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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO.     5614      OF 2009 (Arising out of SLP(C) No. 2703 of 2008)

Vijay Narayan Thatte & Ors. .... Appellants

Versus

State of Maharashtra & Ors. .... Respondents

O R D E R

1. Heard  Shri  Harish  Salve  and  Shri  Shyam  Divan,  

learned  senior  counsel  for  the  appellants  and  learned  

Attorney General of India and Shri Shekhar Naphade, learned  

learned senior counsel for the respondents.

2. Leave granted.

3. This  appeal  has  been  filed  against  the  impugned  

judgment  and  order  dated  21.01.2008  passed  by  a  Division  

Bench of the High Court of Bombay whereby the writ petition  

filed by the appellants herein has been rejected.

4. The facts in brief are that a Notification under  

Section 4 of the Land Acquisition Act, 1894 (hereinafter for  

short  'the  Act')  was  issued  in  respect  of  the  land  in  

question  on  29.8.2002.   Thereafter  a  Notification  under

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Section 6 of the Act was issued on 18.6.2003.  The said  

Notification  under  Section  6  was  challenged  and  the  writ  

petition filed by the appellants was allowed on 20.1.2004  

and  the  Notification  under  Section  6  of  the  Act  dated  

18.06.2003 was quashed.  Subsequently a second Notification  

under Section 6 dated 30.10.2006 was issued by the State  

Government.

5. The short question that arises for consideration is  

whether the Notification under Section 6 dated 30.10.2006 is  

valid.  In our opinion, the said Notification was clearly  

barred by clause (ii) of the proviso to Section 6 of the Act  

which reads as under :-

“[Provided that no declaration in respect of any  

particular land covered by a notification under  

section 4, sub-section (1),-

(i) ........ ......... .......

(ii) published after the commencement of the  

Land Acquisition (Amendment) Act, 1984, shall be  

made after the expiry of one year from the date  

of the publication of the notification;”

It can be seen from the aforesaid proviso to Section 6 that  

it is couched in negative language.  It is well settled that  

when  a  Statute  is  couched  in  negative  language  it  is  

ordinarily regarded as peremptory and mandatory in nature.

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[See Principles of Statutory Interpretation by Justice G.P.  

Singh 11th Edition, 2008 pages 390 to 392].  As stated by  

Crawford “Prohibitive or negative words can rarely, if ever,  

be  directory.   And  this  is  so  even  though  the  statute  

provides  no  penalty  for  disobedience.”  [See  Crawford  :  

Statutory Construction P. 523; See also in this connection  

Haridwar Singh Vs. Begum Sumbra, AIR  1972 SC 1242 (1247),  

Lachmi Narain Vs. Union of India AIR 1976 SC 714 (726),  

Mannalal Khetan Vs. Kedarnath Khetan AIR 1977 SC 536 etc.]

6. In this connection we may also refer to the Mimansa  

Rules  of  Interpretation,  which  were  our  traditional  

principles of interpretation for over 2500 years, but which  

are unfortunately ignored in our Courts of law today.    

7. It is deeply regrettable that in our Courts of law  

lawyers quote Maxwell and Craies but nobody refers to the  

Mimansa Principles of Interpretation.  Most lawyers would not  

have even heard of their existence.  Today our so-called  

educated  people  are  largely  ignorant  about  the  great  

intellectual  achievements  of  our  ancestors  and  the  

intellectual treasury which they have bequeathed us.  The  

Mimansa Principles of Interpretation is part of that great  

intellectual treasury, but it is distressing to note that  

apart from the reference to these principles in the judgment

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of Sir John Edge, the then Chief Justice of Allahabad High  

Court in Beni Prasad  vs.  Hardai Bibi  1892 ILR 14 All 67  

(FB), a hundred years ago and in some judgments of one of us  

(M. Katju, J.)  there has been almost no utilization of these  

principles even in our own country.  Most of the Mimansa  

Principles are rational and scientific and can be utilized in  

the  legal  field  (see  in  this  connection  K.L.  Sarkar's  

`Mimansa Rules of Interpretation' which is a collection of  

Tagore Law Lectures delivered in 1905 and which contains the  

best exposition of these principles).  

8. The Mimansa Principles of Interpretation, as laid  

down by Jaimini in his sutras around 6th Century B.C. and as  

explained  by  Sabar,  Kumarila  Bhatta,  Prabhakar,  Mandan  

Mishra, etc, were regularly used by our renowned jurists like  

Vijnaneshwara (author of Mitakshara), Jimutvahana (author of  

Dayabhaga), Nanda Pandit (author of Dattaka Mimansa), etc.  

