qwertyuiopasdfghjklzxcvbnmqwerty uiopasdfghjklzxcvbnmqwertyuiopasd fghjklzxcvbnmqwertyuiopasdfghjklzx cvbnmqwertyuiopasdfghjklzxcvbnmq MANDATORY AND DIRECTORY STATUTES wertyuiopasdfghjklzxcvbnmqwertyui opasdfghjklzxcvbnmqwertyuiopasdfg hjklzxcvbnmqwertyuiopasdfghjklzxc vbnmqwertyuiopasdfghjklzxcvbnmq wertyuiopasdfghjklzxcvbnmqwertyui opasdfghjklzxcvbnmqwertyuiopasdfg hjklzxcvbnmqwertyuiopasdfghjklzxc

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2/27/2012 FATHIMA ,521

INDEX INTRODUCTION MANDATORY AND DIRECTORY PROVISIONS CONCLUSION BIBLIOGRAPHY

INTRODUTION The general rule is that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. Some rules are vital and go to the root of the matter, they cannot be broken; others are only directory and breach of them can be overlooked provided there is a substantial compliance1.In the case of statutes that are said to be imperative, the court have said that if it is not the courts hold upon the t done, the whole thing fails and proceedings that follow upon it are all void. On the other hand , when the courts hold upon them directory , they say that although such provisions are not complied with , the subsequent provisions would not fail 2.No universal Rule can be laid Down in the matter , while construing statutes to determine whether the mandatory enactments should be considered directory or obligatory with an implied nullification for disobedience .It is the duty of the courts to try to get into the real intention of the legislature by carefully attending to the whole scope of the statute to be construed3.

R v. Lincolnshire Appeal Tribunal [1917] 1 KB 1 Howard v. Bordington [1877] 2 PD 203 3 Liverpool Bank v. Turner(1860) 30 LJ 379
2

MANDATORY AND DIRECTORY PROVISION The real question is y y Whether a thing has been ordered by the legislature to be done What is the consequence if not done

Whether an enactment is mandatory or directory depends on the scope and the object of the statute. Where the enactment demands the performance of certain provision without any option or discretion it will be called peremptory or mandatory.

On the other hand if the acting authority is vested with discretion, choice or judgment the enactment is directory.

In deciding whether the provision is directory or mandatory, one has to ascertain whether the power is coupled with a duty of the person to whom it is given to exercise it. If so, then it is imperative.

Generally the intention of the legislature is expressed by mandatory and directory verbs such as may , shall and must .

However, sometimes the legislature uses such words interchangeably. In such cases, the interpreter of the law has to consider the intention of the legislature.

If two interpretations are possible then the one which preserves the constitutionality of the particular statutory provisions should be adopted and the one which renders it unconstitutional and void should be rejected. On-compliance of mandatory provisions has penal consequences where as non-compliance of directory provisions would not furnish any cause of action or ground of challenge.

Definition

Sutherland says4, The difference between Directory and Mandatory statutes is one of effect only. The question generally arises in case involving determination of rights as effected by the violation of or omission to adhere to, statutory directions .This determination involves a decision of whether or not the violation or omission is such as to render invalid Acts or proceeding pursuant to the statute or rights, powers, privileges, immunities claimed thereunder.If the violation or omission is invalidating, the statute is mandatory; if not, it is directory. The question as to whether mandatory or directory depends upon the intention of the legislature and not upon the language in which the intent is clothed. The meaning and the 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 its consequences which would follow from construing it on one way or the. Distinction It is one of the rules of construction that a provision is not mandatory unless noncompliance with it is made penal (Jagannath v Jaswant singh). Mandatory provisions should be fulfilled and obeyed exactly, whereas in case of provisions of directory enactments substantial compliance is satisfiable.

Test for determining whether a provision in a statute is directory or mandatory. Lord Campbell observed that there can be no universal applications as to when a statutory provisions be regarded as merely directory and when mandatory.

