30 October 1964
Supreme Court


Case number: Appeal (civil) 23 of 1964






DATE OF JUDGMENT: 30/10/1964


CITATION:  1965 AIR  895            1965 SCR  (1) 970  CITATOR INFO :  RF         1966 SC 693  (10)  R          1968 SC  90  (6)  D          1968 SC  98  (11)  R          1969 SC 244  (14)  RF         1970 SC  58  (5)  R          1973 SC1041  (13)  RF         1974 SC1185  (13)  D          1976 SC 714  (30,40,68)  R          1977 SC 536  (17)  RF         1977 SC1055  (5)  E          1978 SC 306  (14,15)  RF         1983 SC 558  (20,22)  F          1989 SC1160  (27)

ACT: U.P. Municipalities Act, 1916, ss. 131(3), 94(3) and 135(3)- Municipal   Water  Tax-Procedure  for   levy-Provisions   in relevant  State  for publication of  tax  proposals  whether directory    for   mandatory-Effect   of   publication    of notification imposing tax in Government Gazette.

HEADNOTE: The appellant company challenged the imposition of water-tax by  the Rampur Municipal Board in a petition under Art.  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  s. 131(3)  read with s. 93(3) of the U.P.  Municipalities  Act, 1916, they should have been published,in a Hindi paper.  The High Court dismissed the petition but granted a  certificate under Art. 133(1)(c). The questions for consideration were whether the whole of s. 131(3)   was  mandatory,  or  the  part  of   it   requiring publication  in the manner laid down in s. 94(3) i.e., 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 s. 135(3), of the prescribed procedure having been observed.



HELD:     (Per  GAJENDRAGADKAR" C. J., WANcHoo and  RAGHUBAR DAYAL JJ.)-(i) Section 131(3) 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  s. 94(3).   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 s. 94(3).  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 s. 94(3) in this case. [977 E-F; 978 D-F;  980 C; 981 A-B] (ii) Section  135(3)  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 s. 131(3) and substantial compliance with the second part.  Therefore a. 135(3) 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 v. Kunju Thevar, [1959] S.C.R. 583, relied on. State of U.P. v. Manbodhan Lai Srivastva, [1958] S.C.R.  533 and Berar  Swadeshi Vanaspati v. Municipal  Committee,  Shegaon, [1962] 1 S.C.R. 596, distinguished. Montreal  Street Railway Company v. Normandin, (1917)  L.R., A.C. 170, Azimulla v. Suraj Kumar Singh, A.I.R. (1957)  All. 307  and Municipal Board, Hapur v. Raghuvendra Kripal,  1960 A.L.I. 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  v.  Municipal   Committee, Shegaon, [1962] 1 S.C.R. 596, 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 matter.[988  F] Since  s.  94(3) is clearly directory it  is  immaterial  to consider whether s. 131(3)  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 s. 94(3) 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 s. 131(3) is mandatory or  whether  s. 135(3)  has  become  void by reason of  Art.  13(1)  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]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil 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 S.   N. Andley, Rameshwar Nath and P. L. Vohra, for the res- pondent. The Judgment of P. B. GAJENDRAGADKAR, C.J., K. N.WANCHOO 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  S. 128(1)  (x) of the U.P. 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 ss. 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,  [s.  131(2)]. Section  131(3)  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 s. 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 s. 296 of the Act as it  thinks  fit. When  the rules have been made the order of sanction  and  a copy  of  the  rules  has to be sent  to  the  Board,  which thereupon by special resolution has to direct the imposition of the tax with effect from the date to be specified in  the 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 s.   135 (2).  Then comes s. 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 s. 129 of  the



