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PETITIONER: RAJA BAHADUR GIRIWAR PRASAD NARAIN SINGH

       Vs.

RESPONDENT: DUKHU LAL DAS & ORS.

DATE OF JUDGMENT: 20/04/1967

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA WANCHOO, K.N. (CJ) MITTER, G.K.

CITATION:  1968 AIR   90            1967 SCR  (3) 759

ACT: Bihar Land Reforms Act, 1950 (No. 30 of 1950), ss. 3 and  4- Notification  vesting estate published in  Official  Gazette and not in newspapers-Effect-Date of vesting.

HEADNOTE: The plaintiff-respondents obtained a lease from defendant 1- appellant. of certain rights in the estate of defendant  1, and  paid him the lease money.  By a notification  published in the Official Gazette, the estate of defendant 1-appellant was  vested  in the defendant 2-State under the  Bihar  Land Reforms Act.  Thereupon, the State called upon the plaintiff to pay the lease-money to it, which the plaintiff did  under protest.  The plaintiff filed a suit claiming the refund  of the lease-money from either of the defendants, which he  had been  forced  to pay to each of the defendants.   The  trial court  decreed  the  suit  against  the  State.   The  State appealed, and the High Court held defendant I was liable  lo refund the money and set aside the decree against the State. In appeal,. this Court HELD : Defendant I had the right to collect the  lease-money and not the State. There was no publication in two issues of two newspapers  as required  by  s. 3(2) of the Act when the  notification  was published  in the Official Gazette.  This  omission  brought about non-compliance with the mandatory provision of s. 3(2) requiring  publication  in  at  least  two  issues  of   two newspapers  with the result that s. 5(a) of the Act did  not become applicable at that time and, consequently,  defendant No.  1 continued to tie the proprietor and was not  divested of  his  rights in the estate by this notification  at  that stage.   On  the  record  of  this  case,  no  material  was forthcoming to show that the notification was ever published in  any  newspapers  even subsequently; but,  in  the  lower courts, the case proceeded on the basis of the admission  by defendant I himself that he was dispossessed an a later date and it was with effect from that later (late he was divested of  his proprietory rights.  Consequently, he bad the.  full right  to grant the lease to the plaintiff on  the  relevant earlier date and the rights under that lease were  exercised by  the  plaintiff during the. period when defendant  I  was

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still the proprietor.[1772 H-773 D] The  direction  in  sub-s.  (2)  of s.  3  of  the  Act  for publication  of the notification in at least two  issues  of two newspapers was mandatory and not merely directory.   The notification  had  a far reaching effect.  it  deprived  the owner of his vested rights as a proprietor of the estate and vested   those  rights  in  the  State   Government.    This alteration  in  the  rights  was  to  be  brought  about  by notifications  issued in respect of individual estates of  a proprietor  and  it  appears that it  was  because  of  this importance of the notification that the legislature did  not consider  it  sufficient  that the  notification  should  be published in the Official Gazette only.  If the intention of the  Legislature  was  that  the  publication  in  the   two newspapers  need  not  be taken into  account  in  order  to attract the provisions of s. 4(a) of the Act, this intention could  have  been clearly expressed by laying  down  in  the principal part of s. 4 itself that        the Sup CI/67- 5 760 consequences  were  to  ensue "on  the  publication  of  the notification  under  sub-s.  (1) of s.  3  in  the  Official Gazette.  By not qualifying the word " publication" in  this section   with  the  adjectival  clause  "in  the   Official Gazette",  the  Legislature  must be held  to  have  clearly indicated that The notification must ’be published fully in accordance  with the manner laid down in sub-s. (2) of s.  3 of the Act.  So far as the date of vesting is concerned, its definition  could  not  naturally depend  on  all  the  five minimum publications envisaged in sub-s. (2) of s. 3.  There was no certainty that the publication of the notification in either  of those two issues of the. newspapers would  be  on the same date on which the notification is published in- the Official  Gazette nor could there be any certainty  that  in the two issues of the other newspaper also, the notification would   be   published   on  the  same   date.    In   these circumstances,  it was obviously necessary to lay  down  the exact date with effect from which the vesting of the  estate in  the  State Government was to take effect.  That  is  the reason  ’why the date of vesting was defined in s.  2(h)  of the  Act and it laid down that the date of vesting is to  be the  date  of publication in the  official’  Gazette.   This definition  was,  therefore, incorporated to  make  it  sure ’that the date of vesting in every case could be  determined without, any uncertainty, or ambignity and the vesting  will only  come into force and effect after the  notification  is actually published in at least two issues of two  newspapers as  required by sub-s. (2) of s. 3 of the Act. [764 F-H  765 F-766E] The  fact that the amendment of sub-s. (2) of s. 3  was  not made retrospective can   only  lead to the  inference  that, though the legislature, after the passing    of the Amending Act, did away with       the necessity of publication of the notification  in the newspapers, it did not  retrospectively make effective those  notifications,  in  respect  of  which there  had been failure to comply with the  requirements  of sub-s.  (2)  of  s. 3, by omitting the  publication  in  two issues of two newspapers. [770 E-G] Raza  Buland  Sugar  Co. Ltd. v.  Municipal  Board,  Rampur, [1965] 1 S.C.R. 970, referred to. Rabati Ranjan and Ant-. v. State of Bihar, A.I.R. 1953 Patna 121, disapproved.

