{"id":101146,"date":"1996-11-07T00:00:00","date_gmt":"1996-11-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shri-mohan-singh-ors-etc-vs-international-airport-authority-on-7-november-1996"},"modified":"2019-04-10T08:31:57","modified_gmt":"2019-04-10T03:01:57","slug":"shri-mohan-singh-ors-etc-vs-international-airport-authority-on-7-november-1996","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shri-mohan-singh-ors-etc-vs-international-airport-authority-on-7-november-1996","title":{"rendered":"Shri Mohan Singh & Ors Etc vs International Airport Authority … on 7 November, 1996"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shri Mohan Singh & Ors Etc vs International Airport Authority … on 7 November, 1996<\/div>\n
Author: K Ramaswamy<\/div>\n
Bench: K. Ramaswamy, G.B. Pattanaik<\/div>\n
           PETITIONER:\nSHRI MOHAN SINGH & ORS ETC.\n\n\tVs.\n\nRESPONDENT:\nINTERNATIONAL AIRPORT AUTHORITY OFINDIA & ORS.\n\nDATE OF JUDGMENT:\t07\/11\/1996\n\nBENCH:\nK. RAMASWAMY, G.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\n     K. Ramaswamy, J.\n<\/p>\n
     Leave granted.\n<\/p>\n
     The  International\t Airport  Authority  of\t India\t(for
\nshort, ‘IAAI’) had requisitioned the Lt. Governor, Delhi and
\nthe Government\tof India  to acquire 713 bighas, 2 biswas of
\nland for  rehabilitation  of  1,000  families  displaced  by
\nacquisition of land for Indira Gandhi International Airport.
\nThe Lt.\t Governor, exercising  the power under Section 17(1)
\ndispensed with\tthe enquiry  under Section  5-A and directed
\nunder  Section\t 17(4)\tto   take   over   possession.\t The
\nnotification under Section 4(1) of the Land Acquisition Act,
\n1894 (for  short, the ‘Act’) was published in tow newspapers
\non  January  3,\t 1987.\tThe  notice  of\t substance  of\tsuch
\nnotification was given at convenient places in the locality.
\nThe declaration under Section 6(1) was published on December
\n24, 1986  and notice  of substance  thereof was given in the
\nlocality thereafter.  The possession  of the  land was taken
\nover on\t January 29,  1987. The awards also were made by the
\nCollector under Section 11 on December 23, 1987.\n<\/p>\n
     It would  appear that,  admittedly,  a  batch  of\twrit
\npetitions  was\t filed\tin  the\t High  Court  impugning\t the
\nnotification under  Section 4(1)  and the  declaration under
\nSection 6(1)  and the  exercise of  the power  under Section
\n17(4). The  whole batch\t of cases  was dismissed  and became
\nfinal. These  two Civil\t Writ Petition\tNos. 133 and 2440 of
\n1987 were  segregated due  to amendment\t of  their  pleading
\nwherein the  appellants had  pleaded that  the\tnotification
\nunder Section  4(1) and\t the declaration  under Section 6(1)
\nwere actually  published on January 28, 1987 and January 29,
\n1987 respectively.  Therefore, it  was contended  before the
\nlearned single\tJudge that  in\teither\tevent,\tnotification
\nunder Section  4(1)  was  published  in\t the  newspapers  on
\nJanuary 3,1987.\t While the  Government exercised  the  power
\nunder Section  17(4) before  publication of the notification
\nunder Section 4(1), as contemplated in the manner prescribed
\nunder Section  4(1), the  learned single  Judge accepted the
\ncontention and\theld that  the exercise\t of the power by the
\nGovernment dispensing  with the enquiry under Section 5A and
\npublication of\tthe declaration under Section 6 was illegal.
\nAccordingly, she quashed the declaration under Section 6 and
\ngave liberty  to the  Lt. Governor  to have  the declaration
\npublished afresh  in accordance\t with law.  On\tappeal,\t the
\nDivision Bench,\t in the\t impugned judgment  in LPA No. 53\/94
\nand batch, dated February 28, 1996, reversed the judgment of
\nthe single  Judge dated May 20, 1994. Thus, these appeals by
\nspecial leave.\n<\/p>\n
     Shri Shanti  Bhushan, learned  senior counsel  for\t the
\nappellants, contended  that the\t exercise of the power under
\nSection 17(4) invoking urgency clause under Section 17(1) is
\nconditioned upon  the publication  of the notification under
\nSection 4(1).  Thereafter, the\tGovernment has\tthe power to
\ninvoke\tSection\t  17(4).  Section   4(1)  contemplate  three
\nmandatory  conditions\tto  be\t complied  with,   i.e.\t (1)
\npublication of\tthe notification  under Section\t 4(1) in the
\nofficial Gazette; (2) publication of the notification in two
\ndaily newspapers  having circulation  in  that\tlocality  of
\nwhich at  least one  shall be  in the regional language; and
\n(3) the Collector shall cause public notice of the substance
\nof such notification to be given at convenient places in the
\nsaid notification  to be  given at  convenient places in the
\nsaid locality. The last of the dates of such publication and
\nthe giving  of such  public notice has reference to the date
\nof the publication of the notification. Unless all the three
\nsteps are  complied with  and after compliance of last of it
\nor any\tone of\tthem which  will be  the last of it, the Act
\ngives power  to the  appropriate Government  to exercise the
\npower  under   Section\t17(1)  and  empowers  thereafter  to
\ndispense with  the enquiry  under Section 5A and declaration
\nunder Section  6(1) may\t be made  in respect of that land at
\nany time  “after the  publication of  the notification under
\nSection 4(1)”. In support thereof, he placed strong reliance
\non State  of U.P.  & Ors. vs. Radhey Shyam Nigam & Ors.<\/a> etc.
