State of Haryana & Anr. vs. Raghubir Dayal
(1995) 1 SCC 133
Key Words: mandatory, directory, non-compliance, object and purpose, shall, prejudice
In this case Punjab and Haryana High Court allowed a writ petition filed by the respondent holding that publication of the substance of the notification under Sections 4(1) and 6 of the Land Acquisition Act in the locality was mandatory and as they were not published in the locality, the acquisition was invalid for infraction of the mandatory provisions of Sections 4(1) and 6(2) of the Act.
In view of the language with which Section 6(2) was couched being in pari materia with the language of Section 4(1), the publication of the substance of Section 6 declaration in the locality is also mandatory and non-compliance thereof renders the entire acquisition illegal. The requirement of the publication in the locality of the notification under Section 4(1) has since been held to be mandatory by a decision of this Court, the ratio of that decision would be applicable to the publication of the substance of the declaration under Section 6 in the locality which is equally mandatory and non-compliance thereof renders it invalid.
The object of publication of notification under Section 4(1) is that the owner of the land sought to be acquired has to exercise his valuable right to file his objections under Section 5-A. The publication of the substance of such notification in the locality must, therefore, be mandatory.
The Apex Court interpreted the meaning of word “shall” in the impugned provision (at para 5) in the following words-
“The use of the word ‘shall’ is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word ‘shall’ prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon.”
The Supreme Court in the same paragraph then discussed the import of the term “mandatory” and “directory” in the following words-
“Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory.”
The Court at para 7 explained why the word “shall” used in Section 4(1) should be considered as ‘mandatory’ in the following words-
“the word ‘shall’ used in Section 4(1) should be construed to be mandatory because the requirement of Section 4(1) of the publication of the notification in the Gazette followed by their publication in the newspapers perhaps in the some cases may not meet the need purpose of notice to the owner or person claiming interest in the land proposed to be acquired.”
At para 8, the Court discussed the effect of non-compliance with Section 6 of the Land Acquisition Act in the light of the specific factual circumstances of this case. The Court held that-
“… Since there is an opportunity already given to the owner of the land or persons having interest in the land to raise their objections during the enquiry under Section 5-A, or otherwise in case of dispensing with enquiry under Section 5-A unless they show any grave prejudice caused to them in non-publication of the substance of the declaration under Section 6(1), the omission to publish the substance of the declaration under Section 6(1) in the locality would not render the declaration of Section 6 invalid. We are into intending to say that the officer should not comply with the requirement of law and it is their duty to do it. But their dereliction to do so per se does not render there declaration under Section 6 illegal or invalid. Therefore, the word ‘shall’ used in Sub-section (2) of Section 6 should be construed to be only directory but not mandatory….”
- The provision of Section 6 is directory as no grave prejudice has been caused by the non-compliance of the same.
- Writ petition dismissed and appeal allowed.
 Section 4, Publication of preliminary notification and powers of officers thereupon.- (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette [and in two daily newspapers circulating in that locality of which at least one shall be in the regional language] and the 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, being hereinafter referred to as the date of publication of the notification].