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JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal No.  91  1  of 1964. : Appeal from the judgment and decree dated November 1, 1  961 of the Patna High Court in Appeal. from Original Decree  No. 398 of 1957. B.   Sen and U. P. Singh, for the B.   R.  L. Iyengar and S. N. Mukherjee, for respondent Nos. 19. D. P. Singh and K. M. K. Nair, for respondent No. 10. The Judgment of the Court was delivered by Bhargava, J. This appeal raises a question of interpretation ,of the provisions of the Bihar Land Reforms Act, 1950  (No. 30 of 1950) (hereinafter referred to as "the  Act")  which came  into, force initially on 11th September,  1950.   On 12th  March,  1951, The Act was declared void  by  the  High Court at Patna on the 7 62 before  the  High  Court  and on  13th  June,  1958,  cross- objections  were filed on behalf of defendant No. 1 as  well as the plaintiff.  The High Court decided the appeal on  1st November,  1961, holding that defendant No. I had no  rights under  which lie could grant the lease to the plaintiff  and was,  therefore,  liable to refund not only the sum  of  Rs. 7,500/-  furnished  as  security, but also the  sum  of  Rs. 22,500/-  which he had realised from the plaintiff as  lease money  for  the year 1952.  The decree of  the  trial  Court against  defendant No. 2 for Rs. 22,500/- was set aside,  as defendant No. 2 was held entitled to realise the lease money even for the year 1952.  Thereupon, defendant No. I has come up  to this Court in this appeal on certificate  granted  by the High Court. In  this appeal, learned counsel for defendant No. I  stated that  he was no longer challenging the decree insofar as  it directs  payment of Rs. 7,500/- to the plaintiff by  way  of refund of the security amount which had been furnished.   It was conceded that at least with effect from 13th June, 1952, defendant  No.  I  was  no longer  claiming  the  rights  of ownership  in the estate, and since he had already  received the lease money of Rs. 221,500 "- for the year 1952 from the plaintiff,   the   security   was   no   longer    required. Consequently, in this appeal we are only concerned with  the question  whether,  for the year 1952, the lease  money  was payable  to  defendant No. 1 or to defendant No.  2  by  the plaintiff,  and this question obviously depends  on  whether defendant  No. I was still the owner of the estate  when  he gave  the  lease to the plaintiff on 12th  April,  1952  and continued to be so until 13th June, 1952, or whether be  had ceased  to  be, the owner of the property with  effect  from 14th November, 1951, and the property from that date  vested in defendant No. 2. On this aspect, various pleas were taken by  defendant No. 1 for urging that he continued to  be  the owner and was not divested of the property with effect  from 14th November, 1.951 ; but we need deal with only one single ground  which  we consider settles the point  in  favour  of defendant No. 1. The ground on which we think defendant No. I should  Succeed is  that when, defendant No. 2 issued the declaration  dated 6th  November,  1951, that declaration was  published  as  a notification  in the Official Gazette of Bihar only and  not in two issues of two. newspapers.  To appreciate the  effect of this omission. the relevant provisions of the Act and the effect of subsequent amendment made by the Amending Act  may be  explained.  Section 3 and part of s. 4 of the Act  which are  relevant  for  this  purpose.  as  they  were   enacted