\n[(1989) 1 SCR 92]. He also contended that the publication of
\nthe three  steps required  to be taken under Section 4(1) is
\nmandatory.  There   is\ta   distinction\t between   making  a
\ndeclaration and publication thereof in the newspapers and in
\nthe  locality.\t Making\t the   declaration  is\ta  condition
\nprecedent for exercise of the power under Section 17(4). The
\nsaid making  should be\tonly after  the publication  of\t the
\nnotification under  Section 4(1)  as  contemplated  in\tsub-
\nsection (1) of Section 4. In support thereof, he relied upon
\nthe judgments  in Khadim  Hussain vs.  State of\t U.P. & Ors.<\/a>
\n[(1976) 3  SCR 1]  and Krishi  Utpadan\tSamiti\t&  Anr.\t vs.
\nMakrand Singh & Ors.<\/a> [(1995) 2 SCC 497].\n<\/p>\n
     Shri P.A.\tChowdhary, learned  senior counsel  for\t the
\nUnion of  India, has  contended\t that  in  interpreting\t the
\nprovisions of  Sections 4(1),  6 and  17, the purpose behind
\neach of\t the three  sections should  be kept in view. Though
\nthe languages  in Section  4(1) read  with Section  17(4) is
\ncapable of  more than one interpretation, as is sought to be
\npressed for acceptance by Shri Shanti Bhushan , the Court is
\nrequired to  consider what  purpose each  Section  seeks  to
\nserve. The  effect of  interpretation on  the public purpose
\nand the\t resultant consequence\tare required  to be  kept in
\nview in\t giving interpretation to the respective provisions.
\nAccording to  the learned  counsel, the\t purpose of  Section
\n4(1) is to intimate to the owner that (1) the land is needed
\nor is  likely to be needed for a public purpose; (2) it is a
\nnotice to  the public that the land is encumbered for public
\npurpose; and  (3) the  officers are authorised to enter upon
\nthe land  to take  measurements thereof\t etc.  to  find\t out
\nwhether it  is suitable\t for public  purpose. Therefore, the
\nrequirement of\tthe publication\t of the\t notification in the
\nGazette, in  the newspapers  and giving\t of  the  notice  of
\nsubstance thereof at the convenient place in the locality is
\nmandatory.  The\t  purpose  of\tSection\t  6   is   to\tgive
\nconclusiveness to  the public  purpose envisaged  in Section
\n4(1). While  the procedural  steps  of\tpublication  in\t the
\nnewspapers and\tnotice of  substance thereof in the locality
\nunder Section  6(2) are\t only ministerial  acts, the last of
\nwhich is  intended as  “hereinafter”, namely, computation of
\nlimitation of  two years  to make the award thereafter under
\nSection 11  and also  computation of  the  limitation  under
\nSection 11A.  The word “hereinafter” in Section 4(1) is also
\nfor the purpose of computation of the limitation of one year
\nfor publication\t of  the  declaration  under  Section  6(1).
\nSection 17  gives power\t to the\t appropriate  Government  to
\ndispense with  the enquiry  under Section 5-A which exercise
\ndepends upon the nature of the urgency. In cases of urgency,
\nSection 17(4)  gives power  to the appropriate Government to
\ndispense with  enquiry under Section 5A, make and thereafter
\npublish the  declaration under\tSection 6(1) in the Gazette.
\nThe possession\twould be  taken after  the expiry of 15 days
\nfrom the date on which notice under Section 9 was published.
\nSub-section (2)\t of Section 17 dispenses with the limitation
\non taking  possession without awaiting the expiry of 15 days
\nfrom  the   date  of   issue  of  Section  9(1)\t notice\t and
\nimmediately the\t appropriate Government\t may take possession
\nof the land, when it is emergently needed. The scheme, thus,
\nwould indicate\tthat interpretation  of\t the  provisions  is
\nrequired to  be put  up in such a way that each of the above
\nobjectives are\tachieved. In support thereof, he relies upon
\nThe State  of U.P. & Ors. vs. Babu Ram Upadhya<\/a> [(1961) 2 SCR
\n679].\n<\/p>\n
     Shri S.K.\tSindu,\tlearned\t senior\t counsel  for  IAAI,
\ncontended   that preceding the Amendment Act 68 of 1984, the
\nState had  power to have the notification under Section 4(1)
\nand the declaration under Section 6 simultaneously published
\nin the\tGazette to  take possession,\twhen  enquiry  under
\nSection 5A  was dispensed  with. After\tthe  Amendment,\t the
\nnotification under  Section 4(1)  should be published in the
\nGazette and  the declaration  under Section  6(1) should  be
\npublished thereafter  within a\tgap of\tone day.  Then,\t the
\nexercise of  the power\tunder Section  17(1)  or  2  becomes
\nvalid. In this case, the said procedure was adopted. Even if
\nthe notification,  or date  of the  printing which  is found
\ndifferent from\tthe date  of printing is taken into account,
\nthey were  published on\t December 23  and December  24, 1986
\nrespectively and  again on  January 28\tand January 29, 1987
\nrespectively. In either event, the declaration under Section
\n6(1) is valid in law. It is not necessary that the procedure
\nof compliance  of three\t conditions required  under  Section
\n4(1) should  be completed  before exercising the power under
\nSection 17(4)  read with  Section 17(1);  there is  power to
\nissue declaration under Section 6(1). In support thereof, he
\nrelies upon  Lt. Governor of Himachal Pradesh & Anr. vs. Sri
\nAvinash Sharma<\/a>\t[(1970) 2  SCR 149]. The Government having a
\nalready published  the declaration under Section 6 and taken
\npossession of  the land\t on January  29, 1987,\tthere was no
\nnecessity for the Government to make any further declaration
\nunder Section 6(1).\n<\/p>\n
     Mrs. Pinky\t Anand, learned\t counsel for  the  acquiring
\nauthority, contended  that  the\t purpose  of  Section  6  is
\ndifferent from\tthe purpose  of Section\t 4.  Publication  is
\nrequired to  be completed  within one  year from the date of
\nthe  notification  published  under  Section  4(1)  and\t the
\ncompliance of  the three  steps, the  last of which provides
\nthe limitation.\t This Court  in State  of Haryana & Anr. vs.
