1. The appellants are members of an unregistered association known as the Kolhapur Grain Merchants Association and had filed the suit out of which this Second Appeal arises in a representative capacity under rule 8 of Order 1 of the Code of Civil Procedure, 1908. The said suit was tried by the Joint Civil Judge, Senior Division, Kolhapur. In the suit the appellants challenged certain notifications issued under the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (Maharashtra Act No. XX of 1964). The appellants' challenge succeeded, and the trial Court declared the said notifications to be null and void, and restrained the respondents from enforcing the said notifications. The trial Court also directed the parties to bear their own costs of the suit. Though the appellants' challenge on certain grounds succeeded, their challenge on the ground that these notifications infringed the provisions of Articles 14 and 19(1)(g) of the Constitution of India was negatived. Against the said judgment and decree of the trial Court, not only Respondents Nos. 1 and 2, namely, the State and the Director of Agriculture, Forest and Rural Finance, Government of Maharashtra, filed an appeal but Respondents Nos. 3 to 5, namely, the Kolhapur Agricultural Produce Market Committee and the President and the Secretary of the said Committee, also filed an appeal. The appellants also appealed against that part of the judgment which negatived their constitutional challenge to the validity of the said notifications. All these appeals were heard together by the Court of the Assistant Judge at Kolhapur, and by a common judgment the lower appellate Court allowed the appeals filed by the respondents and dismissed the appellants' appeal. The lower appellate Court directed the appellants to pay the costs of the suit and the appeals. It is against this appellate decree that the appellants have preferred this Second Appeal.

2. It will be now convenient to set out in some detail the facts which have given rise to this litigation. By a notification dated March 1, 1949 issued under the Bombay Agricultural Produce Markets Act, 1939 (Bom. XXII of 1939), an Agricultural Produce Market Committee was established to regulate the marketing of groundnut (shelled and unshelled) and gur in the area of Karvir, Radhanagari and Bhudargad Talukas and Panhala Mahal of the Kolhapur District. By another notification dated March 8, 1959 issued under the said Bombay Agricultural Produce Markets Act the market area of the said Committee was extended so as to include Shanuwadi Taluka of Kolhapur District, and its operation was also extended to regulate the marketing of groundnut (shelled and unshelled) and gur in the said extended area. By another notification dated October 6, 1963, also issued under the said 1939 Act, the market area of the said Committee was further extended so as to include the area of 43 villages mentioned in the said notification situate on the north of Vedganga river from Kagal Taluka, and its operation was equally extended to regulate the marketing of groundnut (shelled and unshelled) and gur in the extended area. Thereafter the Director of Agricultural Marketing and Rural Finance, Maharashtra State, intended to extend the market area of the said Committee so as to include in it the area of Gagan-Bawada Mahal of the Kolhapur District as also to extend its operations to regulate the marketing of paddy (husked and unhusked), jowar, bajari, wheat, tobacco, cotton (ginned and unginned), chillies, turmeric, gram, gram-dal, tur, tur-dal, udid, udid-dal, masur, masur-dal, mug, mug-dal, onion, peas, val, chola, kulthi, cattle, sheep and goats in addition to groundnut (shelled and unshelled) and gur in the whole of the market area as extended by the said Committee. There does not appear to be any particular dispute that while groundnut and gur grow in Kolhapur District, the other grain seeds which were intended to be got regulated by the said Committee are brought into Kolhapur from other places. A notification, namely, Notification No. APMC/Kolhapur/67, dated February 3, 1968 was published in the Maharashtra Government Gazette, Part 1, Poona, dated March 14, 1968. The said notification was issued under section 3 of the Maharashtra Agricultural Produce Marketing (Regulation) Act, 1963 (hereinafter referred to as “the said Act”), which had repealed and replaced the said 1939 Act. By the said notification, objections and suggestions were invited by the Director of Agricultural Marketing and Rural Finance, Maharashtra State, Poona, within a period of one month from the date of the said notification. Accordingly, the said Kolhapur Grain Merchants Association submitted its representation dated April 11, 1968 By the telegram dated April 25, 1968 representatives of the said Association were asked to meet the said Director on April 30, 1968. The said meeting took place, and the representatives of the said Association put forward their point of view before the said Director, apparently without any success, because a notification, namely, Notification No. APMC/Kolhapur/68, dated May 16, 1968, issued by the said Director under section 4 of the said Act was published in the Maharashtra Government Gazette, Part I, Poona Division, dated June 13, 1968. It is these two notifications which were challenged by the appellants in their suit.

