REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  2255 OF 2006

May George   …. Appellant

Versus

Special Tahsildar & Ors.   …. Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This  appeal  has  been  filed  against  the  judgment  and  order  

dated 13.9.2004 passed by the High Court of Madras dismissing the  

Writ  Appeal No.1692 of 1997 by which the Court has affirmed the  

judgment and order of the Learned Single Judge dated 4.12.1997 in  

Writ Petition No.14319 of 1986 wherein the appellant had challenged  

the Award made under section 11 of the Land Acquisition Act, 1894  

(hereinafter  called  the  Act)  on  the  ground  that  he  had  not  been  

served with the notice under section 9(3) of the Act.  

2. Facts  and  circumstances  giving  rise  to  this  case  are  that  

Notification  under  Section  4  of  the  Act  was  issued  on  7.1.1976  

covering the area to the extent of 30.80 acres being part of different  

survey  numbers  and  belonging  to  large  number  of  persons  in  

Seevaram Village, Saidapet Taluk, Chingleput  District of Tamil Nadu  

for  planned  development  of  Electrical/Electronics  Industrial  Estate  

including appellant’s land measuring 33 cents therein in Survey No.  

36/1A/1.   Considering  grave  urgency,  filing  of  objections  under  

Section 5A of the Act were dispensed with and provisions of Section  

17 of the Act were resorted to.  Declaration under Section 6 of the Act  

was made on 1.10.1976 and Award under Section 11 was made on  

16.11.1979 in respect of entire land covered by the said Notification  

and Declaration.   

3. Appellant  claimed  that  she  had  purchased  the  said  land  on  

27.9.1961  and  mutation  had  taken  place,  thus  her  name  stood  

recorded in the revenue record.  Appellant’s grievance has been that  

she had never been aware of the acquisition proceedings and she  

was not served with notice under section 9(3) of the Act.  She was  

never dispossessed from the said part of the land.  She was granted  

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temporary  licence  for  establishing  Small  Scale  Industries  on  

24.11.1984  and  a  permanent  certificate  for  the  said  purpose  on  

31.1.1986.   

4. She got the information first  time that a part of her land had  

been acquired only on receiving the notice dated 8.12.1986 issued by  

Respondent-Department  to  the  effect  that  she  was  in  illegal  

possession and occupation of the said part of the land and she was  

directed to demolish the structure put up by her.   

5. Appellant, after collecting the required documents, approached  

the High Court by filing the Writ Petition No.14319/86 challenging the  

Award dated 16.11.1979 and other subsequent proceedings.  The Ld.  

Single Judge dismissed the petition vide judgment and order dated  

4.12.1997.   

6. Being aggrieved, appellant preferred the Writ Appeal No.1692  

of  1997 which has also been dismissed vide impugned Judgment.  

However,  the Court  has given liberty  to  the appellant  to  move an  

application for making reference under section 18 of the Act within a  

period of two weeks from the date of receipt of the order and further  

directed the Land Acquisition Collector to make a reference, if such  

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an application is filed within a period of four weeks thereafter, and the  

Court further directed the Tribunal to decide the reference within a  

period  of  three  months  from the  date  of  its  receipt.   Hence,  this  

appeal.   

7. Shri Shekhar Naphade, Ld. Senior Counsel appearing for the  

appellant has raised large number of issues and made an attempt to  

challenge the entire acquisition proceedings though the limited prayer  

of  quashing  the  Award  was  made  before  the  High  Court.   Shri  

Naphade  has  submitted  that  the  provisions  of  Section  9  are  

mandatory  in  nature  and non-compliance thereof  would  vitiate  the  

Award and all other consequential proceedings.   Appellant had never  

been  aware  of  issuance  of  Section  4  Notification  or  Section  6  

Declaration  or  Award  made thereafter.   No  notice  had  ever  been  

served upon her in respect of acquisition proceedings.  Therefore, the  

appeal deserves to be allowed.   

