Madras High Court
P.N. Chockalingam Pillai vs A. Natarajan And Ors. on 13 September, 2001
Equivalent citations: (2001)3MLJ661
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT P. Sathasivam, J.
1. The writ appeal has been filed against the order of the learned single Judge dated 11.6.1996 allowing the Writ Petition No. 16164 of 1988.
2. The third respondent in the said writ petition is the appellant. For the convenience, we shall refer the parties as described in W.P.No. 16164 of 1988.
3. The first respondent herein- writ petitioner, aggrieved by the order of the Government in G.O.Ms.No. 1656, Revenue Department, dated 17.12.1985, filed W.P.No. 16164 of 1988 on various grounds. The case of the petitioner is briefly stated hereunder:
He purchased the property bearing T.S.No. 4/1, Virahanur Village in 1970. At the time of purchase, one Chockalingam Pillai- third respondent therein and appellant in the present appeal was a tenant in the property. The said Chockalingam Pillai was carrying on rice mill business. He caused a legal notice for eviction from the premises. The petitioner also filed suit in O.S.No. 30 of 1981 before the District Munsif Court, Madurai. The said Chockalingam Pillai resisted the suit, contending that he had put up superstructure and he is entitled to the benefits of the Tamil Nadu City Tenants Protection Act, 1921 (in short "the Act"). He also filed O.P.No. 10 of 1981 before the District Munsif Court. Both the suit and O.P. were tried together and by a common order, the learned District Munsif, decreed the suit and dismissed the O.P. filed by Chockalingam Pillai. Appeals were preferred in A.S.No. 132 of 1984 and C.M.A.No. 30 of 1984 before the Sub Court, Madurai. The appeals were also dismissed by the learned Subordinate Judge. Chockalingam Pillai preferred second appeal in S.A.No. 96 of 1986 and C.R.P.No. 235 of 1986 on the file of this Court. By that time, the Revenue Department, Government of Tamil Nadu had published impugned G.O.No. 1656, Revenue Department, dated 17.12.1985, extending the provisions of Tamil Nadu City Tenants Protection Act to Virahanur Village with effect from the date of notification in the gazette. This Court, by order dated 9.11.1988, has remanded the matter to the District Munsif, Madurai to consider the matter in the light of the above, Government Order. The said Government Order is untenable and mala fide. The Act was extended to Virahanur Village, whereas it has not been extended to another village, namely Travathanallur village, which lies in between Madurai City and Virahanur Village. It is arbitrary, irrational and illogical to extend the Act to one Village which is farther, omitting one which is nearer to City of Madurai. The respondents have not properly taken into consideration all the above mentioned criteria and have arbitrarily extended the Act to Virahanur.
4. The Deputy Secretary to Government, Revenue Department has filed a counter affidavit disputing various averments made by the writ petitioner. It is stated that in Virahanur Village many people have taken the vacant site on lease basis and constructed buildings, installed machinery and running several industries. If these lessees are got evicted from the said lease hold lands, the lessees have to demolish the costly buildings and handover the vacant sites to the owners, which may result in the ruining of several businessmen and industrialists. So, these people thought that the extension of the act as amended from time to time to Virahanur village will protect the interest of all the lessees in Virahanur village. Therefore, one Chockalingam Pillai, President of Village Welfare Association of Virahanur has sent a petition to the Government in 1981 itself requesting the Government to extend the said Act to Virahanur Village. The Government have passed the impugned order, extending the provisions of the Act to Virahanur Village. This order safeguards the interest of lessees. In view of the Government decision extending the said Act to Virahanur village, the writ petitioner was not able to evict the tenants. It is stated that the State Government may by a notification extend the said Act to any village within 8 Kms., from the Corporation limits as per the Section 2(b)(iii) of the said Act. In the instant case, the Act has been extended to Virahanur village, which is located at a distance of 1 km, from Madurai Corporation limits. The State Government has been authorised to issue notification in pursuance of the provisions available in the Act. The District Officials after careful enquiries and examination of the need, which warrants the extension of the Act to Virahanur village, have reported the case to the Government and the Government after careful consideration of the report of the District Officials, have issued the impugned order extending the Act to Virahanur. .
5. The third respondent, namely Chockalingam Pillai has also filed a counter affidavit similar to one filed by the Government.
6. The writ petitioner filed a reply affidavit, wherein it is stated that the impugned Government order has not been placed before the Legislature as required under Section 1(6) of the Act, hence the Government Order is invalid in law. He was not given any opportunity to make his submissions and thus the Government Order is also hit by audi alterum partem.
