R. BALIA, R. M. DOSHIT, J. ( 1 ) THE petitioners in this case challenges the land acquisition proceedings in respect of lands situated in subdistrict Choryasi of district Surat which were commenced by issuing separate notification in respect of lands of the petitioners along with others situated at village Bhimpor, Gavier and Dumas under section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) which were published in the Gujarat Government Gazette dated 1-4-1999. The notices were also published in the other modes prescribed under the Act, the dates of which are not relevant for the present purposes. In pursuance of the aforesaid notifications petitioners filed separate written objections dated 1-5-1999 which were signed under the hand of one Chandrakant Popat Advocate before the Special Land Acquisition Officer. The public purpose for which the land was sought to be acquired was described as `for the construction and of extension of air strip at Gaviar, Surat. Thereafter declarations under Section 6 of the Act too were published in Official Gazette of Gujarat dated 15-6-1999 declaring that the lands in question is required for aforesaid public purpose by the State. The notifications read that the objections under Section 5a were considered before issuance of such declaration. The declaration under Section 6 also directed the Collector under Section 17 (1) and (2) to take possession of the land on the expiry of 15 days from the date of publication of notice under Section 9 of the Act even if the award has not been made before the expiry of such period. However, notwithstanding applying section 17 (1) or 17 (2) of the Act to the lands in question the provisions of subsection (4) were not invoked to exclude the applicability of section 5a of the Act. Before possession was taken from the petitioners on 14-8-1999 this petition was filed on 5-8-1999, notices returnable on 17-8-1999 were issued on 6-8-1999. The lands in question are open piece of agricultural lands. According to respondents they had taken possession of the land on 14-8-1999, which according to the petitioners is only paper possession. It is further pointed out that notice of this petition was served on the respondents on 7-8-1999 and possession of whatever nature has been taken only after the service of notice on the respondents. According to respondents they had taken possession of the land on 14-8-1999, which according to the petitioners is only paper possession. It is further pointed out that notice of this petition was served on the respondents on 7-8-1999 and possession of whatever nature has been taken only after the service of notice on the respondents. ( 2 ) FIRSTLY it has been contended that the public purpose disclosed in the notification is for construction of extension of air strip. It was urged by learned counsel for the petitioner that as per the Entry 29 of the Union List of the VIIth Schedule of the Constitution of India the subject matter of Airways; aircraft and air navigation; provision of aerodromes; regulation and organization of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies; falls exclusively within the domain of Union of India for making laws. The executive powers in respect of the said subject matter is also exclusively exercisable by the Union of India. This being so the appropriate Government in relation to acquisition of land for the purpose of construction of air strip can only be deemed to be for the purpose of Union. For acquiring land for the said purpose the Central Government can only be the appropriate Government for the purpose of exercising powers under the Land Acquisition Act, 1894. He relies on the provisions of Section 3 (ee) of the Land Acquisition Act 1894 (Hereinafter called the Act) defining appropriate Government, for the purpose of the Act. It has also been urged by learned counsel for the petitioner that there is no delegation of authority by the Union of India in favour of the Government of Gujarat to exercise power of the Central Government under the Land Acquisition Act and even if it were so the power of issuing notification under Section 4 having been exercised by a delegate of State Government the power delegated to the State Government could not have been further delegated to the Collector for the purpose of bringing into existence land acquisition proceedings. We may notice here that Section 4 notification has been issued by the Collector Surat in exercise of authority conferred on him under Section 52 (A) (2) of the Act, in this regard. We may notice here that Section 4 notification has been issued by the Collector Surat in exercise of authority conferred on him under Section 52 (A) (2) of the Act, in this regard. ( 3 ) LEARNED counsel for the respondent State contends the factual foundation of the aforesaid contentions and a copy of Government of Gujarat Gazette Extraordinary dated 27-11-1987 has been placed on record pointing out that under said Notification the President of India with the consent of Government of Gujarat has entrusted the Government of Gujarat with the power to discharge the functions of the Central Government under the Land Acquisition Act 1894 except functions exercisable by the Central Government under proviso to subsection (1) of Section 55 of the said Act. The notification reads as under:-" Ministry of Agriculture (Department of Rural Development) New Delhi, the 20/08/1987 Notification s. O. 787 (R) - In exercise of the powers conferred by clause (1) of article 258 of the Constitution and of all other powers enabling him in this behalf and in supersession of all previous notification on the subject in so far as they relate to the State of Gujarat, the President, with the consent of the Government of Gujarat, hereby entrusts to that Government, the functions of the Central Government under:- (1) the Land Acquisition Act, 1894 (1 of 1894) except the functions exercisable by the Central Government under the proviso to subsection (1) of section 55 of the said Act;and (2) the Land Acquisitions (Companies) Rules, 1963, in relation to the acquisition of land for the purposes of the Union in the State of Gujarat subject to the following conditions, namely:- (A) that the exercise of such functions, the Government of Gujarat shall comply with such general and special directions as the Central Government may, from time to time issue;and (B) that notwithstanding the entrustment, the Central Government may itself exercise any of the said functions should it deem fit to do so in any case. (F. No. 12011/32/17/84-LRD) k. B. Saxena, joint Secretary By order and in the name of the Governor of Gujarat k. S. Adgor deputy Secretary to Government of Gujarat revenue Department ( 4 ) IT was urged by learned Government Pleader that since the acquisition of land is executive function of the State the President in exercise of his powers under Article 258 of the Constitution could issue directions with such executive functions of the Central Government may be exercised by the State Government concerned with the consent of that Government except to the extent not permissible under the provisions of the Statute. The Central Government having delegated its authority under the Act to the Government of Gujarat, with its consent, by the aforesaid Notification generally the question of any defect in the matter of initiating acquisition proceedings for the purposes of Union of India by the State Government does not arise, on the ground raised by the petitioners. ( 5 ) IT cannot be doubted that the acquisition of lands for public purpose is a function which falls in the domain of executive functions. Only executive function of Union of India are subjected to exercise of power under Article 256 cannot be delegated by President of India in exercise of powers under Article 258 which generally fall in the province of legislative or judicial functions of the Union of India cannot be delegated by President of India in exercise of powers under Article 258. The residuary functions which are neither judicial nor legislative are to be treated as executive functions for the purposes of Article 258, is a proposition well established. ( 6 ) THE law is well settled that where the executive power of the Union, is a power conferred by the statute, the power conferred on such delegation, under Article 258 of the Constitution also has the force of law and is exercisable as if conferred by the parent statute itself. In such cases in terms of delegation the statute, functions exercisable under which are delegated, is deemed to be amended to that extent. This position about the effect of the delegation of the executive function of the Union to the State concerned under Article 258, particularly in respect of Land Acquisition Act, 1894 has been clearly explained by the Apex Court in Jayantilal Amratlal Shodhan v. F. N. Rana and others AIR 1964 SC 648 . This position about the effect of the delegation of the executive function of the Union to the State concerned under Article 258, particularly in respect of Land Acquisition Act, 1894 has been clearly explained by the Apex Court in Jayantilal Amratlal Shodhan v. F. N. Rana and others AIR 1964 SC 648 . This was a case which arose in the matter of acquisition proceedings commenced by the then Commissioner of Vadodara by