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Judgment
A.P. Chowdhri, J.
The principal question arising for decision in these three Civil Writ Petitions (Civil Writ Petitions No. 2277 of 1983, 1301 of 1984 and 4247 of 1985) is whether the time frame mentioned in section 18 of the Haryana Canal and Drainage Act, 1974, is mandatory or directory ?
Briefly, the material facts are that the Divisional Canal Officer ("D.C.O." for short) prepared a scheme under Section 17 of the Act. `Whether the outlet at R.D. 7500 or at R.D. 8620 at Sherpur distributary was to be made permanent''. The Scheme was duly published in accordance with the rules and the D.C.O. heard the shareholders concerned on 28.10.1981. He inspected the spot on 28.7.1982 and ultimately sanctioned outlet at R.D. 7500R. at Sherpur distributory by order dated 25.8.1982 (Annexure P1). Appeal against the order was dismissed by Superintending Canal Officer ("S.C.O." for short) Annexure P2 on 24.11.1982. A second appeal was, however, allowed by the Chief Canal Officer ("C.C.O." for short) by order Annexure P3 dated 5.4.1983. He held that the outlet was to be fixed at R.D. 8620R.
The order passed by the Canal Authorities i.e Annexures P1 to P3 have been challenged by the petitioners on various grounds.
The facts in C.W.P. No. 1301 of 1984 are that the D.C.O. prepared a scheme for transferring 50 acres of land outlet at R.D. 172260/R to R.D. 168930 of Fatehbad distributary. He heard the share holders concerned on 21.9.1982 and inspected the spot on 4.10.1982. He found that it was necessary to construct a siphon. He made a recommendation to the higher authorities. The sanction was received on 28.4.1983. He, therefore, fixed the case for a fresh hearing on 9.6.1983 and after hearing the parties concerned approved the scheme by order Annexure P1 dated 30.6.1983. The first appeal was dismissed by S.C.O. by order Annexure P2 on 17.11.1983 and the second appeal was dismissed by C.C.O. vide order dated 3.1.1984, Annexure P3. The petitioners have challenged the orders Annexure P1 to P3 in the said writ petition.
The facts in C.W.P. No. 4247 of 1985 are that the D.C.O. took up a scheme for the transfer of 19.55 acres of land from outlet R.D. 11300L on Balak minor to outlet R.D. 34000R Sarsaund minor. The scheme affected two villages, namely Khedar and Barwala. When the matter was taken up for hearing in the presence of the shareholders for consideration on 27.10.1983, it was discovered that report regarding publication of the scheme at village Barwala had not been received. He, therefore, adjourned the hearing, which ultimately took place on 3.11.1983, after publication of the scheme at village Barwala. He approved the scheme by order Annexure P1 dated 1.12.1983. The S.C.O. allowed appeal against the said order on 9.1.1985 vide Annexures P.2. On a further appeal to the C.C.O. the order of S.C.O. was set aside and that of D.C.O. ws upheld by order Annexure P3. The petitioners have challenged the orders passed by the Canal Authorities.
The three petitions have been contested. In the return, it was pleaded that the timeframe referred to in section 18 was adhered to. It was stated that spot inspection was an integral part of receipt of objections and suggestions and this is the date which should be taken for purposes of the receipt of objections and suggestion. It was further pleaded that the timeschedule mentioned in section 18 of the Act is directory and not mandatory. It was also pleaded that the petitioners having failed to take the objection regarding nonobservance of the timelimit mentioned in section 18 of the Act in appeal before the S.C.O. and C.C.O. were debarred/estopped from raising the said point in the present writ petitions. If was also stated that what is in the interest of better irrigation is to be determined by the Canal Authorities, the limited jurisdiction of the Court is to see whether mandatory provisions of the Act regarding procedure had been followed.
In C.W.P. No. 1301 of 1984 and C.W.P. No. 4247 of 1985, it was further stated that the orders passed by the C.C.O. had been implemented and fresh warabandi had been fixed already and irrigation was going on according to the orders passed by the C.C.O. in the said two cases.
In C.W.P. No. 2277 of 1983, the further defences were that Sis Ram and Partap Singh, respondents were aggrieved persons being shareholders and affected by the decision and were entitled to file the respective appeals. It was also stated that even though all shareholders were not impleaded, all shareholders were given notices and all concerned actually appeared in person and mostly through their counsel.
The further defences in C.W.P. No. 1301 of 1984 were that some of the petitioners had filed as many as three civil suits in the Court of Subordinate Judge and on refusal/vacation of temporary ad interim injunction those suits were withdrawn without permission to file a fresh suit. The present writ petitions were barred in view of the principle under Order 23, Rule 1 of the Code of Civil Procedure.
It was also stated that the petitioners agreed to the lining of the new watercourse by Haryana State Minor Irrigation Tubewell Corporation in pursuance of scheme published on 19.1.1985 and they were therefore, estopped from challenging the order passed by the Canal Authorities.
