MANDATORY AND DIRECTORY STATUTES :
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. “For ascertaining
the real intention of the Legislature”, points out SUBBARAO, J. “the court may consider inter
alia, the nature and design of the statute, and the consequences which would follow from
construing it the one way or the other; the impact of the other provisions whereby the necessity
of complying with the provisions in question is avoided; the circumstances, 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 the trivial
consequences that flow therefrom; and above all, whether the object of the legislation will be
defeated or furthered”. If object of the enactment will be defeated by holding the same directory,
it will be construed as mandatory, whereas if by holding it mandatory serious general
inconvenience will be created to innocent persons without very much furthering the object of
enactment, the same will be construed as directory. But all this does not mean that the
language used is to be ignored but only that the prima facie inference of the intention of the
Legislature arising from the words used may be displaced by considering the nature of the
enactment, its design and the consequences flowing from alternative constructions. Thus the
use of the words ‘as nearly as may be’ in contrast to the words ‘at least’ will prima facie indicate
a directory requirement, negative words a mandatory requirement ‘may’ a directory requirement
and ‘shall’ a mandatory requirement.
The correct position appears to be that substantial compliance of an enactment is
insisted, where mandatory and directory requirements are lumped together, for in such a case, if
mandatory requirements are complied with, it will be proper to say that the enactment has been
substantially complied with notwithstanding the non-compliance of directory requirements. The
point may be explained by taking an example of a set of service rules which provide that
adverse remarks shall be communicated to the civil servant concerned ordinarily within seven
months. The object of communicating the adverse remarks is to give an opportunity to the civil
servants to improve his performance to make up the deficiency noticed in his work and to give
him an opportunity to represent against the remarks, in case he disputes them, to the reviewing
authority. In the light of this object and having regard to the part adverse remarks play in the
service career, the rules on a proper construction will require: (i) communication of the remarks
to the civil servant concerned; (ii) communication within a reasonable time; and (iii)
communication ordinarily within seven months. The first two requirements will be construed as
mandatory and non-compliance of either of them will make the remarks as also any adverse
action on their basis invalid. The third requirement will be treated as directory and its non-
compliance alone will not make the remarks invalid if the first two requirements are satisfied.
A directory provision may be distinguished from a discretionary power. The former gives
no discretion and is intended to be obeyed, but a failure to obey it does not render a thing duly
donee in disobedience of it a nullity. The latter, i.e. a discretionary power leaves the done of the
power free to use or not to use it as his discretion.
The general rule that non-compliance of mandatory requirements results in nullification
of the act is subject at least to one exception. If certain requirements or conditions are provided
by a statute in the interest of a particular person, the requirements or conditions although
mandatory may be waived by him if no public interests are involved, and in such a case the act
done will be valid even if the requirement or condition has not been performed. It was, therefore,
held that the requirement of notice under section 80 of the code of civil procedure although
mandatory could be waived by the defendant as the provision was enacted merely for the
protection of the defendant state of authority. On the same principle, compliance of section 35 of
the Bengal Money-lenders Act which requires certain matters to be specified in a sale
proclamation for the benefit of the judgment-debtor, although mandatory, can be waived by him.
When consequences of nullification on failure to comply with a prescribed requirement if
provided by the statute itself, there can be no manner of doubt that such statutory requirement
must be interpreted as mandatory.
The periods prescribed in the schedule to the Indian Limitation Act, 1908 for bringing a
legal proceeding are mandatory as the consequence of the expiry of the period of limitation is
provided by section 3 of the Act in that the Court is enjoined to dismiss a legal proceeding
instituted after expiry of the prescribed period.
The requirement as to registration of certain documents prescribed by section 17 of the
Registration Act, 1908, or by any provision of the Transfer of Property Act, 1882, is mandatory
since the consequence of non registration is provided by section 49 of the Registration Act in
that such documents if not registered do not affect the property comprised therein,
When the statute does not expressly provide for nullification as a consequence of the
non-compliance of the statutory injunction but imposes expressly some other penalty, it is a
question of construction in each given case whether the Legislature intended to lay down an
absolute prohibition or merely to make the offending person liable for the penalty.
If the statute, having regard to its object, purpose and scope “is found to be directory,
penalty may be incurred for non compliance but the act or thing done is regarded as good.
(i) Use of negative words :
Another mode of showing a clear intention that the provision enacted is mandatory, is by
clothing the command in a negative form.
