judgement:
Civil Appeal No. 1716 of 1969.
Appeal by special leave from the award dated the 31st March, 1969 of the Labour Court, Kolhapur, Maharashtra in Reference (IDA) No. f 1968.
B. Sen and I. N. Shroff, for the appellant.
R. K. Garg, section C. Agarwal and V. J. Francis, for the respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
The important question which has been pinpointed hl this appeal by special leave is whether when a domestic inquiry held by an employer is found by the labour court as violative of the principles of natural justice there is any duty cast upon that court to give an opportunity to the employer to adduce evidence afresh before it and whether to do so would vitiate its award.
362 In the present case the workman concerned was charged under the standing orders of the company for soliciting or collecting from the employees contributions for some purpose (allegedly purchase of microphone and loud speaker arrangements) within the factory premises.
The workman denied the charge of soliciting or collecting contribution within the factory premises (for purchase of microphone and loudspeaker) but added that for this purpose I collect the said contribution outside the gate of the Company and this being so, such erroneous information supplied to you by someone should not be considered acceptable".
After holding the domestic inquiry in which some witnesses were examined by the employer and cross examined by the workman and questioning the workman at the outset as well as at the end of the inquiry, the Enquiry Officer Submitted very brief report to the Works Manager (hereinafter the Manager) holding that the charges were established.
He did not give any detailed reasons for preferring the evidence of the six witnesses examined on behalf of the employer in the inquiry to the version of the workman.
The Manager after perusal of the report of the Enquiry officer passed the order of dismissal without adverting to the evidence in the inquiry.
This was particularly necessary since the Enquiry Officer had not given his reasons for his finding.
Another incident occurred during the inquiry before the Manager.
The workman after answering the first question of the Manager.
when another question was put, abruptly left the inquiry without paying any heed to the orders of the Manager and to persuasion of other officer resent asking him to wait.
The dismissal order was passed the same afternoon.
In this appeal we will proceed on the assumption that the domestic inquiry was rightly found by the labour court to be defective.
The labour court is aware of the legal position that it was competent in this case to take evidence of the parties and come to its own conclusion on the merits of the case and to decide whether the order of dismissal was justified or not to enable it to consider about the relief, if any, to he awarded to the workman.
The labour court, however, observed in its award that in the instant case no evidence regarding merits is led by the opponent before this Court.
It is open to the Labour Court to hold an enquiry itself.
But the opponent has chosen not to lead any evidence regarding the merits of the alleged misconduct.
The natural result of vitiating the enquiry would therefore be to set aside the order of dismissal and to direct the reinstatement in service of the dismissed employee with all back wages".
The question posed at the commencement of our judgment is thus highlighted by the aforesaid observations of the labour court and we are required to consider whether after the labour court comes to a decision about the inquiry being defective it has any duty to announce its decision in that behalf to enable the employer an opportunity to adduce evidence before it to justify the order on the charge levelled against a workman.
363 There is, however. no doubt that when the employer chooses to do so the workman will have his opportunity to rebut such evidence.
There is also no doubt, whatsoever, that if the employer declines to avail of such an opportunity, it will be open to the labour court to make an appropriate award and the employer will thereafter be able to make no grievance on that score.
In dealing with a case of dismissal of an industrial employee, this Court has time and again adverted to various principles and it is not necessary to recount all those decisions.
It will be sufficient to concentrate our attention only on a few of the decisions so far as material for our purpose and which are also rightly referred to at the bar.
The first case arising out of an award that has a material Bearing on the question is that of Workmen of Motipur Sugar Factory (Private) Limited vs Motipur Sugar Factory(1) which is a decision of four learned Judges.
Inter alia, the question that arose in that appeal was as to whether, since the management held no inquiry as required by the standing orders, it could not justify the discharge before the Tribunal.
In Motipur Sugar Factory 's case (supra), the Court observed at page 597 of the report as follows : "If it is held that in cases where the employer dismisses his employee without holding an enquiry, the dismissal must he set aside by the industrial tribunal only on that ground, it would inevitably mean that the employer will immediately proceed to hold the enquiry and pass an order dismissing the employee once again.