issuing a notification under section 4 of the Act on 1/09/1960 and declaration under Section 6 was also issued by him. It may be noticed that until on 1/05/1960 State of Gujarat had come into existence and Baroda became a part of State of Gujarat, it was part of the then existing Bombay State. A contention was raised that the Commissioner of Baroda had no power to issue notifications under Section 4 and 6 of the Land Acquisition Act as an appropriate Government under the Act for the purpose of Union of India purporting to be acting upon the notification issued by the President on 24/07/1958 under Article 258 (1) of the Constitution entrusting the functions of the Union Government relating to acquisition of land under that Act to Commissioners of Divisions in the State of Bombay, because these functions could not be intended to be entrusted, under Article 258 (1), to the State or officer of the State. The subsidiary question was also raised that functions under Section 5a of the Land Acquisition Act, being quasi judicial, could not have been delegated by the Commissioner to the Additional Special Land Acquisition Officer for the purpose of making report, for consideration of the appropriate authority before issuing declaration under Section 6. The High Court of Gujarat held that the entrustment of functions under Land Acquisition Act did not fall within the precincts of executive functions of the Union and therefore the entrustment of functions under Article 258 (1) did not fall within the executive power of the Union. High Court was of the view that the functions which were not judicial would not necessarily be regarded as executive and with certain functions which did not fall within the three recognised categories legislative, judicial and executive, may be placed in the category of miscellaneous functions. High Court was of the view that the functions which were not judicial would not necessarily be regarded as executive and with certain functions which did not fall within the three recognised categories legislative, judicial and executive, may be placed in the category of miscellaneous functions. The apex court reiterated the view taken by it on earlier occasion in Ram Jawaya v. State of Punjab AIR 1955 SC 549 that it may not be possible to frame an exhaustive definition of what the executive functions means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away and quoted with approval the following passage from Halsburys Laws of England:"executive functions are incapable of comprehensive definition, for they are merely the residue of the functions of government after legislative and judicial functions have been taken away. They include, in addition to the execution of the laws, the maintenance of public order, the management of Crown property and nationalised industries and services, the direction of foreign policy, the conduct of military operations, and the provision or supervision of such services as education, public health, transport, and state assistance and insurance. "thus finding that the functions exercisable by the appropriate Government where it refers to Union of India being executive in nature well within the purview of Article 258 (1) as to the effect of such notifications the court said:-"the effect of Art. 258 (1) is merely to make a blanket provision enabling the President by notification to exercise the power which the Legislature could exercise by legislation, to entrust functions to the officers to be specified in that behalf by the President and subject to the conditions prescribed thereby. By the entrustment of powers under the statute, the notification merely authorises the State or an officer of the State in the circumstances and within the limits prescribed to exercise the specified functions. Effect of the Presidential notification is that, wherever the expression "appropriate Government" occurs in the Act in relation to provisions for acquisitions of land for the purposes of the Union, the words "appropriate Government or the Commissioner of the Division having territorial jurisdiction over the area in which the land is situate", were deemed to be substituted. In other words, by the issue of the Presidential notification, the Land Acquisition Act must be deemed pro tanto amended. In other words, by the issue of the Presidential notification, the Land Acquisition Act must be deemed pro tanto amended. It would be difficult to regard such an amendment as not having the force of law. ( 7 ) WITH this conclusion the Court overruled the objection to the acquisition proceedings on the ground of want of proper delegation of authority to the Commissioner of Baroda as on the date impugned notification was issued after the formation of State of Gujarat by holding that the notification had the effect of amending the Act and such amendment has to be treated as force of law. The operation of such law was saved by the provisions of Bombay Reorganisation Act, 1960. ( 8 ) THE question of delegation of power by the Commissioner of Special Land Acquisition Officer was also overruled by holding that the power to hear objections under the Act was a function assigned to Collector and the Commissioner acting in pursuance of the powers conferred upon him by Article 258 (1) has been conferred upon the Additional Special Land Acquisition Officer as Collector for the purposes of Section 5a. ( 9 ) FROM the aforesaid discussion it is beyond pail of doubt that once functions under Land Acquisition Act which are exercisable by the Union of India as the appropriate Government are entrusted by notification issued with the consent of the Government of Gujarat or any officer thereof, the State Government or such authorised officer delegate becomes an appropriate authority within the meaning of Section 3 (ee) and all the provisions of the Act are to be construed applicable accordingly including Section 52a of the functions to be discharged by such authority as functioning under the statute itself. ( 10 ) THE question again came up for consideration before a Division Bench of this Court in Lataben S Shah v. State of Gujarat (1998) 1 GLR 678 . This was a case in which notices were issued for acquisition of land for the purpose of telephone exchange and staff quarters for their employees which is the purpose of Union of India. The notification was issued on 18/03/1983 by the State Government. In pursuance thereof declaration under Section 6 of the Act was also made on 25-3-1985. This was a case in which notices were issued for acquisition of land for the purpose of telephone exchange and staff quarters for their employees which is the purpose of Union of India. The notification was issued on 18/03/1983 by the State Government. In pursuance thereof declaration under Section 6 of the Act was also made on 25-3-1985. The exercise of authority by the State Government in respect of acquiring land for the purpose of Union was challenged on the very same grounds which have been urged before us. The court referring to like notification issued by Government of India, Ministry of Food, Agriculture, Community Development and Cooperation dated 23-4-1966 opined:"the effect of Presidential notification dated 23/04/1966 is that wherever the expression "appropriate Government" occurs in the Act in relation to provisions for acquisition of land for the purpose of the Union, the words "appropriate Government or the State of Gujarat" must be deemed to have been substituted. Under the circumstances, issuance of notification issued by the State Government under Sec. 4 of the Act has force of law and it cannot be said that petitioners are deprived of their lands without authority of law which is contemplated in Article 300 A of the Constitution. With these premises, the notification issued by the State Government was held to be competent. ( 11 ) WE have already noticed above that notification dated 27. 11. 1987 also emanating from the Ministry of Agriculture Department of Rural Development, Government of India has entrusted the State Government with its consent the functions of Central Government under the Land Acquisition Act 1894 except the functions exercised by the Central Government under the proviso to subsection (1) of Section 55 of the said Act, which functions are legislative in character and under the Land Acquisition Rules of 1963 in relation to the acquisition of land for the purpose of Union in the State of Gujarat. This notification has been issued in supersession of previous notifications. This notification has been issued in supersession of previous notifications. Therefore, until this notification is superseded the State Government is to be considered as appropriate authority by reading the definition of appropriate under Section 3 (ee) as appropriate Government and the State of Gujarat in respect of the lands required by the Union in relation to acquisition of land for the purposes of Union in the State of Gujarat and the notifications issued under Section 4 and the declaration under Section 6 and all proceedings in pursuance thereof are accordingly to be held to be competent as having been taken under the Land Acquisition Act by an authority authorised under the Act itself. ( 12 ) ONCE Presidential notification entrusting the functions of Union of India under the Land Acquisition