# RAZA BULAND SUGAR CO. LTD v. MUNICIPAL BOARD, RAMPUR - **Citation:** [1965] 1 S.C.R. 970 - **Court:** Supreme Court of India - **Decided:** 1964-10-30 - **Bench:** Per GA.JE:-ODRAGADKAR C. J - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raza-buland-sugar-co-ltd-v-municipal-board-rampur-3288 - **Pages:** 20 ## Headnote WANCHOO and RAGtlliHAR OA YAt. J J.) ·-( i) Section 131 ( 3) can he divided into two parts-the first oac providing that the proposal and draft rules for a tax intended to be imposed shutild be pllhlishcocn published in a Hindi paper. The High Court dismissed the petition hut granted a Cc'1ificatc under Art. ! 33 ( 1 )( c). The q ucstions for consideration were whelher the whole of s. 131 ( 3) y:;v; mandatory, or the part of it requiring publication in the manner Ia.id down in s. 94( 3) i.e., in a Hindi nev.·spapcr ~·as merely directory; and whether the publication in the Government Gazette of the notification impo5ing the tax wns not conclusive proof, as provided in s. 135(3), of the prescribed procedure having beea observed. HElJ) : (Per GA.JE:-ODRAGADKAR C. J., WANCHOO and RAGtlliHAR OA YAt. J J.) ·-( i) Section 131 ( 3) can he divided into two parts-the first oac providing that the proposal and draft rules for a tax intended to be imposed shutild be pllhlishcs orders thereon by special resolution and if it thinks necessary it can modify the proposals. If the proposals and the rules (if any) are modified, the modified proposals and rules are again published. H It is open to any inhabitant of the municipality again to object to the modified proposals, and if any such objection is made, it , l ; • • BULAND SUGAR v. MUNICIPAL BOARD (Wanchoo /,) 973 A is dealt with in the same manner as objections to the original proposals. When the proposals have been finally settled, the Board has to submit them along with the objections to the prescribed authority or the State Government, as the case may be, under s. 133 of the Act. The prescribed authority or the State Government has the power thereunder to sanction the proposals or to return B them to the Board for further consideration or sanction them without modification or with such modificatjon not involving an increase of the amount to be imposed as io deems fit. Section 134 provides that when the proposals have been sanctioned, the State Government has to take into consideration the draft rules subC mitted by the Board and make such rules under s. 296 of the Act as it thinks fit. When the rules have been made the order of sanction and a copy of the rules has to be sent to the Board which thereupon by special resolution has to direct the imposition of the tax with effect from the date to be specified in the resolu· ti on. Section 13 5· then provides that a copy of the above resoluD tion has to be submitted to the State Government or the prescribed authority, as the case may be. Upon receipt of such copy, the State Government or the prescribed authority, as :the case may be, has to notify in the official gazette the imposition of the tax from the .appointed day and the imposition of the tax is in all cases subject to the condition that it has been so notified under E s. 135 (2). Then comes s. 135 (3), which reads as follows:- F G H "A notification of the imposition of a tax under subsection (2) shall be conch,1sive proof that the tax has been imposed in accordance with the provisions of this Act." Section 94 (3) which provides for the manner of publication readi thus :- "Every resolution passed by a Board at a meeting shall, as soon thereafter as may be, be published in a local paper published in Hindi and where there is no such local paper, in such manner as the State Government may, by general or special order, direct." According to the respondent, it followed the procedure provided under the Act for the imposi\ion of the tax and after following the procedure the tax came to be imposed from April 1, 1957 at the rate of 10 per centum of the annual value of lands and buildings. After the tax was thus imposed, the respondent sent notices of demand to the appellant requiring it to pay water tax for the years 1957-58 and 1958-59. This was dono on -~7" SUPREME COURT REPORTS [1965] l S.CR. October 7, 1958. It may be added that under s. 129 of the Act there are certain restrictions subject to which water tax can be imposed and one of the restrictions is that the tax shall not· be imposed, where the unit of assessment is a plot of land or a building, on any such plot or building of which no part is within a radius to be fixed by rule in this behalf for each municipality from the nearest standpipe or other waterwork whereat water is made avai'able to the public by the Board. In the present case this limit has been fixed by the rules at 600 feet. The appellant objected to the payment of water tax demanded from it, and one of its objections was that it was exempt under s. 129 (a), as there was no standpipe or other waterwork whereat water was made available to the public by the respondent within 600 feet of the buildings of the factory, the Central Oflice or the Govan Colony, except that some buildings outside the main Raza Sugar Factory were within 600 feet. The respondent however rejected the objections, and threatened to recover the amount by coercive process. The appellant then filed a writ petition before the High Court in December 1958 and a large number of grounds were taken in the writ petition in ~upport of its case that it was not liable to pay· water tax, including certain constitutional objections to the vires of the Act itself. The appellant failed in tht High Court- on all points and has come up in appeal before us on a certificate granted by the High Court. In the present appeal however only two points have been urged before us on behalf of the appellant.. We arc therefore not concerned with the other points raised in the High Court and shall confine ourselves to the two points urged before us, namely- ( 1) There was no publication as provided by s. I 31 ( 3) read withs. 