But the principle is not without exception. Section 256 of the Government of India Act,
1935, was construed by the Federal Court as directory though worded in the negative form.
Directions relating to solemnization of marriages though using negative words have been
construed as directory in cases where the enactments in question did not provide for the
consequence that the marriage in breach of those directions shall be invalid. Considerations of
general inconvenience, which would have resulted in holding these enactments mandatory,
appear to have outweighed the effect of the negative words in reaching the conclusion that they
were in their true meaning merely directory.
(ii) Affirmative words may imply a negative :
Affirmative words stand at a weaker footing than negative words for reading the
provision as mandatory, but affirmative words may also be so limiting as to imply a negative.
The provisions of sections 54, 59, 107 and 123 if the Transfer of Property Act 1882, prescribing
modes of transfer by sale, mortgage, lease or gift may be mentioned. The formalities prescribed
by these provisions for effecting a transfer of the nature mentioned in them are mandatory and
the language used although affirmative clearly imports a negative.
(iii) Use of ‘shall’ or ‘shall and may’; ‘must and should’
The use of word ‘shall’ raises a presumption that the particular provision is imperative,
but this prima facie inference may be rebutted by other considerations such as the object and
scope of the enactment and the consequences flowing from such construction. There are
numerous cases where the word ‘shall’ has, therefore, been construed as merely directory.
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. If different provisions are connected with the same word ‘shall’ and if with respect to
some of them the intention of the Legislature is clear that the word ‘shall’ in relation to them
must be given an obligatory or a directory meaning, it may indicate that with respect to other
provisions also, the same construction should be placed. If the word ‘shall’ has been substituted
for the word ‘may’ by an amendment , it will be a very strong indication that use of ‘shall’ makes
the provision imperative. Similar will be the position when the bill as introduced used the word
‘may’ and the parliament substituted the word ‘shall’ in its place while passing the Act. The use
of word ‘may’ at one place and ‘shall’ at another place in the same section may strength the
inference that these words have been used in their primary sense and that ‘shall’ should be
construed ad mandatory.
The use of the word ‘shall’ with respect to one matter and use of word ‘may’ with respect
to another matter in the same section of a statute, will normally lead to the conclusion that the
word shall imposes an obligation, whereas the word ‘may’ confers a discretionary power. But
that by itself Is not decisive and the court may having regard to the context the consequences
come to the conclusion that the part using ‘shall’ is directory.
The use of the word ‘must’ in place of ‘shall’ will itself be sufficient to hold the provision
to be mandatory and it will not be necessary to pursue the enquiry any further. The use of the
word ‘should’ instead of ‘must’ may not justify the inference that the provision is directory if the
context shows otherwise.
Where the statute imposes a public duty and lays down the manner in which and the
time within which the duty shall be performed, injustice or inconvenience resulting from a rigid
adherence to the statutory prescriptions may be a relevant factor in holding such prescriptions
only directory.
It was held that where a public officer is directed by a statute to perform a duty within a
specified time the cases establish that provisions as to time are only directory. Similarly, it has
been held while construing section 17 (1) of the Industrial Disputes Act 1947, that it is obligatory
on the government to publish an award, but the provision, that it should be published within
thirty days, is not mandatory and an award published beyond thirty days is not invalid. A
provision fixing a time, within which a public officer or authority has to act in performance of a
duty, generally means that the statute considers it reasonable for the officer or authority to act
within the said period. The expiry of the period without more confers no right unless the statute
by a legal fiction or otherwise confers a right. Thus a provision in a municipal act that an
application for layout should be disposed of within a particular time does not mean that the
application must be deemed to have been granted after expiry of the said period unless there is
a provision to that effect made in the act. If performance of a public duty is required to be done
within a specified time, which is also related to a right given to a person, the provision as to time
will still be held as directory unless it is shown that the person on whom the related right is
conferred is prejudiced because of the non performance of the duty within the specified time.
Having regard to the gravity of a dispute as to the age of High Court Judge provision for
consultation with the Chief Justice of India in Article 217 (3) of the Constitution has been held to
be mandatory. Similarly having regard to the object of securing independence of subordinate
judiciary, provision for consultation with the High Court in the matter of appointment of District
Judges as enacted in Article 233 of the Constitution has been held mandatory.