8. Per contra, Shri R. Venkataramani, Ld. Senior Counsel for the  

respondents has submitted that the Notification under Section 4 and  

Declaration under Section 6 of the Act had been given due publicity  

as per the requirement of law.  Section 9(3) notice had been affixed  

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on the land as the appellant was not available.  Even otherwise, the  

provisions of Section 9(3) are not mandatory and therefore, would not  

vitiate the Award or any other subsequent proceedings.  More so, the  

High Court  had given liberty to the appellant  to make a reference  

under Section 18 thus, appellant cannot raise the grievance at all.  

Reference under Section 18 of the Act would be time barred and the  

High Court had no competence to enhance the period of limitation.  

The appeal is devoid of any merit and hence, liable to be dismissed.   

9. We have  considered  the  rival  submissions  made by learned  

counsel appearing for the parties and perused the record.

10. Land measuring 30.80 acres stood notified and acquired.  The  

land  consisted  of  large  survey  numbers  and  belonged  to  a  large  

number of persons.  It is not the case of the appellant that Notification  

under Section 4 and Declaration under Section 6 were not published  

or  given  publicity  as  mandatorily  required  under  the  law.   Once,  

Award was made and possession had been taken, land stood vested  

in the State free from all encumbrances, it cannot be divested even if  

some irregularity is found in the Award.  As huge area of land had  

been acquired for planned development of industrial town, the land of  

the appellant cannot be exempted on any ground whatsoever.  More  

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so, appellant’s land was of negligible area in comparison of the total  

land acquired and therefore, at the behest of only one person, the  

acquisition proceedings cannot be disturbed.

11. Admittedly,  acquisition  proceedings/Award  have  been  

challenged at a belated stage after a decade of taking possession of  

the land in dispute.  In the facts and circumstances of this case, it is  

difficult to presume that appellant had no knowledge of the acquisition  

proceedings.  While dealing with a similar case, this Court in Swaran  

Lata etc. Vs. State of Haryana & Ors. JT 2010 (3) SC 602 has held  

as under:

“12. ………the  only  ground taken  in  the  writ  petition  has  been  that  substance  of  the  notification  under  Section 4 and declaration under Section 6 of Act 1894  had been published in the newspapers having no wide   circulation.  Even  if,  the  submission  made  by  the  petitioners is accepted, it cannot be presumed that they   could not be aware  of  acquisition  proceedings for the  reason that very huge chunk of land belonging to large  number  of  tenure  holders  had  been  notified  for  acquisition.  Therefore, it should have been a talk of the   town.  Thus,  it  cannot  be  presumed  that  petitioners  could  not  have  knowledge  of  the  acquisition   proceedings.”  

In  Swaran Lata (supra),  this  Court  has held  that  acquisition  

proceedings cannot be challenged at a belated stage.    

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12. The  only  question  remains  for  our  consideration  is  as  to  

whether the provisions of Section 9(3) are mandatory in nature and  

non-compliance  thereof,  would  vitiate  the  Award  and  subsequent  

proceedings  under  the  Act.   Section  4  Notification  manifests  the  

tentative  opinion  of  the  Authority  to  acquire  the  land.   However,  

Section  6  Declaration  is  a  conclusive  proof  thereof.   The  Land  

Acquisition  Collector  acts  as  Representative  of  the  State,  while  

holding proceedings under the Act, he conducts the proceedings on  

behalf of the State.  Therefore, he determines the pre-existing right  

which  is  recognised  by  the  Collector  and  guided  by  the  findings  

arrived  in  determining  the  objections  etc.  and  he  quantifies  the  

amount of compensation to be placed as an offer on behalf of the  

appropriate government to the person interested.   It is for the tenure  

holder/person  interested  to  accept  it  or  not.   In  case,  it  is  not  

acceptable to him, person interested has a right to ask the Collector  

to make a reference to the Tribunal.  

