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TMI Blog1990 (5) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... s conferred by S. 5 read with S. 4 of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (Karnataka Act 27) with effect from the date of publication of this notification in the Karnataka Government Gazette, the marketing of Jaggery (gur) and Alasande (hitherto not regulated) shall be regulated in addition to the agricultural produce already regulated in the market to the Agricultural Produce Market Committee Hubli." The other impugned notification dated 3-9-1987 reads as follows:- (Matter in vernacular Omitted Ed.) The impugned notices are issued proposing action under Ss. 114 and 117 of the Act and also calling upon the petitioners to obtain licence and to pay the market fee demanded by the authorities. 4. Since in all these cases the questions of fact and law involved are the same, these writ petitions are disposed of by a common order. 5. The following are the essential facts: -- In Writ Petition Nos. 11896 and 11897 of 1989, the petitioners have shops in Alagundagi Oni, Hubli, situated outside the market sub-yard declared for the purpose of regulating trading in jaggery. After the District of Dharwar became a part of the new State of Karnataka, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) Non-notification in Kannada as aforesaid renders Section 4 of the Act nugatory; (4) In Section 3(1) of the Act, it is provided that "the notification may also be published in Kannada in a newspaper circulating in such area". The word 'may' in the context should be construed as 'shall' and the Legislature intended it to be so. 7. On the other hand, it was contended by the learned counsel appearing for the respondents that the writ petitions are not maintainable since the impugned notifications have already been upheld in other writ petitions which were disposed of earlier by this Court. Secondly, it was contended that the writ petitions are barred by the principle of res judicata. Thirdly it was contended that the Press Note issued in Deccan Herald is the notification contemplated under Section 3(1) of the Act and though it was published in English, it is in substantial compliance with the requirements of Sections 3(1) of the Act. Lastly it was contended that publication of the notification in Kannada is only directory and not mandatory. 8. According to the learned Counsel appearing for respondent-3, the impugned notifications were questioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Press Note was issued in Deccan Herald in English but the publication was not made in Kannada at all. An affidavit was filed to this effect on behalf on the State and also on behalf of the A. P. M, C. Thus the fact became established that the truth was not known to the Court when the earlier writ petitions were disposed of on merits in regard to the non-publication of the impugned notification in Kannada. It is needless to venture to speculate as to what would have been the fate of those writ petitions had the learned single Judge been aware of and told the truth that the notification had not been published in Kannada. But the fact remains that it is only after my persistent efforts, the respondents in these cases came out with the truth. I am shocked and surprised that responsible Government officials who have sworn to the affidavits both in the past and present cases did not have regard for truth while making submissions before the Court and it took considerable coaxing and goading by this Court to elicit the truth. This is a sad commentary on the integrity of the officials who have sworn to false affidavits before this Court. These bureaucrats owe a duty to the Court to tell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ON OF REGULATING THE MARKETING OF SPECIFIED AGRICULTURAL PRODUCE IN SPECTFTFD AREA :-- (1) The State Government may. by notification, declare its intention of regulating the marketing of such agricultural produce, in such area, as may be specified in the notification. The notification may also be published in Kannada in a newspaper circulating in such area. (2) The notification shall state that any objections or suggestions which may be received by the State Government within such period as shall be specified in the notification, not being less than thirty days, will be considered by the State Government." Sub-section (1) of Section 3 of the Act is capable of division into two parts. The first part refers to the requirement that the State Government may notify declaring its intention of regulating the marketing of such agricultural produce in such area as may be specified in the notification. The second part provides that the notification may also be published in Kannada in a newspaper circulating in such area. The word "notification" is defined in sub-section (27) of Section 2 of the Act. According to the definition notification means a notification published i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in such market area. It is further provided in Section 4 that a notification under Section 4 may also be published in Kannada in a newspaper circulating in such area. Thus, there is a continuity in the process of decision making of what is required to be done before issuing a notification under Section 4 of the Act. 16. At the risk of repetition, the proper construction to be placed on Sections 3 and 4 would be that under sub-section(1) of Section 3 of the Act the State Government is expected to declare its intention by notification of regulating the marketing of such agricultural produce in such area as may be specified in the notification and further publish a notification in Kannada in a newspaper circulating in such area. The content of the notification should disclose that any objections or suggestions which may be received by the State Government within such period as shall be specified in the notification and not being less than 30 days, would be considered by the State Government. Under Section 4 of the Act, after the expiry of the stipulated period aforementioned and after considering such objections and suggestions as may be received before such expiry, by issuing anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, Chapter XII relates to penalties, Chapter XIII pertains to control and finally Chapter XIV comprises the miscellaneous provisions. 