Act to be exercised by the Government of Gujarat came into existence which has the force of law, it resulted in amendment of the Land Acquisition Act pro tanto, by treating the State Government to be the appropriate Government in relation to acquisition of land for the purposes of Union, and the power of acquiring land for the purpose of Union too becomes the power exercisable by the State of Gujarat under the Act. Consequently, Section 52a (2) of the Act too becomes applicable inasmuch as it authorises the State Government to direct that powers exercised by it under the Act except the power of making rules under Section 55 be exercised also by an officer subordinate to it not below the rank of Collector. This clearly means that wherever under the Act, the State Government is entitled to exercise such powers in relation to acquisition of land, the State Government by virtue of the provisions of Section 52a (2) is entitled to direct the officer subordinate to it to exercise those powers. Taking the two premises together, namely, on issuance of notification under Article 258 of the Constitution the words `state Government is to be read along with appropriate Government in relation to acquisition of land for the purposes of Union of India, whereever the same occurs in the Land Acquisition Act, and it becomes the power entrusted with the State Government under the Act to have recourse to acquisition proceedings. Once such power becomes exercisable under the Act by the State Government, the State Government gets necessary authority to issue directions as contemplated under Section 52a (2) to any officer subordinate to it not below the rank of Collector subject to conditions and in the circumstances that may be specified in the notification. It is not the contention before us that entrustment of power to issue notification under Section 4 to the Collector in respect of a specific land acquisition in the State of Gujarat is otherwise inapplicable. We therefore find no substance in the first contention of learned counsel for the petitioner that power has not been exercised for acquiring land which is not authorised by law. ( 13 ) THE second contention raised by the learned counsel for the petitioners is that the petitioners have not been afforded an opportunity of hearing in support of their objections filed under section 5a of the Act. It was pointed out that power under Section 17 (4) excluding the applicability of the provisions of Section 5a in the present case has not been exercised by the acquiring authority and therefore giving an opportunity of hearing to the objectors before making declaration under Section 6 is mandatory requirement as that offers minimal guarantee to safeguard the interests of person interested against compulsory acquisition which is otherwise authorised by law, to pursuade the acquiring authority about the non requirement of the land for the public purpose for which the land is sought to be acquired or otherwise about the non requirement/suitability/non desirability of land in question to be acquired. ( 14 ) THE principle on which reliance has been placed by the petitioners has not been disputed and cannot be disputed. Section 5-A reads as under:"5-A. Hearing of objections.- (1) Any person interested in any land which has been notified under Section 4, subsection (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days from the date of the publication of the notification, object to the acquisition of the land or of any land in the locality, as the case may be. (2) Every objection under subsection (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard in person or by any person authorised by him in this behalf or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, either make a report in respect of the land which has been notified under Section 4, subsection (1), or make different reports in respect of different parcels of such land, to the appropriate Government, containing with the recommendations on the objections, together with the record of the proceedings held by him, for the decision of that Government. The decision of the appropriate Government on the objections shall be final. (3) For the purposes of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act. " ( 15 ) FROM the scheme of the Act, it is apparent that notification under Section 4 is by way of preliminary investigation before the final decision is taken to acquire any land for any public purpose by the appropriate Government. Such intention is required to be published in official gazette as well as in two daily newspapers circulated in that locality of which at least one has to be in regional language. The substance of notification is also to be given publicity by enjoining a duty on the Collector that he shall cause to be published the notice of substance of notification to be given at convenient places in the said locality. The primary object of giving such wide publicity is to give an opportunity to any person interested in the land notified under Section 4 to be heard before he is divested of the land for the purpose of acquisition. This is apparent from the provision of Section 5-A. This scheme envisages that any person interested in land, so notified, may object to the acquisition of land or to any land in the locality as the case may be within 30 days of such publication. This is apparent from the provision of Section 5-A. This scheme envisages that any person interested in land, so notified, may object to the acquisition of land or to any land in the locality as the case may be within 30 days of such publication. Subsection (2) then requires such objections to be made in writing and the Collector has to give an opportunity to the person making objection or any person authorised by him in this behalf and Collector has to make report the decision of the Government on the objection. Thus the very provision which envisage filing of written objections within the prescribed period of limitation and Collector to make a report on such objections to the appropriate Government with his recommendations after giving an opportunity of hearing to such objector either in person or to person authorised by him in this behalf, leaves no room of doubt that the provisions require hearing in person or through authorised person before a report is made by the Collector to the appropriate Government. Obviously, this inhers into it notifying of the date on which objectors are to be heard in respect of their objections. The provisions being mandatory the Collector cannot make any report without affording an opportunity of hearing to the concerned person, except in case where application of Section 5-A is excluded by dint of direction under Section 17 (4) by the appropriate Government. ( 16 ) IN Farid Ahmed abdul Samad and another v. The Municipal Corporation of the City of Ahmedabad and another AIR 1976 SC 2095 in an appeal from the judgment of the High Court of Gujarat the question arose in the following circumstances. The lands were acquired under the provisions of BPMC Act, 1949. The order of compensation was published in the official gazette and notices were served on concerned parties in accordance with law notifying objections. The petitioners had filed objections before the Standing Committee. The personal hearing was not afforded to the objectors and after about five years the process of acquisition was finalised. The appellants preferred an appeal to the city Civil Court at Ahmedabad and amongst several other grounds the question of lack of opportunity of personal hearing was raised. It did not find favour with the learned City Civil Court. The petition under Article 227 also before High Court did not succeed. The appellants preferred an appeal to the city Civil Court at Ahmedabad and amongst several other grounds the question of lack of opportunity of personal hearing was raised. It did not find favour with the learned City Civil Court. The petition under Article 227 also before High Court did not succeed. The High Court took the view that the City Civil Court Judge was right in rejecting the submission since no oral hearing was ever claimed in the objection and hence personal hearing was not necessary to be given. The State has also taken the plea that Section 5-A would not apply to acquisition under BPMC Act. The court rejected both the contentions. The court held:"it appears that both the City Civil Judge and the High Court were only concerned with whether the rules of natural justice were complied with in the matter of acquisition of the land in question. We, think, as will be shown below, that the City Civil Court and the High Court are not right in their approach. We find that there is reference to Section 5-A of the Land Acquisition Act in the order of the High Court and it is apparently assumed by the High Court that the said section is applicable. All the same High Court erroneously thinks that no personal hearing was necessary and the section is fully complied with by mere submission of the written objection particularly because "no oral hearing was ever claimed". The court opined:"section 5a of the Land Acquisition Act does not rest on a persons demand for personal hearing. The matter may be different if a person whose property is acquired abandons the right to