94(3) of the Act, and as the provision of s. 131 (3) is mandatory and was not complied with. all subsequent action taken for the imposition of the tax was bad for non·compliance with a mandatory provision and therefore the tax itself was not levied according to law and could not be realised; and ( 2) the tax could not be levied on most of the premises belonging to the appellant as there was no standpipe or other waterwork whereat water was made available to the public by the respondent within 600 feet of all of the buildings of the appellant. A B c • D ' E F • G H ' , f • A. B BULAND SUGAR v. MUNICIPAL BOARD (Wanchoo /.) 975, We shall first consider the ground as to publication and three questions fall to be decided in that behalf : (first), is publication as provided in s. 131 (3) mandatory or directory, for it is contended on behalf of the respondent that publication under s. 131(3) is merely directory; (secondly), was the publication in this case strictly in accordance with the manner provided in s. 94 ( 3) ; and (thirdly), if the publication was not strictly in accordance with the manner provided in s. 94 ( 3), is the defect curable under s. 13 5 ( 3) ? The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the word C "shall"-as in the present case---is merely directory- cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. .The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general D iltconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to E be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. F The respondent strongly relies on the State of U.P. v. Manbodhan Lal Srivastava('), where Art. 320(3)(c) of the Constitution was held to be directory and not mandatory, and contends that the principle of that case applies with full force to the facts of the present case. It--is therefore necessary to consider that case before we consider the facts of the present case in the light of the circumstances to which we have referred above and which are helpful in determining whether a particular provision is mandatory or directory. Article 320(3)(c) provides for consultaG tion with the Public Service Commission on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, and the language of the Article is mandatory in form, as it provides that the Public Service Commission shall _be consulted. This Court relied on the following observations of the Judicial Committee of the Privy H Council in Montreal Street Railway Company v. Normandin(') in that connection:- (I) [1958] S.C.R. 533. (2) (1917) LR. A.C. 170. 971 SUPREME COURT REPORTS (1965] I S.C.111.. "The question whether provisions in a statute are directory or imperative has very frequently arisen in tltis country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. . . . 'Nhen 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 to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done." A B c niat wa' a case wheie the jury lists had not been revised as required by law. Following the principle laid down in that case, this Court held that Art. 320(3 )( c) itself contemplates three grounds: (i) that the proviso to Art. 320 itself contemplates D that regulations may be made specifying matters in which either generally, or in any particular class of cases or in particular circumstances it shall not be necessary for a Public Service tomrnission to be consulted; (ii) that the advice of the Public Service Commission was not binding on the Government, and in the absence of such binding character it was difficult to sec how non-compliance with the provisions of Art. 320(3)(c) could have the effect E of nullifying the final order pas1ed by the Government; and (iii) that Art. 311 wa' not in any way controlled by Art. 320 and there was no provision in the Constitution expressly or otherwise providing that the result of non-compliance with Art. 320(3)(c) would be to invalidate the proceedings ending with the finnl order of the Government. It was also pointed out in tlrnt case that an examination of the terms of Art. 320 showed that the word "shall'" appeared in almost every parag,aph and every clause or sub-clause of that Article. If it were held that the provisions of Art. 320(3)(c) were mandalorv in terms, the other clauses or sub-clauses of that Article would have to be equally held to be mandatory. If they \¥ere so held, any appointments made to the public services without observing strictly the terms of these sub-clauses in cl. (3) of Art. 320 would adversely affect the person ~o a ppointcd to a public service, without :my fault on his part and without his having any say in the matter. and this could not have been intended hy the makers of the Constitution. Tims this Court approximated Art. 320(3)(c) to a statutory F G H • I • • I A B c BULAND SUGAR v. MUNICIPAL BOARD (Wanchoo J.) 977 provision like the one which came up for consideration in Montreal Street