Holding

A provision containing both "may" and "shall" must be interpreted by discerning legislative intent; "may" is permissive and "shall" is mandatory, but the presence of both does not automatically make the provision compulsory.

Summary

The Supreme Court examined an appeal by the defendants challenging a High Court order that set aside a First Appellate Court's remand of a suit to the trial court under Order 41 Rule 25 of the Code of Civil Procedure, 1908. The key issue was the legal effect of the words "may" and "shall" appearing in the same statutory provision. The Court held that "may" confers discretion while "shall" imposes a duty, but the presence of both does not automatically render a provision mandatory; the legislative intent must be ascertained by considering the statute's scheme, purpose and consequences. It clarified that under Order 41 Rule 25 the appellate court may, but is not compelled to, frame issues and refer them to the trial court, and if it does, the trial court must take any additional evidence and return findings. Applying this interpretation, the Court found no infirmity in the High Court’s decision and dismissed the appeal.

Issues considered

The legal effect of the words "may" and "shall" when both appear in the same statutory provision, particularly Order 41 Rule 25 of the CPC.
Whether the appellate court is compelled to frame issues and refer them to the trial court under Order 41 Rule 25, or may do so at its discretion.
The appropriate procedure when an appellate court remands a matter to the trial court for additional evidence under the same provision.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 25

Subjects

Statutory interpretationMay vs ShallOrder 41 Rule 25Civil ProcedureAppellate jurisdictionRemand to trial courtDiscretionary powerMandatory duty

Judgment

[2008] 2 S.C.R. 424

A SMT. BACHAHAN DEVI & ANR.
II.
NAGAR NIGAM, GORAKHPUR & ANR.

B
(Civil Appeal No. 992 of 2008)
FE~RUARY 5, 2008

(DR. ARIJIT PASAYAT AND
,.
,..--
lOKESHWAR SINGH PANTA, JJ.). '
: . ,......
Code of Civil Procedure, 1908:
C Or. 41, r.25 - Power of appellate court to frame issues
and refer the same to trial court for trial or such issues and
findings thereon - HELD: Provision comes into operation when
appellate court comes to a conclusion that the court from
whose decree appeal is preferred has omitted to frame or try
D any issues or to determine any question of fact which appears
to appellate court essential for decision of suit on merits -
Once the appellate court comes to such a conclusion, it may,
if necessary, frame issues and refer the same to trial court -
But there is no compulsion on part of appellate court to do so
E as is clear from expression 'may' - However, once the matter
is referred to trial court, it is incumbent upon it to take additional
evidence and return the same to appellate court together with
findings thereon and reasons therefor - Connotation of
expression 'may' and 'shall' occurring in the provision -
F Explained - Interpretation of Statute.
Interpretation of Statutes:
Expressions 'may' and 'shall' used in the same provision
- Connotation of - Code of Civil Procedure, 1908 - Or. 41,
G r.25.
In an appeal filed by the defendants-appellants
against the decree of the trial court passed in a suit filed
by the plaintiff-respondent no. 1 for declaration of its title
over the suit land, the first appellate court allowed the
H 424
SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM, 425
GORAKHPUR & ANR.

application for amendment of the written statement and A
remanded the matter to the trial court. But, the High Court
set aside the order of the appellate court.
In the instant appeal filed by the defendants it was
contended for the appellants that the High Court failed to
consider that in case the first appellate court was of the 8
opinion that evidence was insufficient, the matter could
be remanded to the trial court in terms of Order 41 Rule
25 of the Code of Civil Procedure, 1908.
The question for consideration before the Court was: C
What is the position in law when both the expressions
"may" and "shall'' are used in the. same provision?
Dismissing the appeal, the Court
HELD: 1.1 Where the legislature uses two words
'may' and 'shall' in two different parts of the same b
provision prima facie it would appear that the legislature
manifested its intent on to make one part directory and
another mandatory. But that by itself is not decisive. The
power of court to find out whether the provision is
directory or mandatory remains unimpaired. [para 34] ~
[441-F, G] .
1.2 The question whether a particular provision of a
statute is directory or mandatory cannot-be resolved by
laying down any general rule of universal application. F
Such controversy has to be decided by ascertaining the
_intention of the Legislature and not by looking at the
language in which the provision is clothed. And for finding
out the legislative intent, the Court must examine the
scheme of the Act, purpose and object underlying the.
provision, consequences likely to ensue or inconvenience G
likely to result if the provision is read one way or the other
and many more considerations relevant to ·the issues.
Mere use of word 'may' or 'shall' is not conclusive. The
ultimate rule in construing auxiliary verbs .like 'may' and
'shaH' is to discover the legislative intent; and the use of H
426 SUPREME COURT REPORTS {2008] 2 S.C.R.