13. Section 9(3) of the Act reads as under :-

“The Collector  shall  also  serve notice to  the same  effect on the occupier (if any) of such land and on all   such  persons  known  or  believed  to  be  interested  therein,  or  to  be  entitled  to  act  for  persons  so  interested,  as  reside  or  have  agents  authorized  to  

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receive  service  on  their  behalf,  within  the  revenue  district in which the land is situate”

Section 9 of the Act provides for an opportunity to the “person-  

interested”  to  file  a  claim  petition  with  documentary  evidence  for  

determining the market value of the land and in case a person does  

not file a claim under Section 9 even after receiving the notice, he still  

has  a  right  to  make  an  application  for  making  a  reference  under  

Section 18 of the Act.  Therefore, scheme of the Act is such that it  

does not cause any  prejudicial consequence in case the notice under  

Section 9(3) is not served upon the person interested.

14. While determining whether a provision is mandatory or directory,  

in addition to the language used therein, the Court has to examine the  

context  in  which  the  provision  is  used  and  the  purpose  it  seeks  to  

achieve. It may also be necessary to find out the intent of the legislature  

for enacting it and the serious and general inconveniences or injustice  

to  persons  relating  thereto  from  its  application.  The  provision  is  

mandatory  if  it  is  passed  for  the  purpose  of  enabling  the  doing  of  

something and prescribes the formalities for doing certain things.

15. In Dattatraya Moreshwar Vs. The State of Bombay & Ors., AIR  

1952 SC 181, this Court observed that law which creates public duties  

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is  directory  but  if  it  confers  private  rights  it  is  mandatory.  Relevant  

passage from this judgment is quoted below:–

“It  is  well  settled that  generally  speaking the provisions of  the  statute creating public duties are directory and those conferring  private  rights  are  imperative.  When the  provision  of  a  statute  relate to the performance of a public duty and the case is such  that to hold null and void acts done in neglect of this duty would  work serious general inconvenience or injustice to persons who  have no control  over those entrusted with the duty and at the  same time would not promote the main object of legislature, it   has been the practice of the Courts to hold such provisions to be  directory only the neglect of them not affecting the validity of the   acts done.”

16. A Constitution Bench of this Court in  State of U.P. & Ors. Vs.  

Babu Ram Upadhya AIR 1961 SC 751, decided the issue observing :-

“For ascertaining the real intention of the Legislature,  the Court   may consider, inter alia, the nature and the design of the statute,   and the consequences which would follow from construing it the  one way or the other, the impact of other provisions whereby the   necessity of complying with the provisions in question is avoided,   the  circumstance,  namely,  that  the  statute  provides  for  a   contingency of  the non-compliance with the provisions,  the fact   that the non-compliance with the provisions is or is not visited by  some  penalty,  the  serious  or  trivial  consequences  that  flow  therefrom, and, above all, whether the object of the legislation will   be defeated or furthered.”

17. In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board,  

Rampur AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, AIR  

1975  SC  2190,  this  Court  held  that  as  to  whether  a  provision  is  

mandatory or directory, would, in the ultimate analysis, depend upon the  

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intent of the law-maker and that has to be gathered not only from the  

phraseology  of  the  provision  but  also  by  considering  its  nature,  its  

design and the consequence which would follow from construing it  in  

one way or the other.

18. In  Sharif-Ud-Din Vs. Abdul Gani Lone AIR 1980 SC 303, this  

Court held that the difference between a mandatory and directory rule is  

that  the former requires strict  observance while  in the case of  latter,  

substantial compliance of the rule may be enough and where the statute  

provides that failure to make observance of a particular rule would lead  

to  a  specific  consequence,  the  provision  has  to  be  construed  as  

mandatory.

19. Similar view has been reiterated by this Court in  Balwant Singh  

&  Ors.  Vs.  Anand  Kumar  Sharma  &  Ors. (2003)  3  SCC  433;  

Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors. AIR  

2003 SC 511; and  Chandrika Prasad Yadav Vs.  State of  Bihar &  

Ors., AIR 2004 SC 2036.

20. In  M/s. Rubber House Vs. M/s.  Excellsior Needle Industries  

Pvt. Ltd. AIR 1989 SC 1160, this Court considered the provisions of the  

Haryana (Control of Rent & Eviction) Rules, 1976, which provided for  

mentioning the amount of arrears of rent in the application and held the  

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provision to be directory though the word “shall” has been used in the  

statutory provision for the reason that non-compliance of the rule, i.e.  

non-mentioning  of  the  quantum  of  arrears  of  rent  did  involve  no  

invalidating consequence and also did not visit any penalty.

