reasons is therefore mandatory and a condition precedent for the emergence of the power to make an order under Section 5A(1) (Paras 10, 12 and 13).
(B) Administrative Jurisdiction - Subjective satisfaction of the authority - Even if the authority exercises administrative jurisdiction based on subjective satisfaction, a statutory direction to record reasons must be complied with to validate the order (Para 10).
(C) Validity of Orders - Failure to record reasons as mandated by statute renders the order null and void - Reports from subordinate officers suggesting the need for action under Section 5A do not substitute for the Collector's own recorded reasons in the order (Paras 14, 15 and 16).
(D) Writ Jurisdiction - High Court has jurisdiction under Article 226 to quash demands for recovery if the underlying orders upon which such demands are based are void for lack of jurisdiction (Para 18).
Facts of the case:
The state government issued a circular to execute minor irrigation works. Orders were passed by the Collector under Section 5A for emergency repairs without recording the specific reasons why the normal procedure of notice and inquiry under Sections 3 to 5 was bypassed. Following the completion of works, demands for a 50 per cent contribution of the costs were issued to landlords. The landlords challenged the legality of these demands, contending that the orders under Section 5A were void due to the failure to record reasons.
Findings of Court:
The requirement for the Collector to record reasons under Section 5A(1) is mandatory. Since the orders in question did not comply with this statutory condition precedent, they are null and void. Consequently, the demands for recovery based on these void orders are illegal and unenforceable.
Issues: Whether the requirement to record reasons under Section 5A(1) of the Act is mandatory or directory, and whether the existence of subordinate reports satisfies this statutory requirement.
Ratio Decidendi: Because Section 5A dispenses with the notice and inquiry protections provided in the normal procedure of the Act, the recording of reasons is the essential safeguard to prevent arbitrary action. Therefore, it is a mandatory requirement. The factual existence of reasons or the presence of subordinate reports cannot cure the failure of the Collector to record those reasons in the order itself.
Result: Appeals dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether the requirement to record reasons under Section 5A is mandatory or directory and whether demands based on administrative orders are amenable to writ jurisdiction. (Para 11 , 14 , 18 , 19 )
3. Section 5A departs from normal procedure; recording reasons is the essential protection ensuring the Collector's power is exercised within its statutory scope. (Para 9 , 10 , 12 , 13 , 15 , 16 )
4. The requirement for a Collector to record reasons for invoking emergency powers under Section 5A is mandatory; failure to do so renders the order void. (Para 13 , 16 )
5. Appeals dismissed; demands based on void orders under Section 5A are quashed. (Para 21 )
6. Is the requirement to record reasons under Section 5A of the Bihar Private Irrigation Works Act mandatory or directory?
It is mandatory. Because Section 5A departs from the normal procedure of notice and inquiry, recording reasons is the only protection afforded to affected persons to ensure the power is exercised based on germane reasons. (Para 12 , 13 )
7. Do reports from subordinate officers satisfy the requirement for the Collector to record reasons in an order under Section 5A?
No. The Collector must record his own reasons for the conclusion that an emergency exists. While reports may be material, they do not replace the statutory requirement to state reasons within the order itself. (Para 14 , 15 , 16 )
8. What is the legal effect of a Collector's failure to record reasons when issuing an order under Section 5A?
The order is null and void. Recording reasons is a condition precedent for the emergence of the power to make the order; failure to comply renders the action without jurisdiction. (Para 13 , 16 )
9. Can the High Court under Article 226 quash demands based on void administrative orders?
Yes. If the underlying order is void for lack of jurisdiction, any subsequent demand for payment based on that order is illegal and can be quashed by the High Court. (Para 18 )
Judgment
AYYANGAR, J. : These three batches of appeals are before us by 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.
2. 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. 5A 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.
3. Before setting out in brief outline the facts which led to the present proceedings it would be convenient to refer to the relevant provisions of the Act. The preamble to the Act reads :
"Whereas it is expedient to provide for the construction, repair, extension or alteration of certain kinds of irrigation works and to secure their maintenance and to regulate the supply or distribution of water by means of such works and to facilitate and regulate their construction, extension and alteration."
The repairs and improvement of Irrigation Works are dealt with in Ch. II whose provisions are material for the controversy before us. Section 3 with which this Chapter opens enacts, to quote the 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 of 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, headwork, 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, it satisfied that the matters 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 & 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 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 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 extend or alter it as aforesaid;
... ...... ....... ....... ....... ...... .............. .... .."
Section 4 makes provision for an inquiry and it reads:
"4. On the date stated in the notices issued under Section 3, or on any other date to which he 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 necessi
