HIRALAL AGRAWAL, ETC. versus RAMPADARATH SINGH & ORS., ETC.

HIRALAL AGRAWAL, ETC.

RAMPADARATll SI:'l/GH & ORS., ETC.

July 15, 1968

[J. M. SHELAT AND K. S. HEGDE, JJ.J

Bihar Land Re/ornts (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (12 of 1962), >. 16, Bihar Land Re1onns (Flxatio11 of Ceiling Area and Acquisition vi Surplus Land) Rule>. 1963, r. 19, and Indian Registration Act (16 of B08), s. 47-Tramfer of propuiy . • vhen r.01nplete-'E11ter1aining app/1c<111on' 1neaning of-R. 19, wh~iher 1nandtitory or directory.

The owni:r of certain land cxccutrd sale deed on 9th October, 1964 conveying the land 10 the first rc<;;pondcnt cind the sale deed v.·a.s ten· dcrcd for rcgi .. tralion. On 14th ~ovember, 1964, the appellant obtained from the rcgist~ring authority certified copy of the sale deed, tendered. On 26th 'Novcn1ber, he filed an application under s. 16(3) of thi.! Biha: JJand Rcforn1s (Fixation of Ceiling Arca nod Acquisition of Surplus Land) Act. 1962, in the office of the Collector. claiming to he entitled, ;1s co--sha'rcr, to right of reconveyanc·~ of the land. He annexed to his application the certified copv of the sale deed, '3 copy of the challan cviden.cing his having deposited the sale price and the additional sun1 of 10% thereof in compliance \Vith the proviso to s. 16(3)(i) and r. 19 of the Rihar Land Rcf0rms (Fixation of (~ciling- Arca and Acquisition of Surplus Land) Rules, 1963. On 30rh >iovcmber. the sale deed was re· gic;tcrcd. On the same day, the Collector, on being satisfied that the applicat:on \\·as proper. ordered possession to be given to the appellant under s. I6(3)(ii). pending di<posal of the application. Thereafter, the \A1Pcctor passed his order hol\.linl! that the aoncil1nt v.·as th~ CO· <iharer of the \"endor, that he \\'JS ent"1llcd to the righl of rcconvcyance. and directed the tran'\fcree (the first respondent) to roconvcv the land in appellant's favour. The Commissioner upheld the order, but the Board of Revenue set it aside. The appellant's \VTit petition for quashing the Board,'s order was di-;misscd by the High Court.

Jn appeal to this C,,ourt, on the question : Whether the Collector had no jurisdiction lo entertain the application, tiecausc. (I) ref?_i-;lration of the s..11-e deed \Vas not complered on the date of filing tho a.pplicatioo and therefore, the transfer not having taken place on that date, the apptica· tion was premature; and (2) the application \\.'as not maintainable as it \Vets accompanied only hy certified copv of lhe sale deed tendered f0r registration and not hy copy of the registered sale deed ao; required by r. 19.

HF! .D : ( l) The ri~ht of rcconvcyance had not accnred to t.he ap-pellant on 26th Noventher, 1964, !he date of presentation of his applica-tion. becau~e. the sale \\'<ts completed only \vhen rc¢s1ration of the sale deed \va-; completed as contemplated hv s. 61 of thc Registration Act. that is. on 30th '.'/ovcmher. Merely because under s. 47 of the Registra-tion Act t.he transferee's title related hack to 9th OOober. 1964, the dare of execution of the sale deed, it could not he s'3id that the transfer itself must he deemed to have hecn completed on 9th October. [336 C-EJ

Rant Saran I.al V •• Wst. /)()ntin;kuPr. rt962J S.C.R. 474. Rad/ta~ kisha11 L. Toshniwal v. Slrrid!rar, [19611 1 S.C.R. 248 and Bishan Sb11:h v. Khazan Hingh, [1959) S.C.R. 878. followed.

