Narayan Thatte & Ors. Vs. State of Maharashtra & Ors.  INSC 1458
(18 August 2009)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.
5614 OF 2009 (Arising out of SLP(C) No. 2703 of 2008) Vijay Narayan Thatte
& Ors. .... Appellants Versus State of Maharashtra & Ors. ....
Respondents O R D E R
Heard Shri Harish Salve and Shri Shyam Divan, learned senior
counsel for the appellants and learned Attorney General of India and Shri
Shekhar Naphade, learned learned senior counsel for the respondents.
This appeal has been filed against the impugned judgment and order
dated 21.01.2008 passed by a Division Bench of the High Court of Bombay whereby
the writ petition filed by the appellants herein has been rejected.
The facts in brief are that a Notification under Section 4 of the
Land Acquisition Act, 1894 (hereinafter for short 'the Act') was issued in
respect of the land in question on 29.8.2002. Thereafter a Notification under 2
Section 6 of the Act was issued on 18.6.2003. The said Notification under
Section 6 was challenged and the writ petition filed by the appellants was
allowed on 20.1.2004 and the Notification under Section 6 of the Act dated
18.06.2003 was quashed. Subsequently a second Notification under Section 6
dated 30.10.2006 was issued by the State Government.
The short question that arises for consideration is whether the
Notification under Section 6 dated 30.10.2006 is valid. In our opinion, the
said Notification was clearly barred by clause (ii) of the proviso to Section 6
of the Act which reads as under :- "[Provided that no declaration in
respect of any particular land covered by a notification under section 4,
sub-section (1),- (i) ........ ......... .......
published after the commencement of the Land Acquisition (Amendment) Act, 1984,
shall be made after the expiry of one year from the date of the publication of
It can be
seen from the aforesaid proviso to Section 6 that it is couched in negative
language. It is well settled that when a Statute is couched in negative
language it is ordinarily regarded as peremptory and mandatory in nature.
Principles of Statutory Interpretation by Justice G.P. Singh 11th Edition, 2008
pages 390 to 392]. As stated by Crawford "Prohibitive or negative words
can rarely, if ever, be directory. And this is so even though the statute
provides no penalty for disobedience." [See Crawford :
Construction P. 523; See also in this connection
In this connection we may also refer to the Mimansa Rules of
Interpretation, which were our traditional principles of interpretation for
over 2500 years, but which are unfortunately ignored in our Courts of law
It is deeply regrettable that in our Courts of law lawyers quote
Maxwell and Craies but nobody refers to the Mimansa Principles of Interpretation.
Most lawyers would not have even heard of their existence. Today our so-called
educated people are largely ignorant about the great intellectual achievements
of our ancestors and the intellectual treasury which they have bequeathed us.
The Mimansa Principles of Interpretation is part of that great intellectual
treasury, but it is distressing to note that apart from the reference to these
principles in the judgment 4 of Sir John Edge, the then Chief Justice of
Allahabad High Court in Beni Prasad vs. Hardai Bibi 1892 ILR 14 All 67 (FB), a
hundred years ago and in some judgments of one of us (M. Katju, J.) there has
been almost no utilization of these principles even in our own country. Most of
the Mimansa Principles are rational and scientific and can be utilized in the
legal field (see in this connection K.L. Sarkar's `Mimansa Rules of
Interpretation' which is a collection of Tagore Law Lectures delivered in 1905
and which contains the best exposition of these principles).
The Mimansa Principles of Interpretation, as laid down by Jaimini
in his sutras around 6th Century B.C. and as explained by Sabar, Kumarila
Bhatta, Prabhakar, Mandan Mishra, etc, were regularly used by our renowned
jurists like Vijnaneshwara (author of Mitakshara), Jimutvahana (author of
Dayabhaga), Nanda Pandit (author of Dattaka Mimansa), etc.
there was any conflict between two Smritis, e.g., Manusmriti and Yajnavalkya
Smriti, or ambiguity or absurdity in any Smriti these principles were utilized.
