Pesara Pushpamala Reddy vs G.Veera Swamy & Ors

Pesara Pushpamala Reddy ...... Appellant

Versus

G. Veera Swamy and Others ...... Respondents

WITH

CIVIL APPEAL No. 2314 OF 2011

(Arising out of SLP (C) NO. 23821 OF 2008)

R.S. Murthy ...... Appellant

Versus

German Reddy & Anr. ...... Respondents

J U D G M E N T

A. K. PATNAIK, J.

Delay in filing of SLP (C) No.23821 of 2008 is condoned.

2. Leave granted.

3. These appeals are against two separate orders dated

04.06.2007 and 05.06.2007 passed by the Division Bench

2

of the High Court of Andhra Pradesh in Writ Petition

No.8613 of 2002 and Writ Petition No.18642 of 2004

respectively and raise two common questions of law

whether it is mandatory for the Special Tribunal or the

Special Court to call for a report of the Mandal Revenue

Officer before taking cognizance of a case under the Andhra

Pradesh Land Grabbing (Prohibition) Act, 1982 (for short

`the Act') and whether it is mandatory for the Special

Tribunal or the Special Court to publish a notification in

the Gazette notifying the fact of cognizance of a case under

the Act.

4. The facts in Civil Appeal arising out of SLP (C) No.23821 of

2008 are that the appellant R.S. Murthy filed L.G.O.P.

No.570 of 1992 before the Special Tribunal, Ranga Reddy

District, alleging that the respondents German Reddy and

Tresa German Reddy had demolished the compound wall of

the appellant constructed over his land measuring 606 sq.

yards in Plot No.439 in Survey No. 33 of Guttalabegumpet

Village in Ranga Reddy District, with a view to grab the

same and was raising structures thereon and prayed inter

3

alia that the appellant be declared as the owner of the land

and be given possession of the land and the respondents be

declared as land grabbers and punished under the Act.

Respondents filed a counter affidavit and denied the

allegations made by the appellant. The Special Tribunal

framed issues and commenced the trial. The Special

Tribunal appointed an Advocate Commissioner to

demarcate the property of the appellant and the Advocate

Commissioner submitted a report dated 28.12.1996 which

revealed that the respondents had encroached upon the

property of the appellant. By order dated 18.04.1996, the

Special Tribunal declared the respondents as land grabbers

and directed delivery of possession of the land to the

appellant and also directed prosecution of the respondents.

Respondents filed an appeal along with an application for

condonation of delay of 221 days before the Special Court.

By order dated 13.03.1997, the Special Court refused to

condone the delay and dismissed the appeal. Aggrieved,

the respondents filed Writ Petition No.12610 of 1997 in the

High Court of Andhra Pradesh and the High Court allowed

4

the Writ Petition and condoned the delay in filing the

appeal by the respondents before the Special Court. The

Special Court then heard the appeal of the respondents on

merits and dismissed the same. The respondents filed Writ

Petition No.27848 of 1998 and by an order dated

13.10.2001 the High Court remanded the matter to the

Special Court again and the Special Court remitted the

matter to the Special Tribunal to give an opportunity to the

respondents to file objections to the Advocate

Commissioner's report and to adduce evidence. The

Special Tribunal again passed orders on 18.09.2002

declaring the respondents as land grabbers. The

respondents filed appeal before the Special Court and by

order dated 16.08.2004 the Special Court dismissed the

appeal. Aggrieved, the respondents filed Writ Petition

No.18642 of 2004 and by the impugned order, the High

Court allowed the Writ Petition on the grounds that the

Special Tribunal had not called for a report of the Mandal

Revenue Officer under Rule 6 of the Andhra Pradesh Land

Grabbing (Prohibition) Rules, 1988 (for short `the Rules')

5

and had also not issued a notification under Rule 7 of the

Rules in the Andhra Pradesh Gazette after taking

cognizance of the case.

5. The facts of Civil Appeal arising out of SLP (C) No.21828 of

2007 are that the appellant Pesara Pushpamala Reddy filed

Land Grabbing Case No.5 of 1990 under the Act against

the respondents G. Veera Swamy and others before the

Special Tribunal, Warangal, alleging that the respondents

G. Veera Swami and others illegally grabbed and occupied

his land measuring 0.23 guntas in Survey No.568 (old) and

579 (new) situated at Waddepalli village on the P.W.D.