3. In order to understand the contentions of the appellants with respect to the said notifications advanced before me at the hearing of this Second Appeal, it is necessary now to refer to certain provisions of the said Act. Sections 3 and 4 of the said Act provide as follows:

“3. Notification of intention of regulating marketing of agricultural produce in specified area.

(1) The State Government may, by notification in the Official Gazette, declare its intention of regulating the marketing of such agricultural produce, in such area as may be specified in the notification. The notification may also be published in the language of the area in any newspaper circulating therein, and shall also be published in such other manner as in the opinion of the State Government is best calculated to bring to the notice of persons in the area, the intention aforesaid.

(2) The notification shall state that any objections or suggestions which may be received by the State Government within a period of not less than one month to be specified in the notification will be considered by the State Government.

4. Declaration of regulation of marketing of specified agricultural produce in market area.

(1) On the expiry of the period specified in the notification issued under section 3, the State Government shall consider the objections and suggestions, if any, received before the expiry of such period and may, if it considers necessary, hold an inquiry in the manner prescribed.

Thereafter, the State Government may, by another notification in the Official Gazette, declare that the marketing of the agricultural produce specified in the notification shall be regulated under this. Act, in the area, specified in the notification. The area so specified shall be the market area. A notification under this section may also be published in the language of the area in a newspaper circulating therein, and shall also be published in such other manner as in the opinion of the State Government is best calculated to bring to the notice of persons in the area the declaration aforesaid.

(2) On any declaration being made under sub-section (1) no local authority shall thereafter, notwithstanding anything contained in any law for the time being in force, establish, authorise or continue any place in the market area for the marketing of that agricultural produce.

(3) Subject to the provisions of section 3, the State Government may, at any time by notification in the Official Gazette, exclude from a market area any area, or include therein an additional area, or may direct that the regulation of the marketing of any agricultural produce in any market area shall cease, or that the marketing of any agricultural produce (hitherto not regulated) shall be regulated in the market area”.

Section 58 confers upon the State Government the power to delegate inter alia to the Director of Agricultural Marketing all or any of the powers conferred upon it by the said Act. It was in pursuance of such delegated authority that the said Director issued the said two notifications. Section 60 confers upon the State Government the power to make rules for carrying into effect the purposes of the said Act, including prescribing the manner of holding an inquiry. In pursuance of this rule-making power the State Government has enacted the Maharashtra Agricultural Produce Marketing (Regulation) Rules, 1967 (hereinafter referred to as “the said Rules”). rule 3 of the said Rules is important and requires to be reproduced in extenso. It is as follows:

“3. Additional mode of publication of notifications under sections 3 and 4. — A notification under section 3 declaring the intentions of the State Government of regulating the marketing of any agricultural produce in any area specified in such notification and the notification under section 4 regulating the marketing of agricultural produce in any area shall, in addition to their publication in any newspaper circulating in any such area as required by that section, also be published by affixing copies thereof at the chavdi of each village included in such area and by exhibiting them on the notice board in the office of the Mamlatdar, Tahsildar, Mahalkari or Naib-Tahsildar and of the Panchayat Samiti within whose jurisdiction such area is situated. The State Government shall also require a revenue officer specified in this behalf to give wide publicity to the notification by beat of drums in any such area”.

Rule 4 of the said Rules prescribes the procedure for holding inquiry for considering objections and suggestions. Under that rule the Inquiry Officer is by notice to require the persons making the objections and suggestions to appear before him not earlier than fifteen days from the date of the notice. From the dates set out above, it will be apparent that a much shorter time than the prescribed period of fifteen days was given to the said Association. Since, however, no point has been made with respect thereto before me, I do not propose to express any opinion about it.

4. Before me Mr. Setalvad, learned counsel for the appellants', has confined himself to raising two points:

(1) The said Act, having been enacted to regulate the marketing of agricultural produce, can only permit the regulation of the first marketing of the product in question. Once the product is marketed, it enters the stream of commerce and becomes a commercial commodity like any other commercial commodity. The application of the provisions of the said Act to such products is not permissible under the said Act and that in any event is not a reasonable restriction on the fundamental rights of the appellants to carry on trade and business guaranteed to them by Article 19(1)(g) of the Constitution.

