Case: Haridwar Singh Vs. Bagun Sumbrui And Ors

in relaxation of Rule 10(1) of the rules of Executive Business, Government have been pleased to decide that the Forest Department shall authorise orders sanctioning leases of Forest coups or produce of the value of more than Rs. 50, 000/-(rupees fifty thousand) each subject to the following conditions that :(1) Reserve price of the coup has been fixed before auction. (2) Highest bid should be accepted. (3) Highest bid should not be less than the reserve price. (4) Any relaxation to the above conditions may not ordinarily be allowed accept with the prior concurrence of the Finance Department." 10. Before the High Court the contentions of the 6th Respondent were, firstly, that the Rule 10(1) is not a statutory rule and, secondly, that it did not concern lease of forest land. The High Court, without deciding the question whether the rule is a statutory rule, held that the rule has nothing to do with the lease of forest coups and said that there was nothing which prevented the Government from giving the coup on lease by private treaty. The High Court, therefore, held that there was no bar, statutory or otherwise, to the settlement of the coup in favour of respondent No. 6 by private negotiation and as such the settlement in his favour was valid. 11. Counsel for the appellant argued that the High Court went wrong in its conclusion that Rule 10(1) as relaxed, did not apply to the grant of the lease of the coup in question and that it really prohibited a lease of forest land except by public auction. We are not satisfied that the construction contended for is correct. Neither Rule 10(1) nor the rule as relaxed says that forest land can be leased only by public auction. Rule 10(1) in so far as it is relevant to the present case only says that, no department shall, without prior consultation with the Finance Department, authorise by any order, the lease or licence of mineral or forests. The relaxation made to Rule 10(1) as evidenced by the letter from the Deputy Secretary to the Government is to the effect that in the case of lease of forest land of the value of more than Rs. 50, 000/-, if made by public auction, it can only be made subject to the conditions mentioned there. In other words, Rule 10(1) as relaxed does not prohibit the grant of a lease by private treaty. The rule read in the context of its relaxation as mentioned in the letter of the Deputy Secretary would only show that consultation with the Finance Department is not necessary for a lease, if the lease is of land of the value of more than Rs. 50, 000/- and is granted in pursuance of a public auction held in confirmity with the conditions mentioned in the letter of the Deputy Secretary. 12. Now the question is whether the coup in question was settled in favour of the 6th Respondent in accordance with Rule 10(1). It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not. 13. 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. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4). 14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612 at 624 : AIR 1952 SC 181 : 1952 Cri LJ 955)). 15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650). 16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is clear from the records relating to the proceedings for the grant of the lease in favour of the 6th Respondent that the Finance Department was not consulted before the Minister passed the order on December 13, 1970, to grant the lease. But counsel for the Government of Bihar and 6th Respondent contended that Rule 10(1), in so far as it requires prior consultation with the Finance Department, is only directory in character and, therefore, even if there was no prior consultation, the settlement was valid. So, the question arises whether Rule 10(1) which requires prior consultation with the Finance Department is mandatory or not13. 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. Prohibitive or negative words can rarely be directory and are indicative of the intent that the provision is to be mandatory (see Earl T. Crawford, The Construction of Statutes, pp. 523-4)14. Where a prescription relates to performance of a public duty and to invalidate acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is generally understood as mere instruction for the guidance of those upon whom the duty is imposed (see Dattatreya Moreshwar Pangarkar v. The State of Bombay and Others. (1952 SCR 612     at 624 : AIR 1952 SC 181   : 1952 Cri LJ 955))15. Where however, a power or authority is conferred with a direction that certain regulation or formality shall be complied with, it seems neither unjust nor incorrect to exact a rigorous observance of it as essential to the acquisition of the right or authority (see Maxwell, Interpretation of Statutes, 6th edition, pp. 649-650)16. In this case, we think that a power has been given to the Minister in charge of the Forest Department to do an act which concerns the revenue of the State and also the rights of individuals. The negative or prohibitive language of Rule 10(1) is a strong indication of the intent to make the rule mandatory. Further, Rule 10(2) makes it clear that where prior consultation with the Finance Department is required for a proposal, and the department on consultation, does not agree to the proposal, the department originating the proposal can take no further action on the proposal. The cabinet alone would be competent to take a decision. When we see that the disagreement of the Finance Department with a proposal on consultation, deprives the department originating the proposal of the power to take further action on it, the only conclusion possible is that prior consultation is an essential pre-requisite to the exercise of the power