A words 'may' and 'shall' is not decisive of its discretion or
mandates. The use of the words 'may' and 'shall' may help
the courts in ascertaining the legislative intent without
giving to either a controlling or a determinating effect.
[para 12 and 33] [433-0, E; 441-0, E]
B 1.3 As a general rule, the word 'may' is permissive
and operative to confer discretion and especially so, where
it is used in juxtaposition to the words 'shall' which
ordinarily is imperative as it imposes a duty. Cases,
however, are not wanting where the words 'may', 'shall'
C and 'must' are used interchangeably. In order to find out
whether these words are being used in a directory or in a
mandatory sense, the intent of the legislature should be
looked into along with the pertinent circumstances. The
distinction of mandatory compliance or directory effect
D of the provision depends upon the language couched in
the statute under consideration and its object, purpose
and effect. The distinction reflected in the use of the word
'shall' or 'may' depends on conferment of power.
Depending upon the context, 'may' does not always mean
E may. Where to interpret the word 'may' as directory would
render the very object of the Act as nugatory, the word
'may' must mean 'shall'. 'May' is a must for enabling
compliance of provision but there are cases in which, for
various reasons, as soon as a person who, within the
F statute is entrusted with the power, it becomes his duty
to exercise that power. Where the language of statute
creates a duty, the special remedy is prescribed for non-
performance of the duty. [para 31 and 32] [440-0, E, F, G;
441-A, D]
G 1.4 Several statutes confer power on authorities and
officers to be exercised by them at their discretion. The
power is in permissive language. In certain circumstances,
however, such power is 'coupled with duty' and must be
exercised. [para 13] [433-G]
H
~'
SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM, 427
GORAKHPUR & ANR.

Ganpat Ladha vs. Shashikant 1978(2) SCC 573- A
referred to
Re: Baker (1890) 44 Ch D 262; Julius vs. Lord Bishop
of Oxford (1880) 5 AC 214:49 LJ QB 580:(1874-80) All ER
Rep 43(HL); Padfield vs. Minister of Agriculture, Fisheries &
Food 1968 AC 997: (1968) 1 All ER 694: (1968) 2 WLR 924
B
,.
. (HL); R. Vs. Metropolitan Police Commissioner (1911) 2 QB
1131; R. V Nescastle-upon-Tyne Corporation (1889) 60 LT
963; and Alcock vs. Chief Revenue Authority 50 IA 227 AIR
1923 PC 138 - referred to.
c
Judicial Review of Administative Action, 1995 pp. 300-
01 de Smith; Administrative Law, 9th Edn. Wage & Forsyth -
referred to.
2.1 In order to bring in application of Order 41 Rule
25 of the Code of Civil Procedure, 1908, the appellate court D
must come to a conclusion that the lower court has
omitted to frame issues and/or has failed to determine any
~
questions of fact which in the opinion of the appellate
court are essential for the right decision of the suit on
merits. Once the appellate court comes to such a E
conclusion it may, if necessary, frame the issues and refer
the same to the trial court. Thus, there is no compulsion
~ on the part of the appellate court to do so. This is clear
from the use of the expression 'may'. [para 1O] [432-B, C]
..., 2.2 Once the appellate court frames the issues and F
refers the same to the lower court, it is incumbent upon
the trial court to take additional evidence required. There
may be cases where additional evidence may not be
required. But where the additional evidence is required,
then the lower court has to return the evidence so G
')" recorded to the appellate court together with the findings
thereon and the reasons therefor. Requirement for
recording the finding of fact and the reasons disclosed
from the facts is because the appellate court at the first
instance has come to the conclusion that the lower court H
\
~ .,

428 SUPREME COURT REPORTS [2008] 2 S.C.R.

A has omitted to frame or try an issue or to determine a
question of fact material for the right decision of the suit ~
on merits. [para 1O] [432-E, F, G; 433-A] l
I