Main Road from Hanamkonda to Hyderabad. The

Respondents G. Veera Swamy and others filed their

counter affidavits in the said case denying the allegations

of land grabbing. The parties produced their oral and

documentary evidence and by order dated 03.07.1996, the

Special Tribunal allowed the land grabbing case and

directed the Revenue Officer, Warangal, to evict the

respondents from the land and put the appellant in

possession of the land. Aggrieved, the respondents filed

6

appeal before the Special Court at Hyderabad and the

Special Court dismissed the appeal on 29.10.1997. The

respondents then challenged the orders passed by the

Special Tribunal in Writ Petition No.8613 of 2002 in the

High Court. The High Court after holding that no report

had been called for from the Mandal Revenue Officer under

Rule 6 of the Rules and no Gazette notification had been

published under Rule 7 of the Rules by the Special

Tribunal allowed the Writ Petition by the impugned order

dated 04.06.2007 and set aside the impugned orders of the

Special Court and the Special Tribunal and remitted the

matter to the Special Tribunal, Warangal, for a fresh

disposal on merits.

6. Mr. P.S. Narasimha, learned counsel for the appellant in

Civil Appeal arising out of SLP (C) No.23821 of 2008, and

Mr. P. Vishwanatha Shetty, learned counsel for the

appellant in Civil Appeal arising out of SLP (C) No.21828 of

2007, submitted that Section 7-A of the Act deals with the

powers and procedure of the Special Tribunal and Section

8 of the Act deals with the procedure and powers of the

7

Special Court and there is nothing in these two sections to

show that before taking cognizance, the Special Tribunal or

the Special Court has to call for a report of the Mandal

Revenue Officer. They submitted that sub-rule (1) of Rule

6 of the Rules, however, provides that the Special Court or

the Special Tribunal may refer the applications filed before

the Special Court or the Special Tribunal for local

inspection or verification or both by the Mandal Revenue

Officer having jurisdiction over the area and sub-rule (2) of

Rule 6 of the Rules further provides that such Mandal

Revenue Officer to whom the application has been referred

under sub-rule (1) shall make or cause to be made an

inspection or verification or both, as soon as may be

practicable, and shall submit a full and complete report

within two weeks from the date of receipt of order with

reference to Revenue Records and facts on ground as to the

matters enumerated in sub-rule (2). They submitted that

the word `may' in sub-rule (1) of Rule 6 indicates that it is

not mandatory for the Special Court or the Special Tribunal

to refer the application to the Mandal Revenue Officer and

8

call for his report. They submitted that the High Court has

erroneously held that calling for report from the Mandal

Revenue Officer was mandatory for the Special Court or the

Special Tribunal before taking cognizance because of the

Full Bench judgment of the High Court of Andhra Pradesh

in Mohd. Siddiq Ali Khan & Others v. Shahsun Finance

Ltd., Chennai & Another [2005 (2) ALD 675 (FB)] holding

that reference of every application under sub-section (1) of

Section 8 of the Act or under sub-section (1) of Section 7-A

of the Act for local inspection or verification or both by the

Mandal Revenue Officer before the Special Court or the

Special Tribunal taking cognizance is a mandatory

requirement. They relied on a Division Bench judgment of

the Andhra Pradesh High Court in Vonkela Subramanyam

and Others v. Special Court under A.P. Land Grabbing

(Prohibition) Act, Hyderabad and Others [2007 (5) ALD 184

(DB)] holding that Rule 6 of the Rules does not contain a

mandate to refer the application to the Mandal Revenue

Officer and failure to refer the application to the Mandal

Revenue Officer for verification and calling for his report

9

would not have any impact on the facts of that case and

would not vitiate the entire proceedings.

7. Mr. Narasimha and Mr. Shetty next submitted that the

proviso to sub-Section (4) of Section 7-A of the Act states

that the Special Tribunal shall by notification specify the

fact of taking cognizance of the case under the Act and

accordingly Rule 7 of the Rules provides that the Special

Court or the Special Tribunal shall after taking cognizance

of the case under the Act give notice in Form II-A or Form

II-B by publishing it in the Andhra Pradesh Gazette, but

the use of the word `shall' in the proviso to Section 7 of the

Act or in Rule 7 of the Rules does not make the

requirement of publication of the case in the Gazette after

the Special Court or Special Tribunal takes cognizance of

the case mandatory. They cited the decisions of this Court

in P.T. Rajan v. T.P.M. Sahir & Ors. [(2003) 8 SCC 498] and

Vidyawati Gupta & Ors. v. Bhakti Hari Nayak & Ors.

[(2006) 2 SCC 777] in support of their argument that the

word `shall' in the proviso to Section 7 of the Act or in Rule

7 of the Rules does not make the requirement of

10

notification or publication of notice in the Gazette of a case

after the Special Court or the Special Tribunal takes

cognizance mandatory. Mr. Narasimha and Mr. Shetty

submitted that the respondents in this case had been

impleaded as parties in the application filed under sub-

section 1 of Section 7-A before the Special Tribunal and

had filed their replies before the Special Tribunal and had

also participated in the proceedings before the Special

Tribunal and at the instance of the respondents, therefore,

the High Court should not have held that the proceedings

before the Special Tribunal were vitiated because no

notification or notice of the case was published in the

Andhra Pradesh Gazette under the proviso to Section 7 of

the Act or Rule 7 of the Rules after the Special Tribunal

took cognizance of the case.

