TMI Blog2013 (3) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus in accordance with the provision of notice the Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, the Writ Court rejected the contentions raised by the appellant after being fully satisfied that the notice under provision of notice was affixed on the part of the land in dispute as the appellant was not available. Similarly Submissions have been made on behalf of the respondents that as the Court lacks competence to extend the period of limitation, direction issued by the High Court giving liberty to the appellant herein to make an application for making reference is without jurisdiction. In the facts and circumstances of the case, the appeal fails and is, accordingly, dismissed as decided in State of Tamil Nadu Vs. Mahalakshmi Ammal & Ors. (1996) 7 SCC 269; and many others. - Civil Appeal No. 2255 of 2006 - - - Dated:- 25-5-2010 - B. S. Chauhan And Swatanter Kumar, JJ. JUDGMENT 1. This appeal has been filed against the judgment and order dated 13.9.2004 passed by the High Court of Madras dismissing the Writ Appeal No.1692 of 1997 by which the Court has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has given liberty to the appellant to move an application for making reference under section 18 of the Act within a period of two weeks from the date of receipt of the order and further directed the Land Acquisition Collector to make a reference, if such an application is filed within a period of four weeks thereafter, and the Court further directed the Tribunal to decide the reference within a period of three months from the date of its receipt. Hence, this appeal. 7. Shri Shekhar Naphade, Ld. Senior Counsel appearing for the appellant has raised large number of issues and made an attempt to challenge the entire acquisition proceedings though the limited prayer of quashing the Award was made before the High Court. Shri Naphade has submitted that the provisions of Section 9 are mandatory in nature and non-compliance thereof would vitiate the Award and all other consequential proceedings. Appellant had never been aware of issuance of Section 4 Notification or Section 6 Declaration or Award made thereafter. No notice had ever been served upon her in respect of acquisition proceedings. Therefore, the appeal deserves to be allowed. 8. Per contra, Shri R. Venkataramani, Ld. Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the petitioners is accepted, it cannot be presumed that they could not be aware of acquisition proceedings for the reason that very huge chunk of land belonging to large number of tenure holders had been notified for acquisition. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings. In Swaran Lata (supra), this Court has held that acquisition proceedings cannot be challenged at a belated stage. 12. The only question remains for our consideration is as to whether the provisions of Section 9(3) are mandatory in nature and non-compliance thereof would vitiate the Award and subsequent proceedings under the Act. Section 4 Notification manifests the tentative opinion of the Authority to acquire the land. However, Section 6 Declaration is a conclusive proof thereof. The Land Acquisition Collector acts as Representative of the State, while holding proceedings under the Act, he conducts the proceedings on behalf of the State. Therefore, he determines the pre-existing right which is recognised by the Collector and guided by the findings arrived in determining the objections etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done. 16. A Constitution Bench of this Court in State of U.P. Ors. Vs. Babu Ram Upadhya AIR 1961 SC 751, decided the issue observing :-;For ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.; 17. In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to transfer the property. 22. In State of Haryana Anr. Vs. Raghubir Dayal (1995) 1 SCC 133, this Court has observed as under:- The use of the word `shall' is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word `shall' prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word `shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word `shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Bihar AIR 1966 SC 237, this Court has held that if a person interested; is aggrieved by the fact that some other person has withdrawn the compensation of his land, he may resort to the procedure prescribed under the Act or agitate the dispute in suit for making the recovery of the Award amount from such person. 27. In fact, the land vest in the State free from all encumbrances when possession is taken under section 16 of the Act. Once land is vested in the State, it cannot be divested even if there has been some irregularity in the acquisition proceedings. In spite of the fact that Section 9 Notice had not been served upon the person- interested, he could still claim the compensation and ask for making the reference under section 18 of the Act. There is nothing in the Act to show that non-compliance thereof will be fatal or visit any penalty. 28. The view taken by us hereinabove stands fortified by large number of judgments of this Court wherein it has been held that if there is an irregularity in service of notice under sections 9 and 10, it could be a curable irregularity and on account thereof, Award under Section 11 would not become invalid (see : State of Tamil Nadu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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