'
2.3 It has to be noted that where a finding is called
for on the basis of certain issues framed by the appellate
B court, the appeal is not disposed of either in whole or in
part. Therefore, the parties cannot be barred from arguing ~

the whole appeal after the findings are received from the >.
court of the first instance. [para 10] [433-A]

c Gogula Gurufnurthy and Ors. Vs. Kurimeti Ayyappa
1975(4) sec 458 - relied on. ~

Commissioner of Police vs. Gordhandas Bhanji 1952(1)
SCR 135; and Rat/am Municipality vs. Vardichan 1980(4)
sec 162 - referred to.
,.
.I
?

D
Pasupuleti Venkateswarlu vs. The Motor and General
Traders [1975] 1 SCC 770 - cited.
~
2.4 In the instant case, it is to be noted that the High
Court in the impugned judgment has noted that if the
E appellate court is of the opinion that the evidence is
insufficient to decide the issue, only then the matt~r
may be remitted to the trial court. In the circumstances,
the appeal by the respondents before the High Court
has been rightly allowed. In any event, the order does l
_.,.
F not suffer from any infirmity to warrant interference.
[para 36-37] [442-8, C]
CIVILAPPELLATE JURISDICTION : Civil Appeal No. 992
of 2008.
G From the final Judgment and Order dated 01.09.2004 of
· the High Court of Judicature at Allahabad in First Appeal from
Order No. 2264 of 2004.
Jaideep Gupta, Praveen Kumar for the Appellants.
V.J. Francis for the Respondents.
H
-1 ~

SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM, 429
GORAKHPUR & ANR. [PASAYAT, J.]
.,...
The Judgment of the Cou~ was delivered by A
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the order passed Ey
learned Single Judge of the Allahabad High Court setting aside
the order passed by the First Appellate Court, and dir_ecting i_t B
to take decision on merit.
,. ~ 3. Essential facts are as follows:
.•
Respondent no.1 as plaintiff no.1 along with .one Gabbu
filed Suit No.23 of 1960 for declaration that the land in dispute c
belongs to it and the defendants have no concern with the
property. Assertion was that the property in question had vested
in it in view of the notification issued by the State Government
;, after abolition of Zamindari. The suit was decreed on 17 .1.1972.
The trial court granted relief of permanent injunction in respect
D
of suit property as described in the Schedule and also declared
that plaintiff no.1 is the owner of the said plot. The decre~ Vi{as
challenged by way of appeal by the appellants. During· the
pendency of the appeal, an application to amend the written
statement was allowed by the Appellate Court. Thereafter certain
additional issues were framed. The Appellate Court was of the
E
view since the written statement had been amended during the
pendency of the appeal, the matter should be remanded to the

' .....
trial court for fresh decision. Challenging the order passed, an
appeal was filed 'by respondent no.1 before the High Court.
Stand of the plaintiff no.1 before the High Court was that the F
Appellate Court committed an illegality in remanding the matter
for fresh consideration. It was submitted that the Appellate Court
could have exercised its discretion under Order XLI Rule 25 of
the Code of Civil Procedure, 1908 (in short 'the Code') and it
could have recorded evidence itself. It was the opinion that the G·
same was necessary for disposal of the appeal.
4. Stand of the defendants on the contrary was that two
courses were available to the Appellate Court. First was to pass
the remand order after setting aside the findings. The said
H
430 SUPREME COURT REPORTS [2008) 2 S.C.R.

A course has been adopted. The other course was to call for """('
"
findings on the issue by remitting it to the trial court. The High
Court was of the view that the order of remand should be passed
rarely and in the instant case that was not the case. That being
so, the High Court set aside the order of the First Appellant
B Court and the matter was remanded to it for decision of the
appeal· on merit.
5. Learned counsel for the appellant submitted that the true 'f

scope and ambit of order XU Rule 25 has been improperly
>-
pressed into service. In the background of the factual position,
c the order of the High Court cannot be maint~ined. The High
Court, however, noted that if the Appellate Court is of the opihion
that the evidence is insufficient, the matter may be remanded to .
the trial court for recording evidence in terms of Order XU Rule
of
25 the Code. · v

D
6. In response, learned counsel for the respondent
submitted that it will not be in the. interest of the parties to go on
litigating and for that purpose the only course which was available ·
has been adopted. Strong reliance was placed on a decision
of this Court in Pasupuleti Venkateswarlu v. The Motor and
E General Traders (1975 (1) SCC 770).

