George Vs. Special Tahsildar & Ors.  INSC 417 (25 May 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2255 OF
2006 May George .... Appellant Versus Special Tahsildar & Ors. ....
appeal has been filed against the judgment and order dated 13.9.2004 passed by
the High Court of Madras dismissing the Writ Appeal No.1692 of 1997 by which
the Court has affirmed the judgment and order of the Learned Single Judge dated
4.12.1997 in Writ Petition No.14319 of 1986 wherein the appellant had
challenged the Award made under section 11 of the Land Acquisition Act, 1894
(hereinafter called the Act) on the ground that he had been served with the
notice under section 9(3) of the Act.
and circumstances giving rise to this case are that Notification under Section
4 of the Act was issued on 7.1.1976 covering the area to the extent of 30.80
acres being part of different survey numbers and belonging to large number of
persons in Seevaram Village, Saidapet Taluk, Chingleput District of Tamil Nadu
for planned development of Electrical/Electronics Industrial Estate including
appellant's land measuring 33 cents therein in Survey No. 36/1A/1. Considering
grave urgency, filing of objections under Section 5A of the Act were dispensed
with and provisions of Section 17 of the Act were resorted to. Declaration
under Section 6 of the Act was made on 1.10.1976 and Award under Section 11 was
made on 16.11.1979 in respect of entire land covered by the said Notification
Appellant claimed that she had purchased the said land on 27.9.1961 and
mutation had taken place, thus her name stood recorded in the revenue record.
Appellant's grievance has been that she had never been aware of the acquisition
proceedings and she was not served with notice under section 9(3) of the Act.
She was never dispossessed from the said part of the land. She was granted 2
temporary licence for establishing Small Scale Industries on 24.11.1984 and a
permanent certificate for the said purpose on 31.1.1986.
got the information first time that a part of her land had been acquired only
on receiving the notice dated 8.12.1986 issued by Respondent-Department to the
effect that she was in illegal possession and occupation of the said part of
the land and she was directed to demolish the structure put up by her.
Appellant, after collecting the required documents, approached the High Court
by filing the Writ Petition No.14319/86 challenging the Award dated 16.11.1979
and other subsequent proceedings. The Ld.
Judge dismissed the petition vide judgment and order dated 4.12.1997.
aggrieved, appellant preferred the Writ Appeal No.1692 of 1997 which has also
been dismissed vide impugned Judgment.
the Court has given liberty to the appellant to move an application for making
reference under section 18 of the Act within a period of two weeks from the
date of receipt of the order and further directed the Land Acquisition
Collector to make a reference, if such 3 an application is filed within a
period of four weeks thereafter, and the Court further directed the Tribunal to
decide the reference within a period of three months from the date of its
receipt. Hence, this appeal.
Shekhar Naphade, Ld. Senior Counsel appearing for the appellant has raised
large number of issues and made an attempt to challenge the entire acquisition
proceedings though the limited prayer of quashing the Award was made before the
High Court. Shri Naphade has submitted that the provisions of Section 9 are
mandatory in nature and non-compliance thereof would vitiate the Award and all
other consequential proceedings. Appellant had never been aware of issuance of
Section 4 Notification or Section 6 Declaration or Award made thereafter. No
notice had ever been served upon her in respect of acquisition proceedings.
Therefore, the appeal deserves to be allowed.
contra, Shri R. Venkataramani, Ld. Senior Counsel for the respondents has
submitted that the Notification under Section 4 and Declaration under Section 6
of the Act had been given due publicity as per the requirement of law. Section
9(3) notice had been affixed 4 on the land as the appellant was not available.
Even otherwise, the provisions of Section 9(3) are not mandatory and therefore,
would not vitiate the Award or any other subsequent proceedings. More so, the
High Court had given liberty to the appellant to make a reference under Section
18 thus, appellant cannot raise the grievance at all.
under Section 18 of the Act would be time barred and the High Court had no
competence to enhance the period of limitation.
appeal is devoid of any merit and hence, liable to be dismissed.
have considered the rival submissions made by learned counsel appearing for the
parties and perused the record.
measuring 30.80 acres stood notified and acquired. The land consisted of large
survey numbers and belonged to a large number of persons. It is not the case of
the appellant that Notification under Section 4 and Declaration under Section 6
were not published or given publicity as mandatorily required under the law.
Once, Award was made and possession had been taken, land stood vested in the
State free from all encumbrances, it cannot be divested even if some
irregularity is found in the Award. As huge area of land had been acquired for
planned development of industrial town, the land of the appellant cannot be
exempted on any ground whatsoever. More 5 so, appellant's land was of
negligible area in comparison of the total land acquired and therefore, at the
behest of only one person, the acquisition proceedings cannot be disturbed.
