Raza Buland Sugar Co Ltd. vs. The Municipal Board, Rampur

Raza Buland Sugar Co Ltd. vs. The Municipal Board, Rampur

[1965] 1 SCR 970

Key Words: mandatory, directory, non-compliance, object and purpose, shall, prejudice, legislative intent

Facts:

Rampur Municipality, by a special resolution, proposed to levy property tax on persons or a class or persons. S. 131(3) is divided into two parts. The first part lays down that the Board shall publish proposals and draft rules along with a notice inviting objections to the proposals or the draft rules so published within a fortnight from the publication of the notice (see Sch. III). The second part provides for the manner of publication and that manner is according to s. 94(3). Section 135(3) declared that a notification of the imposition of the tax under Sub-section (2) thereof shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act. Under Section 94(3), every resolution passed by the Board shall be published in a local Hindi Newspaper or in its absence by general or special order as may be directed by the State Government.

Issue: Whether publication as provided in s. 131(3) mandatory or directory.

Held:

In this case the Court in order to answer the first issue first noted at para 9 that-

“the question whether a particular provision of a statute was mandatory or directory cannot be resolved by laying down any general rule and it should depend upon the facts of each case for that purpose, the object of the statute in working out the provision is a determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from the provision or other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.”

The Court therefore looked into all the above mentioned factors in the light of the specific facts of this case to determine the first issue and observed at para 13-

“Further the purpose served by the publication of the proposals being to invite objections, in particular from the tax-payers, to the tax proposed to be levied on them, the legislature in its wisdom thought that compliance with this part of s. 131(3) would essentially carry out that purpose. In the circumstances if we are to hold that this part of s. 131(3) was merely directory, the whole purpose of the very elaborate procedure provided in Sections 131 to 135 for the imposition of tax would become meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided in the Act before a tax is imposed nugatory. We are therefore of opinion that this part of s. 131(3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed.”

we have no doubt that in the present case, in spite of s. 135(3), the legislature intended that there must be publication as provided in what we have called the first part of s. 131(3). We therefore hold that this part of s. 131(3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we see no serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory; on the other hand it will be unjust to tax-payers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of s. 131(3) is mandatory.

As regards Section 94(3), the same methodology was applied by the Court to determine if the provision is directory or mandatory. The Court observed at para 14 that-

“when the legislature provided for the manner of publication it did not intend that that manner should be mandatory. So long as publication is made in substantial compliance with the manner provided in s. 94(3), that would serve the purpose of the mandatory part of the section which provides for publication. It would therefore not be improper to hold that the manner of publication provided in s. 94(3) is directory and so long as there is substantial compliance with that the purpose of the mandatory part of s. 131(3) would be served.

Holding that the requirement under the impugned provision (Section 94(3)) was merely directory and substantial compliance was adhered to, the Court then went into the factual matrix of this case and noted at para 15 that-

“It may be accepted that there has not been strict compliance with the provisions of s. 94(3) inasmuch as the publication has not been made in a local paper published in Hindi. We must however point out that if s. 94(3) is interpreted literally, all that it requires is that the publication must be in a local paper and that local paper must be published in Hindi, though the actual publication of the resolution may not be in Hindi. That does not seem to us to be the real meaning of s. 94(3) and what it substantially requires is that the publication should be in Hindi in a local paper, and if that is done that would be compliance with s. 94(3). Now what has happened in this case is that the publication has been made in a local paper which on the evidence seems to have good circulation in Rampur and the actual resolution has been published in Hindi, though the paper itself is published in Urdu. It seems to us therefore that there is substantial compliance with the provisions of s. 94(3) in this case, even though there is a technical defect inasmuch as the local paper in which the publication has been made is published in Urdu and not in Hindi. But what has happened in this case is in our opinion substantial compliance with s. 94(3) and as we have held that provision to be directory it must be held that s. 131(3) has been complied with.”

Conclusion:

  • Section 131(3) is mandatory based on language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature.
  • Section 94(3) is directory. As long as compliance is made in substantial part and it serves the purpose of the mandatory part of a statutory provision, it would not be improper to hold the provision as directory.
  • Since the mandatory part of s. 131(3) has been complied with and its directory part has been substantially complied with, S. 135(3) will apply and the objection that the tax is not validly imposed must fail.
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