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Full Case Details
Y.V. CHANDRACHUD, J. – This is an appeal from the judgment of the Gujarat High Court
convicting the appellant under Section 36 read with Section 8 of the Gujarat Agricultural
Produce Markets Act, 20 of 1964 and sentencing him to pay a fine of Rs 10.
- An Inspector of Godhra Agricultural Produce Market Committee filed a complaint against
the appellant charging him with having purchased a certain quantity of ginger in January and
February, 1969 without obtaining a license as required by the Act. The learned Magistrate
accepted the factum of purchase but he acquitted the appellant on the ground that the relevant
notification in regard to the inclusion of ginger was not shown to have been promulgated and
published as required by the Act. - The case was tried by the learned Magistrate by the application of procedure appointed for
summary trials. That circumstance together with the token sentence of fine imposed by the
High Court gives to the case a petty appearance. But occasionally, matters apparently petty
seem on closer thought to contain points of importance though, regretfully, such importance
comes to be realized by stages as the matter travels slowly from one court to another. As
before the Magistrate so in the High Court, the matter failed to receive due attention: a
fundamental premise on which the judgment of the High Court is based contains an
assumption contrary to the record. Evidently, the attention of the High Court was not drawn
either to the error of that assumption or to some of the more important aspects of the case
which the parties have now perceived. - In the erstwhile composite State of Bombay there was in operation an Act called the
Bombay Agricultural Produce Markets Act., 1939. On the bifurcation of that State on May 1,
1960 the new State of Gujarat was formed. The Bombay Act of 1939 was extended by an
appropriate order to the State of Gujarat by the Government of that State. That Act remained
in operation in Gujarat till September 1, 1964 on which date the Gujarat Agricultural Produce
Markets Act, 1964, came into force. - The Act was passed to consolidate and amend the law relating to the regulation of buying
and selling of agricultural produce and the establishment of markets for agricultural produce
in the State of Gujarat. Section 4 of the Act empowers the State Government to appoint an
officer to be the Director of Agricultural Marketing and Rural Finance. Sections 5, 6(1) and
6(5) of the Act read thus: - Declaration of intention of regulating purchase and sale of agricultural produce in
specified area- (1) The Director may, by notification in the Official Gazette, declare his
intention of regulating the purchase and sale of such agricultural produce and in such area, as
may be specified therein. Such notification shall also be published in Gujarati in a newspaper
having circulation in the area and in such other manner as may be prescribed.
(2) Such notification shall state that any objection or suggestion received by the Director
within the period specified in the notification which shall not be less than one month from the
date of the publication of the notification, shall be considered by the Director.
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(3) The Director shall also send a copy of the notification to each of the local authorities
functioning in the area specified in the notification with a request to submit its objections and
suggestions if any, in writing to the Director within the period specified in the notification. - Declaration of market areas – (1) After the expiry of the period specified in the notification
issued under Section 5 (hereinafter referred to in this section as ‘the said notification’), and
after considering the objections and suggestions received before its expiry and holding such
inquiry as may be necessary, the Director may, by notification in the Official Gazette, declare
the area specified in the said notification or any portion thereof to be a market area for the
purposes of this Act in respect of all or any of the kinds of agricultural produce specified in
the said notification. A notification under this section shall also be published in Gujarati in a
newspaper having circulation in the said area and in such other manner, as may be prescribed.
(5) After declaring in the manner specified in Section 5 his intention of so doing, and
following the procedure therein, the Director may, at any time by notification in the Official
Gazette, exclude .any area from a market area specified in a notification issued under subsection (1), or include any area therein and exclude from or add to the kinds of agricultural
produce so specified any kind of agricultural produce.