7. Before the learned Judge, among the several contentions, it was mainly contended that the said Government order issued by the Government extending the benefit of the Act has not been placed before the Table of the Tamil Nadu Legislature. According to him Section 1(6) of the Act is a mandatory in nature. Failure to place before the Tamil Nadu Legislature vitiates the entire proceedings. The learned Judge after perusing the records and after considering the arguments at length, has concluded that,
(i) no material to show that the Government acted mala fide in extending the provisions of the Act to Virahanur village;
(ii) The discretionary power of the Government has been properly exercised in the present case;
(iii) Section 1(6) of the Act is mandatory provision, which has not been complied with by the Government accordingly quashed the impugned order.
Against the said order of the learned Judge, the third respondent therein has filed the present writ appeal.
8. Heard the learned senior counsel for the appellant and learned Counsel for the respondents.
9. Before considering the main question, it is to be noted that though the argument was advanced before the learned Judge stating that there is no bona fide in extending the provisions of the Act to Virahanur village, the learned Judge after going through the original records produced by the learned Government Pleader, came to a conclusion that there is no material for such allegation. In view of the factual finding by the learned Judge and in the absence of serious argument, we hereby confirm the conclusion of the learned Judge and hold that there is no substance in holding that the Government acted with malicious intention or improper motive.
10. Likewise, the other contention that the Government should not have extended the benefit of the Act to Virahanur village without extending the same to other village, namely Travathanallur village, the Government in their counter affidavit explained that a portion of Travathanallur has already included in the Corporation limits and this area was already covered under the provisions of the said Act. It is also stated that the area of Travathanallur village, which was not included in the Corporation limits, is not a habitation area and there was no representation to the Government from the public of Travathanallur that the said Act should be extended to their village.
11. On the other hand, there was a repeated representation from the public, for inclusion of Virahanur village and the Government after careful consideration of the various factors, have taken a decision and issued an order extending the said Act to Virahanur village. Inasmuch as the discretionary power of the Government has been properly exercised and the conditions prescribed under Sections (1) and (2) have been duly complied with, we are in agreement with the conclusion of the learned Judge rejecting the said contention.
12. As stated earlier, Mr. K. Alagiriswami, learned senior counsel appearing for the appellant mainly contended that, Section 1(6) of the Act is only directory and in the absence of specific provision regarding the consequence of non-compliance of Sub-section (6), according to him the impugned order cannot be faulted with.
13. On the other hand, Mr. R. Subramaniam, learned Counsel appearing for the first respondent in the appeal and the writ petitioner would contend that, in the light of the object of the enactment and the language used in Sub-section (6) of Section 1 of the Act, the notification has to be placed and approved by the Legislature within the time stipulated therein. In other words, according to him compliance of Section 1(6) of the Act is mandatory and failure to do so vitiates the entire proceedings.
14. In order to appreciate the rival contentions, it is useful to refer the preamble and object of the Act. The Tamil Nadu City Tenants Protection Act, 1921 is enacted to give protection to certain classes of tenants in Municipal Towns and Townships and adjoining areas in the State of Tamil Nadu. The object of the Act is to give protection against the eviction/tenants, who in Municipal Towns, Township and adjoining areas in the State of Tamil Nadu have constructed buildings on others' lands, so long as they pay a fair rent for the land. Among the other provisions, we are concerned with Section 1(6) of the Act. .
1(6): Every notification issued under Sub-section (2) or Sub-section (4) shall be laid before the Legislature, if it is sitting, as soon as may be after the issue of the notification, and if it is not sitting within seven days of its reassembly, and the State Government shall seek the approval of the Legislature to the notification by a resolution moved within a period of fifteen days beginning with the day on which the notification is so laid before it; and if the legislature makes any modification in the notification or directs that the notification should cease to have effect, the notification shall thereafter have effect only in such modified form or be of no effect, as the case may be, but without prejudice to the validity of anything previously done thereunder.
Admittedly, the notification extending the provisions of the Act to Virahanur Village has not been placed before the Legislature as provided in Sub-section (6) of Section 1 of the Act. Mr. Alagiriswami, learned senior counsel for the appellant after taking us through various decisions would contend that the said provision is only a directory and failure to place the notification in the Table of the Assembly does not vitiate the effect of the notification.
15. Now, we shall consider the decisions referred to by him. First decision relied on by him is the case of Jan Mohd. v. State of Gujarat . He very much pressed into service the following conclusion of their Lordships.
