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Documents (17)
1. CHAPTER 1 BASIC PRINCIPLES

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2. CHAPTER 2 GUIDING RULES 1 of 2
3. CHAPTER 2 GUIDING RULES 2 of 2
4. CHAPTER 3 INTERNAL AIDS TO CONSTRUCTION
5. CHAPTER 4 EXTERNAL AIDS TO CONSTRUCTION 1 of 2
6. CHAPTER 4 EXTERNAL AIDS TO CONSTRUCTION 2 of 2
7. CHAPTER 5 SUBSIDIARY RULES 1 of 2
8. CHAPTER 5 SUBSIDIARY RULES 2 of 2
9. CHAPTER 6 OPERATION OF STATUTES 1 of 2
10. CHAPTER 6 OPERATION OF STATUTES 2 of 2
11. CHAPTER 7 EXPIRY AND REPEAL OF STATUTES
12. CHAPTER 8 STATUTES AFFECTING THE CROWN OR THE STATE
13. CHAPTER 9 STATUTES AFFECTING JURISDICTION OF COURTS
14. CHAPTER 10 CONSTRUCTION OF TAXING STATUTES AND EVASION OF STATUTES
15. CHAPTER 11 REMEDIAL AND PENAL STATUTES
16. CHAPTER 12 DELEGATED LEGISLATION
17. APPENDIX THE GENERAL CLAUSES ACT, 1897
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Mr.Srikanth -
(IN) G.P. Singh: Principles of Statutory Interpretation
G.P. Singh: Principles of Statutory Interpretation
Justice G P Singh
G.P. Singh: Principles of Statutory Interpretation > G.P. Singh: Principles of Statutory Interpretation
CHAPTER 1
Basic Principles
1. MEANING OF INTERPRETATION OR
CONSTRUCTION
Enacted laws, specially 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. But the experience of all those, who have to bear
and share the task of application of the law, has been different.1 It is quite often
that we find courts and lawyers busy in unfolding the meaning of ambiguous
words and expressions and resolving inconsistencies.2 The age old process of
application of the enacted law has led to formulation of certain rules of
interpretation or construction. “By interpretation or construction is
meant”, says Salmond: “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”.3 It has been said that there is a distinction between the two
expressions.4 As explained by Cooley: “Interpretation differs from construction
in that the former is the art of finding out the true sense of any form of words;
that is, the sense which their author intended to convey; and of enabling
others to derive from them the same idea which the author intended to convey.
Construction, on the other hand, is the drawing of conclusions, respecting
subjects that lie beyond the direct expression of the text from elements known
from and given in the text; conclusions which are in the spirit though not within
the letter of the law.”5 This distinction, however, “has been
largely relegated to the realm of academic discussion”,6 and has been criticised
as “erroneous”.7 Even conceding that there may be some abstract distinction
between the two, it cannot be doubted, as was observed by White, J. that “in
common usage interpretation and construction are usually understood as having
8
the same significance”. It may be added that the present work has followed this
common usage and the two expressions, hereinafter, have been used as
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synonymous.
2. INTENTION OF THE LEGISLATURE
A statute is an edict of the Legislature9 and the conventional way of interpreting

or construing a statute is to seek the ‘intention’ of its maker. A statute is to be
construed according “to the intent of them that make it”10 and “the duty of
judicature is to act upon the true intention of the Legislature—the mens or
11
sententia legis”. The expression ‘intention of the Legislature’ is a shorthand
reference to the meaning of the words used by the legislature objectively
determined with the guidance furnished by the accepted principles of
12
interpretation. If a statutory provision is open to more than one interpretation
the court has to choose that interpretation which represents the true
intention of the Legislature,13 in other words the ‘legal meaning’14 or ‘true
meaning’15 of the statutory provision. The task is often not an easy one and the
difficulties arise because of various reasons. To mention a few of them: Words
in any language are not scientific symbols having any precise or definite
meaning, and language is but an imperfect medium to convey one's thought,
much less of a large assembly consisting of persons of various shades of
opinion. It is impossible even for the most imaginative Legislature to forestall
exhaustively situations and circumstances that may emerge after enacting a
statute where its application may be called for. The function of the courts is
only to expound and not to legislate. The numerous rules of interpretation or
construction formulated by courts are expressed differently 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. A
word is used to refer to some object or situation in the real world and this object
or situation has been assigned a technical name referent. “Words and phrases
are symbols that stimulate mental references to referents.”16 But words of any
language are capable of referring to different referents in different contexts and
times. 17 Moreover, there is always the difficulty of borderline cases falling
within or outside the connotation of a word. Language, therefore, is likely to be
misunderstood. In ordinary conversation or correspondence it is generally open
for parties to obtain clarification if the ‘referent’ is imperfectly communicated.
The position is, however, different in the interpretation of statute law. A statute
as enacted cannot be explained by the individual opinions of the
legislators, not even by a resolution of the entire Legislature. After the enacting
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process is over, the Legislature becomes functus officio so far as that particular
statute is concerned, so that it cannot itself interpret it. The Legislature can no
doubt amend or repeal any previous statute or can declare its meaning but all
this can be done only by a fresh statute after going through the normal process
of law making.18 There are no doubt references that in good old days it was
permissible for the judges to go to the Legislature and enquire what they meant,
where the language of an Act was ambiguous or contradictory but happily
enough the practice is dead and bygone and there is no hope of its revival.19 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 arising out of ‘fringe’ meaning of words. There may be certain objects
or situations which may without any controversy fall within the content of a
word, but there may be many others on or near the borderline in respect of
which it may be a matter of doubt and serious argument whether they are within
or outside the connotation of the word. It is, therefore, said that words, in
addition to a hard central core of meaning have a “penumbra, a dim fringe”;20
and cases falling within or near to this fringe are apt to give rise to a sharp
difference of opinion. No one will dispute that the structure in which the High
Court of Madhya Pradesh is located is a ‘building’ but it may be a matter of
surprise to find that an open platform having no wall or roof is a building21
whereas a brick kiln (a pit dug in the ground with bricks by its side) is not
22
a building. Again, the assumption that a massive building like one housing the
High Court is a ‘structure’ may itself be debated. Indeed, it was
seriously though unsuccessfully argued in the House of Lords that a large
substantial permanent two storey building was not a structure.23
Further, a question may arise which may be answered differently in different
contexts whether ‘building’ includes land over which the superstructure stands
or whether it is confined to the superstructure.24 To take
another example, the question, whether a railway workman who was engaged in
cleaning and oiling a permanent way, was engaged in repairing it, was
answered in the negative by a margin of three to two in the House of Lords.25
The core of such problems is indicated by Lord Jowitt, L.C. in the following
words: “The question is essentially one of degree and that it is impossible to fix
any definite point at which ‘maintenance’ ends and ‘repair’
begins”.26 To the same effect are the words of Lord Cranworth, L.C.: “There
is no possibility of mistaking midnight for noon; but at what precise moment
27
twilight becomes darkness is hard to determine.” Faced with such problems
the courts although conscious of a dividing line, do not attempt to draw it for
reasons of practical impossibility and decide the particular case in hand as
falling within or outside the purview of the relevant words of the statute, after
laying down a working line or more appropriately some general working
principles.28 But in doing so the courts should avoid laying down so-called tests
to be applied in every case for the danger in prescribing and designating tests is
that it may divert attention from the language used in the statutory provision
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and encourage an approach not intended by the legislature.29
Legislation in a modern State is actuated with some policy to curb some public
evil or to effectuate some public benefit.30 The legislation is primarily directed
to the problems before the Legislature based on information derived from past
and present experience. It may also be designed by use of general words to
cover similar problems arising in future.31 But, from the
very nature of things, it is impossible to anticipate fully the varied situations
arising in future in which the application of the legislation in hand may be
called for, and, words chosen to communicate such indefinite ‘referents’ are
bound to be, in many cases lacking in clarity and precision and thus giving rise
to controversial questions of construction.32 This analysis later met the approval
of the Supreme Court.33
In all real controversies of construction if it were open to consult the Legislature

as to its intention, the answer of most of the legislators in all probability will be:
‘such a problem never occurred to us, solve it as best as you can, consistent
with the words used, and the purpose indicated by us in the statute’.34 The
legislative intent in such cases is a fiction representing the attitude of judges in
arriving at a solution by striking a balance between the letter and spirit of the
statute without acknowledging that they have in any way supplemented the
statute.35 That the duty of judges is to expound and not to legislate is a
fundamental rule, but this is now and has ever been merely an “aspiration”.
There is a marginal area in which the courts “mould or creatively interpret
legislation” and they are thus “finishers, refiners and polishers of legislation
which comes to them in a state requiring varying degrees of further
36
processing”. In deciding that ‘repair’ does not include cleaning and oiling;37
that there is notional extension of employment in the phrase ‘accident arising
out of and in the course of employment;38 that the word
‘accident’ in the same phrase includes murder;39 that
telephone is ‘telegraph’ within the meaning of that word in Acts of 1863 and
40
1869 when telephone was not invented, and in all alike cases of which
examples can be multiplied the courts have in effect added a definition clause
either to include or exclude something which was not prima facie included or
excluded in the words used by the Legislature. There are indeed opinions where
the fiction of intention is lifted and judges are seen acknowledging that
they are filling in the gaps,41 or that they have, by construction ‘added’42
certain words not contained in the enactment, or that the conclusion reached by
them is as if a like definition clause existed in the statute itself.43 Some judges
proclaim that they perform creative function even in interpretation.44 But such
an attitude may lead less disciplined amongst them to conclusions which have a
45
strong legislative flavour. So it is wise to adhere to the traditional expression
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and to call every process of construction a search for ‘intention’ express or

implicit in the statute, since the metaphor “by setting a goal to which the judge
46
aspires” has a tendency while present in his mind to reduce judicial law
making to its necessary minimum. 47
The intention of the Legislature thus 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 process of construction, 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 48
directed. This formulation later received the
approval of the Supreme Court and was called the “cardinal principle of
construction”.49
In all ordinary cases and primarily the language employed is the determinative
50
factor of legislative intention. “The first and primary rule of construction”,
said Gajendragadkar, J. “is that the intention of the Legislature must be found in
the words used by the Legislature itself.”51 The question is not what may be
supposed to have been intended but what has been said.52 “I do not care what
their intention was,” said Mr. Justice Holmes in a letter: “I
only want to know what the words mean.”53 Lord Brougham has more emphatically
stated the importance of the text of the statute in the following words: “If the
Legislature did intend that which it has not expressed clearly; much more, if the
Legislature intended something very different; if the Legislature intended pretty
nearly the opposite of what is said, it is not for judges to invent something
which they do not meet within the words of the text (aiding their
construction of the text always, of course, by the context).”54 These and like
opinions lay stress on one aspect of intention, i.e., what the words mean; and
undoubtedly to the extent the ‘referent’ is clearly indicated and the words have
a ‘plain’ meaning, the courts are not to busy themselves with “supposed
intention”55 or with “the policy underlying the statute”.56
But words used by the Legislature do not always bear a plain meaning.
Moreover, judges quite often differ on the issue whether certain words are plain
and even when there is an agreement that the words are plain, difference of
opinion may result on the question as to what the plain meaning is.57 In case of
doubt, therefore, it is always safe to have an eye on the object and purpose of
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the statute, or reason and spirit behind it.58 “I say that we

must look to what the purpose is”, was said by Lord Cairns:59 and it was
observed by Sir John Nicholl that “the key to the opening of every law is the
60
reason and the spirit of the law”. This aspect of ‘purpose’ is the very
foundation of the rule in Heydon's case reported by Lord Coke as far back as
1584. 61 Statutes “should be construed not as theorems of
Euclid”, said Judge Learned Hand, “but with some imagination of the purposes
62
which lie behind them.” “Each word, phrase or sentence” observed Mukherjea
J. “is to be construed in the light of general purpose of the Act
itself”.63 In the words of K. Iyer, J. the interpretative effort “must be
illumined by the goal though guided by the word”.64 For ascertaining the
purpose of a statute one is not restricted to the internal aid furnished by the
statute itself,65 although the text of the statute taken as a whole is the most
important material for ascertaining both the aspects of ‘intention’. Without
intending to lay down a precise and exhaustive list of external aids, Lord
Somervell has stated: “The mischief against which the statute is directed
and, perhaps though to an undefined extent the surrounding circumstances can
be considered. Other statutes in pari materia and the state of the law at the time
are admissible.” 66 These external aids are also brought in by widening the
concept of ‘context’ “as including not only other enacting provisions of the
same statute, but its preamble, the existing state of the law, other statutes in pari
materia, and the mischief which the statute was intended to remedy.”67 In
the words of Chinappa Reddy, J.: “Interpretation must depend on the text and
the context. They are the bases of interpretation. One may well say if the text is
the texture, context is what gives colour. Neither can be ignored. Both are
important. That interpretation is best which makes the textual interpretation
match the contextual. A statute is best interpreted when we know why it was
enacted.”68 The principle as stated by Mr. Justice Holmes is to the following
effect: “You construe a particular clause or expression by construing the whole
instrument and any dominant purposes that it may express. In fact, intention is a
residuary clause intended to gather up whatever other aids there may be to
interpretation besides the particular words and the dictionary”.69
According to Blackstone the most fair and rational method for interpreting a
statute is by exploring the intention of the Legislature through the most natural
and probable signs which are “either the words, the context, the subject-matter,
the effects and consequence, or the spirit and reason of the law”.70
The meaning of the expression ‘intention of the Legislature’ is explained in

another form by Lord Watson in an oft quoted passage where he called it a
“slippery phrase” 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
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ascertained from that which it has chosen to enact, either in express words or by
reasonable and necessary implication”.71 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.72 This formulation therefore does not in
effect reject the concept of “purpose” but contains the same within the import of
the phrase “necessary implication”.
A bare mechanical interpretation of the words and application of a legislative

intent devoid of concept of purpose will reduce most of the remedial and
73
beneficent legislation to futility. As stated by Iyer, J. “to be literal in meaning
is to see the skin and miss the soul. The judicial key to construction is the
composite perception of the deha and the dehi of the provision.”74 Even in
construing enactments such as those prescribing a period of limitation for
initiation of proceedings where the purpose is only to intimate the people that
after lapse of a certain time from a certain event a proceeding will not be
entertained and where a strict grammatical construction is normally the only
safe 75
guide, a literal and mechanical construction may have
to be disregarded if it conflicts with some essential requirement of fair play and
natural justice which the Legislature never intended to throw overboard.76
Similarly, in a taxing statute provisions enacted to prevent tax evasion are given
a liberal construction to effectuate the purpose of suppressing tax evasion
although provisions imposing a charge are construed strictly there being no
apriori liability to pay a tax and the purpose of a charging section being only to
levy a charge on persons and activities brought within its clear terms.77 For the
same reason, in a legislation relating to defence services “the
considerations of the security of the state and enforcement of high degree of
discipline additionally intervene and have to be assigned weitage while dealing
with any expression needing to be defined or any provision needing to be
interpreted. 78
The Courts are warned that they are not entitled to usurp legislative function
79
under the disguise of interpretation and that they must avoid the danger of an
apriori determination of the meaning of a provision based on their own
preconceived notions of ideological structure or scheme into which the
provision to be interpreted is somehow fitted.80 Caution is all the more necessary in
dealing with a legislation enacted to give effect to policies that are subject of
bitter public and parliamentary controversy for in controversial matters there is
room for differences of opinion as to what is expedient, what is just and what is
morally justifiable; it is the Parliament's opinion in these matters that is
81
paramount. This only means that Judges cannot interpret statutes in the light
of their views as to policy; but they can adopt a purposive interpretation if
they can find in the statute read as a whole or in the material to which they are
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permitted by law to refer as aids to interpretation an expression of Parliament's

