# KHUB CHAND AND ORS v. STATE OF RAJASTHAN & ORS

- **Citation:** [1967] 1 S.C.R. 120
- **Court:** Supreme Court of India
- **Decided:** 1966-08-22
- **Case number:** ·: Civil Appeal No. 85 of 1964
- **Bench:** K. SUBBA RAo, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/khub-chand-and-ors-v-state-of-rajasthan-ors-3900
- **Pages:** 8

## Headnote

Rajastluin Land Acquisition Act (24 o/ 1953), .s. 4 and 5(2)-
·Giving of public notice of sub~tance of No1ificatiou under s. 4 tlf cont,.enient places in loca/Jty--/f mandatory.
In 1957, the Government of Rajasthan published a notification under
s. 4 of the Rajasthan Land Acquisition Act, 1953, to the effect that tl!e
appellants' land was needed for a public purpose. The public notice of
the substance of the notification to be given by the Collector at convonient places in the locality, as required by s. 4(1), was however not
givc.n.
In January
1958 and February 1959,
noltfications
under as.
5 (2) and 6 respectively of the Act, were published in the local Gazcttc.
Thereafter, the officer originally appointed by the Government to perform
the functions of a Collector under the Act continued the acquisition
proceedings in spite of a Government notification of June 1959, whereby another officer was appointed to perform those functions. 1be appellant• filed objcc\ions questioning his jurisdiction and stopped tuking part
in the proceeding;.
On I I th Dccmiber, 1959. after making ex parte
enquiries, the officer made an award, and on 27th June I 960, he made
a second award superseding the first.
The appellants came to know of
the awards in September 1960.
In October 1960, they filed a pelition under Art. 226, challenging the
validity of the
proceedings
on
the ground., imer alia, that the requirement of the giving of the public
notice under s. 4( 1) at convenient places of the locality was mandatory,
and as it \\'as not complied with, the entire acquisition proceedings were
void.
The High Court agreed with the contention but dismissed tlw
petition on the gr >Und that the objection was taken at a belated stage.
HELD :
(i) 1be provision in ss. 4(1), requiring public notice was
mandatory and non<0mptiance with it was fatal to the entire acquisition
proc<edings. [ 125 HJ
Section 4(1) says that the Collector shall cause public notice of the
substance of such notification to be given at convenient places jn the
said locality. If the word "sball" i< con..trucd as "may" the object of
the suh-scct;on will be defeated.
The object is to give intimation to
the person wh= land is sought to be acquired, of the intention of the
officer to enter the land.
Under s. 4(2), such a notice is a necessary
condition for the exercise of the power of entry and non-compliance with
the condition makes the entry of rhe officer or his !->ervanls unlawful. [125
F-H)
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 a notice under s. 5(2) is given after the officer enters the Jand and
submits the particulars mentioned in s. 4. [125 Cl
Babu Barkya Thakur v. T/ze Stare of Bombay, {1961] I S.C.R. 128,
e.<plained.
(ii) The High Coun was in error in holding, on the facts, that
there was inordinate delay in invoking its jurisdiction. [127 D]
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KHUB CHAND v. RAJASTHAN (Subba Rao, CJ.)
121
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## Text

KHUB CHAND AND ORS.
V.
STATE OF RAJASTHAN & ORS.
August 22, 1966
[K. SUBBA RAo, C. J., AND J. M. SHELAT, J.)
Rajastluin Land Acquisition Act (24 o/ 1953), .s. 4 and 5(2)-
·Giving of public notice of sub~tance of No1ificatiou under s. 4 tlf cont,.enient places in loca/Jty--/f mandatory.
In 1957, the Government of Rajasthan published a notification under
s. 4 of the Rajasthan Land Acquisition Act, 1953, to the effect that tl!e
appellants' land was needed for a public purpose. The public notice of
the substance of the notification to be given by the Collector at convonient places in the locality, as required by s. 4(1), was however not
givc.n.
In January
1958 and February 1959,
noltfications
under as.
5 (2) and 6 respectively of the Act, were published in the local Gazcttc.
Thereafter, the officer originally appointed by the Government to perform
the functions of a Collector under the Act continued the acquisition
proceedings in spite of a Government notification of June 1959, whereby another officer was appointed to perform those functions. 1be appellant• filed objcc\ions questioning his jurisdiction and stopped tuking part
in the proceeding;.