18. Finally, the validity of the rules framed under the Bombay Act 22 of 1939 was canvassed. By Section 26(1) of the Bombay Act the State Government was authorised to make rules for the purpose of carrying out the provisions of the Act. It was provided by Sub-section (5) that the rules made under Section 26 shall be laid before each of the Houses of the Provincial Legislature at the session thereof next following and shall be liable to be modified or rescinded by a resolution in which both Houses concur and such rules shall, after notification in the Official Gazette, be deemed to have been modified or rescinded accordingly. It was urged by the petitioner that the rules framed under the Bombay Act 22 of 1939 were not placed before the Legislative Assembly or the Legislative Council at the first session and therefore they had no legal validity. The rules under Act 22 of 1939 were framed by the Provincial Government of Bombay in 1941. At that time there was no legislature in session, the Legislature having been suspended during the emergency arising out of World War II. The session of the Bombay Legislative Assembly was convened for the first time after 1941 on May 20, 1946 and that session was prorogued on May 24, 1946. The second session of the Bombay Legislative Assembly was convened on July 15, 1946 and that of the Bombay Legislative Council on September 3, 1946 and the rules were placed on the Assembly Table in the second session before the Legislative Assembly on September 2, 1946 and before the Legislative Council on September 13, 1946. Section 26(5) of Bombay Act 22 of 1939 does not prescribe that the rules acquired validity only from the date on which they were placed before the Houses of Legislature. The rules are valid from the date on which they are made under Section 26(1). It is true that the legislature has prescribed that the rules shall be placed before the Houses of Legislature, but failure to place the rules before the Houses of Legislature does not affect the validity of the rules, merely because they have not been placed before the Houses of the Legislature. Granting that the provisions of Sub-section (5) of Section 26 by reason of the failure to place the rules before the Houses of Legislature were violate, we are of the view that Sub-section (5) of Section 26 having regard to the purposes for which it is made, and in the context in which it occurs, cannot be regarded as mandatory. The rules have been in operation since the year 1941 and by virtue of Section 64 of the Gujarat Act 20 of 1964 they continue to remain in operation.
16. Though in the said decision their Lordships have held that, failure to place the rules before the Houses of Legislature does not affect the validity of the rules merely because they have not been placed before the Houses of Legislature, it is seen that, later it was placed he lore the Legislature. Under those circumstances the Court has held that, it was not mandatory.
17. The next decision referred to by him is the case of Atlas Cycle Industries Ltd. v. State of Haryana (1979)2 S.C.C. 196. In that decision their Lordships have held that, it is well to remember at the outset that use of the word shall is not conclusive and decisive of the matter and the Court has to ascertain the true intention of the Legislature, which is the determining factor and that must be done by looking carefully to the whole scope, nature and design of the statute. The two considerations for regarding a provision as directory are:
(1) absence of any provision for the contingency of a particular provision not being complied with or followed, and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provision.
Alter holding so, in the absence of any provision for the consequences of not being complied with or followed, their Lordships have held, ...it inevitably follows that the Legislature never intended that non-compliance with the requirement of laying as envisaged by Sub-section (6) of Section 3 of the Act should render the order void. Consequently non laying of the aforesaid notification fixing the maximum selling prices of various categories of iron and steel including the commodity in question before both Houses of Parliament cannot result in nullification of the notification...
Inasmuch as our enactment, namely Section 1(6) of the Act is very specific, we are of the opinion that the provisions of the said Section is mandatory and not directory as claimed. Accordingly, the ratio of the said decision cannot be applied.
18. In the case of V.C. Shukla v. State (Delhi Administration) 1980 S.C.C. (Supp.)249, after referring Section 5 of the Special Courts Act, 1979, their Lordships have observed that, as we read the Section, we are clearly of the opinion that its provisions are purely directory and not mandatory so that if the conditions mentioned in it are not fulfilled the declaration would not be vitiated. It is to be noted that the Section does not say that until a declaration is placed before the two Houses of Parliament it shall not be deemed to be effective, nor does the Section intend that any consequence would result from its non-compliance...
Considering the language used in our enactment, i.e., Sub-section (6) of Section 1 of the Act, we are of the view that the present decision will not in any way help the appellant.
