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NOTES ON INTERPRETATION OF STATUTES BY: Prof.

ANANYA R. BIBAVE

1.

INTERPRETATION OF STATUTES
SYLLABUS

A. Introduction1. Meaning and objects of Interpretation


B. General Principles of Interpretation1. Literal Rule
2. Golden Rule
3. Mischief Rule
4. Statute must be read as a whole in its context
5. Statute to be construed to make it effective and workable
6. Omissions not to be inferred
7. Every word in a statute to be given a meaning
C. Internal Aids to construction1. Preamble
2. Definition Sections
3. Heading
4. Marginal Notes
5. Punctuation
6. Illustrations
7. Proviso
8. Explanation
9. Schedules
D. External Aids to construction
1. Parliamentary History
2. Historical facts and surrounding circumstances
3. Social, Political and economic developments
4. Reference to other statutes
5. Contemporanea expositio and other external aids
6. Codifying statutes and consolidating statutes
E. Subsidiary Rules
1. Same word same meaning
2. Use of different words
3. Rule of last antecedent

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4. Non Obstante clause
5. Legal fiction
6. Mandatory and directory provisions
7. Conjunctive and disjunctive words or & and
8. Construction of general wordsa. Noscitur a socius
b. Rule of ejusdem generis
c. Reddendo singula singulis
F. Interpretation of Statutes affecting jurisdiction of courts1. General Principles
2. The extent of exclusion
3. Exclusion of jurisdiction of superior courts
G. Interpretation of Penal and Taxing Statutes1. Rule of construction of taxing statutes
2. General principles of strict construction
3. Limits of the rule of strict construction
4. Mens rea in statutory offences and Indian Penal Code
5. Vicarious liability in statutory offences
H. Interpretation of Remedial Statutes1. Distinction between remedial and penal statutes
2. Liberal construction of remedial statutes
I.

Operation of Statutes1. Commencement


2. Retrospective operation

J. Expiry and repeal of statutes


1. Perpetual and temporary statutes
2. Effect of expiry of temporary statutes
3. Express or implied repeal
4. Consequences of repeal
K. Interpretation of Constitutional Documents1. Rules of interpretation of constitutional documents as developed by the
courts of India
L. General Clauses Act, 1897

NOTES ON INTERPRETATION OF STATUTES BY: Prof.


ANANYA R. BIBAVE

INTRODUCTION

MEANING AND OBJECT OF INTERPRETATION:


Enacted laws, especially the modern Acts and Rules, are drafted by legal experts
and it could be expected that the language used will leave little room for interpretation or
construction. The age-old process of application of the enacted law has led to formulate the
certain rules of interpretation or construction. By interpretation or construction is meant the
process by which the courts seek to ascertain the meaning of the Legislature through the
medium of authoritative forms in which it is expressed- says Salmond.
A statute is an edict of the Legislature [Vishnu Pratap Sugar Works (Pvt.) Ltd. v.
Chief Inspector of Stamp, U.P., 1968] and the conventional way of interpretation or
construing a statute is to seek the intention of its maker. A statute is to be construed
accordingly to the intent of them that make it [R.M.D. Chamarbaugwala v. Union of India,
1957] and the duty of judicature is to act upon the true intention of the legislature-the mens
or sentential legis (Salmond Jurisprudence). If the statutory provision is open to more than
one interpretation the court has to choose that interpretation which represents the true
intention of the legislature [Venkatswami Naidu, R v. Narasram Naraindas, 1966], in other
words the legal meaning [Dinesh Chandra Jamanadas Gandhi v. State of Gujarat, 1989] or
true meaning [Black Clawson International Limited v. Papierwerke Waldhof Aschaffenburg
A.G., 1975] of the statutory provision. The task is often not an easy one and the difficulties
arise because of various reasons, as like, words in any language are not scientific symbols
having any precise or definite meaning and also it is impossible even for the most
imaginative Legislature to forecast exhaustively situations and circumstances that may
emerge after enacting a statute where its application may be called for. The numerous rules
of interpretation formulated by courts are expressed by different judges and support may be
found in these formulations for apparently contradictory propositions.
The problem of interpretation is a problem of meaning of words and their
effectiveness as medium of expression to communicate a particular thought, Words and
phrases are symbols that stimulate mental references to referents [G. Williams: Language
and the Law]. But words of any language are capable of referring to different referents in
different texts and times. The courts have therefore to look essentially to the words of the
statute to discern the referent aiding their effort as much as possible by the context. Apart
from controversies as to the limits of the context outside the statute, there is a difficulty in
and arising out of fringe meaning of words.

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ANANYA R. BIBAVE
The intention of the Legislature assimilates two aspects: In one aspect it carries the
concept of meaning i.e. what the words mean and in another aspect, it conveys the concept
of purpose and object or the reason and spirit pervading through the statute. The purpose
of interpretation, therefore, combines both literal and purposive approaches. In other words
the legislative intention i.e. the true or legal meaning of an enactment is derived by
considering the meaning of the words used in the enactment in the light of any discernible
purpose or object which comprehends the mischief and its remedy to which the enactment
is directed. [Statute of Himachal Pradesh v. Kailash Chand Mahajan, 1992]. This formulation
has now received the approval of the Supreme Court and has been called the Cardinal
principle of construction [Union of India v. Elphinstone Spinning and Weaving Co. Ltd.,
2001]
The meaning of the expression intention of the Legislature is explained in another
form by Lord Watson in an often quoted passage where he called it a slippery phase and
said: In a court of law or equity, what the legislature intended to be done or not to be done
can only be legitimately ascertained from that which it has intended to or chosen to enact,
either in express words or by reasonable and necessary implication [Aaron Solomon and
Co. Ltd. case, 1897]. But the whole of what is enacted by necessary implication can hardly
be determined without keeping in mind the purpose or object of the statute [State of Punjab
v. Okara Grain Buyers Syndicate Ltd., 1964]. This formulation therefore does not in effect
reject the concept of purpose but contains the same within the import of the phrase
necessary implication.
The rules of interpretation are not rules of law and are not to be applied like the rules
enacted by the Legislature in an interpretation Act [Superintendent and Remembrancer of
Legal Affairs, West Bengal v. Corporation of Calcutta, 1967]. They serve as guides and such
of them which serve no useful purpose now can be rejected by courts and new rules can be
evolved in their place (ibid). By boldly rejecting outmoded rules, by substituting, if necessary
new rules in their place (ibid) and by avoiding unnecessary generalization [Kehar Singh v.
State, 1988] the superior can help in task of realization of the rules. In applying the rules it
must be kept in the view that the rules are not binding in the ordinary sense like legislation
they are our servants and not masters. They are aids to interpretation, presumptions and
pointers. Not infrequently one rule points in one direction, another in a different direction. In
each case we must look at all relevant circumstances and decided as matter of judgment
what weight to attach to any particular rule. [Maunsel v. Olins, 1975]
An intelligent application of the rules and the solution in each real difficulty depends
upon the individual skill of a judge. By combining knowledge, wisdom and experience great

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judges develop the instinct of finding out that solution which harmonize the words in the
policy or object behind them. Justice Cardozo said: A judge must think of himself as an
artist, who although he must know the handbooks, should never trust to them for his
guidance; in the end he must rely upon his almost instinctive sense of where the line lay
between the words and the purpose which lay behind it.

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ANANYA R. BIBAVE

GENERAL PRINCIPLES OF INTERPRETATION

LITERAL RULE:
The words of a statute are first understood in their natural, ordinary or popular sense
and phrases and sentences are construed according to their grammatical meaning, unless
that leads to some absurdity or unless there is something in the context, or in the object of
the statute to suggest the contrary [Crawford v. Spooner, 1846]. The true way according to
Lord Brougham, to take the words as the legislature have given them, and to take the
meaning which the words either by preamble or by the context of the words in question,
controlled or altered (ibid); and in the words of Viscount Haldane L.C., if the language used
has a natural meaning we cannot depart from that meaning unless, reading the statute as
whole, the context directs us to do so [Attorney General v. Milne, 1915]. In an oft quoted
passage, Lord Wensleydale stated the rule that, In construing will and indeed statutes and
all written instruments, the grammatical and ordinary sense of the word is adhered to, unless
that would lead to some absurdity or some repugnance or inconsistency with the rest of the
instrument in which case the grammatical and ordinary sense of the words may be modified,
so as to avoid that absurdity, and inconsistency, but no further[Grey v. Pearson,1857]. And
stated Lord Atkinson: In the construction of statutes, their words must be interpreted in their
ordinary grammatical sense unless there be something in the context, or in the object of the
statute in which they occur or in the circumstances in which they are used, to show that they
were used in a special sense different from their ordinary grammatical sense.[Corporation
of the City of Victoria v. Bishop of Vancouver Island, 1921] Viscount Simon L.C., said: The
golden rule is that the words of a statute must prima facie be given their ordinary meaning.
[Nokes v. Doncaster Amalgamated Collieries Ltd., 1940]

GOLDEN RULE:
For a modern statement of the rule (i.e. literal rule to golden rule) one may refer to
the speech of Lord Simon of Glaisdale in a case where he said: Parliament is prima facie to
be credited with meaning what is said in an act of Parliament. The drafting of statutes, so
important to a people who hope to live under the rule of law, will never be satisfactory unless
courts seek whenever possible to apply the golden rule of construction, that is to read the
statutory language, grammatically and terminologically, in the ordinary and primary sense
which it bears in its (construction) context, without omission or addition. Of course,

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Parliament is to be credited with good sense; so that when such an approach produces
injustice, absurdity, contradiction or stultification of statutory objective the language may be
modified sufficiently to avoid such disadvantage, though no further [Suthendran v.
Immigration Appeal Tribunal, 1976]
In dealing with Order 21, Rule 16 of the Code of Civil Procedure, 1908 S. R. Das, J.
said: The cardinal rule of construction of statute is to read the statutes literally, that is, by
giving to the words their ordinary, natural and grammatical meaning. If however, such a
reading leads to absurdity and the words are susceptible of another meaning, the court may
adopt the same. But if no such alternative construction is possible, the court must adopt the
ordinary rule of literal interpretation. In the present case the literal construction leads to no
apparent absurdity and therefore there can be no compelling reason for departing from that
golden rule of construction.
The golden rule is a modification of the principle of grammatical interpretation. On
the face of it, this rule solves all problems and is, therefore known as the golden rule.
Further, since the literal meaning is modified to some extent, this approach is called the
modifying method of interpretation.

MISHCHIEF RULE:
When the material words are capable of bearing two or more constructions the most
firmly established rule for construction of such words of all statutes in general (be they
penal or beneficial, restrictive or enlarging of the common law) is the rule laid down in
Heydons Case (1584) which has now attained the status of a classic (Kanailal Sur v.
Paramanidhi Sadhukhan, 1957). The rule which is also known as purposive construction or
mischief rule (Anderton v. Ryan, 1985), enables consideration of four matters in construing
an Act:
i.

What was the law before making of the Act,

ii.

What was the mischief or defect for which the law did not provide,

iii.

What is the remedy that the Act has provided, and

iv.

What is the reason of the remedy


The rule then directs that the courts must adopt that construction which, shall

suppress the mischief and advance the remedy. The rule was explained in the [Bengal
Immunity Co. v. State of Bihar, 1955] by S.R. Das, C.J., as follows: It is a sound rule
construction of a statute firmly established in England as far back as 1504 when Heydons

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case was decided that for the sure and true interpretation of all statutes in general (be they
penal or beneficial, restrictive or enlarging of the common law) four things are to be
discerned and considered:
1st- What was the common law before the making of the Act,
2nd- What was the mischief and defect for which the common law did not provide,
3rd- What remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth,
4th- The true reason of the remedy:
and then the office of all the judges is always to make such construction as shall suppress
the mischief, and advance the remedy, and to suppress subtle inventions and evasions for
continuance of the mischief, and pro privatio commodo, and to add force and life to the cure
and remedy, according to the intent of the makers of the Act, pro bono publico. The
Supreme Court in this case applied the rule in construction of Article 286 of the Constitution.
After referring to the state of law prevailing in the provinces prior to the Constitution as also
to the chaos and confusion that was brought about in inter-state trade and commerce by
indiscriminate exercise of taxing powers by the different provinces legislatures founded on
the theory of territorial nexus. The rule was again by the Supreme Court in similar context
while construing the changes brought about by the Constitution 46th Amendment Act in
Goodyear India Ltd. v. State of Haryana, 1990.
An illustration of the application of the rules is also furnished in the construction of
section 2(d) of the Prize Competition Act, 1955 defining the word Prize Competition in
RMD Chamaribaugwalla v. Union of India, 1957. The Supreme Court stated: Having regard
to the history of the legislation, the declared object thereof and the wording of the statute,
we are of opinion that the competitions which are sought to be controlled and regulated by
the Act are only those competitions in which success does not depend on any substantial
degree of skill.

STATUTE MUST BE READ AS A WHOLE IN ITS CONTEXT:


When the question arises as to the meaning of a certain provision in a statute, it is
not only legitimate but proper to read that provision in its context. The state of the law, other
statutes in pari materia, the general scope of the statute and the mischief that it was
intended to remedy. [R. S. Raghunath v. State of Karnataka, 1992] The statement of the rule

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was recently fully adopted by the Supreme Court [Union of India v. Elphinstone Spinning and
Weaving Co. Ltd., 2001]
It is a rule now firmly established [Philips India Ltd. v. Labour Court, 1985] that the
intention of the Legislature must be found by reading the statute as a whole. The rule is
referred to as an elementary rule by Viscount Simonds [A.G. v. HRH Prince Ernest
Augustus, 1957]; a compelling rule by Lord Somervell of Harrow (ibid); and a settled rule
by B. K. Mukherjee, J. [Poppatlal Shah v. State of Madras, 1953] Lord Halsbury said, I
agree that you must look at the whole instrument inasmuch as there may be inaccuracy and
inconsistency; you must, if you can ascertain what is the meaning of the instrument taken as
a whole in order to give effect, if it be possible to do so, to the intention of the framer of it
[Charles Robert Leader v. George F. Diffey, 1888].
The rule is of general application as even plainest terms may be controlled by the
context [Bentley v. Rotherham, 1876], and it is conceivable, as Lord Watson said, that the
Legislature whilst enacting one clause in plain terms, might introduce into the same statute
other enactments which to some extent qualify or neutralize its effect [AdministratorGeneral of Bengal v. Premlal Mullick, 1895]. The same word may mean one thing in one
context and another in a different context. [D. N. Banerji v. P.R.Mukherjee, 1953] For this
reason the same word is used in different sections [Forbes v. Attorney General of Manitoba,
1937] of a statute or even when used at different places in the same clause or section
[Ramnarayan Mor v. State of Maharashtra, 1964] of a statute may bear different meanings.
The conclusion that the language used by the legislature is plain or ambiguous can only be
truly arrived at by studying the statute as a whole. Words and phrases occurring in a statute
are to be taken not in an isolated or detached manner dissociated from the context, but are
to be read together and construed in the light of the purpose and object of the Act itself
[Darshan Singh Balwant Singh v. State of Punjab, 1953]

STATUTE TO BE CONSTRUED TO MAKE IT EFFECTIVE AND WORKABLE:


The courts strongly lean against a construction which reduces the statute to a futility
[M. Pentiah v. Veeramallappa Muddala, 1961]. A statute or any enacting provision therein
must be so construed as to make it effective and (workable) operative on the principle
expressed in the maxim: ut res magis valet quam pereat. [CIT v. S. Teja Singh, 1959] It is
an application of this principle that courts while pronouncing upon the constitutionality of a
statute start with a presumption in favour of constitutionality and prefer a construction which
keeps the statute within the competence of the legislature [Corporation Calcutta v. Liberty

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Cinema, 1965] The importance of the principle can be judged from the fact that there is
hardly any reported decision where a statute may have been declared void for sheer
vagueness, although theoretically it may be possible to reach such a conclusion in case of
absolute intractability of the language used [Salmond v. Duncombe, 1886], or when it is
impossible to resolve the ambiguity [Fawcett Properties v. Buckingham County Council,
1960], i.e. when the language is absolutely meaningless [Tinsukhia Electric Supply Co. Ltd.
v. State of Assam, 1990]. Lord Denning approving Farewell, J., stated the principle: But
when a statute has some meaning even though it is obscure, or several meanings, even
though it is little to choose between them, the courts have to say what meaning the statute is
to bear, rather than reject it as a nullity [Fawcett Properties v. Buckingham County Council,
1960]
Applying the same principle the Supreme Court has rejected constructions advanced
in respect of validation acts which if accepted would have led to the conclusion that the
Legislature failed to achieve the object of validating prior executive acts which it avowedly
had as expressed in the preamble and also apparent from other provisions of the acts in
question [Krishnachandra Gangopadhyaya v. Union of India, 1975]. A validating act may
even make ineffective judgments and orders of competent courts provided it by
retrospective legislation removes the cause of invalidity or the basis which had led to those
judgments. [Bhubaneshwar Singh v. Union of India, 1994] Yet by careless drafting the
legislature may sometime wholly [B. Shama Rao v. Union Territory of Pondicherry, 1967] or
partially [Jawaharlal v. State of Rajasthan, 1966] fail to achieve the object of validation.
The same principle is applied in construing machinery sections of a taxing statute so
as to make that machinery workable [C.I.T. v. Mahaliram Ramjidas, 1940]

OMISSIONS NOT TO BE INFERRED:


It is an application of the principle that a matter which should have been, but has not
been provided for in a statute cannot be supplied by courts, as to do so will be legislation
and not construction [Hansraj Gupta v. Dehradun Mussorie Electric Tramway Co.Ltd., 1933]
But there is no presumption that a casus omissus exists and language permitting the court
should avoid creating a casus omissus where there is none [Karnataka State v. Union of
India, 1978]
By the U.P. District Boards Act, 1933 the provisions of the earlier Act, 1922 were
amended. In Act, 1933, section 71 was amended which was providing the Board, the power

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to dismiss its Secretary by special resolution and the amended section provided that a
resolution of dismissal was not to take effect till the expiry of the period of appeal or till the
decision of appeal if it was so presented. No corresponding amendment was made in
section 90 which conferred a power to suspend the secretary pending inquiry into his
conduct or pending the orders of any authorities whose sanction is necessary for his
dismissal and it was held by the Supreme Court that a suspension resolved under section
90 to be operative till the appeal against dismissal was decided, was ultra vires the powers
of the Board. Bhagwati, J. speaking for the Court said: It was unfortunate that when the
Legislature came to amend the old section 71 of the Act it forgot to amend section 90 in
conformity with the amendment of section 71. But this lacuna cannot be supplied by any
such liberal construction as the High Court sought to put upon. No doubt it is the duty of the
Court to try and harmonize the various provisions of an Act passed by the Legislature. But it
is certainly not the duty of to court to stretch the word used by the Legislature to fill in gaps
or in omissions in the provisions of an Act [Hiradevi v. District Board, Shahjahanpur, 1952]
Similarly, section 18 (1) of the West Bengal Premises Rent Control (Temporary
Provisions) Act, 1950, which gave power to court to rescind or vary any decree for recovery
of possession was held not to cover a power to rescind or vary an order for possession
passed under section 43 of the Presidency Small Causes Courts Act, 1882 [Nalinakhya
Bysak v. Shyamsunder, 1953]
Devlin, L. J. pointing out that this was apparent by casus omissus observed: The
court will always allow the intention of a statute to override the defects of wording but the
courts ability to do so is limited by recognized canons of interpretation. The Court may for
example, prefer an alternative construction which is less well fitted to the words but better
fitted to the intention of the Act. But here, there is no alternative construction; it is simply a
case of something being overlooked. We cannot legislate for cassus omissus. I may be sure
in this case that I know exactly what Parliament would do if it perceived a gap. But, if this
rule were to be relaxed, sooner or later the court would be saying what Parliament meant
and might get it wrong and thus usurp the law making function [Gladstone v. Bower, 1960]

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INTERNAL AIDS TO CONSTRUCTION

PREAMBLE:
The role of preamble in interpretation cannot be curtailed or restricted. Preamble can
be an aid in constructing a provision when the provision is ambiguous [Sita Devi v. State of
Bihar, 1995]. It can afford useful assistance to ascertain legislative intention but cannot
control otherwise the plain meaning of a provision [L.D.A. v. M. K. Gupta, 1994]
In the words of Lord Normand, there may be no exact correspondence between
preamble and enactment, and the enactment may go beyond, or it may fall short of the
indications that may be gathered from the preamble. Again the preamble cannot be of much,
or any, assistance in construing provisions which embody qualifications or exceptions from
the operation of the general purpose of the Act. It is only when it conveys a clear and
definite meaning in comparison with relatively obscured or definite enacting words that the
preamble may legitimately prevail [A.G.V.HRH Prince Ernest Augustus of Hanover, 1957]
The Supreme Court also enunciated the same principle about the preamble: It is
one of the cardinal principle of construction that where the language of an Act is clear, the
preamble must be disregarded though where the object of or meaning of an enactment is
not clear, the preamble may be resorted to explain it. Again, where very general language is
used in an enactment which, it is clear must be intended to have a limited application, the
preamble may be used to indicate to what particular instances, the enactment is intended to
apply. We cannot, therefore, start with the preamble for construing the provisions of an Act,
though we could be justified in resorting to it, and we will be required to do so, if we find the
language used by the Parliament is ambiguous or is too general though in point of fact
Parliament intended that it should have a limited application [Burakar Coal Co. Ltd. v. Union
of India, 1961]
Retrospectively inserted preamble into an earlier act is not of much assistance for
gathering the intention of the original act. The view of the Gwyer, C.J. is pertinent here. He
said, But we doubt very much whether a preamble retrospectively inserted in 1940 in an Act
passed 25 years before can be looked at by the Court for the purpose of discovering what
the true intention of the Legislature was at the earlier date. A legislature can always enact
that the law is, and shall be deemed always to have been such and such, but that is wholly
different thing from imputing to dead and gone legislators a particular intention merely