By Section 8, no person can operate in the market area or any part thereof except under and in
accordance with the conditions of a license granted under the Act. Section 36 of the Act
provides, to the extent material, that whoever without holding a license uses any place in a
market area for the purchase or sale of any agricultural produce and thereby contravenes
Section 8 shall on conviction be punished with the sentence mentioned therein. - Rule 3 of the Gujarat Agricultural Produce Markets Rules, 1965 provides that a notification
under Section 5(1) or Section 6(1) shall also be published by affixing a copy thereof at some
conspicuous place in the office of each of the local authorities functioning in the area
specified in the notification. - The simple question, though important, is whether the notification issued under Section
6(5) of the Act, covering additional varieties of agricultural produce like ginger and onion,
must not only be published in the official gazette but must also be published in Gujarati in a
newspaper. The concluding sentence of Section 6(1) says that a notification under “this
section” “shall also be published in Gujarati in a newspaper” having circulation in the
particular area. The argument of the appellant is twofold: Firstly, that “this section” means
“this sub-section” so that the procedure in regard to publication which is laid down in subsection (1) of Section 6 must be restricted to notifications issued under that sub-section and
cannot be extended to those issued under sub-section (5) of Section 6; and secondly, assuming
that the words “this section” are wide enough to cover every sub-section of Section 6, the
word “shall” ought to be read as “may”. - First, as to the meaning of the provision contained in Section 6(1) of the Act. It means what
it says. That is the normal rule of construction of statutes, a rule not certainly absolute and
unqualified, but the conditions which bring into play the exceptions to that rule do not exist
here. Far from it; because, the scheme of the Act and the purpose of the particular provision in
Section 6(1) underline the need to give to the provision its plain, natural meaning. It is not
reasonable to assume in the Legislature and ignorance of the distinction between a “section”
of the statute and the “sub-sections” of that section. Therefore the requirement laid down by
Section 6(1) that a notification under “this section” shall also be published in Gujarati in a
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newspaper would govern any and every notification issued under any part of Section 6, that is
to say, under any of the sub-sections of Section. 6. It is this requirement was to govern
notifications issued under sub-section (1) of Section 6 only, the Legislature would have said
so. - But the little complexity that there is in this matter arises out of a known phenomenon,
judicially noticed but otherwise disputed, that sometimes the Legislature does not say what it
means. That has given rise to a series of technical rules of interpretation devised or designed
to unravel the mind of the law-makers. If the words used in a statute are ambiguous, it is said,
consider the object of the statute, have regard to the purpose for which the particular
provision is put on the statute-book and then decide what interpretation best carries out that
object and purpose. The words of the concluding portion of Section 6(1) are plain and
unambiguous rendering superfluous the aid of artificial guidelines to interpretation. But the
matter does not rest there. The appellant has made an alternative argument that the
requirement regarding the publication in Gujarati in a newspaper is directory and not
mandatory, despite the use of the word “shall”. That word, according to the appellant, really
means “may”. - 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 poses 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? - 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 leeway 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. - 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 whether 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
peremptory. 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. 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
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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 [AIR 1967 SC 1074], 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. Bagun Sumbrui [(1973) 3 SCC
889, 895]:
Several tests have been 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. - The scheme of the Act is like this: Under Section 5(1) the Director of Marketing and
Rural Finance may by a notification in the Official Gazette declare his intention of regulating
purchase, and sale of agricultural produce in the specified, area. Such notification is also
required to be published in Gujarati in a newspaper having circulation in the particular area.
By the notification, the Director under Section 5(2) has to invite objections and suggestions
and the notification has to state that any such objections or suggestions received by the
Director within the specified period, which shall not be less than one month from the date of
the publication of the notification, shall be considered by the Director. After the expiry of the
aforesaid period the Director, under Section 6(1), has the power to declare an area as the
market area in respect of the particular kinds of agricultural produce. This power is not
absolute because by the terms of Section 6(1) it can only be exercised after considering the
objections and suggestions received by the Director within the stipulated period. The
notification under Section 6(1) is also required to be published in Gujarati in a newspaper.
