DISSENTING OPINION OF
OGATA, J.,WITH WHOM RICHARDSON, C.J., JOINS
I do not reach the conclusions of the majority in this case, and, therefore, I must dissent. The majority holds that the time period prescribed by HRS § 205-4 and Land Use Commission’s State Land Use District Regulation 2.35 stating that within a period of not more than 90 days and not less than 45 days after the public hearing, the Land Use Commission (hereinafter appellee, L.U.C.) shall act upon the petition for a change, is mandatory, and also holding that the proceedings of the appellee, L.U.C., concerning its adoption of district boundaries under HRS § 205-3, and its determination of a petition for amendment to district boundaries under HRS § 205-4, are classifiable as contested cases under the Hawaii Administrative Procedure Act (hereinafter HAPA).
I.
While the matter of zoning of land was prior to 1961 usually considered to be local in nature and the legislature authorized the counties to deal with this problem, in the regular session of 1961, the legislature enacted Act 187, “A Bill for an Act Relating to the Zoning Powers of the State and the Assessment of Real Property Based Upon Zones Estab*551lished by the State and Making an Appropriation Therefor.” Substantially the entire act was re-enacted by the legislature in the 1963 regular session under Act 205, to clarify some of the provisions of Act 187, including those with respect to hardship caused to landowners who wished to develop lands which were included in agricultural districts but where such lands were not at all suitable for agricultural uses. Act 205, S.L.H. 1963, § 1.
Again in 1965, the legislature amended the provisions of the then section 98H-4, R.L.H. 1955 (1965 Supp.), relating to amendments to district boundaries. Act 32, S.L.H. 1965. Section 98H-4, R.L.H. 1955 (1965 Supp.), is now HRS § 205-4. In Section 1 of Act 32, S.L.H. 1965, the legislature stated:
The purpose of this Act is to reduce the number of days in which petitions for boundary changes may be processed. Experience has shown that the number of days required to process the petition under the present Act has caused undue hardship on some landowners.
The time limitation requiring the appellee, L.U.C., to decide upon a petition for a change in boundary within a period of not more than 90 days and not less than 45 days was intended to give to the appellee, L.U.C., an adequate period to deliberate upon a petition requesting the change in the district boundary and also to protect the landowners or lessees from too long delays by appellee, L.U.C., in reaching a decision. It is to be noted that the original act did not contain any limitation whatsoever, as to when the appellee, L.U.C., was to act upon such a petition, other than that it could not act within less than 45 days after such public hearing. Act 187, S.L.H. 1961, § 6. The 1963 amendments at least required the appellee, L.U.C., to act on such petition for a change in boundary within a period of 300 days from the receipt of the petition by the appellee, L.U.C. Act 205, S.L.H. 1963, § 2. The 45 day waiting period, during which the appellee, L.U.C.,is required to withhold action under HRS § 205-4 has never been modified by the legislature since original enactment. But to protect landowners, and lessees, the legislature has seen fit to impose a time limitation so that appellee, *552L.U.C., will act on these petitions for change. In fact in 1965, the legislature further amended the predecessor to HRS § 205-4, so that appellee, L.U.C., will act upon petitions for amendment to district boundaries within a period of 210 days, or 7 months, after such petitions have been received by appellee, L.U.C., and HRS § 205-4, now so provides.
To interpret the time period prescribed in HRS § 205-4, as well as the time period set forth in HRS § 205-3, as mandatory would seem to be directly contrary to the legislative intention as reflected in the history of the land use law. The majority in so construing this requirement seems to rely entirely on the form of the language “shall” used in these sections, rather than on substance. We said in County of Maui v. do Rego, 24 Haw. 608, 615 (1919) that:
A mandatory provision in a statute is one, the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding. Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other.
Just because the word “shall” appears in a statute does not automatically render the same to be mandatory. Such a mechanical construction will ignore the principle mentioned in County of Maui v. do Rego, supra. To thus construe this statute as mandatory, rather than directory, would render the petition for amendment of boundary filed with appellee, L.U.C., by Mr. Yagi null and void after 90 days from the public hearing. There is nothing expressly stated in HRS § 205-4, that such would be the consequence of a petition for amendment after 90th day from the public hearing, or that the appellee, L.U.C., after such last day would not be able to act on the petition. The failure on the part of appellee, L.U.C., to act on the petition within the period of 45 days as provided in HRS § 205-4, would not injuriously affect any one, and in this case no one has been adversely affected because appellee, *553L.U.C., acted on the petition after 90 days from the date of hearing, other than Mr. Yagi and appellees, Mr. Fong and Mr. Fujitomo, who requested the appellee, L.U. C., for the delay.