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initially in the year 1950, are reduced below               Notification  vesting an estate or  tenure  in               the  State-(1) The State Government may.  from               time  to time, by notification,  declare  that               the estates or- tenures                             761 ground  that  its  provisions violated  Article  14  of  the Constitution.   On 18th June, 1951, the  Constitution  First Amendment Act came into force.  Thereafter, on 6th November, 1951, a notification was issued under s. 3(1) of the Act  in respect  of  the property of defendant No. 1  (appellant  in this appeal) declaring that the estates of defendant No.-  1 had  passed  to  and  become  vested  in  the  State.    The notification  was pub shed in the Official Gazette of  Bihar on 14th November, 1951.  It is disputed whether it was  also published  in any newspapers at that time.  Defendant No.  1 however,  continued in possession of the estates.   On  12th April,  1952,  defendant  No.  1- granted  a  lease  to  the plaintiff  (no,%, represented by respondents 1 to 9 in  this appeal)  for  three years for collection of Bidi  leaves  in land situated in the estate of defendant No. 1. It is common ground  that collection of Bidi leaves starts from  1st  May and  ends  about the 15th. of June, so that,  for  the  year 1952,  the plaintiff was to collect Bidi leaves  between  1- 5:1952  and  15-5-1952.  Under the terms of the  lease,  the plaintiff  had  to Pay a sum of Rs. 22,500/-  each  year  to defendant No. 1 and was, in addition, required to furnish  a sum  of  Rs. 7,500/- as security.  For the  year  1952,  the plaintiff  did pay the sum of Rs. 30,000/- to defendant  No. 1. On 5th May, 1952, this Court held that the Act was  valid and  constitutional.   On 12th June, 1952, the  lease  dated 12th  April, 1952 was registered.  On the very next day,  on 13th  June,  1952, a Proclamation was issued  by  the  State Government,  defendant  No.  2 (respondent No.  10  in  this appeal),  stating  that the estates of defendant No.  1  had been  taken over by the Government under the Act.   On  21st November,  1952,  defendant  No.  2 gave  a  notice  to  the plaintiff  to  show cause why the lease granted  to  him  by defendant  No.  I should not be cancelled.  On  18th  April, 1953, the plaintiff was informed by defendant No. 2 that  as an existing lessee he may continue in possession till  final orders  of  the Government are passed.  On  2nd  May,  1953, another notice was given by defendant No.’2 to the plaintiff that unless the plaintiff paid to defendant No. 2 the  lease money for the previous year 1952, he will not get the  lease for the year 1953.  Thereupon, under protest, the  plaintiff paid 1 tie lease money to defendant No. 2 for both the years 1952  and 1953.  On 4th June,, 1954, the Bihar Land  Reforms (Amendment) Act 20 of 1954 (hereinafter referred to as  "the Amending  Act")  came  into  force.   The  effect  of  this. amendment will be noticed hereafter.  On 31st January, 1955, the plaintiff filed a suit claiming a decree against  either defendant No. 1 or defendant No. 2, for the two sums. of Rs. 7,500’,  which  he  had  deposited  as  security,  and   Rs. 22,500/’- which he had been forced to pay to each of the two defendants.  On 28th June, 1957, the trial Court decreed the suit  for the sum of Rs. 7,500/- only against defendant  No. and for the sum of Rs. 22,500/- against defendant No. 2.  On 14th October, 1.957, defendant No. 2 filed an appeal 763               of a proprietor or tenure-holder, specified in               the  notification, have passed to  and  become               vested in the State.               (2)   The   notification referred to  in  sub-               section (1) shall be published in the Official

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             Gazette  and  at  least  two  issues  of   two               newspapers having circulation in the State  of               Bihar, and a, copy of such notification  shall               be    sent    by   registered    post,    with               acknowledgment  due, to the proprietor of  the               estate  recorded in the general  registers  of               revenue-paying    or   revenue   free    lands               maintained  under the Land  Registration  Act,               1876  (Ben.   Act VIII of 1876),  or  in  case               where  the estate is not entered in  any  such               registers  and in the case of tenure  holders,               to  the  proprietor of the estate  or  to  the               tenure holder of tile tenure if the  Collector               is in possession of a list of such proprietors               or   tenure-holders   together   with    their               addresses, and such posting shall be deemed to               be, sufficient set-vice of the.notification on               such proprietor or where such notification  is               sent  by  post to the tenure-holder,  on  such               tenure holder for the purposes of this Act.               (3)   The  publication  and  posting  of  such               notification. where such notification, is sent               ’by  post,  in  the manner  provided  in  sub-               section  (2), shall be conclusive evidence  of               the   notice  of  the  declaration   to   such               proprietors or tenure-holders whose  interests               are affected by the notification."               "4.  Consequences of the vesting of an  estate               or   tenure   in   the   State-Notwithstanding               anything  contained in any other law  for  the               time being in force or in any contract, on the               publication  of  the notification  under  sub-               section (1) of section 3, the following conse-               quences shall, ensue, namely :-               (a)Subject  to  the subsequent  provisions  of               this Chapter, such estate or tenure  including               the  interests  of the proprietor  or  tenure-               holder  in any building or part of a  building               comprised  in such estate or tenure  and  used               primarily  as  office  or  cutchery  for   the               collection  of rent of such estate or  tenure,               and   his   interests   in   trees.   forests,               fisheries,  jalkars, hats, bazars and  ferries               and  all other sairati interests as  also  his               interest in all sub-soil including any  rights               in  mines and minerals, whether discovered  or               undiscovered, or whether being worked or  not,               inclusive of such rights of a lessee of  mines               and  minerals  comprised  in  such  estate  or               tenure (other than the interests of raiyats or               under  raiyats)  shall, with effect  from  the               date of vesting, vest absolutely in the 7 6 4               State  free  from all  incumbrances  and  such               proprietor  or  tenure-holder shall  cease  to               have  any interests in such estate or  tenure,               other  than the interests expressly saved  by-               or. under the provisions of this Act. It  is  to  be  noted  that under  s.  4  of  the  Act,  the consequences mentioned in clause (a) were to ensure only "on the publication of the notification under sub-section (1) of section 3".  Unless there was such, publication, the  estate did  not  vest in the State Government.   Section  3(1),  no doubt, lays down that the content of the notification to  be issued will itself recite that the estates of the proprietor

