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A PROJECT WORK “MANDATORY AND DIRECTORY ENACTMENTS.”

Interpretation of Statute

GUIDED BY- MS. ANGSWARUPA CHATTERJEE

A PROJECT WORK

Submitted by:

SOUMON NANDA
BBA.LLB (H)
Regd.No. – 1641801030
Batch - 2016-2021
S‘O’A NATIONAL INSTITUTE OF LAW
SIKSHA ‘O’ ANUSANDHAN (DEEMED TO BE UNIVERSITY), BHUBANESWAR
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Contents
TOPIC PAGE NO.

I. Declaration 04

II. Acknowledgement 05

III. Preface 06

Chapter I
1. Introduction 07

Chapter II 08
1. Legal Analysis 08

Chapter III 11
4 Judicial Analysis 11

Conclusion 14

Chapter IV 15
BIBILOGRAPY 15
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DECLARATION

I Soumon Nanda, a student of BBA LLB Siksha ‘o’ Anusandhan national institute of law,
Bhubaneswar does hereby declare that the Project work titled “MANDATORY AND
DIRECTORY ENACTMENTS.”.

SOUMON NANDA
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ACKNOWLEDGEMENT

I take immense pleasure in thanking Miss. Ms. Angswarupa Chatterjee for having
permitted me to carry out this assignment work.

I wish to express my deep sense of gratitude to Ms. Angswarupa Chatterjee

for his able guidance and useful suggestions, which helped me in completing the
assignment work, in time.

Words are inadequate in offering my thanks to all my friends who are been a
source of encouragement and cooperation in carrying out the assignment work.

Finally, yet importantly, I would like to express my heartfelt thanks to my

beloved parents for their blessings.
I had taken care to provide analytical assessment in my assignment work, however
there might be errors and omissions for which I owe responsibility.

Any guidance for correction or rectification will be duly appreciated.

Soumon Nanda

BBA.LLB

REGD. 1641801030
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PREFACE

It gave me immense pleasure to write a preface on my project work title “MANDATORY

AND DIRECTORY ENACTMENTS.”.

I have divided to assigned work into five chapters; in first chapter I have introduced the
subject.

In the second chapter I have cited some examples related to the topic alongwith the source
of the same.

In the fifth chapter I have concludes the topic.

I have tried my best to omit the errors but still if there is any then they are deeply regretted
& the feedbacks are most humbly welcome…

SOUMON NANDA
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CHAPTER-I

INTRODUCTION

The classification of statutes as mandatory and directory is useful in analyzing and solving the
problem of what effect should be given to their directions. But it must be kept in mind in what
sense the terms are used. There is a well-known distinction between a case where the directions of
the legislature are imperative and a case where they are directory. The real question in all such
cases is whether a thing has been ordered by the legislature to be done and what is the consequence
if it is not done. The general rule is that an absolute enactment must 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 a breach of them can be overlooked provided there is substantial compliance.
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. It is the duty of courts
of justice to try to get at the real intention of the Legislature by carefully attending to the whole
scope of the statute to be considered. The Supreme Court of Indian has pointed out on many
occasions that 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 form 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. In the case of statutes that are
said to be imperative, the court have decided that if it is not done, the whole thing fails and the
proceedings that follow upon it are all void. On the other hand, when the courts hold the provisions
to be directory, they say that although such provisions may not have been complied with, the
subsequent proceedings do not fail. No universal rule can be laid down, while construing statutes,
to determine whether mandatory enactments should be considered directory, or obligatory with an
implied nullification for disobedience. The Supreme Court of India has been stressing time and
again that the question whether 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 legislature by analyzing
the entire provisions of the enactment and the scheme underlying it1.
A provision in a statute is mandatory if the omission to follow it renders the proceeding to which
it relates illegal and void, while a provision is directory if its observance is not necessary to the
validity of the proceeding, and a statute may be mandatory in some respects and directory in
others2.

According to Crawford 3— “A statute, or one or more of its provisions, may be either mandatory
or directory. While usually in order to ascertain whether a statute is mandatory or directory, one
must apply the rules relating to the construction of statutes; yet it may be stated, as general rule,
that those whose provisions relate to the essence of the thing to be performed or to matters of
substance, are mandatory, and those which do not relate to the essence and whose compliance is
merely a matter of convenience rather than of substance, are directory”.

