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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.The Bihar Private Irrigation Works Act, 1922, was enacted to provide, inter alia, for the repairs and improvements 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 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 mandatory ; that as in the present case, the requirement was not complied with, the order of the Collector under s, 5A was null and void.Held, further, that even assuming that the order of the Collector under s, 5A: was administrative in its nature, the landiord was entitled to relief under Art. 226 of the Constitution because the demand which was made against him under s. 11 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. |