purpose or policy.82 So there is no usurpation of function or danger when the
purpose or object of a statute is derived from legitimate sources83 and the words
are given an interpretation which they can reasonably bear to effectuate that
purpose or object. The correct interpretation is one that best harmonises the
words with the object of the statute. “A right construction of the
Act,” said Lord Porter, “can only be attained if its whole scope and object
together with an analysis of its wording and the circumstances in which it is
enacted are taken into consideration”.84 Judicial legislation, if any, in adopting
such a course does not go beyond the inevitable minimum. It is well to
remember what Judge Learned Hand said: “Compunctions about judicial
legislation are right enough as long as we have any genuine doubt as to the
breadth of the Legislature's intent, and no doubt, the most single factor in
ascertaining its intent is the word it employs. But the colloquial words of a
statute have not the fixed and artificial content of scientific symbols, they have
a penumbra, a dim fringe, a connotation, for they express an attitude or will,
into which our duty is to penetrate and which we must enforce when we can
ascertain it, regardless of imprecision in its expression”.85 The application of a
given legislation to new and unforeseen needs and situations broadly falling
within the statutory provision is within the interpretative jurisdiction of courts.
This is not legislation in strict sense but application and is within the court's
province.86 In deriving an implied obligation on the part of the Government to
give interim relief to the victims as the major inarticulate premise from the
spirit of the Bhopal Gas Leak Disaster Act, 1985, the scheme of the Act and the
language of sections 9 and 10, Sabyasachi Mukharji, C.J.I, observed: “This
approach to the interpretation of the Act can legitimately be called the
‘constructive intuition’ which, in our opinion is a permissible mode of viewing
the Acts of Parliament.”87 The learned Chief Justice explained that the
freedom to search for ‘the spirit of the Act’ or the quantity of
mischief at which it is aimed opens up the possibility of liberal interpretation
‘that delicate and important branch of judicial power, the concession of which is
dangerous, the denial ruinous’.88 The learned Chief Justice
then said: “Given this freedom it is a rare opportunity though never to be
misused and challenge for the judges to adopt and give meaning to the Act,
articulate and inarticulate, and thus translate the intention of the Parliament and
fulfil the object of the Act.”89
This does not, however, mean that judges should go on proclaiming that they
are playing the role of a law maker for an exhibition of judicial valour is likely
to make the less disciplined amongst them forget the line between adjudication
and legislation as the only sure safeguard against crossing the line is “an alert
recognition of the necessity not to cross it and instinctive, as well as trained
reluctance to do so”.90 Further, the perorations and sermons of judicial activism
are likely to lead to confusion in the public mind and shake their confidence in
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the rule of law. As stated by Lord Radcliffe: “Judges will serve the public
interest better if they keep quiet about their legislative function. No doubt they
will discreetly contribute to changes in the law, because they cannot do
otherwise even if they would. But the Judge who shows his hand, who
advertises what he is about may indeed show that he is a strong spirit,
unfettered by the past; but I doubt very much whether he is not doing more
harm to the general confidence in the law as a constant, safe in the hands of the
Judges, than he is doing good to the laws credit as a set of rules nicely attuned
to the sentiment of the day”.91 The Judges have no doubt a genuine creative role
but as warned by Lord Scarman “the
Constitution 's separation of powers, or more accurately
functions, must be observed if judicial independence is not to be put at risk. For
if people and Parliament come to think that the judicial power is to be confined
by nothing other than the judge's sense of what is right (or, as Seldon put it by
the length of the Chancellor's foot), confidence in the judicial system
will be replaced by fear of it becoming uncertain and arbitrary in its application.
Society will then be ready for Parliament to cut the power of judges. Their
power to do justice will become more restricted by law than it needs be, or is
today”. 92
In a case which related to the question whether workmen have a right to be

heard in the winding up petition of a Company under the
Companies Act, 1956 , Venkataramaiah, J. unsuccessfully exhorted his brethren
to keep up the discipline and to avoid making inroads in the legitimate
domain of the Legislature by a majority of one.93 In a later case which related to
interpretation of clause 3(b) of
section 127 of the Code of Criminal Procedure, 1973
which makes the provision for maintenance to a wife inapplicable to a divorced
woman when she has received “the whole of the sum which, under any
customary or personal law applicable to the parties was payable on such
divorce”, the Supreme Court in its zeal to ameliorate the condition of Muslim
women held that deferred dower is not a sum payable “on divorce” on the
reasoning that it is an amount payable as a mark of respect for the wife although
holding that divorce is a convenient or identifiable point of time at which the
amount is payable.94 The speech of the Minister for Home Affairs piloting the
Bill in the Rajya Sabha, to which the court was referred, clearly showed that the
clause 3(b) was inserted with a view not to change the Muslim Personal Law.
The fine distinction drawn by the court that deferred dower though payable at
the time of divorce is not payable on divorce is casuistical. The decision led to a
great controversy and was followed by legislation, namely the
Muslim Women (Protection of Rights on Divorce) Act ,
1966, prima facie to nullify the decision. In the words of a two judge bench of
the Supreme Court “the Parliament enacted the Act to undo the effect of the
constitution bench decision in Mohd. Ahmed Khan v. Shah
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Bano Begum Mohd. Ahmed Khan v. Shah Bano Begum (note

94, supra) because the said decision was strongly opposed by a section of the
Muslim community”.95 But surprisingly later another
constitution bench decision of the Supreme Court in
Daniel Latifi v. Union of India Daniel Latifi v. Union of India
96 came to the conclusion that Parliament did nothing of that kind and the Act
instead of nullifying the decision in Shah Bano “actually and in reality codifies
what was stated in Shah 97
Bano's case.” In this case interpreting section
3(a) of the Act which provides that a divorced woman shall be entitled to ‘a
reasonable and fair provision and maintenance to be made and paid to her
within the period of iddat by her former husband’, the court held that the
obligation of the former husband of making reasonable provision and paying
maintenance to the divorced wife is not limited to the period of iddat, that the
words ‘within the iddat period’ only indicate the time by which an arrangement
for payment of provision and maintenance should be concluded and that the Act
would exclude from liability for post iddat period maintenance to a man who
has already discharged his obligations of both ‘reasonable and fair provision’
and ‘maintenance’ by paying these amounts in a lump sum
within the iddat period for the post iddat period also.98 It is the plight of the
Muslim divorced women and not so much the words of the Acts which
motivated the court in both the
constitution bench decisions to reach its conclusions. As frankly
observed in Shah Bano's case “the role of the reformer has to be assumed by the
courts because, it is beyond the endurance of sensitive minds to allow injustice
to be suffered when it is so palpable.”1 While dealing with
sections 7 and 8 of Chota Nagpur Tenancy Act, 1908 which limits the
succession of lands held by tenants of scheduled tribes to male descendants and
excludes females, K. Ramaswami, J., was of the view that the expression ‘male
descendants’ should be construed to include female descendants and the
provisions of the
Hindu Succession Act, 1956 and the
Indian Succession Act, 1925 should be extended judicially to apply to
scheduled tribes to ameliorate the condition of females. But this ultraactivist
view was not accepted by the majority (Kuldip Singh and Punchhi,
JJ.) who advised self restraint and cautious approach in making judge made
amendments though it may appear to be conservative.2 In the words of Cardozo,
“the judge is not to innovate at pleasure. He is not a knight-errant roaming at
will in pursuit of his own ideal of beauty or of goodness.”3
The Courts cannot interpret a statute the way they have developed the common
law “which in a constitutional sense means judicially developed equity”.4 In
abrogating or modifying a rule of the common law the courts exercise “the
same power of creation that built up the common law through its exercise by
judges of the 5
past”. The courts can exercise no such power
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in respect of statutes. Therefore, in their task of interpreting and applying a

statute, judges have to be conscious that in the end the statute is the master and
not the servant of the judgment6 and that “no judge has a choice
between implementing the law and disobeying it.”7
Judges have more freedom in interpreting a

Constitution 8 but this freedom also has to
be contained within permissible limits9 for “the
Constitution does not give unlimited powers to anyone including the
judges of all levels”10 and it is necessary for protecting judicial independence
that judges remain “circumspect and self disciplined in the discharge of their
11
judicial functions.” As recently observed by the Chief Justice of Australia,
“Judges have no right to subvert the law” in the name of creativity “because
they disagree with a particular rule.”12 The abuse of power by the Government
in areas which are not satisfactorily redressable by judicial review should not
form the articulate or inarticulate reason for depriving the Government of a
power conferred on it by the
Constitution or a statute by a strained construction or
13
overactivism. Such abuses have to be left to be taken care of by public
criticism and ultimately by the people.
The numerous decisions which the Courts have delivered and continue to
deliver dealing with questions of exposition of enacted laws are the principal
source for ascertaining the rules of interpretation or construction. The
formulations of the rules even in leading decisions are not quite uniform as
most often even a generalised statement in a case gets coloured by an emphasis
on the problem in that case. Indeed the courts are, at times, seen lamenting over
the growth of the rules and apparent conflict in them because of confusion and
error of judgment that is likely to result in blind adherence to them. Viscount
Simonds said: “Since a large and ever increasing amount of time of the courts
has, during the last three hundred years, been spent in the interpretation and
expositions of statutes, it is natural enough that in a matter so complex, the
guiding principles should be stated in different language and with such varying
emphasis on different aspects of the problem that support of high authority may
be found for general and apparently irreconcilable propositions. I shall
endeavour not to add to their number”.14 In the same case Lord Somervell,
before citing a well-known formulation by Sir John Nicholl, observed:
“It is, I hope, not disrespectful to regret that the subject was not left where Sir
15
John Nicholl left in 1826”. Lord Evershed in his foreword to the 11th Edition
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of Maxwell said: “It is my hope that out of the vast body of judicial decisions
on the interpretation of statutes, there will, in the end, emerge rules few in
number but well understood generally applicable or applicable to particular or
defined classes of legislation, which may supersede and render obsolete other
dicta derived from a different age and a different philosophy”.16
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.17 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. 18 By boldly rejecting
outmoded rules, by substituting, if necessary, new rules in their place19 and by
20
avoiding unnecessary generalization the superior courts can help in the task of
rationalisation of the rules. In applying the rules it must be kept in view that as
the rules are not binding in the ordinary sense like a legislation, “they are our
servants and not masters. They are aids to construction, presumptions or
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 decide as
a matter of judgment what weight to attach to any particular
rule”.21
One need not blame the courts alone for creating some confusion in this branch
of our law. Although a perfect draftsman exists only in theory not in practice,22
some amount of responsibility must also be shared by the parliamentary
23
draftsman. The utility of the rules of interpretation is based on the theory that
the Legislature in formulating its legislation keeps the rules in view so that it
may not be misunderstood by the courts. “There is an inevitable interaction”,
said Lord Du Parcq, “between the methods of parliamentary drafting and the
principles of judicial interpretation”.24 However, the rules enunciated by courts
are not binding on the Legislature and if the Legislature does not follow them,
the court's duty is not to misinterpret the law. As observed by Lord Du Parcq as
Lord Justice: “the courts have not, and certainly do not, claim the right to say to
Parliament or to its draftsman: observe the rules which we lay down or, though
your meaning may be perfectly clear, we will teach you a lesson by
interpreting your language in a sense which you obviously did not intend”.25
Whenever the draftsman departs from the rules, and it is certainly not a rare
occurrence, the courts are led to the necessity of modifying the general rules or
of engrafting exceptions to them, the result being that in many cases there
ceases to be any general rule or at any rate any general intelligible rule. Further,
“fashions in parliamentary draftsmanship and attitude of the Legislature
towards innovations in established law are not unchanging”.26 Such changes
have their interaction on the relative importance to be attached to the
competing canons of construction. “A trend away from the purely literal
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towards the purposive construction of statutory provisions”27

is a pointer in that direction.
With the widening of the idea of context and importance being given to the rule
that the statute has to be read as a whole in its context28 it is
nowadays misleading to draw a rigid distinction between literal and purposive
approaches. The difference between purposive and literal constructions is in
truth one of degree only.29 The real distinction lies in the balance to be struck in
the particular case between literal meaning of the words on the one hand and
the context and purpose of the measure in which they appear on the other.
When there is a potential clash, the conventional English approach has been to
give decisive weight to the literal meaning but this tradition is now weakening
in favour of the purposive approach30 for the pendulum has
swung towards purposive methods of constructions. 31
A handbook compiling the rules attempts to present the guiding principles

explaining as far as possible the apparent conflict in them and illustrating their
application with reference to decided cases. But such a handbook only presents
a set of tools and gives some general guidance for their use. Any book, for
example, will tell that the text of a statute should not be sacrificed by lofty
references to purpose or spirit which is not discernible, but when the purpose or
object of a statute is clear it should not be defeated by a mechanical
construction even if there is some ineptness in language. But these rules and
similarly all other rules by themselves yield no solution.32 An
intelligent application of the rules and the solution in each real difficulty
depends upon the individual skill of a judge. The judges of the superior courts
who form a dissenting minority on a question of construction of a statute are not
ignorant of the rules of construction; the difference of opinion results mainly
because of the spirit in which each judge applies the rules and how-far he can
go to make the words promote the object and policy which the statute was
designed to achieve. 33 By combining knowledge, wisdom and experience great
judges develop the instinct of finding out that solution which harmonizes the
words with the policy or object behind them. Judge Learned Hand tells us that
Justice Cordozo 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 word and the purpose which lay behind it.”34 What was that which made it
possible for Cordozo to reach a conclusion, “just that compromise between
the letter and the spirit” is further told by Hand: “it was wisdom, and like most
wisdom, his ran beyond the reasons which he gave for it.”35
And the same is true of all handbooks and all great judges.
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3. 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
context here means, the statute as a whole, the previous state of the law, other
statutes in pari materia, the general scope of the statute and the mischief that it
36
was intended to remedy. This statement of the rule was later fully adopted by
the Supreme Court. 37
It is a rule now firmly established38 that the intention of the Legislature must be
found by reading the statute as a whole. The rule is referred to as an
39
“elementary rule” by Viscount Simonds; a “compelling rule” by Lord
Somervell of Harrow;40 and a “settled rule” by B.K. Mukherjee, J.41
“I agree”, said Lord Halsbury, “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”.42 And
said Lord Davey: “Every clause of a statute should be construed with reference
to the context and other clauses of the Act, so as, as far as possible, to make a
consistent enactment of the whole statute or series of statutes relating to the
subject-matter.”43 It is spoken of construction “ex visceribus
44
actus”. “It is the most natural and genuine exposition of a statute”, laid down
Lord Coke “to construe one part of a statute by another part of the same statute,
for that best expresseth the meaning of the makers”.45 To ascertain the meaning
of a clause in a statute the court must look at the whole statute, at what precedes
and at what succeeds and not merely at the clause itself,46 and, “the
method of construing statutes that I prefer”, said Lord Greene, M.R. “is to read
the statute as a whole and ask oneself the question: ‘In this state, in this context,
relating to this subject-matter, what is the true meaning of that
47
word’?” As stated by Sinha, C.J.I.: “The court must ascertain the intention of
the Legislature by directing its attention not merely to the clauses to be
construed but to the entire statute; it must compare the clause with the other
parts of the law, and the setting in which the clause to be interpreted occurs.”48
The rule is of general application as even plainest terms may be controlled by