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because their successors at the present day think that they might or ought to have had it.
[Bhola Prasad v. Emperor, 1942]

DEFINITION SECTIONS:
The principle is that all statutory definitions have to be read subject to be the
qualifications variously expressed in the definition clauses which created them and it may be
that even where the definition is exhaustive inasmuch as the word defined is said to mean a
certain thing. It is possible for the word to have a some what different meaning in different
sections of the Act depending upon the subject or context. That is why all definitions in
statutes generally begin with the qualifying words, namely, unless there is anything
repugnant in the subject or context. Thus, there may be sections in the Act where the
meaning may have to be departed from on account of the subject or context in which the
word had been used and that will be giving effect to the opening sentence in the definition
section, namely unless there is anything repugnant in the subject or context. In view of this
qualification, the court has not only to look at the words relating to such matter and interpret
the meaning intended to be conveyed by the use of the words under those circumstances
[Whirlpool Corp. v. Registrar of Trade Marks, 1998]
While interpreting a definition, it has to be borne in mind that the interpretation
placed on it should not only be not repugnant to the context, it should also be such as would
aid the achievement of the purpose which is sought to be served by the Act. A construction
which would defeat or was likely to defeat the purpose of the Act has to be ignored and not
accepted [K.V. Muthu v. Angamuthu Ammal, 1997]
The definition contained in the definition clause of a particular statute should be used
for the purpose of the Act. Definition from any other statute cannot be borrowed and used
ignoring the definition contained in the statute itself.
A term or expression defined under a particular statute has its own scope or limits.
Such a definition should not be either restricted or expanded by importing elements from
other legal systems when there is no ambiguity in the definition. [Feroze N. Dotivala v. P.M.
Wadhwani, 2003]
Sometimes a definition is divided into two parts- explanatory and expandatory. When
the explanatory or the main part itself uses expressions of wide amplitude indicating clearly
its wide sweep, then its ambit is widened to such things which otherwise would have been
beyond its normal import. [LDA v. M. K. Gupta, 1994]

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Where a word is an expression is defined by the legislature, courts have to look to
that definition; the general understanding of it cannot be determinative. [Suresh Lohiya v.
State of Maharashtra, 1996] That expression or wherever it occurs in the Act, rules or
notifications there under, should be understood in the same sense. [Prestige Engineering
(India) Ltd. v. CCE, 1994] Even two similar terms may not mean the same thing if their
definitions in two different statutes are at variance with each other. [Feroze N. Dotivala v. P.
M. Wadhawani, 2003]
Two distinct definitions of a cognate word or expression in the same enactment must
be understood accordingly in terms of the definition. Same word defined in the statute may
not carry the same meaning through out the statute. The words which are used in declaring
the meaning of other words may also need interpretation and the legislature may use a word
in the same statute in several different senses. [Indian Handicrafts Emporium v. Union of
India, 2003]

HEADING:
Headings are of two kinds, those prefixed to a section and those prefixed to a group
or set of sections. It is now settled that the headings can be preferred to in consisting an Act
of the Legislature.
In Frick India Ltd. v. Union of India (1990) the Supreme Court observed: It is well
settled that the headings prefixed to sections or entries cannot control the plain words of the
provision; they cannot also be referred to for the purpose of construing the provision when
the words used in the provision are clear and unambiguous; nor can they be used for cutting
down the plain meaning of the words in the provision.
Only in the case of ambiguity or doubt the heading or sub-heading may be referred
to as an aid in construing the provision but even in such a case it could not be used for
cutting down the wide application of the clear words used in the provision.
Another important case is that of Bhinka v. Charan Singh (1959) in which the
respondent-landlord sought to evict the tenant under section 180 of the U.P. Tenancy Act,
1939. The section reads that a person taking or retaining possession of a plot of land
without the consent of the person entitled to admit him and otherwise than in accordance
with the provisions of law for time being in force shall be liable to ejectment.

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The Supreme Court held that section 180 applied only in the cases where the
landlord seeks to evict a person who has no right to possession. This is further reiterated by
the heading of this section which reads, Ejectment of person occupying land without title.
Therefore, section 180 had no application to tenancy matters.
The heading prefixed to section or group of sections in some modern statute are
regarded as preambles to those sections. They cannot control the plain words of the statute
but they may explain ambiguous words. [Bhinka v. Charan Singh, 1959]
Heading prefixed to sections cannot control the plain words of the provisions. They
cannot also be referred to for the purpose of construing provision when the words used in
the provision are clear and unambiguous. They cannot be used for cutting down the plain
meaning of the words of provision. Only in the case of ambiguity or doubt heading or subheading may be referred to as an aid in construing provision. [R. Krishnaih v. State of A.P.,
2005]

MARGINAL NOTES:
In some exceptional cases, marginal notes may be inserted by the legislators
themselves. In such cases help can be taken of the marginal notes because here they are
considered as part of the Act. For example, marginal notes appended to Articles of the
Constitution have been held to constitute part of the Constitution as passed by the
Constituent Assembly and, therefore, they have been used in construing the Articles of the
Constitution. In Bengal Immunity Co. Ltd. v. State of Bihar (1955) the Supreme Court held
that marginal notes appended to Article 286, which provides for Restrictions as to
imposition of tax on the sale or purchase of goods, are a part of the Constitution and they
furnish prima facie some clue as to the meaning and purpose of the Article.
In Balraj Kumar v. Jagatpal Singh (1926) Lord Macnaughten said, It is well settled
that marginal notes to the sections of an Act of Parliament cannot be referred to for the
purposes of construing the Act. The contrary opinion originated in a mistake, and has been
exploded long ago. There seems to be no reason for giving the marginal notes in an Indian
statute any greater authority than the marginal notes in an English Act of Parliament
The marginal notes or captions are, undoubtedly, part of legislative exercise and the
language therein provides the key to the legislative intent. The words so employed are not
mere surplusage. [Uttam Das Chela Sunder Das v. Shiromani Gurudwara Prabandhak
Committee, 1996] The legislative intent contained in the provision should not be bypassed

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ANANYA R. BIBAVE
where marginal note is found misleading or inappropriate. In case of conflict between plain
language of provision and meaning of heading or title, latter would not control the meaning
which is clearly and plainly discernible from languages of former. [Raichurmatham
Prabhakar v. Rawatmal Dugar, 2004]
Language of the marginal note or section heading prima facie furnishes clues as to
the meaning or purpose of the section.[Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala,
2001] When the language of a section is clear and unambiguous, marginal note cannot
restrict the meaning of the section. There is no justification for restricting the section when
the language employed in the section clearly spells out its own meaning. [Karnataka Rare
Earth v. Senior Geologist, Department of Mines and Geology, 2004]

PUNCTUATION:
It is very doubtful to say that in the construction of modern acts punctuation can be
looked upon for purposes of construction. In the past also courts did not regard punctuation
in the construction of a statute. In the words of Hobhouse, It is an error to rely on
punctuation in construing acts of the legislature
In Ashwini Kumar Ghose v. Arabinda Bose (1952) Mukherjea, J., said, Punctuation
is after all a minor element in the construction of a statute, and very little attention is paid to
it by English Court.
With respect to modern statute it appears that if the statute in question is found to be
carefully punctuated, punctuation, though a minor element, may be resorted to for purposes
of construction.
In M. K. Salpekar v. Sunil Kumar Shamsunder Chaudhari (1988) clause 13 (3) (v) of
the C. P. and Berar Letting of Houses and Rent Control Order were construed. This
provision permitted ejectment of a tenant on the ground that the tenant had secured
alternative accommodation, or has left the area for a continuous period of four months and
does not reasonably need the house. In holding the requirement that the tenant does not
reasonably need the house has no application when he has secured alternative
accommodation; the court referred and relied upon the punctuation comma after the words
alternative accommodation.
Another example is Mohd. Shabbir v. State of Maharashtra (1979). In this case,
section 27 of the Drugs and Cosmetics Act, 1940 was construed. According to the section,

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ANANYA R. BIBAVE
whoever manufactures for sale, sells, stocks or exhibits for sale or distributes a drug
without a licence was liable for punishment. The Supreme Court held that the presence of
comma after stocks indicates that mere stocking is not an offence within the section.
Therefore, it was held that only stocking for sale could not amount to offence and not mere
stocking.

ILLUSTRATION:
The illustrations appended to a section form part of the section and although they do
not form part of the statute, are of relevance and value in the construction of the text of the
section and they should not be readily rejected as repugnant to the section.
Illustrations to the section are parts of the section and help to elucidate the principle
of the section. [Mahesh Chander Sharma v. Raj Kumari Sharma, 1996] But it is said that
illustrations cannot modify the language of the section and they cannot either curtail or
expand the ambit of the section which alone forms the enactment.
For example, in Sopher v. Administrator General of Bengal (1944) in interpreting
section 113 of the Indian Succession Act, 1925 and in deciding that later bequest to be
valid must comprise of all testators remaining interest if the legatee to the later bequest is
not in existence at the time of the testators death and that a conferment of a life estate
under such a bequest is not valid. The Privy Council took on aid of illustrations 2 and 3
appended to that section and held that what is not clear from the language of the sectionthat however complete may be the disposition of will, gift after the prior bequest may not be
a life interest to an unborn person for that would be a bequest to a person not in existence at
the time of the testators death of something less than remaining interest of the testator.
The view of Lord Shaw expressed in Ariffins case [Mohd. Sydeol Ariffin v. Yeah Oai
Gark, 1916] is pertinent here. Lord Shaw observed: It is the duty of a court of law to accept,
if that can be done, the illustrations given as being both of relevance and value in the
construction of the text. The illustrations should in no case be rejected because they do not
square with ideas possibly derived from another system of jurisprudence as to the law with
which they or sections deal. And it would require a very special case to warrant their
rejection on the ground of this assumed repugnancy to the sections themselves. It would be
the very last resort of construction to make this assumption. The great usefulness of the
illustrations which have, although not part of the sections, be expressly furnished by the

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ANANYA R. BIBAVE
legislature as helpful in the working and application of the statute, should not be thus
impaired.
In a case involving interpretation of section 106 of the Indian Evidence Act, 1872, the
Supreme Court held that the said provision was not intended to relieve the prosecution of
the burden of proof and was designed to meet certain exceptional cases where the
information was as much within the knowledge of the prosecution as of the accused.
[Shambhu Nath Mehra v. State of Ajmer, 1957]
However, the utility of illustrations in interpreting the section cannot detract the prime
importance of the language of the section which is the enacting provision. Therefore,
illustrations cannot have the effect of controlling the real content of the section and must
give way in case of repugnance with the text of the section.

PROVISO:
Proviso has been variously defined. Hidayatullah, J., laid down a general rule
regarding a proviso: As a general rule, a proviso is added to an enactment to qualify or
create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as
stating a general rule.[Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash
Chandra Yograj Sinha, 1961]
Lush J., observed: When one finds a proviso to a section the natural presumption is
that, but for the proviso, the enacting part of the section would have included the subject
matter of the proviso. [Mullins v. Treasurer of Survey, 1880]
In the words of Kapur, J.,: The proper function of a proviso is that it qualifies the
generality of the main enactment by providing an exception and taking out as it were, from
the main enactment, a portion which but for the proviso would fall within the main
enactment
Ordinarily, it is foreign to the proper function of a proviso to read it as providing
something by way of an addendum or dealing with a subject which is foreign to the main
enactment. [CIT, Mysore etc. v. Indo Mercantile Bank Ltd., 1959]
A proviso to a provision in a statute has several functions and while interpreting a
provision of the statute, the court is required to carefully scrutinize and find out the real
object of the proviso appended to that provision. It is not a proper rule of interpretation of a
proviso that the enacting part or the main part of the section construed first without

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ANANYA R. BIBAVE
reference to the proviso and if the same is found to be ambiguous only then recourse may
be had to examine the proviso. On the other hand, an accepted rule of interpretation is that
a section and the provision thereto must be construed as a whole, each portion throwing
light, if need be, on the rest. A proviso must be read in its context and not in isolation.
[Bhalchandra Anantrao Rakvi v. Ramchandra Tukaram, 2001] The real object of a proviso
should be ascertained and it should be read along with the section as a whole. It should not
be rendered superfluous or redundant. [Sankar Ram and Company v. Kasi Naicker, 2003] A
proviso is normally used to remove special cases from the general enactment and provide
for them specially.
A proviso qualifies the generality of the main enactment by providing on exception
and taking from the main provision, a portion, which, but for the proviso would be a part of
the main provision. A proviso must, therefore, be considered in relation to the principle
matter to which it stands as a proviso. A proviso should not be read as if providing
something by way of addition to the main provision which is foreign to the main provision
itself. A proviso to a section cannot be used to import into the enacting part something which
is not there. Where the enacting part is susceptible to several possible meanings it may be
controlled by the proviso. [Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, 2004]
The normal function of a proviso is to except something out of the enactment or to
qualify something enacted therein which but for the proviso would be within the purview of
the enactment. [Ali M.K. v. State of Kerala, 2003]

EXPLANATION:
Sometimes an explanation is appended to a section to explain the meaning of words
contained in the section. Explanations are normally inserted with the purpose of explaining
the meaning of a particular provision and to remove doubts which might creep up if the
explanation had not been inserted. It becomes a part and parcel of the enactment.
Explanation to a section is part of the section.
The Supreme Court observed in the Bengal Immunity Co. v. State of Bihar, 1955 that
an explanation is a part of the section to which it is appended and the whole lot should be
read together to know the true meaning of the provision. The explanation is to be limited to
the purpose for which it was created and should not be extended beyond that legitimate
field. The explanation created a legal fiction and these fictions are created for definite
purpose. Here the avowed purpose of the explanation was to explain what an outside sale

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ANANYA R. BIBAVE
referred to in sub-clause (a) of the Article 286 (1) was The explanation in clause 1 (a)
cannot be legitimately extended to clause (2) either as an exception or as a proviso thereto
or read as curtailing or limiting the ambit of clause (2). Hence, it has been held that except
in so far as the Parliament may by law provide otherwise, no state law can impose or
authorize the imposition of any tax on sales or purchases when such sale or purchase takes
place in the course of inter-state trade or commerce and irrespective of whether such sales
or purchases do or do not fall within the exception.
The Supreme Court observed in S. Sundaram v. V. R. Pattabhiraman, 1985 that it is
well settled that an explanation added to a statutory provision is not a substantive provision
in any sense of the term but as the plain meaning of the word itself shows it is merely meant
to explain or clarify certain ambiguities which may have crept in the statutory provision.
The objects of an explanation to a statutory provision are following:
a) to explain the meaning and intendment of the act itself;
b) where there is any obscurity or vagueness in the main enactment to clarify the same
so as to make it consistent with the dominant object which it seems to subserve;
c) to provide an additional support to dominant object of the Act in order to make it
meaningful and purposeful
d) an explanation cannot in any way interfere with or change the enactment or any part
thereof but where some gap is left which is relevant for the purpose of the
explanation, in order to suppress the mischief and advance the object of the act, it
can help or assist the court in interpreting the true purport and intendment of the
enactment, and
e) it cannot, however, take away a statutory right with which any person under a statute
has been clothed or set at naught the working of the Act by becoming a hindrance in
the interpretation of the same.

SCHEDULES:
Schedules attached to an Act generally deal with as to how claims or rights under the
Act are to be asserted or as to how powers conferred under the Act are to be exercised.
The division of a statute into sections and schedules is done only for convenience
and, therefore, a schedule may contain substantive enactment which may even go beyond
the scope of a section to which the schedule may appear to be connected by its heading.
Here, in such a case a clear positive provision in a schedule may be held to prevail over the

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ANANYA R. BIBAVE
prima facie indication furnished by its heading and the purpose the schedule contained in
the Act. [IRC v. Gittus, 1920] In determining the meaning or connotation of words and
expressions describing an article in a tariff schedule, one principle which is fairly well settled
is that those words and expressions should be construed in the sense in which they are
understood in the trade by the dealer and the consumer. The reason is that they who are
concerned with it and it is the sense in which they understand it which constitutes the
definitive index of legislative intention. The true test for classification is the test of
commercial identity and not the functional test. If the trade has acquired a particular
meaning in the trade or commercial circles that meaning becomes the popular meaning in
the context and it should normally be accepted. [National Mineral Corp. Ltd. v. State of M. P.,
2004].

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EXTERNAL AIDS TO CONSTRUCTION

PARLIAMENTARY HISTORY:
(a) Bill:
As the speeches made by the member of the constituent assembly in the course of
debates on the constitution cannot be admitted as an external aid to the construction of the
constitution. in the same way, the debates on a bill in parliament are not admissible for
construction of the Act which is ultimately enacted.
In Chiranjit lal choudhry v. Union of india(AIR 1951 SC pp 45,46)FAZAL ALI J.
admitted parliamenatary history including the speech of minister introducing the Bill as
evidence of the circumstances which

necessitated the passing of the act, acourse

apparently approved in later decisions.


In indira sawhany v. union of india, the supreme court reffered ti Dr. Ambedkar s
speech in the constituent assembly and observe in interpreting Art 16(4) that the debates in
the constituent assembly could be relied upon as an aid to interpretation of the constitutional
provision is borne out by a series of decision of the court. Since the expression backward
classes of the citizens is not defined in constitution, reference to such debates is permissible
to ascertain at any rate the context, background and the object behind them. Particularly
where the court wants to ascertain the original intent such reference may be unavoidable.
(b) Statement of objects and reasons:
The statement of objects and reasons accompanying a legislative bill cannot be used
to ascertain the true meaning and effect of the substantive provisions of the legislation, but it
can certainly be pressed into service for the limited purpose of understanding the
background, the antecedent state of affairs and the object that the legislation sought to
achieve.
The statement of object and reasons is undoubtedly an aid to construction but that
by itself cannot be termed to be and by itself cannot be interpreted. It is a useful guide but
the interpretation and the intent shall have to be gathered from the entirety of the statute and
when the language of the sections providing an appeal to a forum is clear and categorical no
external aid is permissible in interpretation of the same.
(c) Commissions/Inquiry committees:
Report of commissions and enquiry committees preceding of introduction of a Bill
have also been referred to as evidence of historical facts or of surrounding circumstances or

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ANANYA R. BIBAVE
of mischief or evil intended to be remedied and at times for interpreting the Act. Example
can be taken of SODRA DEVIs case in which Income Tax Enquiry report was referred; in
Express newspaper case the press commissions case was referred.
HISTORICAL FACTS AND SURROUNDING CIRCUMSTANCE:
Lord ATKINSON said in the construction of statutes, it is, of course at all times and
under all circumstances permissible to have regard to the state of things existing at the time
of te statutes was passed and evils, which, as appears from the provisions , it was designed
to remedy.
In the words of Lord Halisbury : The subject-matter with which the legislature was
dealing, and the facts existing at the time with respect to which the legislature was
legislating are legitimate topics to consider in ascertaining what was the object and purpose
of the legislation in pasiing the act. (Herron v. Rathmines and Rathgare Commissioners,
(1892) AC 498, p. 502 (HL) ).

SUBSEQUENT

SOCIAL,

POLITICAL

AND

ECONOMIC

DEVELOPMENTS

AND

SCIENTIFIC INVENTIONS:
Generally, statutes are of always speaking variety and the court is free to apply the
current meaning of the statute to present day conditions. Therefore, the reference to
circumstances existing at the time of the passing of the statute does not mean that the
language used, at any rate, in a modern statute should be held to be inapplicable to social,
political and economic developments or to scientific inventions not known at the time of
passing of the statute.
A statute may be interpreted to include circumstances or situations which were
unknown or did not exist at the time of the enactment of the statute. (Sr. Electric Inspector v.
Laxminarayan Chopra, AIR 1962 SC 159, p. 557 (HL)). Lord Bridge observed: When a
change in social conditions produces a novel situation, which was not in contemplation at
the time when a statute is first enacted, there can be no a priori assumption that the
enactment does not apply to the new circumstances. If the language of the enactment is
wide enough to extend to those circumstances, there is no reason why it should not apply.
(Comdel Commodities Ltd. V. Siporex Trade, SA, (1990) 2 ALL ER 552, p.557 (HL).
In a case before it, the Supreme Court emphasized that the Indian Penal Code
should be construed, as far as its language permits, with reference to modern needs and not

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ANANYA R. BIBAVE
with reference to notions of crimainal jurisdiction prevailing at the time when the Code was
enacted. (Mobarik Ali Ahmad v. State of Bombay, AIR 1957 SC 857, p. 871.)
In Senior Electric Inspector v. Laxminarayan Chopra, supra it is said that there is a
distinction between ancient statutes and comparatively modern statutes.
Subbarao O, J., explained this principle thus : It is perhaps difficult to attribute to
legislative body functioning in a static society that its intention was couched in terms of
considerable breadth so as to take within its sweep the future developments comprehended
by the phraseology used. It is more reasonable to confine its intention only to the
circumstances obtaining at the time the law was made. But in modern progressive society it
would be unreasonable to confine the intention of the legislature to the meaning attributable
to the word used at the time the law was made, for a modern legislature making laws to
govern society which is first moving must presumed to be aware of an enlarged meaning the
same concept might attract with the march of time and with the modern revolutionary
changes brought about in social, economic, political, and scientific and other fields of human
activity. Indeed, unless a contrary intention appears, an interpretation should be given to the
words used to take in new facts and situation, if the words are capable of comprehending
them.

REFERENCE TO OTHER STATUTES:


The other statutes are only an external aid to the interpretation. Another statute can
be used in interpreting the statute under consideration only when it is shown that the two
statues are similar. ( Harshad Mehta v. State of Maharashtra, 2001 8 scc 257.)
1. Statutes in pari material:
Statues in pari materia means statues dealing the same subject-matter or forming
part of the same system. The rule of context which says that the statute must be read as a
whole as words are to be understood in their context, permits reference to other statutes in
pari materia. ((2004) 1 SCC 755.)
In an American case, pari material was explained as statutes are in pari material
which relate to the same person or thing, or to the same class of persons or things. The
word par must not be confounded with the similes. It is used in opposition to it intimating not
likeness merely but identity. It is phase applicable to public statutes or general laws made at
different times and in reference to the same subject. (Craies; Statutes Law, 7 th Edn., p.
134.)

