Shri
Mohan Singh & Ors Vs. International Airport Authority of India & Ors [1996]
INSC 1422 (7 November
1996)
K. Ramaswamy,
G.B. Pattanaik K. Ramaswamy, J.
ACT:
HEAD NOTE:
Leave
granted.
The
International Airport Authority of India (for short, 'IAAI') had requisitioned
the Lt. Governor, Delhi and the Government of India to
acquire 713 bighas, 2 biswas of land for rehabilitation of 1,000 families
displaced by acquisition of land for Indira Gandhi International Airport.
The
Lt. Governor, exercising the power under Section 17(1) dispensed with the
enquiry under Section 5-A and directed under Section 17(4) to take over
possession. The notification under Section 4(1) of the Land Acquisition Act,
1894 (for short, the 'Act') was published in tow newspapers on January 3, 1987. The notice of substance of such
notification was given at convenient places in the locality.
The
declaration under Section 6(1) was published on December 24, 1986 and notice of substance thereof was given in the locality
thereafter. The possession of the land was taken over on January 29, 1987. The awards also were made by the
Collector under Section 11 on December 23, 1987.
It
would appear that, admittedly, a batch of writ petitions was filed in the High
Court impugning the notification under Section 4(1) and the declaration under
Section 6(1) and the exercise of the power under Section 17(4). The whole batch
of cases was dismissed and became final. These two Civil Writ Petition Nos. 133
and 2440 of 1987 were segregated due to amendment of their pleading wherein the
appellants had pleaded that the notification under Section 4(1) and the
declaration under Section 6(1) were actually published on January 28, 1987 and
January 29, 1987 respectively. Therefore, it was contended before the learned
single Judge that in either event, notification under Section 4(1) was
published in the newspapers on January 3,1987.
While the Government exercised the power under Section 17(4) before publication
of the notification under Section 4(1), as contemplated in the manner
prescribed under Section 4(1), the learned single Judge accepted the contention
and held that the exercise of the power by the Government dispensing with the
enquiry under Section 5A and publication of the declaration under Section 6 was
illegal.
Accordingly,
she quashed the declaration under Section 6 and gave liberty to the Lt.
Governor to have the declaration published afresh in accordance with law. On
appeal, the Division Bench, in the impugned judgment in LPA No. 53/94 and
batch, dated February
28, 1996, reversed the
judgment of the single Judge dated May 20, 1994. Thus, these appeals by special
leave.
Shri Shanti
Bhushan, learned senior counsel for the appellants, contended that the exercise
of the power under Section 17(4) invoking urgency clause under Section 17(1) is
conditioned upon the publication of the notification under Section 4(1).
Thereafter, the Government has the power to invoke Section 17(4). Section 4(1)
contemplate three mandatory conditions to be complied with, i.e.
(1) publication
of the notification under Section 4(1) in the official Gazette;
(2) publication
of the notification in two daily newspapers having circulation in that locality
of which at least one shall be in the regional language; and
(3) the
Collector shall cause public notice of the substance of such notification to be
given at convenient places in the said notification to be given at convenient
places in the said locality.
The
last of the dates of such publication and the giving of such public notice has
reference to the date of the publication of the notification. Unless all the
three steps are complied with and after compliance of last of it or any one of
them which will be the last of it, the Act gives power to the appropriate
Government to exercise the power under Section 17(1) and empowers thereafter to
dispense with the enquiry under Section 5A and declaration under Section 6(1)
may be made in respect of that land at any time "after the publication of
the notification under Section 4(1)". In support thereof, he placed strong
reliance on State of U.P. & Ors. vs. Radhey Shyam Nigam & Ors. etc.
[(1989) 1 SCR 92]. He also contended that the publication of the three steps
required to be taken under Section 4(1) is mandatory. There is a distinction
between making a declaration and publication thereof in the newspapers and in
the locality. Making the declaration is a condition precedent for exercise of
the power under Section 17(4). The said making should be only after the
publication of the notification under Section 4(1) as contemplated in sub-
section (1) of Section 4. In support thereof, he relied upon the judgments in Khadim
Hussain vs. State of U.P. & Ors. [(1976) 3 SCR 1] and Krishi Utpadan Samiti
& Anr. vs. Makrand Singh & Ors. [(1995) 2 SCC 497].