1
Raghubir Singh v Town Area Committee 1981 All LJ 130), HN Rishbud v State of Delhi AIR 1955 SC 196
2
Subrata v Union of India AIR 1986 Cal 198
3
Crawford, Statutory Construction, page 104
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CHAPTER-II

1. Legal Analysis of Mandatory and Directory Enactments under

Interpretation

The real question is

 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. 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 whereas non-
compliance of directory provisions would not furnish any cause of action or ground of challenge.

 Distinction Between Mandatory and Directory Enactments

It is one of the rules of construction that a provision is not mandatory unless non-
compliance 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.
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WHEN THE CONSEQUENCES ARE PROVIDEDD BY THE STATUTE

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.

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 (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 imperative .Similar will be
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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.

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 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.

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CHAPTER-III
Judicial Analysis

Justice G.P. Singh in his 'Principle of Statutory Interpretation', says:

"For ascertaining the real intention of the Legislature", points out SUBBARO, J. "the court may
consider inter alia, the nature and 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 circumstances, 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
the trivial consequences, that flow therefrom; and above all, whether the object of the legislation
will be defeated or furthered".

An act done in breach of mandatory provision is invalid. But if directory:

(i). should be substantially complied with to make the act valid.

(ii). the ones which even if not complied with have no effect on legality.

Non-compliance of directory provisions may or may not give rise to a penalty. When the statute
imposes a penalty but does not expressly provide nullification as a consequence of non-
compliance of the statutory injunction, it would be a question of construction whether the
legislature's intention is to lay down an absolute prohibition or just to make the offender liable
for the penalty.

Generally, statutory provisions which do not relate to essence of thing to be done and compliance
of which is a matter of convenience, rather than substance, are "directory". While mandatory are
provisions which relate to essence of thing to be done, i.e., matters of substance. So goes the
dissertation of Black's Law Dictionary. However, the narrative does not help through the haze
surrounding. What is a matter of substance? Who will decide whether a particular issue is of
substance? Respective parties will be within their forts to have contentious postures. Given a real
life situation, there may be conflicting responses. To one what may be substantial, may not be so
to the other. The controversy may have to be set at rest by a state functionary or by a court,
which in real life situation it is.

Case Analysis

In Bhavnagar University v Palitana Sugar Mill Private Limited4

4
AIR 2003 SC 511
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The Supreme Court observed that—

“We are not oblivious to the law that when a public functionary is required to do a certain thing
within a specified time, the same is ordinarily directory. But it is equally well settled that when
consequence for inaction on the part of the statutory authorities within such specified time is
expressly provided, it must be held to be imperative”.

Lila Gupta v Laxmi Nariain5,

The court was interpreting the proviso to section 15 of the Hindu Marriage Act 1955 (which was
repealed in 1976). The expression read as follows- “Provided that it shall not be lawful for the
respective parties to marry again unless at the date of such marriage at least one year has elapsed
form the date of the decree in the court of the first instance”. The court observed that when a
statue prohibits a certain thing being done thereby making it unlawful without providing for
consequence of the breach, it was not legitimate to say that such a thing when done was void
because that would be tantamount to saying that every unlawful act is void. On the basis of this
reasoning, the Court held that a marriage in violation of the proviso would not be a nullity,
irrespective of the use of the word ‘shall’ in the provision.

State of Orissa v Ganesh Chandra Jew6

The Supreme Court remarked that the mandatory character of the protection afforded to a public
servant is brought out by the expression ‘no court shall take cognizance of such offence except
with the previous sanction’ used in section 197 of the Code of Criminal Procedure 1974. The use
of the words ‘no’ and ‘shall’ make it abundantly clear that the bar on the exercise of power by
the court to take cognizance of any offence is absolute and complete.

Lord Cairns in the case of Julius v Lord Bishop of Oxford7

“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 conditions under 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 that power when called upon to do so”.

Siddheshwar Sahakari Sakhar Karkhana Ltd v CIT Kolhapur8

it was argued that the expression ‘may’ followed by the words ‘convert such deposits into shares
after repayment of loans etc’ provided in bye-law 61 A under the Maharashtra Co-operative
Societies Act 1960, connoted that the provision was only directory. The Court held that it would
be appropriate to read the expression ‘may’ as ‘shall’, observing that discretion is always

5
AIR 1978SC 1351
6
AIR 2004 SC 2179
7
1880 5 AC 214 HL
8
2004 12 SCC 1
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coupled with a duty and that a discretion cannot be sued to circumvent an obligation cast by law.
Conversely, the use of the term ‘shall’ may indicate the use in optional or permissive sense.