But mere presentation of the application in the sense of the appel-lant having handed it over to some subordinate in the collector's office could not mean that it was entertdined by the Colleotor on that date. It could not therefore be contended l:y the respondent that the Collector had entertained the application either on the 26th when. it was taken by the appellant to the collector's offioz or on the 28th when some subor-dinate in the office made an endorsement on it that it should be placed before the Collector. The Collector took cognizance of it only on 30th November when it was placed before him. Since registration of the sale deed and therefore the transfer had both become complete on that date, the Collector had jurisdiction to entertain the application on that date and pass appropriate orders. [337 B-E]

(2) Rule 19 provides that tho application under s. 16(3) should be made in particular form, that the applicant has to deposit the purchase money together with 10% thereof in the appropriate treasury and that C'Opy of the challan showing the deposit together with 'a copy of the registered deed, shall be filed along with the. application. But the rule does not lay down the consequence of non-compliance with the provisions. The deposit in the relevant treasury, the. applicant's readiness and willing-ness to have the la.nd reconveyed to him on the same terms and condi-tions as in the sale deed, and the completed transfer are conditions pre-cedent to the applicant acquiring the right of reconveyance and to· the Collector's jurisdiction to try the application. But the prescription as to annexing copy of the registered deed is not mandatory but only directory. [340 E-HJ

In case where there1 is no express mention of the consequence of n.on-complianc·e with statutory declaration, no rule can be laid down for determining whether the req.uirement is mere direction involving no invalid consequence, or is an imperative mandate, with an. implied nullification for disobedience, except, that it depends on the scope and object of the enactment. The obje.ct of s. 16(3) is to secure consolida-tion by giving right of reconV\...ayance1 to co-sharer or raiyat of an adjoining area so that the land can be used in the most advantageous manner and to prevent fragmentation; and that of r. 19 is to enable the Collector to ascertain the purchase price,, the terms und conditions of the sale, the readiness and willingness of the applicant to have the land reconveyed to him on the same terms and conditions as in thei sale deed and that the requisite deposit had been made in the treasury. The purpose of prescribing that copy of the re.gistered deed should accom~ parry the application is that if such copy is before the Collector there would be no scope for any controversy about the transfer, the sale price and the teirms and conditions. But if this inform·ation is before the Collector otherwise, and the Collector is satisfied, failure to annex the copy of the registered deed cannot be fatal to the application. Further, s. 16 of the Act fixes th'ree months from the date of registration as the period of limitation for making the application, but, if the registering authority does not furnish the copy of the registered deed within that period and if the requirement of annexing the copy is held to be manda-tory, the, applicant would be deprived of his statutory right of reconve-yance .. [337 H; 338 A-B; 339 F-H]In the plresent case, the fact that copy of the registered deed was not annexed to the application was not fatal to the application, nor did such omis'sion deprive the Collector of his jurisdiction to entertain it, because, annexing certified copy of the sale deed when copy of the registered deed was not available on account of the process of registration not having been completed was sufficient compliance with the directory prescription

as it furnished the information necessary for the Collector to proceed with lhe application.

Buland Sugar Co. v. Municipal Board, [ 1965] 1 S.C.R. 970, followed,

Belfruny v. Saul!. f1863j 32 LJ.Q.ll. 336 :ind King v. l.inco/11shitc App<'al Trihu11al; I::x-Partr. Stubhins, {1917] 1 K.B. 1, ;1pplicd.

C1v1L APPELLATE JuR1so1cnoN : Civil Appeals Nos. 1244 to 1246 of 1968.

Appeals by special leave from the judgment and order, dated March 20, 1968 of the Patna High Court in C.W.J.C. Nos. 115 to 117 of 1967.

S. T. Desai and R. C. Prasad, for the appellant (in all the appeals).

,\!/. K. Nambiar, D. P. Sini:h and Nai:inder Singh, for respon-dent No. I (In C.As. Nos. 1244 and 1246 of 1968) and respon-dents l><os. 1 and 2 (in C.A. No. 1245 of 1968).

K. M. K. Nair, for respondents Nos. 3 (in C. A. No. 1244 of 1968).

F. C. Aganvala, for respondents Nos. 5 and 6 (in C. A. No. 1245 of 1968).

M. Veerappa, for respondent No. 3 (in C. A. No. 1246 of 1968).

U. P. Si11i:h. for respondent No. 5 (in C. A. No. I 244 of 1968) and respondent No. 4 (in C.As. Nos. 1245 and 1246 of 1968 ).