8. Mr. Bharat J. Joshi, learned counsel appearing for the

respondents, in reply, submitted that under sub-section (1)

of Section 7 of the Act, the Government has been

empowered to make rules and in exercise of this power the

Government of Andhra Pradesh has made the rules

11

providing in sub-rule (1) of Rule 6 that every application

filed under sub-section (1) of Section 8 of the Act or every

case taken cognizance of suo motu by the Special Court or

an application filed under sub-section (1) of Section 7-A of

the Act before the Special Tribunal, may be referred for

local inspection or verification or both by the Mandal

Revenue Officer having jurisdiction over the area. He

argued that the word `may' used in sub-rule (1) of Rule 6

actually means `shall' relying on the decision in State of

Uttar Pradesh v. Jogendra Singh [1963 (2) SCR 197] in

which this Court has held that the word `may' is capable of

meaning `must' or `shall' in the light of the context in which

the word is used and where a discretion is conferred upon

a public authority coupled with an obligation, the word

`may' which denotes discretion should be construed to

mean a command. He submitted that this Court has

further held in the case of Jogendra Singh (supra) that the

legislature uses the word `may' out of deference to the high

status of the authority on whom the power and obligation

are intended to be conferred and imposed. He also relied

12

on Govindlal Chhaganlal Patel v. The Agricultural Produce

Market Committee, Godhra and Others [(1975) 2 SCC 482]

wherein this Court has held that the question as to

whether a statue is mandatory or directory depends upon

the intent of the Legislature and not upon the language in

which the intent is clothed and, therefore, the use of the

word `shall' or `may' is not conclusive on the question

where the particular requirement of law is mandatory or

directory. He cited the decision of this Court in V.

Laxminarasamma v. A.

Y adaiah (Dead) and Others [(2009)

5 SCC 478] holding that a report of the Revenue Officer

who is the man on the spot is required to be obtained by

the Special Court or by the Special Tribunal under the Act.

He submitted that the view taken by the Full Bench of the

Andhra Pradesh High Court in Mohd. Siddiq Ali Khan v.

Shahsun finance Ltd. (supra) that reference of every

application under sub-section (1) of Section 8 of the Act or

under sub-section (1) of Section 7-A of the Act for local

inspection or verification or both by the Mandal Revenue

Officer before the Special Court or the Special Tribunal

13

taking cognizance is a mandatory requirement, is therefore

correct. He submitted that this view has also been taken

by a Division Bench of the Andhra Pradesh High Court in

Sekharamahanti Nagabhushanarao (died) per L.R. v.

Andhra University, rep. by its Registrar and Others [2009 (2)

ALT 260].

9. Regarding publication of notice in the Andhra Pradesh

Gazette after taking cognizance by the Special Court or by

the Special Tribunal, he submitted that in sub-section (4)

of Section 7-A of the Act and Rule 7 of the Rules it is clear

that the Special Tribunal `shall' after taking cognizance of

the case publish a notice in the prescribed form in the

Andhra Pradesh Gazette. He submitted that this provision

has been made in the public interest and cannot be waived.

He cited the decision of this Court in Graphite India Ltd.

and Another v. Durgapur Projects Ltd. and Others [(1999) 7

SCC 645] that where a statutory provision is made in the

interest of public, it cannot be waived by a party. He

submitted that even though the respondents have filed

their replies denying the allegations made in the

14

application filed under Section 7(1) of the Act before the

Special Tribunal by the appellant, they can raise the

objection that the mandatory requirement of notification or

publication of a notice in the Andhra Pradesh Gazette as

provided in sub-section (4) of Section 7 of the Act and sub-

rule (1) of Rule 7 of the Rules has not been followed after

the cognizance of the case by the Special Tribunal and

therefore the entire proceedings before the Special Tribunal

stand vitiated.

10.Sections 7-A, 8 and 9 of the Act and Rules 6 and 7 of the

Rules, which are relevant to decide the two questions of law

in this case, are extracted hereinbelow:

"Section 7-A. Special Tribunals and its

powers, etc.:--(1) Every Special Tribunal shall

have power to try all cases not taken cognizance

of by the Special Court relating to any alleged act

of land grabbing, or with respect to the ownership

and title to, or lawful possession of the land

grabbed whether before or after the

commencement of the Andhra Pradesh Land

Grabbing (Prohibition) (Amendment) Act, 1987

and brought before it and pass such orders

(including orders by way of interim directions) as

it deems fit:

15 Provided that if, in the opinion of the Special

Tribunal, any case brought before it is prima

facie frivolous or vexatious it shall reject the

same without any further enquiry:

Provided further that if in the opinion of the

Special Tribunal any case brought before it is a

fit case to be tried by the Special Court it may for

reasons to be recorded by it transfer the case to

the Special Court for its decision in the matter.

