Chandgi Ram vs Chief Canal Officer, Haryana

K.S. Kumaran, J.—The important questions of law that arise for consideration in this appeal are whether subsection (2) of Section 18 of the Haryana Canal Drainage Act, 1974 (hereinafter referred to as `the Act''), which requires that the Divisional Canal Officer, shall approve, modify or reject the scheme within 30 days of the time for the receipt of the objections and suggestions is mandatory or directory ? and whether his failure to do so would render his decision void ?

The appellants and other shareholders irrigate their lands from outlet RD7500/R Sherpur distributary. This and another outlet at RD8620/R were temporary and were experimented to find out as to which is better for proper irrigation. Therefore, a scheme was prepared by the Division Canal Officer concerned (hereinafter referred to as D.C.O.) under Section 17 of the Act. The same was published in terms of Section 18(1) of the Act inviting objections from the shareholders of outlets RD 7500R and 8620RSherpur distributary. The D.C.O. heard the objections of the shareholders on 23.10.1981, examined the plan, inspected the spot on 28.7.1982 and they passed order Annexure P1 dated 25.8.1982. He sanctioned the outlet RD7500 R and rejected the demand of certain shareholders for transfer of area from outlet RD7500/R to outlet RD8620/R. Aggrieved by this order the 5th respondent Partap Singh filed an appeal before the Superintending Canal Officer (hereinafter referred to as S.C.O.) who rejected the appeal on 24.11.1982 (Annexure P2). The 4th respondentSis Ram, filed an appeal against the order of the S.C.O. before the Chief Canal Officer, who allowed the appeal vide AnnexureP3 and held that the outlet be fixed at RD8620/R.

The appellants, along with one Har Lal, filed Civil Writ Petition No. 2277 of 1983 for quashing the orders Annexures P1 to P3. Among other pleas the vital plea taken by the appellants (as petitioners) was that the D.C.O. had to decide the case within 30 days from the time for receiving the objections and suggestions, whereas in this case though the objections were heard by him on 28.10.1981, the case was not decided within 30 days thereafter, and the DCO had no jurisdiction to decide the case after 30 days unless the said period was extended by the S.C.O. for good and sufficient reasons, in view of the provisions contained in Section 18(2) of the Act. According to appellants in this case the period of 30 days was not extended by the S.C.O. and therefore, the order passed by the D.C.O. after the expiry of the above said 30 days is illegal and without jurisdiction. They, therefore, contended that the scheme prepared under Section 17 of the Act had to be dropped, and as such the Chief Canal Officer, has no jurisdiction to shift the outlet. The appellants contended that the provisions in Section 18(2) fixing a period of 30 days from the date of receipt of objections and suggestions, within which the case should be decided is mandatory, and the noncompliance of the said provision will render the scheme itself void.

The respondents on the other hand contended that the provision contained in section 18(2) is only directory and the noncompliance thereof will not render the scheme void.

The learned Single Judge, after examining the provisions of Section 18 of the Act, and taking note of the distinction between the language employed in subsection (1) and subsection (2) of Section 18 as also the well known canons of interpretation of statutes, and decisions of Courts came to the following conclusion :

"Applying the above principle to Section 18 of the Act, if the impugned orders are held void, it will necessarily result in waste of considerable public time and result in great inconvenience and setback to irrigation. On the other hand, if the provisions regarding time limit for processing and approving a scheme under Section 18 of the Act are held to be directory, it will result in no prejudice to any person or class of persons and would be in the interest of maintenance of an efficient system of irrigation. No public policy appears to be involved beyond the administrative convenience that the scheme prepared and dealt with in part III of the Act should be finalised without any undue delay. The case of publication of a scheme, as distinguished from time frame within which this must be done, stands on a different footing. The publication of the scheme affords an opportunity to the shareholders concerned to come forward and submit their objections or suggestions so that a final decision is taken which is in overall interest of better irrigation. The publication of the scheme thus goes to the root of the matter and had been rightly held to be a mandatory requirement of section 18 of the Act in Bir Singh v. State of Punjab, 1974 P.L.J. 162, Bhan Singh and others v. The Superintending Canal Officer, 1969 P.L.J. 401 and Bhagwana v. Divisional Canal Officer, 1969 P.L.J. 443, etc.