Formalities and requirements for making contracts or transfers have generally been held
to be imperative. Similarly, the mode of making sale, mortgage, lease or gift prescribed by the
Transfer of Property Act, and the formalities prescribed for transfer of shares under the
Company Law, have been held to be imperative. The language in these cases is held
mandatory either on the view that by holding it directory the very object of the provisions will be
defeated or on the view that the same implies a negative prohibiting any mode of transfer other
than permitted by the statute.
When a statute prescribes the condition of ‘permission’ of some authority for acquisition
of some property, it does not necessarily mean ‘prior permission’ and permission ex post facto
may validate the acquisition; such a construction may be readily drawn when the statute at other
places uses the words ‘prior permission’ without any qualification.
In statutes conferring a power to be exercised on certain conditions, the conditions
prescribed are normally held to be mandatory; and a power inconsistent with those conditions is
impliedly negatived.
When the statute provides a method of suspending a HC judge pending investigation of
charges against him for his removal, that method alone can be adopted for suspending him and
the CJ has no administrative power to so fix the court roster as to virtually deprive him from
functioning as a judge.
A statutory discretion or power, whether it be administrative or quasi-judicial, although
conferred in wide terms has certain implied limitations giving rise to judicial review. The person
on whom the power is conferred must exercise it in good faith for furtherance of the object of the
statute; he must not proceed upon a misconstruction of the statute; he must take into account
matters relevant for exercise of the power; he must not be influenced by irrelevant matter; he
must not act irrationally of perversely, and he must not fetter his discretion in advance by
adopting a rigid rule or policy. Conferment of quasi-judicial power further implies that the person
concerned must follow the rules of natural justice, and must give reason for making the order
which he is empowered to make. Purely administrative bodies are also bound to act justly and
fairly which may bring in the requirement of natural justice, as also the duty to give reasons.
A power conferred to make subordinate legislation must be exercised in conformity with
the express and implied limitations contained in the empowering statute.
(iv) ‘May’ ; ‘It shall be lawful’ : ‘shall have power’
Ordinarily, the words ‘may’ and ‘it shall be lawful’ are not words of compulsion. They are
enabling wards and they only confer capacity, power or authority and imply a discretion. They
are both used in a statute to indicate that something may be done which prior to it could not be
done. The use of words ‘shall have power’ also connotes the same idea.
The words ‘an order under this act may be made by any Court’ as they occur in section
11 of the Probation of Offenders Act, 1958, imposed a duty to pass an order under the act
subject to conditions and limitations imposed by the act and that the court had no unfettered
discretion in refusing to pass an order when an occasion to pass the same arose within the four
corners of the act. Similarly, the words ‘the Court may pass a decree for eviction’, have been
construed as not conferring a discretion for refusing to pass decree where a landlord in a suit
has proved the fulfillment of all conditions entitling him to possession, and the court in such
cases is bound to pass a decree in his favour in spite of the use of the word ‘may’. Further, the
words ‘the Magistrate may take cognizance of any cognizable offence’ in section 190 (1)(b) of
the code of criminal procedure, 1973, have been construed to mean ‘must take cognizance’
leaving no discretion to the Magistrate. And so, a rule requiring that the ‘court may engage a
counsel to defend the person’ in a capital sentence case was held to cast an obligatory duty on
the Court to provide a counsel if the conditions of the rule were satisfied. When an act
conferring the power does not mention the conditions or the circumstances in which the power
is to be exercised it will be construed as discretionary and directory.
(vi) As he deems fit; think necessary; consider necessary :
Where a statute provides for the grounds on which a person is entitled to a certain relief
and confers power on a tribunal to pass orders ‘as it deems fit’, the exercise of the power to
grant the relief is not dependent upon the discretion of the tribunal.
The words ‘as deems fit’ do not bestow a power to make any order on consideration de
hors the statute which the authorities consider best according to their notions of justice’.
Similarly, the words ‘shall take such action thereon as it may think fit’ do not give a discretion to
take action outside the statute.
The words ‘think necessary’ or ‘consider necessary’ have also been held to confer a
discretion but not an unfettered discretion.
(vii) ‘Have regard to’
The words ‘have regard to’ when occurring in a statute should be construed in relation to
the context and the subject-matter. They only oblige the authority on whom the power is
conferred ‘to consider as relevant data material to which it must have regard’. Therefore, when
some statutory power is to be exercised ‘having regard to’ certain specified provisions, it means
that those matters must be taken into consideration.
(viii) Conjunctive and disjunctive words ‘or’ and ‘and’
The word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive but at times they
are read as vice versa to give effect to the manifest intention of the Legislature as disclosed
from the context.