The Judgment of the Court was delivered by

Shelat, J. These three appeals, by special leave, raise common questions and are, therefore, disposed of by eonunon judgment. The facts in Civil Appeal No. 1244 of 1968 being typical, we need set out them only so that the rival contentions of the parties on those questions may be properly appreciated.

By deed of sale dated October 9, 1964, one Prembati Devi sold 2.62 acres of land to respondent 1 for Rs. 2,000. The said deed was thereafter presented to the Sub-Registrar for registra-tion. On October 14. 1964, the appellant applied for certified copy of the said sale deed and on its being furnished to him he filed an application dated November 26, 1964 under s. 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisi-tion of Surplus Land) Act, XII of 1962 before the Collector. He annexed to his application the said copy of the sale deed and copy of the challan evidencing his having deposited the sale price of Rs. 2,000 and an additional sum of 10 per cent thereof

as required by the proviso to s. 16(3 )(i) and r. 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Sur-plus Land) Rules, 1963. On November 30, 1964, the Registrar completed registration by endorsing his certificate on the said sale deed under s. 60 (1) and copying out the endorsement and the certificate in the relevant register under s. 61 (1) of the Registra-B tion Act, 1908. The appellant had in his said application claimed to be entitled as co-sharer to the right of re-conveyance of the said land under s. 16(3) of the Act. On November 30, 1964, the Collector, on being satisfied that the application was proper, ordered possession to be given to the appellant under s: 16(3)(ii) pending its disposal.

It is not in dispute that registration was completed on. November 30, 1964, i.e., four days after the appellant had handed over his application and that though the certified copy furnished by him was not that of the registered deed, it was correct copy of the sale deed presented for registration. In April, 1966, the Collector passed his order holding that the appellant was the co-sharer of the vendor and was entitled to the right of re-D conveyance. He, therefore, directed the transferee, respondent l, to reconvey the said land in appellant's favour. No objection was taken before the Collector that the said application was not maintainable as registration was not completed when the appel-lant filed it or on the ground that only certified copy of the sale deed and not of the registered deed had been annexed to it. This contention was raised for the first time in appeal before the Commissioner who rejected it holding that in view of the admitted' fact that registration was completed on November 30, 1964 the said proceedings before the Collector and his said order were not invalidated. The Commi);sioner consequently upheld the said' order. In appeal before the Board of Revenue, the Board held that when the appellant presented his application on November 2~, 1964, the transfer as contemplated by s. 16 was not com-pleted and, therefore, its presentation by the appellant was not valid inasmuch as it was not in accordance with r. 19 (2) of the said Rules. The reason given by the Board was that the rule required copy of the registered deed and not mere copy of· the sale deed. On this ground the Board set aside the Collector's order and dismissed the appellant's application.

The appellant thereupon filed writ petition in the High Court for writ of certiorari for quashing the Board's said order. The High Court, relying on its previous decision in Rajkishore Singh v. l!hubnes~wa~i Si~gh('), held thats. 16(3) was piece of b_eneficient legisl~~ton mtended to prevent fraginentation of holdmgs and to facthtate consolidation with view to utilisation· of land in the most advantageous manner, and that to attain these:

(I) 1968 B.L.J.R. 33.

