Smt. Bachahan Devi & Anr Vs. Nagar Nigam, Gorakhpur
& Anr [2008] Insc 139 (5 February 2008)
Dr. Arijit Pasayat & Lokeshwar Singh Panta
CIVIL APPEAL NO 992 OF 2008 (Arising out of
S.L.P (C) No. 24576 of 2004) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order
passed by learned Single Judge of the Allahabad High Court setting aside the
order passed by the First Appellate Court, and directing it to take decision on
merit.
3. Essential facts are as follows:
Respondent no.1 as plaintiff no.1 along with one
Gabbu filed Suit No.23 of 1960 for declaration that the land in dispute belongs
to it and the defendants have no concern with the property. Assertion was that
the property in question had vested in it in view of the notification issued by
the State Government after abolition of Zamindari. The suit was decreed on
17.1.1972. The trial court granted relief of permanent injunction in respect of
suit property as described in the Schedule and also declared that plaintiff
no.1 is the owner of the said plot. The decree was challenged by way of appeal
by the appellants. During the pendency of the appeal, an application to amend
the written statement was allowed by the Appellate Court. Thereafter certain
additional issues were framed. The Appellate Court was of the view since the
written statement had been amended during the pendency of the appeal, the
matter should be remanded to the trial court for fresh decision. Challenging
the order passed, an appeal was filed by respondent no.1 before the High Court.
Stand of the plaintiff no.1 before the High Court was that the Appellate Court
committed an illegality in remanding the matter for fresh consideration. It was
submitted that the Appellate Court could have exercised its discretion under
Order XLI Rule 25 of the Code of Civil Procedure, 1908 (in short 'the Code')
and it could have recorded evidence itself. It was the opinion that the same
was necessary for disposal of the appeal.
4. Stand of the defendants on the contrary was
that two courses were available to the Appellate Court. First was to pass the
remand order after setting aside the findings. The said course has been
adopted. The other course was to call for findings on the issue by remitting it
to the trial court. The High Court was of the view that the order of remand
should be passed rarely and in the instant case that was not the case.
That being so, the High Court set aside the
order of the First Appellant Court and the matter was remanded to it for
decision of the appeal on merit.
5. Learned counsel for the appellant submitted
that the true scope and ambit of order XLI Rule 25 has been improperly pressed
into service. In the background of the factual position, the order of the High
Court cannot be maintained. The High Court, however, noted that if the
Appellate Court is of the opinion that the evidence is insufficient, the matter
may be remanded to the trial court for recording evidence in terms of Order XLI
Rule 25 of the Code.
6. In response, learned counsel for the respondent
submitted that it will not be in the interest of the parties to go on
litigating and for that purpose the only course which was available has been
adopted. Strong reliance was placed on a decision of this Court in Pasupuleti Venkateswarlu
v. The Motor and General Traders (1975 (1) SCC 770).
7. Order XLI Rule 25 of the Code reads as
follows:
"ORDER XLI: APPEALS FROM ORIGINAL DECREES
25. Where Appellate Court may frame issues and
refer them for trial to Court whose decree appealed from.--Where the Court from
whose decree the appeal is preferred has omitted to frame or try any issue, or
to determine any question of fact, which appears to the Appellate Court
essential to the right decision of the suit upon the merits, the Appellate
Court may, if necessary, frame issues, and refer the same for trial to the
Court from whose decree the appeal is preferred, and in such case shall direct
such Court to take the additional evidence required; and such Court shall
proceed to try such issues, and shall return the evidence to the Appellate
Court together with its findings thereon and the reasons therefor [within such
time as may be fixed by the Appellate Court or extended by it from time to
time]."
8. There is no scope for any doubt that in a
suit as well as the first appeal all disputed facts are open for decision. A
point of fact is not to be decided in second appeal where only a substantial
question of law is to be looked into. There is some amount of controversy as to
whether the provisions are mandatory, notwithstanding the fact that the word
'may' has been used. The First Appellate Court is the last Court of facts.