\nRaghubir  Dayal<\/a>\t [(1995)  1  SCC  133]\thad  held  that\t the
\ncompliance of three steps required under Section 4(1) and of
\npublication of\tthe declaration in the Gazette is mandatory.
\nThis Court further held that the publication in the locality
\nand newspapers\twas directory.\tThus,  this  Court  had,  by
\ninterpretation, facilitated  achievement of  the objects  of
\nthe Act. Similar interpretation also requires to be given to
\nSection\t 17(4).\t  What\trequires  to  be  published  is\t the
\nnotification under  Section 4(1)  in the  Gazette. The later
\ntwo steps  required under  Section 4(1)\t may be taken later,
\nbut to\tenable the appropriate Government, taking possession
\nunder Section  17(1) or 17(2) read with the Section 17(4) of
\nthe Act after publishing the declaration under Section 6(1),
\nis necessary.\n<\/p>\n
     Shri Shanti  Bhushan raised another contention that the
\nLt. Governor,  after the  judgment  of\tthe  learned  single
\nJudge, superseded  the declaration published on December 24,
\n1986, by  causing publication  of the declaration on May 19,
\n1995. Therefore,  in the eye of law, there is no declaration
\npublished  on\tDecember  24,\t1986.  The  Division  Bench,
\ntherefore, was not right to uphold such declaration which is
\nor non\test. The  contention  was  refuted  by\tthe  learned
\ncounsel for the respondents.\n<\/p>\n
     In view  of the diverse contentions, the first question
\nthat arises  for consideration\tis :  what is the meaning of
\nthe phrase  “a declaration  may be  made under\tSection 6 in
\nrespect of  the land  at any  time after  the  date  of\t the
\npublication of the notification under section 4, sub-section
\n(1)” used in Section 17 (4) of the Act and when is the power
\nunder Section  17(4) to\t be exercised  ? It is seen and well
\nsettled\t legal\tposition  that\tthe  appropriate  Government
\nexercises its power of eminent domain to acquire the land in
\nany locality when it is needed or is likely to be needed for
\nany public  purpose or\tfor a company, in the later event in
\nChapter VII.  The notification for the said purpose shall be
\npublished in  the official  Gazette. After the Amendment Act
\n68 of  1984, the  same\tshall  be  published  in  two  daily
\nnewspapers having  circulation in  that locality of which at
\nleast one  shall be  in the regional language. The Collector
\nshall cause  notice of the substance of such notification to
\nbe given at convenient places in the said locality, the last
\nof the date of such publication “being hereinafter” referred
\nto as  the date\t of the\t publication of the notification. It
\nwould, thus, be seen that (1) the notification under Section
\n4(1) shall  be published,  in the  official Gazette; (2) the
\nsame should be published also in two daily newspapers having
\ncirculation  in that locality at least one of which would be
\nin the\tregional language; and (3) the Collector shall cause
\npublic notice  of the  substance of  such notification to be
\ngiven at  convenient places in the said locality. It is well
\nsettled\t legal\t position  that\t  the  publication   of\t the
\nnotification under Section 4(1) in the Gazette is mandatory.
\nSimilarly,  preceding\tthe  Amendment\t Act  68   of  1984,
\npublication of\tthe substance  of such\tnotification in\t the
\nconvenient locality  was  also\theld  mandatory.  After\t the
\nAmendment Act,\tin Raghubir Dayal’s case (supra), this Court
\nhad held  that the  requirement of compliance of three steps
\nenvisaged under\t Section 4(1)  is mandatory. The expressions
\n“hereinafter” and  “last of  the dates\tof the\tpublication”
\nshall be for the purpose of computation of limitation of one
\nyear under  Section 6  and to  determine compensation  under
\nSection 23(1).\n<\/p>\n
     As regards publication of the declaration under Section
\n6(2) and  the meaning  of  the\tword  “hereinafter”,  it  is
\nreferred to for the purpose of computation of the limitation
\nprescribed under Section 11-A of the Act. In Makrand Singh’s
\ncase (supra),  this Court  had held  that the purpose of the
\nword  “hereinafter”  is\t to  compute  the  limitation  under
\nSection 11-A.  In Raghubir Dayal’s case (supra), it was also
\nheld  that   the  publication  of  the\tdeclaration  in\t two
\nnewspapers and substance thereof at the convenient places in
\nthe locality  is directory.  The word  “hereinafter” used in
\nSection 4(1)  is, therefore,  also required to be understood
\nin the\tsame context. It seeks to prescribe limitation under
\nSection 6  for publication  of the declaration under Section
\n6(1) within one year from the date of the publication of the
\nnotification under  Section 4(1).  The last of the dates was
\nintended only for the purpose of computation of limitation.\n<\/p>\n
     It is  seen that  Section 17  envisages two situations,
\nviz, where  the appropriate  Government is of the opinion it
\nis a  case of  urgency to  take possession  of the  land for
\npublic purpose,\t the  appropriate  Government,\teven  before
\nmaking an award under Section 11, is empowered to direct the
\nCollector to  take possession  of the land, after the expiry
\nof 15  days from  the publication  of notice  under  Section
\n9(1). Such  land shall,\t thereupon, vest  absolutely in\t the
\nGovernment free\t from all  encumbrances. Further urgency has
\nbeen emphasised\t in sub-section\t (2) of\t Section 17  and the
\nembargo to  await 15  days is  also lifted in Section 17(2).
\nSub-sections (3),  (3A) and  (3B) are  not relevant  for the
\npurpose of  this case.\tSub-section (2) further enlarges the
\npower of  the Government  after invoking  urgency clause and
\nprovides that  if owing\t to any sudden change in the channel
\nof any\tnavigable river\t or other  unforseen  emergency,  it
\nbecomes necessary  for any Railway Administration to acquire
\nthe immediate  possession of any land for the maintenance of
\nthe traffic  or for  the purpose  of making thereon a river-
\nside or\t ghat station, or of providing convenient connection
\nwith or\t access to  any such  station  etc.  the  Collector,
\nimmediately  after  the\t publication  of  the  notice  under
\nSection 9(1),  without waiting the lapse of 15 days time, is
\nempowered to  enter upon  and take  possession of such land.
