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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 ..... Now, therefore, in exercise of the powers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law; (2) The statutory compulsion to publish the notification in Kannada in a news paper circulating in such area is mandatory and non-compliance is fatal; (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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents in these cases to produce the news paper in which the notification had been published in Kannada, time was taken to produce the same. After a few adjournments both the State and the A. P. M. C. came forward with a new version that only 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annada in a news paper circulating in such area is not mandatory since the word used is 'may'. 13. In order to examine the merits of the rival contentions, reference has to be made to Section 3 of the Act which reads as follows:-- 3. NOTIFICATION OF INTENTION 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted period, the State Government may by another notification declare the area specified in the notification issued under Sec. 3 or any portion thereof to be a market area and that the marketing of all or any of the kinds of agricultural produce specified in the notification issued under Section 3 shall be regulated under the Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... staff of the Market Committee, Chapter VI relates to power and duties of Market Committee, Chapter VII pertains to regulation of trading, Chapter VIII deals with the market fund, Chapter IX is concerned with special commodity markets, Chapter X relates to Mandal Panchayats as agents of Market Committees, Chapter XI relates to State Agricultural Marketing Board, 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 notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vehicle of thought, but also intention. The word may in the context is mandatory consistent with the rigidity of the need. The special act has introduced special words manifesting the purpose. In the context, the word may cannot be construed as may not. Communication of intention, inviting objections and suggestions and consideration of the objections and suggestions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g them of in a fair way. In the instant case, in the absence of publication in Kannada though contemplated under the Act. it can he fairly said that the petitioners did not have the opportunity of having a knowledge of the notification and, therefore, they could not prefer their objections or offer suggestions and the consequences resulting from such a denial did have adverse effect on the rights of the petitioners 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the particular area. This requirement is mandatory and must be fulfilled. Admittedly, the notification (Ex. 10) issued under Section 6(5) on February 16, 1968 was not published in a newspaper at all, much less in Gujarati. Accordingly, the inclusion of new varieties of agricultural produce in that notification leaks legal validity and no prosecution can be founded upon its breach. In para 13, the Supreme Court postulated :-- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsal rule can be laid down on this matter. In each case one must look to the subject-matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. The above decision is a direct authority on the point in issue in these cases and applying the ratio of the above decision, it has to be held that the word 'may' found in sub-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dismissed for 'laches. I do not think that the contention is based on facts. Demand notices which are now questioned in these writ petitions emanated from 3-9-1987 notification earmarking a separate sub-yard for jaggery marketing. In contrast, earlier, the impugned demand notices under the disposed of writ petitions were in execution prior to issue of notification dated 3-9-1987. Further, the process is incomplete on account of non-compliance with the requirement of the provisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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