49
the context, 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 neutralise its effect”.50 The
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same word may mean one thing in one context and another in a different
context.51 For this reason the same word used in different sections52 of a statute
or even when used at different places in the same clause or section53 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.54 How far and to what extent each
component part of the statute influences the meaning of the other part would be
different in each given case. But the effect of the application of the rule to a
particular case, should not be confounded with the legitimacy of applying it.
In an appeal before the House of Lords,55 where the question was of the true import
of a statute, the Attorney-General wanted to call in aid the preamble in support
of the meaning which he contended should be given to the enacting part, but in
doing so was met by the argument on behalf of the respondent that where the
enacting part of a statute is clear and unambiguous, it cannot be controlled by
the preamble which cannot be read. The House of Lords rejected the objection
to the reading of the preamble, although, ultimately it came to the conclusion
that the enacting part was clear and unambiguous. Viscount Simonds (Lord
Tucker agreeing) in that connection said: “I conceive it to be my right and duty
to examine every word of a statute in its context, and I use context in its widest
sense as including not only other enacting provisions of the same statute, but its
preamble, the existing state of the law, other statutes in pari
materia, and the mischief which I can, by those and other legitimate means,
discern that the statute was intended to remedy.” 56 Lord
Somervell put the matter thus: “A question of construction arises when one side
submits that a particular provision of an Act covers the facts of the case and the
other submits that it does not or it may be agreed it applies, but the difference
arises to its application. It is unreal to proceed as if the court looked first at
the provision in dispute without knowing whether it was contained in a
Finance Act or a Public Health Act. The title and general scope of the
Act constitute the background of the contest. When the Court comes to the Act
itself, bearing in mind any relevant extraneous matters, there is, in my opinion
one compelling rule. The whole, or any part, of the Act may be referred to and
relied on.”57 He then went on to quote with approval the following observations
of Sir John Nicholl: “The key to the opening of every law is the reason and the
spirit of the law—it is the animus imponentis, the intention of
the law-maker, expressed in the law itself, taken as a whole. Hence to arrive at
the true meaning of any particular phrase in a statute, that particular phrase is
not to be viewed detached from the context—meaning by this as well the title
and the preamble as the purview or enacting part of the statute.”58 Lord
Normand was also of the same opinion.59
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As rightly pointed out by the High Court of Australia, “the modern approach to
statutory interpretation (a) insists that the context be considered in the first
instance, not merely at some later stage when ambiguity might be thought to
arise, and (b) uses context in its widest sense to include such
things as the existing state of the law and the mischief which, by legitimate
means—one may discern the statute was intended to remedy.”60
Lord Steyn recently expressed the same view as follows: “The starting point is
that language in all legal texts conveys meaning according to the circumstances
in which it was used. It follows that context must always be identified and
considered before the process of construction or during it. It is therefore wrong
to say that the court may only resort to evidence of the contextual scene when
an ambiguity has arisen.”61 Lord Bingham in a later case said:
“The controversial provision should be read in the context of statute as a whole,
and the statute as a whole should be read in the historical context of the
situation which led to its enactment”.62
The modern concept of context may in cases, when the language is borrowed
from earlier legislation and judicial decisions, encompass the entire historical
background of the statutory provision. In interpreting the words ‘as of right’ in
section 22(1) of the Commons
Registration Act , 1965, Lord Hoffman said: “The language is plainly
derived from judicial pronouncements and earlier legislation on acquisition of
rights by prescription. To put the words in their context it is therefore
necessary to say something about the historical background.63 Lord Hoffman
then proceeded to refer to the development of the English Law of prescription
viz., all relevant statutes beginning from the statute of Merton 1235 (20 Henry
3, and 4), the common law rule that the user had to be necvi,
necclam, nec precario (not by force, nor by stealth, nor the licence of the
owner) and the relevant decisions. He then held that the user which was
apparently ‘as of right’ did not cease to be so merely because many of the users
were subjectively indifferent, whether a right existed or did not exist for to hold
otherwise would be inconsistent with the principles of prescription with an
unbroken line of descent, from the common law rule and the Acts of 1832 and
1932, in English Law. 64
In a case65 relating to the Restrictive Trade Practices Act, 1956, the question
before the House of Lords was whether Restrictive Practices Court has
jurisdiction to entertain a reference in regard to an agreement which has been
terminated before the reference is begun. Sections 20 and 21 looked at without
regard to other sections of the Act are apt to lead to the conclusion that the
jurisdiction is limited to subsisting agreements; but this view was not accepted
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by the House of Lords having regard to the Act read as a whole. Lord Evershed
observed: “But in truth it is not, as I conceive, legitimate to read
section 20 and section 21, bereft of their context—more particularly without
having first read the first nineteen sections of the Act. There is, indeed, solid
and respectable authority for the rule that you should ‘begin at the beginning
and go on till you come to the end; then stop’; and in my opinion the rule
is—I conceive—peculiarly proper when construing an Act of Parliament and
seeking to discover from the Act the Parliamentary intention.”66
Rule 7 of the Delhi Higher Judicial Service Rules, 1970 provides for
recruitment by promotion and by direct recruitment. There is a proviso to the
rule which says “Provided that not more than one-third of the substantive posts
in the service shall be held by direct recruits.” By itself the language of the
proviso is consistent with the view that it imposes a ceiling and does not
provide for a quota. But this view was not accepted in face of Rule 8 which lays
down that seniority of direct recruits vis-a-vis promotees shall
be determined in the order of rotation of vacancies based on the quotas of
vacancies reserved for both categories by Rule 7. It was held that having regard
to Rule 8 the true intendment of the proviso to Rule 7 is that one-third of the
substantive posts must be reserved for direct recruits. In that context
Chandrachud, C.J.I observed: “One must have regard to the scheme of the
fasciculus of the relevant rules or sections in order to determine the true
meaning of any one or more of them. An isolated consideration of a provision
leads to the risk of some other interrelated provision becoming otiose or devoid
of meaning.” 67
In construing the word ‘sale’ in the Madras General Sales Tax Act, 1939, before
its amendment in 1947, the Supreme 68
Court held that the
definition of ‘sale’ as it then stood laid stress on the element of transfer of
property and that the mere fact that the contract for sale was entered into within
the province of Madras did not make the transaction, which was completed in
another province, a sale taxable within the meaning of the Act. The Supreme
Court in arriving at that conclusion referred to the title, preamble,
definition and other enacting provisions of the statute as also to the subsequent
amendments made in the statute. B.K. Mukherjea, J. speaking for the court
stated: “It is a settled rule of construction that to ascertain the legislative intent,
all the constituent parts of a statute are to be taken together and each word,
phrase or sentence is to be considered in the light of the general purpose of the
Act itself”.69 The same learned judge, speaking again for
the court, on an earlier occasion stated the rule thus: “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
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light of the purpose and object of the Act itself.”70 To the

same effect are the observations of S.K. Das, J: “The meanings of words and
expressions used in an Act must take their colour from the context in which
71
they appear.” Applying the same principle in another case he again stated:
“When the context makes the meaning of a word quite clear, it becomes
unnecessary to search for and select a particular meaning out of the diverse
meanings a word is capable of, according to lexicographers.”72
In interpreting
section 150 of the Representation of the People Act, 1951
, which requires that on the happening of a casual vacancy ‘the Election
Commission shall, by a notification in the Official Gazette call upon the
Assembly constituency concerned to elect a person for the purpose of filling the
vacancy’, the Supreme Court pointed out that the section cannot be read in
isolation without reference to Part III of the Act which prescribes the
machinery for calling in question the election of a returned candidate. It was
held that on a reading of all these provisions together the duty of the Election
Commission to hold a bye-election on resignation of a member imposed by
section 150 need not be discharged forthwith if the election of that member has
been called in question by an election petition in which the petitioner has also
claimed a relief that he should be deemed to be duly elected; and that the
Election Commission can await the final adjudication of the election petition for
if the petitioner succeeds in getting the declaration that he has been duly
elected, there would be no necessity of holding any bye-election.73
Section 202 of the Hyderabad Municipal Corporation Act, 1955 exempts

“buildings and lands vesting in the Corporation” from property tax and section
204 provides that property tax shall be leviable primarily from the occupier if
he holds the premises directly from the Corporation. The question before the
Court was whether Corporation property in possession of allottees under hire
purchase agreements was exempt from tax. The Court held reading both the
sections together that such property was not exempt and the exemption was
limited to those cases where property vested in the Corporation both in title and
possession as otherwise section 204 would become inoperative.74
The principle that the statute must be read as a whole is equally applicable to
different parts of the same section. The section must be construed as a whole
whether or not one of the parts is a saving clause or a proviso.75
Subbarao, J. calls it “an elementary rule that construction of a section is to be
76
made of all the parts together,” and that “it is not permissible to omit any part
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of it; the whole section should be read together”.77 Sub-sections in a section

must be read as parts of an integral whole and as being interdependent, “each
portion throwing light, if need be, on the rest”.78
Section 13(a)(ii) of the Punjab Rent Restriction Act, 1949, enables a landlord to
obtain possession in the case of rented land if “(a) he requires it for
his own use; (b) he is not occupying in the urban area for the purpose of his
business any other such rented land; and (c) he has not vacated such rented land
without sufficient cause after the commencement of the Act in the urban area
concerned”. The High Court of Punjab held that the words “for his own use” in
clause (a) permitted the landlord to claim eviction for his own use whatever
may be the nature of the use. In reversing the High Court the Supreme Court
held that all the three clauses were to be read together and clause
(a) was restricted to business use as were clauses (b) and (c). It was pointed out
that if this restricted meaning were not given to the words “for his
own use” in clause (a) the later two clauses would become inapplicable.79
Lord Blanesburg, in an appeal from Bombay, criticising the judgment of the

Chief Justice, said: “He has not availed himself, as an aid to construction of the
light thrown upon each of its expressions by the presence within it of others.
Further in his construction of the words he has, they think, hardly had sufficient
regard to the setting in which they are found.”80 In this case, the question
involved was of construction of section 30 of the Sea
Customs Act , 1878, which in clause (a) defines ‘real value’
as meaning ‘wholesale cash price, less trade discount for which the goods of
like kind and quantity are sold, or are capable of being sold’. The High Court
held that the expression ‘wholesale price’ as here used meant a
price paid on a sale of substantial quantity of goods rather than a price in
contrast with retail price. The Privy Council81 reversing the High Court held
that ‘wholesale price’ was used in contradistinction with retail price as was
indicated by the association of that expression in the said clause with words
‘trade discount’.
As already stated, the rule that the statute has to be read as a whole and that
words should be studied in their context is of general application but since “you
must have a context even more plain”82 to control plain
words, the practical utility of the rule is more visible in construction of general
words and in resolving inconsistencies by recourse to harmonious
construction.83
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4. STATUTE TO BE CONSTRUED TO MAKE IT EFFECTIVE

AND WORKABLE
The courts strongly lean against a construction which reduces the statute to a
84
futility. A statute or any enacting provision therein must be so construed as to
make it effective and operative “on the principle expressed in the maxim: ut res
magis valeat quam pereat”.85 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.86 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,”87 or when “it is
impossible to resolve the ambiguity,”88 i.e., when the
language is absolutely 89
meaningless. As laid down by
Farwell, J. “unless the words were so absolutely senseless that I could do
nothing at all with them, I should be bound to find some meaning, and not to
declare them void for 90
uncertainty”. Lord Denning approving Farwell, J.,
stated the principle thus: “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
91
than reject it as a nullity”. And it was said by Lord Dunedin: “It is our duty to
make what we can of statutes, knowing that they are meant to be operative, and
not inept, and nothing short of impossibility should in my judgment allow a
judge to declare a statute unworkable”.92 The principle was reiterated by him in
a later case where he observed: “A statute is designed to be
workable, and the interpretation thereof by a court should be to secure that
object, unless crucial omission or clear direction makes that end unattainable”.93
The Courts will therefore reject that construction which will defeat the plain
intention of the Legislature even though there may be some inexactitude in the
language used.1 “If the choice is between two interpretations”, stated Viscount
Simon, L.C. “the narrower of which would fail to achieve the manifest purpose
of the legislation we should avoid a construction which would reduce the
legislation to futility, and should rather accept the bolder construction, based on
the view that Parliament would legislate only for the purpose of bringing about
an effective result”.2 The courts may complain that the enactment is “mind
twisting” or
an “enigma” yet they do not readily concede that no meaning can be given to
it,3 and in their comity with the Legislature, they strive hard to give meaningful
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life to legislative enactments and avoid cadaveric consequences.4

“It is not an adequate discharge of duty”, said Holmes J., “for courts to say: we
see what you are driving at, but you have not said it, therefore we shall go on as
5
before.” So the courts are at least now, when purposive construction is gaining
momentum, very reluctant to hold that Parliament has achieved nothing by the
language it used when it is tolerably plain what it wished to achieve.6
An example of the working of the rule is furnished in the construction of

section 18-A(9) of the Indian Income-tax Act, 1922 , by
7
the Supreme Court. The contention there, was that when action of imposing
penalty was sought to be taken under section 28 for failure to comply with
section 18-A(3), the conditions as to notice under section 22(1) or 22(2)
must be satisfied. The Supreme Court negatived this contention and supported
its conclusion by pointing out that the construction suggested will make section
18-A(9)(b) wholly nugatory. Gajendragadkar, J. said: “If we accede to this
contention we must hold that though the Legislature enacted section 18-A(9)(b)
with the very object of bringing the failure to send estimates under section
18-A(3) within the operation of section 28, it signally failed to achieve its
object. A construction which leads to such a result must, if that is possible, be
avoided, on the principle expressed in the maxim ut res magis valeat quam
pereat.” 8
The
Income-tax Act, 1961 , which repeals the predecessor Act of 1922 provides in
section 297(2)(j) that notwithstanding the repeal “any sum payable by way of
income-tax, super-tax, interest, penalty or otherwise under the repealed Act may
be recovered under this Act, but without prejudice to any action already taken
for the recovery of such sum under the repealed Act”. In spite of
this provision the Mysore High Court held that the group of sections 220 to 234
of the 1961 Act which deal with collection and recovery of tax could not be
applied for recovery of tax assessed under the old Act. Reversing the High
Court the Supreme Court observed that the effect of the judgment of the High
Court was to nullify section 297(2)(j) and to declare it to be of no
consequence and that an interpretation leading to such a startling result should
be avoided as it is opposed to all sound canons of construction. The Court held
that the procedure of the new Act for recovery of tax will apply mutatis
mutandis for recovery of tax assessed under the repealed Act.9
A further example of the application of the rule may be noticed in a case