a personal hearing with which aspect we are not concerned in this appeal. "" The heart of Section 5a of the Land Acquisition Act is the hearing of objections and under subsection (2) of that section a personal hearing is mandatorily provided for. When, therefore Section 5a of the Land Acquisition Act is applicable under Appendix I of the Bombay Act and there is nothing to show expressly or by necessary implication that the said section of any part of its is excluded under Section 284n or under any other provision in Chapter XVI as a whole the right to personal hearing under the Bombay Act cannot vanish or be defeated. " ( 17 ) THE plea as to the exclusion of clarification under Section 5-A under the BPMC Act with reference to Section 17 (4) of the Land Acquisition Act which was also made applicable under the Acquisition proceedings under the Bombay Act was also repelled by holding:"we are unable to accept this submission. Even under Section 17 (4) of the Land Acquisition Act the appropriate Government has to direct, in case of urgency, that the provisions of Section 5a shall not apply. there is no automatic exclusion of Section 5a even under the Land Acquisition Act. " ( 18 ) WITH these conclusions the land acquisitions were quashed. The contention that as under the Bombay Act the appeal was provided against the order of confirmation the defect if any in affording opportunity of hearing was cured when it was approved by the Standing Committee or by its confirmation of the State Government by holding:"we should also point out that the acquisition order must be an order valid under the law and the question of appeal arises only after confirmation of the order by the State Government. If the order is at inception, invalid, its invalidity cannot be cured by its approval of the Standing Committee or by its confirmation of the State Government. " ( 19 ) THE ratio of this authority clearly points out to the proposition that unless an order is made in case of emergency to exclude the applicability of Section 5-A the opportunity before acquisition under section 17 (4), affording an opportunity before a declaration under Section 6 can be made by considering the report of the Collector is a sine qua non and failure to comply with the provisions makes the declaration stillborn. ( 20 ) IN Sm. Gunwant Kaur and others v. Municipal Committee, Bhatinda and others AIR 1970 SC 802 the petitioners had challenged the land acquisition proceedings taken by the Municipal Committee Bhatinda. The petitioners challenge inter alia included the ground that they were not given opportunity of hearing under Section 5a of the Land Acquisition Act before finalising the proceedings. Gunwant Kaur and others v. Municipal Committee, Bhatinda and others AIR 1970 SC 802 the petitioners had challenged the land acquisition proceedings taken by the Municipal Committee Bhatinda. The petitioners challenge inter alia included the ground that they were not given opportunity of hearing under Section 5a of the Land Acquisition Act before finalising the proceedings. The Punjab and Haryana High Court dismissed the petition in limine by holding the question whether the lands now sought to be taken possession was not included in the acquisition notification involving a disputed question of fact because the Collector in his detailed order has stated that "i am satisfied that the true area of land demarcated corresponds to the area notified and that it has been demarcated on the ground with as much accuracy as was reasonably possible. On appeal this approach of the High Court was found to be erroneous. While noticing the scheme of the Land Acquisition Act, referring to Section 5-A, the apex Court observed:"by Section 5a any person interested in any land notified under Section 4 as being needed or likely to be needed for a public purpose or for a Company may within thirty days after the issue of the notification, submit in writing to the Collector his objection to the acquisition of the land or of any land in the locality as the case may be. The Collector has to give to the objector an opportunity of being heard and has, after hearing the objections and making such further inquiry as he thinks necessary, to submit the cas for the decision of the appropriate Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. Under Section 6 of the Act the Government may proceed to make a notification only if the Government is satisfied after considering the report of the Collector, under Section 5-A that the land is needed for a public purpose. The inquiry and the report under Section 5-A may be dispensed with only if a notification is issued under Section 17 (4) of the Land Acquisition Act. In the present case no order under Section 17 (4) was issued by the Government of Punjab. The inquiry and the report under Section 5-A may be dispensed with only if a notification is issued under Section 17 (4) of the Land Acquisition Act. In the present case no order under Section 17 (4) was issued by the Government of Punjab. The owners of the lands were, therefore, entitled to be heard on the question whether these lands or any land in the locality should be acquired for the purpose for which it was intended to be acquired. . . . The writ petition filed before the High Court was not in the nature of an appeal against the decision of the Collector. The collector was acting for and on behalf of the Sate Government to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collectors opinion. Again the jurisdiction of the Collector depended upon the issue of a valid notification and the mere fact that the Collector was satisfied that the true area of land demarcated "corresponded to the area notified" - whatever that expression may mean - did not prevent the owners of the lands from contending before the High Court that they had no opportunity of making their representations under Section 5-A of the Act and of satisfying the Collector that their lands should not be acquired. " . ( 21 ) THUS the necessity of hearing objectors before making report in case no direction under Section 17 (4) has been issued was held to be a mandatory requirement of the procedure required to be adopted for acquiring the land compulsorily. ( 22 ) IN Bhutnath Chatterjee v. State of West Bengal and others (1969) 3 SCC 675 the Supreme Court observed:"section 5-A provides that any person interested in any of the land notified under Section 4 (1) as being needed or likely to be needed for a public purpose may object to the acquisition of the land or any land in the locality. The Collector must consider the objection after giving an opportunity to the party raising the objection, and after hearing all such objections, and after making such further inquiry as he thinks fit, he must submit the case for the decision of the appropriate Government together with the record of the proceedings held by him and a report containing his recommendations on the objections. Except in those cases where by a notification issued under Section 17 (4) the inquiry under Section 5-A is dispensed with, the opportunity to raise objection and the consideration of the objection by the collector and the Government is obligatory. " ( 23 ) THUS the principle is well settled that in the absence of direction under Section 17 (4) giving an opportunity of hearing to the objectors who had filed their objections under Section 5-A in respect of lands notified under Section 4 for acquisition it is obligatory on the part of the Collector to afford an opportunity of hearing either in person or through a person authorised in this behalf by the collector before making report to the Government for its recommendation for the purpose of acting further in the proceedings. It may be further noticed that the Collector is not merely enjoined to make a report of objections of affording an opportunity hearing to the objectors alone but is further required to make an enquiry, if necessary, in the circumstances because in the question regarding acquisition of the lands notified under Section 4, the failure to adhere to this procedural safeguard is fatal to the proceedings unless it can further said that the affected party has abandoned his right of personal hearing. Making demand for personal hearing is also not necessary because it is the obligation of the Collector to give an notice of personal hearing once he receives objections in writing within limitation. This takes us to consider the facts of the present case in the light of the aforesaid proposition. ( 24 ) IT is not the case of the respondents nor any notification has been produced to show that provisions of Section 5-A has been directed to be not applicable under Section 17 (4 ). In fact the declaration under Section 6 reads of satisfaction after considering the report of the Collector made under Section 5-A. Therefore the question has to be examined that provisions of Section 5-A are applicable to the present acquisition proceedings whether the Collector has afforded an opportunity of hearing to the petitioners as envisaged thereunder. It is also not in dispute that the objections were filed within prescribed period from the date of publication of notification under Section 4. The report submitted by the Collector reads that he has considered the objections. It is also