Maxwell says that it is impossible to lay down any general rule for determining whether a provision is mandatory or directory . The supreme court of India is stressing time and again that the question whether a statute is mandatory or directory, is not capable of generalization and that in each case the court should try and get at the real intention of the
4

Statutoy Construction ,third EDn , vol III , P 77

legislature by analyzing the entire provisions of the enactment and the scheme underlying it. In other words it depends on the intent of the legislature and not upon the language in which the intent is clothed.

The intent of the legislature must be ascertained not only from the phraseology of the provision, but also from its nature, design and consequences which would follow from construing it in one form or another. The general rule that non-compliance of the mandatory requirements results in nullification of the Act is subject atleast to two exceptions One exception is when the performanceof the requirement becomes impossible. Another exception is of waiver, If certain requirements or conditions are provided by the statute in the interest of the particular person, the requirement or conditions although mandatory may be waived by him if no public interest are involved, and in such case the act done will be valid even if the requirement or conditions are not fulfilled WHEN THE CONSEQUENCES ARE PROVIDEDD BY THE STAATUTE When consequences of nullification of failure to comply with a prescribed requirement are provided by the statute itself, there can be no matter of doubt that such statutory requirement must be interpreted as mandatory. The periods prescribed in the Schedule to the Indian Limitation Act 1908, for bringing a legal proceeding as mandatory as the consequences of the expiry of the period of limitation is provided by section 3 of the Act in that the Court is Enjoined to dismiss a legal proceeding instituted after the expiry of the prescribed period 5. USE OF NEGATIVE WORDS Another mode of showing a clear intention that a provision is mandatory is by clothing a command in negative form. As observed by Subarea J, negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative
5

Maqbool v. Onkar Pratab, AIR 1935 PC 85

Egg: Section 80 and 87-B of CPC. But the principle is without exception .Section 256 of Government of India Act, 1935, was construed by the Federal Court as directory though worded in the negative form. AFFIRMATIVE WORDS MAY IMPLY A NEGATIVE Affirmative words stand at a weaker footing than negative words for reading the provision is mandatory; but affirmative words may also be so limiting as to imply negative. As an example of an Indian statute of this description, the provisions of section 54, 59, 107 and 123 of the Transfer of Property Act USE OF SHALL , MAY OR MUST The use of word shall raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other considerations such as object and scope of the enactment and the consequences flowing from constrctuion.There are numerous cases the word shall has, therefore being construed as mere directory If the word shall has been substituted by the word may by an amendment , it will be very strong presumption that the use of the word shall makes the provision imperative6.Similar will be position when the Bill as introduced was may and the parliament substituted shall in its place while passing the Act .The use of the word shall at one place and may at another place strengthen the inference that both the words are used in the primary sense and that shall should be construed as mandatory. The use of must in place of shall will itself be sufficient to hold the provision to be mandatory and it will not be necessary to pursue the enquiry any further. The use of the word should instead of must mat not justify the inference that the provision is directory if the context shows otherwise.7 The words may , shall and must should initially be deemed to have been used in their natural and ordinary sense. May signifies permission and implies that the authority has been allowed discretion. In state of UP v Jogendra Singh, the Supreme Court observed that there

6 7

J.S.Kulkarni v. M.D.Shroff AIR 1988 SC 1817 J. Bhatacharya v. State of M.P AIR 1976 SC 726

is no doubt that the word may generally does not mean must or shall . But it is well settled that the word may is capable of meaning must or shall in the light of context. It is also clear that when a discretion is conferred upon a public authority coupled with an obligation, the word may should be construed to mean a command ( Smt. Sudir Bala Roy v West Bengal).

May will have compulsory force if a requisite condition has to be filled. Cotton L.J observed that May can never mean must but when any authority or body has a power to it by the word May it becomes its duty to exercise that power.