relating to the Hyderabad District Municipalities Act, 1956.10 The Act
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repealed an earlier Act on the same subject and by section 320 continued the
committees functioning under the repealed Act till the first meeting of the
committee constituted under the new Act. By section 16(1) the Act provided:
‘Every general election requisite for the purpose of this Act shall be held by the
Collector in the manner prescribed within three months before the expiry of the
term of office of the members of the committee as specified under section 34’.
The term of three years specified under section 34 was inapplicable to a
committee continued under section 320 for such a committee was to continue
till the first meeting of the committee constituted under the Act. The argument
on the language of section 16, therefore, was “that the
Collector's power to hold a general election is confined to section 16(1) and, as
in the case of the members of the committee deemed to have been constituted
under the Act the second limb of the section cannot apply and as the Collector's
power is limited by the second limb of the section, the Collector has no
power to hold the first general election under the Act”.11 Countering this
argument Subbarao, J. said: “If this interpretation be accepted, the Act would
become a dead letter and the obvious intention of the Legislature would be
defeated. Such a construction cannot be accepted except in cases of absolute
intractability of the language used. While the Legislature repealed the earlier
Act with an express intention to constitute new committees on broad based
democratic principles, by this interpretation the committee under the old Act
perpetuates itself indefinitely”.12Section 16(1) was therefore held inapplicable
to the first election after the Act came into force and was construed as confined
to subsequent elections.
Another example of the rule is furnished in the construction of

section 12 of the Limitation Act, 1963 . There was a difference of opinion under
the old
Limitation Act whether time taken by the office in drawing up a decree or
order before the making of application for copy of the decree or order could be
included in the time requisite for obtaining the copy and thus excluded in
computing the period of limitation for appeal, revision etc. The Law
Commission recommended that this period should not be excluded in
computing limitation. With the object of giving effect to this recommendation,
an Explanation is provided in section 12 which reads: “In computing under this
section the time requisite for obtaining a copy of decree or an order, any time
taken by the court to prepare the decree or order before an application for
a copy thereof is made shall not be excluded”. The Bombay and Orissa High
Courts in construing the Explanation held that the words “shall not be
excluded” meant that the time covered by the Explanation would be included in
computing the time requisite for obtaining the copy and thus excluded from
computing the period of limitation. The result so reached was exactly opposite
to the purpose for which the Explanation was added. The Supreme Court,13
therefore, overruled the above view of the Bombay and Orissa High Courts and
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held that the words “shall not be excluded” in the Explanation meant
that the time covered by the Explanation shall not be excluded in computing the
period of limitation and not that it shall not be excluded in computing the time
requisite for obtaining a copy. The court, after referring to the recommendations
of the Law Commission and the Objects and Reasons of the Bill, observed that
it was happy that by its conclusion it was effectuating the object for which the
Explanation was added.
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.14 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
15
led to those judgments. Yet by careless drafting the Legislature may sometime
wholly 16 17
or partially fail to achieve the object of validation.
For example, a validating Act cannot be valid and effective if it simply deems a
legal consequence without amending the law from which the said legal
consequence could follow. Thus if certain area was not validly included in a
municipality, a validating Act which simply declares it to be included would be
ineffective unless the law is amended retrospectively curing the defect in the
inclusion of the area.18 Similarly a validation Act which effects validation by
declaring non-existent facts as existing may also be ineffective if the declaration
violates the
constitution 19
. A validating Act will also be ineffective to the
extent it even otherwise violates the
constitution . 20
The same principle is applied in construing machinery sections of a taxing

statute so as to make that machinery workable.21
5. IF MEANING PLAIN, EFFECT MUST BE GIVEN TO IT

IRRESPECTIVE OF CONSEQUENCES
When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible
to only one meaning, the courts are bound to give effect to that meaning
irrespective of consequences.22 The rule stated by Tindal, C.J. in Sussex Peerage case is in the
following form: “If the words of the statute are in themselves precise and
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unambiguous, then no more can be necessary than to expound those words in

their natural and ordinary sense. The words themselves do alone in such
cases best declare the intent of the lawgiver”.23 The rule is also stated in another
form: “When a language is plain and unambiguous and admits of only one
meaning no question of construction of a statute arises, for the Act speaks for
itself”.24 The results of the construction are then not a matter for the court,25
even though they may be strange or surprising,26 unreasonable or unjust or
oppressive.27 “Again and again”, said Viscount Simonds, L.C., “this Board has
insisted that in construing enacted words we are not concerned with the policy
involved or with the results, injurious or otherwise, which may follow from
28
giving effect to the language used”. And said Gajendragadkar, J.: “If the
words used are capable of one construction only then it would not be open to
the courts to adopt any other hypothetical construction on the ground that such
construction is more consistent with the alleged object and policy of the
Act”. 29
In deciding that a return of income signed by an illiterate person by the pen of

his son (Bakalam) was not a valid return of income for purposes of the Bengal
Agricultural
Income-tax Act (II of 1946) which required that a return of
income shall be verified and the declaration shall be signed in the case of an
individual by the individual himself”, S.R. Das, J. observed: “Hardship or
inconvenience cannot alter the meaning of the language employed by the
Legislature if such meaning is clear on the face of the statute”.30 And in holding
that the words ‘any person’ in
section 162 of the Code of Criminal Procedure included
any person who may thereafter be an accused, Lord Atkin speaking for the
Privy Council said: “When the meaning of the words is plain, it is not the duty
of courts to busy themselves with supposed intentions”.31 Lord Atkin proceeded
to add: “It, therefore, appears inadmissible to consider the advantages or
disadvantages of applying the plain meaning whether in the interests of the
prosecution or accused.” Similarly, in construing
section 123(7) of the Representation of the People Act, 1951
, as it then stood, and in holding that persons employed by the father and paid
by him who assisted the son in his election, were in relation to the son mere
volunteers and not employed by him, the Supreme Court rejected the argument
that such a construction would give candidates with rich friends or relations an
unfair advantage over a poor rival and would, therefore, be against the spirit of
the election law. S.R. Das, J. observed: “The spirit of the law may
well be an elusive and unsafe guide and the supposed spirit can certainly not be
given effect to in opposition to the plain language of the sections of the Act”.32
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The rule applies to fiscal and penal statutes as well. Said 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”.33 And in
construing the word ‘Butter’ in the Prevention of Food Adulteration Rules,
1955, the Supreme Court gave effect to the plain meaning and held that the
word included butter prepared from curd; rejecting the contention based on the
rule of strict construction and on the rule that that construction should be
adopted which is more favourable to the subject, Subbarao, J. said: “But these
rules do not in any way affect the fundamental principle of interpretation,
namely, that the primary test is—the language employed in the Act and when
the words are clear and plain the court is bound to accept the expressed
intention of the Legislature”.34 Similarly, the Supreme Court gave effect to the
plain meaning of
section 5(3) of the Prevention of Corruption Act , 1947
which lays down a rule of evidence, enabling the Court to raise a presumption
of guilt in certain circumstances—“the rule which is a complete departure
from the established principle of criminal jurisprudence that the burden always
lies on the prosecution to prove all the ingredients of the offence charged and
the burden never shifts on the accused to disprove the charge framed against
him;”35 and similar view has been taken on section 4(1) of the same Act.36
The court applied the plain meaning rule in construing sections 233 and 236 of
the Succession Act, 1925 which contain a prohibition for grant of Probate or
Letters of Administration ‘to any association of individuals unless it is a
company’ and held that Probate or Letters of Administration cannot be granted
to a society registered under the
Societies Registration Act as a society even after registration does not become
distinct from its members and does not become a legal person like a company.
The Court observed that “the prohibition laid down by section 233 and 234 of
the Act are categorical and comprehensive and leave no room for creative
interpretation.”37
6. APPRAISAL OF THE PRINCIPLE OF PLAIN

MEANING
It may look somewhat paradoxical that plain meaning rule is not plain and
requires some explanation. The rule, that plain words require no construction,
starts with the premise that the words are plain, which is itself a conclusion
reached after construing the words. It is not possible to decide whether certain
words are plain or ambiguous unless they are studied in their context and
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construed.38 The rule, therefore, in reality means that after you have construed
the words and have come to the conclusion that they can bear only one
meaning, your duty is to give effect to that meaning.
The true import of the rule is well brought out in an American case where Judge
Pearson after reaching his conclusion as to the meaning of the statutory
language said: “That seems to me a plain clear meaning of the statutory
language in its context. Of course, in so concluding I have necessarily construed
or interpreted the language. It would obviously be impossible to decide that
language is ‘plain’ (more accurately that a particular meaning
seems plain) without first construing it. This involves far more than picking out
dictionary definitions of words or expressions used. Consideration of the
context and setting is indispensable properly to ascertain a meaning. In saying
that a verbal expression is plain or unambiguous, we mean little more than that
we are convinced that virtually anyone competent to understand it and
desiring fairly and impartially to ascertain its significance would attribute to the
expression in its context a meaning such as the one we derive, rather than any
other; and would consider any different meaning by comparison, strained, or
far-fetched, or unusual or unlikely.”39
For a proper application of the rule to a given statute, it is necessary, therefore,

to determine first whether the language used is plain or ambiguous. As pointed
out by Lord Buckmaster, “by ‘any ambiguity’ is meant a phrase fairly and
equally open to diverse meanings”.40 “A provision is not
ambiguous”, says Lord Reid, “merely because it contains a word which in
different contexts is capable of different meanings”. Lord Reid, proceeds to
add: “It would be hard to find anywhere a sentence of any length which does
not contain such a word. A provision is, in my judgment, ambiguous only if it
contains a word or phrase which in that particular context is capable of having
more than one meaning”.41 To decide, therefore, whether certain words are clear and
unambiguous, they must be studied in their context. Viscount Simonds, (Lord
Tucker agreeing) calls it an elementary rule: “No one should profess to
understand any part of a statute or of any other document before he has read the
whole of it. Until he has done so, he is not entitled to say that it, or any part of
it, is clear and unambiguous”.42 Unambiguous means “unambiguous in
context”.43 So ambiguity need not necessarily be a grammatical ambiguity, but
one of appropriateness of the meaning in a particular context.44 Context in this
connection is used in a wide sense as including not only other enacting
provisions of the same statute, but its preamble, the existing state of the law,
other statutes in pari materia and the mischief which by those and other
legitimate means can be discerned that the statute was intended to remedy.45
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Normally a statutory provision consists of a general description of some factual

situation and the legal consequences ensuing from it. Whether the general
description is wide or narrow, it will have some limits. The question before a
court of law in dealing with a statute is whether the factual situation proved
before it falls within the general description given in the statute. A real
difficulty in determining the right answer can be said to arise from an
“ambiguity” in the statute. It is in this sense that the words “ambiguity” and
“ambiguous” are 46
widely used in judgments. Although the words of the
statutory provision as a matter of language may be clear enough, ambiguity may
arise as to the scope or subject matter of their intended reference, e.g., scope of
the power or right conferred. 47
Difference of judicial opinion as to the true meaning of certain words need not
necessarily lead to the conclusion that those words are ambiguous. Instances are
not wanting where eminent judges agreed that the meaning was plain but they
differed on the question as to what that meaning was. In construing section 1 of
the Merchant Shipping (International Labour Convention) Act, 1925, all the
speeches delivered in the House of Lords were in agreement that the meaning of
the section was plain, but Lord Blanesburg differed from the majority on the
issue as to what that meaning was.48 Similarly, opinions of judges of equal
weight and authority may differ on the question whether a particular language is
49
ambiguous or not. In construing the words “is sold” as they occur in
section 17(1)(a) of the Income-tax Act , 1945, the majority
in the House of Lords took the view that these words were plain and did not
include the case of compulsory acquisition of property on payment of
compensation. Lord Morton, however, was of opinion that the words were
readily capable of more than one interpretation and in the context covered the
case of compulsory acquisition.50 As to how the approach should be made by
each individual judge is brought out in the speech of Viscount Simonds where
he said: “Each one of us has the task of deciding what the relevant
words mean. In coming to that decision, he will necessarily give great weight to
the opinion of others, but if, at the end of the day, he forms his own clear
judgment and does not think that the words are ‘fairly and equally open to
diverse meanings’ he is not entitled to say that there is an ambiguity”.51 Even
when the meaning is obscure, judges may not be prepared to accept that the
language is ambiguous. In his dissenting opinion in Ellerman's case, Lord
Blanesburg speaking of section 1 of the Act in question said: “I do not suggest
that section 1 bears its meaning, as I have interpreted it, upon its sleeve. It
yields up to its secret only to the patient enquirer; its truth lies at the bottom of
the well. It is obscure; it remains oblique, but it is not in the result
ambiguous”. 52
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Use of syllepsis in a section does not make it ambiguous. “It is not an ambiguity
if a term ‘T’ means ‘X’ in relation to ‘a’ and ‘Y’ in relation to
‘b’. It is only an ambiguity if ‘T’ means either ‘X’ or ‘Y’ in
relation to ‘a’ or ‘b’.”53
Warning has sometimes been given that ambiguity should not be assumed
where there is none.54 In a case55 relating to the construction of the words ‘a
submission made in pursuance of an agreement’ as they occur in section 3 of
the Foreign Award (Recognition and Enforcement) Act, 1961, the Supreme
Court by a majority of two against one held that the word ‘submission’ meant
actual submission or completed reference and not merely an agreement to refer
or an arbitral clause. The majority adopted this meaning on the view that the
words were plain. They refused to give an extended meaning to the word
‘submission’ although the restricted meaning adopted by them failed to achieve
the object of the Act which was to give effect to the convention on the
recognition and enforcement of foreign arbitral awards which was set forth in a
Schedule to the Act. In so holding, they differed from an English case56 where a
wider construction was adopted of the word ‘submission’ in a
similar enactment. Grover, J., speaking for the majority said: “We are aware of
no rule of interpretation by which rank ambiguity can be first introduced by
giving certain expressions a particular meaning and then an attempt can be
made to emerge out of semantic confusion and obscurity by having resort to
presumed intention of the Legislature to give effect to international
obligations.”57 Ramaswamy, J. in his dissenting opinion, did not find the
language that plain and construed the word ‘submission’ in a wide sense as
including an agreement to submit to arbitration. The case illustrates how sharp
divergence of opinion may result on the question whether certain words are
plain or ambiguous.
Apparently clear and simple language at times in its analysis is so ambiguous as

to present great difficulty in construction.58 Regarding
Article 105(2) of the Constitution which provides that ‘no
member of Parliament shall be liable to any proceeding in respect of anything
said or any vote given by him in Parliament’, the Supreme Court in
Tej Kiran Jain v. N. Sanjeeva Reddy Tej Kiran Jain v. N. Sanjeeva Reddy
59 said: “The Article means what it says in language which
could not be plainer”. But look at the sharp divergence of opinion that it later
created in P. V. Narsimha Rao v. State. P. V. Narsimha Rao
v. State. 60 Though all the five judges agreed that a member
of Parliament who receives bribe for voting but does not vote can be prosecuted
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for the offence of bribery under the

