B.L.Yadav - (1.) WHETHER opportunity of hearing must be afforded to the parties concerned in a Reference under Section 48 (3) of U. P. Consolidation of Holdings Act, 1953, (for short the Act), is the short point for determination in this petition filed by the petitioners under Article 226 of the Constitution of India.
(2.) THE facts are almost admitted. By the impugned order dated 5-5-92, the Deputy Director of Consolidation has accepted the Reference under Section 48 (3) (Forty Eight-sub clause three) of the Act in pursuance of the order of Consolidation Officer dated 26-9-91, which was passed in respect of some area of plot no. 12/L area. 021 having been kept est of consolidation operations. THE application initiating Reference under Section 48 (3) of the Act appears to have been made by Ghamndi, father of respondent no. 4 and the Reference has been accepted. THE Consolidation Officer made reference to the Settlement Officer (Consolidation), who in his turn, referred the matter to the Deputy Director of Consolidation, who thereafter passed the impugned order. Sri R. N. OJha, learned counsel for the petitioner urged that Opportunity for hearing was mandatory to the petitioners In view of the provisions of Section 48 (3) of the Act:. Under common law also as making the impugned order would affect rights of the parties, hence in view of the principles of 'AUDI ALTERAM PARTEM" the hearing was a must Learned counsel for the respondents, on the other hand, urged that by a perusal of the impugned order it appears that hearing was afforded to the petitioner and there was no violation of the principles of natural justice. The provisions about hearing under Section 48 (3) was directory.
(3.) HAVING heard learned counsel for the parties, there are two points which fall for determination. First is as to whether provisions of Section 48 (3) of the Act was mandatory or directory, and the next is whether the principles of natural justice have been violated Ex abundanti cautela, the provisions of Section 48 (3) of the Act are set out below: "48 (3). Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for fiction under sub section (1) Even though the word 'may' has been used in connection with any subordinate authority to make reference, but it does not mean that the authority may afford opportunity of hearing or may not. Normally in ordinary usage the expression 'may' is permissive and 'shall' or 'must' are Imperative. In other words, normally the expression 'may' used in a statute is not to be held to be mandatory. Bat according to reference to the context the expression 'may' means mandatory and equivalent to 'shall'. Where the expression may' has been used in connection with disposal of eases pertaining to rights of the parities, it is just out of sheer respect to the Court or authority that it has been used. But it has to be read as equivalent to 'must' so that jurisdiction could be exercised in the manner suggested by the Legislature. Shaw v. Rackett, (1893) 1 QB 779.;