Govindlal Chhaganlal Patel v Agricultural Produce Market Committee (1976)

It is the case on when a prescribed mode of publication is mandatory, and it carries a short and authoritative treatment of the distinction between shall and may — a treatment that applies far beyond delegated legislation. Read it against Sonik Industries, which reaches the opposite result on a statute that prescribed no mode.

Under section 5(1) the Director declares his intention to regulate purchase and sale in an area by notification in the Official Gazette, which is "also required to be published in Gujarati in a newspaper having circulation in the particular area"; objections must be invited and considered over a period "which shall not be less than one month". Under section 6(1) he may then declare the market area, a power which "is not absolute because by the terms of Section 6(1) it can only be exercised after considering the objections and suggestions received". Section 6(5) allows him to add or exclude areas or produce by following the same procedure.

The appellant was prosecuted for dealing in produce added by a section 6(5) notification. The Inspector could not say whether the notifications had been published in a newspaper. The Magistrate acquitted; the High Court reversed; the Supreme Court restored the acquittal.

Whether newspaper publication in Gujarati, prescribed in addition to publication in the Official Gazette, is mandatory, so that its non-observance invalidates the notification and defeats the prosecution.

Newspaper publication was mandatory, it was not proved, and the conviction could not stand.

Shall and may. Chandrachud J. begins: shall must normally be construed to mean shall and not may, "for the distinction between the two is fundamental." A person "who intends to leave a leeway" will not ordinarily use the language of command. But because lesser directions are sometimes clothed in words of authority, "it becomes necessary to delve deeper and ascertain the true meaning lying behind mere words." So "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 absent a contrary indication "the statute ought to be construed as peremptory."

Two tests adopted. From Khub Chand v State of Rajasthan: "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", the construction depending on the provisions of the 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." From Haridwar Singh v Bagun Sumbrui: "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 decisive word. Section 6(1) said the notification shall also be published in Gujarati in a newspaper. "The word 'also' provides an important clue to the intention of the Legislature", because having required Gazette publication the section went on to require newspaper publication in addition; "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."

Where a statute prescribes a particular mode of publication in addition to the Gazette, and does so in compulsive language, that mode is mandatory and non-compliance is fatal to the notification.

• Pair it with Sonik Industries: publication is mandatory in both, and the difference is whether the statute prescribes the mode. Where it does, as here and in Narendra Kumar v Union of India, the mode is mandatory; where it does not, any mode from which an affected person may with fair diligence learn of the rules will do.
• Its treatment of shall is the method to apply in any mandatory-or-directory question, including Atlas Cycle on laying.
• Note the consequence in a criminal case: publication is not a formality but a substantive protection, which is why breach defeated the prosecution.