not in dispute that the objections were filed within prescribed period from the date of publication of notification under Section 4. The report submitted by the Collector reads that he has considered the objections. Two affidavits have been filed in respect of notice of this petition by the respondents. In first affidavit of Mr. D. U. Patel dated 17-9-1999 it was stated that after getting the objections from the claimants opportunity of being heard was given under section 5-A and thereafter the report under Section 5-A was prepared and was sent to the Revenue Department of the Government of Gujarat and ultimately the notification under Section 6 was approved and urgency clause was also issued on 1 5/06/1999. A rejoinder affidavit was filed by the petitioners denying that they were given any opportunity of hearing. It was stated that the respondent No. 1 has nowhere mentioned on which date notice of hearing was issued, on which date notice of hearing was served to the petitioners and on which date hearing was given. In response to this another affidavit of one A. D. Bhaghut the incharge Special Land Acquisition Officer No. 1 Surat was filed categorically stating in para 5 that:"in the instant case the original (sic urgency) clause under Section 17 (1) of the Land Acquisition Act was exercised and that is why the objection in this matter is not required to be heard, and by virtue of powers conferred under Section 17 of the Land Acquisition Act no inquiry was held under Section 5-A, hence Section 6 notification was published. " ( 25 ) IN view of diametrically contradictory stand taken by respondent State we directed the learned Government Pleader to produce the record of the Land Acquisition Officer for the perusal of the Court. The record of the Land Acquisition Office in connection with the present proceedings viz L. A. C. No. 9 of 1999 relating to lands in village Bhimpor shows that objections dated 1-5-1999 to the acquisition was submitted to the Special Land Acquisition Officer through advocate Chandrakantji Popat. The record of the Land Acquisition Office in connection with the present proceedings viz L. A. C. No. 9 of 1999 relating to lands in village Bhimpor shows that objections dated 1-5-1999 to the acquisition was submitted to the Special Land Acquisition Officer through advocate Chandrakantji Popat. Attached with this objection is a letter received through registered post from one Abhilash S. Desai, another advocate in connection with Land Acquisitions Case No. 2/98 and 7/98 disclosing that notices issued by Special Land Acquisition Officer fixing 10-5-1990 the date of hearing has been received by him only on 13-5-1999 and because of that it was not possible to remain present on 10-5-1999 and another date may be fixed. According to note made on the letter the same was received by Special Land Acquisition Officer on 15-5-1999. Thereafter in the report of the Special Land Acquisition Officer dated 28-5-99 on the file stating that he has issued notice on receipt of objection fixing the date of hearing to be 10-5-1999 but no one appeared thereon and no date was demanded and therefore he is making this report. It may be noticed from the said record that letter of Abhilash Desai relates to Land Acquisition Case No. 2 of 1999 and 7 of 1999, not connected with Land Acquisition Case No. 9 of 1999. Learned Government Pleader informs that the said letter pertains to acquisition of land at village Dumas. However, no record of proceedings, rojkam, or record of issue of notice having dated 10-5-1999 is there. It was informed by learned Government Pleader as well as the Special Land Acquisition Officer present in Court that no other record of proceedings relating to objections are available in respect of land acquisition at Bhimpore. ( 26 ) THE record of the Land Acquisition Case No. 10 of 1999 relating to acquisition of land in village Gavier for the very same purpose shows that objections in this case were also filed on behalf of petitioners land in village Gavier on 1-5-199 by advocate Chandrakant B. Popat. Objections to the said acquisition was also filed by Abhilash S. Desai in respect of Gavier land as well as Bhimpur land on behalf of different persons which are dated 28-4-1999. Objections to the said acquisition was also filed by Abhilash S. Desai in respect of Gavier land as well as Bhimpur land on behalf of different persons which are dated 28-4-1999. One objection filed by C. B. Popat and second objection by A. S. Desai are on record on the top of the file after latest objections filed by C. B. Pandit dated 28-7-1999 after issuance of notices under Section 9. The objections are followed by report made by Land Acquisition Officer on 29-5-1999. This report reads that hearing was fixed on 10-5-1999. It was heard on 17--1999. On 17-5-1999 A. S. Desai advocate and C. B. Popat, advocate were present who had filed objections under their signatures. But no signatures of the claimants were found on the Vakalatnamas. That is why objections filed by petitioners represented by all these lawyers were not considered, because the lawyers cannot be considered to be authorised representatives of the objectors. This record at best goes to show that notice under Section 5-A has been issued to one A. S. Desai advocate on 5-5-1999 fixing date of hearing 10-5-1999. ( 27 ) THERE neither any notice, nor copy of any notice issued to the petitioners or C. B. Popat is on record nor any record of proceedings of 10-5-1999 or 17-5-1999 are on record of any of the files produced before us. In fact when pointedly enquired by the Court it was disclosed that neither any copy of notice was issued to the parties is available on record, nor any record of proceedings or rojkam is maintained. In the absence of any proceedings that have taken place on 10-5-1999 or 17-5-1999 and any material of actual issuance of notice to C. B. Popat one fails to concave on what basis reports on 28-5-1999 or 29-5-1999 were prepared or what was the material with the officer on 28-5-99 or 29-5-1999 to record as to what has happened on 10-5-1999 or 17-5-1999. ( 28 ) THE requirement of Section 5-A of the Act are clear in its terms. ( 28 ) THE requirement of Section 5-A of the Act are clear in its terms. It speaks not only that the Collector shall give an opportunity of being heard to every objector either in person or by any person authorised by him in this behalf, but also envisages that after hearing of such objections and after making such further enquiry, if any, he shall make his report in respect of the land which has been notified under Section 4 to appropriate Government containing his recommendations on the objections together with the record of the proceedings held by him, for the decision of the Government. It is therefore incumbent upon the officer enquiring into objections and holding an enquiry, to maintain the record of proceedings and the report has to accompany the record of proceedings along with recommendations made by the Reporting Officer. Thereupon the Government has to decide upon the objections raised by the objectors. From the letter of Shri A. D. Desai on record at best this inference can be drawn that notices for hearing objections were issued and served on A. D. Desai in respect of hearing of 10/05/1999. Even if it be assumed that notices might also have been issued to C. B. Popat, which are not on record, it cannot be assumed in the absence of record of proceedings whether the said notices were served at all on Mr. C. B. Potat or were served prior to 10-5-1999 nor it can be assumed as to what happened on 10-5-1999 or 17-5-1999. Moreover from the fact that the report in connection with Gavier village goes to show on record the presence of C. B. Popat also on 17-5-1999 in respect of which also the notices were alleged to have been issued in the first instance for the hearing of 10-5-1999. There does not appear to be any reason to assume that while proceedings in which no report was made until 28-5-99 and 29-5-99 in respect of the land to be acquired for the very same project the Special Land Acquisition Officer may have rejected objections in respect of Bhimpur on 10-5-1999 itself or that notices on some of the parties were served prior to 10-5-1999 when the notices issued in respect of hearing of the same date in the same case has not been served on the advocate of same place until 13-5-1999. We have also noticed above that Mr. A. D. Desai has filed objections in respect of both the acquisitions on the very same day but such objections were kept on the file relating to acquisition of the lands at Gavier village. When no record of proceedings have been kept by reporting officer to sustain the factual foundation of facts stated in the report nor the foundational material is available on record, it is not possible to sustain the presumption of regularity of official acts in the present case. We in the circumstances are of the view that the affidavit filed by Mr. Bhugut as sur rejoinder gives the right picture of the things, namely, no inquiry was held under Section 5-A, inasmuch as no notices appear to have been issued to the petitioners or and even if such notices were issued to some of the parties, there is no evidence to show that such notices were served on the petitioners. ( 29 ) IT was further