Act  there are certain restrictions subject to  which  water tax  can be imposed and one of the restrictions is that  the tax shall not be imposed, where the unit of assessment is  a plot of land or a building, on any such plot or building  of which no part is within a radius to be fixed by rule in this behalf  for each municipality from the nearest  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  S.  129  (a),  as there was  no  standpipe  or  other waterwork whereat water was made available to the public  by the  respondent  within  600 feet of the  buildings  of  the factory, the Central 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 s. 131(3)  read with s. 94(3) of the Act, and as the provision of s.  131(3) is  mandatory  and  was not complied  with,  all  subsequent action taken for the imposition of the tax was bad for  non- compliance with a mandatory provision and therefore the  tax itself  was  not levied according to law and  could  not  be realised; and (2)  the  tax  could not be levied on most of  the  premises belonging  to  the appellant as there was  no  standpipe  or other  waterwork  whereat water was made  available  to  the public  by  the  respondent within 600 feet of  all  of  the buildings of the appellant.                             975 We  shall  first consider the ground as to  publication  and three questions fall to be decided in that behalf : (first), is  publication  as  provided in s.  131  (3)  mandatory  or directory,  for it is contended on behalf of the  respondent that publication under s.     131(3)  is  merely  directory; (secondly), was the publication in this  case  strictly   in accordance with the manner provided in s.    94(3);      and (thirdly), if the publication was not strictly in accordance with the manner provided in s. 94(3), is the defect  curable under s. 135(3)? The  question  whether a particular provision of  a  statute which  on the face of it appears mandatory, inasmuch  as  it uses  the  word  "shall"as in  the  present  case-is  merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the  object  of the statute in making the provision  is  the determining factor.  The purpose for which the provision has been  made and its nature, the intention of the  legislature in  making the provision, the serious general  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 U.P. v.  Man- bodhan  Lal  Srivastava(1),  where Art. 320(3)  (c)  of  the Constitution was held to be directory and not mandatory, and contends  that the principle of that case applies with  full force  to  the facts of the present case.  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  320(3) (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 v. Normandin(2) in that connection:- (1)  [1958] S.C.R. 533. (2) [1917] L.R. A.C. 170.                             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 Art.  320(3)  (c)  itself contemplates three grounds: (i) that the proviso to Art. 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 Art. 320(3) (c)  could have the effect of nullifying the final order passed by  the Government;  and  (iii)  that Art. 311 was not  in  any  way controlled  by  Art. 320 and there was no provision  in  the Constitution  expressly  or  otherwise  providing  that  the result  of non-compliance with Art. 320(3) (c) would  be  to invalidate  the proceedings ending with the final  order  of the  Government.  It was also pointed out in that case  that



