SHRIMAL, J. - (1.) IN the erstwhile State of Bundi, a dam, known as 'burdha Dam' was constructed in the year 1926 and therefrom irrigation facilities were provided to the nearby lands through a canal, its branches and distributaries. These facilities were also given to the agricultural farm, known as 'alphanagar Farm'. Shri Brij Narain purchased this farm after having obtained sanction of the Ruler of the erstwhile State of Bundi. The petitioners (M/s. Vinodi Ram Balchand) then purchased it vide registered sale-deed dated 2nd July, 1946 (Annexure. 3 ). The purchasers used to pay land revenue as well as irrigation charges at the rate of Rs. 2/- per Bigha.
(2.) WITH a view to promote agricultural occupancy of the State the Government of Rajasthan undertook the construction of a number of irrigation projects including Chambal Irrigation Project and its branches. This entailed enormous expenditure and heavy investment. The Government considered it expedient to levy special charges, known as betterment charges. The Legislature enacted the Rajasthan Lands Special Irrigation Charges Act, 1953 (hereinafter referred to as 'the Act ). In exercise of the powers conferred by section 15 of the Act, the Government of Rajasthan made Rules, known as Rajasthan Land Special Irrigation Charges Rules, 1954 (hereinafter referred to as 'the Rules' ). In the year 1960-61 a branch of the left main canal of the 'chambal Irrigation Project', known as Bundi Branch, was connected with the canal of the Burdha Dam. It cut the farm into two pieces, southern and northern portion. By a notification, dated 27th February, 1959, the State Government constituted a Board, within the meaning of Rule 2 (g) of the Rules, consisting of the Commissioner, Kota as the Chairman, Superintending Engineer, Canal Circle, Kota, Director, Colonisation Chambal Project, and the Collector Kota, Collector Bundi and the Settlement Officer, Kota. By a subsequent Notification, dated 2nd November, 1962, the Additional Chief Secretary to the Government of Rajasthan was appointed as the Chairman of the aforesaid Board in the place of the Commissioner Kota The Government of Rajasthan, in exercise of its powers under section 5 (1) of the Act, declared through Notification, dated 13th June, 1962, its intention to levy betterment charges in respect of the lands, included in the Chambal Irrigation Project and situated in the Districts of Bundi and Kota This Notification (Annexure 15) was published in the Rajasthan Gazette, dated 28th June, 1962. The Notification relates to the land of Alphanagar Farm, including other lands mentioned therein. The land-holders and occupancy tenants likely to be affected by the proposed betterment charges were required to file objections (vide annexure 16) within 60 days from the date of the publication of the Schedule in the Official Gazette or at the conspicuous place or at the Tehsil headquarters. Thereafter the State Government determined the final Schedule of betterment charges and published the same in the Gazette, dated 15th December, 1964. A perusal of the Annexure 17 shows that a note was appended to the final Schedule of betterment charges, whereby certain lands, including the, 'chahi land' were exempted from levy of betterment charges. Through Notification, dated 18th May, 1968 (Annexure 18), the names of the villages were notified in which the lands situated were made liable to pay betterment charges. On 9th June, 1969 (Vide Annexure 19), a demand slip was issued in respect of betterment levy, regarding petitioner's farm, known as Alphanagar. An amount of Rs. 73,903=50 was demanded as betterment levy if the money was to be paid in one instalment; and in case, it was to be paid in 10 instalments then a sum of Rs. 88. 684/-20 was demanded from the petitioner. The petitioner under section 9 (2) of the Act, submitted objections, which were rejected by the Divisional Canal Officer on 10th August, 1965. The petitioner, thereafter, filed an appeal before the Collector, Bundi, who accepted the same and remanded the case to the Divisional Canal Officer for deciding it afresh after hearing the petitioner. The Divisional Canal Officer again decided the matter against the petitioner. He was of the view that the capacity of the Chambal Project was much more as compared to the Burdha Dam and as it was constructed at considerable cost and the petitioners' land was benefited by it, he was liable to pay the betterment charges. WITH these observations he dismissed the objection. The appeal filed by the petitioner before the Collector Bundi met with no success and it was dismissed on 26th August, 1967. Not being satisfied with the order of the Collector, Bundi, the petitioner approached the Board of Revenue, Rajasthan, at Ajmer, which by its order, dated 24th September, 1971, dismissed the revision petition filed by the petitioner. The petitioner has challenged the validity of the orders passed by the Divisional Canal Officer, Collector, Bundi and the Board of Revenue by this writ petition. The first contention raised by the petitioner that the rules are not in force as the Government of Rajasthan did not publish any notification mentioning therein as to the date of their enforcement need be mentioned only for being rejected. Under section 5 of the Rajasthan General Clauses Act, a law is deemed to have come into force on the date it was published in the Rajasthan Gazette, and as such, the demand slips issued under the Act and the rules cannot be challenged on this ground. Admittedly, the notification proposing to levy betterment charges issued under section 5 (1) of the Act was published in the Rajasthan Rajpatra dated 26th September, 1963, but its publication was not made as required by Rule 3 of the Rules Non-publication of Annexure 16 at the office of the Collector and the Divisional Canal Officer concerned, in no way, affects the rights of the State Government to collect betterment charges. A close reading of section 5 (1) of the Act reveals that the purpose of sub-section is to give notice to all land owners that the Government proposes to levy