Mandatory and Directory Statutes

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MANDATORY AND DIRECTORY STATUTES

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 fail2.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.

1 R v. Lincolnshire Appeal Tribunal [1917] 1 KB 12 Howard v. Bordington [1877] 2 PD 2033 Liverpool Bank v. Turner(1860) 30 LJ 379

MANDATORY AND DIRECTORY PROVISION

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.

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 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.

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

is no doubt that the word ‘may’ generally does not mean ‘must’ or ‘shall’. But it is well 6 J.S.Kulkarni v. M.D.Shroff AIR 1988 SC 18177 J. Bhatacharya v. State of M.P AIR 1976 SC 726

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 240-

241). 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