Many judicial authorities hold that statutory provisions concerning the precise time when a thing has to be done are not regarded as of the essence, but are regarded as directory, and this viewpoint is especially pertinent where a statute fixes a time simply for convenience or orderly procedure, and this rule applies to statutes which direct the doing of a thing within a certain time without any negative words restraining the doing of it afterward. Winslow v. Zoning Board of City of Stamford, 143 Conn. 381, 122 A.2d 789 (1956); Brenner v. Bruckman, 3 N.Y.S.2d 265 (1938); Vol. 1A Sands Sutherland on Statutory Construction, § 25:03, at p. 300 (1972); 73 Am. Jur. 2d, Statutes, § 18.
I do not believe that the principle announced in Hawaii Corporation v. Kim, 53 Haw. 659, 500 P.2d 1165 (1972), should control the interpretation of HRS § 205-4, since in Hawaii Corporation v. Kim, supra, we were then concerned with the statute on the expenditure of public funds. There we properly held that HRS § 103-25 in plain and unambiguous language requires a prospective bidder as a condition precedent to submit a bid, must first give written notice of his intention to bid to the officer charged with letting a public contract, at least six days before the date designated for the opening of bids, and that the time requirement was mandatory. Territory v. Fasi, 40 Haw. 478 (1954), is also irrelevant here since the time element was essential to the imposition of a criminal penalty.
The majority does not expressly indicate the consequences of its holding, but from the oral arguments on this case, it would seem that the only remedy available to the appellees, landowners, would be to file another petition with appellee, L.U.C., or they would be without any remedy. Such a nonsensical procedural requirement would not solve anything, since the appellee, L.U.C., may, and it can still, engage in the same kind of delay by withholding final decision on the second petition untilit, too, becomes null and void, and this process can go on indefinitely. I would therefore hold that *554the time limitation set forth in HRS §§ 205-3 and 205-4 is directory, and not mandatory. If for any reason, the appellee, L.U.C., fails or neglects to act on any matter concerning the adoption of district boundaries, or the amendment in the boundary of any district, within the 90 day limit provided in these sections, then such non action would give rise to an appropriate legal remedy to any person who may be aggrieved.
The majority makes much of the request by Mr. Yagi to appellee, L.U.C., that it defer action on the Yagi petition at its meeting held on Molokai on October 8, 1971, six days before the expiration of the 90 day limitation prescribed in HRS § 205-4. The records of appellee, L.U.C., show that although Mr. Yagi did in fact make such a request to appellee, L.U.C., that such a request resulted only after a telephone call had been made to Mr. Yagi by the executive secretary of appellee, L.U.C., explaining to him that there would be only six members of the appellee, L.U.C., attending the Molokai meeting, and that Mr. Tanji Yamamura, a member of appellee, L.U.C., attending that meeting would be disqualified to participate on Mr. Yagi’s petition. Under such a circumstance, appellee, L.U.C., would be unable to act on the petition for amendment in the boundary as requested by Mr. Yagi, on Molokai on October 8, 1971, since under HRS § 205-4, six affirmative votes are required to favorably act on such a petition. The minutes of the meeting of appellee, L.U.C., confirm that only six members of the commission were present at the Molokai meeting on October 8, 1971, and that one of such members, Mr. Tanji Yamamura, was disqualified to act on Mr. Yagi’s petition. Having received this message from the executive secretary of appellee, L.U.C., Mr. Yagi’s only choice was to ask the appellee, L.U.C., for an extension of time prior to the expiration of 90th day, in order to give the appellee, L.U.C., more time because of the lack of requisite members. There was, of course, another postponement by appellee, L.U. C., in rendering a decision on this petition at its meeting in Honolulu on November 11, 1971, at the request of Mr. Yagi, but this second postponement occurred only after the 90th day time limitation had already expired *555as a result of the first postponement. A decision by appellee, L.U.C., could have been rendered on Molokai on October 8, 1971, well within 90 days from the public hearing, but for the lack of membership on the commission.
II.
The majority opinion also holds “that the adoption of district boundaries classifying lands into conservation, agricultural, rural or urban districts, or the amendment to said district boundaries is not a rule making process,” and that this case, therefore, must be a “contested case.”
What we have here is not a contested case but an agency of the state exercising its rule-making power.
HRS § 91-1(1) defines the word “agency’ ’ as follows: “Agency” means each state or county board, commission, department, or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches.
HRS § 91-1(4) defines the word “rule” in the following language:
“Rule” means each agency statement of general or particular applicability and future effect that implements, interprets, or prescribes law or policy, or describes the organization, procedure, or practice requirements of any agency. The term does not include regulations concerning only the internal management of an agency and not affecting private rights of or procedures available to the public, nor does the term include declaratory rulings issued pursuant to section 91-8, nor intra-agency memoranda.
