State Represented by Inspector of Police, Chennai vs. N.S. Gnaneswaran, Criminal Appeal No. 456 of 2008, Decided
on 9th January, 2013
The Hon’ble Supreme Court held:
“The law on this issue can be summarised that
in order to declare a provision mandatory, the test to be applied is as to
whether non-compliance of the provision could render entire proceedings invalid
or not. Whether the provision is mandatory or directory, depends upon the
intent of Legislature and not upon the language for which the intent is clothed.
But the circumstance that Legislature has used the language of compulsive force
is always of great relevance”. [Para 17]
The Court also held:
“While determining whether a provision is mandatory
or directory, in addition to the language used therein, the Court has to
examine the context in which the provision is used and the purpose it seeks to
achieve. It may also be necessary to find out the intent of the legislature for
enacting it and the serious and general inconveniences or injustice to persons
relating thereto from its application. The law which creates public duties is directory
but if it confers private rights it is mandatory.” [Para 10]
The Court noted following case
laws in this respect:
State of U.P. & Ors. v. Babu
Ram Upadhya, AIR 1961 SC 751, the Court considered the issue and held as
under:–
“For
ascertaining the real intention of the Legislature, the Court may consider,
inter alia, the nature and the design of the statute, and the consequences
which would follow from construing it the one way or the other, the impact of
other provisions whereby the necessity of complying with the provisions in
question is avoided, the circumstance, namely, that the statute provides for a
contingency of the noncompliance with the provisions, the fact that the
non-compliance with the provisions is or is not visited by some penalty, the
serious or trivial consequences that flow therefrom, and, above all, whether
the object of the legislation will be defeated or furthered.”
Sharif-Ud-Din Vs. Abdul Gani
Lone, AIR 1980 SC 303, this Court, while considering the provisions of
sub-section (3) of Section 89 of the J&K
Representation of People Act, 1957, held that the difference between a
mandatory and directory rule is that the former requires strict observance while
in the case of latter, substantial compliance of the rule may be enough and
where the statute provides that failure to make observance of a particular rule
would lead to a specific consequence, the provision has to be construed as mandatory.
M/s. Rubber House v. M/s.
Excellsior Needle Industries Pvt. Ltd., AIR 1989 SC 1160, this Court considered
the provisions of the Haryana (Control of Rent & Eviction) Rules, 1976,
which provided for mentioning the amount of arrears of rent in the application
was held to be directory though the word “shall” has been used in the statutory
provision for the reason that non-compliance of the rule, i.e. non-mentioning
of the quantum of arrears of rent did involve no invalidating consequence and also
did not visit any penalty.
B.S. Khurana & Ors. v.
Municipal Corporation of Delhi & Ors., (2000) 7 SCC 679, this Court considered
the provisions of the Delhi Municipal Corporation Act, 1957, particularly those
dealing with transfer of immovable property owned by the Municipal Corporation,
and held to be mandatory for the reason that the effect of non-observance of
the statutory prescription would vitiate the transfer.
State of Haryana & Anr. v.
Raghubir Dayal, (1995) 1 SCC 133, this Court observed as under:–
“If by holding them to be mandatory, serious general
inconvenience is caused to innocent persons or general public, without very
much furthering the object of the Act, the same would be construed as
directory.”
Ramchandra Keshav Adke v. Govind
Joti Chavare & Ors., AIR 1975 SC 915, this Court held that where “the
imperative language, the beneficent purpose and importance of the provisions
for efficacious implementation of the general scheme of the Act, all unerringly
lead to the conclusion that they were intended to be mandatory, neglect of any of
those statutory requisites would be fatal.”
The Court also noted following
case laws:
Dattatraya
Moreshwar v. State of Bombay & Ors., AIR 1952 SC 181
Raza Buland
Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, AIR 1965
SC 895
State of
Mysore v. V.K. Kangan, AIR 1975 SC 2190).
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