Full Judgment Text
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PETITIONER:
GVINDLAL CHHAGGAN LAL PATEL
Vs.
RESPONDENT:
THE AGRICULTURAL PRODUCE MARKET COMMITTEE, GODHRA AND OTHERS
DATE OF JUDGMENT27/08/1975
BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
SARKARIA, RANJIT SINGH
CITATION:
1976 AIR 263 1976 SCR (1) 451
1975 SCC (2) 482
CITATOR INFO :
F 1985 SC 964 (9)
RF 1986 SC1499 (16)
RF 1986 SC1518 (8)
R 1987 SC1010 (14)
R 1989 SC2206 (21)
ACT:
Mandatory and Directory Provision-Bombay Agricultural
Produce Markets Act, 1939-Section 4 Gujarat Agricultural
Produce Markets Act, 1961, ss. 5 and 6, 36-When ’shall’
means ’may’-Principles of constitution of a Statute- If
language Plain and unambiguous, whether aid of artificial
guidelines to interpretation possible.
HEADNOTE:
The appellant was prosecuted for having purchased a
certain quantity of ginger without obtaining a licence as
required by the Gujarat Agricultural Produce Markets Act.
1964. The trial court accepted the factum of purchase but it
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.
On appeal, the High Court reversed the acquittal and
sentenced the appellant to a fine of Rs. 10/-. The High
Court proceeded on the assumption that the notifications
were property made. In the erstwhile composite State of
Bombay there was in operation The Bombay Agricultural
Produce Markets Act of 1939. On the bifurcation of the State
in 1960 the said 1939 Act was extended by an appropriate
order to the State of Gujarat. That Act remained in
operation in Gujarat till the year 1964 in which year the
present Act came into force. Section 5 of the Act requires
the Director to notify in the Official Gazette his intention
to regulate the purchase and sale of agricultural produce.
The section also requires the publication in Gujarati in a
newspaper having circulation in the area. The section
further requires that the objections should be invited from
the public. Section 6(1) provides that after the expiry of
the period for making objections and after considering the
objections and suggestions received and after holding
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necessary inquiry, the Director may, by notification in the
Official Gazette, declare the area specified in the said
notification to be a market area in respect of the
agricultural produce to be specified in the notification.
Sub-section (1) of s. 6 further requires that the
notification under the said section shall be published in
Gujarati in a newspaper having circulation in the said area.
Sub s. (5) of s. 6 provides that 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 sub-s. (1) or include any area therein and exclude
from or add to the kinds of agricultural produce so
specified. The sale or purchase of the agricultural produce
concerned without a licence is made an offence by s. 36 of
the Act.
On appeal by special leave, the appellant contended
that the notification under s. 6(5) of the Act, covering
additional varieties of agricultural produce, must not only
be published in the Official gazette but must also be
published in Gujarati in a newspaper.
The respondent contended that (1) the procedure in
regard to the publication which is laid down in sub-s. (1)
of s. 6 must be restricted to notifications issued under
that sub-section and cannot be extended to those issued
under sub-section (5) of s. 6; (2) Assuming that the words
"this section" are wide enough to cover every sub-section of
s. 6. the word ’shall’ ought to be read as ’may’.
^
HELD: (1) Section 6(1) 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 did not exist.
It is not reasonable to assume in the legislature an
ignorance of the distinction between a "section" of the
statute and the "sub-section" of that section. The
requirement
452
laid down by s. 6(1) that a notification under "this
section" shall also be published in Gujarati in a newspaper
would govern any and every notification issued under any par
of s. 6, that is to say, under any of the sub-sections of s.
6. [455E-G]
(2) 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 unraval the mind of
the law-makers. The words of the concluding portion of s.
6(1) are plain and unambiguous rendering superfluous the aid
of artificial guide-lines to interpretation. [455H-456A]
(3) "Shall" must normally be construed to mean "shall"
and not "may", for the distinction between the two is
fundamental. The use of the word "shall" or "may" is not
conclusive on the question whether the particular
requirement of law is mandatory or directory. 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.
It is the duty of courts to get at the real intention of the
legislature by carefully attending to the whole scope of the
provision to be construed. The amendment to s. 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 s. 5. The object of
these requirements is quite clear. The fresh notification
can be issued only after considering the objections and
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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.
The 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. 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 without the necessary licence. A violation of
the said provisions attracts penal consequences under s. 36.
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. There is something in the very nature of the duty
imposed by ss. 5 and 6. something in the very object for
which the duty is cast. that the duty must be performed.
[456C, 458B, F-H, 459A-B]
(4) The legislative history of the Act reinforces this
conclusion. In the Bombay Act, which was made applicable to
Gujarat till 1964, it was not necessary to publish in the
newspaper notifications corresponding to s. 6(5)
notifications under the new Act. 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’. [459D-F]
(5) A notification under s. 6 must be published in
Gujarati in a newspaper. This requirement is mandatory and
must be fulfilled. Admittedly, the notification in question
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.
[459E-H]
(6) The High Court took into consideration a wrong
notification. Reliance on the earlier judgment of Gujarat
High Court on the construction of the Bombay Act was also
wrong since the language there was wholly different. [460E-
G]
453
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
158 of 1972.
Appeal by special leave from the Judgment and order
dated the 12th November, 1971 of the Gujarat High Court at
Ahmedabad in Criminal Appeal No. 219 of 1970.
H.S. Patel, S.S. Khanduja and Lalita Kohli, for the
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appellant.
S. K. Zauri, Amaresh Kumar and M. V. Goswami, for the
respondents 1-2.
H. R. Khanna and M. N. Shroff, for respondent no. 3.
The Judgment of the Court was delivered by
CHANDRACHUD, J. This is an appeal by special leave 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
(referred to herein as "the Act"), and sentencing him to pay
a fine of Rs. 10/-. The judgment of conviction was recorded
by the High Court in an appeal from an order of acquittal
passed by the learned Judicial Magistrate, First Class,
Godhra.
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 licence 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.
It is necessary, in order to understand the
controversy, to notice some of the relevant statutory
provisions.
In the erstwhile composite State of Bombay there was in
operation an Act called the Bombay Agricultural Produce
Markets Act, 22 of 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
454
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, 20 of 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:-
"5. 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
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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.
(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.
6. 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.
6. (5) After declaring in the manner specified in
section 5 his intention of so doing, and following the
procedure there in, 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 sub-section (1), or include any area therein and
exclude from or add to the kinds of agricultural
produce so specified any kind of agricultural produce."
455
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 licence granted under the Act. Section 36 of
the Act provides, to the extent material, that whoever
without holding a licence 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 subsection so that the procedure in
regard to publication which is laid down in subsection (1)
of section 6 must be restricted to notifications issued
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under that subsection and cannot be extended to those issued
under subsection (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 an ignorance of the distinction between a
"section" of the statute and the "subsections" 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 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. If
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
456
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 guide-lines 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 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.
Crawford on ’Statutory Construction’ (Ed. 1940, Art.
261, p. 516) sets out the following passage from an American
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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
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
pre-emptory. 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(1). 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
457
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 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." Recently in the Presidential Election Case(3),
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
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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’."
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 be stated 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
458
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 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
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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
459
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 a licence 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. Sri Krishna, "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 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 of 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)
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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 (Ex. 10) issued under section 6(5) on
February 16, 1968 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.
460
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 was 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 which was issued under section 6(5) of the Act and by
which new varieties of agricultural produce like onion,
ginger, sunhemp 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.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
Appeal 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 language 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
respect. 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.
P.H.P. Appeal allowed.
461