Shall - in the normal sense imports command. It is well settled that the use of the word shall does not always mean that the enactment is obligatory or mandatory. It depends upon the context in which the word shall occurs and the other circumstances. Unless an interpretation leads to some absurd or inconvenient consequences or contradicts with the intent of the legislature the court shall interpret the word shall in mandatory sense. Must- is doubtlessly a word of command. Chapter-18.2.1 Directory or Mandatory: Public Duty- Eight Tests Directory and Mandatory Provisions in regard to performance of a public Duty At least some of the difficulty stems from the fact that the language customarily used to describe the dichotomy between mandatory and directory enactments is based upon a distinction between the performance of a public duty and the acquisition or exercise of a private right. Indeed, the classification of provisions as merely directory sometimes appears to have been regarded as confined to enactments dealing with public duties. Thus inMontreal Street Railway Company v. Normandin [Montreal Street Railway Company v. Normandin (1917) AC 170 ]the Privy Council in a well-known passage expressed the principle as follows at p 175:[as quoted from Grigor v Rigby & Anor [2007] NTSC 64] When Non-Compliance results in Great Inconvenience: Directoory 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 the Legislature, it has been the practice to hold such provisions to be directory only That case is a good illustration of the application of the principle in the area of public duty. The failure of the sheriff in that case to cause the jury list to be revised pursuant to a statutory duty to do so was held not to have invalidated the verdict of a jury selected from names on the unrevised list. If the concept of a directory enactment is extended to private rights, the question whether a provision is mandatory or directory must nevertheless be one of intent to be gleaned from the scope and object of the statute[Caldow v. Pixell (1877) 2 CPD 562, at p 566 ] It is a question of what consequences, if any, were intended to flow from the failure to comply with the statutory requirement and even if the difference between the performance of a public duty and the acquisition or exercise of a private right is not conclusive, that distinction does at least provide some guidance in distinguishing those provisions with which strict compliance was intended from those with which it was not. That point was made in Clayton v. Heffron at p 247: "But in them all (the decided cases) the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so." . The principles of interpretation that govern ordinary law are equally applicable to the provisions of the Constitution. For the purpose of deciding whether a provision in a Constitution is mandatory one must have regard also to the aims, scope and object of the provision. The mere use of the word "shall" does not necessarily make the provision mandatory Whether a statutory provision is mandatory or directory depends upon the intention of the Legislature and not upon the language in which the intent is clothed :

The meaning and intentions 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 flow from construing it one way or the other : Further to this end, an enquiry into the purpose behind the enactment of the Legislature must always be made : It is the duty of the Court to get at the real intention of the Legislature by carefully attending to the whole scope of the enactment; No universal rule could be laid down ; It depends not on the form, but upon the intention of the framers ; Where a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority. LORD CAMPBELL, L.C., formulated the test to be adopted in regard to this question, in the case of The Liverpool Borough Bank vs. Turner [4], as :

"......... in each case you must look to the subject matter, consider the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory."[see:The Liverpool Borough Bank v. Turner (1860) 30 LJ Ch. 379]

"The statutes contain no enactment as to what is to be the consequence of nonobservance of these provisions. It is contended for the appellants that the consequence is that the trial wascoram non judice and must be treated as a nullity. It is necessary to consider the principles which have been adopted in construing statutes of this character, and the authorities so far as there are any on the particular question arising here. The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th ed. P. 596 and following pages. 1.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 the Legislature, it has

been the practice to hold such provisions to be directory only, the neglect of them, though punishable not effecting the validity of the acts done."(emphasis supplied) In R v Immigration Appeal Tribunal Ex parte Jeyeanthan 1999 (3) AER 231, it is observed : "The issue is of general importance and has implications for the failure to observe procedural requirements outside the field of immigration. The conventional approach when there has been non-compliance with a procedural requirement laid down by a statute or regulation is to consider whether the requirement which was not complied with should be categorised as directory or mandatory. If it is categorised as directory it is usually assumed it can be safely ignored.

2.If it is categorised as mandatory then it is usually assumed the defect cannot be remedied and has the effect of rendering subsequent events dependent on the requirement a nullity or void or as being made without jurisdiction and of no effect.