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ANANYA R. BIBAVE
Lord Mansfield emphasized that where there are different statutes in pari materia though
made at different times, or even expired, and not reffering to each other, they shall be taken
and construted together, as one system and as explanatory of each other. (R. v. Loxdale,
(1758)97 ER 394, p. 395.)
The sense in which a term has been understood in several statutes does not
necessarily through any light on the manner in which term should be understood generally,
especially when the statutes in question are not in pari material and are not dealing with any
cognate subject and definition coined by legislature is an extended or artificial meaning so
assigned to fulfil object of that particular enactment. (Maheswari Fish Seed Farm v. T.N.
Electricity Board,(2004) 4SCC 705:AIR 2004 SC 2341.)
The copyright Act, 1957 and the A.P. General Sales Tax Act, 1957, are not statutes in
pari materia and therefore, it has been held that the definition contained in the former should
not applied in latter.( Tata Consultancy Services v. State of A.P.,(2005) 1SCC 308: (2004)
271 ITR 401: (2004) 137 STC 420.)
2. Help from earlier statutes:
According to Lord MacMillan,if an Act of Parliament uses the same language which
was used in a former Act of Parliament referring to the same subject, and passed with the
same purpose, and for the same object, the safe and well-known rule of construction is to
assume that the legislature when using well-known words upon which there have been wellknown decisions uses those words in the sense which the decisions have attached to them.
CODIFYING AND CONSOLIDATING STATUTES:
The purpose of a codifying statute is to present an orderly and authoritative statement of
the leading rules of law on a given subject, whether those rules are to be found in statues or
common law.
The essence of a codifying statute is to be exhaustive on the matter in respect of
which it declares the law and it is not the province of a judge to disregard or go outside the
letter of enactment according to its true construction.
The purpose of a consolidating statute is to present whole body of statutory law on a
subject in complete form, repeating the former statutes.
A consolidating statutes is not a mere compilation of earlier enactments. The object
of the consolidation is to make a useful code which should be applicable to the
circumstances existing at the time when the consolidating Act was passed. For this object,
all the statutory law bearing upon a particular subject is collected and is transformed into a
useful code.
CONTEMPORANEA EXPOSITIOEST FORTISSIMA IN LEGE:

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ANANYA R. BIBAVE
Contemporanea Expositioest , i.e. the effect of usage and the practice means that
word of a statutes will generally be understood in the sense which they bore when it was
passed. Maxwell has said: it is said the best exposition of a statute or any other document
is that which it has received from contemporary authority.. where this has been given by
enactment of judicial decision it is of course to be accepted as conclusive,
The principle of contemporanea exposition is not applicable to modern statutes. The
doctrine is confined to the construction of ambiguous language used in very old statutes
where indeed the language itself have a rather different meaning of these days.
Earlier the supreme court refused to apply the principle of contemporanea expositio
to the telegraph act, 1885, and the evidence act, 1872, but it was referred to in the case of
R.S.Nayak v. A.R.Antuley in construing section 21 of Indian Penal Code ,1860 and it was
held that an M.L.A. is not a public servant, as this expression is defined therein.

OTHER EXTERNAL AIDS TO CONSTRUCTION:


DICTIONARIES:
When a word is not defined in the Act itself, it is permissible to refer to dictionaries to
find out the general sense in which that word is understood in common parlance or,in other
words, dictionary meaning or common parlance meaning has to be resorted to. (Municipal
Board, Saharanpur v. Imperial Tobacco of India Ltd., (1999) 1 SCC 566; AIR 1999 SC 264;
1999 ll LJ 202.) But in selecting one out of the various meanings of a word, regard must
always be had to the context as it is a they fundamental rule that the meanings of words
and expressions used in an Act must take their colour from the context in which they
appear(Ram Narian v. State of U.P., AIR 1957 SC 18, p. 23)
Dictionary meaning of a word is not considered when a plain reading of the provision
brings out what was intended (State of Maharastra v. Praful B Desai, (2003) 4 SCC (Cri)
815: AIR 2003 SC 2053: (2003).
The view of KRISHNA AIYAR, J. is pertinent here. He said: Dictionaries are not
dictators of statutory construction where the benignant mood of a law, more emphatically,
the definition clause furnishes a different denotation.(SBI v. N. Sundara Money, AIR 1976
SC 1111, p. 1114; 1976 SCC (Lab) 132.)
Where an expression in any act has been defined, the said expression will have the
same meaning and it is not necessary to find out what is the general meaning of the

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ANANYA R. BIBAVE
expression. (United Bank of India v. Debts Recovery Tribunal,(1999) 4 SCC 69; AIR 1999
SC 1381; (1999)96 Comp. Cas.602.)The definition given in the statue is the determinative
factor. (S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596; 1996 SCC (Cri) 792; AIR 1996
SC 2184.) Too much reliance on the dictionary meaning with regard to the context is not
proper. ((2002) 3 SCC 118.).
Dictionary meaning cannot be relied upon when there is a express statutory
provision in regard to that matter.(Nagulapati Lakshmamma v. Mupparaju Subbaiah, (1998)
5 SCC 285.). But sometimes when the word is not defined in the Act, dictionaries may be
helpful, for eg, to determine the meaning of furniture dictionary meaning was relied on.
(New Chelur manufacturers (P.) Ltd.. v. CCE, (1997) 94 ELT 467.
FOREIGN DECISIONS:
Indian Courts have permitted in the interpretations of Indian statutes sobered use of
those foreign decisions of the countries which follow the same system of jurisprudence as
the Indian jurisprudence and which are rendered on statutes in pari materia.
Statutory construction must be home-spun even if hospitable to alien thinking.
( Bangalore Water Supply and Sewerage Board v. A. Rajappa, AIR 1978 SC 548, p. 599.)
There is one qualification attached to the, assistance of foreign decisions that prime
importance is always to be given to the language of the relevant Indian Statute, the
circumstances and the settings in which it is enacted in the conditions where it is to be
applied and that it is not to be forgetten that there is always an element of risk in taking
ready and hasty assistance from foreign decisions (Sales Tax Officer, Banaras v. Kanhaiya
lal Mukund Lal Saraf, Air 1959 SC 135, pp.139, 140.)
The Supreme Court is not bound by foreign (American) court decisions; they have
only a persuasive value. But if they are in consonance with Indian Law the courts can
borrow the principles laid down in foreign decisions keeping in view the changing global
scenario.(Liverpool & London S.P.& I. (2004) 9 SCC 512.)
Following are the factors which oblige the Indian Courts in taking recourse to foreign
precedents of English speaking countries:
1. Link of the English Common Law and Jurisprudence;
2. Similarity of political thought; and
3. The use of English language as authoritative text of Indian Statutes.
TEXT BOOKS:

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ANANYA R. BIBAVE
In arriving at the true meaning of an enactment of the courts may refer to the text
books also. But it is not necessary that the meaning given in the text books should
correspond to the view of the court. It is in the discretion of the court to accept or reject the
views given in the text book which was referred to by the court. There are many instances of
both rejection and acceptance of the views expressed in text books.

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ANANYA R. BIBAVE

SUBSIDIARY RULES OF INTERPRETATION


CONJUNCTIVE OR DISJUNCTIVE:
The word or is normally disjunctive and and is normally conjunctive but at times
they read as vice versa to give effect to the manifest intention of the Legislature as disclosed
from the context [Ishwar Singh Bindra v. State of U.P., AIR 1968].
According to Lord HALSBURY, the reading of or as and is not be restored to,
unless some other part of the same statute or the clear intention of it requires that to be
done.
In Ishwar Singh Bindra v. State of U.P. [AIR 1968] section 3(b)(i) of the Drugs Act,
1940 defined drugs before its amendments as: All medicines for internal or external use of
human beings or animals and all substances intended to be used for or in the diagnosis,
treatment, mitigation or prevention of disease in human beings or animals other than
medicines and substances exclusively used or prepared for use in accordance with the
Ayurvedic or Unani Systems of medicine. In this definition, the italicized word and was read
disjunctively as the context showed that it was the clear intention of the legislature.
In State of Bombay v. RMD Chamar Baugwala [AIR 1957] while dealing with section
2(d)(i) of the Bombay Lotteries and Prize Competition Control and Tax Act, 1948 the
Supreme Court read or as and to give effect to the clear intention of the legislature as
expressed in the Act read as whole.
SAME WORD SAME MEANING:
When the Legislature uses same word in different parts of the same section or
statute, there is a presumption that the word is used in the same sense throughout. But this
presumption is a weak presumption and is readily displaced by the context. Even when the
same word is used at different places in the same clause of the same section it may not
bear the same meaning at each place having regard to the context of its use [Per
Dharmadhikari, J, in Maniklal Mazumdar v. Gauranga Chandra Dey, (2004)].
In Parrell v. Alexander [1976] the more correct statement of the rule is stated thus:
where the draftsman uses the same word or phrase in similar contexts, he must be
presumed to intend it in each place to bear the same meaning.
The Supreme Court in interpreting the words the grounds on which the order has
been made as they occurred in section 3(3) and section 7(1) of the Preventive Detention
Act, 1950 held that the words did not bear the same meaning in these two provisions. Under
section 7(1), in communicating the grounds of detention to the detenu the Authority could
withhold such facts which were according to it against the public interest to disclose. While
under section 3(3), in reporting to the State Government the grounds of detention, these
facts were likely to figure more prominently.

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ANANYA R. BIBAVE
It has been held that the rule of same word same meaning may not apply under
different provisions of the same statute [CIT v. Venkateshwara Hatcheries (P.) Ltd., (1999);
AIR 1992]. It does not necessarily follow that same words used in two provisions must carry
the same meaning [CIT v. V. Venkatachalam, 1933].
USE OF DIFFERENT WORDS:
When in relation to same subject-matter, different words are used in the same
statute, there is presumption that they are not used in the same sense. Two different words
used in the same statute prima facie has to be construed as carrying different meanings.
Carrying of the same meaning by such words is an exception rather than the rule [2003].
The words under any other law for the time being in force were held to have
different meaning from the words under this Act or under any other provision of this Act
[Oriental Insurance Co. Ltd. v. Hansrajbhai v. Kodala, (2001): AIR 2001]. For example, the
Supreme Court applied this rule in the construction of the phrase rendered illegal occurring
in section 42 and the phrase held illegal occurring in section 43, 44 and 45 of the same
statute, C.P. and Berar Industrial Disputes Settlement Act. It was held that the phrase
rendered illegal bore a different meaning from the phrase held illegal [Members Board of
Revenue v. Arthur Paul Benthall, AIR 1956].
In the words of Justice VENKATARAMA AIYAR, when two words of different import
are used in a statute in two consecutive provisions, it would be difficult to maintain that they
are used in the same sense [CIT v. V. Venkatachalam, 1933].
When dealing with a long complicated statute, much weight to the presumption
arising out of use of different words in different parts of a statute cannot be given [Qualter
Hall & Co. v. Board of Trade (1961)].
RULE OF LAST ANTECEDENT:
As a corollary to the rule that phrases and sentences in a statute are interpreted
according to the grammatical meaning, relative and qualifying words, phrases and clauses
are applied to the antecedent immediately preceding. However, this rule is subordinate to
context. A qualifying phrase ought to be referred to the next antecedent which will make
sense with the context and to which the context appears to be properly related [Eastern
Countries and London and Black Wall Railway Companies v. Marriage].
In Ashwini Kumar Ghose v. Arbinda Bose [AIR 1952] section 2 of the Supreme Court
Advocates (Practice in High Courts) Acts, 1951 was construed. Section read:
notwithstanding anything contained in the Indian Bar Councils Act, 1926, or in any other law
regulating the conditions subject to which a person not entered in the roll of Advocates of a
High Court may be permitted to practice in that High Court, every Advocate of the Supreme
Court shall be entitled as of right to practice in any High Court whether or not he is an

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ANANYA R. BIBAVE
advocate of that High Court. It was held by the Supreme Court that the adjectival clause
regulating the conditions etc., qualified the word law and not the words Bar Council Act.
The views of Lord MACNAUGHTEN in an early case of Irra Waddy Flotilla Company
v. Bhagwan Das [1891] are pertinent here. In this case, section 1 of the Indian Contract Act,
1872 was construed which reads, Nothing herein contained shall effect the provisions of
any statute, Act or Regulation, not hereby expressly repeated, nor any usage or custom of
trade, nor any incident of any contact not inconsistent with the provisions of the Act. Lord
MACNAUGHTEN observed that the words not inconsistent with the provisions of this Act
are not to be connected with the clause nor any usage or custom of trade. Both, the reason
of the thing and grammatical construction of the sentence, if such a sentence is to be tried
by any rules of grammar, seem to require that the application of those words should be
confined to the subject which immediately precedes them.
This rule is subordinate to context is illustrated by a decision of the Supreme Court
relating to the construction of section 1(3)(a) of the employees Provident Fund Act, 1952.
This section read, subject to the provision contained in section 16, it (the Act) applies to
every establishment which is a factor engaged in any industry specified in Schedule I and in
which fifty or more persons are employed. The contention before the Court was that the
requirement that the workman employed should be fifty and more governed the word
industry and not the word factory. In support of this it was urged that the pronoun which,
must under the ordinary rules of grammar qualify the noun immediately preceding it and that
took it to the word industry rather than to the word factory. However, this contention was
rejected on the basis of the context and it was held that the requirement as to the prescribed
number qualified the word factory and not the word industry [Regional Provident Fund
Commissioner, Bombay v. Shree Krishna Metal Manufacturing Co. Bhandara, AIR 1962].
NON-OBSTANTE CLAUSE:
The expression non-obstante means notwithstanding. A clause beginning with
notwithstanding anything contained in this Act or in some particular provision in the Act or in
some particular Act or in any law for the time being in force, is something appended to a
section in the beginning, with a view to give the enacting part of the section in case of
conflict an overriding effect over the provision or Act mentioned in the non-obstante clause.
It is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante
clause, the enactment following it will have its full operation or that the provision indicated in
the non-obstante clause will not be an impediment for the operation of the enactment
[Parayan Kandiyal Eravath Kanaparavan Kalliani Amma v. K. Devi (1996): AIR 1996].
The very purpose of non-obstante clause is that the provision shall prevail over any
other provision and that other provision shall be of no consequence. In case of any
discrepancy between non-obstante clause and other provisions, non-obstante clause would

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ANANYA R. BIBAVE
prevail over the other clauses. Even by dictionary sense, the expression notwithstanding
implies that other provisions shall not prevail over the main provisions [Lallu Prasad and
another v. State of Bihar and other, AIR 1996].
The case of Municipal Corporation, Indore v. Ratnaprabha [AIR 1977] is very
important regarding the effect of non-obstante clause on a question of construction. In this
case, the Supreme Court considered section 138(b) of the Madhya Pradesh Municipal
Corporation Act, 1956, which enacted that the annual value of any building shall
notwithstanding anything contained in any other law for the time being in force be deemed to
be gross annual rent at which such building might reasonably at the time of assessment be
expected to let from year to year. Taking in view the non-obstante clause the Supreme
Court held that the annual letting value determined under section 138(b) need not in every
case be limited to the standard rent which might be fixed for the building under the Rent
Control Act.
In Laxminarayan Saw Mill v. State of Orissa [AIR 1995], it was held that the nonobstante clause need not necessarily and always be co-extensive with the operative part so
as to have the effect of cutting down the clear terms of the enactment. If the words of the
enactment are clear and capable of only one interpretation on a plain and grammatical
construction of the words thereof, a non-obstante clause cannot cut down the construction
and restrict the scope of its operation. The enacting part of the statute must, where it is clear
be taken to control the non-obstante clause where both cannot be read harmoniously.
LEGAL FICTIONS:
A legal fiction is one which is not an actual reality and which the law recognises and
the court accepts as a reality. Therefore, in case of a legal fiction the courts believe
something to exist which in reality does not exist. It is nothing but a presumption of the
existence of the state of affairs which in actually is non- existent. The effect of such legal
fiction is that a position which otherwise would not obtain is deemed to obtain under the
circumstances [Gajraj Singh v. State, (1997)].
Legislature can create not only one but a chain of legal fictions by the same Act
[State of W.B. v. Sadan K. Bormal, (2004): AIR 2004]. When a legal fiction is created by a
statute it must be given its full effect [Bhavnagar University v. Palitana Sugar Mill (P.) Ltd.,
(2003): AIR 2003]
In interpreting a provision creating legal fiction the court must ascertain the purpose
for which it is created and having done so to assume all such facts and consequences which
are incidental or inevitable corollaries to the giving effect to the fiction. However, the court
must not lose sign of the fact that on unforeseen event may give rise to unusual situations
[CCT v. Swarn Rekha Cokes and Coals (P.) Ltd., (2004)].

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ANANYA R. BIBAVE
Regarding the scope of application of a legal fiction, it has been held that it is to be
confined to the purpose for which the fiction was created [A. B. Krishna v. State of
Karnataka, (1998): AIR 1998].
A fiction should not be extended beyond its purpose. This is well illustrated by the
case of Union of India v. Sampat Raj Dugar [AIR 1992]. In this case, section 5(3) (ii) of the
Imports (Control) Order was construed. This section provides that It shall be deemed to be
a condition of every such license (Import license) that the goods for the import of which a
license is granted shall be the property of the licensee at the time of import and thereafter
upto the clearance through customs. The fiction created by this clause was held to be for
the proper implementation of the Import (Control) Order and the Imports and Exports
(Control) Act, 1947 and also for holding the licensee responsible for anything and everything
that happens from the time of import till the goods are cleared through customs and that the
fiction cannot be employed to attribute ownership of the imported goods to the importer in a
case where he abandons them i.e., in a situation where he does not pay and receive the
documents of title.
In Lokmat Newspapers (P.) Ltd. v. Shankarprasad [1999: AIR 1999] it was held that
while giving effect to the legal fiction for the purpose for which it is created by the legislature,
it has to be given full play for fructifying the said legislative intention.
MANDATORY AND DIRECTORY PROVISIONS:
In legal terminology where something is required to be done and the consequences
of failure to do so are also provided then it is known as mandatory provision [Ashok Kumar
Sharma v. Chandrashekhar, [1993]. There is no universal rule regarding the directory or
mandatory provisions except this that language alone most often is not decisive, and regard
must be had to the context, subject-matter and object of the statutory provision in question
in determining whether the same is directory or mandatory. Mandatory or directory does not
depend upon phraseology used in the statute but has to be determined having regard to
purpose and object of the statute [Chandrika Prasad Yadav v. State of Bihar, (2004): AIR
2004]. It is the duty of the courts to get the real intention of the legislature by carefully
attending the whole scope of the provision to be construed. The key to the opening of every
law is the reason and spirit of the law, it is the animus impotentia, the intention of the law
maker expressed in the law itself, taken as a whole [Special Reference No. 1 of 2002, In re
(Gujarat Assembly Election matter), (2002)].
The Supreme Court approved the following passage: The question as to whether a
statute is mandatory or directory depends upon the intent of the Legislature and not upon
the language in which the intent is clothed. The meaning and intention of the legislature
must govern, and these are to be ascertained not only from the phraseology of the
provision, but also by considering its nature, its design, and the consequences which would

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ANANYA R. BIBAVE
follow from construing it one way or the other [Passage from Crawford: STATUTORY
CONSTRUCTION, p. 516].
Directory and Mandatory Provisions distinguished.
In the case of mandatory enactment it is said that they must be stayed or fulfilled
exactly but in case of directory enactments only substantial compliance is sufficient.
There are two directory requirements regarding enactments:
1.
They which should be substantially complied with to make the Act valid.
2.
Even if not at all complied with they will have no effect on the Act.
The correct position appears to be that substantial compliance of an enactment is
insisting, where mandatory and directory requirements are lumped together, for in such
case, if mandatory requirements are complied with, it will be proper to say that the
enactment has been substantially complied with notwithstanding the non-compliance of
directory requirements.
A provision is not mandatory unless non-compliance with it is made penal. A
mandatory provision must be obeyed and any act done in its breach will be invalid but if it is
directory it will be valid.
It is a general rule that non-compliance of mandatory requirements results in
nullification of the Act. But there is one exception to this rule. If certain requirements or
conditions are provided by a statute in the interest of a particular person, the requirements
or conditions, although mandatory, may be waived by him if no public interest is involved
and in such a case the act done will be valid even if the requirements or condition has not
been performed.
Consequences provided by Statute.
When no failure to comply with a prescribed requirement nullification as a
consequence is provided by the statute itself, there is no doubt that such statutory
requirement must be interpreted as mandatory.
The periods prescribed in the Schedule to the Indian Limitation Act, 1963, for
bringing a legal proceeding are mandatory because the consequences of the expiry of the
period of limitation is provided by section 4 of the Act in that the Court is enjoyed to dismiss
a legal proceeding instituted after expiry of the prescribed period [Maqbool Ahmed v. Onkar
Pratap Narain Singh, AIR 1935].
Negative words.
When the command is clothed in a negative form, it suggests that there is clear
intention to consider the enacted provision as mandatory. SUBBARAO, J., observed that
negative words are clearly prohibitory and are ordinarily used as a legislative device to
make a statute imperative [M. Pentiah v. Muddala Veera Mallappa, AIR 1961].
In Lachmi Narain v. Union of India [AIR 1976] a provision requiring not less than
three months notice was held to be mandatory.