\nThereupon, such land shall vest absolutely in the Government
\nfree from  all encumbrances.  That would indicate the nature
\nof the\textreme urgency\t and they  intend  to  avoid  public
\ninconvenience in  the service  of the  notice to  the  owner
\nunder Section  9(1) of the Act and to wait for 15 days. Sub-
\nsection (4)  follows the  heels of  publication\t in  Gazette
\nunder Section  4(1), within a gap of one day, publication of
\ndeclaration under  Section 6  and tracks on Section 17(1) or
\n17(2). In  the case  of the exercise of the power under sub-
\nsection (1)  or (2)  the appropriate Government is empowered
\nto direct  that the provisions of Section 5A shall not apply
\nand if\tit so  directs “a  declaration\tmay  be\t made  under
\nSection 6  in respect of the land at any time after the date
\nof publication\tof the\tnotification under  Section 4,\tsub-
\nsection (1)”.\n<\/p>\n
     It is  seen that  Section 4(1)  and Section  6(1)\thave
\nexpressly mentioned  the phrase “hereinafter”, while similar
\nlanguage does  not find\t place\tin  Section  17(4).  Equally
\nSection 17(4)  does not mention the last of the dates of the
\npublication, i.e.,  the three  steps required  under Section
\n4(1) or\t Section 6(2). In other words, the object of Section
\n17 appears  to be  that when  the Government  exercises\t the
\nurgency power  under Section  17(1) or emergency power under
\nSection 17(2), they form the opinion that the land is needed
\nfor public purposes. If the possession of the land is needed
\nurgently or  immediately  they\tare  required  to  have\t the
\nnotification under  Section 4(1)  published in\tthe official
\nGazette and  within a gap of one day to make the declaration
\nunder Section  6 and  have the\tsame published under Section
\n6(1).  Thus,   what  is\t mandatory  is\tpublication  of\t the
\nnotification under  Section 6(1)  is mandatory. Thereby, the
\npublic purpose\tbecomes conclusive,  as envisaged under sub-
\nsection (3)  of Section\t 6 and the Collector is empowered to
\ntake immediate\tpossession of  the land\t for the said public
\npurpose.\n<\/p>\n
     The question  is :\t whether it  is mandatory  in such a
\nsituation, i.e.,  after the  publication of the notification
\nin the\tGazette publication  in\t two  local  newspapers\t and
\ngiving of  notice of  the substance  of the  notification at
\nconvenient places  in the locality, to await the exercise of
\npower under  Section 17(4)  ?  After  giving  due  and\tdeep
\nconsideration to  the respective  contentions raised  by the
\nlearned counsel,  we are  of the  considered view though the
\ncompliance of  these three steps required under Section 4(1)
\nis mandatory  for the  exercise of  the power  under Section
\n17(4), it  is not  necessary that all the three steps should
\nbe completed  before making  the declaration  under  Section
\n6(1) and  have it  published for  directing the Collector to
\ntake possession under Section 17(1) or 17(2). What is needed
\nis that\t there should  be a  gap of  time of  at least a day
\nbetween the  publication of  the notification  under Section
\n4(1) of\t the declaration  under\t Section  6(1).\t Herein,  we
\ndispose of  the\t controversy  and  agree  with\tShri  Shanti
\nBhushan that  the date\tof the\tnotification and declaration
\npublished as  mentioned in the Gazette is conclusive but not
\nthe  actual   date  of\t printing  of\tthe  Gazette.\tThis
\ninterpretation of  ours\t would\tserve  the  public  purpose,
\nnamely, the official functions are duly discharged. When the
\nland is\t urgently needed  under Section\t 17(1), notice under
\nSection 9(1)  would be\tgiven to  the owner  steps would  be
\ntaken to  and resume  its possession  after the expiry of 15
\ndays. If  it is\t needed emergently under Section 17(2), even
\nwithout waiting for 15 days on issue of notice under Section
\n9(1) to\t the owner,  the appropriate Government would direct
\nthe Collector to take possession of the land immediately. If
\nthe publication\t in the\t newspapers and\t in the\t locality is
\nalso insisted  upon as\tpreliminary to the exercise of power
\nunder Section  17(4) which  are mandatory  requirements\t and
\nuntil last of them occurs, the immediate or urgent necessity
\nto take\t possession of the land under Section 17(1) or 17(2)
\nbefore\tmaking\t the  award  would  be\teasily\tdefeated  by
\ndereliction of\tduty  by  the  subordinate  officers  or  by
\nskillful manoeuvre.  The appropriate  Government is required
\nto take\t the decision  for acquisition\tof the\tland and  to
\nconsider  the\turgency\t or   emergency\t and   to  make\t the
\nnotification  under   Section  4(1)  and  declaration  under
\nSection 6  and have  them published  in the Gazette that the
\nland acquired  under  Section  4(1)  is\t needed\t for  public
\npurpose; they become conclusive under Section 6; and to give
\ndirection to  the Collector  to\t take  its  possession.\t The
\npublication in\tthe newspapers\tand giving  of notice of the
\nsubstance of  the notification\tat the\tconvenient places in
\nthe locality  are required  to be  done by  the\t   Collector
\nauthorised  by\tthe  Government\t under\tSection\t 7  and\t his
\nsubordinate staff. If dereliction  of duty is given primary,
\ndelay deflects\tpublic justice\tto meet\t urgent situation by
\nthe acts  of subordinate officers for any reason whatsoever.