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concerned, specified in the notification, have passed to and become  vested  in  the State.  The mere  issue  of  such  a notification,  however, did not bring about the  vesting  of the  estate in the State.  The vesting was brought about  by clause  (a) of s. 4 of the Act, and that clause  could  only become applicable on the notification under sub-section  (1) of  s. 3 being published.  The manner of publication of  the notification  is laid down in sub-section (2) of s. 3  which required  at  the relevant time in November, 1951  that  the notification shall be published in the Official Gazette  and in at least two issues of two newspapers having  circulation in  the State of Bihar.  ’there was, thus, a  direction  for publishing  the  notification  not  only  in  the   Official Gazette, but also in at least two issues of two newspapers. It  was urged by learned counsel for defendant No. 2  before us  that  the direction for publishing the  notification  in issues  of  2 newspapers should be held by us to  be  merely directory  and  not mandatory and,  consequently,  the  mere publication  of  the notification in  the  Official  Gazette should  be  held  to  be  publication  of  the  notification required  by  s. 4 of the Act.  It is correct, as  urged  by him,  that the mere use of the word "shall" in s. 3  (2)  is not finally determinative of a particular direction in a law being  mandatory and there have been occasions when  it  has been held that though the word "shall" has been used by  the legislature, the direction given by the legislature is  only meant  to  be directory.  In the present case,  however,  we cannot  accept the submission that the direction  in  sub-s. (2)  of  section  3  of  the  Act  for  publication  of  the notification  in at least two issues of two newspaper-,  was merely directory and not mandatory.  The notification had  a far-reaching  effect.  It deprived the owner of  his  vested rights as a proprietor of the estate and vested those  right in the State Government.  This alteration in the rights  was to  be brought about by notifications issued in  respect  of individual  estates of a proprietor and it appears  that  it was because of this importance of the notification that  the legislature   did  not  consider  it  sufficient  that   the notification  should  be published in the  Official  Gazette only  Sub-Section  (2) of section 3 of the  Act,  therefore, contained the 7 6 5 clause  requiring the publication in at least two issues  of two   newspapers.   In  this  provision,  the  use  of   the adjectival clause "at least" is very significant.  By laying down that the publication must be in at least two issues  of two  newspapers,  the  Legislature  clearly  indicated   the importance  that  it  attached to this  publication  in  the newspapers.   A minimum of two issues of two newspapers  was mentioned  for publication of the notification to  emphasise that this requirement was necessary and had to be  fulfilled before the notification could have the effect of divesting a proprietor  of his rights in the estate and vesting them  in the State Government. In   this  connection,  our  attention  was  drawn  to   the definition  of "date of vesting" contained in clause (h)  of section 2 of the Act which lays down that "date of  vesting" means,  in  relation to an estate or tenure  vested  in  the State’  the date of publication in the Official  Gazette  of the  notification  under  sub-section (1) of  section  3  in respect  of  such estate or tenure.  It was urged  that  (he date  of vesting having ’been defined with reference to  the publication  of  the notification in  the  Official  Gazette only,  the publication in the two issues of  two  newspapers should  not  be held to be mandatory and the  provisions  of

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section  4 should become applicable to the estate merely  on the publication of the notification in the Official  Gazette which determined the date of vesting.  We do not think  that this  submission  ha s any force.  It is  correct  that,  to determine  the date of vesting, the publication in  the  two issues  of two newspapers is not to be taken  into  account; but  that does not necessarily mean that the publication  in the two newspapers could be dispensed with in order to bring about vesting of the estate in the State Government.  If the intention of the Legislature was that the publication in the two  newspapers need not be taken into account in  order  to attract the provisions of s. 4(a) of the Act, this intention could  have  been clearly expressed by laying  down  in  the principal part of s. 4 itself that the consequences were  to ensue  "on  the publication of the notification  under  sub- section  (1) of section 3 in the Official Gazette".  By  not qualifying  the word "publication" in this section with  the adjectival clause "in the Official Gazette," the Legislature must be held to have clearly indicated that the notification must be published fully in, accordance with the manner  laid down in sub-section (2) of section 3 of the Act.  So far  as the  date of vesting is concerned, its definition could  not naturally  depend  on  all  the  five  minimum  publications envisaged  in sub-s. (2) of section 3. The notification  had to  be published in one issue of the Official  Gazette.   It had  also  to be published in two different  issues  of  one newspaper  and  two different issues of  another  newspaper. This was the minimum publication required by s. 3(2) of  the Act.   It  is also clear that, if a notification  is  to  be published in two different issue,, 766 of  one newspaper, that publication cannot be on one  single date.   The two issues of the same paper wilt, naturally  be those coming out on two different dates.  Further. there was no  certainty  that the publication of the  notification  in either of those two issues of the newspapers would be on the same  date,  on which the notification is published  in  the Official  Gazette, nor could there be any certainty that  in the two issues of the other newspaper also, the notification would  be  published  on  the  same  date.   In  these  cir- cumstances, it was obviously necessary to lay down the exact date with effect from which the vesting of the estate in the State Government was to take effect.  That is the reason why the date of vesting was defined in s. 2(h) of the Act and it laid  down  that the date of’ vesting is to be the  date  of publication  in the Official Gazette.  This definition  was, therefore,  incorporated  to make it sure that the  date  of vesting  in.  every case could be,  determined  without  any uncertainty, or ambiguity.  The effect of this definition is that  whatever  be the dates on which  the  notification  is published  in the two issues of two newspapers, the  vesting is  to  take  effect from the date  of  publication  in  the Official  Gazette.  In some cases, the notification  in  the two issues of the newspapers could be prior to the date  of its publication in the Official Gazette and, in some  cases, it could follow that publication.  Whatever be the order  in which the notification is published in the Official, Gazette and the two issues of the newspapers, the vesting is to take affect from the date of publication in the Official  Gazette only.   If  it  is published in  issues  of  the  newspapers subsequently,  the  vesting would  be  retrospectively  with effect from the date of publication in the Official Gazette; but  the vesting will only come into force and effect  after the  notification  is  actually published in  at  least  two issues  of  two  newspapers as required  by  sub-s.  (2)  of

