BRAJ KISHORE BAHADUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) In this case the petitioner has obtained a rule from the High Court, calling upon the respondents to show cause why the order of the Sub-divisional Officer of Arrah, dated the 18th May, 1959, starting proceedings under Section 5A of the Bihar Private Irrigation Works Act, and the order of the Additional Sub-divisional Officer of Arrah, dated the 25th October, 1954, asking the petitioner to meet the cost of repairs of the ahar in village Babubandh, tauzi No. 3695, in Shahabad District, to the extent of Rs. 1145/8;- under the provisions of the Bihar Private Irrigation Works Act, 1922, should not be quashed by grant of a writ under Article 226 of the Constitution.

(2.) Cause, has been shown by the learned Additional Government Pleader on behalf of the respondents to whom notice of the rule was ordered to be given.

(3.) On behalf of the petitioner learned Counsel put forward the argument that the order of the learned sub-divisional Officer of Arrah, dated the 18th May, 1949, under Section 5A of the Bihar Private Irrigation Works Act is ultra vires and without jurisdiction since the requirement of that Section has not been complied with. It was also submitted that subsequent proceedings initiated against the petitioner for the realisation of the cost of the repair work is also without jurisdiction and ultra vires. It was argued on behalf of the petitioner that the order of the Sub-divisional Officer of Afrah, dated the 18th May, 1949, is ultra vires since he has not given reasons for holding that the delay in the repair of the existing irrigation work which may be occasioned by proceedings commenced by a notice under Section 3 would lead or is likely to lead to consequences set out in the latter part of Sub-section (i) of Section 5A. In support of this argument learned Counsel relied upon a recent decision of the Supreme Court in Collector of Monghyr v. Keshav Prasad, AIR 1962 SC 1694 in which the question of interpretation of Section 5A came for consideration before the Supreme Court. In our opinion the present case does not come within the principle enunciated by the Supreme Court in AIR 1962 SC 1694, because the terms of the order of the Sub-divisional Officer under Section 5A which was the subject-matter of consideration in that case are markedly different from the terms of the order of the Sub-divisional Officer of Arrah, dated the 18th May, 1949, the validity of which is challenged before us in the present case. The order of the Sub-divisional Officer under Section 5A in the Supreme Court case reads as folllows :