betterment charges on those persons whose land is being irrigated or is likely to be irrigated by irrigation projects made by the Government. A notification issued under this section discloses a tentative intention of the Government to levy betterment charges. Sub-section (2) requires that the Government would publish a schedule of betterment charges showing the rates at which the charges will be leviable on the lands and payable by the land holders and occupancy tenants thereof. Sub-section (3) provides that while proposing betterment charges, the court shall take into consideration, (a) the type of irrigation, (b) improvement in irrigation, (c) the extent of betterment occurring to the land. Sub section (4) provides that a draft of a schedule prepared under sub-section (2) shall be published in the Official Gazette and in such other manner, as may be prescribed. Sub-section (5) provides that any land holder or occupancy tenant who may be affected by the proposed betterment charges may, within 60 days from the date of the publication of the schedule in the Official Gazette, present a petition in writing to the State Government, stating his objections, if any, to the levy of betterment charges or the rate thereof. Thus, it is clear that it is the draft schedule prepared under sub-section (2) of section 5 which creates liability on the land owner or the Khatedar tenant or the occupancy tenant, and its non-publication in the prescribed manner does affect a person having interest in the land which gets irrigation facilities. Sec. 5 (l)is couched in the language,which does not make it mandatory. When a public duty is imposed and the statute requires that it shall be performed in a certain manner or within a certain time, or under other specified conditions, such prescription may well be regarded as intended to be directory. In each case the Court is required to decide the intention of the legislature. To decide this the Courts are required to consider not only the actual words used, but the scheme of the statute, the intended benefit to the public of what is enjoined by the provisions and the material danger to the public by contravention of the scheme. The legislature, in its wisdom, has used the word "may" in sub-section (1) of section 5, of the Rajasthan Land Special Irrigation Charges Act, the language of which is almost similar to that of section 4 (1) of the Rajasthan Acquisition Act. It came up for interpretation before the Division Bench of this Court in M/s Rajasthan Udyog vs. The State of Rajasthan (1), to which one of us was the party. The Court, after considering the relevant law on the point, held that section 4 (1) of the Rajasthan Land Acquisition Act was directory and its violation could not annul the proceedings without proving prejudice to the affected party. It is the publication of the draft of the Schedule prepared under section (1) of section 5 of the Act which gives a right to the land-holder or occupancy tenant, likely to be affected by the proposed betterment charges, to make objections. On the parity of the reasons given by the Division Bench in the above-noted decision, we hold that provisions of section 5 (1) of the Act are directory.
(3.) THE declaration of the intention to levy betterment charges by the Government in no way adversely affects the rights of any party. It does not cast any duty upon the public or the affected party to do anything. THE jurisdiction to raise objection arises only when a draft schedule is published under sub-section (4 ). Non-compliance with the manner of publication of the Notifi-cation published under section 5 (1) is not vested by any penalty. It cannot also be said that the object of the Legislature would be defeated if the notice issued under section 5 (1) of the Act is not published in the manner provided under rule 3 of the Rules. The next contention is that the draft schedule prepared under subsection (2) was only published in the Official Gazette and was not published in the manner prescribed Under sub-rule (3), and as such, the amount of betterment charges is not leviable. This contention is without any substance. A perusal of Annexure (R. 4), dated 1st October, 1963, reveals that 100 copies of the Hindi draft of the Schedule of betterment charges of the Chambal Irrigation Project, Kota, were sent to the Collector, Kota and Bundi, for being published and for giving wide publicity by beat of drum and by pasting them on the notice boards of the concerned Gram Panchayats of the Villages and at conspicuous places as well as at central places. Similarly Annexure R-5 also reveals that the publicity of the above Schedule was made in all the places as required by Rule 3 of the Rules. The second limb of the same question is that the draft of the Schedule prepared under sub-section (2) of section 5 was published under the seal and signature of the Chief Engineer, and as such, it was illegal and the petitioner was not bound to file any objection. There appears to be no substance in this averment. A perusal of Ex. R. 8, placed on record by the learned Government Advocate alongwith the affidavit, dated 24th September, 1980, clearly reveals that the Government of Rajasthan (vide letter No. F. D (62) Irrigation/61, dated September 1963) directed the Chief Engineer to publish the same. The letter stands authenticated by the Assistant Secretary to the Government of Rajasthan. In pursuance of this authority, Ex R 9 was published under the signature of the Chief Engineer Irrigation, Rajasthan, Jaipur. Thereafter, the final schedule of charges Annexure 17, was published by the Government of Rajasthan in the name of the Governor and the same stands authenticated by Z. S. Jhala, the then Secretary to the Government. This notification was published in the Gazette dated 15th December, 1964. The petitioner has not challenged the validity of Annexure 17. The demand created by Annexure 19 is the result of the quantification made on the basis of the principle laid down in Annexure 17, and as such on this ground also the petitioner is not entitled to claim any relief. ;