IMPORTANT POINT
Though compliance of publication of the three steps required u/s 4(1) of the Land Acquisition Act, is mandatory while exercising the power of eminent domain u/s 4(1), when the appropriate Government exercises the power u/s 17(4), it is not mandatory to publish the notification u/s 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 u/s 17(4) of the Act.

Headnote:(i) Land Acquisition Act, 1894-Sections 4(1), 6(1), 17(1) and 17(4)- Exercise of power u/s 17(4) invoking urgency clause u/s 17(1)-Requirement of compliance of three steps envisaged u/s 4(1)-Compliance of three steps required u/s 4(1) is mandatory for exercise of power u/s 17(4)-However, it is not necessary that all three steps should be completed before making declaration u/s 6(1) and have it published for directing Collector to take possession u/s 17(1) or 17(2)-What is needed is that there should be a gap of time of at least a day between publication of notification u/s 4(1) and declaration u/s 6(1)-Date of notification and declaration published as mentioned in Gazette is conclusive but not actual date of printing of Gazette.
       Held that Section 4(1) and Section 6(1) have expressly mentioned the phrase "hereinafter", while similar language does not find place in Section 17(4). Equally Section 17(4) does not mentioned the last of the dates of the publication, i.e., the three steps required under Section 4(1) or Section 6(2). In other words, the object of Section 17 appears to be that when the Government exercises the urgency power under Section 17(1) or emergency power under Section 17(2), they form the opinion that the land is needed for public purpose. If the possession of the land is needed urgently or immediately they are required to have the notification under Section 4(1) published in the official Gazette and within a gap of one day to make the declaration under Section 6 and have the same published under Section 6(1). Thus, what is mandatory is publication of the notification under Section 4(1) in the Gazette. Thereafter within a gap of a day publication of the declaration under Section 6(1) is mandatory. Thereby, the public purpose becomes conclusive, as envisaged under sub-section (3) of Section 6 and the Collector is empowered to take immediate possession of the land for the said public purpose. (Para 12)
       Further held 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 that the date of the notification and declaration published as mentioned in the Gazette is conclusive but not the actual date of printing of 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 steps would be taken to and resume its possession after the expiry of 15 days. If it is needed emergently 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 skillful 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 or frustrated. (Para 13)
       (ii) Land Acquisition Act, 1894-Sections 4(1), 6(1), 17(1) and 17(4)-Phrases hereinafter and last of the dates of the publication -Used for purpose of computation of limitation of one year u/s 6 and to determine compensation u/s 23(1).
       Held : It is well settled legal position that the publication of the notification under Section 4(1) in the Gazette is mandatory. Similarly, preceding the Amendment Act 68 of 1984, publication of the substance of such notification in the convenient locality was also held mandatory. After the Amendment Act, in Raghubir Dayal s case (supra), this Court had held that the requirement of compliance of three steps envisaged under Section 4(1) is mandatory. The expressions "hereinafter" and "last of the dates of the publication" shall be for the purpose of computation of limitation of one year under Section 6 and to determine compensation under Section 23(1). (Para 9)
       (iii) Interpretation of Statutes -Distinction of mandatory compliance or directory effect of language-Depends upon language couched in statute and its object, purpose and effect-Word shall or may -distinction-Word shall not always decisive-Duty of Court to try to get at real intention of legislature.
       Held : The word "shall", though prima facie gives impression of being 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 ensure 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 directly. 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 public justice. (Para 19)
       Further held : In the light of the above law, we have no hesitation to hold that though compliance of 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 directing the Collector to take possession of the land before making the award when 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 suppresses 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 the notification. (Para 20)
       (iv) Land Acquisition Act, 1894-Sections 4(1) and 6(1)-Declaration u/s 6(1)-Publication of declaration u/s 6(1) is mandatory to give its conclusiveness to public purpose published u/s 4(1)-Single Judge quashed Section 6 declaration-Appeal-Finding by Division Bench that view taken by Single Judge is not correct in law-Act of Single Judge quashing declaration u/s 6 is vitiated by law-Declaration u/s 6 restored.
       Held : The object of Section 4(1) is to enable the Government to have the land tested whether it is needed or likely is 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 be published. (Para 21)
       Further held : 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 December 24, 1986 stood restored. As a result, the declaration under Section 6(1) published on May 19, 1995 is only superfluous and of no consequence. (Para 22)
       (v) Land Acquisition Act, 1894-Sections 17(1), 17(2) or 16-Possession of land taken either u/s 17(1), 17(2) or 16-Land stands vested in State absolutely free from all encumbrances-Power of withdrawal u/s 48(1) would no more be available. (Para 23)

JUDGMENT

K. Ramaswamy, J.-Leave granted.

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 1,000 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 December 23, 1986. The same was published in two newspapers on January 3, 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 December 24, 1986 and notice of substance thereof was given in the locality thereafter. The possession of the land was taken over on January 29, 1987. The awards also were made by the Collector under Section 11 on December 23, 1987.

3. It 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 the power under Section 17(4). The whole batch of cases was dismissed and became final. These two Civil Writ Petition 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 January 28, 1987 and January 29, 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 January 3, 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 the power by the Government dispensing with the enquiry under Section 5A 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. 53/94 and batch, dated February 28, 1996, reversed the judgment of the single Judge dated May 20, 1994. Thus, these appeals by special leave.

4. Shri Shanti Bhushan, learned senior counsel for the appellants, contended that the exercise of the power under Section 17(4) invoking urgency clause under Section 17(1) in conditioned upon the publication of the notification under Section 4(1). Thereafter, the Government has the power to invoke Section 17(4). Section 4(1) contemplates three mandatory conditions to be complied with, i.e, (1) publication of the notification under Section 4(1) in the official Gazette; (2) publication of the notification in two daily newspapers having circulation in that locality of which at least one shall be in the regional language; and (3) Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality. The last of the dates of such publication and the giving of such public notice has reference to the date of the publication of the notification. Unless all the three steps are complied with and after compliance of last of it or any one of them which will be the last of it, the Act gives power to the appropriate Government to exercise the power under Section 17(1) and empowers thereafter to dispense with the enquiry under Section 5A and declaration under Section 6(1) may be made in respect of that land at any time "after the publication of the notification under Section 4(1)". In support thereof, he placed strong reliance on State of U.P. & Ors. v. Radhey S

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1996 Supreme(SC) 1875

Cases Referred (10)