Railway Company"s case(') and held that if the Article were construed as mandatory, it wonld canse serio~ general inconvenience, and injnstice to persons who had no control over those entrusted with the duty. That decision was clearly based on the special facts in that case dealing with appointments and dismissals of public servants and the duty of the Government to consult the Public Service Commission in that behalf and cannot and should not be extended to case! based on a different set of facts. As the Judicial Committee itself pointed out the question whether provisions in a statute are directory or mandatory cannot be decided by laying down a general rule and in every case the object of the statute must be looked at. That case therefore in the circumstances is of little assistance· to the respondent, except insofar as it lays down the principle that no general rule. can be laid down for determining the question whether a provision in a statute is directory D or mandatory, and that every tase will have to be judged on the basis of the object of the statute concerned. This brings us to the examination of the facts and circumstance!; of the present statute in the light of what we have said above as to the criteria for determining whether a provision in a statute is mandatory or directory. The provision with which E we are concerned, namely, s. J.31(3), can be divided into two parts. The first pan lays down that the Board shall publish proposals and draft rules along- with a notice inviting objections to the proposals or the draft rules so published within a fortnight from the publication of the notice (see Sch. Ill). The second F part provides for the manner of publication and that manner is according to s. 94 ( 3). We shall first deal with what we have called the first part of s. 131 ( 3). This provision deals with taxation. The object of providing for publication of proposals and draft rules .is to invite objections from the inhabitants of the municipality, who have to pay the tax. The purpose of such G publication obviously is to further the democratic process and to provide a reasonable opportunity of peing heard to those who are likely to be affected by the tax before imposing it on them. It is true that finally it is the Board itself which settles the proposals with respect to taxation and submits them to Government or the prescn"bed authority, as the case may be, for approval. H Even so we have no doubt that the object behind this puhlirntion is to find out the reaction of tax payers generally to the tairntion (!) [1917] L.R. A.C. 170. SUPREME COURT REPORTS [1965] I S.C.R. proposals, and it may very well be in a particular case that the Board may drop the proposals altogether and may not proceed further with them. if the reaction of the tax-payers in general i> of disapprobation. Further the purpose served by the publication of the proposals being to invite objections, in particular from the tax-payers, to the tax proposed to be levied on them, the legislature in its wisdom thought that compliance with this part of s. 131 ( 3) would essentially carry out that purpose. In the circumstances if we are to hold that this part of A B s. 131 ( 3) was merely directory, the whole purpose of the v~ry elaborate procedure provided in ss. 131 to 135 for the impo- 'ition of tax would become meaningless, for the main basis of c that procedure is the consideration of objections of tax-payers '"1 the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided ir. the Act before a tax is imposed nugatory. We are thereforo o: opinion that this part of s. 131 (3) is mandatory D '"d it is nocessary to comply with it strictly before any tax can be imposed. We shall consider the interpretation of s. 135(3) later. but we have no doubt that in the present. case, in spite of s. 135 (3), the legislature intended that there must be publication as provided in what we have called the first part of s. 131 n l. We therefore bold that this part of s. 131 ( 3) is mandatory considering its language. the purpose for which it ha~ been enacted, E the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we sec no serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory: on the other hand it will be unjust to tax-payers if F this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of s. 131 (3) is mandatory. Turning now to the second part, which provides for tho G manner of publication, that manner is provided in s. 94(3) already set out above. It seems to us that when the legislature rrovided for the manner of publication it did not intend that that manner should be mandatory. So long as publication is made in substantial compliance with the manner provided in < 94(3 ), that would serve the purpose of the mandatory part H ''r the section which provides for publication. Tt would therefore not bo bnproper to hold that the manner of publication providOO ' l • A B c D E F BULAND SUGAR v. MUNICIPAL BOARD (Wanchoo}.) 