For the reasons discussed above, I have no doubt that the provision fixing time limit in Section 18 of the Act is only directory and its noncompliance does not vitiate the order on that ground. What is required is a substantial compliance of the provisions in so far as time limit is concerned. The facts of the three petitions clearly show that the provisions were substantially complied with."

After having held so, the learned Single Judge dismissed the writ petition, aggrieved by which the petitioners have preferred this Letters Patent Appeal.

This case was listed on 7.1.1998 and since none had appeared for the parties, the same was adjourned for arguments for 8.1.1998, on which date none had appeared for the appellants, and therefore, we heard the counsel for the respondentState and perused the records.

Before we proceed to consider the question whether the time frame prescribed under Section 18(2) of the Act is mandatory or directory, it is necessary to refer to the provisions of Section 18 of the Act, the relevant portion of which reads as under :

"18. Publication of Scheme (1) Every scheme shall, as soon as may be after its preparation, be published in such form and manner as may be prescribed for inviting objections and suggestions in respect thereof within twentyone days of its publication.

(2) After considering such objections and suggestions, if any, the Divisional Canal Officer shall approve, modify or reject the scheme within thirty days of the time for the receipt of such objections and suggestions, unless this period is extended by the Superintending Canal Officer for good and sufficient reasons."

The proviso is not relevant for our purpose and, therefore, we have omitted the same. As prescribed by subsection 2 of Section 18 the D.C.O. has to take decision about the scheme within 30 days of the time for the receipt of objections and suggestions unless the period is extended by the S.C.O. In the present case, the D.C.O. had heard the objections of the shareholders on 28.10.1981 itself but passed the order sanctioning the outlet at RD7500/R on 25.8.1982. The S.C.O. had not extended time for deciding the matter. The appellants had contended before the learned single Judge that in view of the use of the word "shall" in subsection (2) this requirement should be held to be mandatory and since the D.C.O. had not passed the orders within 30 days, the scheme made by him has to be dropped and the further orders passed by the Superintending Canal Officer and the Chief Canal Officer will also be without jurisdiction. This contention put forward by the appellants before the learned Single Judge was rejected by him and we are in respectful agreement with the same.

The Hon''ble Supreme Court in Dattatraya v. State of Bombay, AIR 1952 SC 181 had occasion to consider the question whether the omission to make and authenticate an executive decision in the form mentioned in Article 166(1) of the Constitution made the decision itself illegal. It was contended that this provision is only directory and not mandatory. The Hon''ble Supreme Court agreeing with this contention held as follows :

"It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."

A Full Bench of this Court in Karam Singh v. State of Punjab, 1975(2) S.L.R. 189 held as follows :

"The provisions of a statute creating public duties are directory and those conferring Private rights are imperative. The use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word `may'' has been used, the statute is only permissible or directory in the sense that noncompliance with those provisions will not render the proceeding invalid. The distinction between a mandatory provision of law and that which is merely directory is this that in a mandatory provisions there is an implied prohibition to do the act in any other manner while in a directory provision substantial compliance is considered sufficient. In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself, the neglect to perform it is fatal. But, in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty."

The noted author Crawford in his Text on "The Construction of Statutes" observed as follows (Article 266) :

"As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order and convenience, and neither public nor private rights will be injured or impaired thereby. If the statute is negative in form, or if nothing is stated regarding the consequences or effect of noncompliance, the indication is all the stronger that it should not be considered mandatory."

The learned author has also referred to the following comments of Maxwell on Interpretation of Statutes, which are relevant :

"But 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 prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty, would result if such requirements were essential and imperative.

On the other hand, where the prescriptions relate to the performance of a public duty; and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them."