\nUntil that  is done  and  the  last  of\t the  dates  occurs,
\nGovernment would  be unable  to act  swiftly for  the public
\npurpose to  take immediate  possession envisaged  under sub-
\nsection (1)  or (2)  of Section\t 17 and they would be easily
\ndefeated or frustrated.\n<\/p>\n
     In\t Raghubir   Dayal’s  case   (supra)  this  Court  in
\nparagraph 7 had held thus :\n<\/p>\n
     “Therefore,  the  word  “shall”  in
\n     Section 4(1) should be construed to
\n     be\t   mandatory\t because     the
\n     requirement of  Section 4(1) of the
\n     publication of  the notification in
\n     the  Gazette   followed  by   their
\n     publication in the Gazette followed
\n     by\t  their\t  publication\tin   the
\n     newspapers perhaps\t in  some  cases
\n     may not  meet the needed purpose of
\n     notice  to\t  the  owner  or  person
\n     claiming  interest\t  in  the   land
\n     proposed  to   be\t acquired.   For
\n     instance, proposed\t to be acquired.
\n     For instance,  in rural  areas most
\n     agriculturists may\t not  read  even
\n     the  vernacular  newspapers.  Their
\n     fields are\t their\tworld  and  work
\n     therein is\t their breadwinner. They
\n     would come\t to  know  only\t if  the
\n     substance of  the\tnotification  is
\n     published\t (announced)\tin   the
\n     village by beat of drum. Therefore,
\n     publication of  Section but  it  is
\n     not the requirement of the law that
\n     it be  done simultaneously with the
\n     publication  in   the  Gazette   or
\n     newspapers. Though\t there is a time
\n     gap of more than six months between
\n     the date  of the notification under
\n     Section 4(1)  in the  State Gazette
\n     and the  date of the publication of
\n     the substance  of the  notification
\n     in\t the   locality,  the  delay  by
\n     itself   does    not   render   the
\n     notification  under   Section  4(1)
\n     published\tin  the\t State\tGazette,
\n     invalid.<\/p><\/blockquote>\n
     In paragraph  8, it  was held  that the  purpose of the
\ndeclaration under  Section 6  is to render the land notified
\ntherein as  that is  needed for giving conclusiveness to the
\npublic purpose.\t Though the language of Section 6(2) is pari
\nmateria with  Section  4(1),  since  the  two  purposes\t are
\ndifferent,  it\t was  held   that  the\tpublication  of\t the
\ndeclaration under Section 6 is mandatory; but publication of
\nnotification in\t the newspapers\t and of\t notice of substance
\nthereof in  the locality  is held directory. The publication
\nin the Gazette under Section 6(1) accords the conclusiveness
\nto the\tneed of\t the public  purpose. Section 4(1) speaks of
\n“needed or  likely to  be  needed”.  The  ministerial  acts,
\nthereafter, would  not render  such publication\t invalid. In
\nMakrand Singh’s\t case (supra)  in paragraphs  4 and  5,\t the
\nobject\tof  Sections  4(1),  6(1)  and\t6(2)  is  conjointly
\nconsidered and\tit was\theld that the word “hereinafter” was
\nintended  for\tthe  purpose  of  computing  the  period  of
\nlimitation provided  in the  proviso to\t sub-section (1)  of
\nSection 6.  As held  earlier, the word “hereinafter” in sub-
\nsection (1)  of Section\t 4  is\tto  compute  the  period  of
\nlimitation under  Section 6.  Equally, the  purpose of\tsub-
\nsection (2)  of Section\t 6  is\tto  compute  the  period  of
\nlimitation provided in Section 11-A.\n<\/p>\n
     It is  true that  in Radhay Shyam Nigam’s case (supra),
\nseveral notifications  under Section  4(1)  and\t declaration
\nunder Section  6 simultaneously\t published had\tcome up\t for
\nconsideration before  the Division  Bench of  the  Allahabad
\nHigh Court  and were  upheld,  but  on\tappeal,\t this  Court
\nconsidered the\teffect of the simultaneous publication after
\nthe Amendment  Act 68\/84.  In one of the cases, notification
\nunder Section  4(1) was of May 6, 1985 and declaration under
\nSection 6 was published on May 22, 1985. Power under Section
\n17(1A) was  exercised for taking possession immediately. The
\nquestion arose : whether such publication of the declaration
\nwas valid  in law ? This Court had held at page 106 that the
\nwords “after the publication of the notification” under sub-
\nsection (4) of Section 17 read simpliciter, clearly indicate
\nthat the  declaration under  Section 6\thad to be made after
\nthe  publication   of  the   notification,  meaning  thereby
\nsubsequent  to\t the  date   of\t the   publication  of\t the
\nnotification. The  question at\twhat gap of time declaration
\ncan be\tpublished, did\tnot arise  for consideration in that
\ncase. It  is seem  that in this case, the notification under
\nSection\t 4(1)\twas  published\ton  December  23,  1986\t and
\ndeclaration under  Section 6  was published  on December 24,
\n1986, i.e., within gap of one day. Making of the declaration
\nunder Section  6 is not merely signing by the officials; the
\nofficial is  empowered to sign at any time before its actual
\npublication. What  is material is that the declaration under
\nSection 6  should be  published in  the\t Gazette  after\t the
\nnotification under Section 4(1) was published, i.e., after a
\ngap of\tat least one day. Therefore, declaration is required
\nto be published though signed earlier, after the publication
\nof notification under Section 4(1) in the Gazette. Though it
\nwas contended  by the  learned counsel\tfor the appellant in
\nthe High  Court before\tthe learned  singly Judge  and\tShri
\nSidhu trod  on the  same path and brought on record that the
\nactual Gazettes in respect of the notification under Section
\n4(1) and declaration under Section 6 were printed on January
\n28 and January 29, 1987 respectively, what is crucial is not
\nthe actual date of printing, but the date of the publication
\nin the\tGazette as  appears from  the Gazette.\tShri  Shanti
\nBhushan has  fairly contended  that such  publication  is  a
\nrelevant one.  We agree\t with Shri  Shanti Bhushan  in\tthat
\nbehalf.\n<\/p>\n
     The distinction  of mandatory  compliance or  directory
\neffect of  the language depends upon the language couched in
\nthe statute  under consideration and its object, purpose and
\neffect. The   distinction  reflected in\t the use of the word
\n“shall” or  “may” depends  on\tconferment of  power. In the
\npresent context,  “may” does  not always  mean may. May is a
\nmust for  enabling compliance  of provision  but  there\t are
\ncases in which, for various reasons, as soon as a person who
\nis within  the statute\tis entrusted  with power, it becomes
\nduty to\t exercise. Where  the language\tof statute creates a
\nduty, the  special remedy  is prescribed for non-performance
\nof the\tduty. In  “Craies on  Statute Law” (7th Edn.), it is
\nstated that  the Court will, as a general rule, presume that
\nthe appropriate\t remedy by common law or mandamus for action
\nwas intended  to apply.\t General rule of law is that where a
\ngeneral obligation  is\tcreated\t by  statute  and  statutory
\nremedy\tis  provided  for  violation,  statutory  remedy  is
\nprovided for  violation, statutory  remedy is mandatory. The
\nscope and  language of\tthe  statute  and  consideration  of
\npolicy at  times may, however, create exception showing that
\nlegislature did\t not intend  a\tremedy\t(generality)  to  be
\nexclusive. Words  are the skin of the language. The language
\nis the\tmedium of  expressing the  intention and  the object
\nthat particular\t provision or  the  Act\t seeks\tto  achieve.