In that case, another industrial dispute would arise and the employer would be entitled to rely.
upon the enquiry which he had held in the meantime.
This course would mean delay and on the second occasion it will entitle the employer to claim the benefit of the domestic enquiry given.
On the other hand, if in such cases the employer is given an opportunity to justify the impugned dismissal on the merits of his case being considered by the tribunal for itself and that clearly would be to the benefit of the employee.
That is why this Court has consistently held that if the domestic enquiry is irregular, invalid or improper, the tribunal may give an opportunity to the employer to prove his case and in doing so the tribunal tries the merits itself.
This view is consistent with the approach which industrial adjudication generally adopts with a view to do justice between the parties without relying too much on technical considerations and with the object of avoiding delay in the disposal of industrial disputes".
The consequence that can ensue from a contrary view, as noticed by the, Court in Motipur Sugar Factory 's case (supra), will appear from what took place in the Management of Northern Railway.
Cooperative Society Ltd. vs Industrial Tribunal, Rajasthan, Jaipur and Anr.(2) where pursuant to the award after reinstating the employee the management (1) ; (2) ; 364 drew a fresh proceeding and passed a fresh order of removal and the A said order was again the subject matter of another reference to the industrial tribunal.
The pertinent question that arises for consideration is whether it is the duty of the tribunal to make known its decision to the parties on this jurisdictional aspect of the case so that the employer can avail of the opportunity to justify the dismissal based on the charge.
In Management of Ritz Theatre (P) Ltd. vs Its workmen (1), this Court was required to deal with rather ingenious argument.
It was contended in that case by the workmen, in support of the tribunal 's decision, that since the management at the very commencement of the trial before the Tribunal adduced evidence with regard to the merits of the case it should be held that it had given up its claim to the propriety or validity of the domestic enquiry.
While repelling this argument this court made some significant observations: "In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not.
Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the finding recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute.
Ir the view taken by Tribunal was held to be correct, it would lead to this anamoly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence, it would follow that he gives up his stand based on the holding of the domestic enquiry.
Other wise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue.
If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer; if the finding on the said issue is against hm, permission will have to be given to the employer to cite additional evidence".
Although this Court in Ritz Theatre 's case (supra) observed that such a procedure may be "elaborate and somewhat cumbersome" it was not held to be illegal nor had if been rejected out of hand In State Bank of India vs R. K. Jain & ors.(2), this Court had to deal with a similar question.
The contention on behalf of the management in that case was that "Even assuming that the domestic inquiry conducted by the Bank was in any manner vitiated, the Industrial Tribunal (1) [1963] 3 S.C.R.461, 469 470. (2) [1972] I S.C.R. 755,766,777.
365 erred in law in not giving an opportunity to the management to adduce evidence before it to establish the validity of the order of discharge".
In dealing with the above contention this Court observed as follows: "If the management defend its action solely on the basis that the domestic inquiry held by it is proper and valid and if Tribunal holds against the management on that point, the management will fail.
It is essentially a matter for the management to decide about the stand that it proposes to take before the Tribunal.
It may be emphasised, that it is the right of the management to sustain its order by adducing also .
independent evidence before the Tribunal.
It is a right given to the management and it is for the management to avail it self of the said opportunity".
On the facts of that case this Court held that the management, having made it clear to the Tribunal that it was resting its case solely on the domestic enquiry, had no right to make a grievance that it should have been given an opportunity to adduce evidence on facts before the Tribunal in justification of its order.
This Court further observed in that case that "no such opportunity was asked for by the appellant nor even availed of".
This Court in that case took into account management 's consistent stand throughout before Tribunal as also that it made no grievance on the score of non availability of opportunity to adduce evidence even in the special leave petition.
The claim of the Bank in that case was rejected on the peculiar facts found by this Court.
Referring to the State Bank 's case (supra) in Delhi Cloth & General Mills Co. vs Ludh Budh Singh(l), this Court observed that "the grievance of the management before this Court that the Tribunal should have given such an opportunity Suo moto was not accepted in the circumstances of that case".