Shri
P.A. Chowdhary, learned senior counsel for the Union of India, has contended
that in interpreting the provisions of Sections 4(1), 6 and 17, the purpose
behind each of the three sections should be kept in view. Though the languages
in Section 4(1) read with Section 17(4) is capable of more than one
interpretation, as is sought to be pressed for acceptance by Shri Shanti Bhushan
, the Court is required to consider what purpose each Section seeks to serve.
The effect of interpretation on the public purpose and the resultant
consequence are required to be kept in view in giving interpretation to the
respective provisions.
According
to the learned counsel, the purpose of Section 4(1) is to intimate to the owner
that
(1) the
land is needed or is likely to be needed for a public purpose;
(2) it
is a notice to the public that the land is encumbered for public purpose; and
(3) the
officers are authorised to enter upon the land to take measurements thereof
etc. to find out whether it is suitable for public purpose.
Therefore,
the requirement of the publication of the notification in the Gazette, in the
newspapers and giving of the notice of substance thereof at the convenient
place in the locality is mandatory. The purpose of Section 6 is to give
conclusiveness to the public purpose envisaged in Section 4(1). While the
procedural steps of publication in the newspapers and notice of substance
thereof in the locality under Section 6(2) are only ministerial acts, the last
of which is intended as "hereinafter", namely, computation of
limitation of two years to make the award thereafter under Section 11 and also
computation of the limitation under Section 11A. The word
"hereinafter" in Section 4(1) is also for the purpose of computation
of the limitation of one year for publication of the declaration under Section
6(1).
Section
17 gives power to the appropriate Government to dispense with the enquiry under
Section 5-A which exercise depends upon the nature of the urgency. In cases of
urgency, Section 17(4) gives power to the appropriate Government to dispense
with enquiry under Section 5A, make and thereafter publish the declaration
under Section 6(1) in the Gazette.
The
possession would be taken after the expiry of 15 days from the date on which
notice under Section 9 was published.
Sub-section
(2) of Section 17 dispenses with the limitation on taking possession without
awaiting the expiry of 15 days from the date of issue of Section 9(1) notice
and immediately the appropriate Government may take possession of the land,
when it is emergently needed. The scheme, thus, would indicate that
interpretation of the provisions is required to be put up in such a way that
each of the above objectives are achieved. In support thereof, he relies upon
The State of U.P. & Ors. vs. Babu Ram Upadhya [(1961) 2 SCR 679].
Shri
S.K. Sindu, learned senior counsel for IAAI, contended that preceding the
Amendment Act 68 of 1984, the State had power to have the notification under
Section 4(1) and the declaration under Section 6 simultaneously published in
the Gazette to take possession, when enquiry under Section 5A was dispensed
with. After the Amendment, the notification under Section 4(1) should be
published in the Gazette and the declaration under Section 6(1) should be
published thereafter within a gap of one day. Then, the exercise of the power
under Section 17(1) or 2 becomes valid. In this case, the said procedure was
adopted. Even if the notification, or date of the printing which is found
different from the date of printing is taken into account, they were published
on December 23 and December
24, 1986 respectively
and again on January 28 and January 29, 1987
respectively. In either event, the declaration under Section 6(1) is valid in
law. It is not necessary that the procedure of compliance of three conditions
required under Section 4(1) should be completed before exercising the power
under Section 17(4) read with Section 17(1); there is power to issue
declaration under Section 6(1). In support thereof, he relies upon Lt. Governor
of Himachal Pradesh & Anr. vs. Sri Avinash Sharma [(1970) 2 SCR 149]. The
Government having a already published the declaration under Section 6 and taken
possession of the land on January 29, 1987,
there was no necessity for the Government to make any further declaration under
Section 6(1).
Mrs.
