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PETITIONER: KHUB CHAND AND ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT: 22/08/1966

BENCH: RAO, K. SUBBA (CJ) BENCH: RAO, K. SUBBA (CJ) SHELAT, J.M.

CITATION:  1967 AIR 1074            1967 SCR  (1) 120  CITATOR INFO :  F          1973 SC 552  (2)  R          1976 SC 263  (13)  R          1984 SC1721  (1,5)  F          1985 SC1622  (13)  RF         1991 SC 711  (13)

ACT: Rajasthan Land Acquisition Act (24 of 1953), ss. 4 and 5(2)- Giving  of public notice of substance of Notification  under s. 4 at convenient places in locality-If mandatory.

HEADNOTE: In   1957,   the  Government  of   Rajasthan   published   a notification  under s. 4 of the Rajasthan  Land  Acquisition Act;  1953,  to  the effect that the  appellants’  land  was needed  for  a  public purpose.  The public  notice  of  the substance  of the notification to be given by the  Collector at  convenient  places in the locality, as  required  by  s. 4(1),  was however not given.  In January 1958 and  February 1959, notifications under as. 5(2) and 6 respectively of the Act,  were published in the local Gazette.  Thereafter,  the officer  originally appointed by the Government  to  perform the  functions  of a Collector under the Act  continued  the acquisition   proceedings   in   spite   of   a   Government notification  of  June  1959, whereby  another  officer  was appointed to perform those functions.  The appellants  filed objections  questioning his jurisdiction and stopped  taking part  in  the proceedings.  On 11th  December,  1959,  after making ex parte enquiries, the officer made an award, and on 27th  June  1960, he made :a second  award  superseding  the first.   The  appellants  came  to know  of  the  awards  in September  1960.   In October 1960, they  filed  a  petition under Art. 226, challenging the validity of the  proceedings on  the  ground,  inter alia, that the  requirement  of  the giving  of  the public notice under s.  4(1)  at  convenient places  of  the locality was, mandatory, and as it  was  not complied with, the entire acquisition proceedings were void. The High Court agreed with the contention but dismissed  the petition  on  the ground that the objection was taken  at  a belated stage. HELD: (i) The provision in ss. 4(1), requiring public notice was  mandatory and non-compliance with it was fatal  to  the

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entire acquisition proceedings. [125 H] Section  4(1)  says that the Collector  shall  cause  public notice  of the ,,substance of such notification to be  given at  convenient  places in the said locality.   If  the  word "shall" is, construed as "may" the object of the sub-section will  be defeated.  The object is to give intimation to  the person whose land is sought to be acquired, of the intention of  the  officer to enter the land.  Under s. 4(2),  such  a notice  is  a necessary condition for the  exercise  of  the power  of entry and non-compliance with the condition  makes the entry of the officer or his servants unlawful. [125 F-H] The  fact that the owner may have notice of the  particulars of the intended acquisition under s. 5(2) does not serve the purpose  of s. 4, for a notice under s. 5(2) is given  after the  officer  enters the land and  submits  the  particulars mentioned in s. 4. [125 C] Babu  Barkya Thakir v. The State of Bombay, [1961] 1  S.C.R. 128,explained. (ii) The  High Court was in error in holding, on the  facts, that there was inordinate    delay    in    invoking     its jurisdiction. [127 D] 121

