Mandatory and directory provisions

Interpretation of statutes.

1. Interpretation Of Statutes Assignment Jefin Shaji

2. Mandatory & Directory Provisions

3. What is Mandatory Provision. Mandatory Enactments or Statutes means such Statutes whose provisions are required to be followed as they are. Their performance can neither be avoided nor can be construed. They cannot be ignored also.

4. What is Directory Provision Directory Enactments means such enactments which or whose provisions are not required to be followed as they are. Their performance or non-performance depends upon discretion. On non-performance of such enactments, no sanction could be imposed. performances of Mandatory enactments are a legal binding whereas the performance of directory enactments is voluntary, optional, or discretion.

5. Case Laws: Hari Mshnu Kanaath v/s Ahmed Ishaq (1955 S.C.R)  the meaning of Mandatory and Directory Enactments was clarified and it was said that it is compulsory to strictly and literally perform Mandatory enactments whereas the performance of Directory Enactments is voluntary and discretionary. Non-performance of Mandatory Enactments shall be penalized non-performance of directory Enactments cannot be penalized.

6. Jagannath v/s Jaswant Singh (AIR 1954 S.C. 210 )  – Both types of enactments are defined, while holding that those enactments which are to be followed compulsorily are Mandatory Enactments. Those enactments have the provision of sanction on non-performance. Punjab Co-operative Bank Ltd. Amritsar v/s Commissioner of Income Tax, Lahore (A I R 1940 P.C. 230) :Privy Council held that Mandatory enactments are capable of being strictly followed while Directory enactments could be sufficient to Perform summarily. Vijay Kumar Vishwash v/s Navjug Large Size Cooperative Agricultural Credit Society Ltd. (A. I R 1998 Calcutta 216)   Calcutta High Court said about Mandatory and Directory Enactments that a definite time is fixed for the performance of the statute, it shall be Directory and not mandatory

7. Determination of Mandatory or Statutory Provision Its determination depends upon two points (a) Language of Statute or Enactment: and (b) Intention of law Nasiruddin v/s Sitaram Agrawal (A.l R 2003 S C. 1543)  supreme Court also decided that the Mandatory or Directory Nature of any Statute could be determined by two points-—the language of the statute and the intention of the legislature.

8. In respect to the performance of statute following words are used: shall: may: must: It must be lawful. and As he deems fit, etc. These words should be understood in their natural sense while construing. Also, the intention of the legislature should be kept in mind.

9. The use of ‘Shall’  When any statute uses ‘Shall’ then it shall be construed firstly as Mandatory provision.  ( State of Uttar Pradesh v/s Baburam, A.I.R 1961 S.C. 751 ) . This is not an absolute rule.   Shariffuddin v/s Abdul Gani (A.I.R. 1980 S.C. 303) : Supreme Court said that while ‘interpreting the word ‘Shall’, the intention of the legislature should be considered and to know the intention of legislature, Content, imagination, etc. of statutes should be considered.

10. The use of ‘May’ The word ‘May’ represent optional or discretionary acts or ifs provision. In other words. It could be said that. The word ‘May’ used in statute represents the discretionary powers of performance of that statute or its provision,  ( M. Jagmohan Reddy v/s Deputy Secretary, AIR, 1982 Andhra Pradesh 182 ). But. If liability has been imposed along with the discretion of public authority in a statute, the word ‘May’ be construed as ‘shall’ or ‘must’  ( Ranga Swami v/s Sagar Textile Mills, A, I.R. 1977 S C. 1516 ),

11. Similarly, if any provision contains both ‘Shall’ and ‘May’, then these words should be construed as Mandatory and Directory respectively. But this is also not an absolute rule.  Ganesh Prasad v/s Lakshmi Narain (A I R. 1995 S (1964) : It was said that in such matters, words should be construed in accordance with the intention of the legislature even though it may be in a different form.

12. The use of ‘Must’ The word ‘Must’ represents compulsorily as mandatory. Such words should be construed as to be performed compulsorily. There is no place for Discretion

13. ‘It must be Lawful’ The phrase ‘It must be Lawful’ represents duty. It includes both duties and powers. It provides powers to perform and function and simultaneously also imposes duty with it. Such provisions are required to be performed Lord Blackburn says that the words ‘it shall be lawful’ are not ambiguous. This is a phrase that provides power and jurisdiction.  [ Julius v/s Bishop of Oxford, (1880) 5 A.C. 214 ]

14. ‘As he deems fit’ The Expression ‘As he deems fit’ represents discretionary powers to do an act. It depends upon the discretion of the Court to do any act or not. But it does not mean that the Court can act voluntarily. Courts are required to use this discretionary power in Accordance with Judicial Principles.

15. Intention of Legislature In ‘ Raza Buland Sugar Co. Limitred V. Municipal Board, Rampur’ – 1964 (10) TMI 82 - 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.

16. Procedural Provisions  Generally, procedural provision is Considered of Directory Nature, provided that the intention of the legislature is not otherwise, but it is also not an absolute rule or principle. Provisions regarding the procedure can be Mandatory also. Raghunath v/s Sunder Das (A.I.R. 42 Kolkata 72)  Provisions of Code of Civil Procedure. 1908 were considered to be Mandatory Nature.

17. Public Duties & Private Duties In ‘ Dattatraya Moreshwar Vs . The State of Bombay and others’ – 1952 (3) TMI 32 - 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.

18. Time Related Provisions Where there is the provision of performing an act within a time period, there shall be considered to be of Mandatory Nature otherwise Directory. In other words, it can be said that where time is the essence of the contract, such provisions are of Mandatory Nature Bhavnagar University v/s Palitana Sugar Mills Ltd. (A R2003 S.C. 511) : It was held where the limitation to do an act and its consequences have been expressed, their such provisions should be deemed Mandatory. If the legislature intents to completion of an act within a definite time period, then this intention is required to be provided in the statute, ( Hindustan Life Insurance Company V/ s Life Insurance Corporation, A.I.R 1963 S.C. 1083 ).

19. Conclusion There are various tests to determine whether a particular provision of statute is “mandatory” or “directory” in nature. 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. Based on various judgements, it can be said 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.