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section 3 of the Act. Learned  counsel  for defendant No. 2, in  this  connection, relied  on  the principle laid down by this  Court  in  Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur(1),  where, under  s. 131 (3) of the U.P. Municipalities Act No.  II  of 1916,  a  Board  was  required to  publish,  in  the  manner prescribed in s. 94, the proposals framed under  sub-section (1)  and the draft rules framed under sub-section (2)  along with  a notice in the form set forth in Schedule  III,  when taking proceedings for imposition of a tax.  Section  94(3), which provided for the manner of publication. read thus               "Every  resolution  passed  by a  Board  at  a               meeting  shall, as soon thereafter as may  be,               published in a local paper published in  Hindi               and where there is no such               (1) [1965] 1 S. C. R 970.               7 6 7               local  paper,  in  such manner  as  the  State               Government  may, by general or special  order,               direct." In  that  particular case, the Municipal  Board  of  Rampur, which had imposed the tax, published the proposals in  Hindi in  a  newspaper which was published in  Urdu,  even  though there  was  no special or general order made  by  the  State Government  laying down that the proposals may be  published in  a manner different from that given in the first part  of s.  94(3).  This Court held : "As we have said already,  the essence, of s. 1 3 1 (3) is that there should be publication of the proposals and draft rules so that the tax-payers have an opportunity of objecting to them, and that is provided in what  we  have called the first part of s. 131(3);  that  is mandatory.   But  the manner of publication provided  by  s. 94(13)  which we have called the second part of  s.  131(3), appears  to be directory and so long as it is  substantially complied  with,  that  would be enough for  the  purpose  of providing the, tax-payers a reasonable opportunity of making their  objections.  We are, therefore, of opinion  that  the manner  of publication provided in s. 131(3) is  directory." On  the  analogy of that decision, it was  argued  that  the purpose of the publication of the notification under subs. ( 1)  of  s.  3 of the Act was to inform  the  proprietors  or tenure-holders  of the estates concerned, and  that  purpose could be served by publication in the Official Gazette  and, in addition, by compliance with the further provision  which required  a  copy  of the notification to  be  sent  to  the proprietor or tenure-holder concerned.  In this  connection, our attention was also drawn to the fact that sub-s. (3)  of section  3  of the Act was amended  retrospectively  by  the Amending  Act.   Section  4 of the  Amending  Act  reads  as follows               "4.  In section 3 of the said Act  (the  Bihar               Land Reforms Act 1950).-               (a)   for  subsection (2), the following  sub-               section shall be substituted namely :-               (2)   The  notification  referred to  in  sub-               section ( 1 shall be published in the Official               Gazette.  A copy of such notification shall be               sent  by registered post, with  acknowledgment               due, to the proprietor of the estate  recorded               in the general registers of revenue-paying  or               revenue-free  lands maintained under the  Land               Registration  Act, 1876, or in case where  the               estate  is not entered in any  such  registers               and  in  the case of  tenure-holders,  to  the               proprietor  of  the estate or to  the  tenure-

