PETITIONER: KHUB CHAND AND ORS. Vs. RESPONDENT: STATE OF RAJASTHAN & ORS. DATE OF JUDGMENT: 22/08/1966 BENCH: RAO, K. SUBBA (CJ) BENCH: RAO, K. SUBBA (CJ) SHELAT, J.M. CITATION: 1967 AIR 1074 1967 SCR (1) 120 CITATOR INFO : F 1973 SC 552 (2) R 1976 SC 263 (13) R 1984 SC1721 (1,5) F 1985 SC1622 (13) RF 1991 SC 711 (13) ACT: Rajasthan Land Acquisition Act (24 of 1953), ss. 4 and 5(2)- Giving of public notice of substance of Notification under s. 4 at convenient places in locality-If mandatory. HEADNOTE: In 1957, the Government of Rajasthan published a notification under s. 4 of the Rajasthan Land Acquisition Act; 1953, to the effect that the appellants' land was needed for a public purpose. The public notice of the substance of the notification to be given by the Collector at convenient places in the locality, as required by s. 4(1), was however not given. In January 1958 and February 1959, notifications under as. 5(2) and 6 respectively of the Act, were published in the local Gazette. Thereafter, the officer originally appointed by the Government to perform the functions of a Collector under the Act continued the acquisition proceedings in spite of a Government notification of June 1959, whereby another officer was appointed to perform those functions. The appellants filed objections questioning his jurisdiction and stopped taking part in the proceedings. On 11th December, 1959, after making ex parte enquiries, the officer made an award, and on 27th June 1960, he made :a second award superseding the first. The appellants came to know of the awards in September 1960. In October 1960, they filed a petition under Art. 226, challenging the validity of the proceedings on the ground, inter alia, that the requirement of the giving of the public notice under s. 4(1) at convenient places of the locality was, mandatory, and as it was not complied with, the entire acquisition proceedings were void. The High Court agreed with the contention but dismissed the petition on the ground that the objection was taken at a belated stage. HELD: (i) The provision in ss. 4(1), requiring public notice was mandatory and non-compliance with it was fatal to the entire acquisition proceedings. [125 H] Section 4(1) says that the Collector shall cause public notice of the ,,substance of such notification to be given at convenient places in the said locality. If the word "shall" is, construed as "may" the object of the sub-section will be defeated. The object is to give intimation to the person whose land is sought to be acquired, of the intention of the officer to enter the land. Under s. 4(2), such a notice is a necessary condition for the exercise of the power of entry and non-compliance with the condition makes the entry of the officer or his servants unlawful. [125 F-H] The fact that the owner may have notice of the particulars of the intended acquisition under s. 5(2) does not serve the purpose of s. 4, for a notice under s. 5(2) is given after the officer enters the land and submits the particulars mentioned in s. 4. [125 C] Babu Barkya Thakir v. The State of Bombay, [1961] 1 S.C.R. 128,explained. (ii) The High Court was in error in holding, on the facts, that there was inordinate delay in invoking its jurisdiction. [127 D] 121 JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 85 of 1964,
Appeal from the judgment and order dated April 17, 1963 of
the Rajasthan High Court in D. B. Civil Writ Petition No.
410 of 1960.
Sarjoo Prasad and A. G. Ratnaparkhi, for the appellant.
G. C. Kasliwal, Advocate-General for the State of Rajasthan.
B. P. Maheshwari and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
Subba Rao, C.J. This appeal by certificate is directed
against the judgment of the High Court of Rajasthan at
Jodhpur, dismissing the petition filed by the appellants
under Art. 226 of the Constitution.
The relevant facts may be briefly stated. By a registered
sale deed dated December 10, 1958, the appellants purchased
the land comprised in Khasra Nos. 158 and 182/2 situated in
village Sangaria in Tehsil Hanumangarh in the State of
Rajasthan. On February 14, 1957, the Government of
Rajasthan published a notification No. 7 (104) Rev/(A) dated
October 19, 1956, under s. 4 of the Rajasthan Land
Acquisition Act, 1953, hereinafter called the Act, to the
effect that the said land, along with others, was needed or
likely to be needed for the public purpose of laying
township and orchards. On January 9, 1958, another
notification was published in the Rajasthan Gazette under s.
5(2) of the Act. On February 3, 1959, a further
notification under S. 6 of the Act was published in the
Rajasthan Gazette in respect of the said land. The
Government of Rajasthan, in exercise of the powers under s.
