JUDGMENT B. D. Singh, J. This application by eleven petitioners under Articles 226 and 227 of the Constitution of India is directed against notice dated 10th of September, 1972 (Annexure 1) issued by Nahar Anchal Adhikari (respondent no. 3) and also against notice dated 2nd of August 1970 (annexure 3) issued by the Deputy Collector, Revenue Division (respondent no. 2) fixing Rs. 8/- per Bigha as water rate for irrigating land on the basis of annexure 3, whereas the demand on that basis was made by the notice contained in Annexure 1 against the petitioners who are tenants of Village Barahat in the district of Monghyr. 2. In order to appreciate the points involved in this application it will be necessary to state briefly the facts as stated by the petitioners in their application. The petitioners and other tenants of the said village owned and possessed a large number of lands. Since the construction of Balliah Nala sometime before the year 1880, their lands were being irrigated from the said Nala and its tributories. As early as from the time of Raja of Kharagpur Sairabi (irrigation) of the lands of the village Barahat was being done from the aforesaid Nala. Thereafter the Raja of Banaili became the landlord of the said village and the repairs and construction of the dams for the purpose of irrigation of the lands' used to be done by him. The petitioners and their ancestors and other tenants of the village had been paying rent to the Raja of Banaili which included payment for the benefit accruing to the tenants from the supply of water through the said Nala. In the year 1908 record of irrigational rights was published under section 103 A (2) of the Bengal Tenancy Amendment Act, 1878 which mentioned that the practice of Sairabi through the said Nala was coming into existence from the time of Raja of Kharagpur. The Raja of Banaili was responsible for maintenance and repairs of the dams, the tenants were entitled for irrigational rights and the Banaili Raj was responsible for making arrangements for Sairabi. The enhanced lent was realised from the tenants on account of the Sairabi through the said Na1a, i. e. for irrigational facilities given to the tenants and had also mentioned that enhanced rent would be realised only so long as the landlord maintained the irrigational facilities. The enhanced lent was realised from the tenants on account of the Sairabi through the said Na1a, i. e. for irrigational facilities given to the tenants and had also mentioned that enhanced rent would be realised only so long as the landlord maintained the irrigational facilities. An extract copy of the said record of rights is marked as Annexure 2 to the application. In paragraph 6 of the application the petitioners stated that accordingly the petitioners, their ancestors and other tenants of the village had been paying enhanced rent including water rate to Raja of Banaili before vesting of the Raj to the State Government in the year 1955, and thereafter the enhanced rent was being paid to the State of Bihar. In other part of the application, petitioners stated that the State of Bihar through a Special Officer cum Deputy Secretary, Irrigation Department (respondent no. 1) in exercise of the powers under section 25A of the Bihar Irrigation and Drainage Works Act, 1947 fixed rate for supply of water from the said Nala and on the basis of which respondent No.2, the Sub-Divisional Officer, Water Ways issued a notice in general dated 2nd of August 1970 ( Annexure 3) fixing water rate @ Rs. 8/- per Bigha for irrigation through the said Nala. In pursuance of the said notice, respondent no. 3 issued the other impugned notice dated 10th of September, 1972 (Annexure 1) to the petitioners and the other tenants of the village for payment of irrigational dues amounting to Rs. 951.95 P. for the year 1970-71. The petitioners submitted that the Balliah Nahar was a fardapasi scheme constructed by the then landlord and did not come within the definition of Public Irrigation Works as laid down in the Public Irrigation and Drainage Works Act, 1947. The petitioners stated that as required under section 3 (1) of the Act, and rules 3 (4) of the Bihar Public Irrigation Rules 1947 there was no publication in the Bihar Gazette in the prescribed manner describing the proposed work indicating the situation, the area of the lands likely to be benefited or adversely affected by the proposed work, nor in fact any work was done on behalf of respondent no. 1. 3. On behalf of respondent nos. 1. 3. On behalf of respondent nos. 1 to 4 a counter affidavit was served on the petitioners, but the same could not be filed in this Court by the respondents till yesterday, when the case was concluded and it was put up today for judgment. Mr. Kameshwari Nandan Singh, learned counsel appearing on behalf of respondents today has fi1ed the copy of the said counter affidavit. It is stated by the counsel for the respondents that one copy of the counter affidavit was in fact filed earlier as it would be evident from the order sheet dated 22.1.1975 which runs as :- "As prayed for time till Monday, the 27th January, 1975 is granted to file a receipt showing service of a copy of the counter affidavit (flag 39) on the other side, failing which tl1e counter affidavit will be ignored." The receipt as required in the said order could not be filed within time therefore, the counter affidavit was ignored. However, no useful purpose would have been served by the counter affidavit on behalf of the respondents even if it was not ignored as we find that the case made out by the petitioners in their application is covered by an unreported judgment dated 21st April, 1969 of this Court in Shamsher Jang Bahadur Singh v. The State of Bihar 1. In that case also it may be noticed that their Lord ships were dealing with the provision contained under sections 25-A and 3 of the Bihar Public Irrigation and Drainage Works Act, 1947 as amended by the Bihar Act, XIII of 1966, and the rules made there under. Their Lordships observed in paragraph 4 the relevant portion of which reads thus: "A perusal of the aforesaid sections of the Act, leave no room for doubt that the provisions of section 3 of the Act, are mandatory and unless those provisions are followed nothing can be realised from any person under sections 23, 24, 25 and 25-A of the Act. Non following of the procedure laid down in Section 3 deprives the person whose interests are adversely affected of the right of raising an objection to the proposed work. Non following of the procedure laid down in Section 3 deprives the person whose interests are adversely affected of the right of raising an objection to the proposed work. Such a person who is deprived of the opportunity to raise objection to the proposed work by not following the procedure laid down in section 3 cannot be compelled to make any payment under sections 23, 24, 25 and 25A of the Act." In view of the above observation in the said judgment, the contention of the learned counsel for the petitioners in the instant case is well founded. It may be observed that in the instant case the petitioners have stated that the provision contained under section 3 of the Act, was not complied with and there was no publication as required. 4. In the result, the application is allowed and as prayed by the petitioners, we quash only the notice dated the 13th of September, 1972 (Annexure 1) demanding the water rate from the petitioners. It is also made clear that the respondents are directed not to interfere with the right of the petitioners of obtaining water supply through the said Nala. On the facts and in the circumstances of the case, there will be no order as to costs. B. P. Sinha, J. -I agree. Application allowed.