Pinky Anand, learned counsel for the acquiring authority, contended that the
purpose of Section 6 is different from the purpose of Section 4. Publication is
required to be completed within one year from the date of the notification
published under Section 4(1) and the compliance of the three steps, the last of
which provides the limitation. This Court in State of Haryana & Anr. vs. Raghubir
Dayal [(1995) 1 SCC 133] had held that the compliance of three steps required
under Section 4(1) and of publication of the declaration in the Gazette is
mandatory.
This
Court further held that the publication in the locality and newspapers was
directory. Thus, this Court had, by interpretation, facilitated achievement of
the objects of the Act. Similar interpretation also requires to be given to
Section 17(4). What requires to be published is the notification under Section
4(1) in the Gazette. The later two steps required under Section 4(1) may be
taken later, but to enable the appropriate Government, taking possession under
Section 17(1) or 17(2) read with the Section 17(4) of the Act after publishing
the declaration under Section 6(1), is necessary.
Shri Shanti
Bhushan raised another contention that the Lt. Governor, after the judgment of
the learned single Judge, superseded the declaration published on December 24, 1986, by causing publication of the
declaration on May 19,
1995. Therefore, in
the eye of law, there is no declaration published on December 24, 1986. The Division Bench, therefore, was
not right to uphold such declaration which is or non est. The contention was
refuted by the learned counsel for the respondents.
In
view of the diverse contentions, the first question that arises for
consideration is : what is the meaning of the phrase "a declaration may be
made under Section 6 in respect of the land at any time after the date of the
publication of the notification under section 4, sub-section (1)" used in
Section 17 (4) of the Act and when is the power under Section 17(4) to be
exercised ? It is seen and well settled legal position that the appropriate
Government exercises its power of eminent domain to acquire the land in any
locality when it is needed or is likely to be needed for any public purpose or
for a company, in the later event in Chapter VII. The notification for the said
purpose shall be published in the official Gazette. After the Amendment Act 68
of 1984, the same shall be published in two daily newspapers having circulation
in that locality of which at least one shall be in the regional language. The
Collector shall cause notice of the substance of such notification to be given
at convenient places in the said locality, the last of the date of such
publication "being hereinafter" referred to as the date of the
publication of the notification. It would, thus, be seen that
(1) the
notification under Section 4(1) shall be published, in the official Gazette;
(2) the
same should be published also in two daily newspapers having circulation in
that locality at least one of which would be in the regional language; and
(3) the
Collector shall cause public notice of the substance of such notification to be
given at convenient places in the said locality. It is well settled legal
position that the publication of the notification under Section 4(1) in the
Gazette is mandatory.
Similarly,
preceding the Amendment Act 68 of 1984, publication of the substance of such
notification in the convenient locality was also held mandatory. After the
Amendment Act, in Raghubir Dayal's case (supra), this Court had held that the
requirement of compliance of three steps envisaged under Section 4(1) is
mandatory. The expressions "hereinafter" and "last of the dates
of the publication" shall be for the purpose of computation of limitation
of one year under Section 6 and to determine compensation under Section 23(1).
As
regards publication of the declaration under Section 6(2) and the meaning of
the word "hereinafter", it is referred to for the purpose of
computation of the limitation prescribed under Section 11-A of the Act. In Makrand
Singh's case (supra), this Court had held that the purpose of the word
"hereinafter" is to compute the limitation under Section 11-A. In Raghubir
Dayal's case (supra), it was also held that the publication of the declaration
in two newspapers and substance thereof at the convenient places in the
locality is directory. The word "hereinafter" used in Section 4(1)
is, therefore, also required to be understood in the same context. It seeks to
prescribe limitation under Section 6 for publication of the declaration under
Section 6(1) within one year from the date of the publication of the
notification under Section 4(1). The last of the dates was intended only for
the purpose of computation of limitation.
It is
seen that Section 17 envisages two situations, viz, where the appropriate
Government is of the opinion it is a case of urgency to take possession of the
land for public purpose, the appropriate Government, even before making an
award under Section 11, is empowered to direct the Collector to take possession
of the land, after the expiry of 15 days from the publication of notice under
Section 9(1). Such land shall, thereupon, vest absolutely in the Government
free from all encumbrances. Further urgency has been emphasised in sub-section
(2) of Section 17 and the embargo to await 15 days is also lifted in Section
17(2).
