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CONSIDERATION OF A PROVISION WHETHER IT IS MANDATORY OR DIRECTORY

Other Topics - By: - Mr.M. GOVINDARAJAN - Dated:- 4-5-2016 - Introduction There are various tests to determine whether a particular provision of statute is mandatory or directory in nature. For example the selection by the legislature of the words may or shall is definitely a guideline but not a definitive test. No universal rule Lord Campbell said that no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullific .....

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when a provision is to be treated as directory or mandatory, but in every case the object of the statute must be looked. Intention of the Legislature In Ramachandra Keshav Adke by Lrs. And others V. Govind Joti Chavare and others - 1975 (3) TMI 132 - SUPREME COURT it was held that it was the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope. Such intention of the legislature is therefore, to be ascertained upon a review of .....

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h case. as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law maker and that has to be gathered not only from the phraseology of the provision but also by considering the nature, its design and the consequence which would follow from construing it in one way or the other. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious ge .....

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to be ascertained. Procedural provision even if uses shall , may be construed as directory if no prejudice is caused. Provisions requiring statutory functionary to perform a statutory function within the prescribed time is to be considered as directory. In State of UP V. Manbodhan Lal Srivastava - 1957 (9) TMI 43 - Supreme Court of India the Supreme Court held that the question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language .....

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in a statute is mandatory, meaning thereby that non observance thereof involves the consequence of invalidity or only directory i.e., a direction the non observance of which does not entail the consequence of invalidity, whatever other consequences may occur. But in each case, the Court has to decide the legislative intent. The Courts have to consider not only the actual words used, but the scheme of the statute, the intended benefit of public of what is enjoined by the provisions and the mater .....

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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 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. Time limit In Hyundai Motors India Limited V. Union of India - 2015 (1) TMI 23 - MADRAS HIGH COURT the High Court held that the time limits .....

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n, it would normally be taken to be mandatory. If the consequences of non compliance are not indicated the, the provision has to be seen only as directory. Difference In the Sharif-Ud-Din V. Abdul Gani Lone - 1979 (11) TMI 225 - SUPREME COURT the Supreme Court marked out the difference between a mandatory rule and a directory rule. The Supreme Court held that the mandatory rule must be strictly observed and in the case of directory substantial compliance may be sufficient to achieve the object r .....

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