There was a further observation in the Delhi Cloth & General Mills ' case (supra) to the following effect: "It may be pointed out that the Delhi and Madhya Pradesh High Courts had held that it is the duty of the Tribunal to decide, in the first instance, the propriety of the domestic enquiry held by the management and if it records, a finding against the management, it should suo moto provide an opportunity to the management to adduce additional evidence though the management had made no such request.
This view was held to be erroneous by this Court, in State Bank of India vs R. K. Jain & others" (supra).
(1) ; ,54 56 10 839Sup.
CI/75 366 We may now refer to the propositions (4), (5) and (6) in the A Delhi Cloth and General Mills ' case (supra): (4) "When a domestic enquiry has been held by the management and the management relies on the same, it is open to the latter to request the Tribunal to try the validity of r the domestic enquiry as a preliminary issue and also ask for an opportunity to adduce evidence before the Tribunal, if the finding on the preliminary issue is against the management.
However elaborate and cumbersome the procedure may be, under such circumstances, it is open to the Tribunal to deal, in the first instance, as a preliminary issue the validity of the s domestic enquiry.
If its finding on the preliminary issue is in favour of the management, then no additional evidence need be cited by the management But, if the finding on the preliminary issue is against the management, the Tribunal will have to give the employer an opportunity to cite additional evidence and also give a similar opportunity to the employee to lead evidence contra, as the request to adduce evidence had been made by the management to the Tribunal during the course of the proceedings and before the trial has come to an end . " (5) "The management has got a right to attempt to sustain its order by adducing independent evidence before the Tribunal.
But the management should avail itself of the .
said opportunity by making a suitable request to the Tribunal before the proceedings are closed.
If no such opportunity has been availed of, or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity.
The Tribunal will have before it only the enquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper".
(6) "If the employer relies only on the domestic enquiry and does not simultaneously lead additional evidence or ask for an opportunity during pendency of the proceedings to adduce such evidence, the duty of the Tribunal is only to consider the validity of the domestic enquiry as well as the finding recorded therein and decide the matter.
If the Tribunal decodes that the domestic enquiry has not been held properly, it is not its function to invite suo moto the employer to adduce evidence before it to justify the action taken by it".
In the Delhi Cloth and General Mills ' case (supra) dealing with the case of the management 's application to adduce evidence after close of arguments, although on the same day after the Court reserved judgment, this Court observed as follows: "The appellant did not ask for an opportunity to adduce evidence when the proceeding were pending nor did it avail itself of the right given to it in law to adduce evidence before he Tribunal during the pendency of the proceedings".
367 In Workmen of Messrs Firestone Tyre & Rubber Company of India (P) Ltd. vs Management & Others, (1) this Court stated the law laid down by this Court as on December 15, 1971.
For our purpose we will extract from that decision only propositions 4, 6, 7 and 8: (4) "Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the, Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it.
It is open to the employer to adduce evidence for the first time justifying his action".
(6) "The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective".
(7) "It has never been recognised that the Tribunal should straightway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective".
(8) "An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage.
If such an opportunity is asked for, the Tribunal has no power to refuse.
The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct".
We are particularly concerned with proposition ( 8 ) .
What is the appropriate stage was specifically adverted to in the Delhi Cloth & General Mills ' case (supra) which we are now required to seriously consider whether this conclusion is correct and ensures justice to all concerned in an industrial adjudicating.
Propositions (4), (6) and (7) set out above are well recognised.
It is, however, fair and in accordance with the principles of natural justice for the labour court to withhold its decision on a jurisdictional point at the appropriate stage and visit a party with evil consequences of a default on its part in not asking the court to give an opportunity to adduce additional evidence at the commencement of the proceedings or at any rate, in advance of the pronouncement of the order in that behalf ? Tn our considered opinion it will be most unnatural and unpractical to expect a party to take a definite stand when a decision of a jurisdictional fact has first to be reached by the labour court prior embarking upon an enquiry to decide the dispute on its merits.
The reference involves determination of the larger issue of discharge or (1) ; , 605 607.
368 dismissal and not merely whether a correct procedure had been followed by the management before passing the order of dismissal.
Besides, even if the order of dismissal is set aside on the ground of defect of enquiry.
a second enquiry after reinstatement is not ruled out nor in all probability a second reference.