(2) The provisions of rule 3 of the said Rules relating to the additional modes of publication are mandatory, and they not having been complied with, the said notifications are invalid and inoperative.

5. So far as the first point is concerned, Mr. Setalvad frankly stated that in view of the judgment of the Supreme Court in Ram Chandra Kailash Kumar & Co. v. State of Uttar Pradesh . 1980 Supp SCC 27, it was not open to him to urge this point before me. So far as the second point is concerned, Mr. Setalvad confined his challenge only to the said notification dated February 3, 1968 it being an accepted position that the notification under section 3 of the said Act is a condition precedent to the issuance of a notification under section 4 of the said Act, and that if a notification under section 3 of the said Act has not been validly or duly published, it would not be operative and would not entitle the State Government to issue a notification under section 4. The said notification dated February 3, 1968 is expressly stated to be issued under section 3 of the said Act. Surprisingly enough, though the said notification dated May 16, 1968 is also expressly stated to have been issued under section 3 of the said Act, its entire tenor shows that it was actually issued under section 4 of the said Act. However, before the trial Court the position was conceded by the appellants that the said notification dated May 16, 1968 should be treated as having been issued under the said section 4. Turning now to section 3, it prescribes three modes of publication:

(1) Publication in the Official Gazette.

(2) Publication in the language of the concerned area in any newspaper circulating in such area.

(3) Publication in such other manner as in the opinion of the State Government is best calculated to bring to the notice of persons in the concerned area the fact that certain agricultural produce specified in the notification are intended to be regulated under the said Act in the said area.

There is no dispute, as indeed there cannot be any, that the said notification under section 3 was published in the Official Gazette. The word ‘may’ is used in the opening words of section 3 not with respect to the publication of a notification under section 3 in the Official Gazette but with respect to the declaration of Government's intention, because the Government may or may not want to regulate the marketing of certain agricultural produce. So far as the second mode, namely, publication in the language of the concerned area in a newspaper circulating in such area, is concerned, the fact established on the evidence is that the said notification under section 3 was not at any time published in any vernacular newspaper circulating in the concerned areas, but what had happened was that the gist of the said notifications was published in the 9th March, 1968 issue of a Marathi newspaper ‘Satyavadi’. Since, however, the word ‘may’ is used in section 3 with reference to this particular mode of publication, prima facie it would be that this requirement is directory. In Yadaorao v. Agricultural Produce Market Committee, Arvi . 1974 Mh. LJ 338., a Division Bench of this High Court has held that the publication of a notification under section 3 of the said Act in the newspaper is not obligatory and the failure of the State Government or of the Director to publish the notification in the newspaper does not vitiate the notification in any way. This judgment is binding upon me, and, therefore, the fact that only the gist of the said notification was published in a local vernacular newspaper cannot in any manner affect its validity. So far as the third mode of publication is concerned, the publication is to be in such manner as in the opinion of the State Government is best calculated to bring to the notice of the persons in the concerned area its intention to regulate the marketing of certain agricultural produce. This part of the section confers power upon the Government to select particular modes in order to meet different situations and local conditions. The State Government has, however, instead of leaving it to the discretion of its executive officers to select such mode as appears to them to be the best in the circumstances of a particular case in which such publication is to be made, itself prescribed the mode. The prescription of this mode is to be found in rule 3 of the said Rules which has been set out earlier. Under rule 3 in addition to publication in the newspaper required by section 3 the notification is also to be published (1) by affixing copies thereof at the chavdi of each village included in the concerned area, (2) by exhibiting copies of the notification on the notice-board in the office of the Mamlatdar, Tahsildar, Mahalkari or Naib-Tahsildar and of the Panchayat Samiti within whose jurisdiction such area is situated, and (3) by requiring a revenue officer specified in that behalf to give wide publicity to the notification by beat of drums in the concerned area. It is the contention of the appellants that the modes of publication prescribed by the said rule 3 are mandatory and that in the present case the requirements of rule 3 have not been complied with. Mr. Naik, learned counsel for respondents Nos. 1 and 2, submitted that just as in the case of publication in the newspapers, publication in the manner required by the said rule 3 was directory and not mandatory, and if one of the three modes prescribed by the said rule 3 had not been complied with or not complied with fully, it did not in any manner affect the validity of the notification. Mr. Abhyankar, learned counsel for respondents Nos. 3 to 5, conceded that the requirements of the modes of publication as found in the said rule 3 are mandatory and not directory, but in his submission Illustration (e) to section 114 of the Indian Evidence Act, 1872, applied to the case and the Court must, therefore, presume that the publication of the notification being an official act, such act had been regularly performed.