Thus, the Mimansa Principles were our traditional system of interpretation of
legal texts. Although originally they were created for interpreting religious
texts pertaining to the Yagya (sacrifice), gradually they came to be utilized
for 5 interpreting legal texts also (see in this connection P.V.
`History of the Dharmashastra', Vol.V, Pt.II, Ch.XXIX and Ch.XXX, pp.
1282-1351), and also for interpreting texts on philosophy, grammar, etc. i.e.
they became of universal application. Thus, Shankaracharya has used the Mimansa
adhikaranas in his bhashya on the Vedanta sutras.
While the first edition of Maxwell's book was published in 1875,
in India we have been doing interpretation for over 2500 years, as already
stated above. There were hundreds of books (all in Sanskrit) written on the
subject, though only a few dozen have survived the ravages of time, but even
these show how deep our ancestors went into the subject of interpretation.
To give an example the Mimansakas examine the subject of negative
Vidhis (negative injunctions such as the one in the proviso to Section 6) very
searchingly and exhaustively. First of all, they distinguish between what may
be called prohibitions against the whole world, and those against particular
persons only. This distinction resembles that between judgments or rights in
rem and judgments or rights in personam. The former prohibitions are called
Pratishedha and the latter Paryudasa. For example, the 6 prohibitory clause `Do
not eat fermented (stale) food (na kalanjam bhakshayet) is a Pratishedha; while
the prohibition `those who have taken the Prajapati vow must not see the rising
sun' is a Paryudasa. In the second place, Pratishedhas are divided practically
into two sub-clauses viz. those which prohibit a thing without any reference to
the manner in which it may be used, and those which prohibit it only as regards
a particular mode of using. For instance, `Do not eat fermented food' prohibits
the use of it under all circumstances, while `Do not use the Sorasi vessel at
dead of night' forbids the use of the vessel only at the dead of night.
Then Paryudasa is also of two kinds. In one case, it relates to a
person performing some special act which is not enjoined by a Vidhi, as in the
case of the Prajapati vow.
other, it relates to a person engaged in performing a Vidhi; as for instance,
when one is to do Shradh during the full moon by virtue of a Vidhi but not in
the night of the full moon. In this case, the prohibition of doing Shradh in
the night is a Paryudasa, which is the same as an exception or proviso as we
understand these terms. For, the clause `not in the night' is an exception to
the rule `Perform the Shradh during the full moon'. These are the four classes
of 7 negative clauses. The first class, of which the Kalanja (fermented food)
clause is an example, may well be called a condemnatory prohibition. The second
class consists also of absolute prohibitions of things under certain
circumstances, as in the case of the Sorasi vessel. The third class consists of
prohibitions in relation to persons in a given situation, as in the case of the
Prajapati vow. The fourth class restricts the scope of action of persons
engaged in fulfilling an injunction, as regards the time, place or manner of
carrying out the substantive element of the injunction.
Thus we see that in the Mimansa system as regards negative
injunctions (such as the one contained in the proviso to Section 6 of Land
Acquisition Act) there is a much deeper discussion on the subject than that
done by Western Jurists. The Western writers on the subject of interpretation
(like Maxwell, Craies, etc.) only say that ordinarily negative words are
mandatory, but there is no deeper discussion on the subject, no classification
of the kinds of negative injunctions and their effects.
In the Mimansa system illustrations of many principles of
interpretation are given in the form of maxims 8 (nyayas). The negative
injunction is illustrated by the Kalanja nyaya or Kalanja maxim.
The Kalanja maxim (na kalanjam bhakshayet) states that `a general
condemnatory text is to be understood not only as prohibiting an act, but also
the tendency, including the intention and attempt to do it.' It is thus
A plain reading of the proviso to Section 6 of the Land
Acquisition Act shows that it is a general prohibition against the whole world
and not against a particular person.