21. In B.S. Khurana & Ors. Vs. Municipal Corporation of Delhi &  

Ors. (2000)  7  SCC 679, this  Court  considered the provisions of  the  

Delhi  Municipal  Corporation Act,  1957, particularly those dealing with  

transfer  of  immovable  property  owned by the  Municipal  Corporation.  

After considering the scheme of the Act for the purpose of transferring  

the  property  belonging  to  the  Corporation,  the  Court  held  that  the  

Commissioner could alienate the property only on obtaining the prior  

sanction of the Corporation and this condition was held to be mandatory  

for  the  reason  that  the  effect  of  non-observance  of  the  statutory  

prescription  would  vitiate  the  transfer  though  no  specific  power  had  

been conferred upon the Corporation to transfer the property.

22. In  State of Haryana & Anr. Vs. Raghubir Dayal (1995) 1 SCC  

133, this Court has observed as under:–

“The  use  of  the  word  ‘shall’  is  ordinarily  mandatory  but  it  is   sometimes not so interpreted if the scope of the enactment, on   consequences  to  flow  from  such  construction  would  not  so   demand.  Normally,  the  word  ‘shall’  prima  facie  ought  to  be   considered  mandatory  but  it  is  the  function  of  the  Court  to  ascertain  the  real  intention  of  the  legislature  by  a  careful   examination  of  the whole  scope of  the  statute,  the purpose it   

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seeks to serve and the consequences that would flow from the  construction  to  be  placed thereon.  The word  ‘shall’,  therefore,   ought to be construed not according to the language with which it   is clothed but in the context in which it is used and the purpose it   seeks to serve. The meaning has to be described to the word  ‘shall;  as  mandatory  or  as  directory  accordingly.  Equally,  it  is   settled  law  that  when  a  statute  is  passed  for  the  purpose  of   enabling the doing of something and prescribes the formalities   which  are  to  be  attended  for  the  purpose,  those  prescribed   formalities which are essential to the validity of such thing, would   be  mandatory.  However,  if  by  holding  them to  be  mandatory,   serious general inconvenience is caused to innocent persons or   general public, without very much furthering the object of the Act,   the same would be construed as directory.”

23. In Gullipilli Sowria Raj Vs. Bandaru Pavani @ Gullipili Pavani  

(2009) 1 SCC 714, this Court  while dealing with a similar issue  held as  

under :

“…The expression “may” used in the opening words of Section 5  is not directory,as has been sought to be argued, but mandatory   and non-fulfilment thereof would not permit a marriage under the  Act between two Hindus.  Section 7 of the 1955 Act is to be read   along with Section 5 in  that  a  Hindu Marriage,  as understood   under  Section  5,  could  be  solemnised  according  to  the   ceremonies indicated therein”

24. The law on this issue can be summarised to the effect that in  

order to declare a provision mandatory, the test to be applied is as to  

whether  non-compliance  of  the  provision  could  render  entire  

proceedings  invalid  or  not.  Whether  the  provision  is  mandatory  or  

directory,  depends upon the intent of Legislature and not upon the  

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language for which the intent is clothed.  The issue is to be examined  

having  regard  to  the  context,  subject  matter  and  object  of  the  

statutory  provisions  in  question.  The  Court  may  find  out  as  what  

would be the consequence which would flow from construing it in one  

way  or  the  other  and  as  to  whether  the  Statute  provides  for  a  

contingency  of  the  non-compliance  of  the  provisions  and  as  to  

whether  the  non-compliance  is  visited  by  small  penalty  or  serious  

consequence would  flow therefrom and as  to  whether  a  particular  

interpretation  would  defeat  or  frustrate  the  legislation  and  if  the  

provision is mandatory, the act done in breach thereof will be invalid.

25. The instant case is required to be examined in the light of the  

aforesaid settled legal provision.   

