Case: Mohan Singh  Vs. Intl. Airport Authority Of India

2. The International Airport Authority of India (for short IAAI) had requisitioned the Lt. Governor, Delhi and the Government of India to acquire 713 bighas, 2 biswas of land for rehabilitation of 1000 families displaced by acquisition of land for Indira Gandhi International Airport. The Lt. Governor, exercising the power under Section 17(1) dispensed with the enquiry under Section 5-A and directed under Section 17(4) to take over possession. The notification under Section 4(1) of the Land Acquisition Act, 1894 (for short the Act) was published on 23-12-1986. The same was published in two newspapers on 3-1-1987. The notice of substance of such notification was given at convenient places in the locality. The declaration under Section 6(1) was published on 24-12-1986 and notice of substance thereof was given in the locality thereafter. The possession of the land was taken over on 29-1-1987. The awards also were made by the Collector under Section 11 onIt would appear that, admittedly, a batch of writ petitions was filed in the High Court impugning the notification under Section 4(1) and the declaration under Section 6(1) and the exercise of power under Section 17(4). The whole batch of cases was dismissed and became final. These two Civil Writ Petitions Nos. 133 and 2440 of 1987 were segregated due to amendment of their pleadings wherein the appellants had pleaded that the notification under Section 4(1) and the declaration under Section 6(1) were actually published on 28-1-1987 and 29-1 1987 respectively. Therefore, it was contended before the learned Single Judge that in either event, notification under Section 4(1) was published in the newspapers on 3-1-1987. While the Government exercised the power under Section 17(4) before publication of the notification under Section 4(1), as contemplated in the manner prescribed under Section 4(1), the learned Single Judge accepted the contention and held that the exercise of power by the Government dispensing with the enquiry under Section 5-A and publication of the declaration under Section 6 was illegal. Accordingly, she quashed the declaration under Section 6 and gave liberty to the Lt. Governor to have the declaration published afresh in accordance with law. On appeal, the Division Bench, in the impugned judgment in LPA No. 53 of 1994 and batch, dated 28-2-1996, reversed the judgment of the Single Judge dated 20-5-1994. Thus, these appeals by special leave

Reasoning: After giving due and deep consideration to the respective contentions raised by the learned counsel, we are of the considered view that though the compliance of these three steps required under Section 4(1) is mandatory, for the exercise of the power under Section 17(4) it is not necessary that all the three steps should be completed before making the declaration under Section 6(1) and have it published for directing the Collector to take possession under Section 17(1) or 17(2). What is needed is that there should be a gap of time of at least a day between the publication of the notification under Section 4(1) and of the declaration under Section 6(1). Herein, we dispose of the controversy and agree with Shri Shanti Bhushan a that the date of the notification and declaration published as mentioned in the Gazette is conclusive but not the actual date of printing in the Gazette. This interpretation of ours would serve the public purpose, namely, the official functions are duly discharged. When the land is urgently needed under Section 17(1), notice under Section 9(1) would be given to the owner and steps would be taken to and resume its possession after the expiry of 15 days. If it is needed urgently under Section 17(2), even without waiting for 15 days on issue of notice under Section 9(1) to the owner, the appropriate Government would direct the Collector to take possession of the land immediately. If the publication in the newspapers and in the locality is also insisted upon as preliminary to the exercise of power under Section 17(4) which are mandatory requirements and until last of them occurs, the immediate or urgent necessity to take possession of the land under Section 17(1) or 17(2) before making the award would be easily defeated by dereliction of duty by the subordinate officers or by skilful manoeuvre. The appropriate Government is required to take the decision for acquisition of the land and to consider the urgency or emergency and to make the notification under Section 4(1) and declaration under Section 6 and have them published in the Gazette that the land acquired under Section 4(1) is needed for public purpose; they become conclusive under Section 6; and to give direction to the Collector to take its possession. The publication in the newspapers and giving of notice of the substance of the notification at the convenient places in the locality are required to be done by the Collector authorised by the Government under Section 7 and his subordinate staff. If dereliction of duty is given primacy, delay deflects public justice to meet urgent situation by the acts of subordinate officers for any reason whatsoever. Until that is done and the last of the dates occurs, Government would be unable to act swiftly for the public purpose to take immediate possession envisaged under sub-section (1) or (2) of Section 17 and they would be easily defeated orShanti Bhushan has fairly contended that such publication is a relevant one. We agree with Shri Shanti Bhushan in thatThe distinction of mandatory compliance or directory effect of the language depends upon the language couched in the statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word shall or may depends on conferment of power. In the present context, may does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the the power, it becomes duty to exercise. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. In Craies on Statute Law (7th Edn.), it is stated that the court will, as a general rule, presume that the appropriate remedy by common law or mandamus for action was intended to apply. General rule of law is that where a general obligation is created by statute and statutory remedy is provided for violation, statutory remedy is mandatory. The scope and language of the it statute and consideration of policy at times may, however, create exception showing that the legislature did not intend a remedy (generality) to be exclusive. Words are the skin of the language. The language is the medium of expressing the intention and the object that particular provision or the Act seeks to achieve. Therefore, it is necessary to ascertain the intention. The word shall is not always decisive. Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory depends upon the intent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve.Thus, this Court, keeping in view the objects of the Act, had considered whether the language in a particular section, clause or sentence is directory or mandatory. The word shall, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any contingency for non-compliance; if the word shall is construed as having mandatory character, the mischief that would ensue by such construction; whether the public convenience would be subserved or public inconvenience or the general inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or directory. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote publicIn the light of the above law, we have no hesitation to hold that though compliance with publication of the three steps required under Section 4(1) is mandatory while exercising the power of eminent domain under Section 4(1), when the appropriate Government exercises the power under sub-section (4) of Section 17 dispensing with the enquiry under Section 5-A and directs the Collector to take possession of the land before making the award as the lands are needed urgently either under sub-section (1) or (2) thereof, it is not mandatory to publish the notification under Section 4(1) in the newspapers and giving of notice of the substance thereof in the locality; the last of the dates of publication should not be the date for the purpose exercising the power under Section 17(4). This interpretation of ours would subserve the public purpose and suppress mischief of non-compliance and seeks to elongate the public purpose, namely, taking immediate possession of the land needed for the public purpose, envisaged in thecontention of Shri Sidhu and Mrs. Pinky that there is no necessity for fresh publication of the declaration under Section 6, after possession was taken under Section 17(1) or 17(2), cannot be given acceptance. The object of Section 4(1) is to enable the Government to have the land tested whether it is needed or is likely to be needed for a public purpose and is suitable; after its consideration by the appropriate Government that the land is needed or is likely to be needed for the public purpose, publication of declaration under Section 6(1) is mandatory to give its conclusiveness to the public purpose published under Section 4(1). Therefore, it is a mandatory requirement that the declaration under Section 6(1) should bewould appear that there was obvious incongruity. It is indisputable that the learned Single Judge had quashed Section 6 declaration published on 24-12-1986. Consequently, the question of supersession of the declaration already quashed is superfluous. It is settled legal position that appeal is a continuation of the original proceedings. Though the learned Single Judge quashed Section 6 declaration, on the finding by the Division Bench that the view taken by the learned Single Judge is not correct in law, the consequence would be that the act of the learned Single Judge quashing the declaration under Section 6 is vitiated by law. As a result, by operation of the decision of the Division Bench, the declaration quashed by the learned Single Judge dated 24-12-1986 stood restored. As a result, the declaration under Section 6(1) published on 19-5-1995 is only superfluous and of noIt is true that after the possession of the land is taken either under Section 17(1), 17(2) or 16, the land stands vested in the State absolutely free from all encumbrances. Subsequently, the power of withdrawal under Section 48(1) would no more beratio in Avinash Sharma case ( 1970 (2) SCC 149 ) relied on by Shri Sidhu has no application to the facts of this case. Therein, the facts were that after the possession was taken under Section 17(1) and vested in the State, exercising the power under Section 21 of the General Clauses Act, the declaration under Section 6(1) was withdrawn by thethat context, this Court had held that after the land vested in the State free from all encumbrances under Section 17(1), the power of issuing of a notification and the power to withdraw such notification envisaged under Section 21 of the General Clauses Act was not applicable since the land already stood vested and the Government was denuded of its power under theIt would, therefore, be seen that the declaration under Section 6 published on 19-5-1995 does not have any effect on the declaration published under Section 6(1) on 24-12-1986 which has the legal effect of getting restored. The Division Bench of the High Court, therefore, was right in setting aside the judgment of the learned Single Judge and dismissing the writ petition. It is already seen that the lands stood vested in the State on 29-1-1987 and after the lands including the land belonging to the appellants to an extent of 81.9 bighas out of total extent of 713.2 bighas, were taken into possession, they stood vested in the State free from all encumbrances. The award also became final. Under these circumstances, the learned Single Judge was wholly wrong in the judgment under appeal before the Division Bench; the reasoning given and consequences reached by the Division Bench are entirely correct in law warranting no interference