Supreme Court of India
PESARA PUSHPAMALA REDDYversusG. VEERA SWAMY AND ORS.
- Citation
- 2011 INSC 181
- Decided
- 4 March 2011
- Disposal
- Appeal(s) allowed
- Bench
- R V RAVEENDRAN
Holding
The Court held that obtaining a Mandal Revenue Officer’s report is not mandatory, while publishing a Gazette notification is mandatory but does not void the proceedings unless prejudice is shown.
Summary
The Supreme Court examined two procedural questions under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982: whether a Special Tribunal or Special Court must obtain a report from the Mandal Revenue Officer before taking cognizance of a land‑grabbing case, and whether they must publish a notice of cognizance in the Andhra Pradesh Gazette. It held that the statute and Rules do not impose a mandatory duty to refer an application to the Mandal Revenue Officer, though a court may do so where facts require verification. Conversely, the requirement to issue a Gazette notification is mandatory, but a breach of this procedural step does not invalidate the proceedings unless the affected party suffers prejudice. The High Court’s order quashing the Special Tribunal’s proceedings was set aside and the matter remitted for further consideration of the necessity of a revenue‑officer report and the merits of the writ petitions.
Issues considered
- Is it mandatory for a Special Tribunal or Special Court to call for a report of the Mandal Revenue Officer before taking cognizance under the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982?
- Is it mandatory for a Special Tribunal or Special Court to publish a notification in the Andhra Pradesh Gazette specifying the fact of taking cognizance of a case under the Act?
- Does non‑compliance with the Gazette‑notification requirement vitiate the proceedings in the absence of prejudice?
Legislation cited
- Andhra Pradesh Civil Courts Act, 1972
- Andhra Pradesh Land Grabbing (Prohibition) Act, 1982s. 4 (proviso to sub‑section 4 of 7‑A), s. 6 (proviso to sub‑section 6 of 8), s. 7-A, s. 8, s. 9
- Andhra Pradesh Land Grabbing (Prohibition) Rules, 1988s. Rule 6, s. Rule 7
- Code of Civil Procedure, 1908
- Code of Criminal Procedure, 1973
Subjects
land grabbingspecial tribunalmandal revenue officergazette notificationprocedural compliancemandatory vs directorystatutory interpretationprejudiceAndhra Pradesh
Judgment
[2011] 3 S.C.R. 496
--
A PESARA PUSHPAMALA REDDY
v.
G. VEERA SWAMY AND ORS.
(Civil Appeal No. 2313 of 2011)
MARCH 04, 2011
B
[R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]
Andhra Pradesh Land Grabbing (Prohibition) Act, 1982
- ss. 7...A and 8 - Powers of Special Tribunals or Special
C Courts - Calling for a report of Manda/ Revenue Officer u/r.
6 before taking cognizance of a case under the Act and
publication of a Notification in the Andhra Pradesh Gaz::tte
notifying the fact of cognizance of a case under the Act -
Requirement of- Held: Under s. 7-A ors. 8-A of the Act or r.
D 6 of the Rules, it is not mandatory for the Special Tribunal or
the Special Court to call for a report of the Manda/ Revenue
Officer - However, on the facts of a particular case, the
Special Tribunal or the Special Court may refer the
application to the Manda/ Revenue Officer to verify the truth
E of the statements made in the application and decide the
case in a just and reasonable manner - In view of.the object
of ss. 7A and 8, the publication of a Notification in the Andhra
Pradesh Gazette notifying the fact of cognizance of a case
under the Act, is mandatory - It is made mandatory not in the
F public interest but in the interest of persons who may claim
title, ownership or lawful possession of such land - If such
person is a party in the proceedings u/s. 7-A or 8 in the
Special Tribunal or the Special Court and has notice of the
same and had opportunity to participate in the proceedings
G to assert his title, he cannot challenge the proceeding on the
ground that no notification or notice was published in the
Andhra Pradesh Gazette - On facts, land grabbers had notice
of the application uls. 7-A before the Special Tribunal, they ·
filed their replies to the application and got the opportunity to
H 496
--
PESARA PUSHPAMALA REDDY v. G. VEERA 497
SWAMY AND ORS.