obj~cts when transfer of land was made, co-sharer of the transferer or raiyat of the adjacent land was given the right to have tJ1e land reconveyc<l to him by the transferee through the Collector. The High Court, however, held that the said right depended on two conditions, viz., (a) the transferee was entitled lo the full purchase price and an additional 10 per cent thereof .as solatium and ( b) the applicant made an application in the prescribed manner. The prescribed manner means the manner laid down by r. 19 under which an application is to be made in form L. C. 13 which requires the applicant to annex to his appli-cation challan evidencing the deposit of the requisite amount in the relevant treasury, copy of the registered sale deed, and statement to that e!Icct in the application. The High Court obs~rved that s. 16 ( 3) (ii) confers on the Collector the extra-ordinary power, without having to hold preliminary enquiry, to dispossess the transferee and deliver to the applicant possession of the land in question pending the disposal of the application. It further observed that the exercise of this power was dependent on the condition that deposit has been made and that there has been completed transfer, that is, transfer evidenced by copy of the registered deed of sale. Section 16(2) (iii) provides that transfer can only be made by registered sale deed. The object of this clause and r. 19 is that the Collector who is re-quired to direct possession from the transferee to the applicant can satisfy himself that the land is transferred and that the deposit made is full and this he can do only if the application is accom-panied by copy of the registered deed. The High Court agreed that s. 16 w;1s unlike the law of preemption under the Mahome-dan law in that it gets rid of the procedural matters thereunder and provides not the right of substitution of the applicant in place of the transferee but right of reconveyance of land in question. But it held that the right of reconveyance arises only on the trans-fer of the land to the transferee, that such transfer is completed only when the deed is registered and that though by reason of s. 47 of that Act the transfer takes effect from the date of execu-tion once registration is completed, the transfer was not complete on November 28, 1964 when the Collector accepted the said application. Therefore, the right of rcconvcyance had not accrued rn the appellant on that day, the transfer not having been yet completed and the Collector consequently had no jurisdiction to entertain the application. The High Court further held that the provisions of r. I 9 were mandatory and agreed with the Board that the appellant not having annexed copy of the registered deed, his application was not only premature but was also not maintainable. Those conclusions are challenged in these appeals.

Before we proceed further. it is necessary first to consider some of the relevant provisions of the Act and the Rules. The long title of the Act shows that its object is inter alia to provide

for fixation of ceiling area and acquisition of surplus land by the State Government. Chapter 2 deals with fixation of ceiling of land and ss. 4 and 5 therein lay down ceiling areas for different types of land and the rule that it shall not be lawful for any person to hold, except as provided under the Act, laud in excess of the ceiling area. Chapter 3 contains provisions connected with resumption of land by raiyat from his sub-raiyat and Chapter 4 deals with acquisition of surplus land by the State Government. Chapter 5, which contains s. 16, deals with restrictions on future acquisition of laud. Section 16 ( 1) lays down that no person shall acquire land which together with the land held by him exceeds in the aggregate the ceiling area. Clause (i) of sub-s. (2) provide that no document of acquisition or possession of any land shall be registered unless the transferee declares before the registering authority the total area held by him. Clause (ii) pro-hibits registration of the document, if from the said declaration it appears that the transaction is in contravention of sub-s. ( 1), thdt is to say, the acquisition would make the total area held by the transferee in excess of the ceiling area. Clause (iii) provides that no transfer, exchange, lease, mortgage, bequest or gift can be made without the document therefor duly registered. Sub-section ( 3) ( i) provides that if any transfer is made to person other than co-sharer or raiyat of an adjoining land, such co-sharer or raiyat shall be entitled within three months from the date of the registration to apply before the Collector in the prescribed manner for transfer of the land to him on terms and conditions in the said deed provided that no such application shall be enter-tained by the Collector unless the purchase money together with 10 per cent thereof is deposited in the prescribed manner within the said period. Clause (ii) provides that on such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land even though his application is pending. Under cl. (iii) of sub-s. (3), if the application is allowed, the Collector has to direct the transferee to convey the laud in favour of the applicant by executing and registering document of transfer.

The object of s. 16 is two-fold : (i) to ensure that no one holds land in excess of the ceiling area and (ii) to confer on co-sharer or raiyat of the adjoining area the right of recon-veyance from the transferee. To sub-serve this object, sub-s. (2) Jays down certain restrictions : (a) that there can· be no registra-tion of deed of transfer without declaration by the transferee that the total area which would be held by him including the area under transfer does not exceed the ceiling area; (b) prohi-bition against registering document if such declaration shows that ,the transfer would have the effect of exceeding the ceiling area; and ( c) that no such transfer would be complete without L!ZSup.C.l./68-7

the deed of transfer being registered. The object of sub-s. (3) is to secure consolidation by giving the right of reconvcyance to co-sharer or raiyat of an adjoining area so that the land in ques-tion can be used in the most advantageous manner and alrn to prevent fragmentation of the land.