\nTherefore, it  is necessary  to ascertain the intention. The
\nword “shall”  is not  always decisive. Regard must be had to
\nthe context,  subject matter  and object  of  the  statutory
\nprovision in  question in  determining whether\tthe same  is
\nmandatory or  directory. No universal principle of law could
\nbe laid\t in that behalf as to whether a particular provision
\nor enactment  shall be considered mandatory or directory. It
\nis the duty of the Court to try to get at the real intention
\nof the legislature by carefully analysing the whole scope of
\nthe statute  or section\t or a phrase under Consideration. As
\nstated earlier,\t the question  as to  whether the statute is
\nmandatory or  directory depends\t upon the  language in which
\nthe intent is couched. The meaning and purpose the Act seeks
\nto achieve.  In “Suhtherland  Statutory\t Construction”\t(3rd
\nEdn.) Volume  1 at  page 81  in paragraph  316, it is stated
\nthat  although\t the  problem  of  mandatory  and  directory
\nlegislation is\ta hazard to all governmental activity, it is
\npeculiarly hazardous  to administrative agencies because the
\nvalidity of  their action depends upon exercise of authority
\nin accordance  with their  charter of existence the statute.
\nIf the\tdirections of the statute are mandatory, then strict
\ncompliance with\t the statutory\tterms is  essential  to\t the
\nvalidity of  administrative action.  But if  the language of
\nthe statute  is directory  only,  then\tvariation  from\t its
\ndirection does\tnot invalidate\tthe  administrative  action.
\nConversely, if\tthe  statutory\tdirection  is  discretionary
\nonly,  it   may\t not   provide\tan   adequate  standard\t for
\nlegislative action  and the  delegation. In “Crawford on the
\nConstruction of Statutes” at page 516, it is stated that :\n<\/p>\n
     “The  question   as  to  whether  a
\n     statute is\t mandatory or  directory
\n     depends  upon  the\t intent\t of  the
\n     legislature  and\tnot   upon   the
\n     language in  which\t the  intent  is
\n     clothed. The  meaning and intention
\n     of the legislature must govern, and
\n     these are\tto be  ascertained,  not
\n     only from\tthe phraseology\t of  the
\n     provision, but  also by considering
\n     its nature,  its  design,\tand  the
\n     consequences  which   would  follow
\n     from construing  it the  one way or
\n     the other ….”<\/p><\/blockquote>\n
     In “Maxwell  on the  interpretation of  Statutes”, 10th
\nEdition, at page 381, it is stated thus :\n<\/p>\n
     “On  the\tother  hand,  where  the
\n     prescriptions of  a statute  relate
\n     to the performance of a public duty
\n     and where\tthe invalidation of acts
\n     done in  neglect of them would work
\n     serious  general  inconvenience  or
\n     injustice to  persons who\thave  no
\n     control over  those entrusted  with
\n     the  duty\t without  promoting  the
\n     essential aims  of the legislature,
\n     such  prescriptions   seem\t to   be
\n     generally\t understood    as   mere
\n     instructions for  the guidance  and
\n     government\t of  those  on\twhom  as
\n     directory only. The neglect of them
\n     may be  penal, indeed,  but it does
\n     not affect\t the validity of the act
\n     done in disregard of them.”<\/p><\/blockquote>\n
     The two  quotations were approved by this Court in Babu
\nRam Upadaya’s case and law was down thus :\n<\/p>\n
     “When  a\tstatute\t uses  the  word
\n     “shall”,\tprima\tfacie,\t it   is
\n     mandatory,\t but   the   Court   may
\n     ascertain the real intention of the
\n     legislature by  carefully attending
\n     t the  whole scope\t of the statute.