adduce evidence in support of their case and did not suffer A
any prejudice for non-compliance of the provisions - Thus,
the High Court was not· right in quashing the proceedings
before the Special Tribunal on the ground that a notification
or notice in terms of r. 7(2) had not been issued after taking
the cognizance of !he case - Orders of the High Court set B
aside and matter is remitted to the High Court to consider
whether rei'crence to the Manda/ Revenue Officer was
necessary - Andhra Pradesh Land Grabbing (Prohibition)
Rules, 1988 - rr. 6, 7.
The respondent in the instant appeals, were declared
c
as land grabbers by the Special Tribunal in the separate
matters. The Special Tribunal directed the Revenue
Officer to evict the respondents from the land and put
appellants in the possession of the .land. He respondent
filed an appeal. The Special Court dismissed the same. D
The respondent filed a writ petition. The High Court
allowed the same on the grounds that the Special
Tribunal had not called for a report of the Manda! Revenue
Officer under Rule 6 of the Andhra Pradesh Land
Grabbing (Prohibition) Rules, 1988 and had not issued a E
Notification under Rule 7 of the Rules in the Andhra
Pradesh Gazette after taking cognizance of the case.
Therefore, the appellants filed the instant appeals.
Allowing the appeals, the Court F
HELD: 1.1 A reading of the provisions of Sections 7-
A and 8 of the Andhra Pradesh Land Grabbing
(Prohibition) Act, 1982 would show that neither of the two
Sections requires the Special Tribunal or the Special G
Court to refer any application or a case for local
inspection or verification or both by the Manda! Revenue .
Officer having jurisdiction over the area. Sub-rule (1) of
Rule 6 of the Andhra Pradesh Land Grabbing (Prohibition)
Rules, 1988 however; provides that every application filed H
--
498 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B Revenue Officer having jurisdiction over the area or by
any other Officer of the Government authorized by the
.Court in this behalf. 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
C a public authority coupled with an obligation, the word
•may' should be construed to mean a command. [Para 11]
(519-G-H; 520-A-C]
State of Uttar Pradesh v. Jogendra Singh (1963) 2 SCR
0 197 - relied on.
1.2 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
E 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
F 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
G Revenue Officer is required to submit and it states that
the 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,
H
-- PESARA PUSHPAMALA REDDY v. G. VEERA 499
SWAMY AND ORS.
ownership and use of the land and .the payment of dues A
to the Government. Therefore, the report of the Mandal
Revenue Officer 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. Wh~re an applicant before the Special B
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 C
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 D
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. [Para 12] [520-F-H; 521-A-E]
E
1.3 The provisions of the Code of Civil Procedure,
1908 and the Code of Criminal Procedure, 1973 relating
to trials, such as examination and cross-examination of
witnesses and production and acceptance of documents
are also available to the Special Court for ascertaining the F
truth or otherwise of the statements made i.n the
application. [Para 12] [522-A-B]
1.4 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 G
application under sub-section (1) ofSection 7-A and sub-
section (1) of Section 8 of the Act to the Special Tribunal
or the Special Court and if thie very object can be
achieved without referring. the apPJltation of the case to
H
--
500 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B (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.
However, it is made clear that while there is nothing in
C 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
D 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
E land grabbing case before it in a just and reasonable
manner. (Para 13) (572-C-G]
The Official Liquidator v. Dharti Dhan (P) Ltd. (1977) 2
sec 166 - referred to.
F 2.1 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)
G 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 11-A/11-B by
publishing it in the Andhra Pradesh Gazette. The word
'shall' used in the proviso to sub-section (4) of Section
H
--·
PESARA PUSHPAMALA REDDY v. G. VEERA 501
. SWAMY AND ORS.
7-A and the proviso to sub-section (6) of Section 8 of the · A
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 Special Tribunal or
the Special Court takes cognizance is mandatory. The B
use of the word 'shall' in these provisions, however, is
not conclusive of the mandatory nature of the provisions.