7. Order XU Rule 25 of the Code reads as follows·:
l

F
'"ORDER XU: APPEALS FROM ORIGINAL DECREES
25. Where Appellate Court may frame issues and refer
i
them for trial to Court whose decree appealed from.-. ~

Where the Court from whose decree the appeal is
preferred has omitted to frame or try any issue, or to
determine any question of fact, which appears to the
Appellate Court essential to the right decision of the suit
G
upon the merits, the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court from ~

whose decree the appeal is preferred, and in such case
shall direct such Court to take the additional evidence
required; and such Court shall proceed to try such issues,
H
SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM, 431
GORAKHPUR & ANR. [PASAYAT, J.]

and shall return the evidence to the Appellate Court A
together with its findings thereon and the reasons therefor
[within such time as may be fixed by the Appellate Court
or extended by it from time to time]."
8. There is no scope for any doubt that in a suit as well as
the first appeal all disputed facts are open for decision. A point B
of fact is not to be decided in second appeal where only a
.,. substantial question of law is to be looked into. There is some
~
amount of controversy as to whether the provisions are
mandatory, notwithstanding the fact that the word 'rnay' has been
used. The First Appellate Court is the last Court of facts. .C

9. Under Order XU Rule 25, if it appears to the Appellate
Court that any fact essential for the decision in the suit was to
be determined, it could frame an issue on the point and refer
the same for trial, to the Court from whose decree the appeal is
preferred and in such case, shall direct such court to take
D
additional evidence required. The order of remand should not
be passed as a matter of routine. The First Appellate Court which
has the power to analyse the factual position can decide the
issue and the additional issues. In the instant case the First
Appellate Court, inter alia, observed as follows: E
"As such, it would not be proper for the first Appellate
Court in such matter to itself record the evidence and to
give its findings in regard to newly created issues. The
Hon'ble High Court has also held that in the present matter F
under the provision of Order 41 Rule 25 of Civil Procedure
Code, becomes mandatory (shall) though in this provision,
the word 'may' has been used. No doubt in the present
matter also the Appellate Court has framed 6 additional
issues which are legal in nature and also factual, with the
G
result if the Appellate Court gives its findings relating to
,.. said legal and factual issues after itself recording
(receiving) evidence then the aggrieved party would be
prevented from his right of filing first appeal. Accordingly,
the aforesaid ratio laid down by the Hon'ble High Court is
H
432 SUPREME COURT REPORTS [2008] 2 S.C.R.

A fully applicable in the present matter."
10 A bare reading of the provision makes it clear that the
same comes into operation when the Court, from whose decree
the appeal is preferred, has omitted to frame or try and issue,
or to determine any question of fact which appears to the
8 appellate court essential for the right decision of the suit upon
the merits. In order to bring in application of Order XLI Rule 25
the appellate court must come to a conclusion that the lower
court has omitted to frame issues and/or has failed to determine
... any question of fact which in the opinion of the appellate court
·, C are essential for the right decision of the suit on merits. Once
the appellate court comes to such a conclusion it may, if
necessary, frame the issues and refer the same to the trial court.
In other words there is no compulsion on the part of the appellate
Court to do so. This is clear from the use of the expression 'may'.
D But the further question that arises is whether in such a case the
appellate court is bound to direct the trial court to take additional
evidence required. This is a mandatory requirement as is evident
from the provision itself because it provides that the lower court
shall proceed to try such case and shall return the evidence to
E the appellate courttogetherwith findings therein and the reasons
therefor. As noted above, the provision becomes operative when
the appellate court comes to the conclusion about the omission
on the part of the lower court to frame or try any issue. Once the
appellate court directs the lower court to do so, it is incumbent
F upon the trial court to take additional evidence required. As has
been rightly contended by learned counsel for the appellant,
there may be cases where additional evidence may not be
required. But where the additional evidence is required, then
the lower court has to return the evidence so recorded to the
G· appellate court together with the findings thereon and the
reasons therefor. Requirement for recording the finding of facts
and the reasons disclosed from the facts is because the
appellate court at the first instance has come to the conclusion
that the lower court has omitted to frame or try any issue or to
determine any question of fact material for the right decision of
H
l
SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM, 433
GORAKHPUR & ANR. [PASAYAT, J.]

