Substantive and Procedural Ultra Vires Compared: Content, Form and the Mandatory or Directory Question

An exercise of delegated power may fail for two quite different reasons. It may fail because of what it does: the rule taxes where the Act permits no tax, ousts the jurisdiction of the courts, operates retrospectively without authority, or contradicts the statute under which it was made. That is substantive ultra vires, and it is fatal without qualification, since no procedure could have authorised what the Act did not permit. Or it may fail because of how it was made: consultation was omitted, previous publication was not carried out, the draft was not laid. That is procedural ultra vires, and whether it is fatal depends on a further question the courts must answer in every case, namely whether the requirement was mandatory or directory. This topic compares the two and examines that further question.

1. The Distinction

Basis	Substantive ultra vires	Procedural ultra vires
What is wrong	The content of the rule or order	The manner in which it was made
The question asked	Could this have been made at all?	Was this made in the way the statute required?
Source of the defect	Excess of the power conferred	Non-compliance with a condition attached to its exercise
Effect	Always fatal; the rule is void	Fatal only if the requirement is mandatory
Can it be cured?	Only by legislation conferring the power	By making the rule afresh following the procedure
Typical examples	Taxing without authority, ouster of courts, retrospectivity, inconsistency with the Act	Absence of consultation, want of previous publication, failure to publish or to lay
Role of prejudice	Irrelevant; the want of power is decisive	Often relevant to whether the defect vitiates
Relation to the parent Act	The rule exceeds what the Act authorises	The Act authorised the rule but prescribed how it was to be made

2. Substantive Ultra Vires: The Rule Exceeds the Act

📖 Kunj Behari Lal Butail v. State of Himachal Pradesh, (2000) 3 SCC 40

Facts: The Himachal Pradesh Ceiling on Land Holdings Act exempted tea estates from the ceiling provisions. A rule framed under the general rule-making power of the Act provided, in substance, that land comprised in a tea estate which was not actually used for tea cultivation would not enjoy the exemption, and so brought within the ceiling land that the Act itself had exempted. The rule was challenged as beyond the rule-making power.

Held: The Supreme Court struck down the rule as ultra vires. It held that a rule-making power conferred in general terms, to make rules for carrying out the purposes of the Act, does not enable the delegate to make a rule which travels beyond the Act or which is inconsistent with any provision of it. The exemption for tea estates was granted by the legislature in the body of the Act, and what the legislature had exempted the rule-making authority could not withdraw or qualify; a delegate cannot, under cover of a general power to make rules, achieve what would amount to an amendment of the statute. The Court held that a general rule-making power is confined to matters of detail necessary to give effect to the Act and does not extend to enlarging or restricting what the Act itself provides.

Ratio: A general power to make rules for carrying out the purposes of an Act does not authorise a rule that travels beyond the Act or is inconsistent with it. A delegate cannot qualify by rule an exemption the legislature has granted.

The recognised heads of substantive ultra vires are these: the parent Act is itself unconstitutional, so nothing made under it survives; the rule exceeds the subject matter or the limits of the power conferred; it is inconsistent with the parent Act or with another statute; it is retrospective without authority; it imposes a tax, fee or penalty the Act does not authorise; it ousts the jurisdiction of the courts; it offends the Constitution, including the fundamental rights; it sub-delegates a power required to be exercised by the delegate himself; and it is manifestly arbitrary or unreasonable.

3. Procedural Ultra Vires and the Mandatory Question

📖 Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, AIR 1965 SC 895

Facts: The Municipal Board proposed to impose a tax. Section 131(3) of the United Provinces Municipalities Act required the Board to publish the proposals and a notice in the manner prescribed by section 94(3), which required publication in a local paper published in Hindi. The Board published the proposals in a paper published in Urdu. The imposition of the tax was challenged on the ground that the mandatory procedure had not been followed.

Held: A Constitution Bench laid down the approach to be taken in every such case. The question whether a provision is mandatory or directory depends upon the intention of the legislature, to be ascertained not merely from the words used but from the scheme of the Act, the purpose of the provision, the nature of the duty imposed, and the consequences that would follow from holding it one way or the other. The Court held that where the provision confers a benefit or a safeguard on those affected, and its breach would deprive them of a real opportunity, the requirement is ordinarily mandatory; where it concerns the mode or manner of doing something whose substance has been achieved, it may be directory. Applying the test, the Court held that the requirement of publication was mandatory, since it is the means by which those liable to the tax learn of the proposal and may object, while the requirement as to the language and the particular paper was directory, provided the publication in fact reached those concerned. A majority held the publication in Urdu sufficient in the circumstances.