The position is more complex than this and this approach distracts attention from the important question of what the legislator should be judged to have intended should be the consequence of the non-compliance. This has to be assessed on a consideration of the language of the legislation against the factual circumstances of the non-compliance. In the majority of cases it provides limited, if any, assistance to inquire whether the requirement is mandatory or directory. The requirement is never intended to be optional if a word such as 'shall' or 'must' is used. A requirement to use a form is more likely to be treated as a mandatory requirement where the form contains a notice designed to ensure that a member of the public is informed of his or her rights, such as a notice of a right to appeal. In the case of a right to appeal, if, notwithstanding the absence of the notice, the member of the public exercises his or her right of appeal, the failure to use the form usually ceases to be of any significance irrespective of the outcome of the appeal. This can confidently be said to accord with the intention of the author of the requirement. There are cases where it has been held that even if there has been no prejudice to the recipient because, for example, the recipient was aware of the right of appeal but did not do so, the non- compliance is still fatal. The explanation for these decisions is that the draconian consequence is imposed as a deterrent against not observing the requirement. However even where this is the situation the consequences may differ if this would not be in the interests of the person who was to be informed of his rights.

Because of what can be the very undesirable consequences of a procedural requirement which is made so fundamental that any departure from the requirement makes everything that happens thereafter irreversibly a nullity it is to be hoped that provisions intended to have this effect will be few and far between. In the majority of cases, whether the requirement is categorised as directory or mandatory, the tribunal before whom the defect is properly raised has the task of determining what are to be the consequences of failing to comply with the requirement in the context of all the facts and circumstances of the case in which the issue arises. In such a situation that tribunal's task will be to seek to do what is just in all the circumstances . By contrast, a requirement may be clearly directory because it lays down a time limit but a tribunal is given an express power to extend the time for compliance. If the tribunal grants or refuses an extension of time the position is clear. If the time limit is extended the requirement is of no Significance. If an extension is refused the requirement becomes critical. It may, for example, deprive a member of the public of a right to appeal which if exercised in time would have been bound to succeed. In the latter situation a directory requirement has consequences which are as significant as any mandatory requirement. A far from straightforward situation is where there is a need for permission to appeal to a tribunal but this is not appreciated at the time. The requirement is mandatory in the sense that the tribunal or the party against whom the appeal was being brought would have been entitled to object to the appeal proceeding without the permission and if they had done so the appeal would not have been accepted. However, what is the position if because they were unaware of the existence of the requirement no objection is made and the appeal is heard and allowed? Is the appellant, when the mistake is learnt of, to be deprived of the benefits of the appeal? If the answer is Yes the result could be very unjust. This would be especially so, if in fact the tribunal in error had told the appellant that permission is not needed and he would have been in time to make the application if he had not been misinformed. Could it have been the intention of the author of the requirement that the requirement should have the effect of depriving the appellant of the benefit of his appeal? Clearly not. In such a situation the non-compliance would almost inevitably be regarded as being without significance. It must be remembered that procedural requirements are designed to further the interests of justice and any consequence which would achieve a result contrary to those interests should be treated with considerable reservation."

In R v Sekhon and others, 2003(3) AER 508, it is observed : "25. There is no doubt that difficulties for courts exist in applying the distinction between mandatory requirements on the one hand, and directory requirements on the other. Even if the terms `directory' and `mandatory' are not used the problem remains of answering the question . . A distinction is drawn between enactments that have substantive effect and those that are merely procedural. Here 'substantive' means having to do with the substance of the law, in particular the nature and existence of legal rights, powers or duties, whereas procedure is concerned with formalities and technicalities, rather than substance. A procedural change is expected to improve matters for everyone concerned (or at least to improve matters for some, without inflicting detriment on anyone else who uses ordinary care, vigilance and promptness). The distinction governs such questions as whether a statutory requirement is mandatory or merely directory", whether the effect of an enactment is retrospective' and when a limitation period begins to run. The question may be whether, on the facts of the instant case, the enactment is substantive or merely procedural, bearing in mind that an enactment may be substantive in the light of some facts but merely procedural on others. Another use of the term 'substantive' is to indicate a 'permanent' provision of an Act, in contrast to merely temporary or transitional provisions. 1238. Mandatory and directory enactments. The distinction between mandatory and directory enactments concerns statutory requirements and may have to be drawn where the consequence of failing to implement the requirement is not spelt out in the legislation. The requirement may arise in one of two ways. A duty to implement it may be imposed directly on a person; or legislation may govern the doing of an act or the carrying on of an activity, and compel the person doing the act or carrying on the activity to implement the requirement as part of a specified procedure. The requirement may be imposed merely by implication. To remedy the deficiency of the legislature in failing to specify the intended legal consequence of non- compliance with such a requirement, it has been necessary for the courts to devise rules.