Whenever there was any conflict between two Smritis, e.g.,  

Manusmriti and Yajnavalkya Smriti, or ambiguity or absurdity  

in any Smriti these principles were utilized.  Thus, the  

Mimansa  Principles  were  our  traditional  system  of  

interpretation of legal texts.  Although originally they were  

created for interpreting religious texts pertaining to the  

Yagya (sacrifice), gradually they came to be utilized for

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interpreting legal texts also (see in this connection P.V.  

Kane's  `History of the Dharmashastra', Vol.V, Pt.II, Ch.XXIX  

and Ch.XXX, pp. 1282-1351), and also for interpreting texts  

on philosophy, grammar, etc. i.e. they became of universal  

application.   Thus,  Shankaracharya  has  used  the  Mimansa  

adhikaranas in his bhashya on the Vedanta sutras.  

9. While  the  first  edition  of  Maxwell's  book  was  

published in 1875, in India we have been doing interpretation  

for over 2500 years, as already stated above.  There were  

hundreds of books (all in Sanskrit) written on the subject,  

though only a few dozens have survived the ravages of time,  

but even these show how deep our ancestors went into the  

subject of interpretation.    

10. To  give  an  example  the  Mimansakas  examine  the  

subject of negative Vidhis (negative injunctions such as the  

one  in  the  proviso  to  Section  6)  very  searchingly  and  

exhaustively.  First of all, they distinguish between what  

may be called prohibitions against the whole world, and those  

against particular persons only.  This distinction resembles  

that between judgments or rights in rem  and judgments or  

rights in personam.   The former prohibitions are  called  

Pratishedha  and  the  latter  Paryudasa.   For  example,  the

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prohibitory clause `Do not eat fermented (stale) food (na  

kalanjam bhakshayet) is a Pratishedha; while the prohibition  

`those who have taken the Prajapati vow must not see the  

rising  sun'  is  a  Paryudasa.   In  the  second   place,  

Pratishedhas  are  divided  practically  into  two  sub-clauses  

viz. those which prohibit a thing without any reference to  

the manner in which it may be used, and those which prohibit  

it only as regards a particular mode of using.  For instance,  

`Do not eat fermented food' prohibits the use of it under all  

circumstances,  while `Do not  use the Sorasi vessel at dead  

of night' forbids the use of the vessel only at the dead of  

night.  

11. Then Paryudasa is also of two kinds.  In one case,  

it relates to a person performing some special act which is  

not enjoined by a Vidhi, as in the case of the Prajapati vow.  

In the other, it relates to a person engaged in performing a  

Vidhi; as for instance, when one is to do Shradh during the  

full moon by virtue of a Vidhi but not in the night of the  

full moon.  In this case, the prohibition of doing Shradh in  

the night is a Paryudasa, which is the same as an exception  

or proviso as we understand these terms.  For, the clause  

`not in the night' is an exception to the rule `Perform the  

Shradh during the full moon'.  These are the four classes of

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negative clauses.  The first class, of which the Kalanja  

(fermented food) clause is an example, may well be called a  

condemnatory prohibition.  The second class consists also of  

absolute prohibitions of things under certain circumstances,  

as  in  the  case  of  the  Sorasi  vessel.   The  third  class  

consists of prohibitions in relation to persons in a given  

situation, as in the case of the Prajapati vow.  The fourth  

class restricts the scope of action of persons engaged in  

fulfilling  an  injunction,  as  regards  the  time,  place  or  

manner  of  carrying  out  the  substantive  element  of  the  

injunction.  

12. Thus we see that in the Mimansa system as regards  

negative  injunctions  (such  as  the  one  contained  in  the  

proviso to Section 6 of Land Acquisition Act) there is a much  

deeper discussion on the subject than that done by Western  

Jurists.   The  Western  writers  on  the  subject  of  

interpretation (like Maxwell, Craies, etc.) only say that  

ordinarily  negative  words  are  mandatory,  but  there  is  no  

deeper discussion on the subject, no classification of the  

kinds of negative injunctions and their effects.  

13. In  the  Mimansa  system  illustrations  of  many  

principles of interpretation are given in the form of maxims

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(nyayas).   The  negative  injunction  is  illustrated  by  the  

Kalanja nyaya or Kalanja maxim.   

14. The Kalanja maxim (na kalanjam bhakshayet) states  

that `a general condemnatory text is to be understood not  

only as prohibiting an act, but also the tendency, including  

the intention and attempt to do it.'  It is thus mandatory.  

15. A plain reading of the proviso to Section 6 of the  

Land Acquisition Act shows that it is a general prohibition  

against the whole world and not against a particular person.  

Hence the Kalanja maxim of the Mimansa system will in our  

opinion apply to the proviso to Section 6.    

16. Laughakshi  Bhaskara,  one  of  the  great  Mimansa  

writers,  taking  the  prohibitory  text  'one  is  not  to  eat  

Kalanja or fermented/stale food' (na kalanjam bhakshayet),  

explains the idiomatic force of the phrase  (na bhakshayet).  