Ruic 18 of the said Rules provides that the declaration to be made by transferee under s. 16(2)(i) before the registering authority shall be in Form L. C. 12. That form mter aiia re-quires the transferee to declare that the land held by him and the land acquired by him under the document to be registered would not exceed the ceiling area. Ruic 19 deals with the application by co-sharer or raiyat of the adjoining land under s. l ( 3). It provides that such an application is to be made in form L. C. 13. and the applicant has to deposit the purchase money toi:;cther with I 0 per cent thereof in the treasury or sub-treasury cf the di>trict within which the land is situate. Clause ( 2) of the rules provides that copy of the challan showing the deposit t~gethcr with copy of the registered deed shall be filed with the appli-cation in which ;tatcmcnt to this effect shall also be made. Cb use ( 3) of the rule provides that copy of the ;aid applica-tion shall also be sent by the applicant to the transferor and the transferee by registered post with acknowledgement due. Cl~use ( 4) provides that the Collector shall issue notice to the trans-feror, the transferee and the applicant to appear before him at date lo be specified in the notice and after giving the parties reasonable 'opportunity of showing cause and of being heard shall either allow the application or reject it. Form L.C. 13 requires the applicant (a) to state that the transfer of the land has been made through document registered on the date to be specified therein, (b) to enclose copy of the challan in token of the deposit of the purchase money plus I 0 per cent so:atium, and ( c) to enclose copy of the registered deed by which the land has been transferred.

rrom the contents of rr. 18 and 19 and Forms L. C. 12 and 13, it is clear that the object of these rules, firstly, is to cvable the registering authority to see that the transferee docs not by the transfer acquire land in excess of the ceiling area and, sec mdly, to ~nable the Collector to know that transfer of the laod has been made and that such transfer is completed by registration. the price paid for it and that the deposit made by the appiicant i.> of ~ sum equivalent to the purchase price and l 0 per cent thereof. It is manifest that the purpose for requiring the appli-cant to file copy of the challan and of the registered deed is to en1ble the Collector to ascertain therefrom the aforesaid facts and to proceed further on being satisfied about them.

It is necessary at this stage to be clear about certain dates. The sale deed was executed by the transferor and the transferee

on October 9, 1964. On November 14, 1964, the appellant obtained from the registering authority certified copy of the sale deeJ tendered for registration. The appellant filed his application in the Collector's office on November 26, 1964. It is true that the Board of Revenue has stated at one place that the C1ollector "admitted" the application on November 28, 1964 and at another place that he "took cognizance of" it on that date. If by the words ·admitted" and "took cognizance of" the Board meant that the Collector took cognizance of the application in its technical sense, the Board would appear to be factually incorrect. The record of the case shows that some one in the Collector's office received the application on November 28, 1964 and made an endorsement thereon that it should be put up before the Collector on November 30, 1964. As already stated, on the said application having been placed before him on November 30, 1964, the Collector passed his interim order under s. 16(3) (ii) directing the transferee to deliver possession of the land in question to the appellant. Admittedly, registration was also completed on that date.

Two contentions were urged by counsel for the respondents. Proceeding on the basis that the appellant presented the applica-tion on November 26, 1964, Mr. Nambiar contended (1) that the application was premature as registration of the sale deed was not then completed and, therefore there was not yet com-E pleted transfer and (2) that, therefore, the Collector had no jurisdiction to entertain such an application, his jurisdiction being dependent on transfer having taken place. The argument was that under s. 16 ( l) there can be no transfer to person who together with the land already held by him acquires land by trans-fer which in the aggregate makes the area in excess of the ceiling area; that under s. 16(2) no registering authority can register such deed of sale and there can be no valid transfer unless the sale deed is registered. Therefore, as the sale deed was not registered until November 30, 1964, there was no transfer till then, that no right of reconveyance accrued to the appellant and the Collector, therefore, could not entertain an application without such right having already accrued to the applicant. The second contention was that the right conferred under s. 16(3) being statutory right and it being inconsistent with the right of citizen to hold and dispose of his property it must be exercised in strict conformity with the terms and conditions laid down in the Act and the Rules, that the language of r. 19 is mandatory, that the power of the Collector under s. 16(3) (ii) is extra-H ordinary in the sense that without holding any preliminary enquiry he can direct the transferee to hand over possession of the land to the applicant. Therefore, he argued, the requirements of r. 19· must be held to be mandatory and that if they are not strictly com-

plied with, the Collector would have no jurisdiction to entertain an application. fhcrdore, the appellant having failed to annex copy of the registered deed of sale as required by r. 19 and Fenn L. C. 13 and having annexed only the certified copy of lhc un-rcgjstcrcd deed of sale, his application was not in conformity with r. 19 and the Collector could not entertain it, much less act on it.