(2) Save as otherwise provided in this Act, a

Special Tribunal shall, in the trial of cases before

it, follow the procedure prescribed in the Code of

Civil Procedure, 1908 (Central Act 5 of 1908).

(3) An appeal shall lie, from any judgment or

order not being interlocutory order of the Special

Tribunal, to the Special Court on any question of

law or of fact. Every appeal under this sub

section shall be preferred within a period of sixty

days from the date of Judgment or order of the

Special Tribunal;

Provided that the Special Court may entertain an

appeal after the expiry of the said period of sixty

days, if it is satisfied that the appellant had

sufficient cause for not preferring the appeal

within the period of sixty days.

(4) Every finding of the Special Tribunal with

regard to any alleged act of land grabbing shall

be conclusive proof of the fact of land grabbing,

and of the persons who committed such land

grabbing and every judgment of the Special

Tribunal with regard to the determination of the

title and ownership to, or lawful possession of,

any land grabbed shall be binding on all persons

having interest in such land:

16 Provided that the Special Tribunal shall by

notification specify the fact of taking cognizance

of the case under this Act. Such notification shall

state that any objection which may be received by

the Special Tribunal from any person including

the custodian of evacuee property within the

period specified therein will be considered by it:

Provided further that where the custodian of

evacuee property objects to the Special Tribunal

taking cognizance of the case, the Special

Tribunal shall not proceed further with the case

in regard to such property:

Provided also that the Special Tribunal shall

cause a notice of taking cognizance of the case

under the Act served on any person known or

believed to be interested in the land, after a

summary enquiry to satisfy itself about the

persons likely to be interested in the land.

(5) It shall be lawful for the Special Tribunal to

pass an order in any case decided by it, awarding

compensation in terms of money for wrongful

possession, which shall not be less than an

amount equivalent to the market value of the

land grabbed as on the date of the order and

profits accrued from the land payable by the land

grabber to the owner of the grabbed land and

may direct the redelivery of the grabbed land to

its rightful owner. The amount of compensation

and profits so awarded and cost of redelivery, if

any, shall be recovered as an arrear of land

revenue if the Government are the owner and as

a decree of a Civil Court, in any other case:

Provided that the Special Tribunal shall, before

passing an order under this sub-section, give to

17

the land grabber an opportunity of making his

representation or of adducing evidence, if any, in

this regard and consider every such

representation and evidence.

(6) Any case, pending before any Court or other

authority immediately before the commencement

of the Andhra Pradesh Land Grabbing

(Prohibition) (Amendment) Act, 1987 as would

have been within the jurisdiction of a Special

Tribunal, shall stand transferred to the Special

Tribunal, having jurisdiction, as if the cause of

action on which such suit or proceeding is based

had arisen after such commencement.

(7) Every case brought before the Special

Tribunal shall be disposed of finally by the

Special Tribunal, as far as possible, within a

period of six months from the date of its having

been brought before it.

(8) The Special Tribunal shall have all the powers

of a Civil Court for purposes of review.

Section 8. Procedure and powers of the

Special Courts:-- (1) The Special Court may,

either suo motu or on application made by any

person, officer or authority take cognizance of

and try every case arising out of any alleged act

of land grabbing or with respect to the ownership

and title to, or lawful possession of, the land

grabbed, whether before or after the

commencement of this Act, and pass such orders

(including orders by way of interim directions) as

it deems fit;

(1-A) The Special Court shall, for the purpose of

taking cognizance of the case, consider the

location or extent or value of the land alleged to

18

have been grabbed or of the substantial nature of

the evil involved or in the interest of justice

required or any other relevant matter:

Provided that the Special Court shall not take

cognizance of any such case without hearing the

petitioner.

(2) Notwithstanding anything in the Code of Civil

Procedure, 1908 [the Code of Criminal Procedure,

1973] or in the Andhra Pradesh Civil Courts Act,

1972, (Act 9 of 1972) any case in respect of an

alleged act of land grabbing or the determination

of question of title and ownership to, or lawful

possession of any land grabbed under this Act,

[shall, subject to the provisions of this Act, be

triable in the Special Court] and the decision of

Special Court shall be final.

