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The Secretary, Anakapalli Agricultural Market Committee Vs. Thammana Reddiyya Gari Somaraju and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ1479
AppellantThe Secretary, Anakapalli Agricultural Market Committee
RespondentThammana Reddiyya Gari Somaraju and Co. and ors.
Excerpt:
.....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. 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. 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..........agricultural market committee have not come into force for they were not published in telugu in andhra pradesh gazette.2. in these revisions it is submitted by sri reddipanthulu, the learned counsel for the market committee, that publication of the bye-laws in telugu in the andhra pradesh gazette is not mandatory but only directory and, therefore, the order of the learned sessions judge is not correct.3. the complaint against the accused is that they have contravened bye-law 44 (5) and, therefore, they are liable to be punished under bye-law 45.4. bye-law 44 (5) provides that a licensee shall maintain regular accounts of his transactions and shall send to the secretary such reports and returns as may be specified by the market committee. the record should be produced for inspection.....
Judgment:
ORDER

Gangadhara Rao, J.

1. These revisions are filed by the Anakapalle Agricultural Market Committee, Anakapalli, against the acquittal of the accused by the Ist Addl. Sessions Judge, Visakhapatnam. The accused are licensees under the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966. The Market Committee issued a notice to the accused calling upon them for production of accounts and records for assessment of the market fee under bye-law 44 (5). The accused did not produce them in spite of repeated demands. Therefore, a complaint was filed against the accused for violating bye-law 44 (5) of the Bye-laws of the Agricultural Market Committee, Anakapalle. The learned First Additional Sessions Judge, Visakhapatnam acquitted the accused on the ground that Bye-laws framed by the Agricultural Market Committee have not come into force for they were not published in Telugu in Andhra Pradesh Gazette.

2. In these revisions it is submitted by Sri Reddipanthulu, the learned Counsel for the Market Committee, that publication of the Bye-Laws in Telugu in the Andhra Pradesh Gazette is not mandatory but only directory and, therefore, the order of the learned Sessions Judge is not correct.

3. The complaint against the accused is that they have contravened Bye-Law 44 (5) and, therefore, they are liable to be punished under Bye-Law 45.

4. Bye-Law 44 (5) provides that a licensee shall maintain regular accounts of his transactions and shall send to the Secretary such reports and returns as may be specified by the market committee. The record should be produced for inspection and for assessment of market fee on demand by any employee of the committee not below the rank of a Supervisor at such time and place as may be indicated in the demand made. Bye-law 45 says that the contravention of bye-law 44 shall be punishable with fine which may extend to rupees five hundred only. These bye-laws are made under Section 34 of the Andhra Pradesh (Agricultural Produce and Livestock) Markets Act, 1966.

5. We are only concerned with Sub-sections (2) and (3) of that Section. They read as follows:

Section 34 (2) : Every bye-law made under this Section shall be published in English and Telugu in the Andhra Pradesh Gazette and it shall come into operation on the date of its publication in the Andhra Pradesh Gazette;

(3) Any bye-law made under this Section may provide that any contravention thereof shall be punishable with fine which may extend to five hundred rupees.

6. In this case the bye-laws were published in English in the Andhra Pradesh Gazette, They were not published in Telugu in the Andhra Pradesh Gazette. Bye-law 45 provides punishment for contravention of bye-law 44.

7. A reading of Sub-section (2) of Section 34 shows that every bye-law made under that section shall be published in English and Telugu in the Andhra Pradesh Gazette and it comes into operation on the date of its publication in the Andhra Pradesh Gazette. I am of the opinion that a bye-law shall be published both in English and Telugu in the Andhra Pradesh Gazette. It is only when it is so published it comes into operation. Publication in English and Telugu in the Andhra Pradesh Gazette is a condition precedent for a bye-law to become operative. Sri Reddipanthulu wants me to read the first part of Sub-section (2) of Section 34 as follows : Every bye-law made under this Section 'may' be published in English 'or' Telugu in the Andhra Pradesh Gazette. I am of the opinion that if the sub-section is read in that manner it makes no sense and will defeat the very object for which it is made. Then it means that it may not also be published. If it is not published the question of its coming into operation on the date of its publication does not arise. If so, there will be no bye-laws. Therefore, that interpretation cannot be accepted.