The contention of learned counsel for the petitioners is that the use of the word "shall" goes a long way to show that the provision of section 18 of the Act is mandatory. It was argued that where the language used in any enactment is plain, there is no scope for interpretation and the language must be given its natural meaning. In this connection, it was pointed out that publication of scheme referred to in section 18(1) of the Act had been held mandatory. The provisions prescribing time limit also occur in the same subsection and, therefore, the same was equally mandatory. The Legislature further made a provision that wherever the procedure could not be completed, the D.C.O. would make a report to the S.C.O., who could grant extension for good and sufficient reasons. It was emphasized that the said provision clinched the issue and the provision should be held to be mandatory. It was also argued that procedure having been completed within the time prescribed in the Act, the order passed by D.C.O. concerned was void and subsequent orders passed in appeal directed against the order of the D.C.O. were also rendered void ab initio. It was also contended that an objection which goes to the root of the matter i.e. touching the very jurisdiction of the Tribunal could be raised in the writ petition, even though it was not raised before the Tribunal whose orders are under challenge. there was no estoppel against the statute. According to the petitioners, therefore, there was a breach of the mandatory provisions with regard to observance of the time frame mentioned in section 18 of the Act and the orders passed were without jurisdiction and void and the scheme in all these stood dropped.
It was argued on behalf of the respondents that use of the word "shall" is not conclusive to determine whether the provision is mandatory or only directory. In order to decide the question whether a particular provision is mandatory or otherwise, wellknown tests must be applied. Section 18 of the Act contained a machinery for working the provisions with reasonable despatch and every step envisaged therein was not necessarily mandatory. It was also, argued that holding every part of section 18 including the time frame to be mandatory may result in great inconvenience to the public at large, it would be against public policy and result in great injustice besides adversely affecting improvement and maintenance of irrigation.
Section 18 of the Act reads as under :
"18. Publication of Scheme. (1) Every scheme shall, as soon as may be after its preparation, published in such form and manner as may be prescribed for inviting objections and suggestions in respect thereof within twentyone days of its publication.
(2) After considering such objections and suggestions if any the Divisional Canal Officer shall approve, modify or reject the scheme within thirty days of the time for the receipt of such objections and suggestions, unless this period is extended by the Superintending Canal Officer for good and sufficient reasons :
Provided that in the following cases, the prior approval of the Chief Canal Officer shall be obtained for allowing
(a) a new outlet on a main canal or breach canal;
(b) an outlet with discharge of less then 0.75 cusec.
Subsection (1) prescribes a period of twentyone days from the date of publication of the scheme for inviting objections and suggestions. Subsection (2) provides that the D.C.O. shall take a decision approving, modifying or rejecting the scheme within thirty days of the time for the receipt of such objections and suggestions. Literally, therefore, the entire exercise upto decision of the D.C.O. is required to be completed from the date of publication of the scheme. An exception provided in subsection (2) is that the period of thirty days can be extended by the S.C.O. for good and sufficient reasons. Admittedly, in the cases in hand, no extension was sought by D.C.O., nor granted by the S.C.O. The fact that scheme in all the three cases was published in accordance with the rules, is recorded in the impugned order, Annexure P1, in all the three cases, but date of publication is not mentioned, except C.W.P. No. 4247 of 1985 in which when the case was taken up on 27.10.1983, it was found that the report regarding publication of scheme at village Barwala had not been received and, therefore, the case was adjourned to 3.11.1983. Even in the said writ petition, the date of publication in the two concerned villages is not available. It is, therefore, not possible to count the period of twentyone days for consideration of the objections and suggestions from the date of publication of the scheme. It may, however, be observed that the period of thirty days referred to in subsection (2) of section 18 is not to be counted from the date ending twentyone days of the publication of the scheme mentioned in subsection (1). The language used in subsection (1) is "inviting objections and suggestions in respect thereof within twentyone days of its publication". The language used in subsection (2) on the other hand is "Within thirty days of the time for the receipt of such objections and suggestions". It follows that while inviting objections and suggestions is to be completed within twentyone days, the receipt of objections and suggestions, is not necessarily limited to twentyone days. If the two subsections are harmoniously construed, the intention appears to be that twentyone days'' time shall be given for "inviting" objections and suggestions, but the decision shall be rendered within thirty days of the "receipt" of the objections and suggestions. The objections and suggestions necessarily include an inspection of the spot wherever it is considered necessary or expedient. The objections and suggestions cannot be appreciated in the facts of a given case unless the spot is inspected. The period of thirty days mentioned in subsection (2) therefore has to be counted from the date of inspection of the spot. Thus construed the decision was rendered by D.C.O. in C.W.P. No. 2277 of 1983 within thirty days of the inspection of the spot, but not in the remaining two Civil Writ Petition, i.e. in C.W.P. No. 1301 of 1984 and C.W.P. No. 4247 of 1985. In the last mentioned case no inspection of the spot was carried out. Be that as it may, the real question is whether the time frame mentioned in section 18, is mandatory.