the suit on merits. It has to be noted that where a finding is called A
for on the basis of certain issues framed by the appellate court,
the appeal is not disposed of either in whole or in part. Therefore
the parties cannot be barred from arguing the whole appeal
after the findings are received from the court of the first instance.
This position was highlighted in Gogula Gurumurthy and Others B
v. Kurimeti Ayyappa (1975(4) SCC 458), where it was inter-
~ a/ia observed in para 5 as follows:
....
"We consider that when a finding is called for on the basis
of certain issues framed by the appellate Court the appeal
is not disposed of either in whole or in·part. Therefore the C
parties cannot be barred from arguing the whole appeal
after the findings are received from the court of first
instance. We find the same view taken in Gopi Nath
Shukul v. Sat Narain Shukul (AIR 1923 All 384)."
D
11. The delicate question that remains to be examined is
what is the position in law when both the expression "shall" and
"may" are used in the sa..me provision.
12. Mere use of word 'may' or 'shall' is not conclusive.
The question whether a particular provision of a statute is E
directory or mandatory cannot .be resolved by laying down any
general rule of universal application. Such controversy has to
be decided by ascertaining the intention of the Legislature and
not by looking at the language in which the provision is clothed.
And for finding out the legislative intent, the Court must examine F
the scheme of the Act, purpose and object underlying the
provision, consequences likely to ensue or inconvenience likely
to result if the provision is read one way or the other and many
more considerations relevant to the issue.
13. Several statutes confer power on authorities and G
officers to be exercised by them at their discretion. The power
is in permissive language, such as, 'it may be lawful', 'it may be
permissible', 'it may be open to do', etc. In certain
circumstances, however, such power is 'coupled with duty' and
must be exercised. H
j
434 SUPREME COURT REPORTS (2008] 2 S.C.R.

A 14. More than a century ago, in Baker, Re, (1890) 44 Ch
D 262, Cotton, L.J. stated;
I think that great misconception is caused by saying that
in some cases 'may' means 'must'. It never can mean
··must', so long as the English language retains its meaning;
B but it gives a power, and then it may be question in
what cases, where a Judge has a power given by '1'
him by the word 'may', it becomes his duty to exercise >
it.
(emphasis supplied)
c
15. In the leading case of Julius v. Lord Bishop of Oxford
(1880) 5 AC 214:49 LJ QB 580:(1874-80) All ER Rep 43 (HL),
the Bishop was empowered to issue a commission of inquiry in
case of alleged misconduct by a clergyman, either on an
. application by someone or sue motu. The question was whether
D
the Bishop had right to refuse commission when an application
was made. The House of Lords. held that the Bishop had
discretion to act pursuant to the complaint and no mandatory ....
duty was imposed on him.

E 16. Earl Cairns, L.C., however, made the following
remarkable and oft-quoted observations:
"The words 'it shall be lawful' are not equivocal'. They are
plain and unambiguous.· They are words merely making
that legal and possible which there would otherwise be no
F right or authority to do. They confer a faculty or power and ..,..
, they do not of themselves do more than c.onfer a faculty or
power. But there may be something in the nature of
the thing empowered to be done,. something in the
object for which it is to be done, something in the title
G of the person or persons for whose benefit the power
is to be exercised, which may couple the power with ~
a duty, and make it the duty of the person in whom
the power is reposed, to exercise that power when
called upon to do so."
H
- SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM,
GORAKHPUR & ANR. [PASAYAT, J.]
435