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             holder  of the tenure if the Collector  is  in               possession  of a list of such  proprietors  or               tenure-holders together with their address-Is,               and such posting shall be deemed to be suffi-               768               cient  service  of the  notification  on  such               proprietor or, where such notification is sent               by post to the tenure-holder, on such  tenure-                             holder for the purposes of this Act.";  and                  (b)  in  sub-section  (3)  the  words   "and               posting  shall be omitted and shall be  deemed               always to have been omitted and for the words,               brackets and figure ,,where such  notification               is sent by post in the manner provided in sub-               section  (2)",  the  words  "in  the  Official               Gazette  shall  be substituted  and  shall  be               deemed always to have been substituted." Clause  (b) of this section makes amendment  in  sub-section (3)  of section 3 of the Act and brings about  two  changes. The  effect of these two changes was that the proprietor  Or the  tenure-holder concerned, whose interests were  affected by  the  notification under section 3, was to be  deemed  to have  notice  of  the  declaration  merely  because  of  the publication  of such notification in the  Official  Gazette. This  amendment  was introduced so as to be deemed  to  have been made from the date on which the Act initially came into force, so that, even though this amendment was brought about by the Amending Act, sub-section (3) or section 3 has to  be read as it stands amended in the Act which was applicable at the  relevant time in November, 1951.  It was urged  on  the basis   of  this  retrospective  amendment  that  the   mere publication   in   the  Official   Gazette,   ignoring   the publication  in  the two newspapers, or the posting  of  the notice, had become under the law conclusive evidence of  the notice  of the declaration to the proprietor or the  tenure- holder   concerned   and,   consequently,   the   additional publication  in  two issues of the two newspapers  could  no longer  be held to be mandatory.  The purpose of giving  in- formation  to the proprietor or the tenure-holder  concerned having  been fully achieved by publication in  the  Official Gazette,  any  further manner of publication should  not  be held to be mandatory.  This submission, however, ignores the fact  that  rate declaration contained in  the  notification issued under sub-section (1) of section 3 of the Act affects not  only the rights of the proprietor or the  tenure-holder concerned  but  also  of  other  persons.   The   subsequent provisions  of  the Act show that secured creditors  of  the proprietor, as a result of the vesting of the estate in  the State  Government, lose their security and are  required  to take proceedings under S. 14 of the Act in order to  realise the debt owed to them by the proprietor.  Similarly, persons holding  mining leases from the proprietors are affected  by this  vesting  of  the estate in the  State  Government  and divesting  of  the proprietors of their rights.   There  are also provisions which show that courts are to take action or refuse to entertain suits of the nature laid down in the Act after the notification is published and comes into 769 force.  The publication of the notification under sub-s. (2) of section 3 of the Act cannot, therefore, be held to be for the sole purpose of conveying information to the proprietors or the tenure-holders and, consequently, the publication  in the  Official  Gazette could not serve the full  purpose  of publication laid down in the said sub-section.

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Reliance  was also placed on a decision of a Division  Bench of the Patna High Court in Rebati Ranjan and Another v.  The State  of Bihar and Others(1) where, interpreting this  very law, that Court held : "I do not think that the argument  of the  learned  counsel  is  correct.   In  my  opinion,   the publication  in the two newspapers referred to in s.  3  (2) and  the  despatch  of  the  copy  of  the  notification  by registered  post  to the proprietor of the  estate  are  not mandatory  provisions  in the sense that failure  to  comply with those provisions would invalidate the notification made under  s.  3 (1).  The provision as to the  publication  and posting  of  the notification to the  proprietor  is  merely directory.   It  cannot  have  been  the  intention  of  the legislature  that  the validity of the  notification  issued under  s. 3 (1) should depend upon the subsequent action  of the   authorities   in  publication  and  posting   of   the notification.   The provision enacted in s. 3 (2) is  merely intended  for  the  purpose of  giving  information  to  the proprietors  concerned.   This  view  is  supported  by  the phrasing of s. 3 (1) which states that the State Govern may, from  time  to  time, by  notification,  declare  that  "the estates  or  tenures  of  a  proprietor  or   tenure-holder, specified  in the notification, ’have passed to  and  become vested’ in the State." The phrase "have passed to and become vested",  grammatically  construed, must, mean that  on  the date  the  notification is issued the title  to  the  estate becomes  vested in the State Government irrespective of  any question  as to the publication and posting contemplated  in s.  3(2)  It  is also important to notice  that,  s.  2  (h) defines "date of vesting;, to mean in relation to an  estate or  tenure vested in the Slate, the date of  publication  in the Official Gazette of the notification under sub-s. (1) of s. 3 in respect of such estate or tenure."’ With respect, we are  unable to agree with the view expressed by that  Court. It  appears that, in giving this interpretation,  the  Court ignored several salient features.  The Court did not  notice that,   even  though  sub-s.  (1)  of  s.  3  required   the notification  to state that the estates have passed  to  and become vested in the State, the actual’ vesting was not  the result  of the mere issue of that declaration by  the  State Government.   The  vesting took effect as a  result  of  the provision contained in s. 4(a) of the Act and that laid down that  this effect was to come into force on  publication  of the  notification.  No notice was taken of the fact that  in s.  4  the  publication laid down was not  confined  to  the publication in the Official Gazette.  The Court further  did not appreciate the significance- (1)  A. 1. R. 1953 Patna 121. 770 of the expression "at least" used in sub-s. (2) of s. 3  and tile  further fact that this sub-section did not  merely  in general terms direct publication in newspaper but went on to specify that the notification must be published as a minimum in  two  issues  of two  :newspapers.   Such  a  requirement indicates  the  emphasis  laid by the  legislature  on  this manner of publication.  Tile Court also did not consider the aspect  that the definition of "date of vesting" in s.  2(h) of the Act could have been intended only for the purpose  of designating  with  certainty the date from  which  the  pro- prietor was divested of his rights so as to vest them in the State  ,,Government.   On  the consideration  of  all  these aspects,  we hold that, in order to divest a  proprietor  of his  rights  in  the  estate,  it  was  essential  that  the notification  be  published in at least two  issues  of  two newspapers.