Ratio: Whether a procedural requirement is mandatory or directory turns on the legislative intention gathered from the scheme, the purpose, the nature of the duty and the consequences. A requirement securing a real opportunity is mandatory; one concerning the manner of doing what has substantially been done may be directory.

4. Applying the Mandatory or Directory Test

Indicator	Points towards mandatory	Points towards directory
Language	Shall, must, and negative or prohibitory words	May, and permissive or enabling words
Consequence stated	The statute declares the act void or of no effect on non-compliance	No consequence is attached to breach
Purpose of the requirement	To confer a right or a safeguard on the person affected	To regulate the manner of doing an act
Effect of non-compliance	Deprives the person of a real opportunity or causes prejudice	Causes no prejudice; the substance is achieved
Nature of the duty	Conditions precedent to the exercise of the power	Steps incidental to a power already validly exercised
Public inconvenience	Little; invalidity affects only the instrument	Great; invalidity would unsettle many completed transactions
Who benefits	Individuals or a class whose interests the requirement protects	The administration, for orderly working

Two examples fix the distinction as it works in practice. Publication of delegated legislation is ordinarily mandatory, because a person cannot be bound by a rule of which he has had no means of knowledge, and where publication in a particular manner was required to reach those affected the manner may itself be mandatory, as Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee, (1975) 2 SCC 482 held of publication in the regional language. Laying before the legislature, by contrast, is ordinarily directory where the statute merely requires the rule to be laid and attaches no consequence, as Atlas Cycle Industries Ltd. v. State of Haryana, (1979) 2 SCC 196 held, though a requirement that the rule shall have effect only on approval is mandatory.

5. Consequences of Each

Substantive ultra vires is fatal in every case. No question of prejudice or of substantial compliance arises, because the authority never had the power to make the rule at all.
It cannot be cured by following any procedure, since the defect is in the content; only legislation conferring the power can cure it.
Procedural ultra vires vitiates only if the requirement is mandatory, and even then substantial compliance may suffice where the object of the requirement has been achieved.
A procedural defect can be cured by making the rule afresh after following the prescribed procedure, which is why relief is often prospective.
Severability applies to both, so the offending part may be struck down and the rest retained if separable and independently workable.
Neither is cured by laying before the legislature, which does not validate a rule that is otherwise void.
Acts done under the rule before it was struck down may be protected in practice by the presumption of validity, the de facto doctrine and the moulding of relief.

⚠ The mandatory question is where procedural challenges are actually decided

A substantive challenge to a rule is comparatively simple in structure: the court reads the parent Act, reads the rule, and asks whether the second is within the first. A procedural challenge is not, because the non-compliance is usually admitted and the whole argument is about its effect. That is why so much of this field consists of the mandatory or directory enquiry, and why a litigant who establishes that consultation was omitted has established only half of his case. The Raza Buland Sugar approach asks what the requirement was for: where it exists so that affected persons may know and object, omitting it defeats the purpose and the rule falls; where it concerns the manner of doing something those persons learnt of anyway, the object survives the irregularity and so does the rule.

6. The Position in Summary

Substantive ultra vires concerns the content of a rule and asks whether it could have been made at all; procedural ultra vires concerns the manner of its making and asks whether the prescribed procedure was followed.
A general power to make rules for carrying out the purposes of an Act does not authorise a rule travelling beyond or inconsistent with the Act, and a delegate cannot qualify an exemption the legislature granted (Kunj Behari Lal Butail).
Whether a procedural requirement is mandatory or directory depends on the legislative intention gathered from the scheme, the purpose, the nature of the duty and the consequences of each construction (Raza Buland Sugar).
Publication is ordinarily mandatory since no one can be bound by an unknown rule, while simple laying is ordinarily directory, an affirmative resolution requirement being mandatory.
Substantive ultra vires is fatal without qualification and curable only by legislation; procedural ultra vires vitiates only where the requirement is mandatory, and the rule may be remade after following the procedure.

7. Related Topics and Provisions

Doctrine of Ultra Vires (Topic 169) and Substantive and Procedural Ultra Vires (Topic 46).
Procedural Control over Delegated Legislation (Topic 43) and Judicial Control (Topic 44).
Publication of Delegated Legislation (Topic 38) and Previous Publication (Topic 39).
Laying of Rules before the Legislature (Topics 40 and 41).
Retrospective Delegated Legislation (Topic 33) and Delegation of Taxing Power (Topic 34).
Constitution of India: Articles 13, 14, 245, 246 and 265; General Clauses Act, 1897, section 23.