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TMI Blog1996 (11) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 segreg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry 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 Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 locali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 neede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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