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. “For ascertaining
the real intention of the Legislature”, points out SUBBARAO, J. “the court may consider inter
alia, the nature and design of the statute, and the consequences which would follow from
construing it the one way or the other; the impact of the other provisions whereby the necessity
of complying with the provisions in question is avoided; the circumstances, 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 the trivial
consequences that flow therefrom; and above all, whether the object of the legislation will be
defeated or furthered”. If object of the enactment will be defeated by holding the same directory,
it will be construed as mandatory, whereas if by holding it mandatory serious general
inconvenience will be created to innocent persons without very much furthering the object of
enactment, the same will be construed as directory. But all this does not mean that the
language used is to be ignored but only that the prima facie inference of the intention of the
Legislature arising from the words used may be displaced by considering the nature of the
enactment, its design and the consequences flowing from alternative constructions. Thus the
use of the words ‘as nearly as may be’ in contrast to the words ‘at least’ will prima facie indicate
a directory requirement, negative words a mandatory requirement ‘may’ a directory requirement
and ‘shall’ a mandatory requirement.
The correct position appears to be that substantial compliance of an enactment is
insisted, where mandatory and directory requirements are lumped together, for in such a case, if
mandatory requirements are complied with, it will be proper to say that the enactment has been
substantially complied with notwithstanding the non-compliance of directory requirements. The
point may be explained by taking an example of a set of service rules which provide that
adverse remarks shall be communicated to the civil servant concerned ordinarily within seven
months. The object of communicating the adverse remarks is to give an opportunity to the civil
servants to improve his performance to make up the deficiency noticed in his work and to give
him an opportunity to represent against the remarks, in case he disputes them, to the reviewing
authority. In the light of this object and having regard to the part adverse remarks play in the
service career, the rules on a proper construction will require: (i) communication of the remarks
to the civil servant concerned; (ii) communication within a reasonable time; and (iii)
communication ordinarily within seven months. The first two requirements will be construed as
mandatory and non-compliance of either of them will make the remarks as also any adverse
action on their basis invalid. The third requirement will be treated as directory and its non-
compliance alone will not make the remarks invalid if the first two requirements are satisfied.
A directory provision may be distinguished from a discretionary power. The former gives
no discretion and is intended to be obeyed, but a failure to obey it does not render a thing duly
donee in disobedience of it a nullity. The latter, i.e. a discretionary power leaves the done of the
power free to use or not to use it as his discretion.
The general rule that non-compliance of mandatory requirements results in nullification
of the act is subject at least to one exception. If certain requirements or conditions are provided
by a statute in the interest of a particular person, the requirements or conditions although
mandatory may be waived by him if no public interests are involved, and in such a case the act
done will be valid even if the requirement or condition has not been performed. It was, therefore,
held that the requirement of notice under section 80 of the code of civil procedure although
mandatory could be waived by the defendant as the provision was enacted merely for the
protection of the defendant state of authority. On the same principle, compliance of section 35 of
the Bengal Money-lenders Act which requires certain matters to be specified in a sale
proclamation for the benefit of the judgment-debtor, although mandatory, can be waived by him.
When consequences of nullification on failure to comply with a prescribed requirement if
provided by the statute itself, there can be no manner of doubt that such statutory requirement
must be interpreted as mandatory.
The periods prescribed in the schedule to the Indian Limitation Act, 1908 for bringing a
legal proceeding are mandatory as the consequence of the expiry of the period of limitation is
provided by section 3 of the Act in that the Court is enjoined to dismiss a legal proceeding
instituted after expiry of the prescribed period.
The requirement as to registration of certain documents prescribed by section 17 of the
Registration Act, 1908, or by any provision of the Transfer of Property Act, 1882, is mandatory
since the consequence of non registration is provided by section 49 of the Registration Act in
that such documents if not registered do not affect the property comprised therein,
When the statute does not expressly provide for nullification as a consequence of the
non-compliance of the statutory injunction but imposes expressly some other penalty, it is a
question of construction in each given case whether the Legislature intended to lay down an
absolute prohibition or merely to make the offending person liable for the penalty.
If the statute, having regard to its object, purpose and scope “is found to be directory,
penalty may be incurred for non compliance but the act or thing done is regarded as good.
(i) Use of negative words :
Another mode of showing a clear intention that the provision enacted is mandatory, is by
clothing the command in a negative form.