[Para 14] [523-C-G]
Principles of Statutory Interpretation by Justice G.P. Singh c
12th Edition 201 O- referred to.
2.2 The object of the proviso· to sub-section (4) of
Section 7-A would 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, D
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 would be clear from the main provision which
states that every judgment of the Special Court with E
regard to the determination of title and ownership to, or
lawful possession of, any land grabbed would be binding
on all persons having interest in such land. Thus, all
persons who may not have been impleaded as a party
in the applications filed under sub-section (1) of Section F
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 Trib.unal or the Special Court G
and protect their interest in the land, if any. Considering
this object of Sections 7-A and 8 of tile Act, 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- H
j
502 SUPREME COURT REPORTS
-
[2011] 3 S.C.R.
A section (4J 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 di$pensed with by the Special
Tribunal and the Special Court. [Para 14] [524-C-G]
..
B 2.3 The 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 pUb,ic interest but in
c 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
0 possession of any such land is already a party in the
proc:eedings 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,
E 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. [Para 15] [524-H; 525-
F A-D]
State Bank of Patiala and Ors. v. S. K. Sharma (1996) 3 ··
SCC 364; Dhirendra Nath Gorai v. Sudhir Chandra Ghosh
AIR 1964 SC 1300 - referred to.
G 2.4 The provisions of the Act and Rules mandatorlly
requiring notification or publication of the notice of the
case after the Special Tribunal or the Special Court takes
cognizance are ·procedural provisions. The violation of
such procedural provisions would not vitiate the
H proceedings unless prejudice J~f caused to the party
-- PESARA PUSHPAMALA REDDY v. G. VEERA
SWAMY AND ORS.
503
complaining of the violation. [Para 16] [526·B~D] A
3. In the instant cases, the respondents 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
8
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. Therefore, the High Court was not
ri~ht in q~ashing_ the proceedings before the Special . C
Tribunal m the instant 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. Thus, the
impugned'' orders of the High Court are set aside and
0
matter is remanded to the High Court for consideration
whether in the facts of the two cases reference to the
Mandal Revenue Officer was at all necessary to ascertain
the truth of the statements made in the applications and
, to arrive at a just decision and for consideration of the E
Writ Petitions on merits. [Paras 16 and 17] [526-C-G]
Mohd. Siddiq Ali Khan and Ors. v. Shahsun Finance Ltd.
Chennai and Anr. 2005 (2) ALO 675 (FB); Vonkela
Subramanyam and Ors. v. Special Court under A.P. Land
Grabbing (Prohibition) Act Hyderabad and Ors. 2007 (5) ALo· '· F
184 (DB); P~ T. Rajan v. T. P. M. Sahir and Ors. (2003) 8 SCC
498; Vidyawati Gupta and Ors. v. Bhakti Harl Nayak and Ors.
(2006) 2 SCC 777; State of Uttar Pradesh v Jogendra Singh
1963 (2) SCR 197; Govindlal Chhaganlal Patel v. The
Agricultural Produce Market· Committee, Godhra and Ors. G
(1975) 2 SCC 482; V. Laxminarasamma v. A. Yadaiah
(Dead) and Ors. (2009) 5 SCC 478; Sekharamahanti
· _, Nagabhushanarao (died) per L.R. v. Andhra University, rep.
by its Registrar and Ors. 2009 (2) ALT 260; Graphite India
H
-
. _..
504 SUPREME COURT REPORTS [2011) 3 S.C.R.
A Ltd. and Anr. v. Durgapur Projects Ltd. and Ors. (1999) 7 SCC
645 - referred to.
Case Law Reference:
2005 (2) ALO 675 (FB) Referred to Para 6
B
2007 (5) ALO 184 (FB) Referred to Para 6
(2003) 8 sec 498 Referred to Para 7
(2006) 2 sec 111 Referred to Para 7
c (1975) 2 sec 482 Referred to Para 8
(2009) 5 sec 478 Referred to Para 8
2009 (2) ALT 260 Referred to Para 8
D (1999) 1 sec 645 Referred to Para 9
1963 (2) SCR 197 Relied on Para 11
(1977) 2 sec 166 Referred to Para 13
AIR 1964 SC 1300 Referred to Para 15
E
(1996) 3 sec 364 Relied on Para 16
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2313 of 2011 etc.