Admittedly, acquisition proceedings/Award have been challenged at a belated
stage after a decade of taking possession of the land in dispute. In the facts
and circumstances of this case, it is difficult to presume that appellant had
no knowledge of the acquisition proceedings. While dealing with a similar case,
this Court in Swaran as under:
.........the only ground taken in the writ petition has been that substance of
the notification under Section 4 and declaration under Section 6 of Act 1894
had been published in the newspapers having no wide circulation. Even if, the
submission made by the petitioners is accepted, it cannot be presumed that they
could not be aware of acquisition proceedings for the reason that very huge
chunk of land belonging to large number of tenure holders had been notified for
acquisition. Therefore, it should have been a talk of the town. Thus, it cannot
be presumed that petitioners could not have knowledge of the acquisition
Lata (supra), this Court has held that acquisition proceedings cannot be
challenged at a belated stage.
only question remains for our consideration is as to whether the provisions of
Section 9(3) are mandatory in nature and non-compliance thereof, would vitiate
the Award and subsequent proceedings under the Act. Section 4 Notification
manifests the tentative opinion of the Authority to acquire the land. However,
Section 6 Declaration is a conclusive proof thereof. The Land Acquisition
Collector acts as Representative of the State, while holding proceedings under
the Act, he conducts the proceedings on behalf of the State. Therefore, he
determines the pre-existing right which is recognised by the Collector and
guided by the findings arrived in determining the objections etc. and he
quantifies the amount of compensation to be placed as an offer on behalf of the
appropriate government to the person interested. It is for the tenure
holder/person interested to accept it or not. In case, it is not acceptable to
him, person interested has a right to ask the Collector to make a reference to
Section 9(3) of the Act reads as under :- "The Collector shall also serve
notice to the same effect on the occupier (if any) of such land and on all such
persons known or believed to be interested therein, or to be entitled to act
for persons so interested, as reside or have agents authorized to 7 receive
service on their behalf, within the revenue district in which the land is
of the Act provides for an opportunity to the "person- interested" to
file a claim petition with documentary evidence for determining the market
value of the land and in case a person does not file a claim under Section 9
even after receiving the notice, he still has a right to make an application
for making a reference under Section 18 of the Act. Therefore, scheme of the
Act is such that it does not cause any prejudicial consequence in case the
notice under Section 9(3) is not served upon the person interested.
determining whether a provision is mandatory or directory, in addition to the
language used therein, the Court has to examine the context in which the
provision is used and the purpose it seeks to achieve. It may also be necessary
to find out the intent of the legislature for enacting it and the serious and
general inconveniences or injustice to persons relating thereto from its
application. The provision is mandatory if it is passed for the purpose of
enabling the doing of something and prescribes the formalities for doing
181, this Court observed that law which creates public duties 8 is directory
but if it confers private rights it is mandatory. Relevant passage from this
judgment is quoted below:- "It is well settled that generally speaking the
provisions of the statute creating public duties are directory and those
conferring private rights are imperative. When the provision 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
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
Upadhya AIR 1961 SC 751, decided the issue observing :- "For ascertaining
the real intention of the Legislature, the Court may consider, inter alia, the
nature and the design of the 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 circumstance, namely, that the statute provides for a contingency of the
non-compliance with the provisions, the fact that the non-compliance with the
provisions is or is not visited by some penalty, the serious or trivial consequences
that flow there from, and, above all, whether the object of the legislation
will be defeated or furthered."
2190, this Court held that as to whether a provision is mandatory or directory,
would, in the ultimate analysis, depend upon the 9 intent of the law-maker and
that has to be gathered not only from the phraseology of the provision but also
by considering its nature, its design and the consequence which would follow
from construing it in one way or the other.
held that the difference between a mandatory and directory rule is that the
former requires strict observance while in the case of latter, substantial
compliance of the rule may be enough and where the statute provides that
failure to make observance of a particular rule would lead to a specific
consequence, the provision has to be construed as mandatory.
Similar view has been reiterated by this Court in Balwant Singh Ors., AIR 2004
AIR 1989 SC 1160, this Court considered the provisions of the Haryana (Control
of Rent & Eviction) Rules, 1976, which provided for mentioning the amount
of arrears of rent in the application and held the 10 provision to be directory
though the word "shall" has been used in the statutory provision for
the reason that non-compliance of the rule, i.e.
of the quantum of arrears of rent did involve no invalidating consequence and
also did not visit any penalty.
(2000) 7 SCC 679, this Court considered the provisions of the Delhi Municipal
Corporation Act, 1957, particularly those dealing with transfer of immovable
property owned by the Municipal Corporation.