Where will this lead to ? This is neither going to achieve the paramount object of the Act namely industrial peace, since the award in that case will not lead to a settlement of the dispute.
The dispute, being eclipsed, pro tempore, as a result of such an award, will.
be revived and industrial peace will again be ruptured.
Again another object of expeditious disposal of an industrial dispute (sec section 15) will be clearly defeated resulting in duplication of proceedings.
This position has to be avoided in the interest of labour as well as of the employer and in furtherance of the ultimate aim of the Act to foster industrial peace.
We are, therefore, clearly of opinion that when a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice.
When there is no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty.
But when the matter is in controversy between the parties that question must be decided as a preliminary issue.
On that decision being pronounced it will be for the management to decide whether it will adduce any evidence before the labour court.
If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.
We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award.
It will be also legitimate for the High Court to refuse to intervene at this stage.
We are making these observations in our anxiety that there is no undue delay in industrial adjudication.
In the present case, however, besides the long delay that has already taken place, since the law laid down by this Court was not very clear at the time of the award in casting a duty upon the labour court to decide the preliminary issue and also in view of the submission of the appellant that it is prepared to pay the entire salary of the workman upto date it will meet the interest of justice if the order of reinstatement is converted to one of compensation in terms of his entire salary from the date of dismissal to the date of this decision except for what has already been paid to him instead of remitting the.
matter to the labour court for disposal in the light of this judgment by setting aside the award.
In the result the appeal is dismissed with the above modification of the relief There will be, however, no order as to cost.
P.B.R. Appeal dismissed.

summary/full:
On the question, whether when a domestic inquiry held by an employer was found by the labour court as violative of the principles of natural justice there Was any duty cast upon that court to give an opportunity to the employer to adduce evidence afresh before it and whether failure to do so would vitiate its ^ HELD: When a case of dismissal or discharge of an employee is referred for industrial adjudication the labour court should first decide as a preliminary issue whether the domestic enquiry has violated the principles of natural justice.
When there was no domestic enquiry or defective enquiry is admitted by the employer, there will be no difficulty.
But when the matter is in controversy between the parties that question must be decided as a preliminary issue.
On that decision being pronounced it will be for the management to decide wether it will adduce any evidence before the labour court.
If it chooses not to adduce any evidence, it will not be thereafter permissible in any proceeding to raise the issue.
Three will be no justification for any party to stall the final adjudication of the dispute by the labour court by questioning it, decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award.
It will be legitimate for the High Court to refuse to intervene at this stage.
[368C E] Workmen of Motipur Sugar Factory (private) Limited vs Motipur Sugar Factory ; Management of Northern Railway Cooperative Society Ltd. vs industrial Tribunal Rajasthan, Jaipur and Anr. ; ; Management of Ritz Theatre (P) Ltd. vs Its workmen ; State Bank of India vs R. K. Jain & OrS. , 777; Delhi Cloth & General Mills Co. vs Ludh Budh Singh and Workmen of Messrs Firestone Tyre & Rubber Company of lndia (P) Ltd. vs Management & Others, , referred to.


judgement:
ivil Appeals Nos.
1700 & 1827 and 1021 of 1973.
Appeals by special leave from the judgment and orders dated the 17 7 1972, S 6 1972 and 8 8 1972 of the Mysore High Court in W.P.S NOS.
1921/1969/,2869/1967 & 3815/69 respectively.
L. N. Sinha, Solicitor General of India, M. Veerappa, Altaf Ahmad, for the appellants (in Civil Appeal No. 1700/73).
A. K. Sen, K. N. Bhat, for respondents (1 6 & 8 10) M. Veerappa & Altaf Ahmad, for the appellant.
K. N. Bhat, for respondents 1 7 M. Veerappa, for the appellants.
R. B. Datar, Jayashree Wad and Rajen Yashpaul, for the respondent.
1700 & 1827 of 1973 MATHEW J. We take up for consideration Civil Appeal No. 1827 f 1973.
The respondents are the owners of the lands in question.
371 They were sought to be acquired for the Regional Engineering College at the instance of the Education department of the State of Mysore.