(2-A) If the Special Court is of the opinion that

any case brought before it, is not a fit case to be

taken cognizance of, it may return the same for

presentation before the Special Tribunal:

Provided that if, in the opinion of the Special

Court, any application filed before it is prima

facie frivolous or vexatious, it shall reject the

same without any further enquiry:

Provided further that if on an application from an

interested person to withdraw and try a case

pending before any Special Tribunal the Special

Court is of the opinion that it is a fit case to be

withdrawn and tried by it, it may for reasons to

be recorded in writing withdraw any such case

from such Special Tribunal and shall deal with it

as if the case was originally instituted before the

Special Court.

19

(2-B) Notwithstanding anything in the Code of

Criminal Procedure, 1973, it shall be lawful for

the Special Court to try all offences punishable

under this Act.

(2-C) The Special Court shall determine the order

in which the civil and criminal liability against a

land grabber be initiated. It shall be within the

discretion of the Special Court whether or not to

deliver its decision or order until both civil and

criminal proceedings are completed. The evidence

admitted during the criminal proceeding may be

made use of while trying the civil liability. But

additional evidence, if any, adduced in the civil

proceedings shall not be considered by the

Special Court while determining the criminal

liability. Any person accused of land grabbing or

the abetment thereof before the Special Court

shall be a competent witness for the defence and

may give evidence or oath in disproof of the

charge made against him or any person charged

together with him in the criminal proceeding:

Provided that he shall not be called as a witness

except on his own request in writing or his failure

to give evidence shall be made the subject of any

comment by any of the parties or the special

court or give rise to any presumption against

himself or any person charged together with him

at the same proceeding.]

(3) [* * * Omitted]

(4) Every case under sub-section (1) shall be

disposed of finally by the Special Court, as far as

possible, within a period of six months from the

date of institution of the case before it.

(5) [* * *Omitted]

20

(6) Every finding of the Special Court with regard

to any alleged act of land grabbing shall be

conclusive proof of the fact of land grabbing and

of the persons who committed such land

grabbing, and every judgment of the Special

Court with regard to the determination of title

and ownership to, or lawful possession of, any

land grabbed shall be binding on all persons

having interest in such land

[* * * Omitted]

[Provided that the Special Court shall, by

notification specify the fact of taking cognizance

of the case under this Act. Such notification

shall state that any objection which may be

received by the Special Court from any person

including the custodian of evacuee property

within the period specified therein will be

considered by it;

Provided further that where the custodian of

evacuee property objects to the Special Court

taking cognizance of the case, the Special Court

shall not proceed further with the case in regard

to such property;

Provided also that the Special Court shall cause a

notice of taking cognizance of the case under the

Act, served on any person known or believed to

be interested in the land, after a summary

enquiry to satisfy itself about the persons likely

to be interested in the land.

(7) It shall be lawful for the Special Court to pass

such order as it may deem fit to advance the

cause of justice. It may award compensation in

terms of money for wrongful possession of the

21

land grabbed which shall not be less than an

amount equivalent to the market value of the

land grabbed as on the date of the order and

profits accrued from the land payable by the land

grabber to the owner of the grabbed land and

may direct re-delivery of the grabbed land to its

rightful owner. The amount of compensation and

profits, so awarded and costs of re-delivery, if

any, shall be recovered as an arrear of land

revenue in case the Government is the owner, or

as a decree of a civil Court, in any other case to

be executed by the Special Court:

Provided that the Special Court shall, before

passing an order under this subsection, give to

the land grabber an opportunity of making his

representation or of adducing evidence, if any, in

this regard, and consider such representation

and evidence.]

(8) Any case, pending before any court or other

authority immediately before the constitution of a

Special Court, as would have been within the

jurisdiction of such Special Court, shall stand

transferred to the Special Court [omitted] as if the

cause of action on which such suit or proceeding

is based had arisen after the constitution of the

Special Court.

Section 9. Special Court to have the powers of

the Civil Court and the Court of Sessions:--

Save as expressly provided in this Act, the

provisions of the Code of Civil Procedure, 1908,

(Central Act 5 of 1908), the Andhra Pradesh Civil

Courts Act, 1972 (Act 19 of 1972) and the Code of

Criminal Procedure, 1973 (Central Act 2 of 1974),

insofar as they are not inconsistent with the

provisions of this Act, shall apply to the

proceedings before the Special Court and for the

22

purpose of the provisions of the said enactments,

Special Court shall be deemed to be a Civil Court,

or as the case may be, a Court of Session and

shall have all the powers of a Civil Court and a

Court of Session and the person conducting a

prosecution before the Special Court shall be

deemed to be a Public Prosecutor.

Rule 6. Verification of Application:- (1) Every

application filed under sub-section (1) of Section

8 of the Act or every case taken cognizance of suo

motu by the Special Court or an application filed

under sub-sect.(1) of Section 7-A of the Act,

before the Special Tribunal, may be referred for

local inspection or verification or both by the

Mandal Revenue Officer having jurisdiction over

the area or by any other Officer of the

Government authorized by the Court in this

behalf.