\n     For ascertaining the real intention
\n     of the  Legislature the  Court  may
\n     consider, inter  alia,  the  nature
\n     and statute,  and the  consequences
\n     which would  follow from construing
\n     it the  one way  or the  other, the
\n     impact of\tother provisions whereby
\n     the necessity of complying with the
\n     provisions in  question is avoided,
\n     the circumstances,\t contingency  of
\n     the   non-compliance    with    the
\n     provisions,  the\tfact  the   non-<\/p><\/blockquote>\n
     compliance with  the provisions  is
\n     or is  not visited by some penalty,
\n     the     serious\t  or\t trivial
\n     consequences that\tflow  therefrom,
\n     and, above\t all, whether the object
\n     of the legislation will be defeated
\n     or furthered.”<\/p><\/blockquote>\n
     In K. Narasimhiah v. H.C. Singri Gowda & Ors.<\/a> [(1965) 3
\nSCR 618] giving of three days’ notice to the councillor of a
\nmunicipality in\t convening the\tno confidence  Motion  under
\nSection 27  [3] of  the Mysore Town Municipalities Act, 1951
\nwas held to be directory as providing shorter period of such
\nmeeting was  considered more important to make it convenient
\nto the\tcouncillor to  attend the  meeting of  Motion of  No
\nConfidence. It\twas held that the object of giving of notice
\nwas to\tmake it\t possible for  the councillors to so arrange
\ntheir affairs  in the other business as to be able to attend
\nto the meeting.\n<\/p>\n
     In The  Remington Rand  of India  Ltd. v.\tThe  Workmen<\/a>
\n[(1968) 1 SCR 154] the question was : whether publication of
\nthe award  beyond fixed\t time was  invalid ? Considering the
\nprovisions of  Section 17(1) of the Industrial Disputes Act,
\n1947, this Court had held that it was only directory and not
\nmandatory. Holding  it to  be  directory  would\t defeat\t the
\npurpose of the Act.\n<\/p>\n
     In Hiralal\t Agrawal etc.  v. Rampadarath  Singh &\tOrs.
\n[(1969) 1  SCR 328]  the right of reconveyance under Section
\n16 of  the Bihar Land Reforms Act, 1962 and giving of notice
\nwas held  to be\t directory as  it would effectuate obtaining
\nreconveyance by the co-sharers under that Act.\n<\/p>\n
     In the  Municipal Corporation  of Greater Bombay v. The
\nB.E.S.T. Workers’  Union [(1973) 3 SCR 285] six months’ time
\nunder Section 78 (1) of the Bombay Industrial Relations Act,
\n1946 for imposition of punishment was held to be directory.\n<\/p>\n
     In Raza  Buland Sugar  Co. Ltd.  vs.  Municipal  Board,
\nRampur<\/a> [(1965) 1 SCR 970] the question was whether the whole
\nof Section 131(3) or the part of it requiring publication of
\nthe requisition\t in the manner laid down in Section 94(3) of
\nthe U.P.  Municipalities  Act,\t1916,  i.e.,  in  the  Hindu
\nnewspapers  was\t  merely  directory.   It  was\t held\tthat
\nconsidering the\t object of  the provisions  for publication,
\ni.e., to  enable the  public to\t be able  to place the\tview
\npoint before  the Board,  publication is  mandatory but\t the
\nmanner of  publication was  held to  be directory.  The same
\nratio would  apply with\t equal force  to the  facts of\tthis
\ncase.\n<\/p>\n
     The compliance  of the  requirements in  the matter  of
\nfiling nomination  papers for  election to  the\t Legislative
\nAssembly or election petitions has consistently been held to
\nbe mandatory.  Since it\t is  a\tright  conferred  under\t the
\nstatute, its  strict compliance\t enables the  respondent  to
\nraise the  required objections. In regard to the nomination,
\nstrict compliance  of  the  particulars\t in  the  nomination
\npapers was  held to  be mandatory  in Virji  Ram Sutaria vs.
\nNathalal  Premji  Bhanvadia  &\tOrs.<\/a>  [(1969)  2  SCR  627];
\nsimilarly,  compliance\tof  the\t requirement  of  furnishing
\nparticulars  in\t the  election\tpetitions  was\theld  to  be
\nmandatory in Satya Narain vs. Dhuja Ram & Ors.<\/a> [(1974) 3 SCR
\n20].\n<\/p>\n
     Thus, this\t Court, keeping\t in view  the objects of the
\nAct, had  considered whether  the language  in a  particular
\nsection, clause\t or sentence  is directory or mandatory. The
\nword “shall”,  though prima  facie gives impression of being
\nmandatory character,  it requires  to be  considered in\t the
\nlight of  the intention\t of  the  legislature  by  carefully
\nattending to  the scope of the statute, its nature ad design
\nand the\t consequences that  would flow from the construction
\nthereof one  way or  the other. In that behalf, the Court is
\nrequired to  keep in  view the\timpact\ton  the\t profession,
\nnecessity of  its compliance;  whether the statute, if it is
\navoided, provided for any contingency for non-compliance; if
\nthe word “shall” is construed as having mandatory character,
\nthe mischief  that would ensue by such construction; whether
\nthe  public   convenience  would   be  subserved  or  public
\ninconvenience or the general inconvenience that may ensue if
\nit is  held mandatory  and all\tother relevant circumstances
\nare required  to be  taken into\t consideration in construing
\nwhether the  provision would be mandatory or directly. If an
\nobject to  the enactment  is defeated  by holding  the\tsame
\ndirectory, it should be construed as mandatory whereas if by
\nholding it  mandatory serious  general inconvenience will be
\ncreated to  innocent persons  of general public without much
\nfurthering the\tobject of  enactment,  the  same  should  be
\nconstrued as  directory but  all the same, it would not mean
\nthat the  language used\t would be ignored altogether. Effect
\nmust be given to all the provisions harmoniously to suppress
\npublic mischief and to promote public justice.\n<\/p>\n
     In the light of the above law, we have no hesitation to
\nhold that  though compliance  of publication  of  the  three
\nsteps  required\t  under\t Section  4(1)\tis  mandatory  while
\nexercising the\tpower of eminent domain\t under Section 4(1),
\nwhen the  appropriate Government  exercises the\t power under
\nsub-section(4) of  Section 17  dispensing with\tthe  enquiry
\nunder Section  5-A  and\t directing  the\t Collector  to\ttake
\npossession of  the land\t before making\tthe award  when\t the
\nlands are  needed urgently  either under  sub-section (1) or
\n(2) thereof, it is not mandatory to publish the notification
\nunder Section 4(1) in the newspapers and giving of notice of
