Appeal No 23 of 1964
Appeal from the judgment and decree dated May 12 1961 of the Allahabad High Court in Civil Misc
Writ No 3588 of 1958
M C Setalvad K C Jain and B P Maheshwari for the appellant
972 section N Andley Rameshwar Nath and P L Vohra for the res pondent
The Judgment of P B GAJENDRAGADKAR CJ K NWANCHOO and RAGHUBAR DAYAL JJ was delivered by WANCHOO J M HIDAYATULLAH and J R MUDHOLKAR JJ
delivered separate Opinions
Wanchoo J
This is an appeal on a certificate granted by the Allahabad High Court
The appellant is a public limited company and owns two sugar factories situate in the city of Rampur
The factories comprise a number of buildings including some for residential purposes also
The Municipal Board of Rampur hereinafter referred to as the respondent decided to impose water tax in Rampur as provided under section 1281 x of the UP Municipalities Act No 11 of 1916 hereinafter referred to as the Act
The procedure for the imposition of tax by the Municipal Board under the Act is provided in sections 131 to 135 of the Act Section 131 provides that when a Board desires to impose a tax it shall by special resolution frame proposals specifying the tax the persons or class of persons to be made liable and the des cription of property or other taxable thing or circumstance in respect of which they are to be made liable the amount or rate leviable from each such person or class of persons and any other matter required by the Rules framed by the State Government
The Board has also to prepare a draft of the rules which it desires the State Government to make in respect of the tax namely for assessment collection exemption and other matters relating to tax section 1312
Section 1313 which is important for our purposes reads thus  The Board shall thereupon publish in the manner prescribed in section 94 the proposals framed under sub section 1 and the draft rules framed under subsection 2 along with a notice in the form set forth in Schedule III
 Section 132 provides for procedure subsequent to framing proposals and permits any inhabitant of the municipality within a fortnight from the publication of the notice to submit to the Board an objection in writing to all or any of the proposals
The Board has to take these proposals into consideration and pass 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
It is open to any inhabitant of the municipality again to object to the modified proposals and if any such objection is made it 973 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 section 133 of the Act
The prescribed authority or the State Government has the power thereunder to sanction the proposals or to return them to the Board for further consideration or sanction them without modification or with such modification not involving an increase of the amount to be imposed as it deems fit
Section 134 provides that when the proposals have been sanctioned the State Government has to take into consideration the draft rules submitted by the Board and make such rules under section 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 resolution
Section 135 then provides that a copy of the above resolution 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 section 135 2
Then comes section 135 3 which reads as follows A notification of the imposition of a tax under subsection 2 shall be conclusive 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 reads 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 pro vided under the Act for the imposition 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 done on 974 October 7 1958
It may be added that under section 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 standing or other waterwork whereat water is made available 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 section 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 Office 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 support 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 the 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 are 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 section 1313 read with section 943 of the Act and as the provision of section 1313 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
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 section 131 3 mandatory or directory for it is contended on behalf of the respondent that publication under section 1313 is merely directory secondly was the publication in this case strictly in accordance with the manner provided in section 943 and thirdly if the publication was not strictly in accordance with the manner provided in section 943 is the defect curable under section 1353 The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word shallas 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 inconvenience 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 be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory
The respondent strongly relies on the State of UP vs Man bodhan Lal Srivastava1 where article 3203 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
If 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 3203 c provides for consultation 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 Council in Montreal Street Railway Company vs Normandin2 in that connection 1  2  976 The question whether provisions in a statute are directory or imperative has very frequently arisen in this 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
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 to hold such provisions to be directory only the neglect of them though punishable not affecting the validity of the acts done
 That was a case where the jury lists had not been revised as required by law
Following the principle laid down in that case this Court held that article 3203 c itself contemplates three grounds i that the proviso to article 320 itself contemplates 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 Commission to be consulted ii that the advice of the Public Service Commission was not binding on the Government and in the ab sence of such binding character it was difficult to see how non compliance with the provisions of article 3203 c could have the effect of nullifying the final order passed by the Government and iii that article 311 was not in any way controlled by article 320 and there was no provision in the Constitution expressly or otherwise providing that the result of non compliance with article 3203 c would be to invalidate the proceedings ending with the final order of the Government