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In  this  connection,  another aspect is that s.  4  of  the Amending Act also amended sub-s. (2) of s. 3 of the Act  and by  this  amendment, the requirement of  publication  in  at least  two  issues  of two newspapers was  omitted.   It  is significant   that  this  amendment.  bringing  about   this commission  in sub-s. (2) of. s. 3 of the Act, was not  made retrospective in the manner in which the amendments in  sub- s.  (3 ) of s. 3 were made retrospective.  If the  intention of the legislature, when passing the Amending Act, was  that even notifications issued, earlier, which had been published in  the  ,,Official Gazette without being published  in  two issues of two newspapers, should be made fully effective  so as to bring about divesting of the rights of the  proprietor in  the  estate,  that  intention  could  have  been  easily indicated by making this amendment also retrospective.   The fact  that the amendment of sub-s. (2) of s. 3 was not  made retrospective  can,  therefore, only lead to  the  inference that,  though  the  legislature, after the  passing  of  the Amending Act, did away with the necessity of publication  of the   notification   in   the   newspapers,   it   did   not retrospectively  make  effective  those  notifications,   in respect  of which there had been failure to comply with  the requirements  of  sub-s.  (2)  of  s.  3,  by  omitting  the publication  in  two  issues of  two  newspapers.   In  this connection, it may be mentioned that, in the case before us, even  in  the trial Court, it appears to have  been  assumed that  the  amendment  of sub-s. (2) of  s.  3  omitting  the requirement  of  publication in the  newspapers  was  also retrospective  and that is also the basis on which the  High Court proceeded.  The fact that this amendment in sub-s. (2) of  s. 3 was not retrospective was noticed only  during  the course  of  the hearing of this appeal in  this  Court  and, since it was a pure question of law, we allowed the case  to be  argued on its basis, even though it appears that in  the High  Court,  because  of  failure  to  realise  that   this amendment  was not retrospective, the finding of  the  trial Court  that the estate of defendant No. I had vested in  the State of Bihar by virtue of notification 771 dated  14th  November, 1951, issued under s. 3 of  the  Act, was.  not  challenged  during the  hearing  of  the  appeal. Factually,  it  appears from the pleadings  of  the  parties that, on behalf of the plaintiff as well as defendant No. 1, the  case  put  forward was that  the  notification  of  6th November,  1951  was only published in the Gazette  on  14th November,  1951, but was not published in any newspapers  so far  as  the  parties were aware.  The  pleadings  on  facts having  been  specifically taken and the  case  having  been fought  out on that basis in the trial Court, we  considered it right that the omission on the part of defendant No. 1 in the High Court noticed in its judgment should not be allowed to  stand in the way of defendant No. I basing his  case  on the correct interpretation of law. Coming  to  the  factual aspect, it  appears  that,  in  the plaint,, the plaintiff had specifically pleaded that, though a  notification purporting to vest the estate of  defendant No.  1  in defendant No,. 2 was published  in  the  Official Gazette  of  14th  November,.  1951,  yet  it  was   neither published  in two newspapers, nor a copy of it was  sent  to defendant  No. 1 as required by s. 3 (2) of the  Bihar  Land Reforms Act, 1950, at the time.  This pleading was contained in  clause  (a) of para 13 of the plaint.  Defendant  No.  1 also,  in para 9 of his written statement, pleaded that  "So far  as, this defendant is aware, no notification  was  ever published  in any newspaper of the State of Bihar,  nor  any