In a notification under section 4 of the Land Acquisition Act (hereinafter called the Act) dated 5 1 1960 and published in the Mysore Gazette dated 5 5 1960, it was stated that in view of the urgency of the cases, the provisions of section SA of the Act shall not apply to the case.
The respondents challenged the notification in a writ petition (No. 768 of 1960).
When the writ petition came up for final disposal, a memo was produced on behalf of the State Government and the Court, On the basis of the Memo, dismissed the writ petition.
The memo was to this effect: '`The respondent agrees to modify the impugned notification issued under Section 4(1) read with Section 17 of the Land Acquisition Act and to give an opportunity to the petitioner of being heard under Section 5 A of the Act.
Hence the relief sought for by the petitioner becomes unnecessary.
" The Special Land Acquisition officer, Mangalore, issued notices to the respondents stating that the respondents will be given opportunity to file Objections under section 5A of the Act pursuant to the order in Writ Petition No. 768 of 1960.
The respondents filed their objections and, after an inquiry, the Land Acquisition officer sent his report to the Government.
The Government considered the report and over ruled the objections.
This was followed by a notification under section 6 of the Act.
The respondents challenged the above notification as well as the notification under section 4 by a writ petition in the High Court.
The respondents attacked the validity of the notification on the ground that the Education Department at whose instance the land was sought to be acquired was not given notice as required under rule 3(b) of the Madras Land Acquisition Rules as in force in the Madras area of the State of Mysore at the time of inquiry under section 5A and that since the requirement of notice as enjoined by rule 3(b) was mandatory, the failure to comply with that requirement rendered the notifications under sections 4 and 6 of the Act invalid.
The High Court by its order upheld the contention of the respondents and quashed the notifications issued under section 4 and section 6 of the Act.
It is against this order that the appeal has been filed by special leave by the State of Karnataka and the Special Land Acquisition officer, Mangalore.
The only point which arises for consideration is whether the pro visions of rule 3(b) were mandatory and therefore the failure to issue the notice to the department concerned as enjoined by the rule was fatal to the validity of the notifications under sections 4 and 6 of the Act.
The reasons which impelled the High Court to come to that conclusion were, if the Department to which a notice is issued files any reply by way of answer to the objections, the objector will know what the Department has stated by way of reply and, at the stage 372 Of hearing of objections, he (the objector) may adduce evidence or A address arguments to meet what has been stated in such reply, and that the objectors will have an opportunity of urging before the Government that the reasons given by the Department in the reply to the objections should not be accepted.
Rule 3 reads: "R. 3 Hearing of objection: (a) If a statement of 13 objections (is?) filed after the due date or by a person who is not interested in the land it shall be summarily rejected.
(b) If any objections are received from a person interested in the land and within the time prescribed in sub section ( 1) of s 5A, the Collector shall fix a date for hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not the Revenue Department; Copies of the objections shall also be forwarded to such department or company.
The department or company may file on or before the date fixed by the collector a statement by way of answer to the objections and may also depute a representative to attend the enquiry.
" l) The learned Solicitor General, appearing on behalf of the appellants submitted that rule 3(b) is inconsistent with section 5A(2) or tilt: reason that section 5A(2) itself provides for making further inquiry which the Collector thinks necessary after considering the objections filed by the owner or the person interested in the land and to read rule 3(b) as casting a mandatory duty upon him to give notice of the objection to the department requiring the land and to consider the answer to the objection, if any, filed by the Department would be contrary to the section.
The argument was that when sub section (2) of section 5A provides for further inquiry in the discretion of the Collector a rule making it mandatory that the Deputy Commissioner (the Collector) should give notice of the objection to the department concerned and consider its answer to the objection would be to convert a discretionary power into a mandatory duty and is therefore ultra vires 1 the section.
We do not think that the contention is right.
What the material provision of s 5A(2) says is that "the Collector shall give the objector .
an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further enquiry if any as he thinks necessary".
This does not mean that a rule cannot be framed by the rule making authority for the guidance of the Deputy Commissioner (the Collector) which would enable the Department concerned to place its view point before him when considering the objection under section 5A.