But the principle is not without exception. Section 256 of the Government of India Act,
1935, was construed by the Federal Court as directory though worded in the negative form.
Directions relating to solemnization of marriages though using negative words have been
construed as directory in cases where the enactments in question did not provide for the
consequence that the marriage in breach of those directions shall be invalid. Considerations of
general inconvenience, which would have resulted in holding these enactments mandatory,
appear to have outweighed the effect of the negative words in reaching the conclusion that they
were in their true meaning merely directory.
(ii) Affirmative words may imply a negative :
Affirmative words stand at a weaker footing than negative words for reading the
provision as mandatory, but affirmative words may also be so limiting as to imply a negative.
The provisions of sections 54, 59, 107 and 123 if the Transfer of Property Act 1882, prescribing
modes of transfer by sale, mortgage, lease or gift may be mentioned. The formalities prescribed
by these provisions for effecting a transfer of the nature mentioned in them are mandatory and
the language used although affirmative clearly imports a negative.
(iii) Use of ‘shall’ or ‘shall and may’; ‘must and should’
The use of word ‘shall’ raises a presumption that the particular provision is imperative,
but this prima facie inference may be rebutted by other considerations such as the object and
scope of the enactment and the consequences flowing from such construction. There are
numerous cases where the word ‘shall’ has, therefore, been construed as merely directory.
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. If different provisions are connected with the same word ‘shall’ and if with respect to
some of them the intention of the Legislature is clear that the word ‘shall’ in relation to them
must be given an obligatory or a directory meaning, it may indicate that with respect to other
provisions also, the same construction should be placed. If the word ‘shall’ has been substituted
for the word ‘may’ by an amendment , it will be a very strong indication that use of ‘shall’ makes
the provision imperative. Similar will be the position when the bill as introduced used the word
‘may’ and the parliament substituted the word ‘shall’ in its place while passing the Act. The use
of word ‘may’ at one place and ‘shall’ at another place in the same section may strength the
inference that these words have been used in their primary sense and that ‘shall’ should be
construed ad mandatory.
The use of the word ‘shall’ with respect to one matter and use of word ‘may’ with respect
to another matter in the same section of a statute, will normally lead to the conclusion that the
word shall imposes an obligation, whereas the word ‘may’ confers a discretionary power. But
that by itself Is not decisive and the court may having regard to the context the consequences
come to the conclusion that the part using ‘shall’ is directory.
The use of the word ‘must’ in place of ‘shall’ will itself be sufficient to hold the provision
to be mandatory and it will not be necessary to pursue the enquiry any further. The use of the
word ‘should’ instead of ‘must’ may not justify the inference that the provision is directory if the
context shows otherwise.
Where the statute imposes a public duty and lays down the manner in which and the
time within which the duty shall be performed, injustice or inconvenience resulting from a rigid
adherence to the statutory prescriptions may be a relevant factor in holding such prescriptions
only directory.
It was held that where a public officer is directed by a statute to perform a duty within a
specified time the cases establish that provisions as to time are only directory. Similarly, it has
been held while construing section 17 (1) of the Industrial Disputes Act 1947, that it is obligatory
on the government to publish an award, but the provision, that it should be published within
thirty days, is not mandatory and an award published beyond thirty days is not invalid. A
provision fixing a time, within which a public officer or authority has to act in performance of a
duty, generally means that the statute considers it reasonable for the officer or authority to act
within the said period. The expiry of the period without more confers no right unless the statute
by a legal fiction or otherwise confers a right. Thus a provision in a municipal act that an
application for layout should be disposed of within a particular time does not mean that the
application must be deemed to have been granted after expiry of the said period unless there is
a provision to that effect made in the act. If performance of a public duty is required to be done
within a specified time, which is also related to a right given to a person, the provision as to time
will still be held as directory unless it is shown that the person on whom the related right is
conferred is prejudiced because of the non performance of the duty within the specified time.
Having regard to the gravity of a dispute as to the age of High Court Judge provision for
consultation with the Chief Justice of India in Article 217 (3) of the Constitution has been held to
be mandatory. Similarly having regard to the object of securing independence of subordinate
judiciary, provision for consultation with the High Court in the matter of appointment of District
Judges as enacted in Article 233 of the Constitution has been held mandatory.
Formalities and requirements for making contracts or transfers have generally been held
to be imperative. Similarly, the mode of making sale, mortgage, lease or gift prescribed by the
Transfer of Property Act, and the formalities prescribed for transfer of shares under the
Company Law, have been held to be imperative. The language in these cases is held
mandatory either on the view that by holding it directory the very object of the provisions will be
defeated or on the view that the same implies a negative prohibiting any mode of transfer other
than permitted by the statute.
