Har Shankar & Ors. Etc. Etc vs The Dy. Excise & Taxation Commr. & Ors on 21 January, 1975
"It has been held by a Constitution Bench of this Court in Har Shankar v. Deputy Excise and Taxation Commissioner, , that "(T) he writ jurisdiction of High Court under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred." At the same time, it was observed that the licencees are not precluded from seeking to enforce the statutory provisions governing the contract. It must, however, be remembered that we are dealing with parties to a contract, which is a business transaction, no doubt governed by statutory provisions. While examining complaints of violation of statutory rules and conditions, it must be remembered that violations of each and every provision does not furnish a ground for the Court to interfere. The provision may be a directory one or a mandatory one. In the case of directory provisions, substantial compliance would be enough. Unless it is established that violation of a directory provision, has resulting in loss and\or prejudice to the party, no interference is warranted. Even in the case of violation of a mandatory provision, interference does not follow as a matter of course. A mandatory provision conceived in the interest of a party can be waived by that party, whereas a mandatory provision conceived in the interest of public cannot be waived by him. In other words, wherever a complaint of violation of a mandatory provision is made, the Court should enquire-in whose interest is the provision conceived. If it is not conceived in the interest of public, questions of
waiver and\or acquiescence may arise-subject, of course, to the pleadings of the parties.