6. Before examining the legal aspects of these contentions it will be convenient to set out the facts which have been established on the record. Neither the Appellants nor the Respondents led any oral evidence, but both sides produced certain documents which were exhibited. Three out of these documents are relevant for the present purpose. They are:

(1) The copy of the said notification dated February 3, 1968 sent by the Director of Agricultural Marketing and Rural Finance, Maharashtra State, to the Chairman of the Agricultural Produce Market Committee, Kolhapur (Exhibit 133):

(2) a letter in Marathi bearing No. 670 dated March 21, 1968 from the Secretary of the Agricultural Produce Market Committee, Kolhapur, to the Mamlatdar, Taluka Karveer in the District of Kolhapur (Exhibit 95):

(3) a letter in Marathi dated March 26, 1968 from the Tahsildar, Bhudargad, to the Secretary of the Agricultural Produce Market Committee (Exhibit 96).

Apart from the above three documents, there is no other evidence whatever with respect to the publication of the said notification under section 3 in any of the modes prescribed by the said rule 3. The said copy of the notification shows that copies thereof were forwarded to the Manager, Yeraoda Prison Press, Poona, for the purpose of publishing the said notification in the Maharashtra Government Gazette. They were also sent to the Chairman of the Agricultural Produce Market Committee, Kolhapur, the Divisional Joint Registrar, Co-operative Societies, Poona, the Regional Publicity Officer, Kolhapur, the Collector of Kolhapur, the Chief Executive Officer, Zilla Parishad, Kolhapur, the President Municipal Council, Kolhapur, as also to the District Deputy Registrar, Co-operative Societies, Kolhapur, the District Agricultural Officer, Kolhapur, and the Co-operation and Industries Officer, Zilla Parishad, Kolhapur. At the end of this list of officials to whom the copies were to be sent appears an endorsement containing the request to give wide publicity to the said notification as required by rules 3 and 4 of the said Rules “by pasting the notification on the market yard as well as in the Village Panchayat Office etc”.. I will take it that though the said endorsement in terms specifically requires that copy of the said notification is to be pasted on the market yard and in the Village Panchayat Office, the abbreviation ‘etc.’ refers to the other modes of publication provided for in the said rule 3. What happened thereafter is shown only by the two letters referred to above. In the said letter dated March 21, 1968 the Secretary of the Agricultural Produce Market Committee, Kolhapur, intimated to the Mamlatdar of Taluka Karveer about the publication of the said notification in the Gazette. He further stated that objections and suggestions had been called for by the said notification, and asked the Mamlatdar to affix the copy of the said notification annexed to his said letter on the notice-board of his office and publish it. In the margin of the said letter is written in ink in Marathi “and give wide publicity by beat of drums”. These words do not appear in the body of the said letter, and the trial Court held that they were subsequently interpolated. The lower Appellate Court, however, did not accept this finding, but held that they were contained in the original letter when dispatched. I shall, therefore, proceed upon the basis of this finding of the lower Appellate Court. This letter, however, does not show that a similar request was made by the Secretary of the Agricultural Produce Market Committee, Kolhapur, to any Mamlatdar other than the Mamlatdar of Taluka Karveer, nor does it show that any such similar request was made to any Tahsildar, Mahalkari or Naib-Tahsildar or to any official of any Panchayat Samiti. The letter dated March 26, 1968 from the Tahsildar of Bhudargad is, however, a reply to the said letter dated March 21, 1968. It may show that a similar letter had been addressed by the Secretary of the said Committee to the other Mamlatdars and Tahsildars. What is significant about the said letter dated March 21, 1968 are its contents. The said reply states that the notification sent to the said Tahsildar had been published by affixing it on the notice-board. There is no mention whatever about the said notification having been published anywhere by beat of drums. From this it would follow that though in the letter to the Mamlatdar of Taluka Karveer the direction to give publicity to the said notification by beat of drums was mentioned in the margin thereof, no such direction was contained in the letter to the Tahsildar of Bhudargad, and in the absence of any other evidence to show that any such request was made to any other official, it is not possible to assume that such a request had been contained in all the letters written by the Secretary of the said Committee in this behalf. On the contrary, the said reply of the Tahsiidar of Bhudargad is a clear indication to the contrary. What is strange is that nowhere on the record is there any compliance report showing that the publication in the modes required by the said rule 3 had been effected.