9 Under Order XLI Rule 25, if it appears to the
Appellate Court that any fact essential for the decision in the suit was to be
determined, it could frame an issue on the point and refer the same for trial,
to the Court from whose decree the appeal is preferred and in such case, shall
direct such court to take additional evidence required. The order of remand
should not be passed as a matter of routine. The First Appellate Court which
has the power to analyse the factual position can decide the issue and the
additional issues. In the instant case the First Appellate Court, inter alia,
observed as follows:
"As such, it would not be proper for the
first Appellate Court in such matter to itself record the evidence and to give
its findings in regard to newly created issues. The Hon'ble High Court has also
held that in the present matter under the provision of Order 41 Rule 25 of
Civil Procedure Code, becomes mandatory (shall) though in this provision, the
word 'may' has been used. No doubt in the present matter also the Appellate
Court has framed 6 additional issues which are legal in nature and also
factual, with the result if the Appellate Court gives its findings relating to
said legal and factual issues after itself recording (receiving) evidence then
the aggrieved party would be prevented from his right of filing first appeal.
Accordingly, the aforesaid ratio laid down by the Hon'ble High Court is fully applicable
in the present matter."
10 A bare reading of the provision makes it
clear that the same comes into operation when the Court, from whose decree the
appeal is preferred, has omitted to frame or try and issue, or to determine any
question of fact which appears to the appellate court essential for the right
decision of the suit upon the merits. In order to bring in application of Order
XLI Rule 25 the appellate court must come to a conclusion that the lower court
has omitted to frame issues and/or has failed to determine any question of fact
which in the opinion of the appellate court are essential for the right
decision of the suit on merits. Once the appellate court comes to such a
conclusion it may, if necessary, frame the issues and refer the same to the
trial court. In other words there is no compulsion on the part of the appellate
Court to do so. This is clear from the use of the expression 'may'. But the
further question that arises is whether in such a case the appellate court is
bound to direct the trial court to take additional evidence required.
This is a mandatory requirement as is evident
from the provision itself because it provides that the lower court shall
proceed to try such case and shall return the evidence to the appellate court together
with findings therein and the reasons therefor. As noted above, the provision
becomes operative when the appellate court comes to the conclusion about the
omission on the part of the lower court to frame or try any issue. Once the
appellate court directs the lower court to do so, it is incumbent upon the
trial court to take additional evidence required. As has been rightly contended
by learned counsel for the appellant, there may be cases where additional
evidence may not be required. But where the additional evidence is required,
then the lower court has to return the evidence so recorded to the appellate
court together with the findings thereon and the reasons therefor. Requirement
for recording the finding of facts and the reasons disclosed from the facts is
because the appellate court at the first instance has come to the conclusion
that the lower court has omitted to frame or try any issue or to determine any
question of fact material for the right decision of the suit on merits. It has
to be noted that where a finding is called for on the basis of certain issues
framed by the appellate court, the appeal is not disposed of either in whole or
in part. Therefore the parties cannot be barred from arguing the whole appeal
after the findings are received from the court of the first instance. This
position was highlighted in Gogula Gurumurthy and Others v. Kurimeti Ayyappa
(1975(4) SCC 458), where it was inter-alia observed in para 5 as follows:
"We consider that when a finding is called
for on the basis of certain issues framed by the appellate Court the appeal is
not disposed of either in whole or in part. Therefore the parties cannot be
barred from arguing the whole appeal after the findings are received from the
court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat
Narain Shukul (AIR 1923 All 384)."
11. The delicate question that remains to be
examined is what is the position in law when both the expression
"shall" and "may" are used in the same provision.
12. Mere use of word 'may' or 'shall' is not
conclusive. The question whether a particular provision of a statute is
directory or mandatory cannot be resolved by laying down any general rule of
universal application. Such controversy has to be decided by ascertaining the intention
of the Legislature and not by looking at the language in which the provision is
clothed. And for finding out the legislative intent, the Court must examine the
scheme of the Act, purpose and object underlying the provision, consequences
likely to ensue or inconvenience likely to result if the provision is read one
way or the other and many more considerations relevant to the issue.
13. Several statutes confer power on authorities
and officers to be exercised by them at their discretion. The power is in
permissive language, such as, 'it may be lawful', 'it may be permissible', 'it
may be open to do', etc. In certain circumstances, however, such power is
'coupled with duty' and must be exercised.
14. More than a century ago, in Baker, Re,
(1890) 44 Ch D 262, Cotton, L.J. stated;
I think that great misconception is caused by
saying that in some cases 'may' means 'must'. It never can mean 'must', so long
as the English language retains its meaning; but it gives a power, and then it
may be question in what cases, where a Judge has a power given by him by the
word 'may', it becomes his duty to exercise it.