It was also pointed out in that case that an examination of the terms of article 320 showed that the word shall appeared in almost every paragraph and every clause or sub clause of that Article
If it were held that the provisions of article 320 3 c were mandatory in terms the other clauses or sub clauses of that Article would have to be equally held to be mandatory
If they were so held any appointments made to the public services without observing strictly the terms of these sub clauses in cl
3 of article 320 would adversely affect the person so appointed to a public service without any fault on his part and without his having any say in the matter and this could not have been intended by the makers of the Constitution Thus this Court approximated article 3203 c to a statutory 977 provision like the one which came up for consideration in Montreal Street Railway Company s case1 and held that if the Article were construed as mandatory it would cause serious general inconvenience and injustice 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 cases 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 or mandatory and that every case 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 circums tances 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 we are concerned namely section 1313 can be divided into two parts
The first part 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
The second part provides for the manner of publication and that manner is according to s  943
We shall first deal with what we have called the first part of section 1313
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 publication obviously is to further the democratic process and to provide a reasonable opportunity of being 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 prescribed authority as the case may be for approval
Even so we have no doubt that the object behind this publication is to find out the reaction of tax payers generally to the taxation 1  978 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 is 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 section 1313 would essentially carry out that purpose
In the circumstances if we are to hold that this part of section 1313 was merely directory the whole purpose of the very elaborate procedure provided in sections 131 to 135 for the imposition of tax would become meaningless for the main basis of that procedure is the consideration of objections of tax payers on 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 in the Act before a tax is imposed nugatory
We are therefore of opinion that this part of section 1313 is mandatory and it is necessary to comply with it strictly before any tax can be imposed
We shall consider the interpretation of section 1353 later but we have no doubt that in the present case in spite of section 1353 the legislature intended that there must be publication as provided in what we have called the first part of section 1313
We therefore hold that this part of section 1313 is mandatory considering its language the purpose for which it has been enacted 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 see 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 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 section 1313 is mandatory
Turning now to the second part which provides for the manner of publication that manner is provided in section 943 already set out above
It seems to us that when the legislature provided for the manner of publication it did not intend that manner should be mandatory
So long as publication is made in substantial compliance with the manner provided in section 943 that would serve the purpose of the mandatory part of the section which provides for Publication
It would therefore not be improper to hold that the manner of publication provided 979 in section 943 is directory and so long as there is substantial compliance with that the purpose of the mandatory part of section 1313 would be served
In this connection we may refer to K Kamaraja Nadar vs Kunju Thevar1
In that case a question arose whether section 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 him 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 made 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 mandatory 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 and of no avail
This Court held that these words in section 1 17 were directory and not mandatory in their character and that the essence of the provision contained in section 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 proper application being made in that behalf to the Election Com mission 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 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 1 L2Sup65 980 held to be mandatory this Court hold that the form in which the deposit should be made was only directory
The principle of that case in our opinion applies to the manner of publication provided in section 943 in the present case
As we have said already the essence of section 1313 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 we have called the first part of section 1313 that is mandatory
But the manner of publication provided by section 943 which we have called the second part of section 1313 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 opportunity of making their objections
We are therefore of opinion that the manner of publication provided in section 1313 is directory
Let us see what section 943 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 be one published 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 resolution in the present case was in Hindi
The contention on behalf of appellant is that this is no compliance with section 943
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 in Hindi in Rampur then the direction of the State Government should have been sought for the manner of publication
