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PETITIONER: STATE OF MYSORE & ORS.

       Vs.

RESPONDENT: V. K. KANGAN & ORS

DATE OF JUDGMENT21/08/1975

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN RAY, A.N. (CJ) CHANDRACHUD, Y.V.

CITATION:  1975 AIR 2190            1976 SCR  (1) 369  1976 SCC  (2) 895

ACT:      Land Acquisition Act-Section 4, Sec. 5-A and Section 6.       Madras Land Acquisition Rules 3(b).      Mandatory or directory-Validity of notification Whether can be challenged after unreasonable lapse of time.

HEADNOTE:      The respondents are the owners of the land in question. the land  was sought  to  be  acquired  for  an  Engineering College at  the instance  of the Education Department of the State of  Mysore. Section  4 notification  was issued in the year 1960.  After an enquiry into the objections filed under section 5A  the land  Acquisition officer sent his report to the Government.  Government  over-ruled  the  objection  and issued  a   notification  under  section  6.  The  Education Department at  whose instance  the land  was  sought  to  be acquired was  not given  notice as  required by  rule (b) of Madras Land  Acquisition rules. The respondents field a Writ Petition in the High Court challenging the validity or  both  the notifications  on the  ground that  the Education Department was  not consulted.  The High  Court  upheld  the contention of’ the respondents and quashed the notifications issued under sections 4 and 6  of the Act on the ground that if the  Department concerned filed any reply pursuant to the notice issued  the objector  would know  what the Department has stated  by way  of reply  and at the stage of hearing of objection. tile  objector might  adduce evidence  or address arguments  to  meet  what  is  stated  in  such  reply.  The objector. could  further urge before the Government that the reasons given  by the  department in reply to the objections should not be accepted:      On appeal  by Special  Leave it  was contended  by  the appellant.       1.  Rule 3 (b) is inconsistent With section 5A (2) for the reasons  that sub section (2) of section 5A provides for further enquiry  in the discretion of the Collector and rule 3(b) if  treated  as  mandatory  would  be  to  convert  the discretionary power  into a mandatory duty and is therefore, ultra vires the section. 2. The provisions of rule 3(b) were not mandatory  and that  therefore,  failure  to  issue  the notice to  the department  concerned was  not fatal  to  the

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validity of the notification. ^       HELD:  1. Section  5A requires the Collector to make a report after hearing the objections. It does not mean that a rule cannot  be framed  which would  enable  the  department concerned to  place its view point before the Collector when considering the  objection under  section 5A. The proceeding of the  Collector are  quasi-judicial and  it is only proper that he should be apprised of the attitude of the department requiring the  land in the light of the objections filed. It would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order  to appreciate the riv view point. Rule 3(b) is not Ultra vires Section SA. [372F-H 373 A-C]      2. In  determining the  question whether a provision is mandatory or  directory  one  must  look  into  the  subject matter.  and   consider  the  importance  of  the  provision disregarded and  the relation  of.  that  provision  to  the general object  intended to  be secured. One has to consider the nature  the design and the consequence which will follow from construing  a provision  in one  way or the other. Rule 3(b) was  enacted for  the purpose of enabling the Collector to have all the 370 relevant   materials   before   him    for   coming    to  a conclusion to  be incorporated A in the report to be sent to the Government  in order  to enable  the Government  to make proper decision.  The High  Court was  right in holding that the provision WAS mandatory. [373C-F]      The notification  under Section  6 was  quashed but the notification under section 4 was upheld. [373-G] CIVIL APPEAL No. 1021 or 1973      The respondents  raised further contention in the above appeal to  the effect  that  notification  under  section  4 should be  quashed since  the public  notice as  required by section 4  is not  given and the report under section 5A was not sent to the Government within the prescribed period.       HELD:  The notification  under section 4 was published on 13-4- 1967. Objections were filed by the respondent under section 5A  of the Act. The notification under section 6 was published in  October 1968.  The Writ  Petition was filed in July 1969.  The respondent was not entitled to challenge the validity of  the notification  under section 4 of the Act as Writ Petition  challenging the  notification was filed after an unreasonable  lapse of  time. The  respondent should have challenged the  validity of the notification under section 4 within  a   reasonable  time  of’  the  publication  of  the notification. The  respondent knew  of the  notification and file(l objections  under section  5A of the Act. There is no substance in  the argument  that the report under section 5A was not sent to the Government within the prescribed period. In any event since a fresh enquiry is directed under section 5A the  Collector will  in any  event have  to send  a fresh report to the Government. [374D-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1700 & 1827 and 1021 of 1973.       Appeals  by special leave from the judgment and orders dated the  17-7-1972, S  6 1972  and 8-8-1972  of the Mysore High Court  in W.P.S  NOS.  1921/1969/,2869/1967  &  3815/69 respectively.       L.  N. Sinha, Solicitor General of India, M. Veerappa,