The proceedings of the Collector are quasi judicial and it is only proper that he should be apprise of the attitude of the department requiring the land in the light of the objections filed.
If the department requiring the land thinks, in the light of the objection, that the land sought to be acquired is not necessary for the purpose for which it was required to be acquired or that more suitable land is available in the vicinity, it is only fair that 373 the Deputy Commissioner (Collector) is informed about it.
The answer of the department to the objection filed by the objector, even if adverse to the objector, would, at any rate, enable the Collector to bring a more informed and rational approach to the controversy before him.
The Collector has to send his recommendation to government on the basis of his finding together with the record of the proceedings for the ultimate decision by the Government.
IT would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view points.
We do not think that rule 3(b) was ultra vires.
the section.
We also think that the government when it framed the rule had in mind that the Deputy Commissioner (Collector) should follow it while functioning under section 5A(2) and so the requirement of the rule was mandatory.
In determining the question whether a provision is mandatory or directory, one must look into the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured.
No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview.
But it does not follow that every departure from it shall taint the proceedings with a fatal blemish.
The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law maker.
And that has to he gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequences which would follow from construing it in one way or the other.
We see no reason why the rule should receive a permissible interpretation instead of a pre emptory construction.
As we said, the rule was enacted for the purpose of enabling the Deputy Commissioner (Land Acquisition Collector) to have all the relevant materials before him for coming to a conclusion to be incorporated in the report to be sent to the Government in order to enable the Government to make the proper decision.
In Lonappan vs
Sub Collector of Palghat(1) the Kerala High Court took the view that the requirement of the rule regarding the giving of notice to the department concerned was mandatory.
The view of the Madras High Court in K. V. Krishna Iyer vs The State of Madras(2)is also much the same.
We think that the High Court was right in its conclusion that the requirement of the rule was mandatory.
We quash the proceedings of the Collector (Special Land Acquisition officer, 2nd appellant) under section SA(2) as also the decision of the Government on the basis of the report of the Collector under the sub section.
The result is that the notification under section 6 has to be quashed and we do so.
But We sec no reason to quash the notification under section 4.
We direct the Collector (2nd appellant) to proceed with the inquiry on the basis of the objection already filed under section 5A after (1) A.I.R. 1959 Kerala 343.
(2) (1967) 2 Madras law Journal 422.
374 giving notice to the department concerned viz., the Education Department and after allowing it an opportunity to file an answer to the objection.
We dismiss the appeal subject to the modification indicated.
No costs.
The facts and circumstances in Civil Appeal No. 1700 of 1973 are similar to those in Civil Appeal No. 1827 of 1973, the only difference being that the rule which falls to be considered is rule 5(2) framed by the Government of Mysore under section 55 of the Act.
That rule is similar to rule 3(b) of the Madras rule.
For the reasons given in the judgment in Civil Appeal No. 1827 of 1973, dismiss Civil Appeal No. 1700 of 1973 also with the modification indicated therein and without any order as to costs.
Civil Appeal No. 1021 of 1973 The facts in this appeal are similar to those in the two Civil Appeals referred to above and the decision there will govern the decision here.
But counsel for the respondent in this appeal said that the notification under section 4 should be quashed in respect of properties involved in this appeal for the reasons that public notice had not been given as required in section 4 of the Act, that the report under section 5A was not sent to the Government within the prescribed period, that the High Court failed to pass upon these questions and that the case must therefore be remitted to the High Court.
The notification under section 4 was published on 13 4.1967.
Objections were filed by the respondent under section 5A of the Act.
The Deputy I I Commissioner submitted his report to the Government.
The Government over ruled the objections.
The notification under section 6 was published in the gazette on 19 10 1968.
The Writ Petition challenging the validity of the notification was filed some time in July or August, 1969.
We do not think that the respondent was entitled to challenge the validity of the notification under section 4 of the Act as the Writ Petition challenging the notification was filed after an unreasonable lapse of time.
If public notice as required by section 4 of the Act was not given and that would per se vitiate the notification under section 4, the ' appellant should have challenged its validity within a reasonable time of the publication of the notification.
The respondent knew of the notification and filed objection under section 5 of the Act.