(2) The Mandal Revenue Officer or the other

Officer to whom the application has been referred

under sub-rule (1) shall make or cause to be

made an inspection or verification or both, as

soon as may be practicable and shall submit a

full and complete report within two weeks from

the date of receipt of order with reference to

Revenue Records and facts on ground as to the

following:-

(i) the correctness of the statements made in the

application with regard to columns 1 to 15 and

19 in Forum-1;

(ii) the facts relating to ownership, actual

possession and use of the land concerned; and

23

(iii) such other particulars and information as

would be useful to the Court to arrive at a correct

decision on the claims made in the application.

(3) The Mandal Revenue Officer or the other

Officer to whom the application has been referred

under sub-rule (1) shall also furnish copies of the

extracts of the Government records to show the

survey number and sub-division number and

proof of possession, ownership and use of the

land and the payment of dues to the Government.

(4) A copy of the report referred to in sub-rule (2)

may be furnished to the applicant, to the

respondents and other persons, if any having

interest in the land on payment of copying

charges.

Rule 7. Notice of taking cognizance of a case:-

(1) The Special Court shall after taking

cognizance of the case under the Act give notice

in Form II-A by publishing it in the Andhra

Pradesh Gazette.

(2) The Special Tribunal shall after taking

cognizance of the case under the Act give notice

in Form-II-B by publishing it in the Andhra

Pradesh Gazette."

11. A reading of the provisions of Sections 7-A and 8 of the Act

would show that neither of the two Sections requires the

Special Tribunal or the Special Court to refer any

application or a case for local inspection or verification or

both by the Mandal Revenue Officer having jurisdiction

24

over the area. Sub-rule (1) of Rule 6 of the Rules, however,

provides that every application filed under sub-section (1)

of Section 8 of the Act or every case taken cognizance of

suo motu by the Special Court or an application filed under

sub-section (1) of Section 7-A of the Act, before the Special

Tribunal, `may' be referred for local inspection or

verification or both by the Mandal Revenue Officer having

jurisdiction over the area or by any other Officer of the

Government authorized by the Court in this behalf. This

Court has held in State of Uttar Pradesh v. Jogendra Singh

(supra) that the word `may' is capable of meaning `must' or

`shall' in the light of the context in which the word is used

and where a discretion is conferred upon a public authority

coupled with an obligation, the word `may' should be

construed to mean a command. Hence, we are called upon

to decide whether the word `may' used in sub-rule (1) of

Rule 6 of the Rules confers only a discretion upon the

Special Tribunal or the Special Court to refer an

application filed before it or a case to the Mandal Revenue

Officer or whether this discretion of the Special Tribunal or

25

the Special Court is coupled also with a duty or an

obligation to refer the application filed before it or the case

to the Mandal Revenue Officer and we have to decide this

question by examining the context in which the word `may'

has been used and the context would mean Rule 6 of the

Rules and Sections 7-A and 8 of the Act and the object of

these statutory provisions.

12. A reading of Rule 6 of the Rules and, in particular, sub-

rules (1) and (2) thereof, indicates that the object of referring

the application under sub-section (1) of Section 7-A or sub-

section (1) of Section 8 of the Act to the Mandal Revenue

Officer is to get full and complete report from the Mandal

Revenue Officer after local inspection or verification on the

correctness of the statements made in the application and the

facts relating to ownership, actual possession and use of the

land concerned and such other particulars and information as

would be useful to the Court to arrive at a correct decision on

the claims made in the application. Sub-rule (3) of Rule 6 of

the Rules further indicates the nature of the report the Mandal

Revenue Officer is required to submit and it states that the

26

Mandal Revenue Officer or the other Officer to whom the

application has been referred under sub-rule (1) shall also

furnish along with his report copies of the extracts of the

Government records to show the survey number and sub-

division number and proof of possession, ownership and use

of the land and the payment of dues to the Government. The

report of the Mandal Revenue Officer, therefore, is to be based

on Government records and on proof of possession, ownership

and use of the land and the payment of dues to the

Government and/or local inspection. Where an applicant

before the Special Tribunal or the Special Court furnishes

certified copies of Government records to show proof of

possession, ownership and use of the land and also payment

of dues to the Government, in support of the statements made

in the application and the Special Tribunal or the Special

Court is satisfied about the truth of the statements made in

the application, it may not be necessary for the Special

Tribunal or the Special Court to refer the application to the

Mandal Revenue Officer for inspection or verification.

Moreover, the Special Tribunal or the Special Court can

27

ascertain the truth or otherwise of the statements made in the

application made under Sections 7(1) or 8(1) of the Act on the

basis of oral and documentary evidence adduced before it.

