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Mandatory or Directory Provisions in Law

As a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void.

 

Mandatory or directory provisions in Law

By

S J Tubrazy

 

No doubt there exists no faultless acid test or a universal rule for determining whether a provision of law is mandatory or directory and such determination by and large depends upon the intention of Legislature and the language in which the provision is couched but it is by now firmly settled that where the consequence of failure to comply with the provision is not mentioned the provision is directory and where the consequence is expressly mentioned the provision is mandatory.

As a general rule a statute is understood to be directory when it contains matters merely of direction but it is mandatory when those directions are followed by an express provision that in default of following them the facts shall be null and void.

When a statute is passed for the purpose of enabling something to be done, it may be either a mandatory enactment, or a directory one, the difference being that a mandatory enactment must be obeyed or fulfilled exactly, but is sufficient, if a directory enactment be obeyed or fulfilled substantially. If a mandatory enactment is not strictly complied with, the thing done shall be invalid. On the other hand, if an enactment is merely directory, it is immaterial, so far as relates to the validity of the thing done, whether the provisions of that enactment are strictly complied with or not. (Craies on Statute Law, Fifth Edition, pages 240-241). There is no general rule as to when an enactment is to be considered mandatory and when merely directory and it is the duty of the Court to ascertain the real intention of the Legislature having regard to the whole scope and purposes of the enactment to be construed.

  (The writer is corporate and banking lawyer in Pakistan)

 

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