CONSIDERATION OF A PROVISION WHETHER IT IS MANDATORY OR DIRECTORY

[Mr. M. GOVINDARAJAN]

Introduction

There are various tests to determine whether a particular provision of statute is “mandatory” or “directory” in nature.   For example the selection by the legislature of the words “may” or “shall” is definitely a guideline but not a definitive test.

No universal rule

Lord Campbell said that 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.

In ‘PML Industries Limited V. Commissioner of Central Excise’ – 2013 (4) TMI 101 - PUNJAB AND HARYANA HIGH COURT the High Court observed that the provisions of the statute and circular are required to be examined as to when a provision of a statute is to be treated as mandatory or directory.   It is well settled that the use of expression ‘shall’ or ‘may’ is not determinative of the fact whether the provision is directory or mandatory.  There is no general rule in respect of as to when a provision is to be treated as directory or mandatory, but in every case the object of the statute must be looked.

Intention of the Legislature

In ‘Ramachandra Keshav Adke by Lrs. And others V. Govind Joti Chavare and others’ – 1975 (3) TMI 132 - SUPREME COURT it was held that it was the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope.  Such intention of the legislature is therefore, to be ascertained upon a review of the language, subject matter and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act.

In ‘Raza Buland Sugar Co. Limitred V. Municipal Board, Rampur’ – 1964 (10) TMI 82 - SUPREME COURT a Constitution Bench of the Supreme Court  held that the question whether a provision is mandatory or directory, cannot be resolved by laying down any general rule and it would depend upon the facts of each case.  as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law maker and that has to be gathered not only from the phraseology of the provision but also by considering the nature, its design and the consequence which would follow from construing it in one way or the other.  The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting there from when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision.

In ‘P.T. Rajan V. TPM Sahir’ – 2003 (9) TMI 765 - Supreme Court Of India it was held that the test of mandatory or directory, context, purport and object of the statute are to be ascertained.  Procedural provision even if uses ‘shall’,  ‘may’ be construed as directory if no prejudice is caused.  Provisions requiring statutory functionary to perform a statutory function within the prescribed time is to be considered as directory.

In ‘State of UP V. Manbodhan Lal Srivastava’ – 1957 (9) TMI 43 - Supreme Court of India the Supreme Court held that the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.  The meaning and intention of the legislature must govern and these are to be ascertained, not only from phraseology of the provision but also by considering it nature, and the consequences which would follow from construing it the one way or the other.

In ‘Banwarilal Agarwalla V. State of Bihar’ – 1961 (2) TMI 68 - Supreme Court of India a Constitution Bench of the Supreme Court held that no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non observance thereof involves the consequence of invalidity or only directory i.e., a direction the non observance of which does not entail the consequence of invalidity, whatever other consequences may occur.  But in each case, the Court has to decide the legislative intent.  The Courts have to consider not only the actual words used, but the scheme of the statute, the intended benefit of public of what is enjoined by the provisions and the material danger to the public by the contravention of the same.

Public duties and private duties

In ‘Dattatraya Moreshwar V. The State of Bombay and others’ –  1952 (3) TMI 32 - SUPREME COURT it was held that it is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative.  When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done.

Time limit

In ‘Hyundai Motors India  Limited V. Union of India’ – 2015 (1) TMI 23 - MADRAS HIGH COURT the High Court held that the time limits prescribed, especially in subordinate legislation, can be taken only to be directory and not mandatory.  Otherwise a subordinate legislation may even destroy the parent legislation, by default.

Whether a time limit stipulated in a rule is directory or mandatory, is to see whether there is any indication in the Rule itself about the consequences of noncompliance with the same.  If a statutory provision contains a prescription and also stipulates the consequences of non compliance with the condition, it would normally be taken to be mandatory.   If the consequences of non compliance are not indicated the, the provision has to be seen only as directory.

Difference

In the ‘Sharif-Ud-Din V. Abdul Gani Lone’ – 1979 (11) TMI 225 - SUPREME COURT the Supreme Court marked out the difference between a mandatory rule and a directory rule.  The Supreme Court held that the mandatory rule must be strictly observed and in the case of ‘directory’ substantial compliance may be sufficient to achieve the object regarding which the rule is enacted.  The fact that the statute uses the word ‘shall’ while laying down a duty is not conclusive on the question whether it is mandatory or directory provision.  It depends upon its language, the context in which it is enacted and its object.  The Court held that in order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to sub-serve and its design and the context in which it is enacted.  If the object of a law is to be defeated by non compliance with it, it has to be regarded as mandatory.  But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one.

The Supreme Court further held that where a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire right and its coupled with another provision which confers and immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one.  A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened.  Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequences should not follow.

Conclusion

Upon consideration of the above judgments the ratio that emerges are that-

• any time limits prescribed in a subordinate legislation can only be termed as directory;
• a provision as to whether it is ‘mandatory’ or ‘director’ would depend upon the object of the enactment; and
• the consequences of violating the provision must not affect the interest of the other party and would defeat the purpose of the enactment.