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 85 of 1964, Appeal  from the judgment and order dated April 17, 1963  of the  Rajasthan High Court in D. B. Civil Writ  Petition  No. 410 of 1960. Sarjoo Prasad and A. G. Ratnaparkhi, for the appellant. G. C. Kasliwal, Advocate-General for the State of Rajasthan. B. P. Maheshwari and R. N. Sachthey, for the respondents. The Judgment of the Court was delivered by Subba  Rao,  C.J.  This appeal by  certificate  is  directed against  the  judgment  of the High Court  of  Rajasthan  at Jodhpur,  dismissing  the petition filed by  the  appellants under Art. 226 of the Constitution. The  relevant facts may be briefly stated.  By a  registered sale deed dated December 10, 1958, the appellants  purchased the land comprised in Khasra Nos. 158 and 182/2 situated  in village  Sangaria  in  Tehsil Hanumangarh in  the  State  of Rajasthan.    On  February  14,  1957,  the  Government   of Rajasthan published a notification No. 7 (104) Rev/(A) dated October  19,  1956,  under  s.  4  of  the  Rajasthan   Land Acquisition  Act, 1953, hereinafter called the Act,  to  the effect that the said land, along with others, was needed  or likely  to  be  needed  for the  public  purpose  of  laying township   and  orchards.   On  January  9,  1958,   another notification was published in the Rajasthan Gazette under s. 5(2)   of  the  Act.   On  February  3,  1959,   a   further notification  under  S. 6 of the Act was  published  in  the Rajasthan  Gazette  in  respect  of  the  said  land.    The Government of Rajasthan, in exercise of the powers under  s. 3(c)  of the Act, issued a notification dated September  10, 1955,  appointing  the  Deputy  Director  of   Colonisation, Suratgarh  Division  with headquarters  at  Hanumangarh,  to perform  the functions of a Collector under the  Act  within the local limits of his jurisdiction.  On July 30, 1959, the said Government published a notification dated June 4, 1959, ,in  modification of the previous  notification,  appointing the   Deputy  Director  of  Colonisation,  Rajasthan   Canal Project, then having headquarters at Bikaner, to perform the said  functions within the districts of Ganganagar,  Bikaner and  Jaisalmer.  Notwithstanding the said notification,  the

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Deputy  Director of Colonisation, Suratgarh  exercising  the functions   under   the  Act,  continued   the   acquisition proceedings.   The appellants filed  objections  questioning the jurisdiction of the said Deputy Director to proceed with the  enquiry  and thereafter they did not take part  in  the proceedings.   On December II, 1959, after making  ex  parte enquiries, the said Deputy Director made an award which  for convenience of reference may be  4 Sup CI/66--9 122 referred  to  as  Award  No.  1.  In  the  said  award,  the appellant’s  land was valued at Rs. 614 per bigha.  But,  on June 27, 1960 the said Deputy Collector made another  award, hereinafter referred to as Award No. 2, setting aside  Award No.  1 and giving compensations to the appellants’  land  at the  rate of Rs. 442 instead of at Rs. 614 per  bigha.   The appellants  filed  the writ petition in the  High  Court  of Rajasthan challenging the validity of the said proceedings. The contentions raised by the parties before the High  Court need  not  be particularised as they are apparent  from  the following findings given by it: (1) The provision of s. 4 in the  Act, namely, that a public notice of the  substance  of the notification should be given at convenient places in the locality  of the land in dispute, is mandatory and the  Land Acquisition Officer did not comply with the same; but as the objection  raised  by  the appellants  in  that  regard  was belated  it could not be allowed to be taken at that  stage. (2)  The direction given by the Rajasthan Government to  the Deputy  Director  of Colonisation,  Suratgarh  Division,  to exercise  the powers of the Land Acquisition  Officer  under the Act was not withdrawn, either expressly or by  necessary implication,  by  the notification dated June  4,  1959,  by which  the Deputy Director of Colonisation, Rajasthan  Canal Project,   was  authorised  to  perform  the  functions   of Collector within the three districts mentioned therein.  (3) Award No. 1 dated December 11, 1959, which related to Khasra No.  158  had become final and it could not  be  altered  by Award No. 2 in regard to the said Khasra number.  In  effect and substance, the High Court held that both the awards were valid but Award No. 2 should be confined only to Khasra  No. 182/2.   In the result, the petition was  dismissed.   Hence the appeal. The learned counsel for the appellants raised before us  the following   three   points:  (1)  The   entire   acquisition proceedings were void inasmuch as the mandatory provision of s. 4 of the Act was not complied with. (2) After the  Deputy Director of Colonisation, Rajasthan Canal Project, had  been authorised  to perform the functions of a Collector, in  the districts  of Ganganagar, Bikaner and Jaisalmer, the  Deputy Director   of   Colonisation,   Suratgarh   Division,   with headquarters  at Hanumangarh, who was appointed  earlier  to perform  the functions of a Collector under the  Act  within the  local  limits  of the  said  jurisdiction,  had  become functus  officio  in regard to the instant  acquisition  and therefore, the proceedings conducted by him thereafter  were null  and  void.  (3) Under the Land  Acquisition  Act,  the Collector thereunder could make only one award in respect of a notification and, therefore, when he made the first  award in respect of the notification he became functus officio and therefore,  the second award made by him in respect  of  the same notification was void. 123 The  learned  Advocate-General of Rajasthan  questioned  the correctness of every one of the said contentions.  We  shall advert to his contentions in the relevant contexts.