In Calcutta National Bank v. Rangaroon Tea Co., AIR 1967 Calcutta 294 reference was made to an earlier decision of the same High Court in Arunima Das v. Secy. Board of Secondary Education, West Bengal, AIR 1957 Cal 182, wherein it was observed that the question as to whether a statute is mandatory or directory, depended upon the intent of the legislature and not upon the language in which the intent was clothed. The meaning and intention of the legislature must govern and these were to be ascertained not only from the phraseology of the provisions but also by considering the nature, and the design of the Statute and the consequences which would follow from construing it one way or the other.

After referring to Arunima Das''s case referred to above the Calcutta High Court held that the court in each case must look into the nature and design of the statute and the consequences flowing from violation to determine whether it is mandatory or directory and that not only the language used but the object and purpose of the legislation has to be determined.

A Full Bench of the Andhra Pradesh High Court in Satyanarayana v. Venkata, AIR 1957 Andhra Pradesh 172 held that where no public policy is involved the provisions of the statute should be held to be directory only and not mandatory, and that it is sufficient if a directory enactment is obeyed or fulfilled substantially.

The Hon''ble Supreme Court in Banwarilal v. State of Bihar, AIR 1961 SC 849 considered the question whether the provision in subsection (3) of Section 59 of the Mines Act 1952 that before the draft of any regulation is published it shall be referred to every Mining Board is mandatory or directory and held as follows :

"But in each case the Court has to decide the legislative intent........To decide this we have 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 the contravention of the same."

The Hon''ble Supreme Court in State of U.P. v. Manbodhan Lal, AIR 1957 Supreme Court 912 had occasion to consider the provisions of Subclause 3(c) of Article 320 of the Constitution and held as follows :

"Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid."

In doing so the Hon''ble Supreme Court also referred to the following quotation by the learned author Crawford on "The Construction of Statutes" (Article 261) :

"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other."

Of course this Court in Bir Singh v. State of Punjab, 1974 PLJ 162 considered the provisions contained in Sections 30(A) and 30(B) of the Northern India Canal and Drainage Act, 1873. Subsection (2) of Section 30(A) of the Act provided that every scheme prepared under subsection (1) shall amongst other matters set out, the estimated cost thereof, the alignment of the proposed watercourse, the site of the outlet, the particulars of the shareholders to be benefited and the other persons who may be affected thereby and a sketch plan of the area proposed to be covered by the scheme. Section 30(B) provided that every scheme shall, as soon as may be after its preparation, be published in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions with respect thereof within twentyone days of the publication. It was urged by the petitioner therein that the site plan showing the particulars of the land to be shifted, and the names of the persons who were to be affected by the scheme were not published along with the scheme and contended that the publication of the scheme was not proper. The Court referred to the decision in Bhag Singh and others v. Superintending Canal Officer, Sirhind Canal Circle, Ludhiana and others, 1969 PLJ 401 wherein it was observed that "in order to bind all the right holders, it was necessary that the scheme as a whole should have been published so that all the right holders could be deemed to have notice of the same". The Court also referred to the decision in Prithi and others v. The Superintending Canal Officer and another, 1970 P.L.J. 556 wherein it has been observed that "Before a Divisional Canal Officer can exercise the right to approve a scheme envisaged in section 30A, he has to go through the procedure specified in that and the following section with regard to its contents, publication and also to the inviting, hearing and consideration of objections etc. Compliance with the procedure is a sine qua non for the approval of the scheme and unless that procedure is observed, the Divisional Canal Officer has no jurisdiction to make a direction with regard to the matters covered by Clauses (a) to (d) of subsection (1) of Section 30A."

After refering to these decisions this Court held that in case the Divisional Canal Officer has not properly followed the procedure in transferring the land of a rightholder from on outlet to another the order is without jurisdiction and can be challenged in the proceeding under Article 226 of the Constitution of India. This Court also held that in such a case it did not matter that if the objection was not taken before the Tribunals below. But this decision will not help the appellants because a substantial right is conferred on the shareholders to make their objections to the scheme which would be possible only if the publication contained all the relevant particulars as provided for by the statute. If the officer, who was enjoined with the duty to decide the matter had not adopted this procedure of publishing the entire scheme as a whole including the map etc., then it affects the rights of the shareholders and deprives them of the valuable opportunity of putting forward their case in a proper manner. Therefore, these provisions have been held to be mandatory, and since the procedure prescribed by Section 30A and Section 30B have not been followed the order was held to be without jurisdiction. Whereas, in the case on our hand the duty cast upon the Divisional Canal Officer to decide the case within 30 days fixed for the reception of objections and suggestions will not cause any serious injury or prejudice to the shareholders, if he did not decide it within the said time frame.