On I I th Dccmiber, 1959. after making ex parte
enquiries, the officer made an award, and on 27th June I 960, he made
a second award superseding the first.
The appellants came to know of
the awards in September 1960.
In October 1960, they filed a pelition under Art. 226, challenging the
validity of the
proceedings
on
the ground., imer alia, that the requirement of the giving of the public
notice under s. 4( 1) at convenient places of the locality was mandatory,
and as it \\'as not complied with, the entire acquisition proceedings were
void.
The High Court agreed with the contention but dismissed tlw
petition on the gr >Und that the objection was taken at a belated stage.
HELD :
(i) 1be provision in ss. 4(1), requiring public notice was
mandatory and non<0mptiance with it was fatal to the entire acquisition
proc<edings. [ 125 HJ
Section 4(1) says that the Collector shall cause public notice of the
substance of such notification to be given at convenient places jn the
said locality. If the word "sball" i< con..trucd as "may" the object of
the suh-scct;on will be defeated.
The object is to give intimation to
the person wh= land is sought to be acquired, of the intention of the
officer to enter the land.
Under s. 4(2), such a notice is a necessary
condition for the exercise of the power of entry and non-compliance with
the condition makes the entry of rhe officer or his !->ervanls unlawful. [125
F-H)
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 a notice under s. 5(2) is given after the officer enters the Jand and
submits the particulars mentioned in s. 4. [125 Cl
Babu Barkya Thakur v. T/ze Stare of Bombay, {1961] I S.C.R. 128,
e.<plained.
(ii) The High Coun was in error in holding, on the facts, that
there was inordinate delay in invoking its jurisdiction. [127 D]
12)
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KHUB CHAND v. RAJASTHAN (Subba Rao, CJ.)
121
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CIVIL APPELLATE JURISDICTION·: Civil Appeal No. 85 of 1964,
Appeal from thejudgment and order dated April 17, 1%3 of
the Rajasthan High Court in D. B. Civil Writ Petition No. 410
of 1960.
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Sarjoo Prasad and A. G. Ratnaparkhi, for the appelJant.
G. C. Kasliwal, Adl'Ocate-General for the State of Rajasthan.
B. P. Maheshwari and R. N. Sachthey, for the respondents.
The Judgment of the Court was delivered by
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Subba Rao, C.J. This appeal by certificate
is
directed
against the judgment of the High Court of Rajasthan at Jodhpur,
dismissing the petition filed by the appellants under Art. 226 of the
Constitution.
The relevant facts may be briefly stated. By a registered sale
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deed dated December 10, 1958, the appellants purchased the land
comprised in Khasra Nos. 158 and 182/2 situated in village Sangaria
in Tehsil Hanumangarh in the State of Rajasthan. On February 14,
1957, the Government of Rajasthan published a notification No. 7
(104) Rev/(A) dated October 19, 1956, under s. 4 of the Rajasthan
Land Acquisition Act, 1953, hereinafter called the Act, to the
effect that the said land, along with others, was needed or likely
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to be needed forthe public purpose oflaying township and orchards.
On January 9, 1958, another notification was published in the
Rajasthan Gazette under s. 5(2) of the Act. On February 3,.1959,
a further notification under s. 6 of the Act was published in the
Rajasthan Gazette in respect of the said land. The Government of
Rajasthan, in exercise of the powers unders. 3(c) of the Act, issued a
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notification dated September IO, 1955, appointing the Deputy
Director of Colonisation, Suratgarh Division with headquarters
at Hai~umangarh. to perform the functions of a Collector under
the Act within the local limits of his jurisdiction. On July 30, 1959
the said Government published a notification dated June 4, 1959:
in modification of the previous notification, appointing the Deputy
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Director of Colonisation. Rajasthan Canal Project, then having
headquarters at Bikaner. to perform the said functions within the
districts of Ganganagar, Bikaner and Jaisalmer.