Sub-sections
(3), (3A) and (3B) are not relevant for the purpose of this case. Sub-section
(2) further enlarges the power of the Government after invoking urgency clause
and provides that if owing to any sudden change in the channel of any navigable
river or other unforseen emergency, it becomes necessary for any Railway
Administration to acquire the immediate possession of any land for the maintenance
of the traffic or for the purpose of making thereon a river- side or ghat
station, or of providing convenient connection with or access to any such
station etc. the Collector, immediately after the publication of the notice
under Section 9(1), without waiting the lapse of 15 days time, is empowered to
enter upon and take possession of such land.
Thereupon,
such land shall vest absolutely in the Government free from all encumbrances.
That would indicate the nature of the extreme urgency and they intend to avoid
public inconvenience in the service of the notice to the owner under Section
9(1) of the Act and to wait for 15 days. Sub- section (4) follows the heels of
publication in Gazette under Section 4(1), within a gap of one day, publication
of declaration under Section 6 and tracks on Section 17(1) or 17(2). In the
case of the exercise of the power under sub- section (1) or (2) the appropriate
Government is empowered to direct that the provisions of Section 5A shall not
apply and if it so directs "a declaration may be made under Section 6 in
respect of the land at any time after the date of publication of the
notification under Section 4, sub- section (1)".
It is
seen that Section 4(1) and Section 6(1) have expressly mentioned the phrase
"hereinafter", while similar language does not find place in Section
17(4). Equally Section 17(4) does not mention the last of the dates of the
publication, i.e., the three steps required under Section 4(1) or Section 6(2).
In other words, the object of Section 17 appears to be that when the Government
exercises the urgency power under Section 17(1) or emergency power under
Section 17(2), they form the opinion that the land is needed for public
purposes. If the possession of the land is needed urgently or immediately they
are required to have the notification under Section 4(1) published in the
official Gazette and within a gap of one day to make the declaration under
Section 6 and have the same published under Section 6(1). Thus, what is
mandatory is publication of the notification under Section 6(1) is mandatory.
Thereby, the public purpose becomes conclusive, as envisaged under sub- section
(3) of Section 6 and the Collector is empowered to take immediate possession of
the land for the said public purpose.
The
question is : whether it is mandatory in such a situation, i.e., after the
publication of the notification in the Gazette publication in two local
newspapers and giving of notice of the substance of the notification at
convenient places in the locality, to await the exercise of power under Section
17(4) ? After giving due and deep consideration to the respective contentions
raised by the learned counsel, we are of the considered view though the
compliance of these three steps required under Section 4(1) is mandatory for
the exercise of the power under Section 17(4), it is not necessary that all the
three steps should be completed before making the declaration under Section
6(1) and have it published for directing the Collector to take possession under
Section 17(1) or 17(2). What is needed is that there should be a gap of time of
at least a day between the publication of the notification under Section 4(1)
of the declaration under Section 6(1). Herein, we dispose of the controversy
and agree with Shri Shanti Bhushan that the date of the notification and
declaration published as mentioned in the Gazette is conclusive but not the
actual date of printing of the Gazette. This interpretation of ours would serve
the public purpose, namely, the official functions are duly discharged. When
the land is urgently needed under Section 17(1), notice under Section 9(1)
would be given to the owner steps would be taken to and resume its possession
after the expiry of 15 days. If it is needed emergently under Section 17(2),
even without waiting for 15 days on issue of notice under Section 9(1) to the
owner, the appropriate Government would direct the Collector to take possession
of the land immediately. If the publication in the newspapers and in the
locality is also insisted upon as preliminary to the exercise of power under
Section 17(4) which are mandatory requirements and until last of them occurs,
the immediate or urgent necessity to take possession of the land under Section
17(1) or 17(2) before making the award would be easily defeated by dereliction
of duty by the subordinate officers or by skillful manoeuvre. The appropriate
Government is required to take the decision for acquisition of the land and to
consider the urgency or emergency and to make the notification under Section 4(1)
and declaration under Section 6 and have them published in the Gazette that the
land acquired under Section 4(1) is needed for public purpose; they become
conclusive under Section 6; and to give direction to the Collector to take its
possession. The publication in the newspapers and giving of notice of the
substance of the notification at the convenient places in the locality are
required to be done by the Collector authorised by the Government under Section
7 and his subordinate staff. If dereliction of duty is given primary, delay
deflects public justice to meet urgent situation by the acts of subordinate
officers for any reason whatsoever.
