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Indian CasesSupreme Court of India

Gvindlal Chhaggan Lal Patel vs The Agricultural Produce Market … on 27 August, 1975

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Supreme Court of India

Gvindlal Chhaggan Lal Patel vs The Agricultural Produce Market … on 27 August, 1975

Equivalent citations: 1976 AIR 263, 1976 SCR (1) 451

Author: Y Chandrachud

Bench: Chandrachud, Y.V.

           PETITIONER:
GVINDLAL CHHAGGAN LAL PATEL

	Vs.

RESPONDENT:
THE AGRICULTURAL PRODUCE MARKET COMMITTEE, GODHRA AND OTHERS

DATE OF JUDGMENT27/08/1975

BENCH:
CHANDRACHUD, Y.V.
BENCH:
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
SARKARIA, RANJIT SINGH

CITATION:
 1976 AIR  263		  1976 SCR  (1) 451
 1975 SCC  (2) 482
 CITATOR INFO :
 F	    1985 SC 964	 (9)
 RF	    1986 SC1499	 (16)
 RF	    1986 SC1518	 (8)
 R	    1987 SC1010	 (14)
 R	    1989 SC2206	 (21)


ACT:
     Mandatory and  Directory Provision-Bombay	Agricultural
Produce Markets	 Act, 1939-Section  4  Gujarat	Agricultural
Produce Markets	 Act, 1961,  ss. 5  and 6,  36-When  'shall'
means 'may'-Principles	of constitution	 of  a	Statute-  If
language Plain	and unambiguous,  whether aid  of artificial
guidelines to interpretation possible.



HEADNOTE:
     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.
1964. 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 6(1)  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  s.   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 s.	(5) of	s. 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-s.  (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 s. 36 of
the Act.
     On appeal	by special  leave, the	appellant  contended
that the  notification under  s. 6(5)  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-s. (1)
of s.  6 must  be restricted  to notifications	issued under
that sub-section  and cannot  be extended  to  those  issued
under sub-section  (5) of  s. 6; (2) Assuming that the words
"this section" are wide enough to cover every sub-section of
s. 6. the word 'shall' ought to be read as 'may'.
^
     HELD: (1)	Section 6(1) 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  s.  6(1)	 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 s. 6, that is to say, under any of the sub-sections of s.
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 s.
6(1) 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  s.	6(1)
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	s. 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 s. 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  ss. 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	   s.	6(5)
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	s. 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



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: 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.

H.S. Patel, S.S. Khanduja and Lalita Kohli, for the appellant.

S. 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 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, 6(1) and 6(5) 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.

6. 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.

6. (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.”

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 6(1) 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 6(5) 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 6(1) 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 6(1) 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 6(1) 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 and then decide what interpretation best carries out that object and purpose. The words of the concluding portion of section 6(1) 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, Art. 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 legislature(1). Section 6(1) 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 important clue to the intention of the legislature because having provided that the notification shall be published in the Official Gazette, section 6(1) 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 v. 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 v. 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 Case(3), 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 5(1) 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 5(2) 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 6(1), 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 6(1) it can only be exercised after considering the objections and suggestions received by the Director within the stipulated period. The notification under section 6(1) is also required to be published in Gujarati in a newspaper. The power conferred by section 5(1) or 6(1) 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 6(1). This power is conferred by section 6(5).

By section 6(5), 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 6(1) 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 6(1).

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 desirable. By section 6(2), 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 v. 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 3(1) of the Bombay Act corresponding to section 5(1) of the Act provided that the notification `may’ also be published in the regional languages of the area. Section 4(1) of the Bombay Act which corresponds to section 6(1) 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 4(4) of the Bombay Act corresponding to section 6(5) 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 4(4) did not provide in terms as section 6(5) 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 6(5) of the Act, like that under section 6(1), 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 (Ex. 10) issued under section 6(5) 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.

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 5(1) and 6(1) 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 Ex. 9 dated April 19, 1962 was a “notification constituting the Godhra Market area.” In fact Ex. 9 was issued under section 4-A(3) 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, Ex. 10, dated February 16, 1968 which was issued under section 6(5) 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 4(1) 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 6(5) 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.

P.H.P.     Appeal allowed.