It may be accepted that there has not been strict compliance with the provisions of section 943 inasmuch as the publication has not been made in a local paper published in Hindi
We must however point out that if section 943 is interpreted literally all that it 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 the resolution may not be in Hindi
That does not seem to us to be the real meaning of section 943 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 with section 943
Now what has happened in this case is that the publication has been made in a local paper which on the 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 section 943 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 section 943 and as we have held that provision to be directory it must be held that section 1313 has been complied with
This brings us to the third point namely the effect and interpretation of section 1353 which we have already set out
That sub section provides that a notification made under section 1352 shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act
It has been urged on behalf of the respondent that the publication has been made as required by section 1352 in the official gazette and therefore is conclusive proof that the tax had been imposed in accordance with the provisions of the Act ie all the provisions of the Act had been complied with
It is urged that once a notification has been made as required by section 1352 section 1353 raises an irrebuttable presumption that all the provisions of the Act have been complied
with and therefore it was not open tothe appellant to raise the question of non compliance with the provisions of section 1313 read with section 943 at all in the present case
Reliance in this connection has been placed on the Berar Swadeshi Vanaspati vs Municipal Committee Shegaon1
In that case section 678 of the CP  Berar Municipalities Act 1922 came up for consideration
That section was in terms similar to the terms of section 1353
This Court held in that case that as the provision of section 677 which correspond to section 1352 here had been complied with that was conclusive evidence of the tax having been imposed in accordance with the provisions of that Act and 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 required 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 Board and rejected
The other procedural provisions were complied with and tax was imposed and a final notification made 1 982 under section 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 was that the Board had taken into consideration the objections filed and had rejected them on grounds which the appellant in that case thought were not proper
It was in those circumstances that this Court held that sub section
8 of section 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 section 1313
Further the manner of publication was in substantial compliance with section 943
Therefore as there was substantial compliance with the provisions of section 943 section 1353 would in our opinion come 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 section 1353 goes further and means that where it applies the tax must be held to be imposed in accordance with the provisions of the Act even though none of the procedural provisions may have been complied with at all
It is enough to say that the question in this form does not arise before us directly for we have held that there was publication in compliance with section 1313 though the manner was not strictly in accordance with section 943
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 procedural provisions including section 1313 by a Board before imposing a tax and the evidence consisted only of a notification under section 1352
It has been held by the Allahabad High Court in a number of cases that if there is no compliance with the procedural provisions in section 131 to section 134 the mere notification under section 1352 would not be sufficient to impose a tax and section 1353 would not save such tax see Azimulla vs Suraj Kumar Singh1 and Municipal Board Hapur vs Raghuvendra Kripal2
These are cases in which certain procedural provisions were not complied with at all and the High Court held that section 1353 would 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 Vanaspathi s case1 is not a case where there was no compliance whatsoever with procedural provisions all that had happened in that case was that the objections had 1 AIR 1957 All 307
3 2 983 been taken into consideration by the Board though they were rejected for reasons which were considered by the appellant in that case to be not sufficient
In that case therefore there was compliance with the provisions of the Act and all that we need say is that case is no authority for the proposition that even if there is no compliance whatsoever with a mandatory provision of a statute relating to procedure for the imposition of a tax a provision like section 1353 of the Act or section 678 of  the CP  Berar Municipal Act would necessarily save such imposition
If section 1353 means that where there is substantial compliance with the provisions of the Act that would be conclusive proof that they have been complied with there can be no valid objection to such a provision
But if the section is interpreted to mean as is urged for the respondent that even if there is no compliance whatever with any mandatory provision relating to imposition of tax and the only thing proved is that a notification under section 1352 has been made the tax would still be good the question may arise whether section 1353 itself is a valid provision
For present purposes however it is unnecessary to decide that question
In the present case the mandatory part of section 1313 has been complied with and its directory part has been substantially complied with and so section 1353 will apply and the objection that the tax is not validly imposed must fail
This brings us to the second point raised before us
So far as that is concerned it is enough to say that it is mainly a question of fact whether the buildings or any of them belonging to the appellant are within 600 feet of the standpipe