Until
that is done and the last of the dates occurs, Government would be unable to
act swiftly for the public purpose to take immediate possession envisaged under
sub- section (1) or (2) of Section 17 and they would be easily defeated or
frustrated.
In Raghubir
Dayal's case (supra) this Court in paragraph 7 had held thus :
"Therefore,
the word "shall" in Section 4(1) should be construed to be mandatory
because the requirement of Section 4(1) of the publication of the notification
in the Gazette followed by their publication in the Gazette followed by their
publication in the newspapers perhaps in some cases may not meet the needed
purpose of notice to the owner or person claiming interest in the land proposed
to be acquired. For instance, proposed to be acquired.
For
instance, in rural areas most agriculturists may not read even the vernacular
newspapers. Their fields are their world and work therein is their breadwinner.
They would come to know only if the substance of the notification is published
(announced) in the village by beat of drum. Therefore, publication of Section
but it is not the requirement of the law that it be done simultaneously with
the publication in the Gazette or newspapers. Though there is a time gap of
more than six months between the date of the notification under Section 4(1) in
the State Gazette and the date of the publication of the substance of the
notification in the locality, the delay by itself does not render the
notification under Section 4(1) published in the State Gazette, invalid.
In
paragraph 8, it was held that the purpose of the declaration under Section 6 is
to render the land notified therein as that is needed for giving conclusiveness
to the public purpose. Though the language of Section 6(2) is pari materia with
Section 4(1), since the two purposes are different, it was held that the
publication of the declaration under Section 6 is mandatory; but publication of
notification in the newspapers and of notice of substance thereof in the
locality is held directory. The publication in the Gazette under Section 6(1)
accords the conclusiveness to the need of the public purpose. Section 4(1)
speaks of "needed or likely to be needed". The ministerial acts,
thereafter, would not render such publication invalid. In Makrand Singh's case
(supra) in paragraphs 4 and 5, the object of Sections 4(1), 6(1) and 6(2) is
conjointly considered and it was held that the word "hereinafter" was
intended for the purpose of computing the period of limitation provided in the
proviso to sub-section (1) of Section 6. As held earlier, the word
"hereinafter" in sub- section (1) of Section 4 is to compute the period
of limitation under Section 6. Equally, the purpose of sub- section (2) of
Section 6 is to compute the period of limitation provided in Section 11-A.
It is
true that in Radhay Shyam Nigam's case (supra), several notifications under
Section 4(1) and declaration under Section 6 simultaneously published had come
up for consideration before the Division Bench of the Allahabad High Court and
were upheld, but on appeal, this Court considered the effect of the
simultaneous publication after the Amendment Act 68/84. In one of the cases,
notification under Section 4(1) was of May 6, 1985 and declaration under Section 6 was
published on May 22,
1985. Power under
Section 17(1A) was exercised for taking possession immediately. The question arose
: whether such publication of the declaration was valid in law ? This Court had
held at page 106 that the words "after the publication of the
notification" under sub- section (4) of Section 17 read simpliciter,
clearly indicate that the declaration under Section 6 had to be made after the
publication of the notification, meaning thereby subsequent to the date of the
publication of the notification. The question at what gap of time declaration
can be published, did not arise for consideration in that case. It is seem that
in this case, the notification under Section 4(1) was published on December 23,
1986 and declaration under Section 6 was published on December 24, 1986, i.e.,
within gap of one day. Making of the declaration under Section 6 is not merely
signing by the officials; the official is empowered to sign at any time before
its actual publication. What is material is that the declaration under Section
6 should be published in the Gazette after the notification under Section 4(1)
was published, i.e., after a gap of at least one day. Therefore, declaration is
required to be published though signed earlier, after the publication of
notification under Section 4(1) in the Gazette. Though it was contended by the
learned counsel for the appellant in the High Court before the learned singly
Judge and Shri Sidhu trod on the same path and brought on record that the
actual Gazettes in respect of the notification under Section 4(1) and
declaration under Section 6 were printed on January 28 and January 29, 1987
respectively, what is crucial is not the actual date of printing, but the date
of the publication in the Gazette as appears from the Gazette. Shri Shanti Bhushan
has fairly contended that such publication is a relevant one. We agree with Shri
Shanti Bhushan in that behalf.