Notwithstanding
the said notification, the Deputy Director of Colonisation, Suratgarh, exercising the functions UQder the Act, continued the acquisition proceedings. The appellants filed objections questioning the
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jurisdiction of the said Deputy Director to proceed with the enquiry
and thereafter they did not. take part in t~e. proceedings.· On
~cember 1 I, 1959, after m~kmg ex parte enqumes, the said Deputy
Duector made an award which for convemence of reference may be
Mt4SupClf66-9
122
SUPREME COURT REPORTS
[1967) I S.C.R.
referred to as Award No. I. In the said award, the appellant's lanli
was valued at Rs. 614 per bigha. But, on June 27, 1960 the
said Deputy Collector made another award, hereinafter referred to
as Award No. 2, setting aside Award No. I and giving compensation
to the appellants' land at the rate of Rs. 442 instead of at Rs. 614
per bigha. The appellants fiied the writ petition in the High
!2ourt of Rajasthan challenging the validity of the said proccedrngs.
The contentions raised by the parties before the High Court
need not be particularised as they are apparent from the following
findings given by it: (I) The provision of s. 4 in the Act, namely,
that a public notice of the substance of the notification should be
given at convenient places in the locality of the land in dispute, is
mandatory and the Land Acquisition Officer did not comply with the
same; but as the objection raised by the appellants in that regard was
belated it could not be allowed to be taken at that stage. (2) The
direction given by the
Rajasthan Government to the Deputy
Director of Colonisation, Suratgarh Division, to exercise the powers
of the Land Acquisition Officer under the Act was not withdrawn,
either expressly or by necessary implication, by the notification
dated June 4, 1959, by which the Deputy Director of Colonisation,
Rajasthan Canal Project, was authorised to perfom the functions of
Collector within the three districts mentioned therein. (3) Award
No. I dated D~ccmber II, 1959, which related to Khasra No. 158
had become final and it could not be altered by Award No. 2 in
regard to the said Khasra number. In effect and substance, the
High Court held that both the awards were valid but Award No. 2
should be confined only to Khasra No. 182/2. In the result, the
petition was dismissed. Hence the appeal.
The learned counsel for the appellants raised before us the
following !hree points: (I) The entire acquisition proceedings were
void inasmuch as the mandatory provision of s. 4 of the Act was
not complied with.
(2) After the Deputy Director of Colonisation,
Rajasthan Canal Project, had been authorised to perform the functions of a Collector in the districts of Ganganagar, Bikaner and
Jaisalmer, the Deputy Director of Colonisation, Suratgarh Division,
with headquarters at Hanumangarh, who was appointed earlier to
perform the functions of a Collector under the Act within the local
limits of the said jurisdiction, had become functus officio in regard
to the instant acquisition and therefore, the proceedings conducted
by him thereafter were null and void. (3) Under the Land Acquisition Act, the Collector thereunder could make only one award in
respect of a notification and, therefore, when he made the first award
in respect of the notification he became fw1ct11s officio and therefore,
the second award made by him in respect of the same notification was
void.
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KRUB CHAND v. RAJASTHAN (Subba Rao, CJ.)
123
The learned Advocate-General of Rajasthan questioned the
correctness of every one of the said contentions. We shall advert
to his contentions in the relevant contexts.
Sections 4, 5, and 5A of the Act read:
"Section 4 .. Publication of preliminary notification and
powers of officers thereupon.-
(!) Whenever it appears to the Government that land
in any locality is needed or is likely to be needed for any
public purpose, a notification to that effect shall be
published in the Rajasthan Gazette, and the Collector
shall cause public notice of the substance of such notification to be given at convenient places in the said locality.
(2) Thereupon it shall be lawful for any officer, generally
or specially authorised by the Government in this behalf,
and for his servants and workmen,-
(a) to enter upon and survey and take levels of any
land in such locality;
(b) to dig or bore into the sub-soil;
(c) to do all other acts necessary to ascertain whether
the land is adapted for such purpose;
(d) to set out the boundaries of the land proposed to
be taken and the intended line of the work (if any)
proposed to be made thereon;
(e). to mark such levels, boundaries and line by placing
marks· and cutting trenches; and where otherwise
the survey cannot be completed and the levels taken
and the boundaries and line marked, to cut down
and clear away any part of any standing crop,
fence or jungle:
Section 5. Report by Collector.-~-(l) The Collector or
a Revenue Officer specially empowered by the Governmentin this behalf shall forward to the Government With his
remarks a report on the result of the survey, if any, and
other operations described in and taken under sub-section
(2) of section 4.