The relevant principles for interpretation stand settled by various decisions. For the present purposes, these principles may be briefly stated as under :
(i) An enactment which is mandatory in form might to directory in substance. The use of word "shall" does not conclude the matter and the practical bearing of the distinction between a mandatory and directory provision is that while the former must be strictly observed, in the latter case it is sufficient if it is substantially complied with. In State of U.P. v. Manbodhan Lal, AIR 1957 S.C. 912, their Lordships held as under :
"The use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case, it shall have that effect that is to say, that unless the words of the statute are punctiliously followed the proceedings or the outcome of proceedings, would be invalid. On the other, hand, it is not always correct to say that where the word `may'' has been used, the statute is only permissible or directory in the sense that noncompliance with those provisions will not render the proceeding invalid."
(Please also see Banwari Aggarwal v. State of Bihar, A.I.R. 1961 S.C. 849, and Karam Singh Grewal v. The State of Punjab and others, 1975(2) S.L.R. 189 (Full Bench) Punjab & Haryana).
(ii) Whether a certain provision is mandatory in character or merely directory is for the Court to decide by applying well settled principles of interpretation. In Narayan Krishnaji v. State, A.I.R. 1967 Bombay 213 it was observed, "And when the Legislature does not itself state which is which, Judges must determine the matter and exercising nice discrimination sort out one class from the other along broadbased commonsense lines."
(iii) Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who had no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed. In Dattatraya Moreshwar v. the State of Bombay and others, AIR 1952 S.C. 181, it was held :
"It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a 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 Court to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."
Reference may also be made to D.A. Karegaonkar v. State, AIR 1958 Bombay 167.
(iv) Where no public policy is involved, the provisions should be held to be directory. (See Satyanarayana v. Subiah, A.I.R. 1957 Andh. Pra. 172). Same is the case where some collateral requirements have been imposed for reasons of administrative convenience and such collateral requirements have not been meticulously observed. (See Calcutta National Bank Ltd. v. Rangoon Tea Co., AIR 1967 Cal. 294).
The principles for determining whether a particular enactment is directory or mandatory, have been set out in Article 226 of Crawford''s Treatise on Statutory Construction, which is in the following terms :
"266. As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order and convenience, and neither public not private rights will be injured or impaired thereby.
If the statute is negative in form or if nothing is stated regarding the consequences or effect of noncompliance, the indication is all the stronger that it should not be considered mandatory. But if the public interest or private rights call for the exercise of the power vested in a public official, the language used, though permissive or directory in form, is in fact peremptory or mandatory, as a general rule".
This article was cited with approval by Das, C.J. in Dattatraya Moreshwar v. State of Bombay, A.I.R. 1952 S.C. 181.
The same learned author observed at page 518 as under :
"In other words, most statutes of a comprehensive and detailed nature are likely to contain many requirements which pertain to minor or nonessential particulars. The basic test by which to determine whether the requirement is essential or not, is to consider the consequence of the failure to follow the statute. In this way the importance of the requirement will be revealed. If the requirement is revealed to be important, it may logically be assumed that the Legislature intended that it be met; if found to be unimportant then it need not be met.......After all, if every minor and nonessential detail of a statute were considered imperative, almost every act performed in accordance therewith would be invalid or ineffective, whether the act was performed by individuals or by public officers. The confusion and impotency which would take place would in all probability break down our legal system. In order for law to be administered efficiently, effectively and expeditiously, the distinction between essential and nonessential requirements must be maintained, either by the Courts or by express legislative enactment."
Applying the above principles to section 18 of the Act, if the impugned orders are held void, it will necessarily result in waste of considerable time and result in great inconvenience and setback to irrigation. On the other, hand, if the provisions regarding time limit for processing and approving a scheme under section 18 of the Act are held to be directory it will result in no prejudice to any person or class of persons and would be in the interests of maintenance of an efficient system of irrigation. No public policy appears to be involved beyond the administrative convenience that the schemes prepared and dealt with in Part III of the Act should be finalised without any undue delay. The case of publication of a scheme as distinguished from the time frame within which this must be done stands on a different footing. The publication of the scheme affords an opportunity to the shareholders concerned to come forward and submit their objections or suggestions so that a final decision is taken which is in overall interest of better irrigation. The publication of the scheme thus goes to the root of the matter and had been rightly held to be a mandatory requirement of section 18 of the Act in Bir Singh v. State of Punjab, 1974 PLJ 162; Bhan Singh and others v. The Superintending Canal Officer, 1969 PLJ 401 and Bhagwana v. Divisional Canal Officer, 1969 PLJ 443, etc.
For the reasons discussed above, I have no doubt that the provisions fixing time limit in section 18 of the Act is only directory and its noncompliance does not vitiate the order on that ground. What is required is a substantial compliance of the provisions in so far as time limit is concerned. The facts of the three petitions clearly show that the provisions were substantially complied with.
In view of the above conclusion, it is not necessary to go into the other pleas raised by the respondents. In the result, the writ petitions are hereby dismissed. The parties shall bear their own costs.