These lay down that it must be decided from the wording of the relevant enactment

whether the requirement is intended to be mandatory or merely directory. The same requirement may be mandatory as to some aspects and directory as to the rest. The court will be more willing to hold that a statutory requirement is merely directory if any breach of the requirement is necessarily followed by an opportunity to exercise some judicial or official discretion in a way which can adequately compensate for that breach. 3.Provisions relating to the steps to be taken by the parties to legal proceedings (using the term in the widest sense) are often construed as mandatory. Where, however, a requirement, even if in mandatory terms, is purely procedural and is imposed for the benefit of one party alone, that party can waive the requirement.

4.Provisions requiring a public authority to comply with formalities in order to render a private individual liable to a levy have generally been held to be mandatory.

5.Requirements are construed as directory if they relate to the performance of a public duty, and the case is such that to hold void acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, without at the same time promoting the main object of the legislature. This is illustrated by many decisions relating to the performance of public functions out of time, and by many relating to the failure of public officers to comply with formal requirements. 6.On the other hand, the view that provisions conferring private rights have been generally treated as mandatory is less easy to support; the decisions on provisions of this type appear, in fact, to show no really marked leaning either way.

7.If the requirement is found to be mandatory, then in a case where a duty to implement it is imposed directly on a person, non-compliance will normally constitute the tort of breach of statutory duty, while in a case where it is to be implemented as a part of a specified procedure, non-compliance will normally render the act done invalid.

8.If the requirement is found to be directory only then in either case the non-compliance will be without direct legal effect, though there might be indirect consequences such as an

award of costs against the offender. It has been said that mandatory provisions must be fulfilled exactly, whereas it is sufficient if directory provisions are substantially fulfilled. Where the requirement is complied with at the relevant time, the act done is not vitiated by later developments which, had they occurred before that time, would have meant that the duty should have been performed in a different way

Specific Terminologies

99% of negative terms are mandatory; affirmative terms are mostly mandatory where guiding principle for vesting of powers depends on context.

In procedural statutes both negative and affirmative are mandatory. Aids to construction for determination of the character of words can be used.

Time fixation

If time fixation is provided to the executive, it is supposed to be permissive with regard to the issue of time only. However, provisions regarding time may be considered mandatory if the intention of the legislature appears to impose literal compliance with the requirement of time.

Statutes regulating tax and election proceeding are generally considered permissive. However the Supreme Court held in Manila mohan lal v Syed Ahamed, whenever a statute requires a particular act to be done in a particular manner and also lays down that failure to comply will have consequence. It would be difficult to accept the argument that the failure to comply with the required said requirement should lead to any other consequence

No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is

by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory. As a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void.