3(c) of the Act, issued a notification dated September 10,
1955, appointing the Deputy Director of Colonisation,
Suratgarh Division with headquarters at Hanumangarh, to
perform the functions of a Collector under the Act within
the local limits of his jurisdiction. On July 30, 1959, the
said Government published a notification dated June 4, 1959,
,in modification of the previous notification, appointing
the Deputy Director of Colonisation, Rajasthan Canal
Project, then having headquarters at Bikaner, to perform the
said functions within the districts of Ganganagar, Bikaner
and Jaisalmer. Notwithstanding the said notification, the
Deputy Director of Colonisation, Suratgarh exercising the
functions under the Act, continued the acquisition
proceedings. The appellants filed objections questioning
the jurisdiction of the said Deputy Director to proceed with
the enquiry and thereafter they did not take part in the
proceedings. On December II, 1959, after making ex parte
enquiries, the said Deputy Director made an award which for
convenience of reference may be
4 Sup CI/66–9
122
referred to as Award No. 1. In the said award, the
appellant’s land was valued at Rs. 614 per bigha. But, on
June 27, 1960 the said Deputy Collector made another award,
hereinafter referred to as Award No. 2, setting aside Award
No. 1 and giving compensations to the appellants’ land at
the rate of Rs. 442 instead of at Rs. 614 per bigha. The
appellants filed the writ petition in the High Court of
Rajasthan challenging the validity of the said proceedings.
The contentions raised by the parties before the High Court
need not be particularised as they are apparent from the
following findings given by it: (1) The provision of s. 4 in
the Act, namely, that a public notice of the substance of
the notification should be given at convenient places in the
locality of the land in dispute, is mandatory and the Land
Acquisition Officer did not comply with the same; but as the
objection raised by the appellants in that regard was
belated it could not be allowed to be taken at that stage.
(2) The direction given by the Rajasthan Government to the
Deputy Director of Colonisation, Suratgarh Division, to
exercise the powers of the Land Acquisition Officer under
the Act was not withdrawn, either expressly or by necessary
implication, by the notification dated June 4, 1959, by
which the Deputy Director of Colonisation, Rajasthan Canal
Project, was authorised to perform the functions of
Collector within the three districts mentioned therein. (3)
Award No. 1 dated December 11, 1959, which related to Khasra
No. 158 had become final and it could not be altered by
Award No. 2 in regard to the said Khasra number. In effect
and substance, the High Court held that both the awards were
valid but Award No. 2 should be confined only to Khasra No.
182/2. In the result, the petition was dismissed. Hence
the appeal.
The learned counsel for the appellants raised before us the
following three points: (1) The entire acquisition
proceedings were void inasmuch as the mandatory provision of
s. 4 of the Act was not complied with. (2) After the Deputy
Director of Colonisation, Rajasthan Canal Project, had been
authorised to perform the functions of a Collector, in the
districts of Ganganagar, Bikaner and Jaisalmer, the Deputy
Director of Colonisation, Suratgarh Division, with
headquarters at Hanumangarh, who was appointed earlier to
perform the functions of a Collector under the Act within
the local limits of the said jurisdiction, had become
functus officio in regard to the instant acquisition and
therefore, the proceedings conducted by him thereafter were
null and void. (3) Under the Land Acquisition Act, the
Collector thereunder could make only one award in respect of
a notification and, therefore, when he made the first award
in respect of the notification he became functus officio and
therefore, the second award made by him in respect of the
same notification was void.
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The learned Advocate-General of Rajasthan questioned the
correctness of every one of the said contentions. We shall
advert to his contentions in the relevant contexts.
Sections 4, 5, and 5A of the Act read:
“Section 4. Publication of preliminary
notification and powers of officers
thereupon.-
(1) Whenever it appears to the Government that
land in any locality is needed or is likely to
be needed for any public purpose, a
notification to that effect shall be published
in the Rajasthan Gazette, and the Collector
shall cause public notice of the substance of
such notification to be given at convenient
places in the said locality.
(2) Thereupon it shall be lawful for any
officer, generally or specially authorised by
the Government in this behalf, and for his
servants and workmen,-
(a) to enter upon and survey and take levels
of any land in such locality;
(b) to dig or bore into the sub-soil;
(c) to do all other acts necessary to
ascertain whether the land is adapted for such
purpose;
(d) to set out the boundaries of the land
proposed to be taken and the intended line of
the work (if any) proposed to be made thereon;
(e) to mark such levels, boundaries and line
by placing marks and cutting trenches; and
where otherwise the survey cannot be completed
and the levels taken and the boundaries and
line marked, to cut down and clear away any
part of any standing crop, fence or jungle:
Section 5. Report by Collector.-(1) The Collector or a
Revenue Officer specially empowered by the Government in
this behalf shall forward to the Government with his remarks
a report on the result of the survey, if any, and other
operations described in and taken under sub-section (2) of
section 4.