\nthe substance thereof in the locality; the last of the dates
\nof publication\tshould not  be\tthe  date  for\tthe  purpose
\nexercising   the    power   under    Section   17(4).\tThis
\ninterpretation of  ours would\tsubserve  the public purpose
\nand suppresses\tmischief  of  non-compliance  and  seeks  to
\nelongate  the\tpublic\tpurpose,  namely,  taking  immediate
\npossession of  the  land  needed  for  the  public  purpose,
\nenvisaged in the notification.\n<\/p>\n
     It is  true that  in Khadim  Hussain’s case, a Bench of
\nfour Judges  of this  Court had\t held that  the\t declaration
\nmentioned in  Section 6(1)  differs  from  the\tnotification
\nunder Section  4(1) and requires to be signed by a Secretary
\nor other officers duly authorised. The declaration is in the
\nform of\t an order.  The notification when published is proof
\nof existence  of public\t purpose. In that case, the question
\nwhether\t declaration  under  Section  6(1)  requires  to  be
\npublished after\t making declaration,  did not  come  up\t for
\nconsideration. As held by this Court in catena of decisions,
\npublication  of\t  the  declaration  under  Section  6(1)  is
\nmandatory to  give  conclusiveness  to\tthe  public  purpose
\nenvisaged in sub-section (3) of Section 6. The contention of
\nShri Sidhu  Mrs. Pinky\tthat there is no necessity for fresh
\npublication  of\t the  declaration  under  Section  6,  after
\npossession was\ttaken acceptance. The object of Section 4(1)
\nis to  enable the Government to have the land tested whether
\nit is  needed or likely is to be needed for a public purpose
\nand is\tsuitable; after its consideration by the appropriate
\nGovernment that the land is needed or is likely to be needed
\nfor the\t public purpose,  publication of  declaration  under
\nSection 6(1)  is mandatory to give its conclusiveness to the
\npublic purpose\tpublished under\t Section 4(1). Therefore, it
\nis  a  mandatory  requirement  that  the  declaration  under
\nSection 6(1) should be published.\n<\/p>\n
     The  question,   therefore,  is  :\t whether  after\t the
\npublication of\tthe declaration under Section 6 after it was
\nquashed by  the learned single Judge, there is any necessity
\nfor the\t Government to\tsupersede the  notification  already
\npublished under\t Section 6?  It would  appear that there was
\nobvious incongruity.  It is  indisputable that\tthe  learned
\nsingle Judge  had quashed Section 6 declaration published on
\nDecember   24,\t 1986.\t Consequently,\t the   question\t  of
\nsupersession  of   the\tdeclaration   already\tquashed\t  of
\nsuppression  of\t  the\tdeclaration   already\tquashed\t  is
\nsuperfluous. It\t is settled  legal position that appeal is a
\ncontinuation of the original proceedings. Though the learned
\nsingle Judge  quashed Section  6 declaration, on the finding
\nby the\tDivision Bench\tthat the  view taken  by the learned
\nsingle Judge is not correct in law, the consequence would be
\nthat the  act of  the  learned\tsingle\tJudge  quashing\t the
\ndeclaration under Section 6 is vitiated by law. As a result,
\nby operation  of the  decision of  the Division\t Bench,\t the
\ndeclaration  quashed  by  the  learned\tsingle\tJudge  dated
\nDecember  24,\t1986  stood   restored.\t As  a\tresult,\t the
\ndeclaration under  Section 6(1) published on May 19, 1995 is
\nonly superfluous and of no consequence.\n<\/p>\n
     It is  true that  after the  possession of\t the land is
\ntaken either  under Section  17(1), 17(2)  or 16,  the\tland
\nstands\tvested\t in  the  State\t absolutely  free  from\t all
\nencumbrances. Subsequently,  the power\tof withdrawal  under
\nSection 48(1)  would no\t more be  available.  The  ratio  in
\nAvinash Sharma’s  case (supra),\t relied on by Shri Sidhu has
\nno application to the facts of this case. Therein, the facts
\nwere that after the possession was taken under Section 17(1)
\nand vested  in the State, exercising the power under Section
\n17(1) and  vested in  the State,  exercising the power under
\nSection 21  of the General Clause Act, the declaration under
\nSection 6(1)  was withdrawn by the Government had that power
\n? In  that context,  this Court had held that after the land
\nvested in the State free from all encumbrances under Section
\n17(1), the  power of issuing of a notification and the power
\nto withdraw  such notification envisaged under Section 21 of
\nthe General  Clause Act\t was not  applicable since  the land
\nalready stood  vested and  the Government was denuded of its
\npower under the Act.\n<\/p>\n
     It would, therefore, be seen that the declaration under
\nSection 6 published on May 19, 1995 does not have any effect
\non the\tdeclaration published under Section 6(1) on December
\n24, 1986 which has the legal effect of getting restored. The
\nDivision Bench\tof the\tHigh Court,  therefore, was right in
\nsetting aside  the judgment  of the learned single Judge and
\ndismissing the\twrit petition.\tIt is  already seen that the
\nlands stood  vested in\tthe State  on January  29, 1987\t and
\nafter  the   lands  including  the  land  belonging  to\t the
\nappellants in  an extent  of 81.9 bighas out of total extent
\nof 713.2 bighas, were taken possession, they stood vested in
\nthe State  free from all encumbrances. The award also became
\nfinal. Under  these circumstances, the\tlearned single Judge
\nwas wholly  wrong in  the judgment  under appeal  before the
\nDivision Bench; the reasoning given and consequences reached
\nby the Division Bench are entirely correct in law warranting
\nno interference.\n<\/p>\n
     The appeals  are accordingly  dismissed,  but,  in\t the
\ncircumstances, without costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shri Mohan Singh & Ors Etc vs International Airport Authority … on 7 November, 1996 Author: K Ramaswamy Bench: K. Ramaswamy, G.B. Pattanaik 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-101146","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShri Mohan Singh & Ors Etc vs International Airport Authority ... on 7 November, 1996 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shri-mohan-singh-ors-etc-vs-international-airport-authority-on-7-november-1996\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shri Mohan Singh & Ors Etc vs International Airport Authority ... on 7 November, 1996 - 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