Kalanja maxim of the Mimansa system will in our opinion apply to the proviso to
Laughakshi Bhaskara, one of the great Mimansa writers, taking the
prohibitory text 'one is not to eat Kalanja or fermented/stale food' (na
kalanjam bhakshayet), explains the idiomatic force of the phrase (na
that the suffix 'yat' means 'shall', and that the negative particle 'not' is to
be taken as attached to the suffix 'yat' (shall), and not to the idea of
For if it
be taken as attached to the latter idea, then the sentence might mean 'you
shall eat but not Kalanja'. In this case strictly there would be no
prohibition. So he labours to demonstrate that the gist of the sentence is
'shall not' and therefore the object of it is to turn off from eating 9 Kalanja
(fermented/stale food). This may appear to be making a hair splitting
distinction, but it is of great importance from the Mimansa point of view
because it indicates the mandatory nature of the negative injunction
(nishedha). The explanation of a Nishedha Vidhi appears more clearly from
Jaimini's Sutras on the Kalanja maxim.
objector says :
In a case
of prohibition, mentally you entertain the idea of the action prohibited; for
you have to discriminate between the prohibited act and the negation of that
objector means to say 'what is the good of a prohibition when it invites the
imagination to gloat on the action prohibited'. The author answers :
act is enjoined by the Shastra, it is for the purpose of the good of a person;
if the good object be divorced from the meaning of the Shastra, then it becomes
a case of transgressing it.' The meaning of this is:
case of prohibition you must take it that not only is the particular external
act prohibited, but the very intention of it is also prohibited.' Roughly speaking,
the principle laid down is this :
case of prohibition one should abstain 10 from the very idea of the act
prohibited, and there ought to be no evasion of the Vidhi in any way.' Thus,
this class of Nishedha Vidhis is to be interpreted most comprehensively and as
In view of the above discussion, it is evident that the proviso to
Section 6 of the Land Acquisition Act is totally mandatory and bears no
In fact, a Constitution bench decision of this Court Others (2002)
3 SCC 533 is clearly in support of the submission of the learned counsel for
the appellants that the proviso to Section 6 is mandatory, and hence the
Notification under Section 6 dated 30.10.2006 is time barred. In our opinion,
when the language of the Statute is plain and clear then the literal rule of
interpretation has to be applied and there is ordinarily no scope for
consideration of equity, public interest or seeking the intention of the
legislature. It is only when the language of the Statute is not clear or
ambiguous or there is some conflict etc. or the plain language leads to some
absurdity that one can depart from the literal rule of interpretation.
A perusal of the proviso to Section 6 shows that the language of
the proviso is clear. Hence the literal rule of 11 interpretation must be
applied to it. When there is a conflict between the law and equity it is the
law which must prevail. As stated in the Latin Maxim 'Dura Lex Sed Lex' which
means "the law is hard but it is the law".
Learned Attorney General appearing for the respondents submitted
that the judgment of the High Court dated 20.1.2004 permitted the authorities
to issue a second Section 6 Notification even beyond the time provided by the
proviso to Section 6 of the Act. He has invited our intention to paragraphs 2
and 3 of the said judgment which reads:- "2. Having gone through the
record of the petition and the file which is made available to us by Mr. Patil,
with respect to the acquisition of lands of the Petitioners, we are of the view
that the Petitioners did not appear to have been afforded reasonable
opportunity as is required under Section 5A of the Land Acquisition Act, 1894.
No reasons are insisted upon injustification of this conclusion which we have
arrived at as declaration under Section 6 issued concerning the lands of the
Petitioner dated 29.8.2002 will have to be set aside and the same is hereby
quashed and set aside. The Petitioner need inspection of the record from the
office of the Land Acquisition Officer, Mr. Patil, A.G.P.