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ANANYA R. BIBAVE
Affirmative Words when imply negative.
For reading the provision as mandatory, affirmative words stand at a weaker footing
than the negative words; but affirmative words may also be so limiting as to imply a
negative. As an example the provisions of section 54, 59, 107 and 123 of the Transfer of
Property Act, 1882, prescribing modes of transfer by sale, mortgage, lease or gift may be
taken. The formalities prescribed by these provisions for effecting a transfer of the nature
mentioned in them are mandatory and the language used although affirmative clearly
imports a negative [Mian Pir Bux v. Mohamed Tahar, AIR 1934].
Use of Shall or Shall and May; Must and should.
In the words of Justice HIDAYATULLAH: The word shall is ordinarily mandatory but
it is sometimes not so interpreted if the context or the intention otherwise demands [Sainik
Motors v. State of Rajasthan, AIR 1961; UPSEB v. Shiv Mohan Singh, (2004)]
The use of the word shall is ordinarily mandatory but it is sometimes not so
interpreted if the scope of the enactment, on consequences to flow from such construction
would not so demand. The word shall, therefore, ought to be construed not according to the
language with which it is clothed but in the context in which it is used and the purpose it
seeks to serve. If by holding them to be mandatory, serious general inconvenience is
caused to innocent persons or general public, without very much furthering the object of the
Act, the same would be construed as directory [State of Haryana v. Raghubir Dayal, (1995)].
The distinction of mandatory compliance or directory effect of the language depends
upon the language in which the statute under consideration is couched and its object,
purpose and effect. The distinction reflected in the use of the word shall or may depends
on conferment of power. In certain context, may does not always mean may. May is a must
for enabling compliance of provision but there are cases in which, for various reasons, as
soon as a person who is within the statute is entrusted with the power, it becomes duty to
exercise. Where the language of statute creates a duty, the special remedy is prescribed for
non-performance of the duty.
A statute must be read in the text and its context. Whether a statute is directory or
mandatory would not be depended on the user of the words shall or may. Such a question
must be posed and answered having regard to the purpose and object it seeks to achieve.
The construction of a statute will depend on the purport and object for which the same had
been used.
Statutes Imposing Public Duty.
Where a statute imposes a public duty and also lays down the manner in which and
the time within which the duty shall be performed, injustice or inconvenience resulting from a
rigid adherence to the statutory prescription may be a relevant factory in holding such
prescriptions only directory.

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ANANYA R. BIBAVE
In Chander Mohan v. State of U.P. [AIR 1966] after having regard to the object of
securing independence of subordinate judiciary, provision for consultation with the High
Court in the matter of appointment of District Judges as enacted in Article 233 of the
Constitution, was held to be mandatory.
In Supreme Court Advocates on Record Association v. Union of India [AIR 1994] the
question of primacy of the opinion of the Chief Justice of India in the context of appointment
of Judges of the Supreme Court and High Courts, and transfer of judges of High Courts as
required by Articles 124, 217 and 222 of the Constitution was reconsidered by the Supreme
Court and the following propositions were laid down:
1.

The nature of consultation amongst the different Constitutional functionaries is an

integrated participatory consultative process and all the functionaries must act collectively to
reach an agreed decision;
2.
In the event of conflicting opinions by the Constitutional functionaries the opinion of
the judiciary symbolised by the view of the Chief Justice of India and formed in the manner
indicated has primacy;
3.
No appointment of any judge to the Supreme Court or any high Court can be made
unless it is in conformity with the opinion of the Chief Justice of India;
4.
The opinion of the Chief Justice of India has not mere primacy but is determinative in
the matter of transfer of High Court Judges.
Statutes Conferring Power.
Those statutes which confer power often contain certain express conditions for the
exercise of the conferred power and in the absence of or in addition to the express
conditions.
In Haridwar Singh v. Begum Sumbrui [AIR 1972] it has been held that in statutes
conferring a power to be exercised on certain conditions, the conditions prescribed are
normally held to be mandatory and a power inconsistent with those conditions is impliedly
negatived.
Similarly, when a corporation is conferred with a power, it impliedly authorises
everything which could be fairly and reasonably regarded as incidental or consequential to
the power conferred [V.T. Khanzode v. RBI, (1982); AIR (1982)].
The view of Lord ROCHE is pertinent here. He was considering the requirement that
a confession must be recorded in a manner prescribed by section 164, Criminal Procedure
Code, 1898, or not at all. He said that where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at all. Other methods of performance
are necessarily forbidden [Nazir Ahmad v. King Emperor, AIR 1976].
Where statutes confer power to deprive the liberty of citizens, the conditions
prescribed for the exercise of the power, including procedural requirements, must be strictly
followed.

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ANANYA R. BIBAVE
When a statute confers power upon a public official to destroy, defeat or prejudice a
persons rights, interest, or legitimate expectations, the rules of natural justice regulate the
exercise of that power unless they are excluded by plain words or necessary intendment
[Annetts v. McCann (1991)].
When a power is conferred to make subordinate legislation, it must be exercised in
conformity with the express and implied conditions contained in the empowering statute.
Therefore, an order in the nature of subordinate legislation can be challenged on the
following grounds:
1.

When powers entrusted for one purpose are deliberately used with the design of

achieving another purpose which is unauthorised or actually forbidden.


2.
The order shows on the face of it a misconstruction of the enabling Act or a failure to
comply with the conditions which the Act has prescribed for the exercise of its powers.
3.
The order is not capable of being related to any one of the prescribed purposes
[A.G. for Canada v. Hallet and Carey Ltd., (1952)].
Statute Conferring Private Rights and Benefits.
If a statute confers a concession or privilege and prescribes a mode of acquiring it,
the mode so prescribed must be adopted as even affirmative words in such cases are
construed imperative [Edwards Ramia Ltd. v. African Woods Ltd., (1960)].
If a person wants to exercise his rights of appeal he must prefer his appeal in
accordance with the statute conferring the right and if the statute requires filing of a certified
copy of decree or order appealed against along with the memo of appeal, he must do so
otherwise the appeal will become incompetent [Jagat Dhish Bhargava v. Jawahar Lal
Bhargava, AIR 1961].
CONSTRUCTION OF GENERAL WORDS:
Noscitur A Sociis.
The doctrine of noscitur a sociis (meaning of a word should be known from its
accompanying or associating words) has much relevance in understanding the import of
words in a statutory provision [CBI v. Braj Bhushan Prasad, (2001)]
According to Maxwell, this rule means that when two or more words which are
susceptible of analogous meaning are coupled together, they are understood to be used in
their cognate sense. They take as it were their colour from each other, i.e. the more general
is restricted to a sense analogous to a less general [Maxwell: INTERPRETATION OF
STATUTES, 11th edn., p. 321].
In the State of Karnataka v. union of India [AIR 1978] Article 194(3) of the
Constitution which refers to Powers, Privileges and Immunities of a House of legislature of a
State was construed. The Supreme Court held that the word Powers must take its colour
from words in immediate connection with it and that it should be construed to refer not to

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ANANYA R. BIBAVE
legislative powers but to powers of a House which are necessary for the conduct of its
business.
In a recent case of Lokmat Newspapers (P.) Ltd. v. Shankarprasad [AIR 1999]
It has been held that for the applicability of this rule two words in the statute should have
analogous meaning. Since in this case, the words discharge and dismissal used in a
statutory provision did not have the same analogous meaning, this rule did not apply.
Rule of Ejusdem Generis.
According to the Rule of ejusdem generis, when particular words pertaining to a
class, category or genus are followed by general words, they are construed as limited to the
things of the same kind as those specified [K.K. Kuchuni v. State of Madras AIR 1960].
Regarding the application of Rule of ejusdem generis it is said that the general
expression has to be read to comprehend things of the same kind as those referred to by
the preceding specific things constituting a genus, unless for the language of the statute it
can be inferred that the general words were not intended to be so limited and no absurdity
or unintended complication is likely to result if they are allowed to take their natural meaning.
The cardinal nature of interpretation is to allow the general words to take their natural wide
meaning unless the language of the statute gives a different indication or such meaning is
likely to lead to absurd results in which case their meaning can be restricted by the
application of this rule and they may be required to fall in line with the specific things
designated by the preceding words. But unless there is a genus which can be
comprehended from the preceding words, there can be no question of invoking this rule. Nor
can this rule have any application where the general words precede specific words [Asstt.
Collector of Central Excise v. Ramdev Tobacco Co., (1991); AIR 1991].
This rule applies under the following situations:
1.
When the statute contains an enumeration of specific words;
2.
The subjects of enumeration constitute a class or category;
3.
That class or category is not exhausted by the enumerations;
4.
The general terms follow the enumeration; and
5.
There is no indication of a different legislative intent [Amar Chandra v. Collector of
Excise, Tripura, AIR 1972]
The rule of ejusdem generis has to be applied with care and caution. This is not an
inviolable rule of law but it is only permissible inference, in the absence of any indication to
the contrary [Grasim Industries Ltd. v. Collector of Customs, (2002)].
In a case before him Justice HIDAYATULLAH explained the principle of ejusdem
generis by giving the following illustration:

In the expression books, pamphlets,

newspapers and other documentaries, private letters may not be held included if other
documents be interpreted ejusdem generis with what goes before. But in a provision which
reads newspapers or other documents, likely to convey secrets to the enemy, the words
other documents would include document of any kind and would not take their colour form
newspaper [Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., AIR 1964].

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ANANYA R. BIBAVE
The rule ejusdem generis is merely a canon of construction like many other rules
which gives way to the clear intention of the legislature. It also appears that this rule has no
inverse application. General words proceeding the enumeration of specific instances are not
governed by this rule and their import cannot be limited by any such principle.
In State of Karnataka v. Kempaiah [(1998) AIR 1998] it was held that the rule of
ejusdem generis which is an exception to the rule of construction the general words should
be given their full and natural meaning was enunciated by Lord CAMPBELL in R. v.
Edmundson [1859], .. where there are general words following particular and specific
words the general words must be confined to things of the same kind as those specified.
Words of Rank.
According to the rule of word of rank, the statutes which deals with persons or
things of inferior rank are not extended to those of superior degree by introduction of general
words and the general words following particular words will not cover anything of a class
superior to those to which the particular words relate. For example, a duty imposed on
copper, brass, pewter, and tin and all other metals not enumerated did not cover silver or
gold as these are metals of a superior kind to the particular metals enumerated [Casher v.
Holmes, (1831)].
Reddendo Singula Singulis
Where there are general words of description, following an enumeration of particular
things such general words are to be construed distributively, reddendo singula singulis; and
if the general words will apply to some things and not others, the general words are to be
applied to those things to which they will, and not to those to which they will not apply; that
rule is beyond all controversy [M Neill v. Crommelin, (1858)].
Osbornes Concise Dictionary gives an example of reddendo singula singulis as I
devise and bequeath all my real and personal property to A will be construed reddendo
singula singulis by applying devise to real property and bequeath to personal property [7th
edn., p. 281].
The rule has been applied in the construction of the Proviso to Article 304 of the
Constitution which reads: Provided that no Bill or amendment for the purpose of clause (b)
shall be introduced or moved in the legislature of a State without the previous sanction of
the President. It was held by the Supreme Court that the word introduced referred to Bill
and the word moved to Amendment [Koteshwar Vittal Kamath v. K. Rangappa Baliga &
Co., AIR 1969].

STATUTES AFFECTING THE JURISDICTION OF


COURTS
GENERAL PRINCIPLES:
General principles regarding statutes affecting jurisdiction of courts will be discussed

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ANANYA R. BIBAVE
under four sub-headings:
A.
B.
C.
D.

Exclusion must be explicitly expressed or clearly implied.


Three classes of cases.
Cases of breach of statutory duties.
Omission to exercise statutory power.

A. Exclusion must be Explicitly Expressed or Clearly Implied:


The provisions excluding jurisdiction of civil courts and provisions conferring
jurisdiction on authorities other than civil courts are strictly construed.
There is a strong presumption that civil courts have jurisdiction to decide all
questions of civil nature. Therefore, the exclusion of jurisdiction of civil courts is not to be
readily inferred and such exclusion must either be explicitly expressed or clearly implied.
For a court which would otherwise have jurisdiction in respect of the subject-matter
concerned, ouster cannot be implied. Ouster must be express [Bhatia International v. Bulk
Trading S.A., (2002); AIR 2002].
The existence of jurisdiction in civil courts to decide questions of civil nature is the
general rule and exclusion is an exception of this rule. Therefore, the burden of proof to
show that jurisdiction is excluded in any particular case is on the party who raises such a
contention [Ramayya v. Laxminarayan, AIR 1934].
Criminal courts are also courts of general jurisdiction and exclusion of jurisdiction of
ordinary criminal courts can be brought about by setting up courts of limited jurisdiction in
respect of the limited field, but only if the vesting and the exercise of that limited jurisdiction
is clear and operative and there is an adequate machinery for the exercise of limited
jurisdiction [Bhimsen v. State of U.P., AIR 1955].
It has been held that like other rules of construction the rule against exclusion of
jurisdiction of courts is attracted only where two or more reasonably possible construction
are open on the language of the statute and not where the legislative intent is plain and
manifest to oust the jurisdiction [Kilhota Hollohan v. Zachilhu, AIR 1993].
It has been held that a suit to evict a tenant whose tenancy has expired by efflux of
time is also a suit to enforce a right under section 108(q) of Transfer of Property Act and is
not a suit solely arising from a contract and is not barred [Raptakos Brett & Co. v. Ganesh
Property, AIR 1998].
An example of statutory ouster of jurisdiction is found in Arbitration and Conciliation
Act, 1996. Section 2(1)(f) of the Arbitration and Conciliation Act defines an international

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ANANYA R. BIBAVE
commercial arbitration and makes no distinction between international commercial
arbitrations which takes place in India or international commercial arbitrations which take
place outside India. S. 2(1)(e) defines court but does not provide that the courts in India will
not have jurisdiction if an international commercial arbitration takes place outside India. It
was held that the courts in India would have jurisdiction even in respect of an international
commercial arbitration. An ouster of jurisdiction cannot be implied, it has to be expressed
[Bhatia International v. Bulk Trading S.A., (2002); AIR 2002].
B. Three Classes of Cases:
WILLES, J. stated: There are three classes of cases in which a liability might be
established, founded upon statute. One is where there was a liability existing at common
law, and that liability is affirmed by a statute which gives a special and peculiar form of
remedy different from the remedy which existed at common law; there, unless the statute
contains words which expressly or by necessary implication exclude the common law
remedy, the party suing has his election to pursue either that or the statutory remedy. The
second class of cases is, where the statute gives the right to sue merely, but provides no
particular form of remedy; the party can only proceed by action at common law. But there is
a third class, viz., where a liability not existing at common law is created by a statute which
at the same time gives a special and particular remedy for enforcing it-The remedy provided
by the statute must be followed, and it is not competent to the party to pursue the course
applicable to cases of the second class [Wolverhampton New Waterworks Co. v.
Hawkesford, (1859)].
A statute falling in the second of three classes of cases mentioned by WILLES, J.
prescribes no special remedy and whether it creates new rights and liabilities or regulates
the already existing ones, the normal remedy through the medium of civil courts, which are
courts of general jurisdiction remains always open [Section 9, Code of Civil Procedure,
1908].
For the first and third of three classes of cases, it has to be ascertained whether the
statute in question deals with and regulates an already existing right or liability or whether it
creates a new right or liability which has no existence apart from the statute. If the statute is
of the first category, the special remedy provided therein, subject to any provision for the
exclusion of ordinary remedy, will only be construed as an alternative one [Northern Indian
Caterers Ltd. v. State of Punjab, AIR 1967].
In Rohtas Industries Ltd. v. Rohtas Industries Staff Union [AIR 1976] it was held that
for wrongs created by the Act the only remedy is what is provided in the Act. Therefore, in

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ANANYA R. BIBAVE
case of a strike which is illegal the employer can have the workers punished under section
26 but he has no right to claim compensation for loss of business caused by the illegal
strike.
In Akbar Khan v. union of India [AIR 1962] it was said that it is not correct to say that
the legislature takes away civil courts jurisdiction only when a new right is created by
statute, and a tribunal is set up for determination of that right, for by the use of appropriate
words jurisdiction may be excluded in other cases also.
C. Cases of Breach of Statutory Duties:
There is no universal rule by reference to which the question of maintainability of civil
action can infallibly be answered.
In the words of Lord TENTERDEN, C.J., When an Act creates an obligation and enforces
the performance in a specified manner; we take it to be a general rule that performance can
not be enforced in any other manner. If a obligation is created but no mode of enforcing its
performance is ordained, the common law may, in general find a mode suited to the
particular nature of the case [Doe d. Bishop of Rochester v. Bridges,].
The Supreme Court accepted this principle in Premier Automobiles Ltd.s case
[Premier Automobiles Ltd. v. Kamlakar Shantaram, AIR 1975; (1976)].
When a statute creating the duty provides for the penalty of fine or imprisonment for
breach of the duty it is regarded as the only manner of enforcing the duty.
In Black v. Fife Coal Co. Ltd. [1912], the Coal Mines Regulation Act, 1887 imposed
on the mine owners the duty to make due provision for safety of worker in the mines. Lord
KINNEAR here observed: There is no reasonable ground for maintaining that a proceeding
by way of penalty is the only remedy by the statute. We are to consider the scope and
purpose of the statute and in particular for whose benefit it is intended. Now the object of the
present statute is plain. It was intended to compel mine owners to make due provision for
the safety of the men working in their mines and the persons, for whose benefit all these
rules are to be enforced, are the persons exposed to danger. But when a duty of this kind is
imposed for the benefit of particular persons, there arises at common law a correlative right
in those persons who may be injured by its contravention. Therefore, it is quite impossible to
hold that penalty clause detracts in any way from the prima facie right of persons for whose
benefit the statutory enactment has been passed to enforce the civil liability.

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ANANYA R. BIBAVE
In another case, ORourke v. Camden London Borough Council [1997] it was held
that section 63 of the Housing Act, 1985 designed to provide accommodation for homeless
persons did not give rise to a cause of action for damages in private law. The factors that
were taken into account in reaching the conclusion that the Parliament did not intend that a
breach of duty to provide accommodation to homeless was actionable in tort were:

The duty was enforceable in public law by individual homeless persons.


The Act was a scheme of social welfare on grounds of public policy and public
interest to confer benefits at the public expense not only for the benefit of homeless

but the society in general; and


The existence of the duty depended on the housing authoritys judgment and
discretion.

D. Omission to exercise statutory power:


Subject to exceptional case, the normal rule is that an omission by a public authority
to exercise a statutory power conferred for the benefit of the public does not give rise to
breach of duty sounding in damages. An example can be taken of the case of Stovin v. Wise
[1996] in which a motor accident took place at a road junction partly because the view was
obstructed by an earth bank adjacent to the road. Although under sections 41 and 79 of the
Highways Act, 1980 the local authority has statutory power to remove the earth bank but it
took no steps in that direction. It was held by the House of Lords that there was no common
law duty on the authority to exercise the power and omission to exercise it did not give rise
to a claim for damages in negligence. It was laid down that minimum preconditions for
basing a duty of care upon the existence of statutory power in respect of an omission to
exercise the power, if it could be done at all, were:
a. That in the circumstances it would have been irrational for the authority not to have
exercised the power, so that in effect there was a public law duty to act and
b. That there were exceptional grounds to hold that the policy of the statute conferred a right to
compensation on persons who suffered loss if the power was not exercised.
THE EXTENT OF EXCLUSION:
A. Construction of Exclusionary Clauses.
B. Cases of Nullity.
C. Rules of Conclusive Evidence.
A. Construction of Exclusionary Clauses.
The absence of a provision to enable an authority or tribunal for holding an inquiry on
a particular question is indicative that jurisdiction of civil courts on that question is not
excluded. It has been held that the very provision setting up hierarchy of judicial tribunals for

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ANANYA R. BIBAVE
the determination of a question is sufficient in most cases for inferring that the jurisdiction of
the civil courts to try the same matter is barred [Desika Charyulu v. State of A.P., AIR 1964].
It has been held in a case that when jurisdiction of the civil courts on a particular
matter is excluded by transferring that jurisdiction form civil courts to tribunals or authorities,
it is presumed that such tribunals or authorities can draw upon that principles of procedures
in Civil Procedure Code, though not expressly made applicable, to ensure fair procedure
and just decision unless such principles are inconsistent with the provisions of the Act
constituting them [Rajasthan State Road Transport Corpn. v. Poonam Pahwa, AIR 1997].
The legal position as summed up in HALSBURYS LAWS OF ENGLAND is as
follows:
It is the duty of persons upon whom statutory powers are conferred to keep strictly within
those powers. If such persons act in excess of their powers, they are to the extent to which
they exceed their powers, deprive of any protection conferred upon them by the statute in
question, and will be subject to the ordinary remedies existing at common law. An injunction
may be granted to restrain an act in excess of statutory powers and a person injured by
such an act may be entitled to recover damages from the persons purporting to exercise the
power [Halsburys Laws of England, 3rd edn., Vol. 30, pp. 686, 687].
In Mafatlal Industries Ltd. v. Union of India [1996; 1996; 1997] in dealing with refund
provisions in the Central Excises and Salt Act, 1944 and Customs Act, 1962, a nine Judge
Bench of the Supreme Court by majority laid down the following general propositions:

A claim for refund of tax on the ground that it has been collected by misinterpreting or
misapplying the provisions of a taxing Act or the rules and notifications made there under
has to be preferred in accordance with the provisions of the Act before the Authorities

and within the limitations specified therein and no suit is maintainable in that behalf.
Where a refund is claimed on the ground that the provision of the Act under which it was
levied is or has been held to be unconstitutional, the claim can be made by a suit or by

way of a writ petition for such a claim is outside the purview of the Act; and
A claim for refund can succeed only when the claimant establishes that he has not
passed on the burden of the tax to others.
The extent of exclusion is really a question of construction of each particular statute.

In the matters of construction, the applicable general principles are subordinated to the
actual words used by the legislature.

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ANANYA R. BIBAVE
Article 356 of the Constitution proves that if the President is satisfied that a situation
has arisen in which the Government of the State cannot be carried on in accordance with
the provisions of the Constitution the President may by proclamation:

Assume to himself the functions of the Government of the State.