Prevention of Corruption Act, 1988 , it was held by a majority of three against
two that a member who voted in Parliament after receipt of bribe cannot be
prosecuted as his prosecution would be a proceeding in respect of vote given by
him and barred by Article 105(2). The words ‘Suit for land’ occurring in clause
12 of the Letters Patent of Calcutta, Madras and Bombay High Courts have
given rise to great divergence of judicial opinion and “the numerous cases in
the books on the construction of that clause reveal what a prodigious amount of
judicial time has been expended on endless debate as to its meaning”.61
The Court of the Judicial Commissioner of the Central Provinces in two Full
Bench decisions held that certain decrees passed under that clause by the
Bombay High Court following its own Full Bench view were in excess of
jurisdiction and absolute nullities. That led to the passing of The
Decrees and Orders Validating Act, 1936 .62 Even in the
Federal Court where the matter came up before five eminent judges of our
country, there was no unanimity and the question whether the suit out of which
that appeal arose was a ‘suit for land’ remained undecided.63 Another example
is the word ‘Court’ itself which should prima facie appear
to the courts quite simple and clear but has given rise to an “endless oscillation
between two views—each verging on a fringe of obscurity and
vagueness”.64
Language which on its construction results in absurdity, inconsistency, hardship

or strange consequences is not readily accepted as unambiguous. “Judges are
not always prepared”, says Maxwell, “to concede as plain language
which involves absurdity and inconsistency.65 It is true as noticed earlier that when
the language is fairly and reasonably open to only one meaning, hardship or
inconvenience or surprising results are no considerations for refusing to give
effect to that meaning. But such cases are rare for absurd and unreasonable
results are not intended by the Legislature and the language used is seldom so
plain or inflexible that the courts are not able to avoid them.66
Sometimes it is said that “though a construction according to plain language

should ordinarily be accepted, such a construction should not be adopted where
it leads to anomalies, injustices and absurdities”.67 This and similar
statements68 are not accurate statements of the rule and all that they really mean
is that prima facie plain language may not be plain.69 As already seen, plain
meaning rule applies at the stage when the words have been construed in their
context and the conclusion is reached that they are susceptible to only one
70
meaning. In that event the meaning so derived is to be given effect to
irrespective of consequences for no alternative construction is really open. This,
of course, is subject to the qualification in India that the statute is constitutional
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and unreasonableness, injustice or absurdity is not of the nature and

gravity which makes the statute offend the
Constitution .71
1 “It is general judicial experience that in matters of law involving questions of construing
statutory or constitutional provisions, two views are often reasonably possible and when
judicial approach has to make a choice between the two reasonably possible views, the process of decision
making is often very difficult and delicate:” ( Keshav Mills Co. Ltd. v. CIT,
Keshav Mills Co. Ltd. v. CIT,
AIR 1965 SC 1636 [
LNIND 1965 SC 28 ], p. 1644) :
1965 (2) SCR 908 [
LNIND 1965 SC 28 ]:
(1965) 56 ITR 365 [
LNIND 1965 SC 28 ]
2 In some cases the Draftsman has been severely criticised. Regarding

section 22(2)(b) of the Limitation Act , 1939, (UK) it was said that the
section was so obscure that “the Draftsman must have been of unsound mind”: [ Kirby v.
Leather, Kirby v. Leather,
(1965) 2 All ER 441 , p. 445 (CA)(DANCKWERTS, LJ)].
Referring to section 45 of the General Rate Act, 1967, LORD WILBERFORCE said: “The section is a
labyrinth, a minefield of obscurity” [ Vandyk v. Oliver (Valuation Officer) Vandyk v.
Oliver (Valuation Officer)
(1976) 1 All ER 466 , p. 470 (HL)]. In dealing with
section 23-A of the Income-tax Act, 1922 , the Supreme Court observed: “The Act
contains many mind twisting formulae but section 23-A along with some other sections
takes the place of pride amongst them ” : [ CIT, Gujarat v. Distributors (Baroda)
(Pvt.) Ltd., CIT, Gujarat v. Distributors (Baroda) (Pvt.) Ltd.,
AIR 1972 SC 288 [
LNIND 1971 SC 472 ], p. 291 :
1972 (1) SCR 726 [
LNIND 1971 SC 472 ]:
(1972) 4 SCC 353 [
LNIND 1971 SC 472 ] ]. For other cases see note 23, p.
30, infra and ALLEN: “Law in the Making”, 7th Edition, pp. 484-86.
3 SALMOND: “Jurisprudence ” 11th Edition, p. 152. In the words of GRAY: “The process
by which a judge (or indeed any person, lawyer or layman, who has occasion to search
for the meaning of a statute) constructs from the words of a statute-book a meaning which he either believes
to be that of the Legislature, or which he proposes to attribute to it, is called by us ‘Interpretation’ by the
Germans ‘Ausle-gung’.) The Nature and Sources of the Law, 2nd Edition, p. 176. According to CROSS:
‘Interpretation is the process by which the courts determine the meaning of a statutory provision for the
purpose of applying it to the situation before them:’ Statutory Interpretation, 3rd
Edition, p. 34.
4 Sea
Customs Act , In re, Sea
Customs Act ,re,In
AIR 1963 SC 1760 [
LNIND 1963 SC 403 ], p. 1794 (HIDAYATULLAH, J.) :
1964 (3) SCR 787 [
LNIND 1963 SC 403 ].
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5 COOLEY: “Constitutional Limitations”, Vol. I, p. 97; referred in In re Sea

Customs Act , AIR 1963 SC 1760, p. 1794 :
(1964) 3 SCR 787 [
LNIND 1963 SC 403 ]. See
further“Corpus Juris Secondum”, Vol. 82, p. 529; CRAWFORD: “Statutory Construction”, pp.
240-41; D.R. Venkatachalam v. Dy. Transport Commissioner, D.R. Venkatachalam v.
Dy. Transport Commissioner,
AIR 1977 SC 842 , p. 849 :
(1977) 2 SCC 472 [
LNIND 1977 SC 127 ]:
(1977) 2 SCR 392 ; The Commissioner of Wealth Tax v.
Hashmatunnisa Begum, The Commissioner of Wealth Tax v. Hashmatunnisa Begum,
AIR 1989 SC 1024 [
LNIND 1989 SC 29 ], p. 1029 : 1989 Supp (2) SCC 43
:
(1989) 176 ITR 98
6 CRAWFORD: “Statutory Construction”, p. 241.
7 SUTHERLAND: “Statutory Construction”, Vol. 2, 3rd Edition, Article 4504, p. 319.
8 United States v. F.W. Keitel, United States v. F.W. Keitel, 211

US 370, p. 386: 53 Law Ed 230, p. 240. “Although there is some distinction between them, they are so hard to
disentangle that they cannot afford a suitable basis for discussion.” DIAS
“Jurisprudence” 2nd Edition, p. 105.
9 Vishnu Pratap Sugar Works (Private) Ltd. v. Chief Inspector of

Stamp, U.P., Vishnu Pratap Sugar Works (Private) Ltd. v.
Chief Inspector of Stamp, U.P.,
AIR 1968 SC 102 [
LNIND 1967 SC 184 ], p. 104 :
1967 (3) SCR 920 [
LNIND 1967 SC 184 ]; Institute of Chartered
Accountants of India v. Price Waterhouse, Institute of Chartered Accountants of India
v. Price Waterhouse,
AIR 1998 SC 74 [
LNIND 1997 SC 934 ], p. 90 :
(1997) 6 SCC 312 [
LNIND 1997 SC 934 ]:
(1997) 90 Com Cases 113 ; Padmasundara Rao v. State of
T.N., Padmasundara Rao v. State of T.N.,
AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], p. 1346 :
(2002) 3 SCC 533 [
LNIND 2002 SC 201 ]:
(2002) 255 ITR 147 [
LNIND 2002 SC 201 ].
10 RMD Chamarbaugwala v. Union of India,

RMD Chamarbaugwala v. Union of India,
AIR 1957 SC 628 [
LNIND 1957 SC 37 ], p 631 :
1957 SCR 930 ; Chief Justice, Andhra Pradesh v
LVA Dikshitulu, Chief Justice, Andhra Pradesh v LVA Dikshitulu,
AIR 1979 SC 193 , p. 205 :
(1979) 2 SCC 37 ; Prithi Pal Singh v. Union of India,
Prithi Pal Singh v. Union of India,
AIR 1982 SC 1413 [
LNIND 1982 SC 123 ], p. 1419 :
Mr.Srikanth -
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(1982) 3 SCC 140 [

LNIND 1982 SC 123 ]; Girdharilal and Sons v.
Balbirnath Mathur, Girdharilal and Sons v. Balbirnath Mathur,
(1986) 2 SCC 237 [
LNIND 1986 SC 45 ], p. 242 :
AIR 1986 SC 1099 [
LNIND 1986 SC 585 ]; Maunsell v.
Olins, Maunsell v. Olins,
(1975) 1 All ER 16 , p. 19 (HL); Stock v. Frank Jones
(Tipton) Ltd., Stock v. Frank Jones (Tipton) Ltd.,
(1978) 1 All ER 948 , p. 951 (HL).
11 SALMOND: “Jurisprudence”, 11th Edition, p. 152. “The object of interpreting a statute is

to ascertain the intention of the Legislature enacting it:” South Asia Industries (Pvt.)
Ltd. v. S. Sarup Singh, South Asia Industries (Pvt.) Ltd. v. S. Sarup Singh,
AIR 1966 SC 346 [
LNIND 1965 SC 137 ], p. 348 :
1965 (3) SCR 829 . See further S. Narayanaswami v.
G. Panneerselvam, S. Narayanaswami v. G. Panneerselvam,
AIR 1972 SC 2284 [
LNIND 1972 SC 221 ], p. 2285 :
(1972) 3 SCC 717 [
LNIND 1972 SC 221 ]; Kartar Singh v. State
of Punjab, Kartar Singh v. State of Punjab,
JT (1994) 2 SC 423 , p. 463 :
1994 (3) SCC 569 :
1994 Cr LJ 3139 (SC); Institute of
Chartered Accountants of India v. Price Waterhouse, Institute of Chartered Accountants of India
v. Price Waterhouse,
AIR 1998 SC 74 [
LNIND 1997 SC 934 ], p. 90 :
(1997) 6 SCC 312 [
LNIND 1997 SC 934 ]; J.P. Bansal v. State of
Rajasthan, J.P. Bansal v. State of Rajasthan, 2003 AIR SCW 1848, p. 1854 :
(2003) 5 SCC 134 [
LNIND 2003 SC 322 ]:
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ].
12 See R v Secretary of State for the Environment exparte Spath

Holme, R v Secretary of State for the Environment exparte Spath Holme,
(2001) 1 All ER 195 , p. 216 (HL). See further text and notes
46, 47 and 48, pp. 11-12 infra.
13 Venkataswami Naidu, R. v. Narasram Naraindas,

Venkataswami Naidu, R. v. Narasram Naraindas,
AIR 1966 SC 361 [
LNIND 1965 SC 152 ], p. 363 :
1966 (1) SCR 110 [
LNIND 1965 SC 152 ]; District Mining Officer
v. Tata Iron and Steel Co., District Mining Officer v. Tata Iron and Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3152 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ]; Bhatia International v.
Bulk Trading SA, Bhatia International v. Bulk Trading SA,
AIR 2002 SC 1432 [
LNIND 2002 SC 1441 ], p. 1437 :
(2002) 4 SCC 105 [
LNIND 2002 SC 1441 ].
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14 BENNION: “Statutory Interpretation”, (4th Edition) p. 14; Dinesh

Chandra Jamanadas Gandhi v. State of Gujarat, Dinesh Chandra Jamanadas Gandhi v. State of
Gujarat,
AIR 1989 SC 1011 [
LNIND 1989 SC 31 ], p. 1017 :
(1989) 1 SCC 420 [
LNIND 1989 SC 31 ].
15 Black Clawson International Ltd. v. Papierwerke Waldhof

Aschaffenburg AG, Black Clawson International Ltd. v. Papierwerke Waldhof
Aschaffenburg AG,
(1975) 1 All ER 810 , p. 814 (HL) (LORD REID); R v. Hinks,
R v. Hinks,
(2000) 4 All ER 833 , p. 839 (HL).
16 G. WILLIAMS: “Language and the Law”, 61 Law Quarterly Review, p. 73. See further
pp. 91, 92 infra for meaning of ‘word’.
17 “Each word is but a symbol which may stand for one or a number of objects:” Deputy
Chief Controller of Imports and Exports v. K.T. Kosalram, Deputy Chief Controller of
Imports and Exports v. K.T. Kosalram,
AIR 1971 SC 1283 [
LNIND 1970 SC 399 ], p. 1289 :
(1970) 3 SCC 82 [
LNIND 1970 SC 399 ]. “Words and phrases take colour
and character from the context and the times and speak differently in different contexts
and times:” Municipal Corporation, Delhi v. Mohd. Yasin, Municipal Corporation, Delhi v. Mohd.
Yasin,
(1983) 3 SCC 229 [
LNIND 1983 SC 132 ], p. 231 :
AIR 1983 SC 617 [
LNIND 1983 SC 132 ].
18 See Chapter 4, under title 4(c) ‘Assistance of

later statutes’, text and notes 28 to 32, page 303; J.P. Bansal v. State of Rajasthan J.P.
Bansal v. State of Rajasthan 2003 AIR SCW 1848, p. 1854 :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ]:
(2003) 5 SCC 134 [
LNIND 2003 SC 322 ]; State of Jharkhand v.
Govind Singh, State of Jharkhand v. Govind Singh,
AIR 2005 SC 204 , p. 297.
19 Spencer v. State (Supreme Court of Indiana),

Spencer v. State (Supreme Court of Indiana), (1853) 5 Ind. 41 (PERKINS,
J.),condensed in “Cases and Other Materials on Legislation” by Reid Macdonald AND Fordham,
2nd Edition, pp. 978, 980, 981. See further Dias: Jurisprudence, 2nd Edition, p. 110,
footnote 2. A Legislature cannot be asked to sit to resolve the difficulties: Girdharilal and Sons v.
Balbirnath Mathur, Girdharilal and Sons v. Balbirnath Mathur,
(1986) 2 SCC 237 [
LNIND 1986 SC 45 ], p. 242 :
AIR 1986 SC 1099 [
LNIND 1986 SC 585 ]. After Parliament has enacted the
Act “only the Court may say what Parliament meant to say. None-else”: Sanjeev Coke
Manufacturing Company v. Bharat Coking Coal Ltd., Sanjeev Coke Manufacturing Company v.
Bharat Coking Coal Ltd.,
AIR 1983 SC 239 [
LNIND 1982 SC 193 ]:
(1983) 1 SCC 147 [
Mr.Srikanth -
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LNIND 1982 SC 193 ]; Doypack Systems Pvt.

Ltd. v. Union of India, Doypack Systems Pvt. Ltd. v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 796 :
(1988) 2 SCC 299 [
LNIND 1988 SC 589 ]; P.V. Narsimha Rao v.
State, P.V. Narsimha Rao v. State,
JT 1998 (3) SC 318 [
LNIND 1998 SC 1259 ], p. 373 :
AIR 1998 SC 2120 [
LNIND 1998 SC 1259 ]:
1998 (4) SCC 626 [
LNIND 1998 SC 1259 ]; Union of India v.
Elphinstone Spinning & Weaving Co. Ltd., Union of India v. Elphinstone Spinning &
Weaving Co. Ltd.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 583 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 734 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ]. But this does not mean that
Parliament cannot subject to constitutional restrictions enact statute specific or general
rules of interpretation. The Central
General Clauses Act and the corresponding State Acts contain general rules of
interpretation and their validity has never been in doubt. See further on this point
Nicholas Quinn Rosenkranz, Federal Rules of Interpretation, (2002) 115 Harvard Law Review, 2086.
20 Commissioner v. Ickelheimar, Commissioner v. Ickelheimar, 132 F.