7. Mr. Abhyankar, learned counsel for respondents Nos. 3 to 5, however, submitted that even though there may be no evidence with respect to such publication, the Court should proceed to apply the presumption laid down in Illustration (e) to section 114 of the Indian Evidence Act, 1872, and draw a presumption that the said notification had been regularly published as required by the said section 3 and the said rule 3. It is not possible to accept this submission for two reasons; (1) Illustration (e) to section 114 cannot and does not apply where the point at issue is not whether an official act was properly performed, but the point at issue is whether such an act was in fact performed, and (2) where evidence has been led on behalf of the Government or the concerned authority to prove that a particular official act had been regularly performed, and that evidence clearly shows that such performance had not taken place. In either of these cases, there is no place or scope for drawing any presumption under section 114.

8. section 114 of the Indian Evidence Act provides as follows:

“114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case”.

Then follow certain Illustrations as to the cases in which the Court may draw such a presumption, Illustration (e) being that the Court may presume that judicial and official acts have been regularly performed. The first point to notice about section 114 is that it uses the words “may presume” in contradistinction to the words “shall presume”. Under section 4 of the Indian Evidence Act whenever it is provided by that Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it, and whenever, it is directed by that Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. Therefore, it is open to a Court either to draw or not to draw a presumption under section 114. Normally, the Courts would draw such a presumption when the actual performance of the act is not in dispute in order not to waste public time on the leading of formal proof with respect to the regularity of its performance, but the position is entirely different where the very issue which the Court has to decide is as to the performance of that official act itself. In Emperor v. Leslie Gwilt . 1945 47 Bom LR 431, a Division Bench of this Court held that the meaning of illustration (e) to section 114 is that if an official act is proved to have been done, it would be presumed to have been regularly done, but this Illustration does not raise a presumption that an act was done of which there is no evidence and the proof of which is essential to the case. In this context the observations of the Supreme Court in Gopal Krishna Ketkar v. Mohamed Haji Latif . 1969 Mh. LJ 310, are pertinent. The Court observed (at p. 51):

“Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof”.

It is strange that those desiring to prove that the said notification had been properly published should not have cared to produce any evidence other than the said two letters referred to above. Either no other documentary evidence at all existed, or if it existed and was not produced, the Court would be entitled to presume that such evidence if produced would have been unfavourable to the person withholding it. This is a presumption which the Court could have legitimately drawn under section 114 of the Indian Evidence Act read with Illustration (g) thereto.

9. Further, it must be borne in mind that by the very terms of the section a presumption under section 114 is to be drawn in relation to the facts of a particular case. Here the facts which constituted the evidence of the respondents were on record, and the question of drawing any such presumption in relation thereto could not have arisen. I therefore, hold that the lower Appellate Court was in error in drawing a presumption under section 114 and in holding that the said notification had been duly published as required by the relevant statutory provisions.

10. The question which now arises is whether by reason of the noncompliance of the statutory provisions the said notification is rendered invalid. The answer to this question depends upon whether the provisions of the last pare of section 3 of the said Act and of the said Rule 3 are directory or mandatory. With respect to the other modes of publication, which in the opinion of the State Government are best calculated to bring to the notice of the concerned persons in the area the intention to regulate the marketing of any agricultural produce, the word used in section 3(1) is ‘shall’. Prima facie, the word ‘shall’ makes a particular requirement mandatory and not directory. There are authorities which have laid down with reference to other statutory provisions and on the interpretation thereof the word ‘shall’ should be construed as ‘may’ and vice versa. It was the contention of Mr. Naik on behalf of the State Government and the Director of Agriculture, Forest and Rural Finance, Government of Maharashtra, that the provisions in question are directory and not mandatory. In State of Uttar Pradesh v. Babu Ram Upadhya . AIR 1961 SC 751., the Supreme Court has held that when a statute uses the word ‘shall’, Prima facie it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute and that for ascertaining the real intention of the Legislature the Court may consider inter alia the nature and the design of the statute, and the consequences which would flow from construing it one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.