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             Sections 4, 5, and 5A of the Act read:               "Section   4.   Publication   of   preliminary               notification    and   powers    of    officers               thereupon.-               (1) Whenever it appears to the Government that               land in any locality is needed or is likely to               be   needed   for  any   public   purpose,   a               notification to that effect shall be published               in  the Rajasthan Gazette, and  the  Collector               shall cause public notice of the substance  of               such  notification to be given  at  convenient               places in the said locality.               (2)  Thereupon  it  shall be  lawful  for  any               officer, generally or specially authorised  by               the  Government  in this behalf, and  for  his               servants and workmen,-               (a)   to enter upon and survey and take levels               of any land in such locality;               (b)   to dig or bore into the sub-soil;               (c)   to  do  all  other  acts  necessary   to               ascertain whether the land is adapted for such               purpose;               (d)   to  set out the boundaries of  the  land               proposed to be taken and the intended line  of               the work (if any) proposed to be made thereon;               (e)  to mark such levels, boundaries and  line               by  placing  marks and cutting  trenches;  and               where otherwise the survey cannot be completed               and  the levels taken and the  boundaries  and               line  marked, to cut down and clear  away  any               part of any standing crop, fence or jungle: Section  5.  Report  by Collector.-(1) The  Collector  or  a Revenue  Officer  specially empowered by the  Government  in this behalf shall forward to the Government with his remarks a  report  on the result of the survey, if  any,  and  other operations  described in and taken under sub-section (2)  of section 4. (2)  After considering the report, if any,  submitted  under sub- section (1) or, if no such report has been received, at any  time  after the issue of the  notification  under  sub- section  (1)  of section 4, the Government shall  publish  a further  notification  in  the  Rajasthan  Gazette,   giving sufficient  description of the land already  notified  under the  said  sub-section (1) of section 4 to enable it  to  be identified  and  stating the purpose for which it is  or  is likely to be needed, 124               its approximate area and situation and,  where               a  plan has been made of the land,  the  place               where  such  plan may be  inspected,  and  the               Collector  shall  cause public  notice  to  be               given  of  the substance of the  said  further               notification at convenient- places on or  near               the land to be acquired.               Section  5A.  Hearing of  objections.-(1)  Any               person  interested in any land which has  been               notified  under section 5 as being  needed  or               likely to be needed for public purpose or  for               a  company may, within thirty days  after  the               issue  of  the  notification,  object  to  the               acquisition of the land or of any land in  the               locality, as the case may be." The learned Advocate-General argued that a combined  reading of  ss.  4,  5 and 5A indicates that the  direction  in  the second  part of s. 4 that the Collector shall  cause  public