19. The last decision referred to by Mr. K. Alagiriswami, learned senior counsel is the case of D.G. Bhokta v. State of Bihar . It was contended before the Division Bench of the Patna High Court that the impugned order that was made on 28.09.1974, has not been laid before the Parliament as required under the provisions of Essential Commodities Act and therefore it must be struck down. Rejecting the said contention, the Bench has concluded that, it is not possible to accept this argument as in our opinion the provisions contained in Section 3(6) is simply directory in its nature and not mandatory. It applies only to orders made by the Central Government or any of its officers or authorities whose orders shall be laid before Parliament, and not the orders made by the State Government, or authorities subordinate to it. The argument, therefore, is not available to the petitioner on the face of the provision itself. Apart from this, no consequences have been indicated in this provision which are to follow on the failure of the order being not laid before the Parliament. Even if it could be held that Section 3(6) is applicable to an order made by a State Government, its violation would not render the impugned order invalid. We, therefore, reject the first contention. For the same reasons as mentioned above, particularly in the light of the language used and several in builts made in Sub-section (6) of Section 1 of the Act, we are of the opinion that the said decision is not helpful to the appellant's case.
20. Now, we shall consider the decisions referred to by the learned Counsel appearing for the first respondent- writ petitioner. In the case of Khub Chand v. State of Rajasthan , it is held that, though term "shall" is construed as "may" under certain circumstances, in its ordinary significance, the term is mandatory and the same shall be interpreted as mandatory unless such interpretation leads to some absurd or inconvenient consequence or be at variance with intent of legislature to be collected from other parts of the Act.
21. In the case of In re. Presidential Election 1974 A.I.R. 1974 S.C. 1682, seven Judges Bench of the Hon'ble Supreme Court has held,
13. In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the act will decide whether the provision is directory or mandatory. It is the duty of the Courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. "The Key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole. (See: Brett v. Brett, (1826)3 Addams 210 at 216).
22. In the case of Govindlal v. The Agriculture Produce Market Committee , the following discussion with regard to the words "shall" and "may" are relevant.
11. Maxwell, Crawford and Craies abound in illustrations where the words "shall" and "may" are treated as interchangeable. "Shall be liable to pay interest" does not mean "must be made liable to pay interest", and "may not drive on the wrong side of the road" must mean "shall not drive on the wrong side of the road". But the problem which the use of the language of command posses is: Does the legislature intend that its command shall at all events be performed? Or is it enough to comply with the command in substance? In other words, the question is: is the provision mandatory or directory?
12. Plainly, "shall" must normally be construed to mean "shall and not "may", for the distinction between the two is fundamental. Granting the application of mind there is little or no chance that one who intends to leave a lee-way will use the language of command in the performance of an Act. But since, even lesser directions are occasionally clothed in words of authority, it becomes necessary to delve deeper and ascertain the true meaning lying behind mere words.
13. Crawford on "Statutory Construction" (Edn. 1940, Article 261, p.516) sets out the following passage from an American case approvingly: "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 from 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." Thus, the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word "shall" or "may" is not conclusive on the question where the particular requirement of law is mandatory or directory. But the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as pre-empting. One of the fundamental rules of interpretation is that if the words of a statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature Shriram v. State of Bombay . Section 6(1) of the Act provides in terms, plain and precise, that a notification issued under the Section shall also be published in Gujarati in a newspaper. The word "also" provides an important clue to the intention of the legislature because having provided that the. notification shall be published in the Official Gazette, Section 6(1) goes on to say that the notification shall also be published in Gujarati in a newspaper. The additional mode of publication prescribed by law must in the absence of anything to the contrary appearing from the context of the provision or its object, be assumed to have a meaning, and a purpose. In Khub Chand v. State of Rajasthan , it was observed that, "the term shall in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations." The same principle was expressed thus in Haridwar Singh v. Begum Sumbrui , "several tests have be en propounded in decided cases for determining the question whether a provision in a statute, or a rule is mandatory or directory. No universal rule can be laid down on this - matter. In each case one must look to the subject matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured." Recently in the Presential Election case , the learned Chief Justice speaking on behalf of a seven Judge Bench observed:
In determining the question whether a provision is mandatory or directory, the subject-matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the Courts to get at the real intention of the legislature by carefully attending to the whole scope of the provisions to be constured." The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.
23. In the case of Dinkar Anna Patil and Anr. v. State of Maharashtra and Ors. , with reference to the words 'may' used in Maharashtra Sales Tax Officers Class I (Recruitment) Rules, 1982, considering the object and other provisions, their Lordships have held that the word "may" used therein must mean "shall".