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notice under registered cover was sent to him under  section 3(2)  of  the Bihar Land Refoms Act".  Defendant No.  2,  in para  11 of its written statement, put forward its  pleading in reply to parts 13 and 14 of’ the plaint and. in doing so, stated  in general terms that, in fact,. all the  provisions of  law were complied with.  The further pleading  was  that "Although facts as noted in clauses (b) and (c) are correct, the  allegation made in. clause (a) is not  wholly  correct. It  is  not true that copy of the notification was  sent  by registered  post  for  the  first  time  as  noted  in  this paragraph."  This  pleading on behalf of  defendant  No.  2, thus,  shows  that defendant No. 2 did not put  forward  any specific  plea  with  regard  to  the  publication  of   the notification  in the newspapers, the omission of  which  had been  mentioned  in  para 13 of the  plaint.   The  specific pleading   was  only  with  regard  to  the  copy  of   ’the notification  being sent to defendant No. 1. In para  13  of the  written  statement also; there was a pleading  only  in general   words  that  there  was  valid  notification   and publication according to the provisions of the law.  So  far as  the plaintiff and defendant No. 1 were  concerned,  they could  only plead ignorance of the publication in the  news- papers  and  could  not give any positive  evidence  of  the negative  fact  of non-publication.  Defendant No.  2  alone could  have specifically pleaded that the  notification  was published  in  two issues of two newspapers, if that  was  a true fact; but defendant No. 2 failed to do so. 7 7 2 The  evidence on this point also could only be  produced  on behalf of defendant No. 2 to prove the actual publication in the newspapers.  So far as defendant No. I was concerned, he supported  his  pleading in his written statement  when,  in the,  witness-box,  he stated that he was not aware  of  any publication of notification of vesting of his estate in  the year  1951 in any newspaper.  On behalf of defendant No.  2, it  appears  that no attempt was made to  lead  evidence  to prove this publication in the newspapers.  Only one witness, Radhika  Prasad, who had been working in the office  of  the Additional Collector, was produced to indicate the manner in which  the notification was dealt with.  In his  examination -in-chief, the only positive evidence which he gave was that the notice in respect of the notification published in  the Official Gazette on 14th November 1951, was sent for service on defendant No. 1 through a Nazarat peon.  He did not  make any  statement that it was published in any  newspaper.   In cross-examination,  however, when effort was made on  behalf of  defendant  No.  1  to  make  sure  that  there  was   no publication in the newspapers, the witness stated that  that notification  had  been  published in  ’Bihar  Sandesh’  and ’Bihar  Samachar’.   He did not, even at that  stage,  state that it was published in two issues of those two newspapers. Further,  it appears that he had no personal knowledge,  nor any  such knowledge derived from records on  which  reliance could be, placed.  He admitted that there was no note in the order-sheet regarding the publication of the notification in the  newspapers,  and  that, in his office,  there  were  no cuttings of the newspapers.  Payments were also not made  to the  newspapers from his office.  It seems from his  further reply that his knowledge was derived from a letter  received from  the  Government  regarding  the  publication  of   the notification  in the said newspapers.  Even that letter  has not  been  produced and the witness did not give  fully  the contents  of that letter.  All that he stated was  that  the letter from the Government was regarding the publication  of the  notification in those two newspapers.  This content  of

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the letter does not indicate whether the letter was merely a direction  from  the  Government to have  it  published,  or contained  any material showing that there already had  been publication of the notification in these newspapers.  It was in view of these circumstances that, when this case came  up before  this Court on an earlier date, the Court decided  to give an opportunity to defendant No. 2 to produce the issues of  the  newspapers.  Even though adequate  opportunity  was offered,   learned  counsel,  who  appeared  before  us   to represent  defendant  No.  2,  expressed  his  inability  lo produce,  them.   Failure  to  produce  the  issues  of  the newspapers,  in  which  the  notification  might  have  been published, can only lead to the inference that there was, in fact,  no  such publication, particularly in  the  state  of evidence noticed above.  In the circumstances, we have  come to the conclusion that, in fact, there was no publication               7 7 3 in  two issues of two newspapers as required by s. 3 (2)  of the  Act  when  the  notification  was  published  on   14th November,  1951  in  the Official  Gazette.   This  omission brought about non-compliance with the mandatory provision of s. 3(2) requiring publication in at least two issues of  two newspapers, with the result that s. 4(a) of the Act did  not become applicable at that time and, consequently, it must be held that defendant No’ I continued to be the proprietor and was  not  divested  of his rights in  the  estate,  by  this notification at that stage.  On the record of this ’case, no material was forthcoming to show that that notification  was ever published in any newspapers even subsequently; but,  in the  lower  courts, the case proceeded on the basis  of  the admission.   by  defendant  No.  I  himself  that   he   was dispossessed on 13th June, 1952 and it was with effect  from that  date that he was divested of his  proprietary  rights. Consequently,  he had the full right to grant the lease  to. the plaintiff on 12th April, 1952 and the rights under  that lease were exercised by the plaintiff during the period when defendant  No. I was still the proprietor.  The  lease-money was,  in these circumstances, rightly realised by  defendant No.  1  from the plaintiff.  Defendant No. 2, in  which  the rights  did not vest until 13th June, 1952, had no right  to realise  the lease-money for the year 1952, because, by  the time the rights vested in defendant No. 2, the collection of Bidi  leaves  for  that  year  had  been  completed  by  the plaintiff.   In  the circumstances, on  this  ground  alone, defendant  No.  1 is entitled to succeed in respect  of  the decree  for the sum of Rs. 22,500/- which he was not  liable to  pay, so that the decree against him has to  be  vacated. Instead,  the decree for this sum has to be  passed  against defendant  No.  2, as the sum of Rs.  22,500/-  realised  by defendant No. 2 from the plaintiff was not justified  tinder law,  because  the rights of the lessor had  not  vested  in defendant No. 2 for the year 1952. As  a  result, the decree passed by the High  Court  is  set aside  and the decree made by the trial Court  is  restored. In the circumstances of this case, we direct parties to bear their own costs of this appeal. Y.P.                                Appeal allowed. 774