When a statute is passed for the purpose of enabling something to be done, it may be either a mandatory enactment, or a directory one, the difference being that a mandatory enactment must be obeyed or fulfilled exactly, but is sufficient, if a directory enactment be obeyed or fulfilled substantially. If a mandatory enactment is not strictly complied with, the thing done shall be invalid. On the other hand, if an enactment is merely directory, it is immaterial, so far as relates to the validity of the thing done, whether the provisions of that enactment are strictly complied with or not. (Craies on Statute Law, Fifth Edition, pages 240241). There is no general rule as to when an enactment is to be considered mandatory and when merely directory and it is the duty of the Court to ascertain the real intention of the Legislature having regard to the whole scope and purposes of the enactment to be construed.

substantial Compliance

The term substantial compliance has appeared at Post 18.1 [link given] and it was observed that: When substantial compliance is held to be a sufficient observance of a statutory requirement it is because the statutory provision containing the requirement is regarded as directory rather than mandatory.

Thus in Woodward v. Sarsons [Woodward v. Sarsons (1875) LR 10 CP 733, at pp 746-747, at pp 746-747]LORD COLERIDGE C.J. said that

"the general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially"The terms of the statute show whether a provision governs the manner of exercise of a general power, or is a condition on a power, or merely directs the doing or refraining from doing an act before a power is exercised. The distinction between conditions on a power and provisions which are not conditions on a power is sometimes difficult to draw,especially if the provision makes substantial compliance with its terms a condition[

curr v Brisbane City Council

Then an in substantial non-compliance with the same provision seems to give the provision a directory quality, although in truth such a provision would have a dual application: substantial non-compliance is a condition; insubstantial non-compliance is not[Wade and Forsyth, Administrative Law, 7th ed (1994) at 253.].

The question whether a breach of a provision prescribing the doing of some act before a power is exercised invalidates a purported exercise of the power is not, in my respectful opinion, relevant to the present case of Project Blue Sky The statute is to be looked upon in terms of the consequences of employing the power the manner of which is also stated in the provision.If it is found that the statutory non compliance does not invalidate the power, the provision is not be taken as imperative or absolute i.e. Mandatory and vice versa.Le t us continue the discussion as follows.

The purpose of construing the text of a statute is to ascertain there from the intention of the enacting Parliament. When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of a power as well as the

consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised. If the purported exercise of the power is outside the ambit of the power or if the power has been purportedly exercised without compliance with a condition on which the power depends, the purported exercise is invalid. If there has been non-compliance with a provision which does not affect the ambit or existence of the power, the purported exercise of the power is valid. To say that a purported exercise of a power is valid is to say that it has the legal effect which the Parliament intended an exercise of the power to have. [This paragraph is very important in so far as understanding of mandatory or directory provisions are concerned.The following discussion may be taken up by those who are acquainted with the case of Project Blue sky that speaks of certain statutory provisions and other readers may not be well aware of] Following the above logic it was determined in the case of Project Blue sky that : Here, s 160(d) is a provision which directs the manner of the exercise of the powers conferred on the Australian Broadcasting Authority[ABA under the] Broadcasting Services Act 1992 (Cth), Act, including (so far as is relevant) the power conferred by s 122(1)(a). If the ABA purports to exercise its powers in breach of the injunction contained in s 122(4) and s 160(d), to that extent the purported exercise of the power is invalid and the purported standard (or the non-conforming provisions thereof) is invalid and of no effect. The standard cannot be saved by some notion that s 160(d) is "directory".The Act empowers the ABA to determine a program standard that relates to the Australian content of programs only to the extent that the standard is consistent with Australia's obligations under Arts 4 and 5(1) of the Protocol. On the hypothesis that the Australian Content Standard authorises the determination of a standard prescribing a transmission quota for programs having an Australian provenance, cl 9 does not conform with Arts 4 and 5(1). It is therefore invalid.[ Project Blue Sky [supra]per BRENNAN CJ"] Stating down the test for giving the distinction between 'mandatory provisions' and 'directory provisions', the Supreme Court in a recent decision has stated that where the provisions are mandatory, their non-compliance vitiates the entire proceedings and set to naught the action taken thereon. The Court was dealing with the requirement on the part of the Land Acquisition Officer to give notice under Section 9(3) of the Land Acquisition Act and the question raised thereon as to whether such requirement was a mandatory precondition.