When the appellant lodged his application in the Collc.:tor's .office he had already deposited the requisite amount in the treasury and had annexed thereto the copy of the challan. So that the condition under s. 16 was complied with. The applica-tion was also filed within the time prescribed by the section. Under s. 16(2) and (3), however, no transfer takes place unless the sale deed is registacd. Registration is complete only when the certificate under s. 60 is given and the endorsement and copying out the said certificate under s. 61 of the Registration Act arc made. But Mr. Desai argued that under s. 47 of that Act -0ncc registration is effected, the title under the sale deed relates back to the date of its execution and therefore though registra-tion was completed on November 30, 1964, the lransfcree's title under the sale deed related back to the date of its execution, i.e., October 9, 1964. Assuming, therefore, that the application was presented on November 26, 1964, the transferee's title having relaled back to the date of the execution of the sale deed, the transfer must be deemed to be complete on that date and, there-fore, it was not correct that the right of rcconvcyance had not accrued to the apr-cllant on l\'ovcmber 26, 1964 or that the Coaector had no iurisdiction on that date to accept the said application. This contention, however, cannot be accepted in view of the decision in Ram Saran Lal v. Mst. Domini Kuer( [1 ]) where this Court rejected an identical contention. Mr. Desai tried to distinguish that case on the ground that it was based on Mahomedan law which by custom applied to the parties there. But the decision is based not on any principle of Mahomcdan Jaw but on the effect of s. 4 7 of the Registration Act. The majo-rity decision clearly laid down that the sale there was completed only when rcgbtration of the sale deed was completed as contem-plated by s. 61 of the Registration Act and, therefore. the raiab-i-mmmsibat made before the date of completion of registration was premature and ;; suit based on such demand of the right of pre-emption was premature and must, therefore, fail. Similarly, in Radhakishan L. Tos/miwa/ v. Shridhar(") this Court laid down that where statute providing for the right of preemption lays down that it accrnes only wljcn transfer of the property takes place and such tr,nsfct is not complete except through rcgi'-1ercd <.Iced, sun filed before the sale deed is executed is prema-ture as the right or preemption under the statute did not "ccrue (I) 11 %c] 2 S.C.R. 474. (C) [1%1] I S.C.R. X

till the transfer became effective through registered deed. ln Bishan Si11gh v. Khazan Singh(') this Court laid down that in suit for preemption the plaintiff must show that the right had acquired to him at the time when he exercised it.

But the question whether the right of reconveyance had accrued to the appellant or not on November 26, 1964 appears to be academic. As already stated, his application was placed for the first time before the Collector on November 30, 1964 when admittedly registration was completed and thereupon the transfer also had become complete. mere presentation of the appli-cation in the sense of the appellant having handed it over to some subordinate in the Collector's office cannot mean its having been entertained by tile Collector on that date. There is, therefore, no merit in the contention that the Collector had entertained the application either on the 26th when it was taken by the appellant to the Collector's office or on the 28th when some subordinate in the office m2.de an endorsement on it that it should be placed before the Collector. The endorsement on the contrary shows that the Collector had not even seen it on that day, much less accepted it. The Collector took cognizance of it on November 30, 1964 only when it was placed before him and when on being satisfied that the conditions of s. 16 were satisfied he passed his order under sub-s. (3) (ii) for handing over possession from the transferee to the appellant. On these facts, Mr. Nambiar's first contention must fail.