The power conferred by Section 5(1) or 6(1) is not exhausted by the issuance of the initial
notification covering a particular area or relating to a particular agricultural produce. An area
initially included in the market area may later be excluded, a new area may be added and
likewise an agricultural produce included in the notification may be excluded or a new variety
of agricultural produce may be added. This is a salutary power because experience gained by
working the Act may show the necessity for amending the notification issued under Section
6(1). This power is conferred by Section 6(5). - By Section 6(5), if the Director intends to add or exclude an area or an agricultural
produce, he is to declare his intention of doing so in the manner specified in Section 5 and
after following the procedure prescribed therein. Thus, an amendment to the Section 6(1)
notification in regard to matters described therein is equated with a fresh declaration of
intention in regard to those matters, rendering it obligatory to follow afresh the whole of the
procedure prescribed by Section 5. That is to say, if the Director intends to add or exclude an
area or an agricultural produce, he must declare his intention by notification in the Official
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Gazette and such notification must also be published in Gujarati in a newspaper. Secondly,
the Director must invite objections or suggestions by such notification and the notification
must state that any objections or suggestions received within the stipulated time shall be
considered by him. The Director must also comply with the requirement of sub-section (5) of
Section 3 by sending a copy of the notification to each of the local authorities functioning in
the particular area with a request that they may submit their objections and suggestions within
the specified period. After the expiry of the period aforesaid and after considering the
objections or suggestions received within that period, the Director may declare that the
particular area or agricultural produce be added or excluded to or from the previous
notification. This declaration has to be by a notification in the Official Gazette and the
notification has to be published in Gujarati in a newspaper having circulation in the particular
area. .The last of these obligations arises out of the mandate contained in the concluding
sentence of Section 6(1). - The object of these requirements is quite clear. The fresh notification can be issued only
after considering the objections and suggestions which the Director receives within the
specified time. In fact, the initial notification has to state expressly that the Director shall
consider the objections and suggestions received by him within the stated period. Publication
of the notification in the Official Gazette was evidently thought by the Legislature not an
adequate means of communicating the Director’s intention to those who would be vitally
affected by the proposed declaration and who would therefore be interested in offering their
objections and suggestions. It is a matter of common knowledge that publication in a
newspaper attracts greater public attention than publication in the Official Gazette. That is
why the Legislature has taken care to direct that the notification shall also be published in
Gujarati in a newspaper. A violation of this requirement is likely to affect valuable rights of
traders and agriculturists because in the absence of proper and adequate publicity, their right
of trade and business shall have been hampered without affording to them an opportunity to
offer objections and suggestions, an opportunity which the statute clearly deems so desirable.
By Section 6(2), once an area is declared to be a market area, no place in the said area can be
used for the purchase or sale of any agricultural produce specified in the notification except in
accordance with the provisions of the Act. by Section 8 no person can operate in the market
area or any part thereof except under and in accordance with the conditions of & license
granted under the Act. A violation of these provisions attracts penal consequences under
Section 36 of the Act. It is therefore vital from the point of view of the citizens’ right to carry
on trade or business, no less than for the consideration that violation of the Act leads to penal
consequences, that the notification must receive due publicity. As the statute itself has devised
an adequate means of such publicity, there is no reason to permit a departure from that mode.
There is something in the very nature of the duty imposed by Sections 5 and 6, something in
the very object for which that duty is cast, that the duty must be performed. “Some rules”, as
said in Thakur Pratap Singh v. Shri Krishna [AIR 1956 SC 140] “are vital and go to the root
of the matter: they cannot be broken.” The words of the statute here must therefore be
followed punctiliously. - The legislative history of the Act reinforces this conclusion. As stated before, the Bombay
Agricultural Produce Markets Act, 1939 was in force in Gujarat till September 1, 1964 on
which date the present Act replaced it. Section 3(1) of the Bombay Act corresponding to
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Section 5(1) of the Act provided that the notification ‘may’ also be published in the regional
languages of the area. Section 4(1) of the Bombay Act which corresponds to Section 6(1) of
the Act provided that “A notification under this section may also be published in the regional
languages of the area in a newspaper circulated in the said area”. Section 4(4) of the Bombay
Act corresponding to Section 6(5) of the Act provided that exclusion or inclusion of an area
or an agricultural produce may be made by the Commissioner by notification in the Official
Gazette, “subject to the provisions of Section 3” Section 4(4) did not provide in terms as
Section 6(5) does, that the procedure prescribed in regard to the original notification shall be
followed if an area or an agricultural produce is to be excluded or included. The Gujarat
Legislature, having before it the model of the Bombay Act, made a conscious departure from
it by providing for the publication of the notification in a newspaper and by substituting the
word ‘shall’ for the word ‘may’. These are significant modifications in the statute which was
in force in Gujarat for over 4 years from the date of reorganisation till September 1, 1964.