(emphasis supplied)
15. In the leading case of Julius v. Lord Bishop
of Oxford (1880) 5 AC 214:49 LJ
QB 580:(1874-80) All ER Rep 43 (HL), the Bishop was empowered to issue a
commission of inquiry in case of alleged misconduct by a clergyman, either on
an application by someone or suo motu. The question was whether the Bishop had
right to refuse commission when an application was made. The House of Lords
held that the Bishop had discretion to act pursuant to the complaint and no
mandatory duty was imposed on him.
16. Earl Cairns, L.C., however, made the
following remarkable and oft-quoted observations:
"The words 'it shall be lawful' are not
equivocal. They are plain and unambiguous.
They are words merely making that legal and
possible which there would otherwise be no right or authority to do. They
confer a faculty or power and they do not of themselves do more than confer a
faculty or power. But 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 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."
17. Explaining the doctrine of power coupled
with duty, de Smith, ('Judicial Review of Administrative Action', 1995;
pp.300-01) states:
"Sometimes the question before a court is
whether words which apparently confer a discretion are instead to be
interpreted as imposing duty. Such words as 'may' and 'it shall be lawful' are
prima facie to be construed as permissive, not imperative. Exceptionally,
however, they may be construed as imposing a duty to act, and even a duty to
act in one particular manner."
(emphasis supplied)
18. Wade also says (Wade & Forsyth;
'Administrative Law:
9th Edn.): p.233):
"The hallmark of discretionary power is permissive
language using words such as 'may' or 'it shall be lawful', as opposed to
obligatory language such as 'shall'. But this simple distinction is not always
a sure guide, for there have been many decisions in which permissive language
has been construed as obligatory.
This is not so much because one form of words is
interpreted to mean its opposite, as because the power conferred is, in the
circumstances, prescribed by the Act, coupled with a duty to exercise it in a
proper case."
(emphasis supplied)
19. In the leading case of Padfield v. Minister
of Agriculture, Fisheries & Food 1968 AC 997 : (1968) 1 All ER 694 : (1968)
2 WLR 924 (HL), the relevant Act provided for the reference of a complaint to a
committee of investigation 'if the Minister so directs'. The Minister refused
to act on a complaint. It was held that the Minister was required to act on a
complaint in absence of good and relevant reasons to the contrary.
20. Likewise, it was held that the licensing
authorities were bound to renew licences of cab drivers if the prescribed
procedural requirements had been complied with [R.v. Metropolitan Police
Commissioner (1911) 2 QB 1131]. Similarly, local authorities were held bound to
approve building plans if they were in conformity with bye-laws [R.V. Nescastle-upon-
Tyne Corporation (1889) 60 LT 963]. Again, the court was required to pass a
decree for possession in favour of a landlord, if the relevant grounds existed
[Ganpat Ladha v. Shashikant (1978 (2) SCC 573).
21. In Alcock v. Chief Revenue Authority 50 IA
227 : AIR 1923 PC 138, the relevant statute provided that if in the course of
any assessment a question arises as to the interpretation of the Act, the Chief
Revenue Authority 'may' draw up a statement of the case and refer it to the
High Court.
Holding the provision to be mandatory and
following Julius, Lord Phillimore observed:
"When a capacity or power is given to a
public authority, there may be circumstance which couple with the power of duty
to exercise it."
22. In Commissioner of Police v. Gordhandas Bhanji
(1952 (1) SCR 135), Rule 250 of the Rules for Licensing and Controlling
Theatres and Other Places of Public Amusement in Bombay City, 1884 read as
under:
"The Commissioner shall have power in his
absolute discretion at any time to cancel or suspend any licence granted under
these Rules."
