TMI Blog1996 (11) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... te mso 10]> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-tstyle-rowband-size:0; mso-tstyle-colband-size:0; mso-style-noshow:yes; mso-style-priority:99; mso-style-parent:""; mso-padding-alt:0cm 5.4pt 0cm 5.4pt; mso-para-margin-top:0cm; mso-para-margin-right:0cm; mso-para-margin-bottom:10.0pt; mso-para-margin-left:0cm; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-ascii-font-family:Calibri; mso-ascii-theme-font:minor-latin; mso-hansi-font-family:Calibri; mso-hansi-theme-font:minor-latin; mso-fareast-language:EN-US;} <![endif]--> K. RAMASWAMY, G.B. PATTANAIK, JJ. JUDGMENT 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribe 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 necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 interpretati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atute 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 electi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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