Declare that the powers of the State Legislature shall be exercised by the Parliament;

and
Make such incidental or consequential provisions as may be necessary to give effect to
the objects of the Proclamation.
Before the 44th Amendment Act the Article further provided that the satisfaction of the

President shall be final and conclusive and shall not be questioned in any court of law. In
State of Rajasthan v. Union of India [AIR 1977;(1977)] the Supreme Court held that if the
satisfaction of the President is based on wholly extraneous grounds which have no nexus
with the action taken, the Proclamation can be challenged in a court of law on the ground
that the President acted without the required satisfaction in issuing the Proclamation, for
satisfaction based on wholly irrelevant grounds amounts to no satisfaction. However, if there
are some grounds which bear some relevance or nexus to the action taken the sufficiency of
satisfaction cannot be challenged in a court of law.
B. Cases of Nullity:
A question is often asked, When can order passed by a tribunal or authority of
limited jurisdiction be held to be a nullity? The answer is supplied by the original or pure
theory of jurisdiction. The jurisdiction of a tribunal is determinable at the commencement of a
proceeding and if jurisdiction is properly assumed any order passed thereafter will be within
jurisdiction and conclusive though it may be erroneous in fact or law. The pure theory of
jurisdiction gave place to modern theory of jurisdiction according to which defects of
jurisdiction can arise even during or at the conclusion of a proceeding. The courts make a
distinction between jurisdictional questions of fact or law and questions of fact or law which
are not jurisdictional. If a question of fact or law is jurisdictional, the tribunal though
competent to inquire into that question cannot decide it conclusively, and a wrong
determination of such a question results in making the final decision in excess of jurisdiction.
But if a question of fact or law is non-jurisdictional, the tribunals decision is final and
conclusive. In other words, it can be said that a tribunal cannot by a wrong determination of
a jurisdictional question of fact or law exercise a power which the legislature did not confer
upon it [R. v. Shoredich Assessment Committee, (1910)]. However, in this theory the
demarcation between jurisdictional and non-jurisdictional questions of fact or law is not
clear.

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In Ujjam Bai v. State of U.P. [AIR 1962] it was held that adjudication by a tribunal of
limited jurisdiction is void, when

Action is taken under an ultra vires statute;


The subject-matter of adjudication is beyond its competence or the order passed is such

which it has no authority to pass.


The adjudication is procedurally ultra vires being in violation of fundamental principles of

judicial procedure, and


Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.
A consideration of following points is relevant here:

1. An exclusionary clause using the formula an order of the tribunal under this Act shall not
be called in question in any court ineffective to prevent the calling in question of an order of
the tribunal if the order is really not an order under the Act but a nullity.
2. Cases of nullity may arise when there is lack of jurisdiction at the stage of
commencement of enquiry e.g., when
Authority is assumed under an ultra vires statute;
Tribunal is not properly constituted;
The subject-matter or the parties are such over which the tribunal has no authority to

inquire; and
There is want of essential preliminaries prescribed by the law for the commencement of

the inquiry.
3. Cases of nullity may also arise during the course or at the conclusion of the inquiry. These
cases are also cases of want of jurisdiction if the word jurisdiction is understood in a wide
sense. Some examples of these cases are:
When the tribunal has wrongly determined a jurisdictional question of fact or law;
When it has failed to follow the fundamental principles of judicial procedure;
When it has violated the fundamental provisions of the Act;
When it has acted in bad faith; and
When it grants a relief or makes an order which it has no authority to grant or make

[Bhupendra Singh v. G.K. Umath, AIR 1970].


Later on, another category (f) was also added after category (e) i.e.,
When by misapplication of the law it has asked itself the wrong question [OReilly v.
Mackman, 1982].

C. Rule of Conclusive Evidence.


By enacting rules of conclusive evidence or conclusive proof, the legislature may
make certain matters non-justiciable. For example, if by legislature command proof of A is
made conclusive evidence or conclusive proof of B, the moment existence of A is
established the Court is bound to regard the existence of B as conclusively established and
evidence cannot be let in to show the non-existence of B. In effect the existence or non-

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ANANYA R. BIBAVE
existence of B after proof of A ceases to be justiciable [Lilavati Bai v. Bombay State, AIR
1957].
The effect of a conclusive evidence clause is subject at least to two qualifications:

A conclusive evidence clause may be held to be invalid as an unreasonable restriction of

the fundamental rights.


The insertion of such clause in statutes conferring power may fail to shut out basic
defect of jurisdiction in exercise of the power. It may also be ineffective to bar an attack
on the ground of fraud or colourable exercise of power.

EXCLUSION OF JURISDICTION OF SUPERIOR COURTS:


The jurisdiction conferred by the Constitution can be taken away only by amending
the Constitution and not by statutory enactments.
In Kilhota Hollohon v. Zachilhu [AIR 1993] it has been held that even a provision in
the Constitution conferring finality to the decision of an authority is not construed as
completely excluding judicial review under Article 136, 226 and 227 of the Constitution but
limiting it to jurisdictional errors viz., infirmities based on violation of constitutional mandate,
mala fides, non-compliance with rules of natural justice and perversity.
If the Legislature states that the decision or order of a court or tribunal shall be final
and conclusive, the remedies available under the Constitution remain unfettered [Raj
Krushna Bose v. Viond Kanungo, AIR 1954].
The High Courts of India apart from exercising supervisory powers under the
Constitution exercise a similar power under Section 115 of the Code of Civil Procedure,
1908, over all subordinate courts. This power of revision under section 115, which can be
excluded by legislative enactments, is construed as not readily excluded except by express
provision to that effect.

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OPERATION OF STATUTES

COMMENCEMENT:
Commencement of Act means the day on which the Act comes into force [Section
3(13), General Clauses Act, 1879]. Unless otherwise provided, a Central Act comes into
operation on the day it receives the Presidential Assent and is construed as coming into
operation immediately on the expiration of the day preceding its commencement [Section 5,
General Clauses Act, 1879].
A State Act comes into force on the day when the assent of the Governor or the
President, as the case may be, is first published in the Official Gazette of the State.
Unless the Act is brought into operation by Legislative enactment or by the exercise
of authority by a delegate empowered to bring it into operation, an Act cannot be said to
commence or to be in force [State of Orissa v. Chandrashekhar Singh, AIR 1970]. Power to
bring into force an Act can be exercised by the delegate even though the legislature may
have ceased to be competent to enact the Act, if it was within the competence of the
legislature at the time of its enactment [Ishwar Das v. Union of India, 1972].
The commencement of an Act is often postponed to some specified future date or to
such date as the appropriate Government may, by notification in the Official Gazette,
appoint. Sometimes different dates are also appointed for enforcement of different parts of
the same Act.
An Act which is not applicable to an area or a State cannot be applied there by
judicial fiat. But if the fact situation of the case so requires and a provision in such an Act
embodies a principle of justice, equity and good conscience, the principle so embodied may
be applied to a case arising from an area or State to which the Act originally does not extend
[Panchugopal Barua v. Umesh Chandra Goswamy, 1997; AIR 1997].
A provision in a Bill does not come into operation unless the enacting process is over
and the resulting Act containing that provision is brought into operation. However, an Act can
provide that certain provisions of a Bill on given subject will come into operation on their
introduction in the legislature.
RETROSPECTIVE OPERATION:
General Principles:
It is a cardinal principle of construction that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have a retrospective operation.
But the rule in general is applicable where the object of the statute is to affect vested rights
or to impose new burdens or impair existing obligations. Unless there are words in the
statute sufficient to show the intention of the legislature to affect existing rights, it is deemed

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ANANYA R. BIBAVE
to be prospective only. The maxim nova constitutio futuris formam imponere debet non
praeteritis applies i.e., a new law ought to regulate what it is to follow, not the past.
The absence of a provision expressly giving a retrospective operation to the
legislation is not determinative of its prospectivity or retrospectivity.
Four facts are held to be relevant here:

General scope and purview of the statute;


The remedy sought to be applied;
The former state of law; and
What it was the legislature contemplated [Zile Singh v. State of Haryana, (2004)].

Power to Make Retrospective Laws:


The Union Parliament and the State Legislature have plenary power of legislation
within the fields assigned to them. These two can, subject to certain Constitutional
restrictions, legislate prospectively as well as retrospectively. Parliament and Legislatures
competence to make a law for a past period on a subject depends upon their present
competence to legislate on that subject. The power to make retrospective legislation enables
the Legislature to obliterate an amending Act completely and restore the law as it existed
before the amending Act [State of T.N. v. Arroran Sugars Ltd., AIR 1997]. The legislature
may make a law by retrospective legislation which is operative of a limited period prior to the
date of its coming into force and is not operative either on that date or in future [P.
Kannadasan v. State of T.N., AIR 1996].
This power of retrospective legislation is often utilized for validating prior executive
and legislative acts curing those defects which made them invalid. It is not necessary for
curing the defect that the same legislature which had passed the earlier invalid Act should
by retrospective legislation make the Act valid.
The statute affecting vested rights has been held to be construed prospectively [Shiv
Shakti Co-op. Housing Society v. Swaraj Developers, (2003): AIR 2003].
Statutes dealing with Substantive Rights:
Lord BLANESBURG observed that, provisions which touch a right in existence at
the passing of the statute are not be applied retrospectively in the absence of express
enactment or necessary intendment [Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi, AIR
1972].
It is a cardinal principle of construction that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have retrospective operation
[Keshavan v. State of Bombay, AIR 1951; State of M.P. v. Rameshwar Rathod, AIR 1990].
It requires that a close attention must be paid to the language of the statutory
provision for determining the scope of the retrospectivity intended by Parliament [Union of
India v. Raghubir Singh, AIR 1989]. But if the literal reading of the provision giving
retrospectivity produces absurdities and anomalies, a case not prima facie within the words

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ANANYA R. BIBAVE
may be taken to be covered, if the purpose of the provision indicates that the intention was
to cover it [Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR 1990].
Presumption against retrospectivity may be rebutted by necessary implication
especially in a case where the new law is made to cure an acknowledged evil for the benefit
of the community as a whole [Mithilesh Kumari v. Prem Bihari Khare, AIR 1989].
Only in some cases, a distinction is made between an existing right and a vested
right and it is said that the rule against retrospective construction is applied only to save
vested rights and not existing rights.
Statutes dealing with Procedure:
In the words of Lord DENNING: The rule that an Act of Parliament is not to be given
retrospective effect applies only to statutes which affect vested rights. It does not apply to
statutes which only alter the form of procedure or the admissibility of evidence, or the effect
which the courts give to evidence [Blyth v. Blyth, (1966)].
In contrast to statutes dealing with substantive rights, statutes dealing with merely
matters of procedure are presumed to be retrospective unless such a construction is
textually inadmissible [Gurbachan Singh v. Satpal Singh, AIR 1990].
Maxwell expressed the rule in the following words: No person has a vested right in
any course of procedure. He has only the right of prosecution or defense in the manner
prescribed for the time being by or for the court in which the case the pending, and if, by an
Act of Parliament the mode of procedure is altered, he has no other right than to proceed
according to the altered mode.
Recent Statements of the rule against Retrospectivity:
In recent years, the rule against retrospective operation has been stated avoiding the
classification of statutes into substantive and procedural and avoiding use of words like
existing or vested. For example, in Secretary of State for Social Security v. Tunnicliffe, the
simple statement of the rule was made by STAUGHTON L.J. in the following words:
The true principle is that the Parliament is presumed not to have intended to alter the law
applicable to past events and transactions in a manner which is unfair to those concerned in
them unless a contrary intention appears. It is not simply a question of classifying an
enactment as retrospective or not retrospective. Rather it may well be a matter of degreethe greater the unfairness, the more it is to be expected that the Parliament will make it clear
if that is intended [1991].
STATUTES RELATING TO SUCCESSION:
When any statute regulates the order of succession, it applies only to those
successions, which open after the coming into force of law that alters the order of
succession. Those statutes which regulate the succession are not applicable to already
opened successions because of the effect of its application will be to divest the estate from
person in whom it had become vested prior to coming into force of the new statute.

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Example can be taken here that of section 8 of the Hindu Succession Act, 1956. This
section enacts that the property of a male Hindu dying intestate shall devolve according to
the provisions of the Act. It was held that where succession opened before the Act, it will not
apply [Eramma v. Veerupana, AIR 1966]. However, in Daya Singh v. Dhan Kaur [AIR 1974] it
was applied to the case of a female limited owner who died after the Act but the male to
whom she had succeeded had died prior to the Act.
STATUES RELATING TO TRANSFERS AND CONTRACTS:
Those statutes which prescribe formalities for effecting a transfer are not applicable
to transfer made prior to their enforcement. Similarly statues dispensing with formalities
which were earlier necessary for making transfers have not the effect of validating transfer
which were lacking in these formalities and which were made prior to such Statutes [Mata
Prasad v. Nageshwari Sahai, AIR 1925].
However, certain posterior laws seriously affect the performance of existing contracts
and the most common example of such posterior laws is where a contract is frustrated by
supervening impossibility brought about by subsequent statutes or by Governmental steps
taken under them [Satyabrata v. Mugneeram, AIR 1954].
It has been held that a statute altering existing contracts and retrospective in that
sense need not necessarily be construed to be so retrospective as to affect a breach of
contract or its consequences which had taken place before its operation [Gardner & Co. v.
Cone, (1928)].
STATUTES OF LIMITATION:
Section 30 of the Limitation Act, 1963 provides that when a later Act enacts shorter
periods, it is usual to postpone its coming into effect for some reasonable time, or to make
provision for a time gap within which the benefit of the earlier Act can be taken [Section 30,
Limitation Act, 1963 (Act 36 of 1963)].
Therefore, the statutes of limitation are retrospective in so far they apply to all legal
proceedings brought after their operation for enforcing causes of action accrued earlier, but
they are prospective in the sense that they neither have the effect of reviving a right of action
which was already barred on the date of their coming into operation, nor do they have the
effect of extinguishing a right of action substituting on that date. However, a statute by,
express or implied provision, may revive a barred claim by retrospectively extending
limitation.
FISCAL STATUTES:
Fiscal legislation imposing liability is generally governed by the normal presumption
that it is not retrospective [Halsburys Laws of England, 3rd edn., Vol. 36, p. 425].
It is a cardinal principle of tax law that the law to be applied is that in force in the
assessment year unless otherwise provided expressly or by necessary implication.

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Assessment creates a vested right and an assessee cannot be subjected to reassessment
unless a provision to that effect inserted by amendment is either expressly or by necessary
implication retrospective [Controller of Estate Duty Gujarat-I v. M.A. Merchant, AIR 1989].
In Banarsidas v. ITO, Distt. IV, Calcutta [AIR 1964] it was held that a provision which
in terms is retrospective and has the effect of opening up liability which had become barred
by lapse of time, will be subject to the rule of strict construction.
PENAL STATUTES:
Penal statues are generally considered prospective. Those penal statutes which
create offences or which have the effect of increasing penalties for existing offences will only
be prospective by reason of the Constitutional restriction imposed by Article 20 of the
Constitution [W. Ramnad Electric Distribution Co. Ltd. v. State of Madras, AIR 1962].
When an Act creates a new offence it will bring into its fold only those offenders
which commit all ingredients of the offence after the Act comes into operation.
REMEDIAL STATUTES:
A prospective disqualification under a statute results from anterior misconduct, is not
always taken as sufficient to make the statute retrospective. Similarly the fact that a
prospective benefit under a statutory provision is in certain cases to be measured by or
depends on antecedent facts does not necessarily make the provision retrospective [Master
Ladies Tailors Organisation v. Ministry of Labour, (1950)].
In a case, section 2(4) of the Hindu Womens Right to separate Residence and
Maintenance Act, 1946 was considered. This section entitled a Hindu Married Woman to
claim separate residence and maintenance from her husband if he marries again. It was
held that this would only apply to cases where the husband married again after the date on
which the Act comes into force [Sukhribai v. Pohkal Singh, AIR 1950].
Since remedial statutes are to be construed liberally, the inhibition of the rule against
retrospective construction may be applied with less insistence [Corpus Juris Secundum, Vol.
82, Art. 416, pp. 992, 993]. Those statutes which provides for new remedies for enforcement
of existing rights will apply to future as well as past cause of action because such statutes
do not affect existing rights and are, therefore, classified as procedural.
STATUTES REGULATING APPEALS:
The right of appeal has been recognised by judicial decisions as a right which vests
in a suitor at the time of institution of original proceedings. An appeal is defined as the right
of entering a superior court and invoking its aid and interposition to redress an error of the
court below.
The Supreme Court applied this principle in Garikapati v. Subbiah Choudhary [AIR
1957] and the following five propositions were deduced here:

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ANANYA R. BIBAVE

The legal pursuit of remedy, suit, appeal and second appeal are really but steps
in a series of proceedings all connected by a intrinsic unity and are to be

regulated as one legal proceeding;


The right of appeal is not a mere matter of procedure but is a substantive right;
The institution of the suit carries with the implication that all rights of appeal then

in force are preserved to the parties thereto till the rest of the carrier of the suit;
The right of appeal is a vested right and such a right to enter the superior court
accrues to the litigant and exists as on and from the date the lis commences and
although it may be actually exercised when the adverse judgment is pronounced,
such right is to be governed by the law prevailing at the date of the institution of
the suit or proceeding and not by the law that prevails at the date of its decision

or at the date of filing appeal;


This vested right of appeal can be taken away only by a subsequent enactment if
it

so

provides

or

by

necessary

intendment

and

not

otherwise.

DECLARATORY STATUTES:
In the words of Craies, For modern purposes a declaratory Act may be defined as
an Act to remove doubts existing as to the common law, or the meaning or effect of any
statute. Such Acts are usually held to be retrospective. The usual reason for passing a
declaratory Act is to set aside what Parliament deems to have been a judicial error, whether
in the statement of the common law or in the interpretation of statutes. Usually, if not
invariably, such an Act contains a preamble, and also the word declared as well as
enacted [Craies; STATUTE LAW, 7th edn., p. 58].
If a statute is curative or merely declaratory of the previous law, retrospective
operation is generally intended [Channan Singh v. Jai Kaur, AIR 1970].
It is settled that an amending Act may be purely clarificatory to clear a meaning of a
provision of the principal Act which was already implicit. A clarificatory amendment of this
nature has retrospective effect and, therefore, if the principal Act was the existing law when
the Constitution came into force, the amending Act will also be part of the existing law
[Punjab Traders v. State of Punjab, AIR 1990].
PENDING PROCEEDINGS:
Alternation in matters of procedure:
As a litigant has no vested right in any matter of procedure, alterations in procedural
law are generally held to be retrospective in the sense that they apply to future as well as to
pending actions.
In Blyth v. Blyth [1966] section1 of the Matrimonial Causes Act, 1963 was construed.
This section enables rebuttal by evidence of presumption of condonation arising from martial
intercourse. This section has been held to be procedural and applicable to a pending divorce
proceeding irrespective of the date of events to which the evidence might be directed.

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Section 342-A of the Code of Criminal Procedure, 1898, introduced by amending Act
26 of 1954 was construed in Anant Gopal Sheorey v. State of Bombay [AIR 1958]. This
section enacted that any accused person shall be a competent witness and may give
evidence on oath in disproof of the charges. It was held to be applicable to a prosecution
which was pending at the time the amending Act came into force.
Alterations of Substantive Rights:
In the words of S. R. DAS, C.J.: The golden rule of construction is that, in the
absence of anything in the enactment to show that it is to have retrospective operation, it
cannot be so construed as to have the effect of altering the law applicable to a claim in
litigation at the time when the Act was passed [Gorikapati v. N. S. Chaudhary, AIR 1957].
Any retrospective statute which affects rights in existence is not readily construed to
affect adjudication of pending proceedings. Courts have leaned very strongly against
applying a new Act to pending action, when the language of the statute does not compel
them to do so [United Prainces v. Atiqa Begum, AIR 1941].
In Venugopala v. Krishnaswami, [AIR 1943] section 46(2) of the Government of India
Act, 1935 was construed which enacted that Burma shall cease to be a part of India. This
section was construed not to affect the continuance of pending action in an Indian Court
which related to properties situated in Burma.
A new law which brings about a change in the forum law does not affect pending
actions, unless a provision is made in it for change over of proceedings or there is some
other clear indication that pending actions are affected [Mohd. Idris v. Sat Narain, AIR 1966].
While the suit against the ruler of an Indian State was pending, section 87-B was
inserted in Civil Procedure Code, 1908 by amending Act II of 1951 in the case of Mohanlal v.
Swai Mansinghji, [AIR1962]. This section applied to rulers of former Indian States and
provided that No ruler of a foreign State may be sued. The Supreme Court held that this
provision applied also to pending suits for the word sued embraced not only the institution
but also continuance of previously instituted suit and the ban of the section operated for
both.
Both in Mithilesh Kumari v. Prem Bihari Khare [AIR 1989] and Duvuru Jaya Mohan
Reddy v. Alluru Naga Reddy [AIR 1994] the Supreme Court took the notice of Benami
Transactions (Prohibition) Act, 1988 and allowed the appeals and decreed the suits. In
Mithileshs case a suit was filed by the real owner against the benamidar for declaration of
his title in respect of a house which was decreed. The decree was confirmed by the High
Court. When the defendant appealed to the Supreme Court by special leave and appeal
was pending there, the Benami Transaction (Prohibition) Act, 1988 came into force. Section
4(1) of this Act provided that no suit to enforce any right in respect of any property held

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ANANYA R. BIBAVE
Benami shall lie by or on behalf of a person claiming to be the real owner. The Supreme
Court took notice of the Act and dismissed the suit.