The
distinction of mandatory compliance or directory effect of the language depends
upon the language couched in the statute under consideration and its object,
purpose and effect. The distinction reflected in the use of the word
"shall" or "may" depends on conferment of power. In the
present context, "may" does not always mean may. May is a must for
enabling compliance of provision but there are cases in which, for various
reasons, as soon as a person who is within the statute is entrusted with power,
it becomes duty to exercise. Where the language of statute creates a duty, the
special remedy is prescribed for non-performance of the duty. In "Craies
on Statute Law" (7th Edn.), it is stated that the Court will, as a general
rule, presume that the appropriate remedy by common law or mandamus for action
was intended to apply. General rule of law is that where a general obligation
is created by statute and statutory remedy is provided for violation, statutory
remedy is provided for violation, statutory remedy is mandatory. The scope and
language of the statute and consideration of policy at times may, however,
create exception showing that legislature did not intend a remedy (generality)
to be exclusive. Words are the skin of the language. The language is the medium
of expressing the intention and the object that particular provision or the Act
seeks to achieve.
Therefore,
it is necessary to ascertain the intention. The word "shall" is not
always decisive. Regard must be had to the context, subject matter and object
of the statutory provision in question in determining whether the same is
mandatory or directory. No universal principle of law could be laid in that
behalf as to whether a particular provision or enactment shall be considered
mandatory or directory. It is the duty of the Court to try to get at the real
intention of the legislature by carefully analysing the whole scope of the
statute or section or a phrase under Consideration. As stated earlier, the
question as to whether the statute is mandatory or directory depends upon the
language in which the intent is couched. The meaning and purpose the Act seeks
to achieve. In "Suhtherland Statutory Construction" (3rd Edn.) Volume
1 at page 81 in paragraph 316, it is stated that although the problem of
mandatory and directory legislation is a hazard to all governmental activity,
it is peculiarly hazardous to administrative agencies because the validity of
their action depends upon exercise of authority in accordance with their
charter of existence the statute.
If the
directions of the statute are mandatory, then strict compliance with the
statutory terms is essential to the validity of administrative action. But if
the language of the statute is directory only, then variation from its
direction does not invalidate the administrative action.
Conversely,
if the statutory direction is discretionary only, it may not provide an
adequate standard for legislative action and the delegation. In "Crawford
on the Construction of Statutes" at page 516, it is stated that :
"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 ...." In "Maxwell on the
interpretation of Statutes", 10th Edition, at page 381, it is stated thus
:
"On
the other hand, where the prescriptions of a statute relate to the performance
of a public duty and where the invalidation of 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 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." The two quotations were
approved by this Court in Babu Ram Upadaya's case and law was down thus :
"When
a statute uses the word "shall", prima facie, it is mandatory, but
the Court may ascertain the real intention of the legislature by carefully
attending t the whole scope of the statute.
For
ascertaining the real intention of the Legislature the Court may consider,
inter alia, the nature and statute, and the consequences which would follow
from construing it the one way or the other, the impact of other provisions
whereby the necessity of complying with the provisions in question is avoided,
the circumstances, contingency of the non-compliance with the provisions, the
fact the non- compliance with the provisions is or is not visited by some
penalty, the serious or trivial consequences that flow therefrom, and, above
all, whether the object of the legislation will be defeated or furthered."
