Case: Khub Chand &amp; Others Vs. State of Rajasthan &amp; Others

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) were intended to serve different purposes.7. 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.8. Reliance is placed by the learned Advocate -General on the decision of this Court in Babu Barkya Thakur v. State of Bombay, 1961-l SCR 128 at p. 140: (AIR 1960 SC 1203 at p. 1208). 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 acquisition under the Act. Hence, it is not correct to say that any defect in the notification under S 4 is fatal to the validity of the proceedings, particularly when the acquisition is for a company and the purpose has to be investigated under S. 5A or S. 40 neessarily 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.9. The decision of this Court in Smt. Somawanti v. State of Punjab, 1963-2 SCR 774 at pp. 822-23: (AIR 1963 SC 151 at p. 171), 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 subsequent declaration are both required by law to be published in the official gazette. 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) 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 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 provisions 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 notifications under S. 4 was published in the Rajasthan Gazette on February 14, 1957, Award No. 1 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 in 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]6. 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 shall 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 "shall" 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 at variance with the intent of the legislature, to be collected from ether parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in 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) were intended to serve different purposes.7. 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 equallythe present case, the High Court, as we have expressed earlier, rightly held that the provisions 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 notifications under S. 4 was published in the Rajasthan Gazette on February 14, 1957, Award No. 1 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 in 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 thethat 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