(2d) 660, p. 662: referred in 60 Harvard Law Review 370, p. 376. For full quotation see text and note 85, p.
21.
21 State of Bombay v. Venkat Rao Krishna Rao, Gujar,

State of Bombay v. Venkat Rao Krishna Rao, Gujar,
AIR 1966 SC 991 [
LNIND 1962 SC 149 ]:
1963 (1) SCR 428 [
LNIND 1962 SC 149 ]. See further
International Airport Authority Employees Union v. International Airports Authority of India,
International Airport Authority Employees Union v. International Airports Authority of India,
AIR 2001 SC 276 [
LNIND 2000 SC 1812 ]:
(2001) 1 SCC 205 [
LNIND 2000 SC 1812 ](Parking areas of the airports held
to be ‘building’).
22 State of Bihar v. S.K. Roy, State of Bihar v. S.K. Roy,

AIR 1966 SC 1995 [
LNIND 1966 SC 127 ]: 1966 Supp SCR 259
23 Almond v. Birmingham Royal Institution for the Blind,

Almond v. Birmingham Royal Institution for the Blind,
(1967) 2 All ER 317 (HL). For meaning of ‘structure’ see
Indian City Properties Ltd. v. Municipal Commissioner of Greater Bombay,
Indian City Properties Ltd. v. Municipal Commissioner of Greater Bombay,
(2005) 6 SCC 417 [
LNIND 2005 SC 590 ], p. 422 (para 19).
24 Corporation of the City of Victoria v. Bishop of Vancouver Island,

Corporation of the City of Victoria v. Bishop of Vancouver Island,
Mr.Srikanth -
Page 35 of 95
(1921) 2 AC 384 (PC) :

AIR 1921 PC 240 ; D.G. Ghouse & Co. v.
State of Kerala, D.G. Ghouse & Co. v. State of Kerala,
AIR 1980 SC 271 [
LNIND 1979 SC 385 ], p. 277 :
(1980) 2 SCC 410 [
LNIND 1979 SC 385 ]. Contrast: CIT, Punjab v. Alps
Theatre, CIT, Punjab v. Alps Theatre,
AIR 1967 SC 1437 [
LNIND 1967 SC 72 ]:
(1967) 3 SCR 181 [
LNIND 1967 SC 72 ]. For meaning of ‘building’ and
‘structure’ in the context of property tax see Municipal Corporation of Greater Bombay v. Indian Oil
Corporation, Municipal Corporation of Greater Bombay v. Indian Oil Corporation,
AIR 1991 SC 686 [
LNIND 1990 SC 821 ]: 1991 Supp (2) SCC
18(Petroleum storage tanks held to be structures). In the context of depreciation allowable in respect of a
building for income-tax purposes; it has been held that ‘building’ will include roads and drains laid
within factory premises: CIT v. Gwalior Rayon Silk Manufacturing Co. Ltd., CIT v.
Gwalior Rayon Silk Manufacturing Co. Ltd.,
AIR 1992 SC 1782 [
LNIND 1992 SC 969 ]:
(1992) 3 SCC 326 [
LNIND 1992 SC 969 ]:
(1992) 196 ITR 149 [
LNIND 1992 SC 969 ]. Building may include a roofless
structure: Ashok Kapil v. Sona Ullah, Ashok Kapil v. Sona Ullah,
1996 (7) Scale 339 [
LNIND 1996 SC 1545 ], p. 342:
1996 (6) SCC 342 [
LNIND 1996 SC 1545 ]. For meaning of ‘building’
see further B. Kandaswamy v. Gomathi Ammal, B. Kandaswamy v. Gomathi
Ammal,
AIR 2001 SC 1931 [
LNIND 2001 SC 832 ], p. 1937 :
(2001) 4 SCC 394 [
LNIND 2001 SC 832 ]; Jai Narain
Parasrampuria v. Pushpa Devi Saraf, Jai Narain Parasrampuria v. Pushpa Devi
Saraf,
(2006) 7 SCC 756 [
LNIND 2006 SC 644 ], paras 70 and 72 :
(2006) 8 Scale 477 [
LNIND 2006 SC 644 ].
25 London and North Eastern Rly. Co. v. Berriman,

London and North Eastern Rly. Co. v. Berriman,
(1945) 1 All ER 255 (HL).
26 Ibid, p. 258 (HL); (LORD JOWITT, L.C.). But “maintenance” may mean more than
“servicing” and may include “repair”: Hamilton v. National Coal Board,
Hamilton v. National Coal Board,
(1960) 1 All ER 76 (HL) and similarly ‘repair’ may include
‘maintenance’: State of U.P. v. Devidayal Singh, State of U.P. v. Devidayal Singh,
AIR 2000 SC 961 [
LNIND 2000 SC 374 ], pp. 965, 966 :
(2000) 3 SCC 5 [
LNIND 2000 SC 374 ]. For difference between
‘preservation’ or ‘repair’ and ‘restoration’, see Robins v. Secretary of State for the
Environment, Robins v. Secretary of State for the Environment,
(1989) 1 All ER 878 (HL); Ballimal Naval Kishore v.
Commissioner of Income Tax, Ballimal Naval Kishore v. Commissioner of Income
Tax,
AIR 1997 SC 851 , p. 852 :
Mr.Srikanth -
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1997 (2) SCC 296 [

LNIND 1997 SC 10 ]. Raichurmathan Prabhakar
v. Rawatmal Dugar, Raichurmathan Prabhakar v. Rawatmal Dugar,
(2004) 4 SCC 766 [
LNIND 2004 SC 462 ], p. 778 :
AIR 2004 SC 3976 [
LNIND 2004 SC 566 ](The expression ‘addition,
improvement or alteration’ will include demolition and reconstruction); Commissioner of
Income Tax v. Sarvana Spg. Mills (P) Ltd., Commissioner of Income Tax v. Sarvana
Spg. Mills (P) Ltd.,
(2007) 7 SCC 298 [
LNIND 2007 SC 950 ] (meaning of ‘current
repairs’ under
section 31(i) of the Income Tax Act . It will not cover ‘replacement’ or
bringing a new asset into existence). See further K. Ramnathan v. State of Tamil Nadu,
K. Ramnathan v. State of Tamil Nadu,
(1985) 2 SCC 116 [
LNIND 1985 SC 69 ], p. 131 :
AIR 1985 SC 660 [
LNIND 1985 SC 69 ]; where in the same tune A.P. SEN,
J. said: “The question essentially is one of degree and it is impossible to fix any definite
point where ‘regulation’ ends and ‘prohibition’ begins.” But in the same case it was
held that ‘regulation’ may in some context include ‘Prohibition’. See also
Jiyajeerao Cotton Mills Ltd. v. The Madhya Pradesh Electricity Board,
Jiyajeerao Cotton Mills Ltd. v. The Madhya Pradesh Electricity Board,
AIR 1989 SC 788 [
LNIND 1988 SC 445 ], p. 807 : 1989 Supp (2) SCC 52.
(The word regulation has different shades of meaning depending on the context). For meaning of
‘regulation’ see further pages 966 to 968, infra.
27 Jane Straford Boyse v. John T. Rossborough,

Jane Straford Boyse v. John T. Rossborough, (1857) 6 HLC 2, p. 45 : 10 ER 1192
(HL).
28 State of Bombay v. Hospital Mazdoor Sabha,

State of Bombay v. Hospital Mazdoor Sabha,
AIR 1960 SC 610 [
LNIND 1960 SC 19 ], pp. 615, 616 :
1960 (2) SCR 866 [
LNIND 1960 SC 19 ] (Industry); Inder Lal v. Lal Singh,
Inder Lal v. Lal Singh,
AIR 1962 SC 1156 [
LNIND 1962 SC 64 ], pp. 1159, 1160 : 1962 Supp (3)
SCR 117(Public Character); Ranjit D. Udeshi v. State of Maharashtra, Ranjit D. Udeshi v. State of
Maharashtra,
AIR 1965 SC 881 [
LNIND 1964 SC 205 ], pp. 886 (para 9), 887
(para 16) :
1965 (1) SCR 65 [
LNIND 1964 SC 205 ] (Obscene); J & F Stone Lighting
and Radio Ltd. v. Haygarth, J & F Stone Lighting and Radio Ltd.
v. Haygarth,
(1966) 3 All ER 539 , pp. 546, 550 (HL). Though in many cases
it may be difficult to draw a line of demarcation, it is easy to discern on which side of the borderline a
particular case falls : Collector of Central Excise v. Ballarpur Industries Ltd.,
Collector of Central Excise v. Ballarpur Industries Ltd.,
AIR 1990 SC 196 [
LNIND 1989 SC 482 ], p. 201 :
(1989) 4 SCC 566 [
LNIND 1989 SC 482 ] (Goods used as raw-material).
See the following observations of Sir Wilfrid Greene, IRC v. British Salmson AE Ltd.,
IRC v. British Salmson AE Ltd.,
(1938) 3 All ER 283 , p. 289 (CA)(Capital or revenue): “There
Mr.Srikanth -
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have been many cases which fall upon the borderline. Indeed, in many cases it is almost true to
say that the spin of a coin would decide the matter almost as satisfactorily as would an attempt to find
reasons.” Referring to these observations Lord Upjohn remarked: “Somewhat cynical
but true” : Regent Oil Co. Ltd. v. Strick, Regent Oil Co. Ltd. v. Strick,
(1965) 3 All ER 174 , p. 199 (HL). The dividing line or the
frontier zone may shift with the change of time : Commissioner of Customs & Excise v. Beecham Foods
Ltd., Commissioner of Customs & Excise v. Beecham Foods Ltd.,
(1972) 1 All ER 498 , p. 506 (HL).
29 Muray v. Foyle Meats Ltd., Muray v. Foyle Meats Ltd.,

(1999) 3 All ER 769 , p. 773 (HL).
30 “Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to

effect a change of policy, to formulate a plan of government. That aim, that policy is not
drawn, like nitrogen, out of the air, it is evidenced in the language of the statute, as read in the light of other
external manifestations of purpose.” [Frankfurter, ‘Some Reflections on the Reading of
Statutes’ (Essays' on Jurisprudence from the Columbia Law Review) quoted by
Jagannatha Rao J. in United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.
United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.
AIR 2000 SC 2957 [
LNIND 2000 SC 1190 ], p. 2962 :
(2000) 7 SCC 357 [
LNIND 2000 SC 1190 ] ]. See
further the following observations of Lord Bingham in R on the application of Quintavalle v.
Secretary of State for Health, on the application of Quintavalle v. Secretary of State
for Health,
(2003) 2 All ER 113 , p. 118 (HL): “Every statute other than a
pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove
some blemish or effect some improvement in the national life. The court's task, within
the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the
controversial provisions should be read in the context of the statute as a whole and the statute as a whole
should be read in the historical context of the situation which led to its enactment.”
31 “Those who seek to replace the common law by a statutory Code always have to choose
between certainty and flexibility. Are they or are they not to include in the Code some
provision enabling the provisions of the Code to be extended to meet new situation?: American
Cyamid Co. v. Upjohn Co., American Cyamid Co. v. Upjohn Co.,
(1970) 3 All ER 785 , p. 789 (HL) (Lord Reid).
32 Statutes designed to curb tax evasion may be cited as examples. For criticism of the
generality usually found in these statutes, see Commissioner of Customs & Excise v.
Top Ten Promotions Ltd., Commissioner of Customs & Excise v. Top Ten Promotions
Ltd.,
(1969) 3 All ER 39 , pp. 93, 95 (HL)“No draftsman can
envisage all the circumstances which may possibly arise. From time to time, therefore, events occur which are
within the plain words of the statute yet are outside its evident purpose or vice versa.
This is the battle ground on which are fought the battles between the literal
constructionists and the purposive constructionists.” [Lord Millett, ‘Construing Statutes’
(1999) 20 Statute Law Review 107, p. 109].
33 Union of India v. Elphinstone Spinning and Weaving Co. Ltd.,

Union of India v. Elphinstone Spinning and Weaving Co. Ltd.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 557 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 736 (para 10) :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ] : (2001) 105 Comp Cases 309
(
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Constitution Bench); District Mining Officer v. Tata Iron and Steel Co.,
District Mining Officer v. Tata Iron and Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3152 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ]; Ameer Trading
Corporation Ltd. v. Shapoorji Data Processing Ltd., Ameer Trading Corporation Ltd. v. Shapoorji
Data Processing Ltd.,
AIR 2004 SC 355 [
LNIND 2003 SC 995 ], p. 360 :
(2004) 1 SCC 702 [
LNIND 2003 SC 995 ]; Reema Agarwal v.
Anupam, Reema Agarwal v. Anupam,
(2004) 3 SCC 199 [
LNIND 2004 SC 1499 ], pp. 211, 212 :
AIR 2004 SC 1418 [
LNIND 2004 SC 1499 ]; National Insurance Co.
Ltd. v. Laxmi Narain Dhut, National Insurance Co. Ltd. v. Laxmi Narain Dhut,
(2007) 3 SCC 700 [
LNIND 2007 SC 275 ], p. 718 :
AIR 2007 SC 1563 [
LNIND 2007 SC 275 ].
34 In the words of Roscoe Pound: “Where the legislature has had an intent and has sought to
express it there is seldom a question of interpretation. The difficulties arise in the myriad
cases in respect to which the law-maker had no intention because he had never thought of them. Indeed
perhaps he could never have thought of them.” Roscoe Pound, ‘The Spirit of the
Common Law’ (Beacon Paperback) p. 174. In ‘An Introduction to the Philosophy of Law’
(Yale Paper bound) p. 50, Roscoe Pound expressed his agreement and quoted similar views of GRAY: “The
fact is that the difficulties of so-called interpretation arise when the Legislature has had
no meaning at all; when the question which is raised on the statute never occurred to it; when what
the judges have to do is not to determine what the Legislature did mean on a point which was present to its
mind, but to guess what it would have intended on a point not present in its mind, if the
point had been present.” Gray, The Nature and Sources of the Law, 2nd Edition, p. 171. The
‘guess’ “must be informed by the wording of the Act and arrived at in accordance with the recognised guides
to legislative intention.” Bennion: “Statutory Interpretation”, (4th Edition) p. 416.
35 Said to be “the proper criteria” in Union of India v. Elphinstone Spinning and Weaving
Co. Ltd., Union of India v. Elphinstone Spinning and Weaving Co. Ltd., supra, p. 563
(JT) : p. 739 (AIR).
36 Corocraft Ltd. v. Pan American Airways Inc.,

Corocraft Ltd. v. Pan American Airways Inc.,
(1968) 3 WLR 714 , p. 732 : (1970) 33 Modern Law Review
197; State of Haryana v. Sampuran Singh, State of Haryana v. Sampuran Singh,
AIR 1975 SC 1952 [
LNIND 1975 SC 320 ], p. 1957 :
(1975) 2 SCC 810 [
LNIND 1975 SC 320 ]; Carew and Company Ltd.
v. Union of India, Carew and Company Ltd. v. Union of India,
AIR 1975 SC 2260 [
LNIND 1975 SC 290 ], p. 2274 :
(1975) 2 SCC 791 [
LNIND 1975 SC 290 ]:
(1976) 1 SCR 626 [
Elphinstone Spinning and Weaving Co. Ltd. Union of India v. Elphinstone Spinning and
Weaving Co. Ltd. supra, p. 563 (JT) : p. 739 (AIR). The Judicial art of interpretation and
appraisal is imbued with creativity and realism. D.R. Venkatachalam v. Dy. Transport Commissioner,
D.R. Venkatachalam v. Dy. Transport Commissioner,
AIR 1977 SC 842 , p. 857 :
1977 (2) SCC 273 .) See further Bhatia
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International v. Bulk Tradings S.A., Bhatia International v. Bulk Tradings S.A.,