17. Explaining the doctrine of power coupled with duty, de A
Smith, ('Judicial Review of Administrative Action', 1995;
pp.300-01) states:
"Sometimes the question before a court is whether words
which apparently confer a discretion are instead to be
interpreted as imposing duty. Such words as 'may' and 'it 8
shall be lawful' are prima facie to be construed as
permissive, not imperative. Exceptionally, however, they
may be construed as imposing a duty to act, and even
a duty to act in one particular manner."
c
(emphasis supplied)
18. Wade also says (Wade & Forsyth; 'Administrative
Law: 9th Edn.): p.233):
"The hallmark of discretionary power is permissive
0
language using words such as 'may' or 'it shall be lawful',
as opposed to obligatory language such as 'shall'. But
this simple distinction is not always a sure guide, for there
have been many decisions in which permissive language
has been construed as obligatory. This is not so much E
because one form of words is interpreted to mean its
opposite, as because the power conferred is, in the
circumstances, prescribed by the Act, coupled with a
duty to exercise it in a proper case."
(emphasis supplied) F
19. In the leading case of Padfield v. Minister of Agriculture,
Fisheries & Food 1968AC 997: (1968) 1 All ER 694: (1968) 2
WLR 924 (HL), the relevant Act provided for the reference of a
complaint to a committee of investigation 'if the Minister so
directs'. The Minister refused to act on a complaint. It was held G
that the Minister was required to act on a complaint in absence
~ of good and relevant reasons to the contrary.
20. Likewise, it was held that the licensing authorities were
bound to renew licences of cab drivers if the prescribed H
A
436 SUPREME COURT REPORTS [2008] 2 S.C.R.

procedural requirements had been complied with [R. v.
-
Metropolitan Police Commissioner (1911) 2 QB 1131 ].
Similarly, local authorities were held bound to approve building
plans if they were in conformity with bye-laws [R. V. Nescastle-
upon-Tyne Corporation (1889) 60 LT 963].Again, the court was
B required to pass a decree for possession in favour of a landlord,
if the relevant grounds existed [Ganpat Ladha v. Shashikant
(1978 (2) sec 573).
21. In Alcock v. Chief Revenue Authority 50 IA 227: AIR
1923 PC 138, the relevant statute provided that if in the course
C · of any assessment a question arises as to the interpretation of
the Act, the Chief Revenue Authority 'may' draw up a statement
· of the case and refer it to the High Court. Holding the provision
to be mandatory and following Julius, Lord Phillimore observed:
"When a capacity or power is given to a public authority,
D
there may be circumstance which couple with the power
of duty to exercise it."
22. In Commissioner of Police v. Gordhandas Bhanji ~
(1952 (1) SCR 135), Rule 250 of the Rules for Licensing and
E Controlling Theatres and Other Places of Public Amusement in
Bombay City, 1884 read as under:
"The Commissioner shall have power in his absolute
discretion at any time to cancel or suspend any licence
granted under these Rules."
F
23. It was contended that there was no specific legal duty
compelling the Commissioner to exercise the discretion. Rule
250 merely vested discretion in him but it did not require him to
exercise the power. Relying upon the observations of Earl
G Cairns, L.C'., the Court observed:
"The discretion vested in the Commissioner of Police
under Rule 250 has been conferred upon him for public
reasons involving the convenience, safety, morality and
the welfare of the public at large. An enabling power of
H his kind conferred for public reasons and for the public
.{
-4,
SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM,
GORAKHPUR & ANR. [PASAYAT, J.]
437

~·
benefit is, in our opinion, coupled with a duty to A
exercise it when the circumstances so demand. It is
a duty which cannot be shirked or shelved nor can it
be evaded.... "
(emphasis supplied)
24. In Rat/am Municipality v. Vardichan (1980 (4) SCC B
162), some residents of Ratlam Municipality moved the Sub-
• Divisional Magistrate under Section 133 of the Code of Criminal
"' Procedure, 1973 for abatement of nuisance by directing the
municipality to construct drain pipes with flow of water to wash
the filth and stop the stench. The Magistrate found the facts c
proved and issued necessary directions. The Sessions Court,
in appeal, reversed the order. The High Court, in revision,
restored the judgment of the Magistrate and the matter was
carried to the Supreme Court.
D
25. This Court summarized the principle thus:
"The key question we have to answer is whether by
~
affirmative action a court can compel a statutory body to
carry out its duty to the community by constructing sanitation
facilities at great cost and on a time-bound basis. At issue E
is the coming of age of that branch of public law bearing
on community actions and the court's power to force public
bodies under public duties to implement specific plans in
response to public grievances."
,,. 26. Holding the provision obligatory, the Court observed: F