979 1n s. 94(3) is directory and so long as there is substantial compliance with that the purpose of the mandatory part of s. 131 ( 3) would be served. In this connection we may refer to K. Kamaraja NadaJ' v. Kun ju The var('). In that case, a question arose whether s. 117 of the Representation of the People Act (No. 43 of 1951) was mandatory or directory. That section required that a petitioner filing an election petition had to enclose with the petition a Government Treasury receipt· showing that a deposit of one thousand rupees had been made by hini either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition. This Court analysed this provision and observed that it consisted of three parts : namely, (i) the Government Treasury receipt must show that such deposit had been actually mape in a Government Treasury or in the Reserve Bank of India; (ii) it must also show that it had been made in favour of the Secretary to the Election Commission; and (iii) it must further show that it had been made as security for the costs of the petition. The question then arose whether the words "in favour of the Secretary to the Election Commission" were mandato:] in character so that if the deposit had not been made in favour of the Secretary to the Election Commission as therein specified the deposit even though made in a Government Treasury or in the Reserve Bank of India and as security for the costs of the petition would be invalid arid of no avail. This Court held that these words in s. 117 were directory and not mandatory in their character, and that the essence of the provision contained in s. 117 was that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees had been made by him either in a Government Treasury or in the Reserve Bank of India to be at the disposal of the Election 'Commission to be utilised by it in the manner authorised by law and was under its control and payable on a G proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else. If this essential requirement was complied with, no literal compliance was at all necessary with the words "in favour H of the Secretary to the Election Commission" appearing in that section. Though, therefore, the making of the deposit and the presentation of the receipt thereof along with the petition was (I) [1959] S.C.R. '83. L2Sup./6S- 9110 SUPREME COURT REPORTS [1965) I S.C.R. hold to be mandatory, this Court held that the fonn in which A the deposit should be made was only directory. The principie of that case in our opinion applies to the manner of publication provided in s. 94(3) in the present case. As we hJve said / already the essence of s. 131 ( 3) is that there should be publication of the proposals and draft rules so that the tax-payers have an opportunity of objecting to them, and that is provided in what B we have called the first part of s. 131.( 3); that is mandatory. But the manner of publication provided by s. 94 ( 3) which we have called the second part of s. 131 ( 3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the tax-payers a reasonable C opportunity of making their objections. We are therefore of • opinion that the manner of publication provided in s. 131 (3) is directory. Let us see what s. 94 ( 3) requires and what has been done in this case. That section requires the publication to be made in a local paper and that local paper must bo one published D in Hindi. It further provides that where there is no such local paper, the publication may be made in such manner as the State Government may by general or special order direct. In the. present case, the publication has been made in a local paper, but that local paper is not published in Hindi; it is published in Urdu, though the actual publication of the resoluE lion in the present case was in Hindi. The contention on behalf of appellant is that this is no compliance with s. 94(3). It appears that there is a local paper published in Hindi also in Rampur, but the evidence is that it is published very irregularly. It' is urged that if there was no local paper published regularly 1 in Hindi in Rampur, then the direction of the State Government should have been sought for the manner of publication. Jt may be accepted that there has not been strict <'.Ompliance with the provisions of s. 94(3) inasmuch as the publication has not been made in a local paper published in Hindi. We must however point out that if s. 94 ( 3) is interpreted literally, all that it G requires is that the publication must be in a local paper and that local paper must be published in Hindi, though the actual publication of ~e resolution may not be in Hindi. That does not seem to us to be the real meaning of s. 94(3) and what it substantially requires is that the publication should be in Hindi in a local paper, and if that is done that would be compliance H with s. 94(3). Now what has happened in this case is that the publication has been made ill a local paper which on the A B c BULAND SUGAR v. MUNICIPAL BOARD (Wanchoo ].) 981 evidence seems to have good circulation in Rampur and the actual resolution has been published in Hindi, though the paper itself is published in Urdu. It seems to us therefore that there is substantial compliance with the provisions of s. 94(3) in this case, even though there ... is a technical defect inasmuch as the local paper in which the publication has been made is published in Urdu and not in Hindi. But what has happened in this case is in our opinion substantial compliance with s. 94 ( 3) and as we have held that provision to be. directory it must be held that s. 131 ( 3) has been complied with. This brings us to the third point, namely, the effect and interpretation of s. 135(3) which we have already set out. That sub-section provides that a notification made under s. 135(2) shall be conclusive proof that the taX: has been imposed in accordance with the provisions of the Act. It has been urged on behalf 0 of the respondent that the publication