Nagar Palika Nigam vs Krishi Upaj Mandi Samiti & Ors

Nagar Palika Nigam ..Appellant

versus

Krishi Upaj Mandi Samiti and Ors. ..Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. A Bench of two learned Judges being of the view that one of the questions which is

interlinked with the interpretation of Section 9(3) of Madhya Pradesh Krishi Upaj Mandi

Adhiniyam, 1972 (in short the `Adhiniyam') would be whether having regard to the

provisions contained in Part IXA of the Constitution of India, 1950 (in short the

`Constitution') the Legislature of the State of M.P. had the requisite legislative

competence therefor. Respondent No.1 filed a writ petition before the Madhya Pradesh

High Court under Article 226 of the Constitution with basically two prayers. They are as

under:

"(1) The respondent No.1-Municipal Corporation, Ratlam has no jurisdiction or right to claim the property tax from the petitioner for the building and the superstructure constructed in the Market Yard within the area of Municipal Corporation, Ratlam.

(2) That the amount of Rs.70,000/- which has been deposited by the petitioner with respondent No.1 pursuant to the notice and auction proceedings initiated against the petitioner should be directed to be refunded to the petitioner. Interest on the said amount is also being claimed."

2. With reference to Section 9(3) of the Adhiniyam it was submitted that exemption

had been provided on the property on which no property tax could be levied even if the

same falls within the area of Municipal Corporation, Municipal Council, Notified Area,

Gram Panchayat or a Special Area Development Authority. Learned Single Judge

accepted the first prayer, but permitted the respondent-writ petitioner to avail such

remedy as is available by filing a civil suit in respect of second prayer.

3. Review petition was filed by the present appellant which was dismissed. A Letters

Patent Appeal was also filed, which was dismissed on the ground that the same was not

maintainable against an order passed in the review petition. The appeal was also without

merit.

4. The basic stand in the appeal was whether the Corporation had jurisdiction and

authority to assess and recover the property tax from respondent No.1 for the buildings,

superstructure constructed in the market yard within the area of Municipal Corporation,

Ratlam.

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5. During the course of hearing of the appeal, learned counsel for the appellant fairly

accepted that there was no challenge to the proviso appended to sub-section (3) of Section

9 of the Adhiniyam. It is also fairly accepted that the proviso casts out an exception.

6. Learned counsel for the respondents on the other hand submitted that in the

absence of a challenge to the legality of the proviso, there is no question of adjudicating

the issue which the reference Bench has considered to be of importance.

7. Section 9(3) of the Adhiniyam so far as relevant reads as under:

"(3) Nothing contained in the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959), and rules made thereunder in so far as they relate to diversion of land, revision of land revenue consequent on the change in the use of land from agriculture to any other purpose and other matters incidental thereto shall apply to land acquired by the market committee under sub-

section (1) or acquired by transfer, purchase gift or otherwise and use for the purpose of establishment of a market yard or a sub-market yard:

Provided that the premises used for market yard, sub-market yard or for the purpose of the Board shall not be deemed to be included in the limits of the Municipal Corporation, Municipal Council, Notified Area, Gram Panchayat or a Special Area Development Authority, as the case may be."

8. 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. As was stated in Mullins v. Treasurer of Survey [1880 (5) QBD 170],

(referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra

Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. v. Corporation of

Calcutta (AIR 1965 SC 1728); 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

3 included the subject matter of the proviso. The proper function of a proviso is to except

and to deal with a case which would otherwise fall within the general language of the

main enactment and its effect is confined to that case. It is a qualification of the preceding

enactment which is expressed in terms too general to be quite accurate. 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. "If the

language of the enacting part of the statute does not contain the provisions which are said

to occur in it you cannot derive these provisions by implication from a proviso." Said

Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647)

(HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It

carves out an exception to the main provision to which it has been enacted as a proviso

and to no other. (See A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors. (AIR 1991 SC

1406), Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR 1991

SC 1538) and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P)Ltd. and Ors.

(1994 (5) SCC 672).

9. "This word (proviso) hath divers operations. Sometime it worketh a qualification

or limitation; sometime a condition; and sometime a covenant" (Coke upon Littleton 18th

Edition, 146)

10. "If in a deed an earlier clause is followed by a later clause which destroys

altogether the obligation created by the earlier clause, the later clause is to be rejected as

repugnant, and the earlier clause prevails....But if the later clause does not destroy but

4 only qualifies the earlier, then the two are to be read together and effect is to be given to

the intention of the parties as disclosed by the deed as a whole" (per Lord Wrenbury in

Forbes v. Git [1922] 1 A.C. 256).

11. A statutory proviso "is something engrafted on a preceding enactment" (R. v.

Taunton, St James, 9 B. & C. 836).

12. "The ordinary and proper function of a proviso coming after a general enactment is

to limit that general enactment in certain instances" (per Lord Esher in Re Barker, 25

Q.B.D. 285).

13. A proviso to a section cannot be used to import into the enacting part something

which is not there, but where the enacting part is susceptible to several possible meanings

it may be controlled by the proviso (See Jennings v. Kelly [1940] A.C. 206).

14. The above position was noted in Ali M.K. & Ors. v. State of Kerala and Ors. (2003

(4) SCALE 197).

15. It is well settled principle in law that the Court cannot read anything into a statutory

provision which is plain and unambiguous. A statute is an edict of the Legislature. The

language employed in a statute is the determinative factor of legislative intent.