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Altaf  Ahmad,  for  the  appellants  (in  Civil  Appeal  No. 1700/73).      A. K. Sen, K. N. Bhat, for respondents (1-6 & 8-10)      M. Veerappa & Altaf Ahmad, for the appellant.      K. N. Bhat, for respondents 1-7      M. Veerappa, for the appellants.      R. B.  Datar, Jayashree Wad and Rajen Yashpaul, for the respondent.       The Judgment of the Court was delivered by       Civil Appeals Nos. 1700 & 1827 of 1973      MATHEW J.-We take up for consideration Civil Appeal No. 1827 f  1973. The respondents are the owners of the lands in question. 371 They were sought to be acquired for the Regional Engineering College at  the instance  of the Education department of the State of  Mysore. In  a notification  under s. 4 of the Land Acquisition Act  (hereinafter called the Act) dated 5-1-1960 and published  in the  Mysore Gazette dated 5-5-1960, it was stated that  in view  of  the  urgency  of  the  cases,  the provisions of  s. SA of the Act shall not apply to the case. The  respondents  challenged  the  notification  in  a  writ petition (No.  768 of  1960). When the writ petition came up for final  disposal, a  memo was  produced on  behalf of the State Government  and the  Court, On  the basis of the Memo, dismissed the writ petition. The memo was to this effect: -        ’‘The   respondent  agrees  to  modify  the  impugned notification issued  under Section 4(1) read with Section 17 of the  Land Acquisition  Act and  to give an opportunity to the petitioner  of being heard under Section 5-A of the Act. Hence the  relief  sought  for  by  the  petitioner  becomes unnecessary."        The  Special  Land  Acquisition  officer,  Mangalore, issued  notices   to  the   respondents  stating   that  the respondents will  be given  opportunity to  file  Objections under s.  5A of  the Act  pursuant  to  the  order  in  Writ Petition No.  768  of  1960.  The  respondents  filed  their objections and,  after  an  inquiry,  the  Land  Acquisition officer sent  his report  to the  Government. The Government considered the  report and  over ruled  the objections. This was followed  by a  notification under  s. 6 of the Act. The respondents challenged the above notification as well as the notification under  s. 4  by a  writ petition  in  the  High Court.      The  respondents   attacked   the   validity   of   the notification on  the ground that the Education Department at whose instance  the land  was sought  to be acquired was not given notice  as required under rule 3(b) of the Madras Land Acquisition Rules  as in  force in  the Madras  area of  the State of  Mysore at the time of inquiry under s. 5A and that since the requirement of notice as enjoined by rule 3(b) was mandatory, the  failure  to  comply  with  that  requirement rendered the notifications under sections 4 and 6 of the Act invalid.       The  High Court  by its order upheld the contention of the respondents  and quashed  the notifications issued under s. 4  and s. 6 of the Act. It is against this order that the appeal has  been filed  by special  leave by  the  State  of Karnataka  and   the  Special   Land  Acquisition   officer, Mangalore.       The  only point  which  arises  for  consideration  is whether the  pro visions  of rule  3(b) were  mandatory  and therefore the  failure to issue the notice to the department concerned as  enjoined by the rule was fatal to the validity of the notifications under sections 4 and 6 of the Act.