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ANANYA R. BIBAVE

EXPIRY AND REPEAL OF STATUTES

PERPETUAL AND TEMPORARY STATUTES:


A statute may be perpetual or temporary. A statute becomes perpetual when no time
is fixed for its duration, and such a statute remains in force until it is repealed either by
express provision or by implication. A perpetual statute is not perpetual in the sense that it
cannot be repealed but it is perpetual because it is not abrogated by efflux of time or by nonuser.
A statute is temporary when its duration is for a specified time and it expires on the
expiry of the specified time unless it is repealed earlier. If the purpose of a statute is
temporary the statute cannot be regarded as temporary when no fixed period is specified for
its duration. After a temporary statute expires, it cannot be made effective by merely
amending the same. Revival of the expired statute can be done only by re-enacting a statute
in similar terms or by enacting a statute expressly saying that the expired Act is herewith
revived.
EFFECT OF EXPIRY OF TEMPORARY STATUTES:
Section 6 of the General Clauses Act, 1897 which in terms is limited to repeals is not
applied when a temporary statute expires. The effect of expiry depends upon the
construction of the Act. This topic can be taken up under the following sub-headings:
A. Legal proceedings under expired statute.
B. Notifications, Orders, Rules etc. made under temporary statute.
C. Expiry does not make the statute dead for all purposes.
D. Repeal by a temporary statute.
A. Legal proceedings under expired statute:
A question often arises whether the legal proceedings under the expired statutes can
be initiated or continued after the Act has expired. Very often the Legislature itself enacts a
saving provision in the temporary Act which is similar in effect to section 6 of the General
Clauses Act, 1897. However, if such a saving provision is not present the normal rule is that
proceedings taken against a person under a temporary statute ipso facto terminate as soon
as the statute expires [S. Krishnan v. State of Madras, AIR 1951].
Therefore, in absence of a saving provision when a statute expires, a person cannot be
prosecuted and convicted for an offence against the Act and if the prosecution has not
ended before the date of expiry of the Act, it will automatically terminate as a result of the
termination.
In Rayala Corporation v. Director of Enforcement [AIR 1970] Rule 132-A of the
Defence of India Rules, 1962, which related to the prohibition of dealings in foreign

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ANANYA R. BIBAVE
exchange was by the Amendment Rules, 1965, omitted except as respects things done or
omitted to be done under that rule. The question was whether a prosecution in respect of
contravention of Rule 132-A could be commenced after the Rule was omitted. The answer
was given in negative by the Supreme Court and it was held that initiation of a new
proceeding will not be a thing done or omitted to be done under the rule but a new act to
initiating a proceeding after the rule had ceased to exist.
B. Notifications, Orders, Rules etc. made under Temporary Statute:
The normal rule is that when a temporary Act expires, any notification, appointment,
order, scheme, rule, bye-laws made or issued under the statute will also come to an end
with the expiry of the Act and will not be continued even if the provisions of the expired Act
are re-enacted.
C. Expiry does not make the Statute Dead for all Purposes:
Expiry does not make the statute dead for all purposes even in the absence of a
saving clause. The nature of the right and obligation resulting form the provisions of the
temporary Act and their character may have to be regarded in determining whether the said
right or obligation is enduring or not. Therefore, in State of Orissa v. Bhupendra Kumar [AIR
1962] it was held that a person who has been prosecuted and sentenced during the
continuance of a temporary Act for violating its provisions cannot be released before he
serves out his sentence, even if the temporary Act expires before the expiry of full period of
the sentence.
D. Repeal by a Temporary Statute:
When a temporary statute effects a repeal of an existing statute, a question arises
whether the repealed statute revives on the expiry of the repealing statute. Section 11 (1)
and section 38(2)(a) of the Interpretation Act, 1899 have no application to a case of expiry of
a repealing Act. Similarly, section 6(a) of the General Clauses Act, 1897 has no application
on expiry of a repealing statute.
Therefore, a statute which is repealed by a temporary statute will revive or not on the
expiry of the repealing statute will depend upon the construction of the repealing statute.
EXPRESS REPEAL:
Any particular form of words is not necessary to bring about an express repeal. The
most common words for express repeals include is or are hereby repealed, shall cease to
have effect and shall be omitted, etc. When a new provision is substituted in place of an
existing provision or a new provision is made in suppression of an existing provision, then
the declaration of invalidity of new provision on the ground of want of competence will also
invalidate the repeal. However, if the declaration of invalidity is on other grounds the repeal
will be effective although the new provision is declared invalid unless from the totality of

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ANANYA R. BIBAVE
circumstances and context it is found that there was no intention to repeal in the event of the
new provision being struck down [Indian Express Newspapers v. Union of India, (1985)].
Sometimes the Legislature does not enumerate the Acts which it sought to repeal but
only says that all provisions inconsistent with this Act are hereby repealed. About this
repealing provision it is said that it merely substitutes for the uncertainty of the general law
an express provision of equal uncertainty.
The Supreme Court observed in a case that where the repealed Act provides
substantially for all matters contained in the Act affecting the repeal there is correspondence
between the two Acts and the earlier Act would thus stand repealed. It is not necessary that
there should be complete identity between the repealing Act and the Act repealed in every
respect [Abdul Kadir v. State of Kerala, AIR 1962].
IMPLIED REPEAL:
A. General:
There is a presumption against a repeal by implication and this presumption is based
on the theory that the legislature while enacting a law has a complete knowledge of the
existing laws on the same subject-matter and, therefore, when it does not provide a
repealing provision, it gives out an intention not to repeal the existing legislation [Municipal
Council, Palai v T.J. Joseph, AIR 1963].
The Supreme Court has indicated that the test for determining repugnancy under
Article 254 of the Constitution may be applied for solving a question of implied repeal and
that it should be seen:
Whether there is direct conflict between the two provisions;
Whether the legislature intended to lay down an exhaustive Code in respect of the

subject-matter replacing the earlier law;


Whether the two laws occupy the same field [Municipal Council, Palai v T.J. Joseph,
AIR 1963].
B. Prior General Law and later Particular Law:
A prior general Act may be affected by a subsequent particular Act if the subject-

matter of the particular Act prior to its enforcement was being governed by the general
provisions of the earlier Act i.e., generalilaus specialia derogant. Here the operation of the
particular Act may partially repeal the general Act, or curtail its provisions or add conditions
to its operation for the particular cases.
In Ratan Lal Adukia v. Union of India [AIR 1990] section 80 of the Railways Act,
1890, which was substituted in 1961, provided for the forum where a suit for compensation
for the loss of life of, or personal injury to, a passenger or for loss, destruction, damage,
deterioration, or non-delivery of animals or goods against a railway administration could be
brought. It was held that the said section was a special provision and a self-contained Code

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ANANYA R. BIBAVE
and that it impliedly repealed in respect of suits covered by it the general provisions of
section 20 of the Code of Civil Procedure, 1908.
C. Prior particular Law and later General Law:
A prior particular law or special law is not readily held to be impliedly repealed by
later general enactment because the particular law deals with a particular phase of the
subject covered by the general law and, therefore, a reconciliation is possible between the
two. A particular Act is construed as an exception or qualification of the general Act.
The view of Lord PHILIMORE is pertinent here: It is a sound principle of all jurisprudence
that a prior particular law is not easily to be held to be abrogated by a posterior law,
expressed in general terms and by the apparent generality of its language applicable to and
converting a number of cases of which the particular law is but one. This, as a matter of
jurisprudence, as understood in England, has been laid down in great number of cases,
whether the prior law be an express statute, or be the underlying common or customary law
of the country. Where general words in an Act are capable of reasonable and sensible
specially dealt with by earlier legislation, that earlier and special legislation is not to be held
indirectly repealed, altered or abrogated from merely by force of such general words, without
any indication of a particular intention to do so [Nicolle v. Nicolle,(1922)].
The Supreme Court observed: A general statutes applies to all persons and
localities within its jurisdiction and scope as distinguished from a special one which in its
operation is confined to a particular locality and, therefore, which is doubtful whether the
special statute was intended to be repealed by the general statute the court should try to
give effect to both the enactments as far as possible [Municipal Council, Palai v T.J. Joseph,
AIR 1963].
D. Affirmative Enactments:
It has been held that one affirmative enactment is not easily taken as repealed by
another later affirmative enactment. But if the later Act is precise negative of whatever
authority existed under an earlier Act, the repealed shall be inferred. In the Fosters case
[1615] the rule was stated thus: This Act is all in the affirmative and, therefore, shall not be
abrogated a precedent affirmative law before; and the said rule that leges posteriores
priores contrarias abrogant, was well agreed; but as to this purpose contrarium est
multiplex:
In equality, if one is an express and material negative and the last is an express and

material affirmative, or if the first is affirmative, and the later negative,


In matter, although both are affirmative.
If the earlier affirmative enactment conferring a power on A for benefit of B was

intended to last until the same power was exercised by B under a later enactment, the
assumption of that power by B will result in implied repeal of the earlier enactment.
E. Laws defining Offences and Penalties:

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ANANYA R. BIBAVE
When a later statute describes an offence which was created by an earlier statute
and imposes a different punishment for that offence or varies the provision thereof, the
earlier statute is repealed by implication. But where the offence described in the later Act is
different from the offence described in an earlier Act, this principle has no application.
Article 20(2) of the Constitution directs that no person shall be prosecuted and punished for
the same offence more than once. The General Clauses Act by its section 26 provides that
where an act or omission constitutes an offence under two or more enactments, then the
offender shall be liable to be punished under either or any of those enactments but shall not
be liable to be punished twice for the same offence. Both of these provisions apply when the
two offences which are the subject-matter of prosecution or prosecutions are same, when
they are different these provisions will not apply.

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ANANYA R. BIBAVE

STRICT CONSTRUCTION OF TAXING STATUTES


TAXING STATUTES:
A tax is imposed for raising general revenue of the State for public purposes. In
contrast to tax, a fee is imposed for rendering services and bears a broad co-relationship
with the services rendered.
Taxes are distributed between the Union and States by various entries in List I and
List II of the Constitution. Parliament can under its residuary power in entry 97 of List I levy a
tax not mentioned in these lists.
A taxing statute means a statute or an Act making compulsory imposition whether of
tax

or

fee.

There

are

following

three

stages

in

the

imposition

of

Declaration of liability in respect of persons or property;


Assessment of tax that qualifies the sum which the person liable has to pay;
Methods of recovery if the person taxed does not voluntarily

tax:

pay.

GENERAL PRINCIPLES OF STRICT CONSTRUCTION:


A taxing statute is to be strictly construed [Hansraj & Sons v. State of J&K, (2002)]. In
the words of Lord CAIRNS: If the person sought to be taxed comes within the letter of the
law, he must be taxed, however great the hardship may appear to the judicial mind to be. On
the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the
letter of the law, the subject is free, however apparently within the spirit of law the case
might otherwise appear to be. In other words, if there be admissible in any statute, what is
called an equitable construction, certainly, such a construction is not admissible in a taxing
statute where you can simply adhere to the words of the statute [Partington v. A.G., (1869)].
There is nothing like implied power to tax. The source of power which does not
specifically speak of taxation cannot be interpreted by expanding its width as to include
therein the power to tax by implication or by necessary inference.
The judicial opinion of binding authority flowing from several pronouncements of the
Supreme Court has settled the following principles: In interpreting a taxing statute, equitable considerations are entirely out of place. Taxing
statutes cannot be interpreted on any presumption or assumption. A taxing statute has to
be interpreted in the light of what is clearly expressed. It cannot import provisions in the

statute so as to supply any deficiency. It cannot imply anything which is not expressed.
Before taxing any person it must be shown that he falls within the ambit of the charging

section by clear words used in the section, and


If the words are ambiguous and open to two interpretations, the benefit of interpretation
is to be given to the subject.

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ANANYA R. BIBAVE
There is nothing unjust in the tax payer escaping if the letter of the law fails to catch
him on account of the legislatures failure to express itself clearly [State of W. B. v. Kesoram
Industries Ltd., (2004)].
Although normally a taxing statute is to be strictly construed but when the statutory
provision is reasonably akin to only one meaning, principle of strict construction may not be
adhere to [Per SINHA, J., Tata Consultancy Services v. State of A.P.,(2005)].
Lord SIMONDS while interpreting a section in a taxing statute said: The question is
not at what transaction the section is according to some alleged general purpose aimed, but
what transaction its language according to its natural meaning fairly and squarely hits [St.
Aubyn (LM) v. A.G., (1951)]
Lord SIMONDS gave this maxim of tax law that, the subject is not to be taxed
unless the words of the taxing statute unambiguously impose the tax on him [Russell v.
Scot (1948)].
The Supreme Court has also stated that before taxing any person it must be shown
that he falls within the ambit of the charging section by clear words used in the section
[Commissioner of Wealth Tax, Gujarat v. Ellis Bridge Gymkhana, AIR 1998].
BHAGWATI, J., has also expressed the principle regarding the interpretation of
taxing laws. In his words: In construing fiscal statutes and in determining the liability of a
subject to tax one must have regard to the strict letter of the law. If the revenue satisfies the
court that the case falls strictly within the provisions of the law, the subject can be taxed. If,
on the other hand, the case is not covered within the four corners of the provisions of the
taxing statutes, no tax can be imposed by an inference or by analogy or by trying to probe
into intentions of the legislature and by considering what was the substance of the matter
[A.V. Farnandez v. State of Kerala, AIR 1957].
Another important principle pertinent here is that avoidance of double taxation by the
same Act. The principle is that if the words of the Act on one construction results in double
taxation of the same income, that result will be avoided by adopting another construction
which may reasonably be open. On the basis of this general rule it is said that several heads
of income mentioned in the Income tax Laws are mutually exclusive and a particular income
can come under only one of the heads.
The rule of avoidance of double taxation is merely a rule of construction; therefore, it
ceases to have application when the legislature expressly enacts a law which results in
double taxation of the same income. The law so made cannot be held invalid merely on the
ground that it results in double taxation. In the absence of clear provisions stipulating double
or multiple levies, the courts would lean in favour of avoiding double taxation [Municipal
Council, Kota v. Delhi Cloth & General Mills Co. Ltd., (2001)].
QUALIFICATIONS OF RULE OF STRICT CONSTRUCTION:

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ANANYA R. BIBAVE
When the statutory provision is reasonably open to only one meaning, no question of
strict construction of taxing statutes arises. Strict construction of a taxing statute does not
mean that where the subject falls clearly within the letter of law, the court can avoid the tax
by putting a restricted construction on the basis of some supposed hardship or on the
ground that the tax or penalty imposed is heavy or oppressive. Where two views are
possible, the one in favour of the assessee must be adopted [Union of India v. Onkar S.
Kanwar, (2002); Cemento Corpn. Ltd. v. CCE, (2002)]. The interpretation favouring the
assessee which has been acted upon and accepted by Revenue for a long period should
not be disturbed except for compelling reasons [Birla Cement Works v. CBDT, (2001); AIR
2001; (2001)].
When the intention to tax is clear, it cannot be defeated by a mere defect in
phraseology on the ground that the provision could have been more artistically drafted
[CWT, Bihar v. Kripashankar, AIR 1971].
The object of the legislature has to be kept in view and a construction consistent with
the object has to be placed on the words used if there by ambiguity, is also applicable in
construing a taxing statement [Administrator, Municipal Corpn., Bilaspur v. Dattatraya
Dahankar, AIR 1992].
Considerations of public policy are also held to be relevant in interpreting and
applying a taxing statute. It has been held that payments tainted with illegality cannot be
treated as money wholly and exclusively spent for the purpose of business for being allowed
as a deduction in computation of profits of the business for taxation purposes under the
Income Tax Act [Maddi Venkataraman & Co. (P.) Ltd. v. Commissioner of Income-Tax, AIR
1998].
It has been held regarding the liability to pay interest on delayed payment of tax that
interest can be levied and charged only if the statute that levies and charges the tax makes
a substantive provision in this behalf [India Carbon Ltd. v. State of Assam, AIR 1997].
A provision of exemption from tax in a fiscal statute is to be strictly construed [Oxford
University Press v. CIT, (2001): AIR 2001: (2001)]. It is a well-known principle that a person
who claims an exemption has to establish it and the rule of strict construction does not
negative its application. There is ample authority for the view that the principle applies to
exemptions granted in taxing law as well [CIT v. Ram Krishna Deo, AIR 1959]. There are two
options regarding construction of exemptions:
One view says that an exemption in case of ambiguity should be liberally construed in

favour of the subject confining the operation of the duty;


Second view says that the exemptions from taxation have a tendency to increase the
burden on the other members of society and should, therefore, be deprecated and
construed in case of doubt against the subject.

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ANANYA R. BIBAVE
In interpreting an exemption legislative intent is also material. Where the legislative
intent was to grant exemption to live saving drugs or medicines or equipments, only if
imported for being used in India and not for export, it was held that such construction could
be properly placed on exemption provision [Collector of Customs v. M.J. Exports Ltd.,
(2001)].
In Commissioner of Income-Tax v. Kurti Jina Bhai Kotecha [AIR 1977] it was noted
that the rule of strict construction does not permit the tax-payer to take benefit of an illegality.
Section 24(2) of the Income-Tax, 1922, was construed not to permit the assesses to carry
forward the loss of an illegal speculative business for setting it off against profits in
subsequent years. So even a taxing statute is to be construed consistent with morality
avoiding a result which gives recognition to continued illegal activities or benefits attached to
it.
The provisions of taxing statutes regulating limitation period must be given strict
construction [2002]. In a recent case, it has been held that a limitation provision within which
steps have to be taken for recovery of duties not levied or not paid or short paid or
erroneously refunded, is subject to the rule of strict construction [J.K. Cotton Spinning &
Weaving Mills Co. Ltd. v. Collector of Central Excise, AIR 1998].

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ANANYA R. BIBAVE

REMEDIAL AND PENAL STATUTES


DISTINCTION BETWEEN REMEDIAL AND PENAL STATUTES:
Remedial statutes are also known as welfare, beneficent or social justice oriented
legislation. Penal statutes are those which provides for penalties for disobedience of the law
and are directed against the offender in relation to the State by making him liable to
imprisonment, fine, forfeiture or other penalty.
There are certain legislations which are directed to cure some immediate mischief
and bring into effect some type of social reform by ameliorating the condition of certain class
of persons who according to present day notions may not have been fairly treated in the
past. Such legislations prohibit certain acts by declaring them invalid and provide for redress
or compensation to the persons aggrieved [Central Railway Workshop, Jhansi v.
Vishwanath, AIR 1970].
A remedial statute receives a liberal construction in favour of the class of persons for
whose benefit the statute was enacted while penal statutes is strictly construed in favour of
the alleged offender.
The view of Lord MACMILLAN is pertinent here: It must be borne in mind that while
the statute and rule have the beneficent purpose of providing protection for workmen their
contravention involves penal consequences. Where penalties for infringement are imposed,
it is not legitimate to stretch the language of a rule, however, beneficent its intention, beyond
the fair and ordinary meaning of its language [London & N Eastern Railway Co. v.
Barriman, (1946)].
This view was cited by the Supreme Court in Tolaram v. State of Bombay [AIR 1954].
Lord PORTER in the above-stated English case gave a different view: Most
measures of a remedial character, such as Factories Acts and a great many others, have
penalty clauses, but I have never known that circumstances be regarded as a ground for a
narrow and pedantic construction [London & N Eastern Railway Co. v. Barriman, (1946)].
In Bhagirath Kanoria v. State of M.P. [(1984); AIR1984] the Supreme Court exhibited
a liberal approach in holding that non-payment of employers contribution within fifteen days
under para 38 of Employers Provident Funds Scheme, 1952 which was punishable under
section 14(2-A) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952
was a continuing offence. Chief Justice CHANDRACHUD observed: Considering the object
and purpose of this provision, which is to ensure the welfare of workers, we find it
impossible to hold that the offence is not of continuing nature.
LIBERAL CONSTRUCTION OF REMEDIAL STATUTES:
A. General principles:
On construing a remedial statute the courts ought to give to it the widest operation
which its language will permit. They have only to see that the particular case is within the

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ANANYA R. BIBAVE
mischief to be remedied and falls within the language of the enactment [Sayyad Mir
Ujmuddin Khan v. Ziaulnisa Begum, (1879)].
In case of a social benefit oriented legislation like the Consumer Protection Act, 1986 the
provisions of the Act have to be construed in favour of the consumer to achieve the
purpose of the enactment but without doing violence to the language [Lucknow
Development Authority v. M.K. Gupta, AIR 1994].
The liberal construction must flow from the language used and the rule does not
permit placing of an unnatural interpretation on the words contained in the enactment nor it
does permit the raising of any presumption that protection of widest amplitude must be
deemed to have been conferred upon those for whose benefit the legislation may have been
enacted [Mugnilal v. Suganchand, AIR 1965].
In case there is any exception in the beneficent legislation which curtails its
operation, the Court in case of doubt should construe it narrowly so as not to unduly expand
the area or scope of exception [Sheikh Gulfan v. Sanat Kumar, AIR 1965].
It is the duty of the Court to be vigilant so that benefits conferred by the welfare
legislation are not defeated by subtle devices. In Workmen v. Associated Rubber Industry
Ltd. [1985] it has been held that it is the duty of the Court, in every case where ingenuity is
expended to avoid welfare legislation, to get behind the smoke screen and discover the true
state of affairs. When a company owing certain shares of another company created a
subsidiary company wholly owned by it and transferred to it the shares held by it, it was held
that the dividend income from the shares should be taken into account in assessing the
profits of the old company for computation of bonus payable to workmen. The Court can
pierce the veil of corporate entity of a company if it has been formed for avoidance of
welfare legislation.
B. Illustrative cases:
Sadhoo v. Haji Lal Mohd. Biri Works: [1986]:
In this case the Supreme Court interpreted section 31(2)(a) of the Beedi and Cigar
Workers (Conditions of Employment) Act, 1966. This section 31(2)(a) provides that the
employees discharged, dismissed or retrenched may appeal to the prescribed authority. It
was held that by the liberal construction of the section there to be no written order of
termination to enable the employee to appeal and that an employee who was terminated by
stopping him to enter the place of work could appeal to the prescribed authority.
Kuldip Kaur v. Surinder Singh [AIR 1989]:
In this case the Supreme Court dealt with section 125(3) of the Cr. P. C. This section
provides for recovery of maintenance granted in favour of a wife or minor child by issue of a
warrant if the order for maintenance is not complied with without sufficient cause and
enables the magistrate, if the amount still remains unpaid to sentence the person against
whom the order is made to imprisonment for a period of one month. The Court drew a

