May George vs. Special Tahsildar & Ors.

May George vs. Special Tahsildar & Ors.

(2010) 13 SCC 98

Key Words: mandatory, directory, non-compliance, object and purpose, shall, prejudice, legislative intent

Facts

The case of the appellant was that a part of her land had been acquired under land acquisition proceedings without her being served with notice under Section 9(3)[1] of the Land Acquisition Act. She filed a writ petition in the High Court challenging the Award giving effect to the acquisition and other subsequent proceedings.

Contention (Appellant):

The provisions of Section 9 are mandatory in nature and non-compliance thereof would vitiate the Award and all other consequential proceedings. Appellant had never been aware of issuance of Section 4 Notification or Section 6 Declaration or Award made thereafter. No notice had ever been served upon her in respect of acquisition proceedings.

Issue:

Whether the provisions of Section 9(3) are mandatory in nature and non-compliance thereof, would vitiate the Award and subsequent proceedings under the Act.

Held:

As regards whether a provision is directory or mandatory it was observed at para 14 that-

“While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things.”

The Court then referred to a range of case laws on this subject and summarized them at para 24 in the following words-

“The law on this issue can be summarised to the effect that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.”

Looking into the facts, the Court noted that “failure of issuance of notice under Section 9(3) would not adversely affect the subsequent proceedings including the Award and title of the government in the acquired land.” “In spite of the fact that Section 9 Notice had not been served upon the person- interested, he could still claim the compensation and ask for making the reference under Section 18 of the Act. There is nothing in the Act to show that non-compliance thereof will be fatal or visit any penalty.”[2]

The Court was fully satisfied that notice had been affixed on the land, satisfying the requirement of law and the Award had been made within limitation.

Conclusion:

The provision under Section 9(3) is not mandatory as-

a. no prejudice was caused to the aggrieved party by way of non-compliance

b. there was nothing in the Act to show that non-compliance would be fatal or attract penalty.