(2) After considering the report, if any, submitted under
sub- section (1) or, if no such report has been received, at
any time after the issue of the notification under sub-
section (1) of section 4, the Government shall publish a
further notification in the Rajasthan Gazette, giving
sufficient description of the land already notified under
the said sub-section (1) of section 4 to enable it to be
identified and stating the purpose for which it is or is
likely to be needed,
124
its approximate area and situation and, where
a plan has been made of the land, the place
where such plan may be inspected, and the
Collector shall cause public notice to be
given of the substance of the said further
notification at convenient- places on or near
the land to be acquired.
Section 5A. Hearing of objections.-(1) Any
person interested in any land which has been
notified under section 5 as being needed or
likely to be needed for public purpose or for
a company may, within thirty days after the
issue of the notification, object to the
acquisition of the land or of any land in the
locality, as the case may be.”
The learned Advocate-General argued that a combined reading
of ss. 4, 5 and 5A indicates that the direction in the
second part of s. 4 that the Collector shall cause public
notice of the substance of the notification to be given at
convenient places in the said locality was only directory.
He pointed out that s. 4 contemplated only a notification in
general. terms and that under s. 5(2), after the Collector
ascertained the necessary particulars, the Government had to
issue a fresh notification giving sufficient description of
the land intended to be acquired along with a plan, if one
had been made, and also to cause a public notice to be given
of the substance of the said notification at convenient
places on or near the land to be acquired. As two notices
were contemplated by the Act one in general terms and
another with specifications-and as both the notices should
be published and their substance should be notified at
convenient places, the argument proceeded, that the
direction to cause a public notice of the substance of the
notification to be given at convenient places in the said
locality under s. 4 was only directory, for the party would
get under the later notification better particulars and thus
he would not in any way be prejudiced.
This argument was not accepted by the High Court, and, in
our view, rightly. The provisions of a statute conferring
power on the Government to compulsorily acquire lands shall
be strictly construed. Section 4 in clear terms says that
the Collector shalt cause public notice of the substance of
such notification to be given at convenient places in the
said locality. The provision is mandatory in terms.
Doubtless, under certain circumstances, the expression
“shall” is construed as “may”. The term “shalt” in its
ordinary significance is mandatory and the court shall
ordinarily give that interpretation to that term unless such
an interpretation leads to some absurd or inconvenient
consequence or be it variance with the intent of the
legislature, to be collected from other parts of the Act.
The construction of the said expression, depends on the
provisions of a particular Act, the setting in
125
which the expression appears, the object for which the
direction is given, the consequences that would flow from
the infringement of the direction and such other
considerations. The object underlying the said direction in
s. 4 is obvious. Under sub-s. (2) of s. 4 of the Act, after
such a notice was given, the officer authorised by the
Government in that behalf could enter the land and interfere
with the possession of the owner in the manner prescribed
thereunder. The Legislature thought that it was absolutely
necessary that before such officer can enter the land of
another, the owner thereof should have a clear notice of the
intended entry. The fact that the owner may have notice of
the particulars of the intended acquisition under s. 5(2)
does not serve the purpose of s. 4, for such a notice shall
be given after the appropriate officer or officers enter the
land and submit the particulars mentioned in s. 4. The
objects of the two sections are different : the object of
one section is to give intimation to the person whose land
is sought to be acquired, of the intention of the officer to
enter his land before he does so and that of the other is to
enable him to know the particulars of the land which is
sought to be acquired. In the Land Acquisition Act, 1894
(Central Act 1 of 1894) there is no section corresponding to
s. 5(2) of the Act. Indeed sub-s. (2) of s. 5 of -the Act
was omitted by Act 15 of 1960 and s. 5A was suitably amended
to bring the said provision in conformity with those of
Central Act 1 of 1894. Whatever may be said on the question
of construction after the said amendment-on which we do not
express any opinion-before the amendment, ss. 4 and 5(2)
were intended to serve different purposes.