11. Bearing these observations in mind, let us see the intention underlying the various modes of publication prescribed by the said section 3(1) and the said rule 3. The provision with respect to the publication of a notification under section 3 in; a newspaper published in the local language and of its publication in such other manner as in the opinion of the State Government is best calculated to bring the intention to regulate the marketing of an agricultural produce to the notice of the concerned person in the area is contained in one single section. While the word used with respect to the requirement of publication in a local newspaper is ‘may’, with respect to the other mode of publication it is ‘shall’. This notification is issued so as to enable those who may be affected by the declaration of intention were it implemented to submit their objections thereto for the consideration of the prescribed authority. It is also there for those desiring to make suggestions, some of which may be worthwhile, for the prescribed authority to take the suggestions into consideration before issuing a final notification under section 4. The said Act is a regulatory statute. It affects the right to carry on trade and business of several persons. It also affects agriculturists. It is, therefore, necessary that the Government's intention to issue a notification under section 4 of the said Act should be brought to the notice of all persons concerned, not only the wholesale dealers in the particular agricultral produce but also all agriculturists. Generally, agriculturists are not literate, and even if they can read, they usually do not subscribe to newspapers. They however, often have occasion to visit the officers of Mamlatdars, Tahsildars, Mahalkaris, Naib-Tahsildars and Panchayat Samitis, and when they do so, when any notice is put up on the notice-board there either they or someone of them who may be able to read it may come to know about it and inform the others. For people of this class the best mode of publication would be by oral proclamation by beat of drums. Bearing all these factors in mind, though section 3 left it to the discretion of the State Government to publish a notification under section 3 in such manner as in its opinion was best calculated to bring it to the notice of concerned persons, the State Government, instead of leaving such mode of publication to the individual opinion of different officers, thought it fit to prescribe how such publication should be done, and this it did by making rule 3 of the said Rules That rule itself also uses the word ‘shall’. It uses the word ‘shall’ because by the terms of section 3(1) of the said Act with respect to the third mode of publication the word ‘shall’ is used. In this connection, I may usefully advert again to the decision of this High Court in Yadaorao v. Agricultural Produce Market Committee, Arvi In that case the Court observed (at p. 348):

“The object of the provisions regarding the publication in sections 3 and 4 of the Act is that the notifications under sections 3 and 4 must come to the notice of the persons who are going to be affected thereby in the area in which the notifications were to be operative. But it must be noted that in both sections 3 and 4 when publication in any newspaper in the area is contemplated, the Legislature has advisedly used the words ‘may also be published in the language of the area in any newspaper circulated therein’. In the same provisions while the word ‘may’ is used while referring to the publication in a newspaper, the Legislature while providing for additional publication in such other manner as in the opinion of the State Government is best calculated to bring to the notice of the persons in the area, has used the word ‘shall’”.

A little later the Court observed (at p. 349):

“It is well known that normally a large part of the agricultural population, which is illiterate, does not subscribe or read newspapers. The newspapers cater to a negligible section of the community who are only literate and if the purpose of publication is to bring to the notice of the persons affected by the notifications, then that would be best served by adopting the method of publication by which a large section of the village community can be reached. That is why it appears that it has been made obligatory on the State Government to find out for itself the best manner of publication possible and that is also why the provisions of rule 3 have been made requiring the State Government to have the copies of the notification affixed on the notice boards in the offices of the authorities specified under rule 3, which are many a time visited by the agriculturists. Beat of drums is a known method of publication and that has always been found to carry the matters to be published to the villagers positively”.

