PETITIONER: SHRI MOHAN SINGH & ORS ETC. Vs. RESPONDENT: INTERNATIONAL AIRPORT AUTHORITY OFINDIA & ORS. DATE OF JUDGMENT: 07/11/1996 BENCH: K. RAMASWAMY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
K. Ramaswamy, J.
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.