TMI Blog2020 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... dia also. This Court is of the considered view that positive direction sought for by the petitioner cannot be granted - Petition dismissed. - WP. No. 15079/2020 - - - Dated:- 28-10-2020 - THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN And THE HONOURABLE MRS. JUSTICE R.HEMALATHA For the Petitioner : Mr.M.Radhakrishnan For the R2 : Mr.M.Elumalai Additional Government Pleader ORDER (1)By consent, the writ petition is taken up for final disposal and is disposed of by this order. (2)Mr.M.Elumalai, learned Additional Government Pleader accepts notice on behalf of the 2nd respondent. (3)The petitioner, who is a Graduate in Engineering [Electronics and Instrumentation] from Annamalai University and also claims to be the Managing Trustee of ''Poovulagin Nanbargal'' [Friend of Earth/Globe], which is a registered Public Trust, which aims at creating an environment law awareness among the people of Tamil Nadu by promoting sustainable development and campaigning for organic and safe food and the Trust also publishes a couple of monthly journals on environment and related issues. (4)Mr.M.Radhakrishnan, learned counsel for the petitioner has invite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the urgency in this matter can also be gauged from the fact that the Hon'ble Chief Minister of Tamil Nadu has sent a D.O.Letter dated 31.08.2020 to the Hon'ble Prime Minister of India, which also appears in the form of Press Release dated 31.08.2020 issued by the Director of Information and Public Relations, Chennai and prays for appropriate orders. (6)This Court paid its anxious consideration and best attention to the arguments advanced by the learned counsel for the petitioner and also perused the materials placed before it. (7)It is relevant to extract the following provisions of the Goods and Services [Compensation to States] Act, 2017:- ''Section2[1]:-In this Act, unless the context otherwise requires - ......[d] ''compensation'' means an amount, in the form of goods and services tax compensation, as determined under Section 7. Section 7:-[1]The compensation under this Act shall be payable to any State during the transition period. [2]The compensation payable to a State shall be provisionally calculated and released at the end of every two months period, and shall be finally calculated for every financial year after t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs for the purpose of this subsection shall be 100x(5/6)=₹ 83.33; (b) the actual revenue collected by a State till the end of relevant two months period in any financial year during the transition period shall be - (i) the actual revenue from State tax collected by the State, net of refunds given by the State under Chapters XI and XX of the State Goods and Services Tax Act; (ii) the integrated goods and services tax apportioned to that State, as certified by the Principal Chief Controller of Accounts of the Central Board of Excise and Customs; and (iii) any collection of taxes levied by the said State, under the Acts specified in sub-section (4) of section 5, net of refund of such taxes; (c) the provisional compensation payable to any State at the end of the relevant two months period in any financial year shall be the difference between the projected revenue till the end of the relevant period in accordance with clause (a) and the actual revenue collected by a State in the said period as referred to in clause (b), reduced by the provisional compensation paid to a State till the end of the previous two months period in the said financial year during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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-compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d judgment, the Hon'ble Apex Court has dealt with the Mandatory Role and the Directory Role and it is relevant to extract the said paragraph No.9, which reads thus:- 9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word shall while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question has to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, the fact that no consequences of non-compliance are stated in the statute, has been considered as a factor tending towards a directory construction. But this is only an element to be considered, and is by no means conclusive. 44. In Dattatraya Moreshwar v. State of Bombay [MANU/SC/0014/1952 : AIR 1952 SC 181] it was held as under: (AIR p. 185, para 7) Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done. 45. In Craies on Statute Law, 8th Edn., at p. 262, it is stated thus: It is the duty of courts of justice to try to get at the real intention of the legislature by carefully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o laid down in the above cited decisions and it depends upon the context and the purpose of the legislative intent also. (16)It is also to be noted at this juncture that the Goods and Services Tax [Compensation to States] Act, 2017, does not deal and speak about the consequences of non-compliance of the time line stipulated under Subsection [2] of Section 7 of the said Act and therefore, it can be construed only as directory and not mandatory. It is not as if the 1st respondent is not going to compensate the States, in the light of the above cited provisions and whatever difficulties faced by the Government of Tamil Nadu in lieu of the economic melt down due to COVID-19 pandemic virus, may have equal application to the Union of India also. (17)In the light of the reasons assigned above, this Court is of the considered view that positive direction sought for by the petitioner cannot be granted. This Court also hope and trust that the 1st respondent would take into account the difficulties being faced by the States, especially the State of Tamil Nadu in the light of the contents of the Press Release dated 31.08.2020 issued by the Director of Information and Public Relations, Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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