12. The object underlying this provision would clearly show that what was intended by the Legislature in requiring the State Government to publish a notification in the manner best calculated to bring to the notice of the persons in the area the Government's intention was to make it a mandatory requirement and that it was in order not to leave the compliance of such mandatory requirement to the individual notions of different officers that the State Government made the said rule 3, making the modes of publication specified therein to be mandatory and obligatory. As pointed out earlier, the very same provision with respect to one mode of publication, namely, publication in a newspaper, uses the word ‘may’, while with respect to the additional mode of publication by the State Government it uses the word ‘shall’. In The Labour Commissioner, Madhya Pradesh Burahanapur Tapti Mills Ltd.6, where a provision of the C.P and Berar Industrial Disputes Settlement Act, 1947, which contained in one place the word ‘may’ and in another place the word ‘shall’, fell for consideration of the Supreme Court, the Supreme Court held [at p. 1689(1)]:

“The use of the word ‘shall’ in connection with the action to be taken on a reference by the State Government and ‘may’ in connection with the action on an application by others in the same section compel the conclusion that on an application by anybody other than the State Government, the State Industrial Court or a District Industrial Court may also refuse to take action”. In substance what the Supreme Court held was that when in the same provision the words ‘shall’ and ‘may’ occur, they have different meanings; the word ‘shall’ is to be construed as being mandatory while the word ‘may’ is to be construed as being directory. To hold that these provisions are directory would be fraught with grave danger, for it would leave it open to executive officers by not complying with any one of them to flout and set at naught the will of the Legislature and the mandatory requirements imposed upon them by the State Government, The provisions contain procedural safeguards, and procedural safeguards are as important as substantive safeguards. In this connection, it is worthwhile to bear in mind the following observations of Danckwerts L.J, in the English Court of Appeals in the case of Bradbury v. Enfiled London Borough Council . 1967 1 WLR 1311 at p. 1325 C.A:

“………in cases of this kind, it is imperative that the procedure laid down in the relevant statutes should be properly observed. The provisions of the statutes in this respect are supposed to provide safeguards for Her Majesty's Subjects. Public bodies and Ministers must be compelled to observe the law; and it is essential that bureaucracy should be kept in its place”.

I, therefore, hold that the provisions in question of section 3 and of the said rule 3 are mandatory and not directory and that they not having been complied with, the said notification under section 3 was inoperative and invalid. As the said notification under section 3 is invalid and inoperative, the condition precedent for the issuing of a notification under section 4 was not fulfilled, and, therefore, the said notification dated May 16, 1968 under section 4 was also invalid and inoperative. In The Municipal Corporation of Bhopal v. Mishahul Hasan . 1972 1 SCC 696, where the question was whether an amendment to a rule had been duly made, the Supreme Court held that where a condition precedent for the amendment of the rule had not been followed or complied with, the amendment was inoperative and invalid.

13. Only one point now remains to be dealt with. That is a contention raised by Mr. Abhyankar that the question as to whether the said notifications were duly published or not is barred by res judicata by reason of an unreported decision of a Division Bench of this High Court in Bajomal Parchomal Gaijwani v. The State of Maharashtra . Special Civil Application No. 2363 of 1969 decided by Vaidya and Dudhia, JJ., on July 6, 1973.. In that case the very same notifications were challenged by three firms doing business in onions in Laxmipuri Market at Kolhapur. This being an application under Article 226 of the Constitution, the matter was decided on affidavits. Amongst the various grounds raised to challenge these notifications one ground was that the notification under section 3 and, therefore, the notification under section 4 was also invalid. An affidavit in reply was filed to that petition by the Under Secretary to the Government, Agriculture and Co-operation Department, in which was set out in detail how the said notifications were published. The Court accepted the statements made in the affidavit of the Under Secretary and held that the notifications had been properly published. It is very difficult to understand how this judgment can ever operate as res judicata or what relevance it has to the question which I have to decide. The petitioners there were entirely different from the appellants here. Those petitioners were not even members of the Kolhapur Grain Merchants Association on whose behalf the suit out of which this Second Appeal arises was filed. Secondly, as mentioned earlier, that was a petition under Article 226 of the Constitution which was decided on affidavit. Here, there was a suit which had to be decided on evidence and not by accepting implicitly statements made in the written statement of the respondents. Thirdly, if the said Under Secretary had set out in the said affidavit the different modes in which the notifications were published, one wonders what prevented the State Government and the concerned authorities from leading that evidence before the trial Court. I, therefore, find no substance in this contention raised by Mr. Abhyankar.

14. For the reasons set out above, this Second Appeal must succeed, and I accordingly allow this Second Appeal, set aside the decree of the lower Appellate Court and restore the decree of the trial Court. The respondents will pay to the appellants the costs throughout.

Appeal allowed.