23. It was contended that there was no specific
legal duty compelling the Commissioner to exercise the discretion. Rule 250
merely vested discretion in him but it did not require him to exercise the
power. Relying upon the observations of Earl Cairns, L.C., the Court observed:
"The discretion vested in the Commissioner
of Police under Rule 250 has been conferred upon him for public reasons
involving the convenience, safety, morality and the welfare of the public at
large. An enabling power of his kind conferred for public reasons and for the
public benefit is, in our opinion, coupled with a duty to exercise it when the
circumstances so demand. It is a duty which cannot be shirked or shelved nor can
it be evaded.... "
(emphasis supplied)
24. In Ratlam Municipality v. Vardichan (1980
(4) SCC 162), some residents of Ratlam Municipality moved the Sub- Divisional
Magistrate under Section 133 of the Code of Criminal Procedure, 1973 for
abatement of nuisance by directing the municipality to construct drain pipes
with flow of water to wash the filth and stop the stench. The Magistrate found
the facts proved and issued necessary directions. The Sessions Court, in
appeal, reversed the order. The High Court, in revision, restored the judgment
of the Magistrate and the matter was carried to the Supreme Court.
25. This Court summarized the principle thus:
"The key question we have to answer is
whether by affirmative action a court can compel a statutory body to carry out
its duty to the community by constructing sanitation facilities at great cost
and on a time-bound basis. At issue is the coming of age of that branch of
public law bearing on community actions and the court's power to force public
bodies under public duties to implement specific plans in response to public
grievances."
26. Holding the provision obligatory, the Court
observed:
"Judicial discretion when facts for its
exercise are present, has a mandatory import.
Therefore, when the sub-Divisional Magistrate, Ratlam,
has, before him, information and evidence, which disclose the existence of a
public nuisance and, on the materials placed, he considers that such unlawful
obstruction or nuisance should be removed from any public place which may be
lawfully used by the public, he shall act.... This is a public duty implicit in
the public power to be exercised on behalf of the public and pursuant to a
public proceeding.
(emphasis supplied)
27. We do not wish to refer to other cases on
the point. We are, however, in agreement with the observations of Earl Cairns,
L.J. in Julius referred to above wherein His Lordship stated:
"Where a power is deposited with a public
officer for the purpose of being used for the benefit of persons who are
specifically pointed out, and with regard to whom a definition is supplied by
the Legislature of the conditions upon which they are entitled to call for its
exercise, that power ought to be exercised, and the Court will require it to be
exercised." (See M/s. Dhampur Sugar Mills Ltd. v. State of U.P. 2007(10)
SCR 245)
28. The use of the words `shall' in a statute,
though generally taken in a mandatory sense, does not necessarily mean that in
every case it shall have that effect, that is to say, that unless the words of
the statute are punctiliously followed, the proceeding or the outcome of the
proceeding would be invalid.
On the other hand, it is not always correct to
say that when the word `may' has been used, the statute is only permissible or
directory in the sense that non-compliance with those provisions will not
render the proceeding invalid.
29. Words are the skin of the language. The
language is the medium of expressing the intention and the object that
particular provision or the Act seeks to achieve. Therefore, it is necessary to
ascertain the intention. The word `shall' is not always decisive. Regard must
be had to the context, subject matter and object of the statutory provision in
question in determining whether the same is mandatory or directory. No universal
principle of law could be laid in that behalf as to whether a particular
provision or enactment shall be considered mandatory or directory. It is the
duty of the court to try to get at the real intention of the legislature by
carefully analysing the whole scope of the statute or section or a phrase under
consideration. The word `shall', though prima facie gives impression of being
of mandatory character, it requires to be considered in the light of the
intention of the legislature by carefully attending to the scope of the
statute, its nature and design and the consequences that would flow from the
construction thereof one way or the other. In that behalf, the court is
required to keep in view the impact on the profession, necessity of its
compliance; whether the statute, if it is avoided, provides for any contingency
for non-compliance; if the word `shall' is construed as having mandatory
character, the mischief that would ensure by such construction; whether the
public convenience would be subserved or public inconvenience or the general
inconvenience that may ensue if it is held mandatory and all other relevant
circumstances are required to be taken into consideration in construing whether
the provision would be mandatory or directory.
30. The question, whether a particular provision
of a statute, which, on the face of it, appears mandatory inasmuch as it used
the word 'shall', or is merely directory, cannot be resolved by laying down any
general rule, but depends upon the facts of each case particularly on a
consideration of the purpose and object of the enactment in making the
provision. To ascertain the intention, the court has to examine carefully the
object of the statute, consequence that may follow from insisting on a strict
observance of the particular provision and, above all, the general scheme of
the other provisions of which it forms a part. The purpose for which the
provision has been made, the object to be attained, the intention of the
legislature in making the provision, the serious inconvenience or injustice
which may result in treating the provision one way or the other, the relation
of the provision to other consideration which may arise on the facts of any
particular case, have all to be taken into account in arriving at the conclusion
whether the provision is mandatory or directory. Two main considerations for
regarding a rule as directory are:
(i) absence of any provision for the contingency
of any particular rule not being complied with or followed, and
(ii) serious general inconvenience and prejudice
to the general public would result if the act in question is declared invalid
for non-compliance with the particular rule.