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    The reasons  which impelled  the High  Court to come to that conclusion were, if the Department to which a notice is issued files  any reply  by way of answer to the objections, the objector will know what the Department has stated by way of reply and, at the stage 372      Of hearing  of objections, he (the objector) may adduce evidence or A address arguments to meet what has been stated in  such   reply,  and  that  the  objectors  will  have  an opportunity of urging before the Government that the reasons given by  the Department  in the  reply  to  the  objections should not be accepted.      Rule 3 reads:      "R. 3  Hearing of  objection: (a)  If a statement of 13 objections (is?) filed after the due date or by a person who is  not  interested  in  the  land  it  shall  be  summarily rejected. (b)  If any  objections are received from a person interested in the land and within the time prescribed in sub section (  1) of  s 5A,  the Collector  shall fix a date for hearing the  objections  and  give  notice  thereof  to  the objector as  well as  to the department or company requiring the  land,   where  such   department  is  not  the  Revenue Department; Copies of the objections shall also be forwarded to such department or company. The department or company may file on  or  before  the  date  fixed  by  the  collector  a statement by  way of  answer to  the objections and may also depute a representative to attend the enquiry." l)       The  learned Solicitor General, appearing on behalf of the appellants submitted that rule 3(b) is inconsistent with s. 5A(2)  or tilt:  reason that s. 5A(2) itself provides for making further  inquiry which the Collector thinks necessary after considering  the objections  filed by the owner or the person interested  in the  land and  to read  rule  3(b)  as casting a  mandatory duty  upon him  to give  notice of  the objection to  the  department  requiring  the  land  and  to consider the  answer to  the objection, if any, filed by the Department would  be contrary  to the  section. The argument was that  when sub-section (2) of s. 5A provides for further inquiry in  the discretion of the Collector a rule making it mandatory  that  the  Deputy  Commissioner  (the  Collector) should give  notice  of  the  objection  to  the  department concerned and  consider its answer to the objection would be to convert  a discretionary  power into a mandatory duty and is therefore ultra vires 1 the section.       We do not think that the contention is right. What the material provision  of s  5A(2) says  is that "the Collector shall give  the objector  . an  opportunity of  being  heard either in  person or  by pleader and shall after hearing all such objections and after making such further enquiry if any as he  thinks necessary".  This does  not mean  that a  rule cannot  be  framed  by  the  rule-making-authority  for  the guidance of  the Deputy  Commissioner (the  Collector) which would enable  the Department  concerned to  place its  view- point before him when considering the objection under s. 5A. The proceedings  of the  Collector are quasi-judicial and it is only  proper that he should be apprise of the attitude of the department  requiring the  land  in  the  light  of  the objections filed.  If  the  department  requiring  the  land thinks, in  the light of the objection, that the land sought to be acquired is not necessary for the purpose for which it was required  to be  acquired or  that more suitable land is available in the vicinity, it is only fair that 373 the   Deputy Commissioner  (Collector) is informed about it. The answer  of the  department to the objection filed by the