24. It is well-settled that a statute is to be construed according to the intent of the Legislature that may edict and the duty of the Court is to act on the true intention of the Legislature. If the statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of the Legislature, which is also referred to as the legal meaning of the statutory provision. The text of the Statute has to be taken as a whole for ascertaining the purpose of the statute as well as to ascertain the intention behind the statutory provision. On the consideration of the above statutory provision, mainly Sub-section (6) of Section 1, we find that only one interpretation is permissible and in terms of the said statutory provision, we hold that the placing the notification before the Table of Legislature in terms of Sub-section (6) of Section 1 of the Act is a mandatory one.
25. Maxwell on the interpretation of statutes it is stated that, a statute has been defined simply as "the will of the legislature". The function of a Court is to interpret that document "according to the intent of them that made it". From that function the Court may not resile, however ambiguous or difficult of application the words of an Act of Parliament may be, the Court is bound to endeavour to place some meaning upon them. The rule of construction is to intend the Legislature to have meant what they have actually expressed." The object of all interpretation is to discover the intention of Parliament, "but the intention of Parliament must be deducted from the language used, "for "it is well-accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law." In the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified. Parliament deliberately set out to change the law and we should ascertain the effect of the changes by considering the words actually sued. Words are to be construed in accordance with intention. With those words the Maxwell on the interpretation of statutes, if we read Sub-section (6) of Section 1 of the Act once again, we are of the opinion that there is considerable force in the contention that Section 1 of Sub-section (6) is not directly, but mandatory.
26. There is no dispute that, Sub-section (6) of Section 1 of the Act was introduced by Amendment Act 13 of 1960. In other words, this provision was not there in the original Act. With the definite purpose alone the Legislature has introduced and inserted the provision. As rightly observed by the learned Judge, sub-section is very specific. It is clear that, every notification issued under Sub-section (2) or (4) shall be laid before the Legislature, if it is sitting, as soon as may be after the issue of notification, and if it is not sitting within 7 days of its reassembly, and the State Government shall seek the approval of the Legislature to the notification by a resolution moved within a period of 15 days. As rightly observed, if the intention of the Legislature in introducing the provision is not mandatory, it would have simply said, as far as possible it would be placed before the Legislature. On the other hand, Sub-section (6) of Section 1 of the Act is very specific, namely if the Legislature is not sitting, then it has to be placed within 7 days of its reassembly and the State Government shall seek approval of the Legislature to the notification. To put it clear that, it is not a mere empty formality but the provision has been inserted with a specific purpose, which cannot be by-passed.
27. It is also relevant to note the latter portion of Sub-section (6), which enables the Legislature to modify the notification or issue direction to the effect that the notification ceased to have effect. It is clear that, when the notification comes up for approval before them, it would be open to the Legislature to make suitable modification in the notification or even issue direction stating that the notification ceased to have any effect. Further, if Legislature makes any modification or passes any order, the notification thereafter have effect only in such modified form or be of no effect, as the case may be. In our case even though notification was issued, admittedly it has not been placed before the Legislature, as required under Sub-section (6) of Section 1 of the Act. We have already held that inserting Sub-section (6) of Section 1 of the Act is not a fatal exercise of power by the Government. We are also satisfied that Sub-section (6) of Section 1 contains all the necessary formalities to be strictly followed by the State Government and it is self contained one. In order to have complete control or check over the notification issued under Sub-sections (2) and (4) of Section 1 of the Act, Sub-section (6) provides to lay the said notification before the Legislature. Accordingly, so long the notification issued under Sub-section (2) or (4) of Section 1 of the Act are not placed before the Legislature, they cannot be valid notifications. It is necessary to make the notifications valid and effect is to lay before the Legislature as provided under Sub-section (6) of Section 1 of the Act.
28. Considering the word "shall" used, the circumstance that the Legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as pre-emptory. The term "shall" in its ordinary significance is mandatory and the Court shall ordinarily give that interpretation to that term unless such interpretation leads to absurd or inconvenient or be at variance with the intent of the Legislature to be collected from the other parts of the Act. We have already referred to the object and intention of the main enactment as well as insertion of Sub-section (6). We are in the agreement with the conclusion of the learned Judge that the provisions of the statute conferring on the State Government to lay the notification before the Legislature should be strictly followed. We hold that the provision, namely Sub-section (6) in Section 1 is mandatory and not directory.
29. In the light of what is stated above, we are unable to accept the argument of the learned senior counsel for the appellant and we are in agreement with the reasoning of the learned Judge and we do not find any merit in the appeal, consequently the same is dismissed. However, there shall be no order as to costs. In view of the dismissal of the main appeal, the connected C.M.P., is also dismissed.