The restriction imposed in cl
a of section 129 is that water tax can be levied on a building where any part of it is within a radius fixed by rules which in the present case is 600 feet from the nearest standpipe or water work whereat water is made available by the Board to the public
What is contended on behalf of the appellant is that these words mean that there should be standpipe or water work from which water is made available to the public by the respondent and that it is not enough if underground pipes carrying water are passing within 600 feet
It seems to us that this contention of the appellant is correct
The restriction in section 129a is that no water tax can be levied on a building which is more than a certain distance fixed by the rules from a standpipe or other water work from which water is made available to the public
The restriction that water should be made available to the public within the specified distance does not mean that if pipes carrying water pass underground that would be enough
What is required is that water 984 should be made available to the public from the nearest standpipe or other water work and that requires that there must be something above the ground from which the public can draw water
But even so the question is one of fact and the High Court has pointed out that there was dispute on this question 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
The appeal therefore fails and is hereby dismissed with Hidayatullah J
I agree that this appeal should be dismissed but would like to say a few words about the failure to publish the notice in strict compliance with the provisions of section 943 of the UP 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 sections 131 3 943 and 1353 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 is required to frame proposals by a special resolution section 1311 and to frame rules which it desires the State Government to make relative to the assessment collection etc of the tax section 1312
Section 1313 then provides The Board shall thereupon publish in the manner prescribed in section 94 the proposal framed under subsection 1 and the draft rules framed under subsection 2 along with a notice in the form setforth in Schedule III This enables any inhabitant affected by the proposal to object
The Municipal Committee or the Board then considers the objections and passes orders on the objections but if it modifies the proposals or the rules it publishes them a second time and the whole procedure has to be gone through again
When there is no modification or the proposals or rules are finally settled the original proposals and rules if any have to be forwarded to Government
Government may accept the proposals and the rules or may send them back for further consideration
The proposals and the rules when finally sanctioned by Government are returned to the Municipality which imposes the tax with effect from a specified date by passing a fresh resolution
This does not impose the tax proprio vigore
The resolution has to be submitted to Government and when it is notified in the official Gazette the tax is imposed from the appointed date
Section 153 3 then provides A notification of the imposition of a tax under subsection 2 shall be conclusive proof that the tax has been imposed in accordance with the provisions of the Act
 The tax here was imposed by Rampur Municipality and the notices were published in an Urdu newspaper called Aghaz though the notices were in Hindi
Section 943 of the Ul
Act provides Every resolution passed by a Board at a meeting shall as soon thereafter as may 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
 There was in Rampur another newspaper which was published in Hindi but its circulation was admittedly very poor
The newspaper selected for publication though in Urdu was widely read and the notice itself was in Hindi
Thus there was a local paper with a wide circulation and there was a notice in Hindi
The only breach was that the paper was not published in Hindi 
There was clearly no literal compliance with section 943
Two questions therefore arise  a Is section 943 mandatory  and b If section 943 is not strictly complied with whether section 1353 makes the notification conclusive against the defect  In my judgment the answers to these questions depend upon the nature of the functions of a Municipal Committee and its powers of imposing a tax
A Municipal Committee enjoys powers of taxation not as a legislature but as a delegate of the legislature
Taxes levied by it are in effect levied by Government
They are allowed to be imposed and retained by the Municipality to perform its functions and to pay for its expenses
The whole procedure is shortened in this way otherwise Government would be required to levy taxes and to give the proceeds to the Municipality
However the final 986 word lies with Government and the legislature makes this the vital condition in the imposition of the tax
What the Municipality does in consequence of the power so conferred it can only effectively do if the conditions laid down with the grant of power are followed and Government finally approves of the tax
the manner of its imposition and manner of its collection
Once Government has approved of the Resolution and published it in the Gazette the tax is deemed to be conclusively imposed in accordance with the procedure laid down
The legislation on the subject is then complete and the tax derives its legislative validity from the legislature s will
Now sections 131 135 lay down the procedure
All the conditions apparently seem equally obligatory because every condition is couched in mandatory language
The crux of the problem before us is whether all the conditions are to be treated as mandatory or all of them as directory or some of them as of one kind and some of the other kind  What is the test to apply and if a distinction is to be made on what principle In my opinion the way to look at the matter is this
A tax to be valid must be imposed in accordance with the Municipalities Act