The contentk>n next was that the right of preemption being weak nght as held in Bishan Singh v. Khazan Singh(') and the . outcome thereof being to disturb valid transaction by virtue of ~uch right having b~en created by statute, there are no equities m favour of preemptor as held in Radhakishan L. Toshniwal v. Shridhar (2) and, therefore, the person coming to the court for exercise of such right must show that he has duly complied with all the conditions laid dGwn by the law giving him that right. Mr. Nambiar submitted that that being the position, the condi-tion laid down in r. l 9 must be held to be mandatory and unless they are complied with an application for enforcing such right must fail. The question 1s whether non-satisfaction of the condi-tion that the application must be accompanied by copy of the registered deed is fatal to the exercise of the right conferred under the Act.

Rule 19 does not lay down the consequence of non-compli-ance of its provisions. When statute requires that something shall be done or done in particular manner or form without expressly declaring what shall be the conseqnence of non-com-(1) [1959] S.C.R. 878. (2) [1961] 1 S.C.R .248

pliance, the question often arises what intention is to be attributed by mference ll' the legidature. (see Maxwell on Interpretation of Statutes I !th ed. p. 362). It has b,ecn said that no rule can be laid down lo: determining whether the requirement is to be considered as mere direction or instruction involving no invalid consequence for its disregard or as imperative with an implied nullification fo; disobedience beyond the rule that it depends on the scope and object of the enactment. case nearest to the one before us is to be found in Bellamy v. Saul!( [1]). Section 34 of the Revenue No. 2) Act, 1861 enacted that no copy of bill of sale shculd be filed in any Court unless the original was produced before the o'.ficer duly stamped. It was held that this prO\ision did not invalidate the registration if the bill was not duly stamped \\hen so p1oduced for the object of the enaciment was to protect the revenue and this was thought sufficiently attain-ed if the deed was afterwards duly stamped without going to the extreme of holding the registration void. Similarly in K.ng v. Unconshire Appeal Tribunal; Ex parte Stubbins(") Regula-tion 19, Part 1, Section II of the Schedule to the Military Service (Regulations) Order, 1916 was held to be directory. The Military Service Act, 1916 provided that any person aggrieved by the decision of !0~al tribun:;l and person generally or specially authorised by the army council to appeal from the decision of th:it tribunal may appeal against the decision of local tribunal to the appeal tribunal of the area. The regulation provided that any such person may appeal against the decision of the local tribunal by delivering to that tribunal, in the prescribed form in dupiicate, notice of appeal not later than three clear days after its decision, and the local tribunal shall thereupon send t<.: the other party to the application the duplicate notice of appeal. The local tribunal granted the applicant exemption from military service. The military re;:rcscntative immediately announced in the presence and hearing or the applicant that he would appeal sta;ing also his grounds of appeal. The copies in Ille pres.-ribcd form of the notice of appeal not being available, the military representative handed over to the clerk of the local tribunal list of the names of persons in respect of whom he intended to appeal including the applicant's name and some weeks before appeal was heard the clerk discussed the matter with the applicant. The applicant raised an objection hefore the appeal trib~nal that. it had no jurisdiction to hear the appeal as the prescnbed no!Jce had not been given. The Appeal Court held that inasmuch as the applicant knew within the prescribed time that the . appc?l was pending, strict compliance by the military representauve wit~ the letter of Regulation 19 by delivering to the local tribunal not1:~ of appeal in the prescribed form in duplicate was not cond1llon

(2) [191711 K. B. I.

(I) [1861) 12 I..J. Q. R. 166.