Sub-section (2) of Section 7-A provides that save as otherwise

provided in the Act, a Special Tribunal shall, in the trial of

cases before it, follow the procedure prescribed in the Code of

Civil Procedure, 1908. Hence, all the provisions of the Code of

Civil Procedure, 1908 relating to trial including examination

and cross-examination of witnesses and production and

acceptance of documentary evidence are available to the

Special Tribunal to be followed for the purpose of ascertaining

the truth or otherwise of the statements made in the

application under sub-section (1) of Section 7-A of the Act.

Similarly, Section 9 of the Act provides that save as expressly

provided in the Act, the provisions of the Code of Civil

Procedure, 1908 and the Code of Criminal Procedure, 1973

insofar as they are not inconsistent with the provisions of the

Act, shall apply to the proceedings before the Special Court.

The provisions of the Code of Civil Procedure, 1908 and the

Code of Criminal Procedure, 1973 relating to trials, such as

28

examination and cross-examination of witnesses and

production and acceptance of documents are also available to

the Special Court for ascertaining the truth or otherwise of the

statements made in the application.

13. We are thus of the considered opinion that the object of

Rule 6 of the Rules is to assist the Special Tribunal or the

Special Court to arrive at a correct decision on the claims and

allegations made in the application under sub-section (1) of

Section 7-A and sub-section (1) of Section 8 of the Act to the

Special Tribunal or the Special Court and if this very object

can be achieved without referring the application of the case to

the Mandal Revenue Officer, it may not be necessary for the

Special Tribunal or the Special Court to make a reference to

the Mandal Revenue Officer and therefore there is no

compelling duty on the Special Tribunal or the Special Court

to refer the application under Section 7-A (1) or under Section

8 to the Mandal Revenue Officer. In other words, under the

Act and the Rules, it is not mandatory for the Special Tribunal

or the Special Court to call for a report of the Mandal Revenue

Officer. We, however, hasten to make it clear that while there

29

is nothing in the statutory provisions in Section 7-A or Section

8-A of the Act or Rule 6 of the Rules to indicate that the power

vested in the Special Tribunal or the Special Court is coupled

with a duty to refer the application filed before it to the Mandal

Revenue Officer, the facts of a particular case before the

Special Tribunal or the Special Court may cast a judicial duty

on the Special Tribunal or the Special Court to refer the

application filed before it to the Mandal Revenue Officer for the

purpose of verifying the truth of the statements made in the

application and deciding the land grabbing case before it in a

just and reasonable manner. In The Official Liquidator v.

Dharti Dhan (P) Ltd. [(1977) 2 SCC 166], this Court referring to

the word `may' used in Sections 442 and 446 of the

Companies Act, 1956 held:

"If the applicant can make out, on facts, that the

objects of the power conferred by Sections 442 and

446 of the Act, can only be carried out by a stay

order, it could perhaps be urged that an obligation

to do so has become annexed to it by proof of those

facts. That would be the position not because the

word "may" itself must be equated with "shall" but

because judicial power has necessarily to be

exercised justly, properly, and reasonably to enforce

the principle that rights created must be enforced."

30

14. The next question, which we are called upon to decide in

this case, is whether it was mandatory for the Special Tribunal

or the Special Court to issue notification specifying the fact of

taking cognizance of the case under the Act in accordance

with the proviso to sub-section (4) of Section 7 or sub-section

(6) of Section 8 of the Act and Rule 7 of the Rules. The proviso

to sub-section (4) of Section 7-A and the proviso to sub-section

(6) of Section 8 of the Act provide that the Special Tribunal

and the Special Court shall by notification specify the fact of

taking cognizance of the case under the Act. Similarly, sub-

rules (1) and (2) of Rule 7 of the Rules provide that the Special

Court and the Special Tribunal shall after taking cognizance of

the case under the Act give notice in Form II-A/II-B by

publishing it in the Andhra Pradesh Gazette. The word `shall'

used in the proviso to sub-section (4) of Section 7-A and the

proviso to sub-section (6) of Section 8 of the Act as well as in

sub-rules (1) and (2) of Rule 7 of the Rules indicates that

compliance with requirement of notification or publication of

the notice in the Andhra Pradesh Gazette of the case after the

31

Special Tribunal or the Special Court takes cognizance is

mandatory. The use of the word "shall" in these provisions,

however, is not conclusive of the mandatory nature of the

provisions and we must look at the main provisions of sub-

section (4) of Section 7-A and sub-section (6) of Section 8 of

the Act to find out the purposes for which such notification or

publication of notice is to be made. As has been explained by

Justice G.P. Singh in Principles of Statutory Interpretation,

12th Edition 2010 at page 406-407:

"The use of word `shall' raises a presumption that

the particular provision is imperative; but this

prima facie inference may be rebutted by other

considerations such as object and scope of the

enactment and the consequences flowing from such

construction."