In this scenario, the Supreme Court brought forth the distinction between mandatory and directory provisions in the following terms;

. The only question remains for our consideration is as to whether the provisions of Section 9(3) are mandatory in nature and non-compliance thereof, would vitiate the Award and subsequent proceedings under the Act. Section 4 Notification manifests the tentative opinion of the Authority to acquire the land. However, Section 6 Declaration is a conclusive proof thereof. The Land Acquisition Collector acts as Representative of the State, while holding proceedings under the Act, he conducts the proceedings on behalf of the State. Therefore, he determines the pre-existing right which is recognised by the Collector and guided by the findings arrived in determining the objections etc. and he quantifies the amount of compensation to be placed as an offer on behalf of the appropriate government to the person interested. It is for the tenure holder/person interested to accept it or not. In case, it is not acceptable to him, person interested has a right to ask the Collector to make a reference to the Tribunal.

Section 9(3) of the Act reads as under :The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein, or to be entitled to act for persons so interested, as reside or have agents authorized to receive service on their behalf, within the revenue district in which the land is situate Section 9 of the Act provides for an opportunity to the person interested to file a claim petition with documentary evidence for determining the market value of the land and in case a person does not file a claim under Section 9 even after receiving the notice, he still has a right to make an application for making a reference under Section 18 of the Act. Therefore, scheme of the Act is such that it does not cause any prejudicial consequence in case the notice under Section 9(3) is not served upon the person interested.

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 provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things. . In Dattatraya Moreshwar Vs. The State of Bombay & Ors., this Court observed that law which creates public duties is directory but if it confers private rights it is mandatory. Relevant passage from this judgment is quoted below: 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 provision 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. A Constitution Bench of this Court in State of U.P. & Ors. Vs. Babu Ram Upadhya AIR 1961 SC 751, decided the issue observing :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 non-compliance 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.

In Raza Buland Sugar Co. Ltd., Rampur Vs. Municipal Board, Rampur AIR 1965 SC 895; and State of Mysore Vs. V.K. Kangan, AIR 1975 SC 2190, this Court held that 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 its nature, its design and the consequence which would follow from construing it in one way or the other. . In Sharif-Ud-Din Vs. Abdul Gani Lone AIR 1980 SC 303, this Court 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. Similar view has been reiterated by this Court in Balwant Singh & Ors. Vs. Anand Kumar Sharma & Ors. (2003) 3 SCC 433; Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. & Ors. AIR 2003 SC 511; and Chandrika Prasad Yadav Vs. State of Bihar & Ors., AIR 2004 SC 2036. In M/s. Rubber House Vs. 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 and held the provision 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. In B.S. Khurana & Ors. Vs. 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. After considering the scheme of the Act for the purpose of transferring the property belonging to the Corporation, the Court held that the Commissioner could alienate the property only on obtaining the prior sanction of the Corporation and this condition was held to be mandatory for the reason that the effect of non-observance of the statutory prescription

would vitiate the transfer though no specific power had been conferred upon the Corporation to transfer the property. In State of Haryana & Anr. Vs. Raghubir Dayal (1995) 1 SCC 133, this Court has observed as under: The use of the word shall is ordinarily mandatory but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction would not so demand. Normally, the word shall prima facie ought to be considered mandatory but it is the function of the Court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word shall , therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be described to the word shall; as mandatory or as directory accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, 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. In Gullipilli Sowria Raj Vs. Bandaru Pavani @ Gullipili Pavani (2009) 1 SCC 714, this Court while dealing with a similar issue held as under : The expression may used in the opening words of Section 5 is not directory,as has been sought to be argued, but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with Section 5 in that a Hindu Marriage, as understood under Section 5, could be solemnised according to the ceremonies indicated therein Conclusion The law on this issue can be summarised to the effect 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. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.

BIBLIOGRAPHY N.S.BINDRA, Interpretion of Statutes , Lexisnexis, 5th edn JUSTICE G P SINGH , principles of statutory interpretation , Lexisnexis, 12th edn www.legalserviceindia.com