F From the Judgment & Order dated 04.06.2007 of the High
Court of andhra Pradesh at Hyderabad in Writ Petition No.
8613 of 2002.
WITH
G
C.A. No. 2314 of 2011.
P. Vishwanatha Shetty, P. Venkay Reddy, B. Ramana
• Murray, Anil Kumar Tandale, M. Srinivas R. Rao, Abid Ali
Beeran P., K. Parameshwar, Sudha Gupta for the Appellant.
H
.-...
PESARA PUSHPAMALA REDDY v. G. VEERA 505
SWAMY AND ORS.
G. Ramakrishna Prasad, B. Suyodhan, Bharat J. Joshi, A
Mohd. Wasay Khan, Annam D.N. Rao, for the Respondents.
The Judgment of the Court was delivered by
A. K. PATNAIK, J. 1. Delay in filing of SLP (C) No.23821
of 2008 is condoned. B
2. Leave granted.
3. These appeals are against two separate orders dated
04.06.2007 and 05.06.2007 passed by the Division Bench of c
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, D
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.
E
4. The facts in Civil Appeal arising out of SLP (C)
No.23821 of ~008 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 F
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 alia that
the appellant be declared as the owner of the land and be given G
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 H
506 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B 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
c 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 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
· D 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
E 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
F 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 ~ev~nue ·
Officer under Rule 6 of the Andhra Pradesh Land Grabbing ·
G (Prohibition) Rules, 1988 (for short 'the Rules') 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)
H
PESARA PUSHPAMALA REDDY v. G. VEERA 507
SWAMY ANO.ORS. [A.K. PATNAIK, J.]
No.21828 of 2007 are that the appellant Pesara Pushpamala A
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 a.nd occupied his
land measuring 0.23 guntas in Survey No.568 (old) and 579 B
(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 c
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 appeal before the
Special Court at Hyderabad and the Special Court dismissed
0
the appeal on 29.10.1997. The respondents then challenged
· ttie orders passed by the Special Tribunal in Writ Petition
Ne>.~613 of 2002 in the High Court. The High Court after holding
th'.afno report had been called for from the Mandal Revenue
officer \.meter Rule 6 of the Rules and no Gazette notification
had been Pllblished under Rule 7 of the Rules by the Special E
Tribunal allowed theWFit 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. .
F
6. Mr; P.S. Narasimha, learned counsel for the appellant
irl' Civil Appeal arising out of SLP (C) No.23821 of 2008, and
Mr. P. Vishwanatha Shelly, 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 G
procedure of the Special Tribunal and Section 8 of the Act
deals with the procedure and powers of th~ 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 H ·
508 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B (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
c t. 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 call for his report. They
D submitted that the High Court has erroneously held that calling
for report from the Manda I 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
E 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
F 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) ALO 184 {DB)] holding that
G 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 would not have any impact on the facts
of that case and would not vitiate the entire proceedings.
H
.-....
PESARA PUSHPAMALA REDDY v. G VEERA 509
SWAMY AND ORS. [A.K. PATNAIK, J.]
7. Mr. Narasimha and Mr. Shetty next submitted that the A
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 B
the Act give notice in Form ii-A or Form 11-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 c
cognizance of the case mandatory. They cited the decisions
oi 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 0
7 of the Rules does not make the requirement of 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 imple~ded as parties in the
application filed under sub-section 1 of Section 7-A before the E
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 F
• 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 ..Jse.
G
8. Mr. Bh<>r::it 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 th.e Government of
Andhra Pradesh has made the rules p1 .... iding in sub-rule (1) H
-
._
510 SUPREME COURT REPORTS [2011) 3 S.C.R.
A 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
B 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'
c 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'
0
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 on Govindlal Chhaganlal Patel v. The
Agricultural Produce Market Committee, Godhra and Others
[(1975) 2 SCC 482] wherein this Court has held that the
E 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
F directory. He cited the decision of this Court in V.