The principles laid down by various authorities cited above clearly support the view that the time frame provided for in subsection (2) of Section 18 of the Act is not mandatory. Under this section a duty is cast upon the D.C.O. to decide about the scheme within 30 days of the time for the receipt of objections and suggestions. Even if the D.C.O. does not perform this public duty cast upon him within the time frame, it should not be held that the scheme framed by him is null and void, because this will cause serious general inconvenience and injustice to persons who have no control over the D.C.O. who was entrusted with this public duty. Further it would not promote the object of the legislature also. Because this time frame has been fixed so that the order settling the scheme could be passed early. Simply because the order has not been passed within 30 days as provided for under Section 18(2) of the Act, if this Court were to hold that the order is null and void and direct the D.C.O. to consider the case once again and to pass a fresh order, then the very object of the legislation in fixing a time frame is defeated, as this will cause further delay. Further the mere fact that the D.C.O. had not adhered to the time frame will not cause any serious injury or prejudice and no substantial rights of the parties are likely to be affected thereby. Therefore, in such circumstances the effort of the Court should be to incline towards validity of such orders though it is said that there is failure on the part of the D.C.O. to perform his duties within the time frame. It will be in the interest of general public to hold that such a provision as contained in Section 18(2) of the Act is directory and the failure by the DCO to adhere to the time frame does not affect the validity of the scheme settled by him.

On an analysis of the principles laid down by the various Courts and the Hon''ble Supreme Court, we are of the view that the failure on the part of the D.C.O. to decide about the scheme within 30 days of the time for the receipt of the objections and suggestions will not render the scheme itself null, void or invalid, and that the time frame fixed by subsection (2) of Section 18 of the Act is only directory.

But, at the same time we should not be understood to hold that the time frame fixed by subsection (2) of Section 18 has no meaning at all or that there is no need to adhere to the time frame. This provision has been made, keeping in view the best interest of the shareholders and therefore, we impress upon the authorities concerned the need to settle the scheme within a reasonable time, and what is reasonable time will depend upon the facts and circumstance of each case.

So far as the merits of the case are concerned, the Chief Canal Officer, who is an expert and competent to decide such matters has come to a particular conclusion as to which of the outlets would be in the best interest of irrigation. The learned Single Judge has also, in the exercise of his jurisdiction under Articles 226 of the Constitution of India, not deemed it fit to interfere with the view of the Chief Canal Officer. Therefore, sitting on appeal in the exercise of our jurisdiction in Letters Patent, we do not find any error of law or jurisdiction to interfere in this matter.

Though in the writ petition, the writ petitioner namely; the appellants urged that Partap Singh, who had filed the appeal before the S.C.O. was not a shareholder, on a perusal of Annexure P1, we find that he is a shareholder. Similarly, the allegation of the writ petitioner that Sis Ram did not file any appeal before the S.C.O. against the order of the D.C.O. and, therefore, the appeal filed by Sis Ram against the order of the S.C.O. before the Chief Canal Officer is not competent, cannot also be accepted, because the respondents have taken the plea in their written statements that he was a party to the appeal before the S.C.O. Further, Partap and 13 others were also appellants before the Chief Canal Officer along with Sis Ram. The plea of the writ petitioner that all the shareholders were not impleaded in the appeal by Sis Ram does not appear to be correct. A perusal of the order passed by the learned S.C.O. (annexure P3) shows that not only the first petitioner in the writ petition but also 9 other shareholders were represented by counsel. Therefore, these pleas raised in the writ petition also cannot be accepted.

Taking into consideration all these aspects, we are of the view that the appeal has to fail and accordingly the same is dismissed.