The object of the proviso to sub-section (4) of Section 7-A will

be clear from the main provision which states that every

judgment of the Special Tribunal with regard to the

determination of title and ownership to, or lawful possession

of, any land grabbed shall be binding on all persons having

interest in such land. Similarly, the object of the proviso to

sub-section (6) of Section 8 will be clear from the main

32

provision which states that every judgment of the Special

Court with regard to the determination of title and ownership

to, or lawful possession of, any land grabbed shall be binding

on all persons having interest in such land. Hence, all

persons who may not have been impleaded as a party in the

applications filed under sub-section (1) of Section 7-A or sub-

section (1) of Section 8 of the Act are sought to be given notice

by a notification in the Andhra Pradesh Gazette of the fact of

the Special Tribunal or the Special Court taking cognizance of

a case to enable them to appear before the Special Tribunal or

the Special Court and protect their interest in the land, if any.

Considering this object of Sections 7-A and 8 of the Act, we are

of the opinion that the notification or the publication of the

notice of the fact that cognizance of a case has been taken in

the Andhra Pradesh Gazette as required by the proviso to sub-

section (4) of Section 7-A and the proviso to sub-section (6) of

Section 8 and sub-rules (1) and (2) of Rule 7 is mandatory and

cannot be dispensed with by the Special Tribunal and the

Special Court.

33 15. This requirement of a notification or publication of notice

in the Andhra Pradesh Gazette of the fact that cognizance of a

case has been taken by the Special Tribunal or the Special

Court has been made mandatory by the Act and the Rules not

in the public interest but in the interest of persons who may

claim title, ownership or lawful possession of the land which is

the subject-matter of the proceedings under Section 7-A or

Section 8 of the Act before the Special Tribunal or the Special

Court. If, therefore, a person who claims title, ownership or

lawful possession of any such land is already a party in the

proceedings under Sections 7-A or 8 of the Act in the Special

Tribunal or the Special Court and he has notice of such

proceedings and has had due opportunity to participate in the

said proceedings and assert his title, ownership or lawful

possession over the land, he cannot challenge the proceedings

of the Special Tribunal or the Special Court on the ground that

the notification or the publication of the notice has not been

made in accordance with the Act and Rules. In State Bank of

Patiala & Ors. v. S. K. Sharma [(1996) 3 SCC 364] this Court

34

relying on Dhirendra Nath Gorai v. Sudhir Chandra Ghosh [AIR

1964 SC 1300] has held in para 29 at page 387:

"But then even a mandatory requirement can be

waived by the person concerned if such mandatory

provision is conceived in his interest and not in

public interest."

In the aforesaid case at para 33 at page 389, this Court has

further held:

"33. .................

(1) ...................

(2) ...................

(3) In the case of violation of a procedural

provision, the position is this: procedural

provisions are generally meant for affording a

reasonable and adequate opportunity to the

delinquent officer/employee. They are, generally

speaking, conceived in his interest. Violation of

any and every procedural provision cannot be said

to automatically vitiate the enquiry held or order

passed. Except cases falling under - "no notice",

"no opportunity" and "no hearing" categories, the

complaint of violation of procedural provision

should be examined from the point of view of

prejudice."

16. The provisions of the Act and Rules mandatorily requiring

notification or publication of the notice of the case after the

Special Tribunal or the Special Court takes cognizance are

35

procedural provisions and the law laid down by this Court in

State Bank of Patiala & Ors. v. S. K. Sharma (supra) is that

violation of such procedural provisions will not vitiate the

proceedings unless prejudice is caused to the party

complaining of the violation. The respondents in the two cases

before us not only had notice of the application under Section

7-A of the Act before the Special Tribunal but also filed their

replies to the application and got the opportunity to adduce

evidence in support of their case and had not suffered any

prejudice for non-compliance of the provisions of the proviso

to sub-section (4) of Section 7-A of the Act or Rule 7 of the

Rules. The High Court was, therefore, not right in quashing

the proceedings before the Special Tribunal in the present case

on the ground that a notification or notice in terms of Rule

7(2) of the Rules had not been issued after the case was taking

cognizance of by the Special Tribunal.

17. In the result, we allow these appeals, set aside the

impugned orders of the High Court and remand the matter to

the High Court for consideration whether in the facts of the

two cases reference to the Mandal Revenue Officer was at all

36

necessary to ascertain the truth of the statements made in the

applications and to arrive at a just decision and for

consideration of the Writ Petitions on merits. There will be no

order as to costs.

.............................J.

(R. V. Raveendran)

.............................J.

(A. K. Patnaik)

New Delhi,

March 04, 2011.