."Judicial discretion when facts for its exercise are present,
has a mandatory import. Therefore, when the sub-Divisional
Magistrate, Ratlam, has, before him, information and
evidence, which disclose the existence of a public nuisance
G
and, on the materials placed, he considers that such
unlawful obstruction or nuisance should be removed from
any public place which may be lawfully used by the public,
he shall act.. .. This is a public duty implicit in the public
power to be exercised on behalf of the public and
H

-'-
~

A
438 SUPREME COURT REPORTS

pursuant to a public proceeding.
[2008] 2 S.C.R

~
-
:t

(emphasis supplied)
27. We do not wish to refer to other cases on the point.
We are, however, in agreement with the observations of Earl
B Cairns, L.J. in Julius referred to above wherein His Lordship
stated:
~:
"Where a power is deposited with a public officer for the ,a
purpose of being used for the benefit of persons who are·
specifically pointed out, and with regard to whom a
c definition is supplied by the Legislature of the conditions
upon which they are entitled to call for' its exercise, that
power ought to be exercised, and the Court will
require it to be exercised." (See Mis. Dhampur Sugar
Mills Ltd. v. State of U.P. 2007(10) SCR 245)
D
28. The use of the words 'shall' in a statute, though generally
taken in a mandatory sense, does not necessarily mean that in
every case it shall have that effect, that is to say, that unless the )>-
r
words of the statute are punctiliously followed, the proceeding
or the outcome of the proceeding would be invalid. On the other
E hand, it is not always correct to say that when the word 'may'
has been used, the statute is only permissible or directory in
the sense that non-compliance with those provisions will not
render the proceeding invalid. ·

F 29. Words are the skin of the language. The languag~ is
~
the medium of expressing the intention and the object that .
particular provision or the Act seeks to achieve. Therefore, it is
necessary to ascertain the intention. The word 'shall' is not
always decisive. Regard must be had to the context, subject
matter. and object of the statutory provision in question. in
G
determinihg whether the same is mandatory or directory. No
universal principle of law could be laid in that behalf as to whether .....
a particular provision or enactment shall be C·"'nsidered
mandatory or directory. It is the duty of the court to try to get at
the real intention of the legislature by carefully analysing the whole
H
~
SMT. BACHAHAN DEVI &ANR. v. NAGAR NIGAM, 439
GORAKHPUR & ANR. [PASAYAT, J.]

scope of the statute or section or a phrase under consideration. A
The word 'shall', though prima facie gives impression of being
of mandatory character, it requires to be considered in the light
of the intention of the legislature by carefully attending to the
scope of the statute, its nature and design and the
consequences that would flow from the construction thereof one B
way or the other. In that behalf, the court is required to keep in
. ;.' view the impact on the profession, necessity of its compliance;
whether the statute, if it is avoided, provides for any contingency
for non-compliance; if the word 'shall' is construed as having
mandatory character, the mischief that would ensure by such c
construction; whether the public convenience would be
subserved or public inconvenience or the general inconvenience
that may ensue if it is held mandatory and all other relevant
circumstances are required to be taken into consideration in
construing whether the provision would be mandatory or
D
directory.
t
\ 30. The question, whether a particular provision of a statute,
~ which, on the face of it, appears mandatory inasmuch as it used
the word 'shall', or is merely directory, cannot be resolved by
laying down any general rule, but depends upon the facts of E
each case particularly on a consideration of the purpose and
object of the enactment in making the provision. To ascertain
the intention, the court has to examine carefully the object of the
statute, consequence that may follow from insisting on a strict
observance of the particular provision and, above all, the general F
+ scheme of the other provisions of which it forms a part. The
purpose for which the provision has been made, the object to
be attained, the intention of the legislature in. making the
provision, the serious inconvenience or injustice which may
result in treating the provision one way or the other, the relation
G'
of the provision to other consideration which may arise on the
..... facts of any particular case, have all to be taken into account in
arriving at the conclusion whether the provision is mandatory or
directory. Two main considerations for regarding a rule as
directory are: (i) absence of any provision for the contingency
H
~
440 SUPREME COURT REPORTS [2008] 2 S.C.R.