16. Words and phrases are symbols that stimulate mental references to referents. The

object of interpreting a statute is to ascertain the intention of the Legislature enacting it. 5 (See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr. (AIR

1998 SC 74)) The intention of the Legislature is primarily to be gathered from the

language used, which means that attention should be paid to what has been said as also to

what has not been said. As a consequence, a construction which requires for its support,

addition or substitution of words or which results in rejection of words as meaningless

has to be avoided. As observed in Crawford v. Spooner (1846 (6) Moore PC 1), Courts,

cannot aid the Legislatures' defective phrasing of an Act, we cannot add or mend, and by

construction make up deficiencies which are left there. (See The State of Gujarat and Ors.

v. Dilipbhai Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary to all rules of

construction to read words into an Act unless it is absolutely necessary to do so. (See

Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do

not permit Courts to do so, unless the provision as it stands is meaningless or of doubtful

meaning. Courts are not entitled to read words into an Act of Parliament unless clear

reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn

L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445 (HL), quoted in Jamma

Masjid, Mercara v. Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).

17. The question is not what may be supposed and has been intended but what has been

said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said,

"but words must be construed with some imagination of the purposes which lie behind

them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated

in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama (AIR 1990

SC 981).

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18. In Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc.

(AIR 1977 SC 842), it was observed that Courts must avoid the danger of a priori

determination of the meaning of a provision based on their own pre-conceived notions of

ideological structure or scheme into which the provision to be interpreted is somewhat

fitted. They are not entitled to usurp legislative function under the disguise of

interpretation.

19. While interpreting a provision the Court only interprets the law and cannot legislate

it. If a provision of law is misused and subjected to the abuse of process of law, it is for

the legislature to amend, modify or repeal it, if deemed necessary. (See Commissioner of

Sales Tax, M.P. v. Popular Trading Company, Ujjain (2000 (5) SCC 515). The legislative

casus omissus cannot be supplied by judicial interpretative process.

20. Two principles of construction - one relating to casus omissus and the other in

regard to reading the statute as a whole - appear to be well settled. Under the first

principle a casus omissus cannot be supplied by the Court except in the case of clear

necessity and when reason for it is found in the four corners of the statute itself but at the

same time a casus omissus should not be readily inferred and for that purpose all the parts

of a statute or section must be construed together and every clause of a section should be

construed with reference to the context and other clauses thereof so that the construction

to be put on a particular provision makes a consistent enactment of the whole statute. This

would be more so if literal construction of a particular clause leads to manifestly absurd

or anomalous results which could not have been intended by the Legislature. "An

intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. 7 Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other

construction available". Where to apply words literally would "defeat the obvious

intention of the legislature and produce a wholly unreasonable result" we must "do some

violence to the words" and so achieve that obvious intention and produce a rational

construction. (Per Lord Reid in Luke v. IRC (1966 AC 557) where at p. 577 he also

observed: "this is not a new problem, though our standard of drafting is such that it rarely

emerges".

21. It is then true that, "when the words of a law extend not to an inconvenience rarely

happening, but due to those which often happen, it is good reason not to strain the words

further than they reach, by saying it is casus omissus, and that the law intended quae

frequentius accidunt." "But," on the other hand, "it is no reason, when the words of a law

do enough extend to an inconvenience seldom happening, that they should not extend to

it as well as if it happened more frequently, because it happens but seldom" (See Fenton

v. Hampton 11 Moore, P.C. 345). A casus omissus ought not to be created by

interpretation, save in some case of strong necessity. Where, however, a casus omissus

does really occur, either through the inadvertence of the legislature, or on the principle

quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus

left unprovided for, must be disposed of according to the law as it existed before such

statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; "a

casus omissus," observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no case be

supplied by a court of law, for that would be to make laws."

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22. The golden rule for construing wills, statutes, and, in fact, all written instruments

has been thus stated: "The grammatical and ordinary sense of the words is to be 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" (See Grey v.

Pearson 6 H.L. Cas. 61). The latter part of this "golden rule" must, however, be applied

with much caution. "if," remarked Jervis, C.J., "the precise words used are plain and

unambiguous in our judgment, we are bound to construe them in their ordinary sense,

even though it lead, in our view of the case, to an absurdity or manifest injustice. Words

may be modified or varied where their import is doubtful or obscure. But we assume the

functions of legislators when we depart from the ordinary meaning of the precise words

used, merely because we see, or fancy we see, an absurdity or manifest injustice from an

adherence to their literal meaning" (See Abley v. Dale 11, C.B. 378).

23. At this juncture, it would be necessary to take note of a maxim "Ad ea quae

frequentius accidunt jura adaptantur" (The laws are adapted to those cases which more

frequently occur).

The above position was highlighted in Maulavi Hussein Haji Abraham Umarji v.

State of Gujarat (2004 (6) SCC 672).

24. Since there was no challenge at any point of time by the appellant to the proviso to

sub-section (3) of Section 9 on the alleged ground of lack of legislative competence, 9 obviously the High Court could not have dealt with that issue. Till now also, no such

challenge has been made by the appellant. That being so, we find no scope for

interference with the order passed by the High Court. In the circumstances indicated

above, there is no need to answer the reference made. If and when challenge is made to

the legislative competence to enact proviso to sub-Section (3) of Section 9, it goes

without saying, the same shall be considered in its proper perspective and in accordance

with law.

25. The appeal is disposed of without any order as to costs.

.................................J. (Dr. ARIJIT PASAYAT)

.................................J. (P. SATHASIVAM)

.................................J. (AFTAB ALAM)

New Delhi October 14, 2008

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