has been made as required by s. 135(2) in the official gazette and therefore is conclusive proof that the tax had been imposed in accordance with the provisions of the Act, i.e., all the provisions of the Act had been complied with. It is urged that once a notification has E been made as required bys. 135(2), s. 135(3) raises an irrebuttable presumption thaf all the provisions of the Act have been complied with and therefore it. was not open to the appellant to raise the question of non-compliance with the provisions of s. 131 ( 3) read with s. 94 ( 3) at all in the present case. Reliance in this connection has been placed on the Berar Swadeshi Vanaspati v. Municipal Committee, Shegaon('). In that case F s. 67 ( 8) of the C.P. & Berar Municipalities Act, 1922 came up for consideration. That section was in terms similar to the terms of s. 135 (3). This Court held in that case that as the provisions of s. 67(7) which correspond to s. 135(2) here, had been complied with, that was conclusive evidence of the tax havins> been· imposed in accordance with the provisions of that Act, and G it could not be challenged on the ground that all the necessary steps had not been taken. Now what happened in that case was that the necessary publication was made as reauired by law and objections were invited to the proposed tax. Only one objection was filed in that case and that objection was· considered by the H Board and rejected. The other procedural provisions were complied with and tax was imposed and a final notification made (I) [1962] I S.C.R. 596. 982 SUPREME COURT REPORTS [ 1965] I S.C. R. under s. 67 (7) of that Act. Imposition of the tax was challenged on the ground that the Board did not take into consideration the objections filed. The evidence in that case wa' that the Board had taken into consideration the objections filed and had rejected thcin on grounds which the appellant \in that case) thought were not proper. It was in those circumstances that this Court held that sub-s. ( 8) of s. 67 was conclusive. The present case is in our opinion similar to that case. Here also the publication was made, as we have already pointed out in compliance with what we have called the first part of s. 131 ( 3). Further the manner of publication was in substantial compliance with s. 94 ( 3). Therefore, a' there was substantial compliance with the provisions of s. 94(3), s. 135(3) would in our opinion oomc to the help of the respondent and it must be held that all necessary steps had been taken. It is however contended on behalf of the respondent that A B c s. 135 ( 3) goes further and means that where it applies, the tax must be held to be imposed in accordance with the provisions of D the Act, even though none of the procedural provisions may have been complied with at all. lt is enough to say that the questinn in this form does not arise before us directly for we have h< .d that there was publication in compliance with s. 131 (3) though the manner was not strictly, in accordance with s. 94(3). We do not think it necessary in the present case to decide what would happen if there was no compliance at all with the various proc<>- dural provisions including s. 131 (3) by a Board before imposing a tax and the evidence consisted only of a notification under s. 135 ( 2). It has been held by the Allahabad High Court in E a number of cases that if there is no compliance with the proF cedural provisions in s. 131 to s. 134, the mere notification under s. 135 ( 2) would not be sufficient to impose a tax and s. 135 (3) would not save such tax: (see Azimu/la v. Sura; Kumar Sin[lh(') and Municipal Board, Hapur v. Raghuvendra Kripa/( 2 ). These arc cases in which certain procedural provisions were not complied with at all and the High Court held that s. 135 (3) would G not save the tax in such cases. We do not think it necessary to express any opinion on this question for it does not arise in the present case. We may however point out that the decision in the Berar Swadeshi Vanave the ground f!om which the pubiic can draw water. Rut even so, the question is one of fact and the High Court has pointed out that there was dispute on this quesion of fact and there was no sufficient material before it to enable it to come to a definite finding whether all the buildings of the appellant were beyond the radius of 600 feet from the nearest standpipe. In this state of the evidence the question must be left open and the appellant can pursue such remedies as he may be advised to take. A B The appeal therefore fails and is hereby dismissed witb costs. Hida)atnllah J. I agree th~t this app~:il should be dismissed C but would like to say a few words about the failure to publish the notice in strict compliance with the provisions of s. 94 ( 3) of the U.P. Municipalities Act. The procedure for the imposition of a tax by the Municipality has been analysed by my learned brother Wanchoo very succinctly. I agree generally with all he has said but as I view the matter differently on the construction of ss. 131 D ( 3), 94 ( 3) and 135 ( 3) of the Act, I shall briefly give the reasons for my decision on that part of the case. The general scheme of taxation in the Act is this: After the Municipal Committee or Board decides to impose a tax it ~ required to frame proposals by. a special resolution fs. 131 ( 1 )] and to frame rules which it desires the State Government to make rdativ~ to the assessment, collection etc., of the tax [s.