The Act lays down conditions some of which are devised for the protection of the taxpayers and some others for ministerial operations connected with the method or system of imposing the tax or for promoting dispatch efficiency and publicity etc
All conditions of the first kind must of course be regarded as mandatory because they lie at the very root of the exercise of the power
Thus preparation of assessment rolls hearing of objection framing of assessment rules are all mandatory
Similarly conditions involving the passing of resolutions by the necessary majority at special meetings after proper notice to members are fundamental and cannot be overlooked
If a defect of a fundamental kind occurs it would in the absence of curative provision remain even if Government gave its sanction See Scadding vs Lorant1 affirming Sub Nom 2 and Joshi Kalidas vs Dakor Town Municipality3
Conditions which promote despatch or provide for ministerial operations are usually directory and although compliance with them is also necessary it is sufficient if the compliance is substantial
It may be accepted that a provision for a notice to the tax payers informing them about the proposal to impose a Particular tax and the rules made for the imposition is fundamental
Such 1 ER HL 164
2 13 QB 706
3 ILR 987 a provision if ignored would frustrate the very policy of the law that there should be no tax without an opportunity to object and to ignore it would ordinarily be fatal
Similarly the direction at
The notice should be published in a local newspaper is also an integral part of the Scheme
The same purpose cannot be achieved by proclaiming by beat of drum or distributing hand bills or publishing a notice in a newspaper not circulating locally
There is no option there because if the notice cannot be published in a local newspaper the section goes on to provide for alternative modes of publication to be determined by Government
The sub section however goes further and says that the newspaper must be one that is published in Hindi
I would be disposed to consider this further direction as not fundamental
If a newspaper is selected which is very widely read in the locality but is not in Hindi and the notice is published in Hindi I imagine the intention of the law is better promoted than if another newspaper published in Hindi with next to no circulation is selected
There is no doubt a departure from the letter of the law but the departure promotes the very object and purpose of it
I would regard such a provision as directory
It is a provision for the guidance of the Municipality and not something which can be said to be essential to the validity of the imposition
It seems to me that it is not necessary at all to go into the niceties of the distinction between mandatory and directory provisions in general or in relation to the provisions of the UP Municipalities Act in particular
The legislature has itself furnished the solution by enacting section 1353 which indicates the consequences of an omission
It lays down emphatically a rule of evidence which precludes courts from making inquiries into the minutiae of the procedure with a view to declaring the imposition invalid
The legislature is quite content to enact that Government should review the proposals the rules and the procedure before accepting the resolution imposing the tax and that after this is done and a notification issues all questions about the procedural part of the imposition must cease
The legislative will takes over from that stage and the tax is imposed as validly as if the legislature itself imposed it
Whether one reads section 1353 as enacting an absolute rule of evidence and I am in favour of reading it as such See The Berar Swadeshi Vanaspati vs Municipal Committee Shegaon 1 or as merely related to venial defects errors or omissions it is plain that it must at least protect the imposition of water tax in Rampur against a flaw in procedure of the 1 988 kind we are dealing with or it would serve no purpose at all
This provision therefore serves to cure the breach of the direction which was intended to serve merely as a guide to the municipalities and it precludes courts from inquiring into such a breach
That was a matter for Government to take into consideration before according its approval and Government must be deemed to have approved this other mode of publication which it is clear enough it could have permitted to be followed in the first instance under the latter part of section 943 itself
Subject to these reasons for holding the tax to be valid I agree that the appeal be dismissed with costs
Mudholkar J I agree that the appeal be dismissed but on the point of law urged before us I would like to state my reasons separately
I find it difficult to construe sub section
3 of s131 as partly directory and partly mandatory that is to say that the requirement of publication is mandatory but the requirement of the manner of publication is not mandatory but only directory
To construe the section that way would be giving two different meanings to the verb shall occurring in the provision which governs both publication as well as the manner of publication
Shall can according to the authorities no doubt be construed literally and therefore as being mandatory or liberally and thus being only directory depending upon the object of the provision in which it occurs the connected provisions and other similar matters
But it seems to me on principle that when a verb used in a provision governs two different matters it cannot be given one meaning in so far as it relates to one matter and another meaning insofar as it relates to another matter
The provisions of section 943 are clearly directory inasmuch as a deviation from the mode of publication prescribed therein that is publication in a local newspaper in the Hindi language is contemplated by it
The requirement of section 1313 is publication in the manner provided for in section 94 which is actually provided in sub section
3 of section 94
Since the latter provision is directory it is immaterial to consider whether section 1313 is directory or mandatory or to read it as partly one and partly the other and depart from the normal rule of construction which discountenances read ing a word in a provision in two different senses