Laxminarasamma v. A. Yadaiah (Dead) and Others [(2009)
5 sec 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
G 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 app!ication 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
H
-
_,.,,
PESARA PUSHPAMALA REDDY v. G. VEERA 511
SWAMY AND ORS. [A.K. PATNAIK, J.]
both by the Mandal Revenue Officer before the Special Court A
or the Special Tribunal 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 B
[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 C
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 ·.vaived. He cited the decision of this
Court in Graphite India Ltd. and Another v. Durgapur Projects D
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
application filed under Section 7(1) of the Act before the E
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 F
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 G
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 H
512 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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)
s as it deems fit:
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:
c Provided further that if in the opinion of the Special Tribunal
any case brought before it is a fit case to be tried by ttiP.
Special Court it may for reasons to be recorded by it
transfer the case to the Special Court for its decision in
the matter.
D
(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).
E (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
F 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
G 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
H Special Tribunal with regard to the determination of the title
PESARA PUSHPAMALA REDDY v. G VEERA 513
SWAMY AND ORS. [A.K. PATNAIK, J.]
and ownership to, or lawful possession of, any land A
grabbed shall be binding on all persons having interest in
such land:
Provided that the Special Tribunal shall by notification
specify the fact of taking cognizance of the case under this 8.
Act. Such notification shal I 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 C
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 o 1
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. E
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 F
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 G
of a Civil Court, in any other case:
Provided that the Special Tribunal shall, before passing an
order under this sub-section, give to the land grabber an
opportunity of making his representation or of adducing H
-
514 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B 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.
c
(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 befor.e it.
D
(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
E 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
.F 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
G value of the land alleged to 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.
H
-
_,.,.
PESARA PUSHPAMALA REDDY v. G. VEERA 515
SWAMY AND ORS. [A.K. PATNAIK, J.]
(2) Notwithstanding anything in ttie Code of Civil A
Procedure, 1908 [the Code of Criminal Procedure, 1973)
or in .the Andhra Pradesh Civil Courts Act, 1972, (Act 9 of
1972) any case iri respect of an alleged act of land 1
grabbing or the determination of question of title and i
ownership tc, or lawful possession of any land grabbed B
under this Act, [shall, subject to the provisions of this Act,
be triaLie 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 C
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 Sflme without any
fu~ere~ui~ D
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 ~-~ withdrawn and tried by it, it may for E
reasons fo be recorded in writing withdraw any such case
from such Special Tribunal and. shall deal with it as if the
case was originally ins~tut~d. ·•before the Special Court.
(2-B) Notwithstanding anYthing in the Code of Criminal
Procedure, 1973, it shall be lawful for the Special Court . F ·
· 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 G
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 H
. . .. I ..
516 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B 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
c 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]
D
(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.
E (5) [* * *Omitted]
(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
F 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] .
G
[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
H
PESARA PUSHPAMALA REDDY v. G. VEERA 517
SWAMY AND ORS. [A.K. PATNAIK, J.]
including the custodian of evacuee property within the A
. 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 8
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 C
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 o
possession of the 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 E
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:
F
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.] G
(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] H
518 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
B 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
c provisions of this Act, shall apply to the proceedings before
the Special Court and for the 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
D 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
E 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
F the Manda! Revenue Officer having jurisdiction over the
area or by any other Officer of the Government authorized
by the Court in this behalf.
(2) The Manda! Revenue Officer or the other Officer to
whom the application has been referred under sub-rule (1)
G 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:-
H
-- PESARA PUSHPAMALA REDDY v. G. VEERA 519
SWAMY AND ORS. (A.K. PATNAIK, J.)
(i) the correctness of the statements made in the A
application with regard to ·columris'!l to 15 and 19 in
Forum-1; ' ·
(ii) the facts relating to ownership,' actual possession and
use of the land concerned; and ·
B
(iii) such other particulars and informati9n as would be
useful to the Court to arrive at a correct decision on the
claims made in the application.
