N Criminal Appeal No 158 of 1972
Appeal by special leave from the Judgment and order dated the 12th November 1971 of the Gujarat High Court at Ahmedabad in Criminal Appeal No 219 of 1970
HS Patel SS Khanduja and Lalita Kohli for the appellant
section K Zauri Amaresh Kumar and M V Goswami for the respondents 1 2
H R Khanna and M N Shroff for respondent No 3
The Judgment of the Court was delivered by CHANDRACHUD J
This is an appeal by special leave from the judgment of the Gujarat High Court convicting the appellant under section 36 read with section 8 of the Gujarat Agricultural Produce Markets Act 20 of 1964 referred to herein as the Act and sentencing him to pay a fine of Rs 10 
The judgment of conviction was recorded by the High Court in an appeal from an order of acquittal passed by the learned Judicial Magistrate First Class Godhra
An Inspector of Godhra Agricultural Produce Market Committee filed a complaint against the appellant charging him with having purchased a certain quantity of ginger in January and February 1969 without obtaining a licence as required by the Act
The learned Magistrate accepted the factum of purchase but he acquitted the appellant on the ground that the relevant notification in regard to the inclusion of ginger was not shown to have been promulgated and published as required by the Act
The case was tried by the learned Magistrate by the application of procedure appointed for summary trials
That circumstance together with the token sentence of fine imposed by the High Court gives to the case a petty appearance
But occasionally matters apparently petty seem on closer thought to contain points of importance though regretfully such importance comes to be realized by stages as the matter travels slowly from one court to another
As before the Magistrate so in the High Court the matter failed to receive due attention a fundamental premise on which the judgment of the High Court is based contains an assumption contrary to the record
Evidently the attention of the High Court was not drawn either to the error of that assumption or to some of the more important aspects of the case which the parties have now perceived
It is necessary in order to understand the controversy to notice some of the relevant statutory provisions
In the erstwhile composite State of Bombay there was in operation an Act called the Bombay Agricultural Produce Markets Act 22 of 1939
On the bifurcation of that State on May 1 1960 the new State of Gujarat was formed
The Bombay Act of 1939 was extended by 454 an appropriate order to the State of Gujarat by the Government of that State
That Act remained in operation in Gujarat till September 1 1964 on which date the Gujarat Agricultural Produce Markets Act 20 of 1964 came into force
The Act was passed to consolidate and amend the law relating to the regulation of buying and selling of agricultural produce and the establishment of markets for agricultural produce in the State of Gujarat
Section 4 of the Act empowers the State Government to appoint an officer to be the Director of Agricultural Marketing and Rural Finance
Sections 5 61 and 65 of the Act read thus 5
Declaration of intention of regulating purchase and sale of agricultural produce in specified area 1 The Director may by notification in the Official Gazette declare his intention of regulating the purchase and sale of such agricultural produce and in such area as may be specified therein
Such notification shall also be published in Gujarati in a newspaper having circulation in the area and in such other manner as may be prescribed
2 Such notification shall state that any objection or suggestion received by the Director within the period specified in the notification which shall not be less than one month from the date of the publication of the notification shall be considered by the Director
3 The Director shall also send a copy of the notification to each of the local authorities functioning in the area specified in the notification with a request to submit its objections and suggestions if any in writing to the Director within the period specified in the notification
Declaration of market areas 1 After the expiry of the period specified in the notification issued under section 5 hereinafter referred to in this section as the said notification  and after considering the objections and suggestions received before its expiry and holding such inquiry as may be necessary the Director may by notification in the Official Gazette declare the area specified in the said notification or any portion thereof to be a market area for the purposes of this Act in respect of all or any of the kinds of agricultural produce specified in the said notification
A notification under this section shall also be published in Gujarati in a newspaper having circulation in the said area and in such other manner as may be prescribed
5 After declaring in the manner specified in section 5 his intention of so doing and following the procedure there in the Director may at any time by notification in the Official Gazette
exclude any area from a market area specified in a notification issued under sub section 1 or include any area therein and exclude from or add to the kinds of agricultural produce so specified any kind of agricultural produce
 455 By section 8 no person can operate in the market area or any part thereof except under and in accordance with the conditions of a licence granted under the Act