While a mandatory provision must be strictly complied with substantial compliance is sufficient with respect to a directory 989 provision
There has been substantial compliance with the provisions of section 943 since the proposals were in fact published in the Hindi language in a local newspaper
The only departure from the letter of the law was not obtaining the permission of the State Government for publishing the proposals in an Urdu newspaper
In my view the essential requirement of section 943 is publication in a local newspaper
Where this requirement is satisfied the omission to obtain a direction from the State Government permitting publication in a newspaper other than one in the Hindi language is not of much consequence
Upon this view the question whether section 1313 is mandatory or whether section 1353 has become void by reason of article 131 of the Constitution or whether it can cure a defect resulting from non compliance with a mandatory provision do not at all arise for consideration


Summary:
The appellant company challenged the imposition of water tax by the Rampur Municipal Board in a petition under article 226 of the Constitution of India on the ground that the tax had not been imposed according to law inasmuch as the proposals and draft rules had been published by the Board in an Urdu paper whereas according to the mandatory provisions of section 1313 read with section 933 of the UP Municipalities Act 1916 they should have been publishedin a Hindi paper
The High Court dismissed the petition but granted a certificate under article 1331c
The questions for consideration were whether the whole of section 1313 was mandatory or the part of it requiring publication in the manner laid down in section 943 ie in a Hindi newspaper was merely directory and whether the publication in the Government Gazette of the notification imposing the tax was not conclusive proof as provided in section 1353 of the prescribed procedure having been observed
HELD Per GAJENDRAGADKAR C J WANcHoo and RAGHUBAR DAYAL JJ i Section 1313 can be divided into two parts the first one providing that the proposal and draft rules for a tax intended to be imposed should be published for the objections of the public if any and the second laying down that the publication must be in the manner laid down in section 943
Considering the object of the provisions for publication namely to enable the public to place its viewpoint before the Board it Is necessary to hold that the first part of the section is mandatory for to hold otherwise would be to render the whole procedure prescribed for the imposition of taxes nugatory
The second part of the section is however merely directory
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 with section 943
In the instant case publication was made in Hindi in a local paper which on the evidence seems to have good circulation in Rampur
There is no regularly published local Hindi newspaper
There was in the circumstances substantial compliance with the provisions of section 943 in this case
977 E F 978 D F 980 C 981 A B ii Section 1353 provides that a notification of the imposition of tax in the Government Gazette was conclusive proof that the tax had been imposed in accordance with the provisions of the Act
Whether such a notification will save a tax which has been imposed without at all complying with one of the mandatory provisions of the relevant law was a question that did not directly arise in the case
In the instant case there had been compliance with the mandatory part of section 1313 and substantial compliance with the second part
Therefore a 1353 applied to the case 971 and the objection that the tax was not validly imposed could not succeed
983 B D 983 D E
K Kamaraja Nadar vs Kunju Thevar  relied on
State of UP vs Manbodhan Lai Srivastva  and Berar Swadeshi Vanaspati vs Municipal Committee Shegaon  distinguished
Montreal Street Railway Company vs Normandin   Azimulla vs Suraj Kumar Singh AIR 1957 All
307 and Municipal Board Hapur vs Raghuvendra Kripal 1960 ALI 185 referred to
Per HIDAYATULLAH J A Municipal Committee enjoys powers of taxation not as a legislature but as a delegate of the legislature
Taxes levied by it are in effect levied by the Government
What the Municipality does in exercise of the delegated power can be effective only if the conditions laid down with the grant of the power are complied with and the Government finally approves the tax
Once the Government after giving its approval has notified its imposition in the Government Gazette the tax is deemed to be conclusively imposed in accordance with the procedure laid down
985 H to 986 D Some conditions which are laid down are for the protection of taxpayers and some others are for ministerial operations
The first kind are fundamental and cannot be overlooked
Conditions which promote dispatch or provide for ministerial operation are directory and substantial compliance is sufficient
986 G The direction to publish the notice in a paper published in Hindi regarded as sufficient compliance in the case
987 C D The Berar Swadeshi Vanaspati vs Municipal Committee Shegaon  relied on
Per MUDHOLKAR J
Where a verb used in a provision governs two different matters it cannot be given one meaning insofar as it relates to one matter and another meaning insofar as it relates to another matter988 F Since section 943 is clearly directory it is immaterial to consider whether section 1313 is directory or mandatory or to read it as partly one and partly the other and depart from the normal rule of construction which discountenances reading a word in a provision in two different senses
988 G H The essential requirement of section 943 is publication in a local newspaper
Where the requirement is satisfied the omission to obtain a direction from the State Government permitting publication in a newspaper other then one in Hindi language is not of much consequence
Upon this view the question whether section 1313 is mandatory or whether section 1353 has become void by reason of article 131 of the Constitution or whether it ran cure a defect resulting from non compliance with a mandatory provision does not at all arise for consideration
989 B C