an examination of the terms of Art. 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 Art. 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  Art. 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 Art. 320(3) (c) to a statutory 977 provision  like the one which came up for  consideration  in Montreal  Street Railway Company’s case(1) 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,  S.  131(3), 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.  III).  The second  part provides  for the manner of publication and that  manner  is according  to  s’ 94(3).  We shall first deal with  what  we have  called  the first part of S. 131(3).   This  provision deals   with   taxation.   The  object  of   providing   for publication  of  proposals  and draft  rules  is  to  invite objections  from  the inhabitants of the  municipality,  who have  to  pay  the tax.  The  purpose  of  such  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)  [1917] L.R. A.C. 170. 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 s.  131(3)  would essentially carry out that purpose.  In the circumstances if we  are  to  hold that this part of  s.  131(3)  was  merely directory, the whole purpose of the very elaborate procedure provided  in ss. 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  s. 131(3)  is mandatory and it is necessary to comply  with  it strictly  before any tax can be imposed.  We shall  consider the interpretation of s. 135(3) later, but we have no  doubt that in the present case, in spite of s.     135(3),     the legislature intended that there must be publication as provided in what we have called the first part of s. 131(3). We therefore hold  that this part of S. 131(3) 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 s. 131(3) is mandatory. Turning  now  to  the second part, which  provides  for  the manner  of publication, that manner is provided in S.  94(3) 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 s. 94(3), 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 s. 94(3) is directory and so long as there is substantial compliance with that the purpose of the mandatory part of s. 131(3) would be served.  In this connection we may refer  to K.  Kamaraja  Nadar  v. Kunju Thevar(1).  In  that  case,  a question  arose whether s. 117 of the Representation of  the People  Act  (No. 43 of 1951) was  mandatory  or  directory. That  section required that a petitioner filing an  election petition  had  to  enclose with the  petition  a  Government Treasury  receipt  showing that a deposit  of  one  thousand rupees had been made by 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 s. 1 17 were  directory and  not mandatory in their character, and that the  essence of the provision contained in s. 117 was that the Petitioner should  furnish security for the costs of the  petition  and should enclose along with the petition a Government Treasury receipt  showing that a deposit of one thousand  rupees  had been  made by him either in a Government Treasury or in  the Reserve Bank of India to be at the disposal of the  Election Commission to be utilised by it in the manner authorised  by law  and  was  under its control and  payable  on  a  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) [1959] S.C.R. 583. L2Sup./65 -- 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 S. 94(3) in the present case.  As we have said already the essence of s. 131(3) is that  there should  be publication of the proposals and draft  rules  so that the tax-payers have an opportunity of objecting to them and  that is provided in what we have called the first  part of  s.  131,(3);  that  is mandatory.   But  the  manner  of publication  provided by s. 94(3) which we have  called  the second  part  of s. 131(3), appears to be directory  and  so long  as  it is substantially complied with  that  would  be enough  for  the  purpose  of  providing  the  tax-payers  a reasonable  opportunity of making their objections.  We  are therefore of opinion that the manner of publication provided in s. 131(3) is directory. Let us see what s. 94(3) requires and what has been done  in this case.  That section requires the publication to be made in a local paper and that local paper must 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 s. 94(3).  It appears that there is a  local paper published in Hindi also in Rampur, but the evidence is that it is published very irregularly.  It is urged that  if there  was  no local paper published regularly 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 S. 94(3) inasmuch as the publication has  not been  made  in a local paper published in  Hindi.   We  must



however point out that if s. 94(3) is interpreted literally, all  that it 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  s. 94(3) and what it substantially requires is that  the publication should be in Hindi in a local paper, and if that is  done that would be compliance with s. 94(3).   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 s.  94(3)  in this case, even though there is a technical defect  inasmuch as the local paper in which the publication has been made is published  in Urdu and not in Hindi.  But what has  happened in  this case is in our opinion substantial compliance  with s. 94(3) and as we have held that provision to be  directory it must be held that s.  131(3) has been complied with. This  brings us to the third point, namely, the  effect  and interpretation  of s. 135(3) which we have already set  out. That sub-section provides that a notification made under  s. 135(2)  shall  be  conclusive proof that the  tax  has  been imposed  in accordance with the provisions of the  Act.   It has  been  urged  on  behalf  of  the  respondent  that  the publication  has been made as required by s. 135(2)  in  the official gazette and therefore is conclusive proof that  the tax  had been imposed in accordance with the  provisions  of the  Act,  i.e.,  all the provisions of  the  Act  had  been complied  with.   It is urged that once a  notification  has been  made  as required by s. 135(2), s.  135(3)  raises  an irrebuttable presumption that all the provisions of the  Act have  been  complied.  with and therefore it  was  not  open to,the  appellant  to raise the question  of  non-compliance with  the provisions of s. 131(3) read with s. 94(3) at  all in  the present case.  Reliance in this connection has  been placed   on  the  Berar  Swadeshi  Vanaspati  v.   Municipal Committee, Shegaon(1).  In that case s. 67(8) of the C.P.  & Berar  Municipalities Act, 1922 came up  for  consideration. That section was in terms similar to the terms of s. 135(3). This  Court  held in that case that as the provision  of  s. 67(7) which correspond to s. 135(2) 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) [1962] 1 S.C.R. 596. 982 under  S.  67 (7) of that Act.  Imposition of  the  tax  was challenged  on the ground that the Board did not  take  into consideration  the objections filed.  The evidence  in  that case  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-s. (8)  of s. 67 was conclusive. The  present  case is in our opinion similar to  that  case. Here  also  the publication was made, as-  we  have  already