8. I am not also prepared to read the sub-section so as to say that bye-law can be published in English or Telugu. The reason why the Legislature wanted that bye-law should be published in Telugu also is that traders who know Telugu would understand it. It is only a few traders that know English. Further, bye-law itself can provide for its contravention and prescribe punishment of fine. Therefore, it is all the more important that it should be published in Telugu so that traders may know it. Hence, I am of the opinion that a bye-law should be published both in English and Telugu in the Andhra Pradesh Gazette. It is only when it is published in both the languages it comes into operation on the date of its publication in the Gazette. If it is published only in one language it does not come into operation, for the condition precedent mentioned in Sub-section (2) of Section 34 is not fulfilled.

9. The nearest case to the point placed before me is that of the Supreme Court in Govindlal v. Agriculture Produce Market Committee : [1976]1SCR451 . It is a case arising under the Gujarat Agricultural Produce Markets Act 1964. Section 6 of that Act provides that a notification declaring an area to be a market area shall also be published in Gujarati in a newspapers having circulation in that area and in such other manner as may be prescribed. In that case notification was not published in Gujarati. The question for consideration was whether the notification issued under Section 6 (5) of that 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. It was contended before the Supreme Court that the word 'shall' in Section 6 should be read as 'may' and requirement to publish it in Gujarati in a newspaper was only directory but not mandatory. Chandrachud J., speaking for the Court observed (at p. 1996 of 1975 Cri LJ):

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.

Then the learned Judge referred to Crawford on Statutory Construction, Edition 1940, Article 261, page 516, and extracted the following passage:

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.

Then the learned Judge observed:

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 peremptory. 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. Shriram v. State of Maharashtra : [1961]2SCR890 .

The learned Judge referred to Khub Chand v. State of Rajasthan : [1967]1SCR120 in which it was observed (at p. 1077):

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 in Haridwar Singh v. Bagun Sumbrui : [1972]3SCR629 in the following words (at R. 1247):

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.... AIR 1974 SC 1682 (at p. 1686) 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 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'.

Then, after referring to the provisions of the Act, the learned Judge observed:

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 desirable .... 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 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 ipposed 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 Pratap Singh v. Sri Krishna : [1955]2SCR1029 '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.

Finally, the learned Judge came to the conclusion that the notification must also be published in Gujarati in a newspaper having circulation in the particular area, that the requirement is mandatory and must be fulfilled, and since admittedly no such notification was published in a newspaper at all much less in Gujarati, the inclusion of new varieties of agricultural produce in that notification lacks legal validity and no prosecution can be founded upon its breach.

10. Following this decision I have no hesitation in holding that under Section 34 (2) every bye-law must be published not only in English but also in Telugu in the Andhra Pradesh Gazette and it is only when it is so published it comes into operation on the date of its publication.

11. Sri Reddipanthulu referred to a number of decisions on the question of interpretation of the statute as to whether it is mandatory or directory. It is not necessary to refer to all of them except the decision in State of U. P. v. Babu Ram : 1961CriLJ773 . After referring to Maxwell on the Interpretation of Statutes, 10th Edition, at p. 381, Subba Rao J., observed (at p. 787 of Cri LJ):

The relevant rules of interpretation may be briefly stated thus : When a statute uses the word 'shall', prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.

12. Relying upon this passage, it is submitted by Sri Reddipanthulu, that since non-compliance of the provisions in the case on hand is not visited with a penalty, the provision may be read as directory but not mandatory. I do not agree. That is not the only test. On the face of it, Section 34 (2) is clear and specific and admits of no exceptions. I am not persuaded to read the provision as only directory in the sense that a bye-law 'may be published' in English or Telugu in the Andhra Pradesh Gazette. Therefore I reject this contention. If so, in the absence of publication of the Bye-Laws in Telugu in the Andhra Pradesh Gazette, there is no question of Bye-Laws 44 and 45 coming into force. If they have not come into force the petitioners cannot be penalised.

13. Consequently, agreeing with the learned First Additional Sessions Judge, I dismiss these revisions.


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