(2) After considering the report, if any, submitted under
sub- section (1) or, if no such report has been received, at any
time after the issue of the notification under sub-section
(1) of section 4, the Government shall publish a further
notification in the Rajasthan Gazette, giving sufficient
description of the land already notified under the said
sub-section(!) of section 4 to enable it to be identified and
stating the purpose for which it is or is likely to be needed,
124
SUPREME COURT lll!PORTS
!1967) I S.C.ll.
its approximate area and situation and, where a plan has been
made of the land, the place where such plan may be inspected, and the Collector shall cause public notice. to be given
of the substance of the said further notification at convenient places on or near the land to be acquired.
Section 5A. Hearing of objectio11s.--<,.J) Any person
interested in any land which has been notified under section
5as beingneeded or likely tobeneededfor public purpose
or for a company may, within thirty days after the issue of
the notification, object to the acquisition of the land or of
any land in the locality, as the case may be."
The learned Advocate-General argued that a combined reading
of ss. 4, 5 and SA indicates that the direction in the second part
of s. 4 that the Collector shall cause public notice of the substance
of the notification to be given at convenient places in the said
locality was only directory.
He pointed out that s. 4 contemplated
only a notification in general terms and that under s. 5(2), after the
Collector ascertained the necessary particulars, the Government
had to issue a fresh notification giving sufficient description of the
land intended to be acquired along with a plan, if one had been made,
and also to cause a public notice to be given of the substance of
the said notification at convenient places on or near the land to
be acquired.
As two notices were contemplated by the Actone in general terms and another with specifications-and as both
the notices should be published and their substance should be
notified at convenient places, the argument proceeded, that the
direction to cause a
public notice of the substance of the notification to be given at convenient places in the said locality under
s. 4 was only directory, for the party would get under the later
notification better particulars and thus he would not in any way be
prejudiced.
This argument was not acceptc.d by the High Court, and,
in our view, rightly. The provisions of a statute conferrin& 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 orclinarily give that interpretation tu that term unless such an interpretation leads to some absurd or inconvenient consequence or
he at 'ariance with the intent of the legislature, to be collected
from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setti11g in
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KHUB CHAND v. RAJASTHAN (Subba Rao, CJ.)
125
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 particnlars of the land which is sought to be acquired. In the Land
Acquisition Act, 1894 (Central Act 1 of 1894) there ~ 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.
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 vnJess 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 expreMi.on
"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 romplying with the Mid
mandatory direction would be void and the land acquisition proceedings taken pursuant thereto would be equally void.
126
SUPllBMB COUllT J.BPORTS
[1967) 1 S.C.R.
Reliance is placed by the learned Advocate-General on the
decision of this Court in Babu Barkya Thakur v. The State of
Bombay('). 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" invali-'
dated 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. SA or s. 40 necessarily after the notification
under s. 4 of the Act."
ln 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.
The decision of this Court in Smt. Somavanti v. The ~tale
of Punjabf-) 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 the 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. (l) of s. 4 a condition precedent
to the publication of a notification under sub-s. (1) of
s. 6."
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On the said ground the contention was rejected. This decision
also has no bearing on the point raised before us. Indeed
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the following observation made by this Court in the cours~
I\) 119611 t s.c.R. 128, 140.
(2) [1963J 2 s.c.R, 774, 823, 822.
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KHUB CHAND v. RA.TASTHAN (Subba Rao, Cl.)
127
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of the judgment, to some extent, goes against the contention of
the respondent:
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"A notification under sub-s. (I) of s. 4 is a condition
precedent to the making of notification under sub-s. (I)
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In the present case, the High Court, as we have expressed earlier
rightly held that the pro -vision' 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 notification under s. 4 was published in the Rajasthan Gazette on
February 14, 1957, Award No. I 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
lS, 1960, and they filed the petition on 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.
In this view, it is not necessary to
express our op1mon
on the other two questions raised by the learned counsel for
the appellants.
In the result, the appellants will be entitled to a writ of prohibition restraining the respondents from giving effect to the said
two awards. The order of the High Court is set aside and the
writ petition filed by the appellant is allowed with costs here and
in the court below.
V.P.S.
Appeal allowed.
• . ·-