In fact, failure of issuance of notice under section 9(3) would  

not adversely affect the subsequent proceedings including the Award  

and title of the government in the acquired land.  So far as the person  

interested  is  concerned,  he  is  entitled  only  to  receive  the  

compensation  and  therefore,  there  may  be  a  large  number  of  

disputes regarding the apportionment of the compensation.  In such  

an eventuality, he may approach the Collector to make a reference to  

the Court under section 30 of the Act.

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26. In  Dr. G.H. Grant Vs. State of Bihar AIR 1966 SC 237, this  

Court has held that if a “person interested” is aggrieved by the fact  

that some other person has withdrawn the compensation of his land,  

he may resort to the procedure prescribed under the Act or agitate  

the dispute in suit for making the recovery of the Award amount from  

such person.   

27. In fact, the land vest in the State free from all encumbrances  

when possession is taken under section 16 of the Act. Once land is  

vested in  the  State,  it  cannot  be divested even if  there has been  

some irregularity in the acquisition proceedings.  In spite of the fact  

that  Section  9  Notice  had  not  been  served  upon  the  person-  

interested, he could still claim the compensation and ask for making  

the reference under section 18 of the Act.  There is nothing in the Act  

to show that non-compliance thereof will be fatal or visit any penalty.  

28. The  view  taken  by  us  hereinabove  stands  fortified  by  large  

number of judgments of this Court wherein it has been held that if  

there is an irregularity in service of notice under sections 9 and 10, it  

could be a curable irregularity and on account thereof, Award under  

Section 11 would not become invalid (see : State of Tamil Nadu Vs.  

Mahalakshmi  Ammal  &  Ors.  (1996)  7  SCC  269;  and  Nasik  

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Municipal  Corporation v.  Harbanslal  Laikwant Rajpal  and Ors.  

(1997) 4 SCC 199).

29. Be   that  as  it  may,  the  Writ  Court  rejected  the  contentions  

raised by the appellant after being fully satisfied that the notice under  

section 9(3)  was affixed on the part  of  the land in  dispute as the  

appellant  was  not  available;  appellant  was not  the resident  of  the  

area; and if instead of Smt. in the notice/documents, she had been  

shown as “Thiru”, it would be immaterial so far as the merit of the  

case was concerned.  The Court was fully satisfied that notice had  

been affixed on the land, satisfying the requirement of law and the  

Award had been made within limitation.  Though appellant was aware  

of  the proceedings conveniently,  chose to remain silent and made  

use  of  the  notice,  asking  her  removal  from  the  unauthorised  

occupation as the basis of challenging the Award and land acquisition  

proceedings after inordinate delay of 10 years and vesting of land in  

the State itself.  

The same findings have been affirmed by the Appellate Court.   

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30. In case the High Court has considered the matter in detail and  

recorded the findings on factual question, this Court may not examine  

that question at all. [vide Tika Ram & Ors. Vs. State of U.P. & Ors.  

(2009) 10 SCC 689].

31. We also  fail  to  understand  that  in  case  the  High  Court  has  

granted the relief to the appellant to make the application for making  

a reference under Section 18 of the Act and further directions have  

been issued to the Collector to make the reference and further to the  

Tribunal to decide the same within the stipulated period, instead of  

approaching  this  Court  in  appeal,  the  appellant  ought  to  have  

pursued that remedy.

Submissions  have  been made on  behalf  of  the  respondents  

that as the Court lacks competence to extend the period of limitation,  

direction  issued  by  the  High  Court  giving  liberty  to  the  appellant  

herein to make an application for making reference under Section 18  

is without jurisdiction.  Such a submission cannot be examined for the  

simple reason that the respondents-authorities have chosen not to  

challenge the impugned Judgment.  Thus, we are not in a position to  

examine  the  correctness  of  that  submission  or  making  any  

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observation regarding the law of limitation for the purpose of making  

reference.  This question is left open.     

32. In the facts and circumstances of the case, the appeal fails and  

is, accordingly, dismissed.     

…………………………………..J. (Dr. B.S. CHAUHAN)

…………………………………..J. (SWATANTER KUMAR)

New Delhi, May 25, 2010

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