In K. Narasimhiah v. H.C. Singri Gowda & Ors. [(1965) 3 SCR 618] giving of
three days' notice to the councillor of a municipality in convening the no
confidence Motion under Section 27 [3] of the Mysore Town Municipalities Act,
1951 was held to be directory as providing shorter period of such meeting was
considered more important to make it convenient to the councillor to attend the
meeting of Motion of No Confidence. It was held that the object of giving of
notice was to make it possible for the councillors to so arrange their affairs
in the other business as to be able to attend to the meeting.
In The
Remington Rand of India Ltd. v. The Workmen [(1968) 1 SCR 154] the question was
: whether publication of the award beyond fixed time was invalid ? Considering
the provisions of Section 17(1) of the Industrial Disputes Act, 1947, this
Court had held that it was only directory and not mandatory. Holding it to be
directory would defeat the purpose of the Act.
In Hiralal
Agrawal etc. v. Rampadarath Singh & Ors. [(1969) 1 SCR 328] the right of reconveyance
under Section 16 of the Bihar Land Reforms Act, 1962 and giving of notice was
held to be directory as it would effectuate obtaining reconveyance by the
co-sharers under that Act.
In the
Municipal Corporation of Greater Bombay v. The B.E.S.T. Workers' Union [(1973)
3 SCR 285] six months' time under Section 78 (1) of the Bombay Industrial
Relations Act, 1946 for imposition of punishment was held to be directory.
In Raza
Buland Sugar Co. Ltd. vs. Municipal Board, Rampur [(1965) 1 SCR 970] the
question was whether the whole of Section 131(3) or the part of it requiring
publication of the requisition in the manner laid down in Section 94(3) of the
U.P. Municipalities Act, 1916, i.e., in the Hindu newspapers was merely
directory. It was held that considering the object of the provisions for
publication, i.e., to enable the public to be able to place the view point
before the Board, publication is mandatory but the manner of publication was
held to be directory. The same ratio would apply with equal force to the facts
of this case.
The
compliance of the requirements in the matter of filing nomination papers for
election to the Legislative Assembly or election petitions has consistently
been held to be mandatory. Since it is a right conferred under the statute, its
strict compliance enables the respondent to raise the required objections. In
regard to the nomination, strict compliance of the particulars in the
nomination papers was held to be mandatory in Virji Ram Sutaria vs. Nathalal Premji
Bhanvadia & Ors. [(1969) 2 SCR 627]; similarly, compliance of the
requirement of furnishing particulars in the election petitions was held to be
mandatory in Satya Narain vs. Dhuja Ram & Ors. [(1974) 3 SCR 20].
Thus,
this Court, keeping in view the objects of the Act, had considered whether the
language in a particular section, clause or sentence is directory or mandatory.
The word "shall", though prima facie gives impression of being
mandatory character, it requires to be considered in the light of the intention
of the legislature by carefully attending to the scope of the statute, its
nature ad design and the consequences that would flow from the construction
thereof one way or the other. In that behalf, the Court is required to keep in
view the impact on the profession, necessity of its compliance; whether the
statute, if it is avoided, provided for any contingency for non-compliance; if
the word "shall" is construed as having mandatory character, the
mischief that would ensue by such construction; whether the public convenience
would be subserved or public inconvenience or the general inconvenience that
may ensue if it is held mandatory and all other relevant circumstances are
required to be taken into consideration in construing whether the provision
would be mandatory or directly. If an object to the enactment is defeated by
holding the same directory, it should be construed as mandatory whereas if by
holding it mandatory serious general inconvenience will be created to innocent
persons of general public without much furthering the object of enactment, the
same should be construed as directory but all the same, it would not mean that
the language used would be ignored altogether. Effect must be given to all the
provisions harmoniously to suppress public mischief and to promote public
justice.
In the
light of the above law, we have no hesitation to hold that though compliance of
publication of the three steps required under Section 4(1) is mandatory while
exercising the power of eminent domain under Section 4(1), when the appropriate
Government exercises the power under sub-section(4) of Section 17 dispensing
with the enquiry under Section 5-A and directing the Collector to take
possession of the land before making the award when the lands are needed
urgently either under sub-section (1) or (2) thereof, it is not mandatory to
publish the notification under Section 4(1) in the newspapers and giving of
notice of the substance thereof in the locality; the last of the dates of
publication should not be the date for the purpose exercising the power under
Section 17(4). This interpretation of ours would subserve the public purpose
and suppresses mischief of non-compliance and seeks to elongate the public
purpose, namely, taking immediate possession of the land needed for the public
purpose, envisaged in the notification.