In these circumstances we see no reason to accept the submission of counsel.
We also see no substance in the argument of the counsel that the report drawn up under section SA(2) was not sent to the Government within the time prescribed and therefore the proceedings were invalid.
We have directed a fresh inquiry by the Deputy Commissioner (Collector) under section SA and therefore, the Deputy Commissioner will in any event have to send a fresh report to the Government.
In this view we do not think that there is any ground for remitting the case to the High Court, simply because the High Court failed to , consider these points.
The appeal is dismissed with the modification; indicated in the two appeals referred to above.
No costs.
P.H.P. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The respondents are the owners of the land in question.
the land was sought to be acquired for an Engineering College at the instance of the Education Department of the State of Mysore.
Section 4 notification was issued in the year 1960.
After an enquiry into the objections filed under section 5A the land Acquisition officer sent his report to the Government.
Government over ruled the objection and issued a notification under section 6.
The Education Department at whose instance the land was sought to be acquired was not given notice as required by rule (b) of Madras Land Acquisition rules.
The respondents field a Writ Petition in the High Court challenging the validity or both the notifications on the ground that the Education Department was not consulted.
The High Court upheld the contention of ' the respondents and quashed the notifications issued under sections 4 and 6 of the Act on the ground that if the Department concerned filed any reply pursuant to the notice issued the objector would know what the Department has stated by way of reply and at the stage of hearing of objection.
tile objector might adduce evidence or address arguments to meet what is stated in such reply.
The objector.
could further urge before the Government that the reasons given by the department in reply to the objections should not be accepted: On appeal by Special Leave it was contended by the appellant.
Rule 3 (b) is inconsistent With section 5A (2) for the reasons that sub section (2) of section 5A provides for further enquiry in the discretion of the Collector and rule 3(b) if treated as mandatory would be to convert the discretionary power into a mandatory duty and is therefore, ultra vires the section.
The provisions of rule 3(b) were not mandatory and that therefore, failure to issue the notice to the department concerned was not fatal to the validity of the notification.
^ HELD: 1.
Section 5A requires the Collector to make a report after hearing the objections.
It does not mean that a rule cannot be framed which would enable the department concerned to place its view point before the Collector when considering the objection under section 5A.
The proceeding of the Collector are quasi judicial and it is only proper that he should be apprised of the attitude of the department requiring the land in the light of the objections filed.
It would be helpful to the Government in making the decision to have before it the answer to the objection by the department in order to appreciate the riv view point.
Rule 3(b) is not Ultra vires Section SA.
[372F H 373 A C] 2.
In determining the question whether a provision is mandatory or directory one must look into the subject matter.
and consider the importance of the provision disregarded and the relation of.
that provision to the general object intended to be secured.
One has to consider the nature the design and the consequence which will follow from construing a provision in one way or the other.
Rule 3(b) was enacted for the purpose of enabling the Collector to have all the 370 relevant materials before him for coming to a conclusion to be incorporated A in the report to be sent to the Government in order to enable the Government to make proper decision.
The High Court was right in holding that the provision WAS mandatory.
[373C F] The notification under Section 6 was quashed but the notification under section 4 was upheld.
[373 G] CIVIL APPEAL No. 1021 or 1973 The respondents raised further contention in the above appeal to the effect that notification under section 4 should be quashed since the public notice as required by section 4 is not given and the report under section 5A was not sent to the Government within the prescribed period.
HELD: The notification under section 4 was published on 13 4 1967.
Objections were filed by the respondent under section 5A of the Act.
The notification under section 6 was published in October 1968.
The Writ Petition was filed in July 1969.
The respondent was not entitled to challenge the validity of the notification under section 4 of the Act as Writ Petition challenging the notification was filed after an unreasonable lapse of time.
The respondent should have challenged the validity of the notification under section 4 within a reasonable time of ' the publication of the notification.
The respondent knew of the notification and file(l objections under section 5A of the Act.
There is no substance in the argument that the report under section 5A was not sent to the Government within the prescribed period.
In any event since a fresh enquiry is directed under section 5A the Collector will in any event have to send a fresh report to the Government.
[374D G]