precedent to the appeal tribunal having jurisdiction to hear and determine the appeal, that the provisions of regulation 19 as to procedure were directory only and not imperative and, therefore, non· compliance with them did not deprive the military represen-tative of his right of appeal. The same rule of construction has also been laid down in Buland Sugar Co, v. Municipal Board([1]). The appellant company there challenged the validity of water tax levied by the municipal board on the ground that the tax had not been imposed according to law inasmuch as the proposals and the draft rules had been published by the Board in an urdu paper whereas according to s. 131(3) read withs. 94(3) of the U.P. Municipalities Act, 1916 they should have been published in Hindi paper. The Court held that s. 131 (3) fell into two parts, the first providing that the proposal and draft rules for an intended tax should be published for inviting objections of the public and the second, laying down that such publication must be in the manner laid down in s. 94 ( 3). It held that considering the object of the provisions for publication, the first part was .mandatory while the second was merely directory. What that part required was that the publication should be in Hindi in local paper :md if that was done there was sufficient compliance of s. 94 ( 3). The publication was made in Hindi in local paper which had good circulation in Rampur; there was no regularly published local Hindi newspaper. There was in the circumstances substantial compliance with the provisions of s. 94(3). At p. 975 this Court observed that the question whether particular provision of statute which on the face of it appears mandatory inasmuch as it used the word 'shall' is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the !Jrovision is the determining factor. The object of r. 19 in prescribing that the application under s. 16(3) must be accompanied by copy of the registered deed is clearly to enable the Collector before he exercises his power there-under to ascertain the purchase prices, the terms and conditions of the sale, the readiness of the applicant to have the land in question reconveyed to him on the same terms and conditions as in the sale deed and the fact of the applicant having deposited the relevant amount in the treasury. The purpose of prescribing that copy of the registered deed should accompany the application is that if such copy is before the Collector there would be no scope for an:i: controversy that the land is transferred to the purchaser, about its area and location, and the terms and conditions of the sale including the sale price. If this information is before the Collector and he is satisfied about it, does it still mean that it would be fatal to the application if the formality of armexing

{I) [1965] I S.C.R. 970.

Section 16 Jays

copy of the registered deed is not complied with. Section 16 Jays down that such an application must be made within three months from the date of the registration and if it is not done within that period, it would be time barred. Suppose for while that an appli-cant docs not know when registration under s. 60 and 61 of the Registration Act is completed and annexes to his application ccr:iticJ copy oi the sale deed furnished at his instance by the regis-tering authority or where the registering authority is not able to furnish copy of the registered deed of sale within time. Docs it mean that an applicant is to he deprived of the right of reconvey-ance conferred by the statute ? To hold that if the formality pres-cribed by r. 19 is not satisfied the application would be bad would be to nullify the object of the statute. That surely cannot be the intention of the draftsmen who framed r. 19 and Form L. C. 13. Rule 19 ( 3) requires that copy of the application shall be sent to the transferee and the transferor by registered post with a';knowlcdgement due. Forni L. C. 13 requires the applicant to state that the transfer is tmde by registered deed on the uatc specified therein. If copy of the application is delivered hl the tra1deror or the transferee by hand delivery or by registered post hut without acknowledgement due or if the applicant is riot able to stale the date of registration because he does not know it, does it mean that merely because cl. ( 3) of r. 19 and the form use the word "shall'' the omission to comply with the aforesaid rcquire-mcltls is fatal to the application. Surely these arc directory instructions and if there is sufficient compliance thereof the appli-c:ition can he validly entertained by the Collector.

In our view, whereas the deposit in the relevant treasury, the applicant being either co-sharer or raiyat of the adjoining land, !tis readiness and willingness to have the land in question rcccn-vcycJ to him on the same terms and conditions as in the sale deed and the transfer of the land to the transferee are conditions pre-cedcm to his acquiring the right of rcconveyancc and to the Collector's jurisdiction to try such an application. the prescription as to annexing copy of the registered deed is only directory and is laid down to furnish necessary infonnation to the Collector to cn:iblc him to proceed with it. Annexing certified copy of the sale deed where copy of the registered dead is not yet available, on account of the process of registration not having been com-pleted would. in our view. he sufficient compliance of the directory preo.cription so long as it furnishes information necessary for the Collector to proceed with the application. The fact that copy of the registered deed was not furnished along with the applica-tion was, therefore. not fatal to the application nor did ~ue.h ombsion deprive the Collector of his jurisdiction to entertam rt nor did it vitiate the proceedinj!S before him or the order thereon made by him. The Board of Revenue and the High Court were

not right in dismissing the appellant's application. In the circum-stances we allow the appeals, set aside the judgment and order of the High Court as also of the Board and restore the order passed by the Collector and confirmed by the Commissioner. The res-pondents will pay to the appellants the costs of these appeals as also their costs in the High Court. There will be only one hearing fee.

V.P.S. Appeals allcwed ..