Assures that within one week from today, inspection will be offered to the
Tulzapurkar states that the Petitioner will file their objections within two
parties agree that hearing contemplated under Section 5A by the Special Land
Acquisition Officer should be completed within two months thereafter as far as
possible. Dr. Tulzapurkar makes a statement on instructions from the Petitioner
that the objections with respect to the period within which Section 6
notification has to be issued from the date of Section 4 notification, will not
be raised by the Petitioner if the Petitioners are finally aggrieved by the 5A
report and subsequent declaration under Section 6. Needless to say that the
Special Land Acquisition Officer should pass a reasoned Order when he considers
the objections from the Petitioners. The entire proceeding will be based on
Section 4 notice which has led to the present proceedings and that notice will
continue to govern the acquisition of these lands."
In our opinion, there can be no estoppel against a Statute. Since
the Statute is very clear, the period of limitation provided in Clause (ii) of
the proviso to Section 6 of the Act has to be followed, and concessions of the
counsel can have no effect. As already stated above, the 13 proviso is
mandatory in nature, and must operate with its 3SCC 470 (para 17).
Mr. Shekhar Naphade, learned senior counsel appearing for the
State of Maharashtra then submitted that the judgment dated 20.1.2004 in the
earlier writ petition No. 9248/2003 is res judicata and since the said judgment
was not challenged before this Court, it had become final.
submitted that in the aforesaid judgment it had been clearly stated by the
learned counsel for the petitioners on instructions from the petitioners that
the objection with respect to the limitation period within which the second
Section 6 Notification will be issued will not be raised by the petitioners if
the petitioners are finally aggrieved by the Section 5A report and subsequent
declaration under Section 6 of the Act. Accordingly, he submitted that now no
objection can be taken in the present proceedings urging the bar of limitation
provided in clause (ii) to the proviso to Section 6 of the Act.
In this connection, we wish to state that no statement or
concession of a learned counsel can override a mandatory statutory provision.
Moreover, the observations in para 3 of the judgment 14 dated
20.1.2004 have to be regarded as per incuriam. In this connection we may refer
to the decision of a three Judge Bench of this Court in the case of Babu Parasu
Kaikadi wherein in paras 15 to 17 it has been observed as under :- "15. In
Halsbury's Laws of Englad, 4th Edn., Vol.
26 it is
decision is given per incuriam when the Court has acted in ignorance of a
previous decision of its own or of a court of coordinate jurisdiction which
covered the case before it, in which case it must decide which case to follow;
or when it has acted in ignorance of a House of Lords decision, in which case
it must follow that decision; or when the decision is given in ignorance of the
terms of a statute or rule having statutory force."
State of U.P. V. Synthetics and Chemicals Ltd. This Court observed : (SCC pp.
162-63, para 40) "40. 'Incuria' literally means 'carelessness'.
practice per incuriam appears to mean per ignoratium. English courts have
developed this principle in relaxation of the rule of stare decisis. The
'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a
statute or other binding authority'. (Young v.
Aeroplane Co. Ltd.) Same has been 15 accepted, approved and adopted by this
Court while interpreting Article 141 of the Constitution which embodies the
doctrine of precedents as a matter of law."
Govt. of A.P. v. B. Satyanarayana Rao it has been held as follows :(SCC p. 264,
para 8) "The rule of per incuriam can be applied where a court omits to
consider a binding precedent of the same court or the superior court rendered
on the same issue or where a court omits to consider any statute while deciding
It may be
seen from the judgment dated 20.1.2004 of the High Court that in the aforesaid
judgment no specific reference has been made to the limitation period
prescribed in clause (ii) to proviso to Section 6 of the Act, though no doubt
Section 6 has been generally referred to. Hence, in our opinion, the
observations in paragraph 3 of the aforesaid judgment dated 20.1.2004 have to
be construed as per incuriam.
In view of the aforesaid discussion, we allow this appeal and set
aside the impugned judgment and order dated 21.01.2008. However, it is open to
the respondent-State of Maharashtra to issue a fresh Notification under Section
4 of the Act and take proceedings in accordance with law thereafter.
allowed. No order as to the costs.
.....................J. (MARKANDEY KATJU)
.....................J. (ASOK KUMAR GANGULY)