pointed out by Mr. P. G. Desai, ld. Government Pleader that the letter received from Mr. A. D. Desai which is on the objection files relating to Bhimpur village neither concerns Bhimpur village lands nor Gavier village lands but relates to Dumas, Mugdalla, Vanta and Abhwani lands which were acquired and of which possession was taken on 17-8-99. It neither includes Gavier nor Bhimpur. Though the affidavit of Mr. D. U. Patel does not refer to taking possession of lands at village Bhimpur and Gavier with which we are concerned but it appears that parties understood the averments to be in relation to the lands in question also which has been fortified by the record showing panchnama. That the lands at village Gavier and Bhimpur were also taken in possession by the Land Acquisition Officer on 14-8-1999 in exercise of powers under Section 17 (1) as directed under the declaration under Section 17 (1) and by depositing of 80% of the compensation in district court. In response to these facts alleged in reply affidavit the petitioner in his rejoinder affidavit while not denying proceedings for taking of the possession has asserted that only paper possession has been taken and land still continues to be with the petitioners. It was further averred:"even amount of compensation is not stated. In response to these facts alleged in reply affidavit the petitioner in his rejoinder affidavit while not denying proceedings for taking of the possession has asserted that only paper possession has been taken and land still continues to be with the petitioners. It was further averred:"even amount of compensation is not stated. When even otherwise the possession is taken over without jurisdiction the petitioner cannot be dismissed on that ground. The possession when taken over without authority of law is violative ofthe Article 300 A of the Constitution of India. Further on the date stated by the respondent No. 1 on which possession said to have been taken the matter was pending and still pending before this Honourable Court. And so the petition cannot be dismissed on the self created ground. The respondents have not deposited any amount in district court till 25. 9. 99. " ( 30 ) THE petitioners also denied that they have ever been offered 80% of the amount of compensation. We may also notice in the affidavit filed by D. U. Patel it has also been asserted that in pursuance of notification under section 6 on 15. 6. 1999 exercising urgency clause under 17 (1), the notice was issued under Section 9, which was published and 80% of the compensation was deposited by the Acquiring Authority in the district court and for the payment of the compensation, the claimants were given intimation on 12-8. 99 and 13. 8. 1996 (sic 1999) by way of notice, which were not accepted by the claimants. It is further submitted that the lands of the claimants of Moje Dumas, Magdalla, Vanta and Abhwani were acquired and taken possession on 14. 8. 1999 in presence of panchas for the aforesaid public purpose and by exercising urgency clause under section 17 (1) and 80% of the compensation was deposited in the district court and since the possession has already been taken, by the acquiring authority, this petition deserves to be dismissed. ( 31 ) WITH the clear denial to have received any tender of amount on the alleged date of 12 or 1 3/08/1999 or any time and that the amount have also not deposited in the district court at least until 25. 9. ( 31 ) WITH the clear denial to have received any tender of amount on the alleged date of 12 or 1 3/08/1999 or any time and that the amount have also not deposited in the district court at least until 25. 9. 99 when the rejoinder affidavit was filed by the petitioners, it was contended by learned counsel for the petitioners that possession having not been taken even under urgency provisions under Section 17 is in violation of Section 17 (3) read with Section 31 of the Act. It was also urged firstly that no tender having been made before taking possession there was no occasion for the respondent to have deposited the amount in the court. Secondly as per the assertions made in reply affidavit no amount in fact has been deposited in court atleast on 25. 9. 1999. Reply affidavit is sworn in on 17-9-1999. Another affidavit as surrejoinder has also been filed on behalf of the respondents which is deposed by A. D. Bhagut in which he asserts so far as the deposit of the amount in the court is concerned that "this office has gone to the District Court, Surat with a cheque of Rs. 2,45,86,675. 00ps but the office of the district Judge, Surat denied to accept the said cheque on 17/09/1999 stating that since no reference under section 18 of the Act is preferred, the District Court is not able to accept the said cheque, hence, the office of myself was not able to deposit the amount for the aforesaid reason. ( 32 ) FACTUALLY from the record the tendering of the amount to the petitioners is not established. In the affidavit filed by Mr. D. U. Patel it has been asserted that claimants were given intimation on 12 and 13th of August 1999 by way of notice. Such notice of intimation is not to be found on record. The affidavit really does not assert that amount was tendered at all to the persons or could have been tendered to those persons. In stead the record reveals that the Special Land Acquisition Officer by his letter dated 10-8-1999 has directed Talati cum Mantri of respective villages to intimate the parties to collect 80% of the amount of compensation payable to them as per the estimated compensation. In stead the record reveals that the Special Land Acquisition Officer by his letter dated 10-8-1999 has directed Talati cum Mantri of respective villages to intimate the parties to collect 80% of the amount of compensation payable to them as per the estimated compensation. In response thereto there is a report of Talati cum Mantri purported to be signed by 12 persons who have received intimation. The said report goes to show that persons who have signed at Sr. Nos. 1, 3, 4 and 5 have also signed at Sr. Nos. 6, 7, 9 and 10 respectively. The signatures of any of the petitioners is not on that report either which is dated 12-8-1999. In these circumstances, no other conclusion is possible to reach except that neither intimation to receive the amount was given to the petitioners nor the amount was tendered to them which they had an occasion to decline to have received the same. ( 33 ) IT is also apparent from the two affidavits that an incorrect fact has been put on record by Mr. D. U. Patel in his affidavit dated 17-9-1999 about deposit of the amount in District court. It has been asserted twice by Mr. Patel that 80% of the compensation amount was deposited by the acquiring authority in district court once in continuation with assertion about notices issued under Section 9, again such assertion has been made in conjunction with statement about taking possession of lands at village Dumas, Mugdalla, Vanta and Abhwan. Obviously by the date the affidavit was sworn in on 17-9-1999 the amount has not been deposited, which is clear from affidavit in surrejoinder. ( 34 ) SO far as taking of the possession of the land under Land Acquisition Act are concerned two situations have been envisaged. One in case where provisions of Section 17 have not been invoked, section 16 envisages that possession can be taken any time after the award has been made by the Collector. That is to say, ordinarily though making of the award is pre condition for taking possession of land under any acquisition proceedings, but payment of compensation under award is not such condition precedent. That is to say, ordinarily though making of the award is pre condition for taking possession of land under any acquisition proceedings, but payment of compensation under award is not such condition precedent. However, Section 17 which operates in the cases of urgencies and authorises the State Government to issue directions to take possession of the lands under acquisition in respect of which notice and declaration under Section 4 and 6 respectively have been issued, even before making of the award. For the benefit of persons whose lands are being acquired is inserted in subsections (3-A) and (3-B) were inserted with effect from 24-9-1984 to ensure that before person is deprived of his lands even without determination of compensation payable to them about which he can have objections he should be paid some adhoc amount according to the estimate of the the Collector. Such adhoc compensation is liable to be withheld in case he is prevented from making such payment by some one or more the contingencies mentioned in subsection (2) of Section 31. In such cases he has to deposit the said amount in the district court as per the provisions contained in Section 31 (2) of the Act. The two relevant provisions for our purpose reads as under:"section 17 (3-A) - Before taking possession of any land under subsection (1) or subsection (2), the Collector shall, without prejudice to the provisions of subsection (3), - (A) tender payment of eighty per centum of the compensation for such land as estimated by him to the persons interested entitled thereto,and (B) pay it to them, unless prevented by some one or more of the contingencies mentioned in Section 31, subsection (2), and where the Collector is so prevented, the provisions of Section 31, subsection (2), (except the second proviso thereto), shall apply as they apply to the payment of compensation under that section. (3-B) The amount paid or deposited under subsection (3-A) shall be taken into account for determining the amount of compensation required to be tendered under Section 31, and where the amount so paid or deposited exceeds the compensation awarded by the Collector under Section 11, the excess may, unless refunded within three months from the date of the Collectors award, be recovered as an arrear of land revenue. ""31. ""31. Payment of compensation or deposit of same in Court.