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2018 DIGILAW 492 (KER)

THADEVOOS @ ABU THALIB v. STATE OF KERALA

2018-06-26

A.M.BABU, C.T.RAVIKUMAR

body2018
JUDGMENT : C.T. RAVIKUMAR, J. 1. This writ petition carries the grievance regarding non-implementation of the provisions of the Muslim Personal Law (Shariat) Application Act 1937 (for short 'the Act'). The precise contention of the petitioner is that in terms of Section 4 of the Act the Government is under an obligation, rather a duty, to make rules prescribing the Authority before whom and the form in which the declaration under the Act shall be made. It is only proper and profitable to extract Section 4 of the Act and it reads thus:- 4. Rule-making power - (1) The State Government may make rules to carry into effect the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:- (a) for prescribing the authority before whom and the form in which declarations under this Act shall be made; (b) for prescribing the fees to be paid for the filing of declarations and for the attendance at private residences of any person in the discharge of his duties under this Act; and for prescribing the times at which such fees shall be payable and the manner in which they shall be levied. (3) Rules made under the provisions of this section shall be published, in the Official Gazette and shall thereupon have effect as if enacted in this Act. (4) Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature. Essentially the grievance is that despite such a provision in the Act enabling rules have not been made so far. 2. In the context of the grievance and the reliefs sought for the question is whether the word 'may' used in Section 4 should be construed to mean 'must' or 'shall'. As observed in Craies on Statute Law, the 7th edition page 229, the expression 'may', 'shall' have been subject-matter of constant and conflicting interpretation. 'May' is a permissive or enabling expression, but in cases where a person who is within the statute is entrusted with the power, then it becomes a duty to exercise it. When statutorily a duty or an obligation is entrusted, in such circumstances, the word despite being discretionary as to assume the character of mandatory. 'May' is a permissive or enabling expression, but in cases where a person who is within the statute is entrusted with the power, then it becomes a duty to exercise it. When statutorily a duty or an obligation is entrusted, in such circumstances, the word despite being discretionary as to assume the character of mandatory. In other words, in such circumstances, it must be construed to mean 'shall'. In this context it is not inappropriate to refer to the decision in Shri.Rangaswami, The Textile Commissioner and Ors v. The Sagar Textile Mills (P) Ltd & anr reported in AIR 1977 SC 1516 . The Hon'ble Apex Court held that the word 'may' is capable of construing as 'must' or 'shall' in the light of the context and where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. In Ambica Quarry v. State of Gujarat reported in AIR 1987 SC 1073 the Apex Court considered the question under what circumstances 'may' should be construed to mean 'shall'. 3. In the light of the decisions referred (supra) and in the light of the provision under Section 4, we have no hesitation to hold that though the word employed in Section 4 (1) is 'may', it should be construed to mean 'shall'. The upshot of the discuss is that in such circumstances, the Government though vest with the discretion, are having a duty/obligation to frame rules prescribing the authority before whom and the form in which declaration under the Act shall be made. When that be the position, the failure to make rules is really a matter of concern. When this matter is taken up for consideration, the learned Government Pleader on instructions submitted that appropriate rules would be framed within a period of three months. It is recorded. In the light of the said submission and the view which we have already taken, this writ petition is disposed of recording the submissions that the Government would make appropriate rules in exercise of the power under Section 4 of the Act and for taking the needful in that regard, within the above stipulated period. 4. The writ petition is disposed of as above.