(3) The Mand al Revenue Officer or the other Officer. to c
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 ,..e · 'Jes to the Government. D
(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.
E
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.
F
(2) The Special Tribunal shall after taking cognizance of
the case under the Act give notice in Form-11-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 G
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 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 H
520 SUPREME COURT REPORTS [2011) 3 S.C.R.
-
.-
A 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
8 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
C 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
D of the Special Tribunal or 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
E 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
F 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
G 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
H Revenue Officer is required to submit and it states that the
PESARA PUSHPAMALA REDDY v. G. VEERA 521
SWAMY AND ORS. [A.K. PATNAIK, J.]
Mandal Revenue Officer or the other Officer to whom the A
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 8
.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 c
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 D
application, it may not be necessary for the Special Tribunal
or the Special Court to refer the application to the Manda!
Revenue Officer for inspection or verification. Moreov~r. the
Special Tribunal or the Special Court can 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 E
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 F
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 G
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 H
522 SUPREME COURT REPORTS [2011] 3 S.C.R.
-
A Special Court. The provisions of the Code of Civil Procedure,
1908 and the Code of Criminal Procedure, 1973 relating to
trials, such as examination and cross-examination of witnesses
and production and acceptance of documents are also
available to the Special Court for ascertaining the truth or
B 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
C 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
D 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
E the Special Court to call for a report of the Mandal Revenue
Officer. We, however, hasten to make it clear that while there
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
F 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
G 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 1
1
Act, 1956 held:
PESARA PUSHPAM~LA REDDY v. G. VEERA 523
SWAMY AND ORS. [A.K PATNAIK, J.]
"If the applicant can make out, on facts, that the objects of A
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 ;Jnnexed
to it by proof of those facts. That would be the position not
because the word "may" itself must be equated with "shall" B
but because judicial power has necessarily to be exercised
justly, properly, and reasonably to enforce the principle that
rights created must be enforced."
14. The next question, which we are called upon to decide
in this case, is whether it was mandatory for the Special C
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 D
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 E
cognizance of the case under the Act give notice in Form 11-A/
11-B by publishin!l 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 F
compliance with requirement of notification or publication ofthe
notice in the Andhra Pradesh Gazette of the case after the
Special Tribunal or the Special Court takes cognizance is
· ma.ndatory. The use of the word "shall" in these provisions,
however, is not conclusive of the mandatory nature of the G
provisions and we must look at the main provisions of sub-
section (4) ofSection 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
H
524 SUPREME COURT REPORTS [2011] 3 S.C.R.
-
,..,..
A Justice G.P. Singh in Principles of Statutory Interpretation, 12th
Edition 201 O 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
8
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
C 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 provision which
D 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
E (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 ·
F 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
Gaz~tte as required by the pioviso to sub-section (4) of Section
G 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.
15. This requirement of a notification or publication of notice
in the Andhra Pradesh Gazette of the fact that cognizance of a
H case has been taken by the Special Tribunal or the Special
PESARA PUSHPAMALA REDDY v. G. VEERA 525
SWAMY AND ORS. [A.K. PATNAIK, J.]
Court has been made mandatory by the Act and the Rules not A
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 B
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 c
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 D
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." E
In the aforesaid case at para 33 at page 389, this Court
has further held:
"33 ................ ..
F
(1) .................. .
(2) ................. ..
(J~ In the case of violation of a procedural provision, the
posiLiO" is this: procedural provisions are generally meant G
for afforamg 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 s~'...i to automatically Vitiate
H
-
Aa.-
526 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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."
B
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
procedural provisions and the law laid down by this Court in
State Bank of Pafia/a & Ors. v. S. K. Sharma (supra) is that
C violation of such procedural provisions will not vitiate the
proceedings unless prejudice is caused to the pa. ~y
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
D 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
E 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.
F 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 Manda! Revenue Officer was at all
necessary to ascertain the truth of the statements made in the
G 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.
N.J. Appeals allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "land grabbing"Sign in to search