Section 36 of the Act provides to the extent material that whoever without holding a licence uses any place in a market area for the purchase or sale of any agricultural produce and thereby contravenes section 8 shall on conviction be punished with the sentence mentioned therein
Rule 3 of the Gujarat Agricultural Produce Markets Rules 1965 provides that a notification under section 5 1 or section 61 shall also be published by affixing a copy thereof at some conspicuous place in the office of each of the local authorities functioning in the area specified in the notification
The simple question though important is whether the notification issued under section 65 of the 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
The concluding sentence of section 61 says that a notification under this section shall also be published in Gujarati in a newspaper having circulation in the particular area
The argument of the appellant is twofold Firstly that this section means this subsection so that the procedure in regard to publication which is laid down in subsection 1 of section 6 must be restricted to notifications issued under that subsection and cannot be extended to those issued under subsection 5 of section 6 and secondly assuming that the words this section are wide enough to cover every sub section of section 6 the word shall ought to be read as may
First as to the meaning of the provision contained in section 6 1 of the Act
It means what it says
That is the normal rule of construction of statutes a rule not certainly absolute and unqualified but the conditions which bring into play the exceptions to that rule do not exist here
Far from it because the scheme of the Act and the purpose of the particular provision in section 61 underline the need to give to the provision its plain natural meaning
It is not reasonable to assume in the legislature an ignorance of the distinction between a section of the statute and the subsections of that section
Therefore the requirement laid down by section 61 that a notification under this section shall also be published in Gujarati in a newspaper would govern any and every notification issued under any part of section 6 that is to say under any of the sub sections of section 6
If this requirement was to govern notifications issued under sub section 1 of section 6 only
the legislature would have said so
But the little complexity that there is in this matter arises out of a known phenomenon judicially noticed but otherwise disputed that sometimes the legislature does not say what it means
That has given rise to a series of technical rules of interpretation devised or designed to unravel the mind of the law makers
If the words used in a statute are ambiguous it is said consider the object of the statute have regard to the purpose for which the particular provision is put on the statute book 456 and then decide what interpretation best carries out that object and purpose
The words of the concluding portion of section 61 are plain and unambiguous rendering superfluous the aid of artificial guide lines to interpretation
But the matter does not rest there
The appellant has made an alternative argument that the requirement regarding the publication in Gujarati in a newspaper is directory and not mandatory despite the use of the word shall
That word according to the appellant really means may
Maxwell Crawford and Craies abound in illustrations where the words shall and may are treated as interchangeable Shall be liable to pay interest does not mean must be made liable to pay interest and may not drive on the wrong side of the road must mean shall not drive on the wrong side of the road
But the problem which the use of the language of command poses is Does the legislature intend that its command shall at all events be performed  Or is it enough to comply with the command in substance  In other words the question is  is the provision mandatory or directory  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
Crawford on Statutory Construction  Ed 1940 article 261 p 516 sets out the following passage from an American case approvingly 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
 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 pre emptory
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 legislature1
Section 61 of the Act provides in terms plain and precise that a notification issued under the section shall also be published in Gujarati in a newspaper
The word also  provides an 457 important clue to the intention of the legislature because having provided that the notification shall be published in the Official Gazette section 61 goes on to say that the notification shall also be published in Gujarati in a newspaper
The additional mode of publication prescribed by law must in the absence of anything to the contrary appearing from the context of the provision or its object be assumed to have a meaning and a purpose
In Khub Chand vs State of Rajasthan it was observed that 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 thus in Haridwar Singh vs Begum Sumbrui
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 Case3 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 
 The scheme of the Act is like this Under section 51 the Director of Marketing and Rural Finance may by a notification in the Official Gazette declare his intention of regulating purchase and sale of agricultural produce in the specified area