- (1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next subsection. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to th apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Section 18 would be submitted:provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount: Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the persons lawfully entitled thereto. " ( 35 ) THE scheme of two provisions referred to above in our opinion is to provide mode of payment of compensation where a part of the compensation is paid by way of adhoc payment or the compensation determined by the Collector under the award in respect of the lands under acquisition. Whether the lands are taken possession under Section 16 or Section 17, taking of possession, vests such lands in the State Government free from all encumbrances. Section 31 (1) envisages where award has come into existence the Collector is under obligation to tender payment of compensation to the persons interested entitled thereto according to the award and to pay them unless prevented by some one or more of the contingencies mentioned in Subsection (2) of the provision. Section 31 (1) envisages where award has come into existence the Collector is under obligation to tender payment of compensation to the persons interested entitled thereto according to the award and to pay them unless prevented by some one or more of the contingencies mentioned in Subsection (2) of the provision. The contingencies envisaged under subsection (2) when the Collector can be said to be prevented from making payment of the amount tendered to the person who is entitled to receive the same under the award, are (1) where the claimant does not consent to receive it; (2) where there is no persons competent to alienate the land; (3) If there be any dispute as to the title to receive the compensation (4) if there be any dispute as to the apportionment of the compensation awarded, such amount is required to be deposited in the court in which reference under Section 18 would be submitted. The provision is clear that at the time of making deposit it is not essential that the reference has already been submitted to the district. What is required is that the amount is to be deposited in a court before whom the reference would be submitted in future. It also provide that a person admitted to be interested in land may receive the amount under protest subject to sufficiency of the amount. These are the contingencies which have also been incorporated in Section 17 (3-A) wherein Collector can be deemed to have been prevented from making payment of the amount of compensation estimated by him under that subsection, before taking possession, and if the Collector is prevented in the aforesaid exigencies from making payment of the amount of estimated compensation, tendered to the person interested the same has to be deposited in the district court by the Collector. Therefore there is no escape from the conclusion about requirement of law that the collector has in the first instance to determine the amount for payment to the person admitted to be interested in land, whether by way of adhoc part payment of the estimated compensation under Section 17 (3-A) or full payment of the compensation payable under the award under Section 31. ( 36 ) TWO different expressions `tender and `payment has been used by the statute. ( 36 ) TWO different expressions `tender and `payment has been used by the statute. Tender of amount to claimant is condition precedent before the Collector can resort to deposit the amount to be paid under 17 (3a) or under Section 31 in the District Court. That has to be there in all cases. It must ordinarily follow with payment of the requisite amount. It is only if it can be said in legal sense that the Collector was prevented from making payment that be acquires authority to deposit the same in District Court, which obviously mean that court, which will have jurisdiction to hear the reference that may be made under the Act. While payment followed by tender, where it is not excluded, is condition precedent before taking possession under section 17 before making of award, such tender and payment is not condition precedent after award is made. In that event Section 16 operates. ( 37 ) IN this case as discussed above, the petitioners have not been tendered much less paid the amount of the part of the estimated compensation as required under Section 17 (3-A) of the Act. It may be significant to notice that in the aforesaid two provisions tendering of payment and actual making of the payment have been separately made the part of the scheme. This is so because the tendering of the payment is within the domain of the collector but actual acceptance by the claimant is not in his hands. The actual claimant may for reasons germane to his consideration not be willing to accept the compensation or may not accept the compensation because he is protesting to the acquisition proceedings or to the quantum of compensation as the case may be. But if there is no absence of consent of concerned person to receive the payment tendered and other contingency do not arise then the tender made by the Collector must be followed with payment to the person interested and in that even the deposit of the amount in the court would be incompetent. ( 38 ) IN view of the above we find that requirement of subsection (3-A) of Section 17 has not been fulfilled. However, the question arises to what effect. ( 38 ) IN view of the above we find that requirement of subsection (3-A) of Section 17 has not been fulfilled. However, the question arises to what effect. Undoubtedly the statute enjoins a duty on the Land Acquisition Officer to make 80% of the estimated amount of compensation before taking possession in case powers under Section 17 (1) have been invoked to take possession before making of the award, which shall ordinarily be the case in the absence of notification of power under Section 17. The provision has been couched as a mandate to the Land Acquisition Officer. However, no consequence has been provided under the Act for the failure of the Land Acquisition Officer to discharge this obligation. Though prima facie inference from the language used in the statute appears to be mandatory in character in its compliance but whether it implies nullification of the Act for disobedience is a question to be considered. The principle is well settled and can be spelt out in the words of Lord Campbell from the oft quoted passage from his opinion in Liverpool Bank v. Turner (1861) 30 LJ Ch 379:"no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered. " ( 39 ) FOR ascertaining the real intention of the Legislature the Court is entitled to consider the nature and design of the statute, and the consequences which would follow from construing it the one way or the other; the impact of the provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow therefore; and above all, whether the object of the legislation will be defeated or furthered. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. " ( 40 ) KEEPING the above principles in mind if we examine the scheme of the Act, it needs hardly to be elaborated that the object of the statute is to acquire land for fulfillment of same public purpose. It is not primarily a transaction of buying the land for consideration. The dominant object of acquiring eminent domain is not so much the acquisition of property or extinguishment of interest outstanding the state, but dominant object is to fulfil the public purpose. The provisions has to be construed in that context. The dominant purpose of ancillary provision must also be subservient to said dominant purpose. The object of ancillary provisions cannot acquire that primacy so as to defeat or affect the dominant purpose adversely. In consonance with this object scheme of the Act envisages the possession of the land follows making of the award without any immediate obligation to pay compensation before taking possession. However if there is urgency to achieve object for which land is acquired, the procedural safeguard of affording hearing before declaration under Section 6 is made can also be dispersed with. In any such case requirement of making even the award before possession is taken can also be dispensed with. On taking possession of the land whether under Section 16 or under Section 17 land vests absolutely in the State free from all encumbrances, so that it becomes available for fulfillment of public purpose for which it is required. Thus ordinarily the payment of compensation is not a condition precedent for taking