TaxTMI 
TaxTMI 
TaxTMI 
Recent judgments under study:
W.A. No. 2549 of 2002,W.A. No. 2564 of 2002,W.A. No. 2565 of 2002,W.A. No. 2567 of 2002,W.A. No. 2569 of 2002,W.A. No. 2576 of 2002,W.A. No. 2611 of 2002,W.A. No. 2783 of 2002,W.A. No. 2791 of 2002,O. P. No. 21041 of 1999,W.P. (C) No. 32191 of 2004
Dated: - 27 September 2011
And other judgments referred to in above judgments.
Provisions considered in above judgments relevant to this study:
The Major Port Trust Act, 1963
Scope of this article is about words ‘may’ and ‘shall’ as recently interpreted by the Supreme court in the above case..
The word ‘may’ and ‘shall” have been contentious issues in various enactment and legal documents. In some circumstances word ‘may’ has been treated as mandatory like ‘shall’, whereas in some circumstances even word “shall” has not been used as mandatory and read as discretionary like use of word ‘may’.
Therefore, interpretation shall depend on context, other provisions, and purpose of provision and facts of the case.
This really gives lot of scope of discretion to courts (judges) also and make the law uncertain due to preferences, attitude, nature and many times even bias of judges. This is because judges are also human being and god made attributes prevail in their minds also while hearing, considering and deciding cases.
From reported judgments We find different verdicts about these two words like views that:
‘may’- not purely discretionary or purely discretionary
‘may’ used in mandatory sense,
‘may’ used I permissive sense,
‘shall’ used in mandatory sense
‘shall’ used in directory sense…. etc.
Readers can refer to commentary / compilation books of law in interpretation section to find out case laws. For example on pages 150 to 153 in the book Sampath Iyengar’s law of Income Tax Volume 1 (11th edition).
In the recent judgment (supra.)
May versus Shall – on consideration of relevant provisions namely sections 60 and 62 of the Major Port Trust Act the Supreme Court observed and held on these lines:
- it may not be correct to say that “may” has to be read as “shall”, as held by the High Court.
( Per author: That means word ‘may’ can be read as ‘shall’ or cannot be read as shall). - Though, while overruling the impugned judgment of the Kerala High Court [2011 (9) TMI 991 - KERALA HIGH COURT] on the aspect of “may” being read as “shall” in sections 61 and 62 of the MPT Act, yet considering the hovering omnipresence of Article 14 must always be given effect to, and there must be a very good reason to continue detention of goods beyond the period of four months as mentioned hereinabove before they are sold.
- in all future cases the Board is under a constitutional duty to sell the goods in its custody within a reasonable time from which it takes custody of those goods.
- Ordinarily, the time of four months from the date of landing of the goods mentioned in section 63(1)(c) of the MPT Act should be the outer-limit within which such goods should be put up for sale. If not put up for sale within such time, the Board must explain as to why, in its opinion, this could not be done, which explanation can then be tested by the Courts. If the explanation is found to be reasonable, and the owner or person entitled to the goods does not remove the goods thereafter, penal demurrage may then be levied and collected by the Board.
Paragraph 84 of the judgment is reproduced below with highlights added by author:
“ Accordingly, we dispose of the appeals that have been filed against the impugned High Court judgment. The impugned judgment is set aside on one question of law, namely, that the expression “may” in sections 61 and 62 of the MPT Act cannot be read as “shall”, subject to the caveat that as the “State” under Article 12 of the Constitution, a Port Trust must act reasonably, and attempt to sell the goods within a reasonable period from the date on which it has assumed custody of them.
Therefore, we find that the word may can be used as shall. However, considering other relevant provisions, the Supreme Court has laid down some relaxation, according to which delay in selling of goods in specified circumstances has to be explained and that attempt should be to sell goods within a reasonable period of time