Such notification is also required to be published in Gujarati in a newspaper having circulation in the particular area
By the notification the Director under section 52 has to invite objections and suggestions and the notification has to be stated that any such objections or suggestions received by the Director within the specified period which shall not be less than one month from the date of the publication of the notification shall be considered by the Director
After the expiry of the aforesaid period the Director under section 61 has the power to declare an area as the market area in respect of the particular kinds of agricultural produce
This power is not absolute because by the terms of section 61 it can only be exercised after considering the objections and suggestions received by the Director within the stipulated period
The notification under section 61 is also required to be published in Gujarati in a newspaper
The 458 power conferred by section 51 or 61 is not exhausted by the issuance of the initial notification covering a particular area or relating to a particular agricultural produce
An area initially included in the market area may later be excluded a new area may be added and likewise an agricultural produce included in the notification may be excluded or a new variety of agricultural produce may be added
This is a salutary power because experience gained by working the Act may show the necessity for amending the notification issued under section 61
This power is conferred by section 65
By section 65 if the Director intends to add or exclude an area or an agricultural produce he is to declare his intention of doing so in the manner specified in section 5 and after following the procedure prescribed therein
Thus an amendment to the section 61 notification in regard to matters described therein is equated with a fresh declaration of intention in regard to those matters rendering it obligatory to follow afresh the whole of the procedure prescribed by section 5
That is to say if the Director intends to add or exclude an area or an agricultural produce he must declare his intention by notification in the Official Gazette and such notification must also be published in Gujarati in a newspaper
Secondly the Director must invite objections or suggestions by such notification and the notification must state that any objections or suggestions received within the stipulated time shall be considered by him
The Director must also comply with the requirement of sub section 5 of section 3 by sending a copy of the notification to each of the local authorities functioning in the particular area with a request that they may submit their objections and suggestions within the specified period
After the expiry of the period aforesaid and after considering the objections or suggestions received within that period the Director may declare that the particular area or agricultural produce be added or excluded to or from the previous notification
This declaration has to be by a notification in the Official Gazette and the notification has to be published in Gujarati in a newspaper having circulation in the particular area
The last of these obligations arises out of the mandate contained in the concluding sentence of section 61
The object of these requirements is quite clear
The fresh notification can be issued only after considering the objections and suggestions which the Director receives within the specified time
In fact the initial notification has to state expressly that the Director shall consider the objections and suggestions received by him within the stated period
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 459 desirable
By section 62 once an area is declared to be a market area no place in the said area can be used for the purchase or sale of any agricultural produce specified in the notification except in accordance with the provisions of the Act
By section 8 no person can operate in the market area or any part thereof except under and in accordance with the conditions of a licence granted under the Act
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 leads 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 imposed 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 Thakur Pratap Singh vs Sri Krishna 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
The legislative history of the Act reinforces this conclusion
As stated before the Bombay Agricultural Produce Markets Act 1939 was in force in Gujarat till September 1 1964 on which date the present Act replaced it
Section 31 of the Bombay Act corresponding to section 51 of the Act provided that the notification may  also be published in the regional languages of the area
Section 41 of the Bombay Act which corresponds to section 61 of the Act provided that A notification under this section may also be published in the regional languages of the area in a newspaper circulated in the said area
Section 44 of the Bombay Act corresponding to section 65 of the Act provided that exclusion or inclusion of an area of an agricultural produce may be made by the Commissioner by notification in the Official Gazette subject to the provisions of section 3
Section 44 did not provide in terms as section 65 does that the procedure prescribed in regard to the original notification shall be followed if an area or an agricultural produce is to be excluded or included