It is
true that in Khadim Hussain's case, a Bench of four Judges of this Court had
held that the declaration mentioned in Section 6(1) differs from the
notification under Section 4(1) and requires to be signed by a Secretary or
other officers duly authorised. The declaration is in the form of an order. The
notification when published is proof of existence of public purpose. In that
case, the question whether declaration under Section 6(1) requires to be
published after making declaration, did not come up for consideration. As held
by this Court in catena of decisions, publication of the declaration under
Section 6(1) is mandatory to give conclusiveness to the public purpose
envisaged in sub-section (3) of Section 6. The contention of Shri Sidhu Mrs.
Pinky that there is no necessity for fresh publication of the declaration under
Section 6, after possession was taken acceptance. The object of Section 4(1) is
to enable the Government to have the land tested whether it is needed or likely
is to be needed for a public purpose and is suitable; after its consideration
by the appropriate Government that the land is needed or is likely to be needed
for the public purpose, publication of declaration under Section 6(1) is
mandatory to give its conclusiveness to the public purpose published under
Section 4(1). Therefore, it is a mandatory requirement that the declaration
under Section 6(1) should be published.
The
question, therefore, is : whether after the publication of the declaration
under Section 6 after it was quashed by the learned single Judge, there is any
necessity for the Government to supersede the notification already published
under Section 6? It would appear that there was obvious incongruity. It is
indisputable that the learned single Judge had quashed Section 6 declaration
published on December
24, 1986.
Consequently, the question of supersession of the declaration already quashed
of suppression of the declaration already quashed is superfluous. It is settled
legal position that appeal is a continuation of the original proceedings.
Though the learned single Judge quashed Section 6 declaration, on the finding
by the Division Bench that the view taken by the learned single Judge is not
correct in law, the consequence would be that the act of the learned single
Judge quashing the declaration under Section 6 is vitiated by law. As a result,
by operation of the decision of the Division Bench, the declaration quashed by
the learned single Judge dated December 24, 1986
stood restored. As a result, the declaration under Section 6(1) published on May 19, 1995 is only superfluous and of no
consequence.
It is
true that after the possession of the land is taken either under Section 17(1),
17(2) or 16, the land stands vested in the State absolutely free from all
encumbrances. Subsequently, the power of withdrawal under Section 48(1) would
no more be available. The ratio in Avinash Sharma's case (supra), relied on by Shri
Sidhu has no application to the facts of this case. Therein, the facts were
that after the possession was taken under Section 17(1) and vested in the
State, exercising the power under Section 17(1) and vested in the State,
exercising the power under Section 21 of the General Clause Act, the
declaration under Section 6(1) was withdrawn by the Government had that power ?
In that context, this Court had held that after the land vested in the State
free from all encumbrances under Section 17(1), the power of issuing of a
notification and the power to withdraw such notification envisaged under
Section 21 of the General Clause Act was not applicable since the land already
stood vested and the Government was denuded of its power under the Act.
It
would, therefore, be seen that the declaration under Section 6 published on May 19, 1995 does not have any effect on the
declaration published under Section 6(1) on December 24, 1986 which has the legal effect of getting restored. The
Division Bench of the High Court, therefore, was right in setting aside the
judgment of the learned single Judge and dismissing the writ petition. It is
already seen that the lands stood vested in the State on January 29, 1987 and
after the lands including the land belonging to the appellants in an extent of
81.9 bighas out of total extent of 713.2 bighas, were taken possession, they
stood vested in the State free from all encumbrances. The award also became
final. Under these circumstances, the learned single Judge was wholly wrong in
the judgment under appeal before the Division Bench; the reasoning given and
consequences reached by the Division Bench are entirely correct in law
warranting no interference.
The
appeals are accordingly dismissed, but, in the circumstances, without costs.
Back
Pages: 1 2