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notice  of the substance of the notification to be given  at convenient  places in the said locality was only  directory. He pointed out that s. 4 contemplated only a notification in general.  terms and that under s. 5(2), after the  Collector ascertained the necessary particulars, the Government had to issue a fresh notification giving sufficient description  of the  land intended to be acquired along with a plan, if  one had been made, and also to cause a public notice to be given of  the  substance of the said  notification  at  convenient places  on or near the land to be acquired.  As two  notices were  contemplated  by  the Act one  in  general  terms  and another  with specifications-and as both the notices  should be  published  and  their substance should  be  notified  at convenient   places,  the  argument  proceeded,   that   the direction  to cause a public notice of the substance of  the notification  to be given at convenient places in  the  said locality under s. 4 was only directory, for the party  would get under the later notification better particulars and thus he would not in any way be prejudiced. This  argument was not accepted by the High Court,  and,  in our  view, rightly.  The provisions of a statute  conferring power on the Government to compulsorily acquire lands  shall be  strictly construed.  Section 4 in clear terms says  that the Collector shalt cause public notice of the substance  of such  notification to be given at convenient places  in  the said  locality.   The  provision  is  mandatory  in   terms. Doubtless,  under  certain  circumstances,  the   expression "shall"  is  construed as "may".  The term  "shalt"  in  its ordinary  significance  is  mandatory and  the  court  shall ordinarily give that interpretation to that term unless such an  interpretation  leads  to some  absurd  or  inconvenient consequence  or  be  it  variance with  the  intent  of  the legislature,  to be collected from other parts of  the  Act. The  construction  of the said expression,  depends  on  the provisions of a particular Act, the setting in 125 which  the  expression  appears, the object  for  which  the direction  is given, the consequences that would  flow  from the   infringement   of  the  direction   and   such   other considerations.  The object underlying the said direction in s. 4 is obvious.  Under sub-s. (2) of s. 4 of the Act, after such  a  notice  was given, the officer  authorised  by  the Government in that behalf could enter the land and interfere with  the possession of the owner in the  manner  prescribed thereunder.  The Legislature thought that it was  absolutely necessary  that  before such officer can enter the  land  of another, the owner thereof should have a clear notice of the intended entry.  The fact that the owner may have notice  of the  particulars of the intended acquisition under  s.  5(2) does not serve the purpose of s. 4, for such a notice  shall be given after the appropriate officer or officers enter the land  and  submit  the particulars mentioned in  s.  4.  The objects  of the two sections are different : the  object  of one  section is to give intimation to the person whose  land is sought to be acquired, of the intention of the officer to enter his land before he does so and that of the other is to enable  him  to know the particulars of the  land  which  is sought  to be acquired.  In the Land Acquisition  Act,  1894 (Central Act 1 of 1894) there is no section corresponding to s.  5(2) of the Act.  Indeed sub-s. (2) of s. 5 of -the  Act was omitted by Act 15 of 1960 and s. 5A was suitably amended to  bring  the said provision in conformity  with  those  of Central Act 1 of 1894.  Whatever may be said on the question of construction after the said amendment-on which we do  not express  any  opinion-before the amendment, ss. 4  and  5(2)