The Gujarat legislature having before it the model of the Bombay Act made a conscious departure from it by providing for the publication of the notification in a newspaper and by substituting the word shall  for the word may 
These are significant modifications in the statute which was in force in Gujarat for over 4 years from the date of reorganisation till September 1 1964
These modifications bespeak the mind of the legislature that what was optional must be made obligatory
We are therefore of the opinion that the notification issued under section 65 of the Act like that under section 61 must also be published in Gujarati in a newspaper having circulation in the particular area
This requirement is mandatory and must be fulfilled
Admittedly the notification exhibit 10 issued under section 65 on February 16 1968 was not published in a newspaper at all much less in Gujarati Accordingly the inclusion of new varieties of agricultural produce in that notification lacks legal validity and no prosecution can be founded upon its breach
460 Rule 3 of the Gujarat Agricultural Produce Markets Rules 1965 relates specifically and exclusively to notifications issued under subsection 1 of section 5 or under sub section 1 of section 6
 As we are concerned with a notification issued under sub section 5 of section 6 we need not go into the question whether Rule 3 is complied with
We may however indicate that the authorities concerned must comply with Rule 3 also in regard to notifications issued under sections 51 and 61 of the Act
After all the rule is calculated to cause no inconvenience to the authorities charged with the duty of administering the Act
It only requires publication by affixing a copy of the notification at some conspicuous place in the office of each of the local authorities functioning in the area specified in the notification
The prosecution was conducted before the learned Magistrate in an indifferent manner
That is not surprising because the beneficent purpose of summary trials is almost always defeated by a summary approach
Bhailalbhai Chaturbhai Patel an Inspector in the Godhra Agricultural Produce Market Committee who was a material witness for proving the offence said in his evidence that he did not know whether or not the notifications were published in any newspaper or on the notice board of the Godhra Municipality
The learned Magistrate acquitted the appellant holding that the prosecution had failed to prove beyond a reasonable doubt that the notifications were published and promulgated as required by law
In appeal the High Court of Gujarat began the operative part of its judgment with a wrong assumption that exhibit 9 dated April 19 1962 was a notification constituting the Godhra Market area In fact exhibit 9 was issued under section 4 A3 of the Bombay Act as amended by Gujarat Act XXXI of 1961 declaring certain areas as market proper within the Godhra Market area
The High Court was really concerned with the notification exhibit 10 dated February 16 1968 which was issued under section 65 of the Act and by which new varieties of agricultural produce like onion ginger sunhemp and jowar were added to the old list
The High Court set aside the acquittal by following the judgment dated February 12 1971 rendered by A D Desai J in Cr
Appeal 695 of 1969
That judgment has no application because it arose out of the Bombay Act and the question before Desai J was whether section 41 of the Bombay Act was mandatory or directory
That section as noticed earlier provided that the notification may also be published in the regional language of the area in a newspaper circulated in that area
The High Court in the instant case was concerned with section 65 of the Act which has made a conscious departure from the Bombay Act in important respect
The High Court did not even refer to the provisions of the Act and it is doubtful whether those provisions were at all brought to its notice
Everyone concerned assumed that the matter was concluded by the earlier judgment of Desai J
For these reasons we set aside the judgment of the High Court and restore that of the learned Judicial Magistrate First Class Godhra
Fine if paid shall be refunded to the appellant
PHP Appeal allowed


Summary:
The appellant was prosecuted for having purchased a certain quantity of ginger without obtaining a licence as required by the Gujarat Agricultural Produce Markets Act
The trial court accepted the factum of purchase but it acquitted the appellant on the ground that the relevant notification in regard to the inclusion of ginger was not shown to have been promulgated and published as required by the Act
On appeal the High Court reversed the acquittal and sentenced the appellant to a fine of Rs 10 
The High Court proceeded on the assumption that the notifications were property made
In the erstwhile composite State of Bombay there was in operation The Bombay Agricultural Produce Markets Act of 1939
On the bifurcation of the State in 1960 the said 1939 Act was extended by an appropriate order to the State of Gujarat
That Act remained in operation in Gujarat till the year 1964 in which year the present Act came into force
Section 5 of the Act requires the Director to notify in the Official Gazette his intention to regulate the purchase and sale of agricultural produce
The section also requires the publication in Gujarati in a newspaper having circulation in the area
