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TMI Blog2008 (6) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... evisionist as Appellant . Also, no authorization in favour of Shri T.K. Gadoo, DLA, is provided. Therefore, this revision petition is filed without any authorization and after an unexplained delay. 3. We have heard Shri A.C. Singh, DLA, on behalf of revisionist and Shri Ravi Chopra, Advocate, on behalf of respondent. Shri Ravi Chopra, Advocate, has also submitted written submissions which are taken on record. 4. It is required to be mentioned at the outset that the respondent has not filed any appeal against the impugned order whereby he has been held guilty for contravention of provisions of (1) Section 8(1) and Section 8(2), and (2) Sections 8(1) and 9(1)(f)(i) Foreign Exchange Regulation Act, 1973, against allegations contained in two Show Cause Notices respectively. Thus, the appellant has accepted the conclusion of guilt against him, hence, the merits of impugned order needs no discussion. On the other hand, the revisionist has questioned the quantum of penalty alleging that Section 50 Foreign Exchange Regulation Act, 1973, provides for imposition of penalty as of five times against the amount involved but a paltry amount of penalty is imposed. 5. It is contended that the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Lord Bishop of Oxford (1880) 5 AC 214:49 LJQB 580: (1847-80) ALLER Rep 43 (HL), the Bishop was empowered to issue a commission of inquiry in case of alleged misconduct by a clergyman, either on an application by some one or suo metu. The question was whether the Bishop had right to refuse commission when an application was made. The house of Lords held that the Bishop had direction to act pursuant to the complaint and no mandatory duty was imposed on him. 16. Earl Cairns, L.C., however made the following remarkable and oft-quoted observations. The words 'it shall be lawful 'are not equivocal. They are plain and unambiguous, they are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done. Something in the object for which it is to be done. Something in the title of the person or persons for whose benefit the power is to be exercised. Which may couple the power with a duty and make it the duty of the person in whom the power is reposed to exercise tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw up a statement of the case and refer it to the High Court. Holding the provision to be mandatory and following Julius, Lord Phillimore observed: When a capacity or power is given to a public authority, there may be circumstance which couple with the power of duty to exercise it:. 22. In Commissioner of Police v. Gordhanadas Bhanji (1952) (1) SCR 135) Rule 250 of the Rules for licensing and Controlling Theatres and other places of public amusement in Bombay City , 1884 read as under: The commissioner shall have power in his absolute discretion at any time to cancel or suspend any license granted under these Rules. 23. It was contended that there was no specific legal duty compelling the Commissioner to exercise the direction. Rule 250 merely vested discretion in him but it did not require him to exercise the power. Relying upon the observations of Earl Cairns, L.C. the Court observed: The discretion vested in the Commissioner of Police under Rule 250 reasons involving the convenience safely morality and the welfare of the public at large. An enabling power of his kind conferred for public benefit is , in our opinion, coupled with a duty to exercise it when the circumstance so dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atue does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statue are punctiliously followed, the proceeding or the outcome of the proceeding would be invalid on the other hand , it is not always correct to say that when the word 'may' has been used the statue is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. 29. Words are the skin of the Language. The language is the medium of expressing the intention and the object that particular provision or the act seeks to achieve. Therefore it is necessary to ascertain the intention. The word 'shall' is not always decisive. Regard must be had to the context, subject matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analyzing the whole scope of the statue or section or a phrase u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd 'may' in a statutory provision would not by itself show that the provision is directory in nature. In some cases, the legislature may use the word 'may' as a matter of pure conventional courtesy and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word 'may' the court has to consider various factors namely, the objects and the scheme of the Act, the context and the background against which the words have been used, the purpose and the advantages sought to be achieved by the use of this word , and the like. It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subject in a utility Act, or where the court advance a remedy and suppresses the mischief, or where giving the words directory significances would defeat the very object of the Act, the word 'may' should be interpreted to convey a mandatory force. As a general rule, the word 'may' is permissive and operative to consider discretion and especially so, where it is used in juxtaposition to the word 'shall' which ordinarily is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... help the courts in ascertaining the legislative, intent without giving to either a controlling or a determinations effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed. 34. Obviously where the legislature uses two words may or shall in two different parts of the same provisions prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is not decisive remains unimpaired. 7. From above citation, it is quite clear that the adjudicating officer has abdicated his duty by imposing inappropriate penalty when we look towards the misconduct complained of and the amount involved in contravention. Therefore, we feel that the penalty amount is required to be increased substantially so as to make it proportionate to the misconduct complained of. Any undue sympathy by adjudicating officer will cause harm to public interest and more so when regulatory mechanism provided by legislature in FER Act, 1973, becomes amenable (Chairman, SEBI v. Siriram Mutual Fund JT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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