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ANANYA R. BIBAVE
distinction between mode of enforcement and mode of satisfaction and held that even
after a sentences of imprisonment, the person concerned remained liable for arrears of
maintenance for non-payment of which he was imprisoned and the liability for payment
could be satisfied only by payment and not by suffering the sentence.
Motor Owners Insurance Co. Ltd. v. J.K. Modi [AIR 1981]:
In this case, the words any one accident occurring in section 95(2)(a) of the Motor
Vehicles Act, 1939 was construed. Having regard to the beneficial purpose of the Act, the
words were construed to signify as many accidents as the number of persons involved in the
accident to enable the limit of Rs. 20,000 payable by the insurance company to apply to
each person injured.
MENS REA IN STATUTORY OFFENCES:
A. General Principles:
The principle related to Mens Rea is expressed in the maxim Actus non facit reum
nisi mens sit rea which means that the existence of a guilty intent is an essential ingredient
of a crime at common law.
Crimes involving mens rea are of two types:
Crimes of basic intent, and
Crimes of specific intent.
In crimes of basic intent, the mens rea does not go behind the actus reus. While in
crimes of specific intent, mens rea goes beyond the contemplation of the prohibited act and
foresight of the consequences and has a purposive element [Director of Public Prosecutions
v. Majewski, (1976)].
Ignorance of law is no defence in criminal law but if the law is not published in any
manner whatsoever, to enable a person to find it out by appropriate inquiry, the absence of
knowledge of prohibition may afford a defence of absence of mens rea [Lim Chin Aik v.
Reginam, (1963)].
In Sherras v. De Rut zen, [1895: (1895-99)] Justice WRIGHT found that there are
three classes of cases where the Legislature normally enacts absolute prohibition:
First is a class of acts which are not criminal in any real sense but are acts which are
prohibited in public interest under a penalty, and instances of this class are found in the

Revenue Statutes, Adulteration Acts, Game Acts, etc.;


Second class comprehends some and perhaps all public nuisances;
Third class of cases are those where, although the proceedings may be criminal in form,
they are really only a summary mode of enforcing a civil right.
It has been held that when the state of an accused persons mind and his knowledge

are ingredients of an offence, he has to be judged on the facts as he believed them to be.
For example, in R. v. Taffe [1984] when the accused smuggled a controlled drug mistakenly
believing that he was importing currency and also mistakenly believing that the import of

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ANANYA R. BIBAVE
currency was prohibited and he was committing an offence, he could not be punished for the
criminal offence of knowingly concerned in the importation of a controlled drug.
If the statute deals with a grave social evil and a construction consistent with the
existent with the existence if mens rea as a necessary ingredient of the offence would
largely frustrate the effective enforcement and the purpose of the statute, it may be inferred
that the legislature intended to provide for strict liability [Indo China Steam Navigation Co. v.
Jasjit Singh, AIR 1964].
In the words of Lord SCARMAN: The question whether an offence created by the
statute requires mens rea, guilty knowledge or intention, in whole, in part or not at all turns
on the subject-matter, the language and the structure of the Act studied as a whole, on the
language of the particular statutory provision under consideration construed in the light of
the legislative purpose embodied in the Act and on whether strict liability in respect of all or
any of the essential ingredients of the offence would promote the object of the provision
[Wings Ltd. v. Ellis (1984)].
B. Illustrations:
Kalpnath Rai v. State [AIR 1998]:
In this case, the Supreme Court considered section 3(4) of the Terrorists and
Disruptive Activities (Prevention) Act, 1987. This section provides that whoever harbours
any terrorist shall be punishable with imprisonment which shall not be less than five years
but which may extend to imprisonment for life. It was held by the Court that the section
provided for harsh punishment and could not be held to have excluded mens rea and a
person giving shelter to a terrorist without knowing that he was a terrorist could not be
punished under the section.
Nathulal v. State of M.P. [AIR 1966]:
Here a dealer in food grains was prosecuted under section 7 of the Essential
Commodities Act for contravening the M.P.

Grain Dealers Licensing Order, 1958, for

carrying on business in food grains without license. It was found that the accused had
applied for a license and he was under the impression that the license was issued to him
and that order of rejection of his application was not communicated to him and that he went
on sending the returns of the footing that he was a licensee to the authority concerned. The
Supreme Court acquitted the accused and held that the Act which imposed heavy penalties
could not be construed to dispense with mens rea as the object of the Act could not be
defeated on such a construction.
Sarjoo Prasad v. State of U.P. [AIR 1961]:
The Supreme Court in this case held that any person, whether employer or
employee contravening the provisions of section 7 of the Food Adulteration Act, 1954 is
liable to punishment under section 16 and it was not necessary for the prosecution to
establish that the person concerned has guilty knowledge or intention or that he knew that
the article was adulterated.

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ANANYA R. BIBAVE
R. S. Joshi v. Ajit Mills [AIR 1977; (1977)]:
A provision in the Sales Tax Act prohibited collection of any sum by way of tax which
was not payable as tax or which was in excess of tax payable and contravention of this
prohibition was made punishable offence and the person contravening was also made liable
to forfeit the sum collected in contravention of the prohibition. It was held by the Supreme
Court that mens rea was not an ingredient for making a person liable for the offence or
forfeiture. It was held that the principle no mens rea no crime has no application to
economic offences. It was also held that the word collected did not include amounts
gathered tentatively to be given back if found non-exigible and shall be forfeited meant
shall be liable to be forfeited leaving a discretion to the authorities not to forfeit the sums
returned to persons from whom they were collected.
VICARIOUS LIABILITY IN STATUTORY OFFENCES:
The maxims respondent superior and qui facit per alium facit per se have no
place in criminal law. The general rule of criminal law is that criminal liability in a master that
might result either as a principle or an accessory, springs from authorization and not simply
form the relationship of master and servant. However, the Legislature may in an infinite
variety of ways provide that there is to be criminal liability in one who has personally no
mens rea or in one who has not committed actus reus [Vane v. Yiannapoullo, (1964)].
In State of Gujarat v. Kansara Maniram Bhikalal [AIR 1964] it was held by the
Supreme Court that for an offence under section 92 of the Factories Act, mens rea need not
always be established and the manager or occupier of a factory can only escape liability
form a contravention of the Act which is punishable under section 92, if he is able to bring
real offender to book in the manner provided in section 101.
In Sriniwas Mall v. Emperor [AIR 1947] the question related to the masters liability
for the act of his servant in committing a contravention of a Price Control Order made under
rule 81(2)(b) of the Defence of India Rules. The High Court concluded that guilty intent of the
master was dispensed with for the offence under rule 81(4) which made any person
contravening the provision of the Rule liable to punishment with imprisonment which could
extend to three years. However, the Privy Council did not accept this conclusion.
In Vane v. Yianno Poullos [1964] a restaurant license holder was charged for
knowingly selling or supplying intoxicating liquor contrary to the conditions of of his license.
One of the conditions of the license was that liquor shall not be sold or supplied on premises
otherwise than to persons taking table meals there. A waitress engaged by the licensee,
who had specific orders not to contravene the conditions of the license, served liquor to two
customers who had ordered for meals on the occasion. This was done without the
knowledge of the employer licensee who was engaged in the business at the basement.

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The House of Lords held that as the knowledge of the licensee was not established, the
charge against him was not valid and, therefore, it was dismissed.

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ANANYA R. BIBAVE

INTERPRETATION OF CONSTITUTIONAL DOCUMENTS

PRELIMINARY:
A constitution is an organic instrument. It is a fundamental law. Where more than one
reasonable interpretation of a constitutional provision are possible, that which would ensure
a smooth and harmonious working of the Constitution shall be accepted rather than the one
that would lead to absurdity or give rise to practical inconvenience or make well-existing
provisions of existing laws nugatory. [State of Bihar v. Kameshwar Singh, 1952; Chandra
Mohan v. State of U.P., 1966]
The Constitution must be interpreted in a broad and liberal manner giving effect to all
its parts and the presumption should be that no conflict or repugnancy was intended by its
framers. It cannot be construed in a narrow and pedantic sense and the court should be
guided with a broad and liberal spirit. [A.K. Gopalan v. State of Madras, 1950]
While interpreting the Constitution a construction most beneficial to the widest
possible amplitude must be adopted. One should give to Parliament the freedom, with in the
framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It
is necessary towards that end that the Constitution should not be construed in a narrow and
pedantic sense. [Kesavanand Bharati v. State of Kerala]
Following principles have frequently been discussed by the courts while interpreting
the Constitution:

Principle of implied powers

Principle of incidental or ancillary powers

Principle of implied prohibition

Principle of occupied field

Principle of pith and substance

Principle of colourable legislation

Principle of territorial nexus

Principle of severability

Principle of prospective overruling

Principle of eclipse

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PRINCIPLE OF IMPLIED POWERS:
The Constitution inter alia, contains the objects which the country strives to achieve
for its people and also marks the outline of the powers given to the Parliament. But unlike a
code it does not sub-divide all these powers to the minutest detail nor does it specify all the
means necessary in the execution of the same. Laws which are necessary and proper for
the execution of the power or are incidental to such power are called implied powers and
these laws are presumed to be constitutional.
In other words, constitutional powers are granted in general terms out of which
implied powers must necessarily arise. Likewise constitutional restraints are put in general
terms out of which implied restraints must also necessarily arise. It is an established
principle of interpretation that whenever certain powers are granted by the Constitution
some restrictions is put by it, all powers that are needed for the exercise or performance of
the same are by implication also conferred by it, and this naturally means that these implied
powers are also constitutional.
The government must have a legitimate object within the purview of the Constitution
and all means which are appropriate and necessary for achieving that object are
constitutional if they are within the limits of the Constitution.
In India, the Supreme Court has observed in Bidi Bidi Leaves and Merchants
Association v. State of Bombay [AIR 1962 SC 486], that the principle of implied powers
could be held to be applicable wherever it would be impossible to enforce the material
provisions of the Constitution. It has, however, cautioned in Ramkrishna v. Municipal
Committee [AIR 1950 SC 11], that the courts must be very cautious while interpreting
express power vis--vis implied power lest a broader interpretation unnecessarily given
interfered with precise and definite meaning.

PRINCIPLE OF INCIDENTAL AND ANCILLARY POWERS:


This principle is similar to the principle implied powers. The Constitutions of certain
nations specifically give to their law-making body incidental and ancillary powers of
legislation. The argument that when there is no express mention of this power in the
Constitution no such power must exists is not convincing because it is presumed that some
such power must exist for the smooth working of the Constitution.

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ANANYA R. BIBAVE
In India the subjects mentioned under the three lists in the Seventh Schedule of the
Constitution have time and again been interpreted in the widest possible amplitude. Entry 93
in the Union List and entry 64 in the State List expressly mention offences against laws with
respect to any of the matters in this List which are examples of incidental or ancillary
powers. With these powers exists the implied power to make laws incidental to the exercise
of such power. The grant of power includes everything necessary to exercise that power is a
basic principle of interpretation [Vasanlal Maganlal v. State of Bombay, 1961; Jan
Mohammad Noor Mohammad v. State of Gujarat, 1966]. The essential powers of lawmaking cannot be delegated by the legislature to any other agency but for a subsidiary or
ancillary measure delegation is perfectly legitimate.
The Supreme Court has held time and again in cases like State of Rajasthan v. G.
Chawala [AIR 1959 SC 544], West Bengal v. Union of India [AIR 1963 SC 1241], that a
general word in any entry under any of the three lists in the seventh schedule of the
Constitution must be interpreted to extend ancillary or subsidiary matters which can fairly
and reasonably be held to be included in it. It has been held in Pathumma v. State of Kerala
[1978 2 SCC 1], that power to make laws with respect to money lending and money
lenders; relief of agricultural indebtedness under entry 30 of the State List includes power to
make a law relating to debt of agriculturists already paid by sale of property in execution of
the decree and any measure to provide relief and recompense. Similarly, the power to make
laws with respect to collection of rent includes power with respect to remission of rent
[United Provinces v. Atiqa Begum, AIR 1941 FC 16]. Power to impose tax includes power to
enact laws relating to checking to tax evasion [Commissioner of Commercial Taxes v. R. S.
Jhaver, AIR 1968 SC 59] and power of raising revenue by imposing licensee fee,
[Chaturbhuj v. Union of India AIR 1960 SC 424]. Power to legislate on any specific subject
includes power to enact a valid law retrospectively if a previous law on that subject has been
declared unconstitutional.[Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667]

PRINCIPLE OF IMPLIED PROHIBITION:


In the Constitutions of some countries, (for instance Australia and United States of
America) the Union or the Central Legislature has been given power to legislate on certain
subjects enumerated in the form of a list and for the subjects left out of the list the State
Legislatures have been conferred power to make laws. On the other hand, in the
Constitutions of some other countries (for instance India and Canada) Central and State
Legislatures have been empowered to legislate in distinct fields designated by more than
one list. In the former class of cases, the specific, mention of subject to be legislated upon

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ANANYA R. BIBAVE
by the Centre means implied prohibition on the Centre to legislate on the residuary areas. In
the latter class of cases, the principle of implied prohibition does not exist at all,[Burhanpur
Tapti Mills v. State of Madhya Pradesh, AIR 1962 MP 225], even though that of incidental
and ancillary power does.

PRINCIPLE OF OCCUPIED FIELD:


The principle of occupied field means that when the Union or Central Legislature
makes a law on a particular subject and thereby occupies the field, the State Legislatures
have no power to enact any law on that field.
In the event of their doing so the State Legislation would, to that extent, become
unconstitutional. In India, the Constitution grants specific areas of legislation to the Union
Parliament and State legislatures in the form of Union List and State List respectively and
one cannot encroach upon the powers of the other. It is the Concurrent List, where both the
Parliament and State Legislatures have been empowered to enact laws, where the problem
comes. Article 254(1) of the Constitution says in this regard that if any provision of a law
made by the Legislature of a State is repugnant to any provision of a law made by the
Parliament which Parliament is competent to enact, or to any provision of an existing law
with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of clause (2), the law made by Parliament, whether passed before or after the law
made by the Legislature of such State, or as the case may be, the existing law, shall prevail
and the law made by the legislature of the State shall, to the extent of the repugnancy, be
void. Article 254 (2) states that where a law made by the legislature of a State with respect
to one of the matters enumerated in the Concurrent List contains any provision repugnant to
the provision of an earlier law made by Parliament of an existing law with respect to that
matter, then, the law so made by the Legislature of such State shall, if it has been reserved
for the consideration of the President and has received his assent, prevail in that State
provided that nothing in this clause shall prevent Parliament from enacting at any time, any
law with respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.[Kumaun Motor Owners Union v.
State of Uttar Pradesh, 1966].

PRINCIPLE OF PITH AND SUBSTANCE:

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ANANYA R. BIBAVE
The principle means that if an enactment substantially falls within the powers
conferred by the Constitution upon the legislature by which it was enacted, it does not
become invalid merely because it incidentally touches upon subjects within the domain of
another legislature as designated by the Constitution. Questions frequently come up before
the Court as to whether a law purporting to be made under one or more legislatives entries
in an authorized list is in fact a legislation within those entries only or is in a law enacted
under any other entry in another list in which that legislature is not competent to enact law,
and this question is resolved by applying the principle of pith and substance.
In Subrahmanyam Chettiar v. Muthuswamy Goundan [AIR 1941 PC 47], the
abovementioned questions arose under Section 100 of the Government of India Act, 1935.
While stating that the Privy Council had evolved the rule of pith and substance with respect
to the Constitution of Canada when similar questions under Sections 91 and 92 of the British
North America Act, 1867 had arisen, Chief Justice Sir Maurice Gwyer observed:
It must inevitably happen from time to time that legislation, though purporting to deal with a
subject in one list, touches also on a subject in another list, and the different provisions of
the enactment may be so closely inter-twined that blind observance to a strictly verbal
interpretation would result in a large number of statutes being declared invalid because the
legislature enacting them may appear to have legislated in the forbidden sphere. Hence, the
rule which has been evolved by the Judicial Committee whereby the impugned statute is
examined to ascertain its pith and substance, or its true nature and character, for the
purpose of determining whether it is legislation with respect to matters in this list or in that.
In State of Bombay v. F. N. Balsara [AIR 1951 SC 318], the State Legislature
enacted the Bombay Prohibition Act, 1949 under Entry of the State List relating to
Intoxicating liquors, that is to say, the production, manufacture, possession, transport,
purchase and sale of intoxicating liquors. It was challenged on the ground that it was a
Union subject under Entry 41 of the Union List relating to import and export across customs
frontiers as the prohibition on purchase, use, transport and sale of liquor would affect the
import. The Act was held to be valid even though it had an incidental effect on the power of
the Union.
In Bennett Coleman and Company v. Union of India [1972 2 SCC 788], the Supreme
Court observed that the tests of pith and substance of the subject matter and of direct and of
incidental effect of the legislature are relevant to questions of legislative competence but
they are irrelevant to the questions of infringement of fundamental rights.

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ANANYA R. BIBAVE
In M. Ismail Faruqui v. Union of India [AIR 1995 SC 605], the Supreme Court observed that
the pith and substance of the Acquisition Certain Area at Ayodhya Act, 1993 is acquisition of
property and not public order. The Act falls within the ambit of Entry 42 of List III. The State
of Uttar Pradesh being under the Presidents Rule at the relevant time, the legislative
competence of the Parliament cannot be doubted. A construction which promotes a larger
national purpose must preferred to a strictly literal construction tending to promote
factionalism and discord.

PRINCIPLE OF COLOURABLE LEGISLATION:


The following land mark observation of the Supreme Court in the famous case of K.
C. Gajapati Narayan Deo v. State of Orrisa, [AIR 1953 SC 375], aptly described the principle
of colourable legislation.
The idea conveyed by the expression is that although a legislature in passing a statute
purports to act within the limits of its powers, yet in substance and in reality it transgresses
those powers, the transgression being veiled by what appears on proper examination to be
a mere pretence or disguise. In other words, it is the substance and if the subject-matter in
substance is something which is beyond the powers of that Legislature to legislate upon, the
form in which the law is clothed would not save it from condemnation. The legislature cannot
violate the constitutional prohibition by employing the indirect method.
Legislative competence is the matter of scrutiny by courts [Jagannath Baksh Singh v.
State of Uttar Pradesh AIR 1962 SC 1563]. The ambit of the power would be looked into, not
the manner of its exercise [G. Nageshwar v. Andhra Pradesh State Road Transport
Corporation AIR 1958 SC 314]. How much was done by the legislature, how much or how
little could have been done, could the object be achieved by doing something different,
could other means have been adopted to achieve the object, and other like questions are
totally irrelevant considerations [Collector of Customs v. Dass and Company AIR 1966 SC
1577]. The basic theme is you cannot do indirectly what you cannot do directly. The
principle of colourable legislation imputes no motives or mala fides to the law maker [K. C.
Gajapati Narayan Deo v. State of Orissa AIR 1953 SC 375]. The main question is whether
the law enacted is within the designated domain or outside of it [State of Bihar v. Kaeshwara
Singh AIR 1952 SC 952].
In M. R. Balaji v. State of Mysore [AIR 1963 SC 649], the constitutionality of a State
order reserving sixty-eight percent of seats of admissions of students belonging to backward

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ANANYA R. BIBAVE
classes was in question. It was held by the Supreme Court that the order was violative of
Article 15 (4) as the executive action was an overt and latent transgression of constitutional
authority and was thus a fraud on the constitutional power.
In Jagannath Baksh Singh v. State of Uttar Pradesh [AIR 1962 SC 1563], it was held
by the Supreme Court that the Uttar Pradesh Large Land Holdings Tax Act, 1957 imposing
tax was not confiscatory in nature and thus not colourable. In R.M.D.C. (Mysore) Private
Limited v. State of Mysore [AIR 1962 SC 594], the ruled that levying tax on prize
competitions was not void on the ground that it was colourable, and that no motives could
be imputed to law makers. In T.G. Venkataraman v. State of Madras [AIR 1970 SC 508], it
was held by the Supreme Court that levying of sales tax on cane jaggery was not colourable
as the legislature had power to impose tax.

PRINCIPLE OF TERRITORIAL NEXUS:


According to Article 245(2) no law made by Parliament shall be deemed to be invalid
on the ground that it would have extra-territorial operation. Thus, the Constitution confers the
power to enact laws having extra-territorial operation only to the Union Parliament and not to
the State Legislature, and consequently an extra-territorial law enacted by any State is
changeable unless the same is protected on the ground of territorial nexus. If a State law
has sufficient nexus or connection with the subject matter of that law, the state law is valid
even when it has extra territorial operation.
The area in which the principle of territorial nexus has been applied most in India is
taxation. In State of Bombay v. R.M.D. Chamarbaugwala [AIR 1957 SC 699], a newspaper
printed and published at Bangalore had wide circulation in the State of Bombay. Through
this newspaper the respondent conducted and ran prize competitions for which the entries
were received from the State of Bombay through agents and depots established in the State
to collect entry forms and fees for being forwarded to the head office at Bangalore. The
Bombay Legislature imposed a tax on the business of prize competitions in the State by
enacting the Act of 1952 and amending the Bombay Lotteries and Prize Competitions Act,
1948. The respondent contended that he was not bound to pay the said tax on the ground of
extra-territoriality.
For sufficiency of territorial connection, two elements were considered by the court,
namely, (1) the connection must be real and not illusory, and (2) the liability sought to be
imposed must be pertinent to that connection. It was held that all the activities which the

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ANANYA R. BIBAVE
competitor was ordinarily expected to undertake took place in the State of Bombay and
there existed a sufficient territorial nexus to enable the Bombay Legislature to tax the
Respondent who was residing outside the State.
In State of Bihar v. Charusila Das [AIR 1959 SC 1002], the Supreme Court held that
wherever charitable and religious trusts are situated within a State, the legislature of that
State has authority under the law to enact laws in respect of them even when any large or
small part of the charitable or trust property is situated in another State. As a natural
corollary to this, the State Legislature enacting the law is also empowered to legislate in
respect of the trustees, their servants and agents who are in that State to administer the
trust.
In Wallace Brothers and Company Limited v. Commissioner of Income tax [AIR 1948
PC 118], the Appellant, a company incorporated in England having its registered office there,
was a partner in a firm carrying on business in British India. Applying the test of territorial
nexus the Privy Council held that the income or profits made by the Appellant as a partner in
the firm as well as the income or profits which accrued without British India were both liable
to tax under the Income Tax Act, 1922.