When a statute prescribes the condition of ‘permission’ of some authority for acquisition
of some property, it does not necessarily mean ‘prior permission’ and permission ex post facto
may validate the acquisition; such a construction may be readily drawn when the statute at other
places uses the words ‘prior permission’ without any qualification.
In statutes conferring a power to be exercised on certain conditions, the conditions
prescribed are normally held to be mandatory; and a power inconsistent with those conditions is
impliedly negatived.
When the statute provides a method of suspending a HC judge pending investigation of
charges against him for his removal, that method alone can be adopted for suspending him and
the CJ has no administrative power to so fix the court roster as to virtually deprive him from
functioning as a judge.
A statutory discretion or power, whether it be administrative or quasi-judicial, although
conferred in wide terms has certain implied limitations giving rise to judicial review. The person
on whom the power is conferred must exercise it in good faith for furtherance of the object of the
statute; he must not proceed upon a misconstruction of the statute; he must take into account
matters relevant for exercise of the power; he must not be influenced by irrelevant matter; he
must not act irrationally of perversely, and he must not fetter his discretion in advance by
adopting a rigid rule or policy. Conferment of quasi-judicial power further implies that the person
concerned must follow the rules of natural justice, and must give reason for making the order
which he is empowered to make. Purely administrative bodies are also bound to act justly and
fairly which may bring in the requirement of natural justice, as also the duty to give reasons.
A power conferred to make subordinate legislation must be exercised in conformity with
the express and implied limitations contained in the empowering statute.
(iv) ‘May’ ; ‘It shall be lawful’ : ‘shall have power’
Ordinarily, the words ‘may’ and ‘it shall be lawful’ are not words of compulsion. They are
enabling wards and they only confer capacity, power or authority and imply a discretion. They
are both used in a statute to indicate that something may be done which prior to it could not be
done. The use of words ‘shall have power’ also connotes the same idea.
The words ‘an order under this act may be made by any Court’ as they occur in section
11 of the Probation of Offenders Act, 1958, imposed a duty to pass an order under the act
subject to conditions and limitations imposed by the act and that the court had no unfettered
discretion in refusing to pass an order when an occasion to pass the same arose within the four
corners of the act. Similarly, the words ‘the Court may pass a decree for eviction’, have been
construed as not conferring a discretion for refusing to pass decree where a landlord in a suit
has proved the fulfillment of all conditions entitling him to possession, and the court in such
cases is bound to pass a decree in his favour in spite of the use of the word ‘may’. Further, the
words ‘the Magistrate may take cognizance of any cognizable offence’ in section 190 (1)(b) of
the code of criminal procedure, 1973, have been construed to mean ‘must take cognizance’
leaving no discretion to the Magistrate. And so, a rule requiring that the ‘court may engage a
counsel to defend the person’ in a capital sentence case was held to cast an obligatory duty on
the Court to provide a counsel if the conditions of the rule were satisfied. When an act
conferring the power does not mention the conditions or the circumstances in which the power
is to be exercised it will be construed as discretionary and directory.
(vi) As he deems fit; think necessary; consider necessary :
Where a statute provides for the grounds on which a person is entitled to a certain relief
and confers power on a tribunal to pass orders ‘as it deems fit’, the exercise of the power to
grant the relief is not dependent upon the discretion of the tribunal.
The words ‘as deems fit’ do not bestow a power to make any order on consideration de
hors the statute which the authorities consider best according to their notions of justice’.
Similarly, the words ‘shall take such action thereon as it may think fit’ do not give a discretion to
take action outside the statute.
The words ‘think necessary’ or ‘consider necessary’ have also been held to confer a
discretion but not an unfettered discretion.
(vii) ‘Have regard to’
The words ‘have regard to’ when occurring in a statute should be construed in relation to
the context and the subject-matter. They only oblige the authority on whom the power is
conferred ‘to consider as relevant data material to which it must have regard’. Therefore, when
some statutory power is to be exercised ‘having regard to’ certain specified provisions, it means
that those matters must be taken into consideration.
(viii) Conjunctive and disjunctive words ‘or’ and ‘and’
The word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive but at times they
are read as vice versa to give effect to the manifest intention of the Legislature as disclosed
from the context.