possession. Taking of possession under Section 17 is at a stage where even award need not come into existence. Even in case where direction is made under Section 17 (1), if award in fact has been made, provision of subsection (3a) cannot be invoked, because in such event Section 17 (1) itself is not required to be invoked. Taking of possession under Section 17 is at a stage where even award need not come into existence. Even in case where direction is made under Section 17 (1), if award in fact has been made, provision of subsection (3a) cannot be invoked, because in such event Section 17 (1) itself is not required to be invoked. On the other hand primarily to see that any person who is interested in land is deprived of his possession even before determination of compensation recoverable by him is in right, in exercise of powers under section 17 (1) is not left absolutely high and dry and there may not be delay in securing his due, and keeping in view that once land is acquired, the proceedings for determination of compensation may suffer delays, due to fulfillment of immediate purpose. Subsection (3a), (3b) were inserted in Section 17 by the amending Act of 1984 to secure minimum 80% of payment of estimated sum of compensation immediately. However, this obligation too is not absolute. Where the person interested to whom such sum is tendered refuses to accept the same or one or other contingency as noticed above in terms of Section 31 the Collector is deemed to be prevented from making payment to the claimant, the payment to claimant is not insisted but mere deposit in district is sufficient. Provisions of Section 31 discloses that when there is dispute or doubt about the true claimant or his share in the compensation, he is not entitled to receive payment. In such event deposit of the envisaged sum in the concerned District Court is the only requirement. The payment made to the claimant is provisional only. It is also not the minimum amount payable. The amount so paid is only to be adjusted against final determination and the same is liable to be refunded, in case ad hoc payment exceeds the final determination. In other words the nature of payment under section 17 (3-A) is provisional and ad hoc advance. . ( 41 ) IN the above context the new provisions of Section 17 (3) and (3b) cannot be construed in a manner to affect the dominant object of fulfilling the public purpose adversely. In other words the nature of payment under section 17 (3-A) is provisional and ad hoc advance. . ( 41 ) IN the above context the new provisions of Section 17 (3) and (3b) cannot be construed in a manner to affect the dominant object of fulfilling the public purpose adversely. Consequence of non fulfillment of condition envisaged under Section 17 (A) cannot be raised to a height of nullifying the vesting of land in appropriate Government which may cause delay in execution and achieving public purpose itself to the detriment of public interest. Thus in these circumstances that a provision has been made by way of amendment in 1984 that before taking possession where provisions of Section 17 have been invoked to make at least 80% of the estimated amount of compensation by way of adhoc payment as advance to the person concerned which is liable to be adjusted on final determination of the compensation. If the amount paid is excess the person received such amount is liable to refund and if the amount paid is less than that the The object of Section 17 (3-A) appears to be clear namely, expeditious payment of compensation to the person concerned by way of advance providing payment in certain conditions and subject to certain contingencies, subject to determination of final rights but without affecting the acquisition proceedings. The effect of vesting is not deferred until payment is made either under Section 17 or under Section 16. This is clear from the fact that no consequence whether penal or otherwise has been provided in respect of non compliance of provisions of subsection 3-A of Section 17. At best it can be said that under Section 17 where the making of an award makes the admitted claim outstanding by the State for the purpose of making compensation may be subject to dispute for further reference, the payment of the amount may be deferred until such disputes are decided by civil court in reference by depositing the same amount in court and making it subject to directions of the Court. In the case of emergency provisions immediate payment to the person interested to the extent envisaged therein becomes obligatory giving such person undisputable right which can be enforced through mandamus that is to say his remedy lies in seeking immediate payment of the amount payable under Section 17 (3a), if he is prepared to accept that amount subject to determination later on. If he is not prepared to accept even then the payment to him is not necessary. What is necessary is that the sum can be deposited in the court. In such event the payment does not actually reach the concerned person but may remain subject to dispute to be determined later on. ( 42 ) AS a result of aforesaid discussion, we are unable to hold that an obligation to make a payment in respect of right yet to be determined, should reach the validity of the transaction itself namely taking over possession when obligation can be discharged even after the possession has been taken. The resultant position in a given case may be the effect of holding that the possession is invalid and restoring back to the person concerned may only result in immediately making the payment and get back the possession from the person concerned. That hardly results in furthering the object of the Act nor it fulfils the object of the provision itself. On the other hand if it is to be construed as mandatory in the sense that it confers an enforceable right to secure 80% of the amount immediately if he has already not been paid before possession through appropriate remedies, but not in the sense that it nullifies the acquisition proceedings or the possession itself, it served the purpose of the Act as well as the provision itself and does not affect the public purpose adversely. ( 43 ) WE are therefore of the opinion that notwithstanding there being breach of subsection 3-A of Section 17 it would ordinarily entitle the petitioner to get a mandamus to be paid immediately 80% of the estimated amount of compensation as estimated by the Collector, or its deposit in appropriate District Court, but not the restoration of possession, which has resulted vesting of land in State. ( 44 ) HOWEVER, in the present cas as we have reached the conclusion that there being no dispensation with the provisions of Section 5-A under Section 17 (4) before issuance of notification under Section 6, there was non compliance with the mandatory requirement of the statute, The declaration under Section 6 suffers from patent lack of existence of condition precedent before its issuance, the same cannot be sustained and we hereby quash the declaration under Section 6. As declaration under Section 6 itself has been quashed, the question of giving further direction about payment to the petitioner would not arise at this stage. ( 45 ) HOWEVER, this will not preclude the respondents from proceeding further in pursuance of notification under Section 4 which was issued on 31-3-1999. In case the declaration under Section 6 is assumed to be valid the petitioner in the facts and circumstances would be entitled to direction that respondents immediately tender 80% of estimated sum of compensation payable to the petitioner and on his failure to accept that amount, the same may be deposited in the District Court having jurisdiction in the matter to receive a reference under Section 18. ( 46 ) IN the facts and circumstances, it is further directed that the status quo in respect of the lands in question shall be maintained as they are on today in respect of possession as well as in respect of existing state of affairs at site on the land in question. However, in case the State decides to continue with the proceedings under the Act and is not able to reach satisfaction about requirement of land for the public purpose in accordance with and makes a declaration to that effect under Section 6 within two months from the date of service of writ, the possession of land shall be restored to the petitioner. ( 47 ) IN the facts and circumstances of the case, there shall be no order as to costs. ( 48 ) BEFORE parting with the case as observed by us above that there has been an apparent misstatement in the affidavits filed by Mr. D. U. Patel and the lapses on the part of the persons holding proceedings under the Land Acquisition Act in question, we direct the State Government to hold appropriate enquiry against the concerned officers and to take its logical conclusion. D. U. Patel and the lapses on the part of the persons holding proceedings under the Land Acquisition Act in question, we direct the State Government to hold appropriate enquiry against the concerned officers and to take its logical conclusion. Notices may also be issued to Mr. D. U. Patel the deponent of affidavit dated 17-9-1999 to show cause why proceedings for furnishing a false and incorrect affidavit in these proceedings be not initiated against him. .