considering the scheme of the Act for the purpose of transferring the property
belonging to the Corporation, the Court held that the Commissioner could
alienate the property only on obtaining the prior sanction of the Corporation
and this condition was held to be mandatory for the reason that the effect of
non-observance of the statutory prescription would vitiate the transfer though
no specific power had been conferred upon the Corporation to transfer the
Court has observed as under:- "The use of the word `shall' is ordinarily
mandatory but it is sometimes not so interpreted if the scope of the enactment,
on consequences to flow from such construction would not so demand. Normally,
the word `shall' prima facie ought to be considered mandatory but it is the
function of the Court to ascertain the real intention of the legislature by a
careful examination of the whole scope of the statute, the purpose it 11 seeks
to serve and the consequences that would flow from the construction to be
placed thereon. The word `shall', therefore, ought to be construed not
according to the language with which it is clothed but in the context in which
it is used and the purpose it seeks to serve. The meaning has to be described
to the word `shall; as mandatory or as directory accordingly. Equally, it is
settled law that when a statute is passed for the purpose of enabling the doing
of something and prescribes the formalities which are to be attended for the
purpose, those prescribed formalities which are essential to the validity of
such thing, would be mandatory. However, if by holding them to be mandatory,
serious general inconvenience is caused to innocent persons or general public,
without very much furthering the object of the Act, the same would be construed
SCC 714, this Court while dealing with a similar issue held as under :
expression "may" used in the opening words of Section 5 is not
directory as has been sought to be argued, but mandatory and non-fulfillment
thereof would not permit a marriage under the Act between two Hindus. Section 7
of the 1955 Act is to be read along with Section 5 in that a Hindu Marriage, as
understood under Section 5, could be solemnised according to the ceremonies
law on this issue can be summarised to the effect that in order to declare a
provision mandatory, the test to be applied is as to whether non-compliance of
the provision could render entire proceedings invalid or not. Whether the
provision is mandatory or directory, depends upon the intent of Legislature and
not upon the 12 language for which the intent is clothed. The issue is to be
examined having regard to the context, subject matter and object of the
statutory provisions in question. The Court may find out as what would be the
consequence which would flow from construing it in one way or the other and as
to whether the Statute provides for a contingency of the non-compliance of the
provisions and as to whether the non-compliance is visited by small penalty or
serious consequence would flow there from and as to whether a particular
interpretation would defeat or frustrate the legislation and if the provision
is mandatory, the act done in breach thereof will be invalid.
instant case is required to be examined in the light of the aforesaid settled
failure of issuance of notice under section 9(3) would not adversely affect the
subsequent proceedings including the Award and title of the government in the
acquired land. So far as the person interested is concerned, he is entitled
only to receive the compensation and therefore, there may be a large number of
disputes regarding the apportionment of the compensation. In such an
eventuality, he may approach the Collector to make a reference to the Court
under section 30 of the Act.
has held that if a "person interested" is aggrieved by the fact that
some other person has withdrawn the compensation of his land, he may resort to
the procedure prescribed under the Act or agitate the dispute in suit for
making the recovery of the Award amount from such person.
fact, the land vest in the State free from all encumbrances when possession is
taken under section 16 of the Act. Once land is vested in the State, it cannot
be divested even if there has been some irregularity in the acquisition
proceedings. In spite of the fact that Section 9 Notice had not been served upon
the person- interested, he could still claim the compensation and ask for
making the reference under section 18 of the Act. There is nothing in the Act
to show that non-compliance thereof will be fatal or visit any penalty.
view taken by us hereinabove stands fortified by large number of judgments of
this Court wherein it has been held that if there is an irregularity in service
of notice under sections 9 and 10, it could be a curable irregularity and on
account thereof, Award under Mahalakshmi Ammal & Ors. (1996) 7 SCC 269; and
Nasik 14 Municipal Corporation v. Harbanslal Laikwant Rajpal and Ors. (1997) 4
that as it may, the Writ Court rejected the contentions raised by the appellant
after being fully satisfied that the notice under section 9(3) was affixed on
the part of the land in dispute as the appellant was not available; appellant
was not the resident of the area; and if instead of Smt. in the
notice/documents, she had been shown as "Thiru", it would be immaterial
so far as the merit of the case was concerned. The Court was fully satisfied
that notice had been affixed on the land, satisfying the requirement of law and
the Award had been made within limitation. Though appellant was aware of the
proceedings conveniently, chose to remain silent and made use of the notice,
asking her removal from the unauthorised occupation as the basis of challenging
the Award and land acquisition proceedings after inordinate delay of 10 years
and vesting of land in the State itself.
findings have been affirmed by the Appellate Court.
case the High Court has considered the matter in detail and recorded the
findings on factual question, this Court may not examine (2009) 10 SCC 689].
also fail to understand that in case the High Court has granted the relief to
the appellant to make the application for making a reference under Section 18
of the Act and further directions have been issued to the Collector to make the
reference and further to the Tribunal to decide the same within the stipulated
period, instead of approaching this Court in appeal, the appellant ought to
have pursued that remedy.
have been made on behalf of the respondents that as the Court lacks competence
to extend the period of limitation, direction issued by the High Court giving
liberty to the appellant herein to make an application for making reference
under Section 18 is without jurisdiction. Such a submission cannot be examined
for the simple reason that the respondents-authorities have chosen not to
challenge the impugned Judgment. Thus, we are not in a position to examine the
correctness of that submission or making any 16 observation regarding the law
of limitation for the purpose of making reference. This question is left open.
the facts and circumstances of the case, the appeal fails and is, accordingly,
.........................................J. (Dr. B.S. CHAUHAN)