PRINCIPLE OF SEVERABILITY:
It is well-established principle that when the constitutionality of an enactment is in
question and it is found that part of the enactment which is held to be invalid can be severed
from the rest of the enactment, the part so severed alone shall be declared unconstitutional
while the rest of the enactment shall constitutional. Naturally, where such severance is not
possible, the whole enactment shall have to be held unconstitutional. This principle of
severability was so explained by the Privy Council in Attorney General of Alberta v. Attorney
General of Canada [1939 AC 117].
In A. K. Gopalan v. State of Madras [AIR 1980 SC 27], the Supreme Court said that
in case of repugnancy to the Constitution, only the repugnant provision of the impugned Act
will be void and not the whole of it, and every attempt should be made to save as much as
possible of the Act. If the omission of the invalid part will not change the nature or the
structure of the object of the legislature, it is severable.
In State of Bombay v. F. N. Balsara [AIR 1951 SC 318], the eight sections of the
Bombay Prohibition Act, 1949 were declared invalid by the court on the ground that they
were violative of certain fundamental rights. The Supreme Court held that the parts declared

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ANANYA R. BIBAVE
unconstitutional were severable from rest of the Act since they were not inextricably bound
up with the remaining provisions of the Act.
In R.M.D. Chamarbaugwala v. Union of India [1957 SCR 930], is a landmark
judgment on the point where the question involved was as to whether the definition of prize
competition in section 2 (d) of the Prize Competition Act, 1955 which covered within it both
competitions of skill and gambling could be interpreted as limited to competitions of
gambling alone. Applying the grammatical and mischief rules of interpretation the Supreme
Court concluded that the expression prize competition would mean only prize competitions
of a gambling nature in the Act.
In H.R. Banthia v. Union of India [AIR 1970 SC 1453], the Supreme Court struck
down certain provisions of the Gold Control Act, 1968 and since these were not inextricably
bound up with the rest of the provisions of the Act, the rest were held to be valid. The
decision is an illustration of severability in application.

PRINCIPLE OF PROSPECTIVE OVERRULING:


In I. C. Golak Nath v. State of Punjab [AIR 1967 SC 1643], five of the eleven judges,
of the Supreme Court laid down the principle of prospective over-ruling.
The learned judge was of the view that Article 368 lays down only the procedure to
amend the Constitution and bestowed no power of amendment which could be found only in
the residuary legislative power of Parliament contained in Article 248. He also felt that the
word law in Article 13(2) means ordinary law and constitutional law and consequently the
State was not empowered to make any constitutional amendment which takes away or
abridges fundamental rights as law includes amendment as well. Thus, while holding that
the Parliament was not authorized to amend fundamental rights, these five learned judges
jointly declared that the principle would operate only in future and it had no retrospective
effect. Therefore the name prospective overruling. The effect of the decision was that all
amendments made with respect to fundamental rights till the day of the decision in the case
would continue to remain valid and effective, and after the date the Parliament would have
no authority to amend any of the fundamental rights. The learned judges imposed three
restrictions too on the application of the principle- 1) constitutional matters only, 2) that the
Supreme Court alone, and no other court, would have the authority to apply the principle,
and 3) the scope of the prospectivity to be imposed is a matter of discretion for the Supreme
Court which is to be moulded in accordance with the justice of the cause or matter before it.

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There seem to be at least 2 valid reasons for the birth of the principle of prospective
overruling in India. First, the power of Parliament to amend the fundamental rights, and the
First and Seventeenth Amendments specifically, had been upheld previously by the
Supreme Court in Shankari Prasad v. Union of India [AIR 1951 SC 458] and Sajjan Singh v.
State of Rajasthan [AIR 1965 SC 845]. Secondly, during 1867 to 1950, a large body of
legislation had been enacted bringing about an agrarian revolution in India.

PRINCIPLE OF ECLIPSE:
According to Article 13(1) of the Constitution all laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be
void. Article 13 (2) of the Constitution says that the State shall not make any law which takes
away or abridges the rights conferred by this part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
In State of Bombay v. F. N. Balsara [AIR 1951 SC 318], eight sections of a preconstitution legislation, the Bombay Prohibition Act, 1949, were held to be unconstitutional in
view of Article 13 (1) in so far as they prohibited possession, use and consumption of
medicinal preparations which was violative of Article 19 (1) (f) of the Constitution.
In Saghir Ahmad v. State of Uttar Pradesh [AIR 1955 SC 728], the constitutionality of
the Uttar Pradesh Road Transport Act, 1951 was in question. The Supreme Court held it to
be violative of Article 19 (1) (g) and hence void under Article 13 (2) observing that an
unconstitutional law is a dead law incapable of being vitalized by a constitutional
amendment removing the fetters, and that the only course open is its re-enactment.
In Bikhaji Narain Dhakras v. State of Madhya Pradesh [AIR 1955 SC 781], section 43
of the Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar Motor
Vehicles (Amendment) Act, 1947, both being pre-constitution legislations. The Amendment
Act empowered the Provincial Government to take up the entire Provincial motor transport
business, and it could run it either in competition with motor transport operator or excluded
them totally from this with the coming into being of the Constitution, these became
unconstitutional as violative of Article 19 (1) (g). By a constitutional amendment of Article 19
(6) on June 18, 1951 the State was empowered to carry on the business to the notification
issued by the government to this effect was questioned. The respondent government argued
that from January 26, 1950 to June 18, 1951 section 43 remained void, but the amendment

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ANANYA R. BIBAVE
of Article 19 (6) on June 18, 1951 made section 43 valid and operative again. It was held by
the Supreme Court that the true position is that the impugned law became, for the time
being, eclipsed by the fundamental right. The effect of the Constitution (First Amendment)
Act, 1951 was to remove the shadow and to make the impugned Act free from all blemish or
infirmity. All laws, existing or future, which are inconsistent with the provisions of Part III of
our Constitution are, by the express provision of Article 13, rendered void to the extent of
such inconsistency. Such laws were not dead for all purposes. They existed for the purpose
of pre-Constitution rights and liabilities and they remained operative, even after the
Constitution, as against non-citizens. It is only as against the citizens that they remained in a
dormant or moribund condition.
Two conclusions can be drawn from this decision: first, the doctrine of eclipse if
based on the principle that any law which is in contravention of fundamental rights is not, by
virtue of the same, null and void, but remains only unenforceable; and secondly, the doctrine
recognizes the distinction between a law being declared void because of the legislative
incompetence to enact that law, and a law being declared void on the ground that it violates
fundamental rights.
In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr [AIR 1971 SC 2468],
section 144 and Chapter VIII of the Code of Criminal Procedure, 1898, a pre-constitutional
law, were challenged on the ground that they violated Article 19 (1) (a) and were not saved
by Article 19(2), as it then stood before its amendment in 1951, under which the State was
not empowered to put restrictions on freedom of speech and expression in the interest of
public order. Also, the expression security of the state in Article 19 (2) had consistently
been construed by the Supreme Court to mean only grave threats to national security, and
thus the impugned sections were not covered within the expression security of the State
and hence void after the Constitution came into existence. This meant that the principle of
eclipse applied under which the impugned sections would be eclipsed and could be brought
back to life by amending the Constitution. The Principle of Eclipse was, however, not applied
by the Supreme Court which created a fiction in the retrospective operation of the
amendments and thus saved the provisions from being held unconstitutional.

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ANANYA R. BIBAVE

GENERAL CLAUSES ACT, 1897


DEFINITIONS:
Section 3 (3) affidavit shall include affirmation and declaration in the case of persons by
law allowed to affirm or declare instead of swearing;
Section 3 (37) oath shall include affirmation and declaration in the case of persons by law
allowed to affirm or declare instead of swearing;
Section 3 (62) swear, with its grammatical variations and cognate expressions, shall
include affirming and declaring in the case of persons by law allowed to affirm or declare
instead of swearing;
Section 3 (13) commencement used with reference to an Act or Regulation, shall mean
the day on which the Act or Regulation comes into force;
Section 3 (15) Constitution shall mean the Constitution of India;
Section 3 (19) enactment shall include a Regulation (as hereinafter defined) and any
Regulation of the Bengal, Madras or Bombay Code, and shall also include any provision
contained in any Act or in any such Regulation as aforesaid;
Section 3 (29) Indian law shall mean any Act, Ordinance, regulation, rule, order, bye-law
or other instrument which before the commencement of the Constitution had the force of law
in any Province of India or part thereof, or thereafter has the force of law in any Part A State
or Part C State or part thereof, but does not include any Act or Parliament of the United
Kingdom or any Order in Council, rule or other instrument made under such Act;
Section 3 (2) act, used with reference to an offence or a civil wrong, shall include a series
of acts, and words which refer to acts done extend also to illegal omissions;
Section 3 (7) Central Act shall means an Act of Parliament, and shall include
(a) an Act of the Dominion Legislature or of the Indian Legislature passed before the
commencement of the Constitution, and

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ANANYA R. BIBAVE
(b) an Act made before such commencement by the Governor General in Council or the
Governor General, acting in a legislative capacity;
Section 3 (59) State Act shall mean an Act passed by the Legislature of a State
Established or continued by the Constitution;
Section 3 (25) High Court, used with reference to civil proceedings, shall mean the
highest Civil Court of appeal (not including the Supreme Court) in the part of India in which
the Act or Regulation containing the expression operates;
Section 3 (17) District Judge shall mean the Judge of a principal Civil Court of original
jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary
original civil jurisdiction;
Section 3 (32) Magistrate shall include every person exercising all or any of the powers
of a Magistrate under the Code of Criminal Procedure for the time being in force;
Section 3 (18) document shall include any matter written, expressed or described upon
any substance by means of letters, figures or marks, or by more than one of those means
which is intended to be used, or which may be used, for the purpose or recording that
matter;
Section 3 (21) financial year shall mean the year commencing on the first day of April;
Section 3 (35) month shall mean a month reckoned according to the British calendar;
Section 3 (66) year shall mean a year reckoned according to the British calendar.]
Section 3 (22) a thing shall be deemed to be done in good faith where it is in fact done
honestly, whether it is done negligently or not;
NOTES
Section 52, Indian Penal Code, 1860 and Section 2(h), Limitation Act, 1963 which
also define good faith. Within the definitions under these statutes absence of due care and
attention is destructive of good faith; whereas, as defined in the General Clauses Act, good
faith may exist in spite of negligence (N. Subramania Aiyar v. Official Receiver, AIR 1951 SC
1). The latter definition is thus equitable and more reasonable and recognizes as good law,
what is after all good sense, that a careless man is not dishonest man and no amount of

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ANANYA R. BIBAVE
argument will prove that he is one. (Goodman v. Hrvey, 1836). But when a person is aware
of possible harm and acts in spite of it, his action is reckless and in the eyes of law mala
fide. (Municipality of Bhiwandy and Nizampur v. Kailash Sizing Works, AIR 1975 SC 529).
Section 3 (26) immovable property shall include land, benefits to arise out of land, and
things attached to the earth, or permanently fastened to anything attached to the earth;
NOTES
The definition of immovable property as contained in the Transfer of Property Act,
1882 (section 3) is as follows: Immovable Property does not include standing timber,
growing crops or grass. The expression is also defined in the Registration Act, 1908 [S.
2(6)] in the following terms: immovable property includes land, building, hereditary
allowances, right to ways, light, ferries, fisheries or any other benefit to arise out of land, and
things attached to the earth of permanently fastened to anything which is attached to the
earth but not standing timber, growing crops nor grass. These, definitions have to be
contrasted with the definition of Goods in the Sale of Goods Act, 1930, [S. 2(7)] which
reads: goods means every kind of movable property other than actionable claims and
money; and includes stock and shares, growing crops, grass and things attached to and
forming part of the land which are agreed to be served before sale and contract of sale. The
term attached to earth is also defined in the Transer of Property Act, 1882 (S. 3) in the
following words: Attached to earth means-(a) rooted in earth as in the case of trees and
shrubs; (b) imbedded in the earth, as in the case of walls and buildings; or (c) attached to
what is so embedded for the permanent beneficial enjoyment of that to which it is attached.
Section 3 (36) movable property shall mean property of every description, except
immovable property;
Section 3 (38) Offence shall mean any act or omission made punishable by any law for
the time being in force;
Section 3 (27) imprisonment shall mean imprisonment of either description as defined in
the Indian Penal Code;
Section 3 (23) Government or the Government shall include both the Central
Government and any State Government;

Section 3 (8) Central Government shall,

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ANANYA R. BIBAVE
(a) in relation to anything done before the commencement of the Constitution, mean the
Governor General or the Governor General in Council, as the case may be; and shall
include,
(i) in relation to functions entrusted under sub-section (1) of Section 124 of the
Government of India Act, 1935, to the Government of a Province, the Provincial
Government acting within the scope of the authority given to it under that sub-section;
and
(ii) in relation to the administration of a Chief Commissioner's Province, the Chief
Commissioner acting within the scope of the authority given to him under sub-section
(3) of Section 94 of the said Act;
(b)

in relation to anything done or to be done after the commencement of the

Constitution, mean the President; and shall include,


(i) in relation to functions entrusted under clause (1) of article 258 of the Constitution to
the Government of a State, the State Government acting within the scope of the
authority given to it under that clause;
(ii) in relation to the administration of a Part C State before the commencement of the
Constitution (Seventh Amendment) Act, 1956, the Chief Commissioner or the
Lieutenant-Governor or the Government of a neighbouring State or other authority
acting within the scope of the authority given to him or it under article 239 or article 243
of the Constitution, as the case may be; and
(iii) in relation to the administration of a Union territory, the administrator thereof acting
within the scope of the authority given to him under article 239 of the Constitution;
Section 3 (60) State Government,
(a) as respects anything done before the commencement of the Constitution, shall
mean, in a Part A State, the Provincial Government of the corresponding Province, in a
Part B State, the authority or person authorised at the relevant date to exercise executive
Government in the corresponding Acceding State, and in a Part C State, the Central
Government;
(b) as respects anything done after the commencement of the Constitution and before
the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean, in a
Part A State, the Governor, in a Part B State, the Rajpramukh, and in a Part C State, the
Central Government;
(c) as respects anything done or to be done after the commencement of the Constitution
(Seventh Amendment) Act, 1956, shall mean, in a State, the Governor, and in a Union
territory, the Central Government; and shall, in relation to functions entrusted under

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ANANYA R. BIBAVE
article 258A of the Constitution to the Government of India, include the Central
Government acting within the scope of the authority given to it under that article;
Section 3 (31) local authority shall mean a municipal committee, district board, body of
port commissioners or other authority legally entitled to, or entrusted by the Government
with, the control or management of a municipal or local fund;
Section 3 (11) Collector shall mean, in a Presidency town, the Collector of Calcutta,
Madras or Bombay, as the case may be, and elsewhere the chief officer in charge of the
revenue-administration of a district;
Section 3 (14) Commissioner shall mean the chief officer in charge of the revenueadministration of a division;
Section 3 (28) India shall mean,
(a) as respects any period before the establishment of the Dominion of India, British
India together with all territories of Indian Rulers then under the suzerainty of His Majesty,
all territories under the suzerainty of such an Indian Ruler, and the tribal areas;
(b) as respects any period after the establishment of the Dominion of India and before
the commencement of the Constitution, all territories for the time being included in that
Dominion; and
(c) as respect any period after the commencement of the Constitution, all territories for
the time being comprised in the territory of India;
Section 3 (30) Indian State shall mean any territory which the Central Government
recognized as such a State before the commencement of the Constitution, whether
described as a State, an Estate, a Jagir or otherwise;
Section 3 (58) State
(a) as respects any period before the commencement of the Constitution (Seventh
Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in
the First Schedule to the Constitution and shall include a Union territory;]
Section 3 (62A) Union territory shall mean any Union territory specified in the First
Schedule to the Constitution and shall include any other territory comprised within the
territory of India but not specified in that Schedule;]

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ANANYA R. BIBAVE
Section 3 (42) person shall include any company or association or body of individuals,
whether incorporated or not;
NOTES
The word person has been defined in very wide sense. But in any particular statute
the meaning of the word may get controlled by the context. (Dulichand v. CIT, AIR 1956 SC
254).
Section 3 (49) registered, used with reference to a document, shall mean registered in
India under the law for the time being in force for the registration of documents;
Section 3 (9) Chapter shall mean a Chapter of the Act or Regulation in which the word
occurs;
Section 3 (54) section shall mean a section of the Act or Regulation in which the word
occurs;
Section 3 (61) sub-section shall mean a sub-section of the section in which the word
occurs;
Section 3 (52) schedule shall mean a schedule to the Act or Regulation in which the
word occurs;
Section 3 (51) rule shall mean a rule made in exercise of a power conferred by any
enactment, and shall include a Regulation made as a rule under any enactment;
Section 3 (64) will shall include a codicil and every writing making a voluntary
posthumous disposition of property;
Section 3 (48) public nuisance shall mean a public nuisance as defined in the Indian
Penal Code (45 of 1860);
Section 3 (20) father, in the case of any one whose personal law permits adoption, shall
include an adoptive father;
Section 3 (57) son, in the case of any one whose personal law permits adoption, shall
include an adopted son;

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ANANYA R. BIBAVE
GENERAL RULES OF CONSTRUCTION:
Coming into operation of enactments:
Section 5. (1) Where any Central Act is not expressed to come into operation on particular
day, then it shall come into operation on the day on which it receives the assent,
(a) in the case of a Central Act made before the commencement of the Constitution, of
the Governor-General, and
(b) in the case of an Act of Parliament, of the President.
(3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as
coming into operation immediately on the expiration of the day preceding its
commencement.
Effect of repeal:
Section 6. Where this Act, or any Central Act or Regulation made after the commencement
of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under
any enactment so repealed; or
(d)

affect any penalty, forfeiture or punishment incurred in respect of any offence

committed against any enactment so repealed; or


(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or remedy may be instituted, continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing
Act or Regulation had not been passed.
Repeal of Act making textual amendment in Act or Regulation:
Section 6A. Where any Central Act or Regulation made after the commencement of this Act
repeals any enactment by which the text of any Central Act or Regulation was amended by
the express omission, insertion or substitution of any matter, then, unless a different
intention appears, the repeal shall not affect the continuance of any such amendment made
by the enactment so repealed and in operation at the time of such repeal.

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ANANYA R. BIBAVE
Revival of repealed enactments:
Section 7. (1) In any Central Act or Regulation made after the commencement of this Act, it
shall be necessary, for the purpose of reviving, either wholly or partially, any enactment
wholly or partially repealed, expressly to state that purpose.
(2) This section applies also to all Central Acts made after the third day of January, 1868,
and to all Regulations made on or after the fourteenth day of January, 1887.
Construction of references to repealed enactments:
Section 8. (1) Where this Act, or any Central Act or Regulation made after the
commencement of this Act, repeals and re-enacts, with or without modification, any
provision of a former enactment, then references in any other enactment or in any
instrument to the provision so repealed shall, unless a different intention appears, be
construed as references to the provision so re-enacted.
(2) Where before the fifteenth day of August, 1947, any Act of Parliament of the United
Kingdom repealed and re-enacted, with or without modification, any provision of a former
enactment, then references in any Central Act or in any Regulation or instrument to the
provision so repealed shall, unless a different intention appears, be construed as references
to the provision so re-enacted.
Commencement and termination of time:
Section 9. (1) In any Central Act or Regulation made after the commencement of this Act, it
shall be sufficient, for the purpose of excluding the first in a series of days or any other
period of time, to use the word from, and, for the purpose of including the last in a series of
days or any other period of time, to use the word to.
(2) This section applies also to all Central Acts made after the third day of January, 1868,
and to all Regulations made on or after the fourteenth day of January, 1887.
Computation of time:
Section 10. (1) Where, by any Central Act or Regulation made after the commencement of
this Act, any act or proceeding is directed or allowed to be done or taken in any Court or
office on a certain day or within a prescribed period, then, if the Court or office is closed on
that day or the last day of the prescribed period, the act or proceeding shall be considered
as done or taken in due time if it is done or taken on the next day afterwards on which the
Court or office is open:
Provided that nothing in this section shall apply to any act or proceeding to which the Indian
Limitation Act, 1877, applies.

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ANANYA R. BIBAVE
(2) This section applies also to all Central Acts and Regulations made on or after the
fourteenth day of January, 1887.
Measurement of distances:
Section 11. In the measurement of any distance, for the purpose of any Central Act or
Regulation made after the commencement of this Act, that distance shall, unless a different
intention appears, be measured in a straight line on a horizontal plane.
Duty to be taken pro rata in enactments:
Section 12. Where, by any enactment now in force or hereafter to be in force, any duty of
customs or excise, or in the nature thereof, is leviable on any given quantity, by weight,
measure or value of any goods or merchandise, then a like duty is leviable according to the
same rate on any greater or less quantity.
Gender and number:
Section 13. In all Central Acts and Regulations, unless there is anything repugnant in the
subject or context,
(1) words importing the masculine gender shall be taken to include females; and
(2) words in the singular shall include the plural, and vice versa.77