The section further requires that the objections should be invited from the public
Section 61 provides that after the expiry of the period for making objections and after considering the objections and suggestions received and after holding necessary inquiry the Director may by notification in the Official Gazette declare the area specified in the said notification to be a market area in respect of the agricultural produce to be specified in the notification
Sub section 1 of section 6 further requires that the notification under the said section shall be published in Gujarati in a newspaper having circulation in the said area
Sub section 5 of section 6 provides that the Director may at any time by notification in the official gazette exclude any area from a market area specified in a notification issued under sub section
1 or include any area therein and exclude from or add to the kinds of agricultural produce so specified
The sale or purchase of the agricultural produce concerned without a licence is made an offence by section 36 of the Act
On appeal by special leave the appellant contended that the notification under section 65 of the Act covering additional varieties of agricultural produce must not only be published in the Official gazette but must also be published in Gujarati in a newspaper
The respondent contended that 1 the procedure in regard to the publication which is laid down in sub section
1 of section 6 must be restricted to notifications issued under that sub section and cannot be extended to those issued under sub section 5 of section 6 2 Assuming that the words this section are wide enough to cover every sub section of section 6
the word shall  ought to be read as may 
 HELD 1 Section 61 means what it says
That is the normal rule of construction of statutes a rule not certainly absolute and unqualified but the conditions which bring into play the exceptions to that rule did not exist
It is not reasonable to assume in the legislature an ignorance of the distinction between a section of the statute and the sub section of that section
The requirement 452 laid down by section 61 that a notification under this section shall also be published in Gujarati in a newspaper would govern any and every notification issued under any par of section 6 that is to say under any of the sub sections of section 6
455E G 2 Sometimes the legislature does not say what it means
That has given rise to a series of technical rules of interpretation devised or designed to unraval the mind of the law makers
The words of the concluding portion of section 61 are plain and unambiguous rendering superfluous the aid of artificial guide lines to interpretation
455H 456A 3 Shall must normally be construed to mean shall and not may for the distinction between the two is fundamental
The use of the word shall or may is not conclusive on the question whether the particular requirement of law is mandatory or directory
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
It is the duty of courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed
The amendment to section 61 notification in regard to matters described therein is equated with a fresh declaration of intention in regard to those matters rendering it obligatory to follow afresh the whole of the procedure prescribed by section 5
The object of these requirements is quite clear
The fresh notification can be issued only after considering the objections and suggestions which the Director receives within the specified time
In fact the initial notification has to state expressly that the Director shall consider the objections and suggestions received by him within the stated period
The 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
Once an area is declared to be a market area
no place in the said area can be used for the purchase or sale of any agricultural produce specified in the notification without the necessary licence
A violation of the said provisions attracts penal consequences under section 36
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 leads to penal consequences that the notification must receive due publicity
There is something in the very nature of the duty imposed by sections 5 and 6
something in the very object for which the duty is cast
that the duty must be performed
456C 458B F H 459A B 4 The legislative history of the Act reinforces this conclusion
In the Bombay Act which was made applicable to Gujarat till 1964 it was not necessary to publish in the newspaper notifications corresponding to section 65 notifications under the new Act
The Gujarat Legislature having before it the model of the Bombay Act
made a conscious departure from it by providing for the publication of the notification in a newspaper and by substituting the word shall  for the word may 
459D F 5 A notification under section 6 must be published in Gujarati in a newspaper
This requirement is mandatory and must be fulfilled
Admittedly the notification in question was not published in a newspaper at all much less in Gujarati
Accordingly the inclusion of new varieties of agricultural produce in that notification lacks legal validity and no prosecution can be founded upon its breach
459E H 6 The High Court took into consideration a wrong notification
Reliance on the earlier judgment of Gujarat High Court on the construction of the Bombay Act was also wrong since the language there was wholly different
460E G 453