Indeed, the wording of s. 4 (2) of the Act leads to the same
conclusion. It says, “thereupon it shall be lawful for any
officer, generally or specially authorised by the Government
in this behalf, and for his servants and workmen to enter
upon and survey and take levels of any land in such
locality……….. The expressions “thereupon” and “shall
be lawful” indicate that unless such a public notice is
given, the officer or his servants cannot ,enter the land.
It is a necessary condition for the exercise of the power of
entry. The non-compliance with the said condition makes the
entry of the officer or his servants unlawful. On the
express terms of sub-s. (2), the officer or his servants can
enter the land to be acquired only if that condition is
complied with. If it is not complied with, he or his
servants cannot exercise the power of entry under s. 4 (2),
with the result that if the expression ” shall” is construed
as “may”, the object of the sub-section itself will be
defeated. The statutory intention is, therefore clear,
namely, that the giving of public notice is mandatory. If
so, the notification issued under s. 4 without complying
with the said mandatory direction would be void and the land
acquisition proceedings taken pursuant thereto would be
equally void.
126
Reliance is placed by the learned Advocate-General on the
decision of this Court in Babu Barkya Thakur v. The State of
Bombay(1). There, the notification under s. 4 did not say
specifically that the land sought to be acquired was needed
for a public purpose, but it gave the necessary details in
regard to the purpose for which the land was sought to be
acquired. It was argued that the non-mention of the
expression “public purpose” invalidated. the notification.
Dealing with the argument, this Court observed:
What was a mere proposal under s. 4 becomes
the subject matter of a definite proceeding
for acquisitions under the Act. Hence, it is
not correct to say that any defect in the
notification under s. 4 is fatal to the vali-
dity of the proceedings, particularly when the
acquisition is for a Company and the purpose
has to be investigated under s. 5A or s. 40
necessarily after the notification under s. 4
of the Act.”
In that case a formal defect was sought to be relied upon to
invalidate the notice and this Court did not accept the
contention, But it cannot be an authority for the position
that, if a public notice of the notification was not given
as prescribed by s. 4, it can be ignored. That would be re-
writing the section.
The decision of this Court in Smt. Somavanti v, The State
of Punjab(2) is also beside the point. The argument
advanced therein was that the notification under s. 6 should
succeed the notification under s. 4 and that it could not be
legally published in the same issue of the Gazette. Dealing
with that argument, this Court observed:
“In the case before us the preliminary
declaration under s. 4 (1) was made on August
18, 1961, and a declaration as to the
satisfaction of the Government on August 19,
1961, though both of them were published in
the Gazette of August 25, 1961. The
preliminary declaration as well as the
subsequent declaration are both required by
law to be published in the official gazette.
But the law does not make the prior
publication of notification under sub-s. (1)
of s. 4 a condition precedent to the
publication of a notification under sub-s. (1)
of S. 6.”
On the said ground the contention was rejected. This
decision also has no bearing on the point raised before us
Indeed the following observation made by this Court in the
course
(1) (1961] 1 S.C.R. 128, 140.
(2) [1963] 2 S.C.R., 774,823, 822.
127
of the judgment, to some extent, goes against the contention
of the respondent:
“A notification under sub-s. (1) of s. 4 is a
condition precedent to the making of
notification under sub-s. (1) of s. 6.”
In the present case, the High Court, as we have expressed
earlier rightly held that the provision for public notice
was mandatory but disallowed the objection on the ground
that it was rather belated, We find it difficult to
appreciate the said reasoning. This is not a case where a
party, who submitted himself to the jurisdiction of a
tribunal, raised the plea of want of jurisdiction when the
decision went ‘against him; but this is a case where the
appellants questioned the jurisdiction of the tribunal from
the outset and refused to take part in the proceedings.
Though the notification under s. 4 was published in the
Rajasthan Gazette on February 14, 1957, Award No. I was made
on December 11, 1959 and Award No. 2, on June 27, 1960. The
appellants say that they came to know that the awards were
made only on September 15, 1960, and they filed the petition
on October 26, 1960. It ‘cannot, therefore, be said that
there was such an inordinate delay as to preclude the
appellants from invoking the jurisdiction of the High Court
under Art. 226 of the Constitution.
In this view, it is not necessary to express our opinion on
the other two questions raised by the learned counsel for
the appellants.
In the result, the appellants will be entitled to a writ of
prohibition restraining the respondents from giving effect
to the said two awards. The order of the High Court is set
aside and the writ petition filed by the appellant is
allowed with costs here and in the court below.
V.P.S. Appeal allowed.
128