pointed out in compliance with what we have called the first part of s. 131(3).  Further the manner of publication was in substantial  compliance with s. 94(3).  Therefore, as  there was substantial compliance with the provisions of s.  94(3), s.  135(3)  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  s. 135(3) goes further and means that where it applies, the tax must be held to be imposed in accordance with the provisions of  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  s.  131(3)  though  the  manner  was   not strictly,  in accordance with s. 94(3).  We do not think  it necessary in the present case to decide what would happen if there  was no compliance at all with the various  procedural provisions including s. 131(3) by a Board before imposing  a tax and the evidence consisted only of a notification  under S. 135(2).  It has been held by the Allahabad High Court  in a  number of cases that if there is no compliance  with  the procedural  provisions  in  s.  131  to  s.  134,  the  mere notification  under  s. 135(2) would not  be  sufficient  to impose  a  tax and S. 135(3) would not save such  tax:  (see Azimulla v. Suraj Kumar Singh(1) and Municipal Board,  Hapur v. Raghuvendra Kripal(2).  These are cases in which  certain procedural provisions were not complied with at all and  the High  Court  held that S. 135(3) 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 case(1) 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) A.I.R. (1957) All. 307.  (3) [1962] 1 S.C.R. 596. (2) 1960 A.L.J. 185. 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  s. 135(3) of the Act or S. 67(8) of’ the C.P. & Berar Municipal Act  would necessarily save such imposition.  If  s.  135(3) 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 s. 135(2) has been made, the  tax  would still  be  good, the question may arise  whether  s.  135(3) itself  is a valid provision.  For present purposes  however it  is unnecessary to decide that question.  In the  present case the mandatory part of s. 131(3) has been complied  with and its directory part has been substantially complied  with and  so s. 135(3) 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 s. 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 s. 129(a) 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  s. 94(3) of the U.P. Municipalities Act.  The  procedure for  the  imposition of a tax by the Municipality  has  been analysed  by my learned brother Wanchoo very succinctly.   I agree  generally  with  all he has said but as  I  view  the matter differently on the construction of ss. 131 (3), 94(3) and 135(3) of the Act, I shall briefly give the reasons  for my decision on that part of the case. The general scheme of taxation in the Act is this: After the Municipal  Committee or Board decides to impose a tax it  is required  to  frame proposals by a  special  resolution  [s. 131(1)]  and  to  frame rules which  it  desires  the  State Government  to make relative to the  assessment,  collection etc., of the tax [s. 131(2)].  Section 131(3) 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 94(3) of  the               U.l. 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 s. 94(3).  Two questions, therefore, arise :               (a)   Is section 94(3) mandatory ? and               (b)   If   section  94(3)  is   not   strictly               complied with whether section 135(3) 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 ss. 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 v. Lorant(1) (affirming  Sub- Nom)  (2) and Joshi Kalidas v. Dakor  Town  Municipality(3). 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) 3 H.L.C. 418-10 E.R. H.L. 164. (2) 13 Q.B. 706. (3)  I.L.R. 7 Bom. 399. 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 U.P. Municipalities Act  in  particular. The  legislature  has  itself  furnished  the  solution   by enacting  s. 135(3) 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 s.  135(3) as enacting an absolute rule of evidence (and I am in favour of  reading it as such-See: The Berar Swadeshi Vanaspati  v. 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)  [1962] 1 S.C.R. 596. 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 s. 94(3) 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-s. (3)  of  s.131  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 s. 94(3) 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  s. 131(3)  is publication in the manner provided for in S.  94- which  is actually provided in sub-s. (3) of S.  94.   Since the  latter  provision  is directory  it  is  immaterial  to consider  whether S. 131(3) 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  s. 94(3) 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 s. 94(3) 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 s. 131(3) is  mandatory or whether s. 135(3) has become void by reason of Art. 13(1) 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. Appeal dismissed.. 990