Full Judgment Text
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CASE NO.:
Appeal (civil) 992 of 2008
PETITIONER:
Smt. Bachahan Devi & Anr
RESPONDENT:
Nagar Nigam, Gorakhpur & Anr
DATE OF JUDGMENT: 05/02/2008
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
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
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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
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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
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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
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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
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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
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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
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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
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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.