17. Under sub-section (1) of S. 3 of the Act, apart from publication of the notification in the official Gazette, the legislative intention is publication of the intention by a notification in Kannada in a newspaper circulating in such area. In short, the publication in Kannada is meant for local communication through the medium of the official language of the State. The publication in Kannada is also for the purpose of enabling the concerned trading community of the area to prefer objections and offer suggestions. Such a publication in Kannada is also to enable the authorities to consider the objections and suggestions so offered and to take a decision to issue a final notification under Sec. 4 of the Act. In the decision making process is accommodated the legal obligation to disseminate the intention of regulating the marketing of specific agricultural produce in the area, the right to information of the persons concerned, and their right to be heard. This is a special enactment catering to legislative measures affecting the trading community in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are the constituents of the principles of natural justice. Both Ss. 3 and 4 of the Act radiate the above principles and it is not permissible to put the words in a straight-jacket, for such an endeavour would stultify the intention of the Legislature. I am, therefore, of the opinion that, the word "may" in sub-section (1) of Section 3 in regard to the publications of the notification in Kannada has to be construed as "shall" and, therefore, mandatory in consonance with the word "may" to be found in Section 4 of the Act where a similar provision is made for notification to be published in Kannada. 20. It would be appropriate to observe that it is the spirit and not the form of law that keeps justice alive. 21. As observed by Cardozo :-- "The more we study law in its making, atleast in present stages of development the more we gain the sense of a gradual striving toward an end shaped by a logier which, eschewing the quest for certainty, must be satisfied if its conclusions are rooted in the probable." The learned Counsel appearing for the petitioners relied upon the decisions in Raldev Singh v. State of H. P. AIR1987SC1239 , for the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners of being heard in the matter. 22. Reliance also was placed on Govind lal v. Agriculture Produce Market Committee. MANU/SC/0125/1975 : [1976]1SCR451 , for the proposition that the word "may" should be construed as mandatory in the circumstances and facts of the instant cases. The Court held in para 16 as follows :- "The object of these requirements is quite clear. The fresh notification can be issued only after considering the objections and suggestions which the Director receives within the specified time. In fact, the initial notification has to state expressly that the Director shall consider the objections and suggestions received by him within the staled period. Publication of the notification in the Official Gazette was evidently thought by the legislature not an adequate means of communicating the Director's intention to those who would be vitally affected by the proposed declaration and who would therefore be interested in offering their objections and suggestions. It is a matter of common knowledge that publication in a newspaper attracts greater public attention than publication in the Official Gazette. That is why the legislature has taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "Crawford on 'Statutory Construction' (Edn. 1940, Art. 261, p. 516) sets out the following passage from an American case approvingly: "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 the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other". Thus, the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and consideration. In other words the use of the word 'shall' or 'may' is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1) of Section 3 of the Act is mandatory and not directory. 23. On the other hand, the learned Government Pleader relied upon R. K. Porwal v. State of Maharashtra, [1981]2SCR866 . The learned Government Pleader relied upon a particular passage in para 17 of the above decision which reads as follows:-- ".....We are here not concerned with the exercise of a judicial or quasi-judicial function where the very nature of the function involves the application of the rules of natural justice, or of an administrative function affecting the rights of persons, wherefore, a duty to act fairly. We are concerned with legislative activity; we are concerned with the making of a legislative instrument, the declaration by notification of the Government that a certain place shall be a principal market yard for a market area, upon which declaration certain statutory provisions at once spring into action and certain consequences prescribed by statute follow forthwith. The making of the declaration, in the context, is certainly an act legislative in character and does not oblige the observance of the rules of natural justice......." I am afraid, the decision is not applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Sections 7 and 8 of the Act. In so far as the petitioners are concerned, it has to be held that there is no delay and the petitioners have acquired the right to sue by virtue of Continuing cause of action in the absence of publication of Section 3(1) notification in Kannada. Though it was contended by the learned Counsel for the respondents that some objections had been received in response to the notification published in the Gazette, it does not mean that the petitioners were aware of the notification and that their grievance is not bona fide and further that they have approached the Court belatedly. There is no material on record to hold that the petitioners were aware of the notification. It is not possible to accept the plea of laches. 27. In the result, for the reasons stated above, rule is issued and made absolute. The writ petitions are allowed and the impugned notifications as well as the impugned demand notices are quashed. In the circumstances of the cases, there will be no order as to costs. 28. However, it is open to the authorities to follow the procedure prescribed under the Act for the purpose of establishing a market and on establishing the same, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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