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were intended to serve different purposes. Indeed, the wording of s. 4 (2) of the Act leads to the same conclusion.  It says, "thereupon it shall be lawful for  any officer, generally or specially authorised by the Government in  this behalf, and for his servants and workmen  to  enter upon  and  survey  and  take levels  of  any  land  in  such locality...........  The expressions "thereupon" and  "shall be  lawful"  indicate that unless such a  public  notice  is given,  the officer or his servants cannot ,enter the  land. It is a necessary condition for the exercise of the power of entry.  The non-compliance with the said condition makes the entry  of  the  officer or his servants  unlawful.   On  the express terms of sub-s. (2), the officer or his servants can enter  the  land to be acquired only if  that  condition  is complied  with.   If  it is not complied  with,  he  or  his servants cannot exercise the power of entry under s. 4  (2), with the result that if the expression " shall" is construed as  "may",  the  object of the sub-section  itself  will  be defeated.   The  statutory intention  is,  therefore  clear, namely,  that the giving of public notice is mandatory.   If so,  the  notification issued under s. 4  without  complying with the said mandatory direction would be void and the land acquisition  proceedings  taken pursuant  thereto  would  be equally void. 126 Reliance  is placed by the learned Advocate-General  on  the decision of this Court in Babu Barkya Thakur v. The State of Bombay(1).   There, the notification under s. 4 did not  say specifically that the land sought to be acquired was  needed for  a public purpose, but it gave the necessary details  in regard  to the purpose for which the land was sought  to  be acquired.   It  was  argued  that  the  non-mention  of  the expression  "public purpose" invalidated. the  notification. Dealing with the argument, this Court observed:               What  was a mere proposal under s.  4  becomes               the  subject matter of a  definite  proceeding               for acquisitions under the Act.  Hence, it  is               not  correct  to say that any  defect  in  the               notification under s. 4 is fatal to the  vali-               dity of the proceedings, particularly when the               acquisition  is for a Company and the  purpose               has  to be investigated under s. 5A or  s.  40               necessarily after the notification under s.  4               of the Act." In that case a formal defect was sought to be relied upon to invalidate  the  notice and this Court did  not  accept  the contention,  But it cannot be an authority for the  position that,  if a public notice of the notification was not  given as prescribed by s. 4, it can be ignored.  That would be re- writing the section. The  decision of this Court in Smt.  Somavanti v, The  State of  Punjab(2)  is  also  beside  the  point.   The  argument advanced therein was that the notification under s. 6 should succeed the notification under s. 4 and that it could not be legally published in the same issue of the Gazette.  Dealing with that argument, this Court observed:               "In   the  case  before  us  the   preliminary               declaration under s. 4 (1) was made on  August               18,   1961,  and  a  declaration  as  to   the               satisfaction  of the Government on August  19,               1961,  though both of them were  published  in               the   Gazette   of  August  25,   1961.    The               preliminary   declaration  as  well   as   the               subsequent  declaration are both  required  by               law  to be published in the official  gazette.

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             But   the   law  does  not  make   the   prior               publication  of notification under sub-s.  (1)               of   s.  4  a  condition  precedent   to   the               publication of a notification under sub-s. (1)               of S. 6." On  the  said  ground the  contention  was  rejected.   This decision  also has no bearing on the point raised before  us Indeed  the following observation made by this Court in  the course (1) (1961] 1 S.C.R. 128, 140. (2) [1963] 2 S.C.R., 774,823, 822. 127 of the judgment, to some extent, goes against the contention of the respondent:               "A notification under sub-s. (1) of s. 4 is  a               condition   precedent   to   the   making   of               notification under sub-s. (1) of s. 6." In  the present case, the High Court, as we  have  expressed earlier  rightly held that the provision for  public  notice was  mandatory  but disallowed the objection on  the  ground that  it  was  rather  belated,  We  find  it  difficult  to appreciate  the said reasoning.  This is not a case where  a party,  who  submitted  himself to  the  jurisdiction  of  a tribunal,  raised the plea of want of jurisdiction when  the decision  went  ’against him; but this is a case  where  the appellants questioned the jurisdiction of the tribunal  from the  outset  and refused to take part  in  the  proceedings. Though  the  notification under s. 4 was  published  in  the Rajasthan Gazette on February 14, 1957, Award No. I was made on December 11, 1959 and Award No. 2, on June 27, 1960.  The appellants  say that they came to know that the awards  were made only on September 15, 1960, and they filed the petition on  October 26, 1960.  It ’cannot, therefore, be  said  that there  was  such  an inordinate delay  as  to  preclude  the appellants from invoking the jurisdiction of the High  Court under Art. 226 of the Constitution. In this view, it is not necessary to express our opinion  on the  other two questions raised by the learned  counsel  for the appellants. In the result, the appellants will be entitled to a writ  of prohibition  restraining the respondents from giving  effect to the said two awards.  The order of the High Court is  set aside  and  the  writ petition filed  by  the  appellant  is allowed with costs here and in the court below. V.P.S.                           Appeal allowed. 128