He explains that the suffix 'yat' means 'shall', and that the  

negative particle 'not' is to be taken as attached to the  

suffix 'yat' (shall), and not to the idea of Kalanja eating.  

For if it be taken as attached to the latter idea, then the  

sentence might mean 'you shall eat but not Kalanja'.  In this  

case strictly there would be no prohibition.  So he labours  

to demonstrate that the gist of the sentence is 'shall not'  

and therefore the object of it is to turn off from eating

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Kalanja (fermented/stale food).  This may appear to be making  

a hair splitting distinction, but it is of great importance  

from  the  Mimansa  point  of  view  because  it  indicates  the  

mandatory nature of the negative injunction (nishedha).  The  

explanation of  a Nishedha Vidhi appears more clearly from  

Jaimini's Sutras on the Kalanja maxim.  

The objector says :  

In  a  case  of  prohibition,  mentally  you  

entertain the idea of the action prohibited; for you  

have to discriminate between the prohibited act and  

the negation of that act.  

The objector means to say 'what is the good of a  

prohibition when it invites the imagination to gloat on the  

action prohibited'.  The author answers :  

'When an act is enjoined by the Shastra, it is for  

the purpose of the good of a person; if the good object be  

divorced from the meaning of the Shastra, then it becomes a  

case of transgressing it.'  

The meaning of this is:  

'In a case of prohibition you must take it  

that  not  only  is  the  particular  external  act  

prohibited,  but  the  very  intention  of  it  is  also  

prohibited.'  

Roughly speaking, the principle laid down is this :  

'In a case of prohibition one should abstain

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from the very idea of the act prohibited, and there  

ought to be no evasion of the Vidhi in any way.'  

Thus,  this  class  of  Nishedha  Vidhis  is  to  be  

interpreted most comprehensively and as mandatory.  

17. In view of the above discussion, it is evident that  

the proviso  to Section  6 of  the Land  Acquisition Act  is  

totally mandatory and bears no exceptions.  

18. In fact, a Constitution bench decision of this Court  

in Padma Sundara Rao (Dead) and Others Vs. State of T.N. And  

Others (2002)  3  SCC  533  is  clearly  in  support  of  the  

submission of the learned counsel for the appellants that  

the  proviso  to  Section  6  is  mandatory,  and  hence  the  

Notification  under  Section  6  dated  30.10.2006  is  time  

barred.  In our opinion, when the language of the Statute is  

plain and clear then the literal rule of interpretation has  

to  be  applied  and  there  is  ordinarily  no  scope  for  

consideration  of  equity,  public  interest  or  seeking  the  

intention of the legislature.  It is only when the language  

of the Statute is not clear or ambiguous or there is some  

conflict etc. or the plain language leads to some absurdity  

that one can depart from the literal rule of interpretation.  

19. A perusal of the proviso to Section 6 shows that the  

language of the proviso is clear.  Hence the literal rule of

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interpretation  must  be  applied  to  it.  When  there  is  a  

conflict between the law and equity  it is  the law which  

must prevail. As stated in the Latin Maxim  'Dura Lex Sed  

Lex' which means “the law is hard but it is the law”.

20. Learned  Attorney  General  appearing  for  the  

respondents submitted that the judgment of the High Court  

dated 20.1.2004 permitted the authorities to issue a second  

Section 6 Notification even beyond the time provided by the  

proviso  to  Section  6  of  the  Act.   He  has  invited  our  

intention to paragraphs 2 and 3 of the said judgment which  

reads:-

“2. Having  gone  through  the  record  of  the  

petition and the file which is made available to  

us by Mr. Patil, with respect to the acquisition  

of lands of the Petitioners, we are of the view  

that the Petitioners did not appear to have been  

afforded  reasonable  opportunity  as  is  required  

under  Section  5A  of  the  Land  Acquisition  Act,  

1894.   No  reasons  are  insisted  upon  

injustification of this conclusion which we have  

arrived at as declaration under Section 6 issued  

concerning  the  lands  of  the  Petitioner  dated  

29.8.2002 will have to be set aside and the same  

is hereby quashed and set aside.  The Petitioner  

need inspection of the record from the office of  

the Land Acquisition Officer, Mr. Patil, A.G.P.

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Assures  that  within  one  week  from  today,  

inspection will be offered to the Petitioners.

Dr. Tulzapurkar states that the Petitioner will  

file  their  objections  within  two  weeks  

thereafter.

3. All  parties  agree  that  hearing  

contemplated under Section 5A by the Special Land  

Acquisition  Officer  should  be  completed  within  

two months thereafter as far as possible.  Dr.  

