Ayyangar, J. - (1.) 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 and 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 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 sets out the powers of the Collector and it 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 materially affects or is likely to affect materially the irrigation of the lands which are dependent thereon for a supply of 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 an order in writing 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 agrees or agree to carry out the said work, or (b) by any such agency as he thinks proper, if, for reasons to be recorded by him, he considers that there are adequate reasons why any person mentioned in clause (a) should not be entrusted with the carrying out of the said work: Provided that the Collector shall, if he is satisfied that the cost of carrying out the proposed work of repair, extension or alteration will be prohibitive, pass 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 done, the estimated cost of executing it and the manner in which and the time within which it shall be executed." At this stage reference may be made to the terms of S. 47 under which any person aggrieved by an order of a Collector under S. 5 has, within three months from the date on which the first overt act is taken in pursuance of such order, a limited right of suit in a civil court.;