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objector, even  if adverse  to the  objector, would,  at any rate, enable  the Collector  to bring  a more  informed  and rational  approach   to  the  controversy  before  him.  The Collector has  to send  his recommendation  to government on the basis  of his  finding together  with the  record of the proceedings for  the ultimate decision by the Government. IT would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order  to appreciate  the rival  view points.  We do  not think that rule 3(b) was ultra vires. the section.       We  also think  that the government when it framed the rule had  in mind  that the  Deputy Commissioner (Collector) should follow it while functioning under s. 5A(2) and so the requirement of the rule was mandatory.       In  determining the  question whether  a provision  is mandatory or  directory, one  must  look  into  the  subject matter  and   consider  the   importance  of  the  provision disregarded and  the  relation  of  that  provision  to  the general object  intended to  be secured.  No doubt, all laws are mandatory  in the  sense they impose the duty to obey on those who  come within  its purview.  But it does not follow that every  departure from  it shall  taint the  proceedings with a  fatal blemish.  The determination  of  the  question whether a  provision is mandatory or directory would, in the ultimate analysis,  depend upon the intent of the law maker. And that has to he gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one  way or  the other.  We see  no reason  why the  rule should receive  a permissible  interpretation instead  of  a pre-emptory construction.  As we  said, the rule was enacted for the  purpose of  enabling the  Deputy Commissioner (Land Acquisition Collector)  to have  all the  relevant materials before him  for coming to a conclusion to be incorporated in the report  to be  sent to the Government in order to enable the Government  to make  the proper  decision.  In  Lonappan v.Sub-Collector of Palghat(1) the Kerala High Court took the view that  the requirement  of the rule regarding the giving of notice  to the  department concerned  was mandatory.  The view of  the Madras  High Court in K. V. Krishna Iyer v. The State of Madras(2)is also much the same.      We  think   that  the  High  Court  was  right  in  its conclusion that  the requirement  of the rule was mandatory. We quash  the proceedings  of the  Collector  (Special  Land Acquisition officer,  2nd appellant)  under s. SA(2) as also the decision of the Government on the basis of the report of the Collector  under the sub-section. The result is that the notification under  s. 6 has to be quashed and we do so. But We sec no reason to quash the notification under s. 4.      We direct the Collector (2nd appellant) to proceed with the inquiry  on the  basis of  the objection  already  filed under s. 5A after      (1) A.I.R. 1959 Kerala 343.     (2) (1967) 2 Madras law                                                 Journal 422. 374 giving  notice   to  the   department  concerned  viz.,  the Education Department and after allowing it an opportunity to file an  answer to  the objection.  We  dismiss  the  appeal subject to the modification indicated. No costs.       The  facts and  circumstances in Civil Appeal No. 1700 of 1973  are similar  to those  in Civil  Appeal No. 1827 of 1973, the only difference being that the rule which falls to be considered  is rule  5(2) framed  by  the  Government  of Mysore under  s. 55 of the Act. That rule is similar to rule 3(b) of  the Madras  rule. For  the  reasons  given  in  the

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judgment in  Civil Appeal  No. 1827  of 1973,  dismiss Civil Appeal No. 1700 of 1973 also with the modification indicated therein and without any order as to costs.       Civil Appeal No. 1021 of 1973       The  facts in  this appeal are similar to those in the two Civil - Appeals referred to above and the decision there will govern the decision here.       But  counsel for  the respondent  in this  appeal said that the  notification under  s.  4  should  be  quashed  in respect of  properties  involved  in  this  appeal  for  the reasons that public notice had not been given as required in s. 4 of the Act, that the report under s. 5A was not sent to the Government  within the  prescribed period, that the High Court failed  to pass upon these questions and that the case must therefore be remitted to the High Court.       The  notification under  s. 4  was  published  on  13- 4.1967. Objections  were filed by the respondent under s. 5A of the Act. The Deputy I I Commissioner submitted his report to the Government. The Government over ruled the objections. The notification  under s. 6 was published in the gazette on 19-10-1968. The  Writ Petition  challenging the  validity of the notification  was filed  some time  in July  or  August, 1969. We  do not  think that  the respondent was entitled to challenge the validity of the notification under s. 4 of the Act as  the Writ  Petition challenging  the notification was filed after  an unreasonable lapse of time. If public notice as required  by s. 4 of the Act was not given and that would per se  vitiate the notification under s. 4, the ’ appellant should have challenged its validity within a reasonable time of the  publication of the notification. The respondent knew of the  notification and  filed objection  under s. 5 of the Act. In  these circumstances  we see no reason to accept the submission of  counsel. We  also see  no  substance  in  the argument of  the counsel  that the  report drawn up under s. SA(2) was  not  sent  to  the  Government  within  the  time prescribed and  therefore the  proceedings were  invalid. We have directed  a fresh  inquiry by  the Deputy  Commissioner (Collector)  under   s.  SA   and  therefore,   the   Deputy Commissioner will  in any  event have to send a fresh report to the Government.       In  this view we do not think that there is any ground for remitting the case to the High Court, simply because the High Court  failed to , consider these points. The appeal is dismissed  with  the  modification;  indicated  in  the  two appeals referred to above. No costs. P.H.P.                                    Appeals dismissed. 375