Tulzapurkar  makes  a  statement  on  instructions  

from  the  Petitioner  that  the  objections  with  

respect  to  the  period  within  which  Section  6  

notification has to be issued from the date of  

Section 4 notification, will not be raised by the  

Petitioner  if  the  Petitioners  are  finally  

aggrieved  by  the  5A  report  and  subsequent  

declaration  under  Section  6.   Needless  to  say  

that the Special Land Acquisition Officer  should  

pass  a  reasoned  Order  when  he  considers  the  

objections  from  the  Petitioners.   The  entire  

proceeding  will  be  based  on  Section  4  notice  

which has led to the present proceedings and that  

notice will continue to govern the acquisition of  

these lands.”

21. In our opinion, there can be no estoppel against a  

Statute.  Since the Statute is very clear, the period of  

limitation provided in Clause (ii) of the proviso to Section  

6 of the Act has to be followed, and concessions of the  

counsel can have no effect. As already stated above, the

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proviso is mandatory in nature, and must operate with its  

full rigour  vide Ashok Kumar Vs.  State of Haryana (2007)  

3SCC 470 (para 17).   

22. Mr.  Shekhar  Naphade,  learned  senior  counsel  

appearing for the State of Maharashtra then submitted that  

the judgment dated 20.1.2004 in the earlier writ petition  

No. 9248/2003 is  res judicata and since the said judgment  

was not challenged before this Court, it had become final.  

He  submitted  that  in  the  aforesaid  judgment  it  had  been  

clearly stated by the learned counsel for the petitioners on  

instructions from the petitioners that the objection with  

respect  to  the  limitation  period  within  which  the  second  

Section 6 Notification will be issued will not be raised by  

the petitioners if the petitioners are finally aggrieved by  

the  Section  5A  report  and  subsequent  declaration  under  

Section 6 of the Act.  Accordingly, he submitted that now no  

objection can be taken in the present proceedings urging the  

bar of limitation provided in clause (ii) to the proviso to  

Section 6 of the Act.

23. In  this  connection,  we  wish  to  state  that  no  

statement or concession of a learned counsel can override a  

mandatory statutory provision.   

24. Moreover, the observations in para 3 of the judgment

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dated 20.1.2004 have to be regarded as per incuriam. In this  

connection we may refer to the decision of a three Judge  

Bench  of  this  Court  in  the  case  of  Babu  Parasu  Kaikadi  

(Dead) by Lrs. Vs. Babu (Dead) through Lrs. (2004) 1 SCC 681  

wherein in paras 15 to 17 it has been observed as under :-

“15.  In Halsbury's Laws of Englad, 4th Edn., Vol.  

26 it is stated :

“A decision is given per incuriam when the Court  

has acted in ignorance of a previous decision of  

its own or of a court of coordinate jurisdiction  

which covered the case before it, in which case it  

must decide which case to follow; or when it has  

acted in ignorance of a House of Lords decision,  

in which case it must follow that decision;  or  

when the decision is given in ignorance of the  

terms  of  a  statute  or  rule  having  statutory  

force.”

16. In State of U.P. V. Synthetics and Chemicals  

Ltd. This Court observed : (SCC pp. 162-63, para  

40)

“40.   'Incuria'  literally  means  'carelessness'.  

In  practice  per  incuriam appears  to  mean  per  

ignoratium.  English  courts  have  developed  this  

principle  in  relaxation  of  the  rule  of  stare  

decisis. The  'quotable  in  law'  is  avoided  and  

ignored if it is rendered, 'in  ignoratium of a  

statute or  other  binding  authority'.  (Young  v.  

Bristol  Aeroplane  Co.  Ltd.)   Same  has  been

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accepted, approved and adopted by this Court while  

interpreting Article 141 of the Constitution which  

embodies the doctrine of precedents as a matter of  

law.”  

17.  In Govt. of A.P. v. B. Satyanarayana Rao it  

has been held as follows :(SCC p. 264, para 8)

“The rule of per incuriam can be applied where a  

court omits to consider a binding precedent of the  

same court or the superior court rendered on the  

same issue or where a court omits to consider any  

statute while deciding that issue.”

It may be seen from the judgment dated 20.1.2004 of the High  

Court that in the aforesaid judgment no specific reference  

has been made to the limitation period prescribed in clause  

(ii) to proviso to Section 6 of the Act, though no doubt  

Section 6 has been generally referred to.  Hence, in our  

opinion, the observations in paragraph 3 of the aforesaid  

judgment  dated  20.1.2004  have  to  be  construed  as  per  

incuriam.

25. In view of the aforesaid discussion, we allow this  

appeal and set aside the impugned judgment and order dated  

21.01.2008. However, it is open to the respondent-State of  

Maharashtra to issue a fresh Notification under Section 4 of  

the  Act  and  take  proceedings  in  accordance  with  law  

thereafter.

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Appeal allowed.  No order as to the costs.

.....................J.       (MARKANDEY KATJU)

.....................J.                (ASOK KUMAR GANGULY)

NEW DELHI; AUGUST  18, 2009