These modifications bespeak the mind of the Legislature that what was optional must be
made obligatory. - We are therefore of the opinion that the notification issued under Section 6(5) of the Act,
like that under Section 6(1), must also be published in Gujarati in a newspaper having
circulation in the particular area. This requirement is mandatory and must be fulfilled.
Admittedly, the notification issued under Section 6(5) on February 16, 1963 was not
published in a newspaper at all, much less in Gujarati. Accordingly, the inclusion of new
varieties of agricultural produce in that notification lacks legal validity and no prosecution can
be founded upon its breach. - Rule 3 of the Gujarat Agricultural Produce Markets Rules, 1965 relates specifically and
exclusively to notifications “issued under subsection (1) of Section 5 or under sub-section (1)
of Section 6”. As we are concerned with a notification issued under sub-section (5) of Section
6, we need not go into the question whether Rule 3 is complied with. We may however
indicate that the authorities concerned must comply with Rule 3 also in regard to notifications
issued under Sections 5(1) and 6(1) of the Act. After all, the rule is calculated to cause no
inconvenience to the authorities charged with the duty of administering the Act. It only
requires publication by affixing a copy of the notification at some conspicuous place in the
office of each of the local authorities functioning in the area specified in the notification. - The prosecution was conducted before the learned Magistrate in an indifferent manner.
That is not surprising because the beneficent purpose of summary trials is almost always
defeated by a summary approach. Bhailalbhai Chaturbhai Patel, an Inspector in the Godhra
Agricultural Produce Market Committee, who was a material witness for proving the offence,
said in his evidence that he did not know whether or not the notifications were published in
any newspaper or on the notice board of the Godhra municipality. The learned Magistrate
acquitted the appellant holding that the prosecution had failed to prove beyond a reasonable
doubt that the notifications were published and promulgated as required by law. - In appeal, the High Court of Gujarat began the operative part of its judgment with a wrong
assumption that Ex. 9 dated April 19, 1962 was a “notification constituting the Godhra market
area”. In fact Ex. 9 as issued under Section 4-A(3) of the Bombay Act as amended by Gujarat
Act XXXI of 1961 declaring certain areas as “market proper” within the Godhra market area.
The High Court was really concerned with the notification, Ex. 10, dated February 16, 1968
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which was issued under Section 6(5) of the Act and by which new varieties of agricultural
produce like onion, ginger, sun hemp and jowar were added to the old list. The High Court set
aside the acquittal by following the judgment dated February 12, 1971 rendered by A. D.
Desai, J. in Cr. Appeal No. 695 of 1969. That judgment has no application because it arose
out of the Bombay Act and the question before Desai, J. was whether Section 4(1) of the
Bombay Act was mandatory or directory. That section, as noticed earlier, provided that the
notification “may” also be published in the regional languages of the area in a newspaper
circulated in that area. The High Court, in the instant case, was concerned with Section 6(5)
of the Act which has made a conscious departure from the Bombay Act in important respects.
The High Court did not even refer to the provisions of the Act and it is doubtful whether those
provisions were at all brought to its notice. Everyone concerned assumed that the matter was
concluded by the earlier judgment of Desai, J. - For these reasons we set aside the judgment of the High Court and restore that of the
learned Judicial Magistrate, First Class, Godhra. Fine, if paid, shall be refunded to the
appellant.