31. It is well-settled that the use of word `may'
in a statutory provision would not by itself show that the provision is
directory in nature. In some cases, the legislature may use the word `may' as a
matter of pure conventional courtesy and yet intend a mandatory force. In
order, therefore, to interpret the legal import of the word `may', the court
has to consider various factors, namely, the object and the scheme of the Act,
the context and the background against which the words have been used, the
purpose and the advantages sought to be achieved by the use of this word, and
the like. It is equally well-settled that where the word `may' involves a
discretion coupled with an obligation or where it confers a positive benefit to
a general class of subjects in a utility Act, or where the court advances a
remedy and suppresses the mischief, or where giving the words directory
significance would defeat the very object of the Act, the word `may' should be
interpreted to convey a mandatory force. As a general rule, the word `may' is
permissive and operative to confer discretion and especially so, where it is
used in juxtaposition to the word 'shall', which ordinarily is imperative as it
imposes a duty. Cases however, are not wanting where the words `may' `shall',
and `must' are used interchangeably. In order to find out whether these words
are being used in a directory or in a mandatory sense, the intent of the
legislature should be looked into along with the pertinent circumstances. The
distinction of mandatory compliance or directory effect of the language depends
upon the language couched in the statute under consideration and its object,
purpose and effect. The distinction reflected in the use of the word `shall' or
`may' depends on conferment of power. Depending upon the context, 'may' does
not always mean may. 'May' is a must for enabling compliance of provision but
there are cases in which, for various reasons, as soon as a person who is
within the statute is entrusted with the power, it becomes his duty to exercise
that power. Where the language of statute creates a duty, the special remedy is
prescribed for non-performance of the duty.
32. If it appears to be the settled intention of
the legislature to convey the sense of compulsion, as where an obligation is
created, the use of the word 'may' will not prevent the court from giving it
the effect of Compulsion or obligation. Where the statute was passed purely in
public interest and that rights of private citizens have been considerably
modified and curtailed in the interests of the general development of an area
or in the interests or removal of slums and unsanitary areas. Though the power
is conferred upon the statutory body by the use of the word 'may' that power
must be construed as a statutory duty. Conversely, the use of the term 'shall'
may indicate the use in optional or permissive sense. Although in general sense
'may' is enabling or discretional and `shall' is obligatory, the connotation is
not inelastic and inviolate." Where to interpret the word `may' as
directory would render the very object of the Act as nugatory, the word 'may'
must mean 'shall'.
33. The ultimate rule in construing auxiliary
verbs like `may' and `shall' is to discover the legislative intent; and the use
of words `may' and 'shall' is not decisive of its discretion or mandates. The
use of the words `may' and `shall' may help the courts in ascertaining the
legislative intent without giving to either a controlling or a determinating
effect. The courts have further to consider the subject matter, the purpose of
the provisions, the object intended to be secured by the statute which is of
prime importance, as also the actual words employed.
34. Obviously where the legislature uses two
words may and shall in two different parts of the same provision prima facie it
would appear that the legislature manifested its intent on to make one part
directory and another mandatory. But that by itself is not decisive. The power
of court to find out whether the provision is directory or mandatory remains
unimpaired.
35. One additional factor, which may not have an
effect on the appeal is to be noted. The First Appellate Court after judgment
of the High Court dated 4.2.2005 disposed of the appeal and remitted the matter
to the trial Court. The stay order of this Court was passed on 7.2.2005.
36. It is to be noted that the High Court in the
impugned judgment has noted that if the Appellate Court is of the opinion that
if the evidence is insufficient to decide the issue, only then the matter may
be remitted to the trial Court.
37. Above being the position, the appeal by the
respondents before the Allahabad High Court has been rightly allowed. In any
event, the order does not suffer from any infirmity to warrant interference.
The appeal is dismissed.
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