By virtue of the foregoing definitions it would seem to me that any statement by any agency of general or particular applicability and future effect that implements, interprets, or prescribes any law or policy would constitute and be considered to be a rule. Aguiar v. Hawaii Housing Authority, 55 Haw. 478, 522 P.2d 1255 (1974); 1 Davis, Administrative Law Treatise, §§ 5.01 and 5.02. Although in the case of a petition for amendment in the boundary of a district, the area of land *556concerned may be small and the people involved in the proceeding may not be numerous, the procedure utilized by appellee, L.U.C., is the same as for the adoption of the boundaries of districts within all of the counties of the state, in which numerous parcels and landowners and lessees and other interested persons are affected.
The appellee, L.U.C., has taken the view that it was in this case engaged in rule making and followed the requirements of HRS § 205-4, and the procedure set forth in HAPA applicable to rule making, and appellants, in their Opening Brief, agree and do not dispute this concept that the appellee, L.U.C., was involved in such activity. It was only in the Reply Brief that appellants asserted that this was a “contested case,” but then appellants’ apparent theory seems to be that while a petition for change in the boundary of a district before appellee, L.U.C., under HRS § 205-4, invokes the rule-making process of the appellee, L.U.C., if thereafter, an adjoining property owner participates in the public hearing, then the rule-making procedure is suddenly converted into one similar to a “contested case. ’ ’ Such a theory is untenable and without merit.
A decision by an agency as to the choice of the procedural mechanism to be employed by it under HAPA in achieving a result should be respected by the courts, when a particular method to be employed by the agency is not clearly spelled out in the statute. 1 Cooper, State Administrative Law (1965) at 180.
The same authority also makes the following observation as to zoning cases:
Many activities of zoning commissions are predominantly rule-making in character, and subject to the narrow scope of review available in rule-making cases. However, in contested cases arising under zoning ordinances — typically, cases involving the question whether a particular use should be permitted under the applicable zoning regulation — the scope of review is on the whole broad. 2 Cooper, State Administrative Law (1965) at 721.
The appellee, L.U.C., is an agency of the state and its activities and functions are similar to a zoning commission. *557The majority makes reference to East Diamond Head Association v. Zoning Board, 52 Haw. 518, 479 P.2d 796 (1971), which was, indeed, a contested case under the comprehensive zoning code in which appellants sought to determine the propriety of a zoning variance issued by the Zoning Board of Appeals of the City and County of Honolulu. We simply held in that case that appellants, being adjoining owners or residents of the land subject to a zoning variance, were persons aggrieved under HRS § East Diamond Head Association v. Zoning Board, supra, is as stated above by 2 Cooper, State Administrative Law (1965) at 721, a typical contested case involving the question as to whether a variance should be granted under the comprehensive zoning code. Daltonv. City and County of Honolulu, 51 Haw. 400, 462 P.2d 199 (1969), was not an appeal under HRS § 91-14, in a contested case, but it was a case for a declaratory judgment and for an injunction, and is, therefore, inapposite to support the legal principle that the instant case is a “contested case.”
Since this case is not a “contested case, ’ ’ but rather one in which the rule-making power was exercised, none of the statutory procedural requirements set forth in HAPA, applicable only to a “contested case” need to be observed by appellee, L.U.C. But even treating the proceedings before the appellee, L.U.C., as a contested case, I do not think that the procedural errors alleged by appellants were so serious as to require a reversal. The statements made by Mr. Yagi before the appellee, L.U.C., at its Hilo meeting and in the absence of appellants, and also the fact that one of the members of appellee, L.U.C., had made a field trip to the property involved in this case are at most harmless errors, and no substantial rights of appellants have been prejudiced. If the appellants actually believed that they were deprived of due process because they were not given any opportunity to rebut the testimony of Mr. Yagi which was offered to appellee, L.U; C., at its Hilo meeting but which the appellee, L.U.C., refused to consider as to any new evidence presented by Mr. Yagi at that meeting, and if the appellants wanted to present to appellee, L.U.C., any more testimony concerning the physical features of the land subject to these *558proceedings, they could have applied to the court below, for leave to present such evidence material to the issues and the court could have granted to appellants such a relief. In such event, the appellee, L.U.C., would be given the opportunity to render a new decision based upon all of the evidence, including such evidence as may be elicited at the supplemental hearing as ordered by the court. HRS § 91-14(e). No such request was made by appellants in this case.
In view of the foregoing, I would affirm.