~
A of any particular rule not being complied with or followed, and
(ii) serious general inconvenience and prejudice to the general
public would result if the act in question is declared invalid for
non-compliance with the particular rule.
31. It is well-settled that the use of word 'may' in a statutory
B provision would not by itself show that the provision is directory
in nature. In some cases, the legislature may use the word 'may'
as a matter of pure conventional courtesy and yet intend a ,A ""
mandatory force. In order, therefore, to interpret the legal import 1.-

of the word 'may', the court has to consider various factors,
c namely, .the object and the scheme of the Act, the context and
;,

the background against which the words have been used, the
purpose and the advantages sought to be achieved by the use
of this word, and the like. It is equally well-settled that where the
word 'may' involves a discretion coupled with an obligation or
l,,
D where it confers a positive benefit to a general class of subjects
in a utility Act, or where the court advances a remedy and ~
suppresses the mischief, or where giving the words directory ;p:
)oo.
significance would defeat the very object of the Act, the word
'may' should be interpreted to convey a mandatory force. As a
E general rule, the word 'may' is permissive and operative to
'-·
confer discretion and especially so, where it is used in r
juxtaposition to the word 'shall', which ordinarily is imperative
as it imposes a duty. Cases however, are· not wanting where
t~e words 'may' 'shall', and 'must' are used interchangeably. In

F order to find out whether these words are being used in a .... \-
directory or in a mandatory sense, the intent of the legislature '
•)

should be looked into along with the pertinent circumstances. (
The distinction of mandatory compliance or directory effect of
the language depends upon the language couched in the statute
under consideration and its object, purpose and effect. The
G
distinction reflected in the use of the word 'shall' or 'may'
depends on conferment of power. Depending upon the context,
'may' does not always mean may. 'May' is a must for enabling ""'
compliance of provision but there are cases in which, for various
reasons, as soon as a person who is within the statute is
H l
~
\

~
SMT. BACHAHAN DEVI & ANR. v. NAGAR NIGAM, 441
GORAKHPU_R & ANR. [PASAYAT, J.]
.,..
entrusted with the power, it becomes his duty to exercise that A
power. Where the language of statute creates a duty, the special
remedy is prescribed for non-performance of the duty.
32. If it appears to be the settled intention of the legislature
to convey the sense of compulsion, as where an obligation is
created, the use of the word 'may' will not prevent the court from B
+.-· giving it the effect of Compulsion or obligation. Where the statute
J. was passed purely in public interest and that rights of private
citizens have been considerably modified and curtailed in the
interest_s of the general development of an area or in the
interests or removal of slums and unsanitary areas. Though the c
power is conferred upon the statutory body by the use .of the
word 'may' that power must be construed as a statutory duty.
Conversely, the use of the term 'shall' may indicate the use in
· optional or permissive sense. Although in general sense 'may'
is enabling or discretional and 'shall' is obligatory, the D
connotation is not inelastic and inviolate." Where to interpret
the word 'may' as directory would render the very object of the
Act as nugatory, the word 'may' must mean 'shall' ..
33. The ultimate rule in construing auxiliary verbs like 'may'
and 'shall' is to discover the legislative intent; and the use of E
words 'may' and 'shall' is. not decisive of its discretion or
mandates. The use of the words 'may' and 'shall' may help the
courts in ascertaining the legislative intent without giving to either
a controlling or a determinating effect. The courts have further
to consider the subject matter, the purpose of the provisions, F
the object intended to be secured by the statute which is of prime
importance, as also the actual words employed.
34. Obviously where the legislature uses two words may
and shall in two different parts of the same provision prima
G
facie it would appear that the legislature manifested its intent
...- on to make one part directory and another mandatory. But
that by itself is not decisive. The power of court to find out
whether the provision is directory or mandatory remains
unimpaired.
H
442 SUPREME COURT REPORTS [2008] 2 S.C.R.

A 35. One additional factor, which may not have an effect on
the appeal is to be noted. The First Appellate Court after
judgment of the High Court dated 4.2.2005 disposed of the
appeal and remitted the matter to the trial Court. The stay order
of this Court was passed on 7.2.2005.
8 36. It is to be noted that the High Court in the impugned
judgment has noted that if the Appellate Court is of the opinion
that if the evidence is insufficient to decide the issue, only then
the matter may be remitted to the trial Court.

c 37. Above being the position, the appeal by the
respondents before the Allahabad High Court has been rightly
allowed. In any event, the order does not suffer from any infirmity
to warrant interference. The appeal is dismissed.
R.P. Appeal dismissed.
D