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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.

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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

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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

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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

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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

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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 :

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    "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

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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

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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

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    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

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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

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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

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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.