Keshav Chandra Joshi v Union of India9

the Supreme Court observed that under Rule 27 of the Uttar Pradesh Forest Service Rules 1952,
if the Governor is satisfied that the operation of any rule regarding conditions of service of the
members caused undue hardship in a particular case, he ‘may’ consult the Public Service
Commission notwithstanding anything contained in the rules and dispense with or relax the
requirement of the conditions of service and extend the necessary benefit as is expedient so as to
relieve hardship and to cause just and equitable results. The word ‘may’ has been used in the
context of discharge of statutory duty. The Governor is obligated to consult the Public Service
Commission. Therefore, the word ‘may’ must be construed as to mean ‘shall’ and it is mandatory
on the part of the Governor to consult the Commission before exempting or relaxing the
operation of the rule.

State of UP v Manbodhan Lal Srivastava10

Before disciplinary action was taken against the respondent, the State Public Service
Commission was consulted, but the explanation of the respondent was not sent to the
Commission before such consultation. The respondent contended that there was a violation of
Article 320 (3) of the Constitution. The Article provided—

“The State Public Service Commission, shall be consulted on all disciplinary matters affecting
a person serving the Government of a State in a civil capacity”

It was held that the provision was not mandatory and that it did not confer any right on a
public servant, so that, the absence of consultation or irregularity in it did not afford him a cause
of action. The following reason were given for the conclusion namely—

1. The proviso to the Article contemplates that the President of Governor may make regulations
specifying matters in which it shall not be necessary to consult a Public Service

Commission. If the provision of Article 320 were mandatory, the Constitution would not have
left it to the discretion of the Head of the Executive Government to undo those provisions by
making regulations to the contrary.

9
AIR 1991 SC 284
10
AIR 1957 SC 912
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2. The Government, when it consults the Commission, does it not by way of a mere formality,
but with a view to getting proper assistance in assessing the guilt or otherwise of the person
proceeded against and of the suitability and adequacy of the penalty sought to be imposed. But it
is clear that the requirement of consultation does not extend to making the advice of the
Commission binding on the Government.

3. Chapter II of Part XIV of the Constitution of India, containing Article 320 does not confer any
rights or privileges on an individual public servant , nor any constitutional guarantee of the
nature contained in Chapter I containing Article 311.

Conclusion

The question as to whether mandatory provisions contained in statutes should be considered

merely as directory or obligatory has often been considered in judicial decisions. In dealing with
the question no general or inflexible rule can be laid down. It is always a matter of trying to
determine the real intention of the legislature in using the imperative or mandatory words and
such intention can be gathered by a careful examination of the whole scope of the statute and the
object intended to be achieved by the particular provision containing the mandatory clause. If it
is held that the mandatory clause is obligatory, it inevitable follows that contravention of the said
clause implies the nullification so the contract. Generally, a mandatory provision is to be
construed strictly while a directory provision is to be construed liberally. There have been many
instances where the court has held that a substantial compliance with the statute or with the rules
framed there under is enough even if there be no literal compliance. Whether an enactment is
mandatory or directory depends on the scope and the object of the statute.

From the above discussion, the following rules regarding can be summarized regarding the
mandatory and directory statutes—

1. When the legislature used ‘must’ instead of ‘shall’ it uses a word which is most strongly
imperative.

2. In some cases the word ‘must’ or the word ‘shall’ may be substituted for the word ‘may’ but
only for the purpose of giving effect to the clear intention of the legislature.

3. Normally, however the word ‘may’ must be taken in it natural, that is, permissive sense and
not in its obligatory sense.

4. In matters of procedure, mandatory words may be construed as directory.

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5. ‘May and ‘shall’ are generally used in contradistinction to each other and normally should be
given their natural meaning especially when they occur in the same section. But in phrases like,
it “shall be lawful for the court’, ‘shall be liable to pay costs’ and “shall be liable to be forfeited’,
the meaning is not mandatory. The first expression means the court has discretion; the second
expression gives a discretion to the court to award costs or interest, and the third not that there
should be an absolute forfeiture but a liability to forfeiture which might or might not be enforced.

6. Similarly, it may happen that in an Act the word ‘may’ is used in such a way as to create a
duty that must be performed.
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Chapter IV

BIBILOGRAPY

Article-on-mandatory-and-directory-provisions by :Dr Sanjeev Kumar Tiwari

Associate Professor, Law department, The University of Burdwan

Crawford, Statutory Construction, page 104

Crawford, Statutory Construction, third edn, vol III p. 104

The Interpretation of Statute by Prof. T. Bhattacharya (Book)

https://fp.brecorder.com/2018/09/20180916408179

http://jurislawchamber.blogspot.com/2017/04/distinction-between-mandatory-and.html