AIR 2002 SC 1432 [
LNIND 2002 SC 1441 ], pp. 1437, 1438 :
(2002) 4 SCC 105 [
LNIND 2002 SC 1441 ]. “Since interpretation always
implies a degree of discretion and choice, hence of creativity, a degree which is
especially high in certain areas such as constitutional adjudication dealing with social and diffuse rights.”
Mauro Cappelletti: “The Judicial Process in Comparative Perspective”, p. 54.
37 London & North Eastern Rly. Co. v. Berriman,

London & North Eastern Rly. Co. v. Berriman,
(1946) 1 All ER 255 (HL).
38 BEST Undertaking v. Agnes (Mrs.), BEST

Undertaking v. Agnes (Mrs.),
AIR 1964 SC 193 [
LNIND 1963 SC 167 ]:
1964 (3) SCR 930 [
LNIND 1963 SC 167 ].
39 Nisbet v. Rayne and Burn, Nisbet v. Rayne and Burn,

(1910) 2 KB 689 (CA); Board of Management of Trim Joint
District School v. Kelly, Board of Management of Trim Joint District School v. Kelly,
(1914) AC 667 (HL). For meaning of ‘accident’ in the same
context see further Chief Adjudication Officer v. Faulds, Chief Adjudication
Officer v. Faulds,
(2000) 2 All ER 961 , pp. 964-69, 977-79 (HL). The Supreme
Court has also held that, in the phrase ‘accident arising out of the use of motor vehicle’ as used in
section 163A of the Motor Vehicles Act, 1988 the word ‘accident’ will include
murder: Rita Devi v. New India Assurance Co. Ltd., Rita Devi v. New India
Assurance Co. Ltd.,
AIR 2000 SC 1930 [
LNIND 2000 SC 747 ]:
(2000) 5 SCC 113 [
LNIND 2000 SC 747 ]:
(2000) 1 LLJ 1656 [
LNIND 2000 SC 747 ].
40 Attorney-General v. Edison Telephone Co.,

Attorney-General v. Edison Telephone Co.,
(1880) 6 QBD 244 , referred in Senior Electric Inspector v.
Laxminarayan Chopra, Senior Electric Inspector v. Laxminarayan Chopra,
AIR 1962 SC 159 : 1962 (3) SCR 146.
41 “We sit here to find out the intention of Parliament and of Ministers and carry it out, and
we do this better by filling in the gaps and making sense of the enactment than by
opening it up to destructive analysis.” (PER DENNING, LJ in Magor and St. Mellons Rural
District Council v. Newport Corporation, Magor and St. Mellons Rural District
Council v. Newport Corporation,
(1950) 1 All ER 1226 , p. 1236). These observations were however,
disapproved in appeal by the House of Lords. See
(1951) 1 All ER 839 (HL). But they have been approved by the Supreme Court:
Bangalore Water Supply v. A. Rajappa, Bangalore Water Supply v. A. Rajappa,
AIR 1978 SC 548 [
LNIND 1978 SC 70 ], pp. 522, 561 :
(1978) 2 SCC 213 [
Chapter 2, text and notes 30 to 45, pp. 69 to 71.
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Lord Due Parcq was also of the view that in some cases it becomes necessary for courts “to
fill in such gaps as Parliament may choose to leave in its enactments”: Cutler v. Wandsworth Stadium Ltd.,
Cutler v. Wandsworth Stadium Ltd.,
(1949) 1 All ER 544 , p. 550 (HL).
“The necessary generality in the wordings of many statutes, and ineptness of drafting in
others frequently compels the court, as best as they can, to fill in the gaps, an activity
which no matter how one may label it, is in part legislative. Thus the courts in their way, as administrators in
their way perform the task of supplementing statutes. In the case of courts we call it
‘interpretation’ or ‘filling in the gaps’; in the case of administrators we call it
‘delegation’ or authority to supply the details.” Per Judge Frank in Guiseppi v.
Walling, Guiseppi v. Walling, 144F (2d) 608, pp. 620, 622 (CCA 2d,
1944), referred in 60 Harvard Law Review 370, p. 372. See further Directorate of Enforcement
v. Deepak Mahajan, Directorate of Enforcement v. Deepak Mahajan,
JT 1994 (1) SC 281 [
LNIND 1994 SC 135 ], p. 301 :
AIR 1994 SC 1775 , p. 1785 :
(1994) 3 SCC 440 :
(1994) 70 ELT 12 .
“Judges do and must legislate, but they do so only interstitially; they are confined from
molar to molecular motion”: Holmes, J. in Southern Pacific Co. v. Jensen,
Southern Pacific Co. v. Jensen, (1916) 244 US 205, p. 221.
“Obscurity of statute—may leave the law unsettled, and cast a duty upon courts to declare
it retrospectively in the exercise of a power frankly legislative in function. They
(Judges) have the right to legislate within gaps, but often there are no gaps.” Cardozo,
The Nature of the Judicial Process, pp. 128, 129.
See further United Bank of India, Calcutta v. Abhijit Tea Co.
Pvt. Ltd., United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.,
AIR 2000 SC 2957 [
LNIND 2000 SC 1190 ], p. 2963 :
(2000) 7 SCC 357 [
LNIND 2000 SC 1190 ]
42 “Long catena of decisions (under Article 181, Indian

Limitation Act , 1908) may well be said to have, as it were, added the words ‘under the
Code’ in the first column of that Article”: Sha Mulchand and Co. Ltd. v. Jawaher
Mills Ltd., Sha Mulchand and Co. Ltd. v. Jawaher Mills Ltd.,
AIR 1953 SC 98 [
LNIND 1952 SC 89 ], p. 104; Bombay Gas Co.
Ltd. v. Gopal Bhiva, Bombay Gas Co. Ltd. v. Gopal Bhiva,
AIR 1964 SC 752 [
LNIND 1963 SC 158 ], p. 758 :
(1964) 3 SCR 709 [
LNIND 1963 SC 158 ]:
(1963) 2 LLJ 608 [
LNIND 1963 SC 158 ]; Prativa Bose
(Smt.) v. Rupendra Deb, Prativa Bose (Smt.) v. Rupendra Deb,
AIR 1965 SC 540 [
LNIND 1963 SC 163 ], p. 543 :
1964 (4) SCR 69 [
LNIND 1963 SC 163 ]. Same view has been taken of the
corresponding Article 137 in the
Limitation Act 1963 : Ajaib Singh v. Sirhind Co-operativeMarketing-cum-Processing
Service Society Ltd., Ajaib Singh v. Sirhind Co-
operativeMarketing-cum-Processing Service Society Ltd.,
AIR 1999 SC 1351 [
LNIND 1999 SC 366 ], pp. 1353-54 :
(1999) 6 SCC 82 [
LNIND 1999 SC 366 ]:
Mr.Srikanth -
Page 41 of 95
(1999) 1 LLJ 1260 [

LNIND 1999 SC 366 ]. Interpreting
section 304A of the Penal Code it was held that though the word ‘gross’ does not occur
there “the expression ‘rash or negligent act’ as occurring in section 304A has to be read
as qualified by the word ‘grossly’:” Jacob Mathew v. State of Punjab,
Jacob Mathew v. State of Punjab,
(2005) 6 SCC 1 [
LNIND 2005 SC 587 ], p. 33 (para 48-6).
43 After reaching the conclusion that ‘property’ in the Hindu Women's Right to Property Act,
1937, meant property other than agricultural lands for Governor's provinces and all
property for Chief Commissioner's Provinces, Varadachariar, J. observed: “If the enactment
had contained a definition clause stating that ‘property’ in the Act meant all property in
respect of which the Legislature was competent to legislate, the result would have been the same.” ( Umayal
Achi v. Laksmi Achi, Umayal Achi v. Laksmi Achi,
AIR 1945 FC 25 , p. 31 : 7 FCR 1).
44 Captain Ramesh Chandra Kaushal v. Veena Kaushal,

Captain Ramesh Chandra Kaushal v. Veena Kaushal,
AIR 1978 SC 1807 [
LNIND 1978 SC 140 ], p. 1811 :
(1978) 4 SCC 70 [
LNIND 1978 SC 140 ]:
1979 Cri LJ 3 .
45 CIT v. B.N. Bhattacharjee, CIT v. B.N. Bhattacharjee,

AIR 1979 SC 1725 [
LNIND 1979 SC 274 ], p. 1735 :
(1979) 4 SCC 121 [
LNIND 1979 SC 274 ]:
(1979) 118 ITR 461 [
LNIND 1979 SC 274 ]. (The word ‘assessee’ in
section 545M(7) of the Income-tax Act, 1961 was construed to mean all parties
affected by assessment including the Department.) See further text and notes 90-98, 1-3,
pp. 22 to 25 infra.
46 “Judge Learned Hand and Interpretation”, Archibold COX, 60 Harvard Law Review 370,
p. 372. Prof. Reed Dickerson says that the concept of legislative intent is indispensable
for the postulation of some actual, though not directly knowable, legislative intent underlies the very idea of
a legislative process; and even if there were no actual legislative intent, judicial deference to the constitutional
separation of powers would require the courts to act as if there were, because the concept is necessary to put
courts in an appropriately deferential frame of mind. (Reed Dickerson: “The
Interpretation and Application of Statutes”,pp. 78-79). According to Prof. Cross the
expression ‘Intention of Parliament’ is not so much a description as a linguistic convenience (Cross:
Statutory Interpretation, 3rd Edition, p. 28). Bennion says that “legislative intention is not a myth or
fiction, but a reality founded in the very nature of legislation” (Bennion: “Statutory
Interpretation”, 4th Edition, p. 407). In disagreeing with the objection that collective bodies of
persons, such as legislatures do not possess a mind and are, therefore, not capable of having intentions and
thus the existence of legislative intention is a myth which cannot play a role in judicial
interpretation, Stefan Vogenauer argues: “This radical objection is surprising. After all,
lawyers, judges and legal scholars alike have been referring to the ‘intention of Parliament’ for centuries in all
legal systems. These statements are so well-established in the relevant linguistic community that we may well
assume a linguistic convention admitting a conceptual link between ‘intention’ and
‘legislation’”: ‘What is the proper role of Legislative Intention in Judicial Interpretation’
(1997) 18 Statute Law Review 235. According to BRIAN BIX: “The term (legislative intent)
might best be seen not as naming a thing, but as a shorthand for the process (and the result) of interpretation.
Legislative intent in England and America atleast appears to stand for whatever aspect of legislative texts or
the legislative record is used to clarify or settle the meaning and application of
legislation”: ‘Questions in Legal Interpretation’, ‘Law and Interpretation’ (Essays in
Legal Philosophy) edited by Andrei Marmor, p. 146. Lord Millett uses the expression ‘the
Mr.Srikanth -
Page 42 of 95
legislative intent’ or ‘the intention of the legislation’ in preference to the expression ‘the
intention of the legislature’ : ‘Construing Statutes’ (1999) 20 Statute Law Review 107,
p. 110.
47 There is a school of thought that the traditional methodology of interpreting a statute with
reference to “intention of the Legislature” should now, be replaced by a new
methodology of “attribution of purpose”. The following extract from an articl in (1970) 33
Modern Law Review, pp. 199, 200 by Harry Bloom, explains the new idea: “In time however, somebody will
have to tackle the basic question how long can we sustain the fiction that when the
Legislature prescribes for a problem, it provides a complete set of answers; and that the court, when
confronted with a difficult statute merely uses the techniques of construction to wring an
innate meaning out of the words. Professor Hart And Sacks of Harvard University have expressed ideas on
this which seem to be highly attractive. They argue that interpretation should not be
regarded as a search for the purpose of the Legislature or even for the purpose of the statute, but as one of
‘attribution of purpose’. The court, by asking ‘what purpose do we attribute to the statute?’
allows an inquiry into how best the statute can be interpreted and applied, or related to other legislation. What
this means is explained by PROFESSOR ROBERT E. KEETON, also of Harvard, in the
recent book ‘Venturing to do justice’: ‘I do not understand Hart And Sacks to imply that the purpose to be
attributed to the statute need be one that was or even could have been consciously formulated at the time the
statute was enacted. I understand them to choose this formulation for the very reason
that they wish to free the court from the handicaps of dealing with the fiction that the statute contains within it
an answer to every question that might arise in its application’.“This theory known as the
‘Legal Process Theory’ is discussed by WILLIAM N. ESKRIDGE, JR., in Chapter V of ‘Dynamic Statutory
Interpretation’ (First Indian Reprint, 2000) and is said to be “the first systematically
developed American theory of Dynamic Statutory Interpretation” (p. 143).
48 See State of Himachal Pradesh v. Kailash Chand Mahajan,

State of Himachal Pradesh v. Kailash Chand Mahajan,
AIR 1992 SC 1277 [
LNIND 1992 SC 183 ], p. 1300 : 1992 Supp (2) SCC
351 :
1992 Lab IC 1371 [
LNIND 1992 SC 183 ]. (The purpose or object of an
enactment relates to the mischief to which the enactment is directed and its remedy, legislative intention
relates to the legal meaning of the enactment).

JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 563 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 740 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ](
Constitution Bench); District Mining Officer v. Tata Iron and Steel Co.,
District Mining Officer v. Tata Iron and Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3152 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ]; Ameer Trading
Corporation Ltd. v. Shapoorj Data Processing Ltd., Ameer Trading Corporation Ltd. v. Shapoorj
Data Processing Ltd.,
AIR 2004 SC 355 [
LNIND 2003 SC 995 ], p. 360 :
(2004) 1 SCC 702 [
LNIND 2003 SC 995 ]; Ruma Aggarwal v.
Anupam, Ruma Aggarwal v. Anupam,
(2004) 3 SCC 199 [
LNIND 2004 SC 1499 ], pp. 211, 212 :
AIR 2004 SC 1418 [
LNIND 2004 SC 1499 ]; National Insurance Co.
Ltd. v. Laxmi Narain Dhut, National Insurance Co. Ltd. v. Laxmi Narain Dhut,
Mr.Srikanth -
Page 43 of 95
(2007) 3 SCC 700 [

LNIND 2007 SC 275 ], p. 718 :
AIR 2007 SC 1563 [
LNIND 2007 SC 275 ].
50 New Piece Goods Bazar Co. Ltd. v. CIT, Bombay,

New Piece Goods Bazar Co. Ltd. v. CIT, Bombay,
AIR 1950 SC 165 [
LNIND 1950 SC 28 ], p 168 :
1950 SCR 553 [
LNIND 1950 SC 28 ]; Ramkrishan v. State of
Delhi, Ramkrishan v. State of Delhi,
AIR 1956 SC 476 [
LNIND 1956 SC 22 ], p. 478 :
1956 SCR 182 ; Kanailal Sur v. Paramnidhi
Sadhukhan, Kanailal Sur v. Paramnidhi Sadhukhan,
AIR 1957 SC 907 [
LNIND 1957 SC 83 ], p. 910 :
1958 SCR 360 [
LNIND 1957 SC 83 ]; Ramkrishna Ram Nath v.
Janpad Sabha, Ramkrishna Ram Nath v. Janpad Sabha,
AIR 1962 SC 1073 [
LNIND 1962 SC 59 ], p. 1079 : 1962 Supp (3) SCR
70; Controller of Estate Duty v. Kantilal Tikamlal, Controller of Estate Duty v.
Kantilal Tikamlal,
AIR 1976 SC 1935 [
LNIND 1976 SC 233 ], p. 1939 : 1977 SCC (Tax) 90.
(“Law to a large extent, lives in the language even if it expands with the spirit of the
statute”); Union of India v. Sankalchand Himmatlal Sheth, Union of India v.
Sankalchand Himmatlal Sheth,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2337 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ]; Chief Justice of Andhra
Pradesh v. LVA Dikshitulu, Chief Justice of Andhra Pradesh v. LVA Dikshitulu,
AIR 1979 SC 193 , p. 205 :
(1979) 2 SCC 340 ; Om Prakash Gupta v. Digvijendrapal
Gupta, Om Prakash Gupta v. Digvijendrapal Gupta,
AIR 1982 SC 1230 [
LNIND 1982 SC 63 ], p. 1233 :
(1982) 2 SCC 61 [
LNIND 1982 SC 63 ]; Babaji Kondaji Garod v.
Nasik Merchants Co-operative Bank Ltd., Babaji Kondaji Garod v. Nasik Merchants
Co-operative Bank Ltd.,
(1984) 2 SCC 50 [
LNIND 1983 SC 323 ], p. 59 :
AIR 1984 SC 192 [
LNIND 1983 SC 323 ]; Doypack Systems Pvt.
Ltd. v. Union of India, Doypack Systems Pvt. Ltd. v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 801 :
1988 (2) SCC 299 [
LNIND 1988 SC 589 ]; Member Secretary,
Andhra Pradesh State Board for Prevention and Control of Water Pollution v. Andhra Pradesh Rayons
Ltd., Member Secretary, Andhra Pradesh State Board for Prevention and Control of
Water Pollution v. Andhra Pradesh Rayons Ltd.,
AIR 1989 SC 611 , p. 615 :
1989 (1) SCC 44 [
LNIND 1988 SC 494 ]; Keshavji Ravji and Co.
v. Commissioner of Income Tax, Keshavji Ravji and Co. v. Commissioner of Income
Tax,
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ], p. 1812 :
(1990) 2 SCC 231 [
LNIND 1990 SC 60 ]; Bola v. B.D.
Mr.Srikanth -
Page 44 of 95
Sardana, Bola v. B.D.

Sardana,
AIR 1997 SC 3127 [
LNIND 1997 SC 930 ], pp. 3208, 3209 :
(1997) 8 SCC 522 [
LNIND 1997 SC 930 ]; Unique Butyle Tube
Industries (P.) Ltd. v. U.P. Financial Corporation, Unique Butyle Tube Industries
(P.) Ltd. v. U.P. Financial Corporation,
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ], p. 462. See further
Nasiruddin v. Sita Ram Agarwal, Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC
51 Kannailal Sur v. Paramnidhi Sadhukhan, supra

Kannailal Sur v. Paramnidhi Sadhukhan, supra ; Padmasundara Rao v. State of
T.N., Padmasundara Rao v. State of T.N.,
AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], p. 1340 :
(2002) 3 SCC 533 [
Industries (P.) Ltd. v. U.P. Financial Corporation, supra Unique Butyle Tube
Industries (P.) Ltd. v. U.P. Financial Corporation, supra . See further Gem Granites
v. Commissioner of Income tax, Gem Granites v. Commissioner of Income
tax,
(2005) 1 SCC 289 [
LNIND 2004 SC 1175 ], p. 296 (What one may believe or
think to be the intention of Parliament cannot prevail if the language of the statute does
not support that view).
52 Brophy v. AG of Manitoba, Brophy v. AG of Manitoba,

(1895) AC 202 , p. 216 (PC), referred to in Henrietta Muir Edwards v. AG of
Canada, Henrietta Muir Edwards v. AG of Canada,
AIR 1930 PC 120 , p. 126; Wazirchand Mahajan v.
Union of India, Wazirchand Mahajan v. Union of India,
AIR 1967 SC 990 [
LNIND 1966 SC 178 ], p. 992 :
1967 (1) SCR 303 [
LNIND 1966 SC 178 ]; Padmasundara Rao v.
State of T.N. supra Padmasundara Rao v. State of T.N. supra ; Unique Butyle Tube
Industries (P.) Ltd. v. U.P. Financial Corporation, supra Unique Butyle Tube
Industries (P.) Ltd. v. U.P. Financial Corporation, supra . See further Black
Clawson International Ltd. v. Papier-Werke Waldh of Aschaffanburg,
Black Clawson International Ltd. v. Papier-Werke Waldh of Aschaffanburg,
(1975) 1 All ER 810 , p. 814 (HL) (LORD REID); Docker's
Labour Club v. Race Relations Board, Docker's Labour Club v. Race
Relations Board,
(1974) 3 All ER 592 , p. 600 (HL)(LORD SIMON); Reference
under Sec. 48A of the Criminal Appeal (Northern Ireland) Act, 1968,
(1976) 2 All ER 937 , p. 957 (HL).
53 “Cases and other Materials on Legislation” by REID macdonald And Fordham, 2nd
Edition, p. 1005. In Northern Securities Co. v. United States, In Northern Securities
Co. v. United States, 193 US 197,p. 400 JUSTICE HOLMES said: “Their (Judges)
function is merely academic to begin with—to read English intelligently”.
54 Robert Wigram Crawford v. Richard Spooner,

Robert Wigram Crawford v. Richard Spooner, 4 MIA 179, p. 187 (PC).
55 Pakala Narayanswami v. Emperor, Pakala Narayanswami v.

Emperor,
AIR 1939 PC 47 [
Mr.Srikanth -
Page 45 of 95
LNIND 1939 PC 1 ], p. 51 : 66 IA 66; Bola

v. B.D. Sardana, Bola v. B.D. Sardana,
AIR 1997 SC 3127 [
LNIND 1997 SC 930 ], pp. 3208, 3209 :
(1997) 8 SCC 522 [
LNIND 1997 SC 930 ].
56 S. Gurmej Singh v. Sardar Pratap Singh Kairon,

S. Gurmej Singh v. Sardar Pratap Singh Kairon,
AIR 1960 SC 122 [
LNIND 1959 SC 384 ], p. 128 :
1960 (1) SCR 909 [
LNIND 1959 SC 384 ]; Bola v. Sardana,
supra. Bola v. Sardana, supra.
57 See text and notes 48 to 52 pages 55, 56, see further Newbury District Council v.
Secretary of State for the Environment, Newbury District Council v. Secretary of
State for the Environment,
(1980) 1 All ER 731 : 1981 AC :
(1980) 2 WLR 379 (HL). In this case all the members of the
Divisional Court (Lord Widgery, C.J. and Davies and Goff, JJ.), and all the members of the Court of Appeal
(Lord Denning, MR, Lawton and Browne, L. JJ.) agreed that the use of hangars by the Home Office for
storing fire pumps or synthetic rubber was not use as a “repository”. Lord Denning said
that no one conversant with English language would dream of calling the hangars a
“repository” and Lawton, LJ observed that no literate person would say that the use of the hangars by
the Home Office was use as a “repository”. The House of Lords, however, held that to describe the above use
of hangars as “repository” was a perfectly correct use of English language.
58 See Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa,

Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa,
(1987) 3 SCC 279 [
LNIND 1987 SC 466 ], p. 288 :
AIR 1987 SC 1454 [
LNIND 1987 SC 466 ](“A statute is best understood
if we know the reason for it”; per CHINAPPA REDDY, J.);
AIR 2001 SC 1832 [
LNIND 2001 SC 637 ], p. 1839 :
(2001) 5 SCC 175 [
LNIND 2001 SC 637 ] : (2001) 105 Comp Case
743.
59 Arthur Hill v. East and West India Dock Co.,

Arthur Hill v. East and West India Dock Co.,
(1884) 9 AC 448 , p. 455 (HL).
60 Brett v. Brett, Brett v. Brett, (1826) 3 Add

210 : 162 ER 456, p. 458; Attorney-General v. HRH Prince Ernest Augustus of Hanover,
Attorney-General v. HRH Prince Ernest Augustus of Hanover,
(1957) 1 All ER 49 , p. 57 (HL). In Charan Lal Sahu v. Union of India,
Charan Lal Sahu v. Union of India,
AIR 1990 SC 1480 [
LNIND 1989 SC 639 ], p. 1536 :
(1990) 1 SCC 613 [
LNIND 1989 SC 639 ], the majority inferred an obligation
on the part of the Central Government to give interim relief to Bhopal gas victims being
the major inarticulate premise, and inconsonance with the ‘spirit’ of the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985. Sarla Mudgal (Smt.) v. Union of
India, Sarla Mudgal (Smt.) v. Union of India,
AIR 1995 SC 1531 [
Mr.Srikanth -
Page 46 of 95
LNIND 1995 SC 661 ], pp. 1536 (para 18), 1537

(para 22) :
(1995) 3 SCC 635 [
LNIND 1995 SC 661 ] it was held that a second marriage
after conversion to Islam of a Hindu who was already married though not “strictly a
void marriage under” the
Hindu Marriage Act, 1955 was yet void being “against the spirit of the statute”. In All
India judges' All India judges' Association v. Union of India, All India judges'
Association v. Union of India,
AIR 1993 SC 2493 , p. 2503 :
1993 (4) SCC 288 , the Supreme Court found a role for
the judiciary from “the spirit of the
constitution ” for formulating service conditions of judicial officers.
61 See Chapter 2, title 3(b) “Rule in Heydon's

case” p. 121, infra.
62 Lehigh Valley Coal Co. v. Yensavage,

Lehigh Valley Coal Co. v. Yensavage, 218 Fed 547, pp. 552, 553 : 235 US 705
(1915); referred to in 60 Harvard Law Review 370, pp. 377, 378; Union of India v. Filip Tiago
De Gama of Vedem Vasco De Gama, Union of India v. Filip Tiago De Gama of
Vedem Vasco De Gama,
AIR 1990 SC 981 [
LNIND 1989 SC 598 ], p. 985 :
1990 (1) SCC 277 [
LNIND 1989 SC 598 ]. See further V.O.
Tractoroexport, Mascow v. Tarapore & Co., V.O. Tractoroexport, Mascow v. Tarapore
& Co.,
AIR 1971 SC 1 [
LNIND 1969 SC 438 ], p. 20 :
(1969) 3 SCC 562 [
LNIND 1969 SC 438 ]; Atma Ram Mittal v.
Ishwar Singh Punia, Atma Ram Mittal v. Ishwar Singh Punia,
AIR 1988 SC 2031 [
LNIND 1988 SC 401 ], p. 2034 :
1988 (4) SCC 284 [
LNIND 1988 SC 401 ]; Anwar Hasan Khan v.
Mohammad Shafi, Anwar Hasan Khan v. Mohammad Shafi,
AIR 2001 SC 2984 [
LNIND 2001 SC 2393 ], p. 2986 :
(2001) 8 SCC 540 [
State of T.N., Padmasundara Rao v. State of T.N.,
AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], p. 1340 :
(2001) 8 SCC 540 [
Industries (P.) Ltd. v. U.P. Financial Corporation, Unique Butyle Tube Industries
(P.) Ltd. v. U.P. Financial Corporation,
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ], p. 462 :
AIR 2003 SC 2103 [
LNIND 2002 SC 857 ], p. 2107.
63 Poppatlal Shah v. State of Madras, Poppatlal Shah v. State of

Madras,
AIR 1953 SC 274 [
LNIND 1953 SC 38 ], p. 276 :
1953 SCR 677 [
LNIND 1953 SC 38 ]. See further Aswinikumar
Ghose v. Arabinda Bose, Aswinikumar Ghose v. Arabinda Bose,
AIR 1952 SC 369 [
Mr.Srikanth -
Page 47 of 95
LNIND 1952 SC 94 ], p. 382 :

1953 SCR 1 [
LNIND 1952 SC 94 ]; Darshan Singh Balwant
Singh v. State of Punjab, Darshan Singh Balwant Singh v. State of Punjab,
AIR 1953 SC 83 [
LNIND 1952 SC 83 ], p. 86 :
1953 SCR 319 ; Workmen of Dimakuchi Tea Estate
v. Management of Dimakuchi Tea Estate, Workmen of Dimakuchi Tea Estate v.
Management of Dimakuchi Tea Estate,
AIR 1958 SC 353 [
LNIND 1958 SC 1 ], p. 356 :
1958 SCR 1156 [
LNIND 1958 SC 1 ]; State of U.P. v. C.
Tobit, State of U.P. v. C. Tobit,
AIR 1958 SC 414 [
LNIND 1958 SC 9 ], p. 416 :
1958 SCR 1275 [
LNIND 1958 SC 9 ]; R.L. Arora v. State of
U.P., R.L. Arora v. State of U.P.,
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], pp. 1237, 1238, 1239; Kanwar
Singh v. Delhi Administration, Kanwar Singh v. Delhi Administration,
AIR 1965 SC 871 [
LNIND 1964 SC 194 ]:
1965 (1) SCR 7 [
LNIND 1964 SC 194 ]; Deputy Custodian v.
Official Receiver, Deputy Custodian v. Official Receiver,
AIR 1965 SC 951 [
LNIND 1964 SC 220 ], pp. 956, 957 :
1965 (1) SCR 220 [
LNIND 1964 SC 220 ]; Sheikh Gulfan v. Sanat
Kumar, Sheikh Gulfan v. Sanat Kumar,
AIR 1965 SC 1839 [
LNIND 1965 SC 81 ], p. 1845 :
1965 (3) SCR 364 [
LNIND 1965 SC 81 ]; Carew and Company Ltd.
v. Union of India, Carew and Company Ltd. v. Union of India,
AIR 1975 SC 2260 [
LNIND 1975 SC 290 ], p. 2269 :
(1975) 2 SCC 791 [
LNIND 1975 SC 290 ] (The law is a pragmatic instrument
of social order and interpretative effort must be imbued with the statutory purpose);
Chitan J. Vasvani v. State of West Bengal, Chitan J. Vasvani v. State of West
Bengal,
AIR 1975 SC 2473 [
LNIND 1975 SC 416 ], p. 2476 :
(1975) 2 SCC 829 [
LNIND 1975 SC 416 ] (context-purpose teleological
approach); Bar Council of Maharashtra v. M.V. Dubholkar, Bar Council of
Maharashtra v. M.V. Dubholkar,
AIR 1975 SC 2092 [
LNIND 1975 SC 272 ], p. 2103 :
(1975) 2 SCC 702 [
LNIND 1975 SC 272 ]; Girdharilal &
Sons v. Balbir Nath Mathur, Girdharilal & Sons v. Balbir Nath Mathur,
(1986) 2 SCC 237 [
LNIND 1986 SC 45 ],p. 245 :
AIR 1986 (SC) 1499 [
LNIND 1986 SC 45 ](“A construction that would
promote the purpose or object of an Act, even if not expressed, is to be preferred. ” Section 15AA of
Australian Interpretation Act, 1901, as amended in 1981); Atma Ram Mittal v. Ishwar Singh Punia,
Atma Ram Mittal v. Ishwar Singh Punia,
AIR 1988 SC 2031 [
LNIND 1988 SC 401 ], p. 2034 :
1988 (4) SCC 284 [
LNIND 1988 SC 401 ]; U.P. Bhoodan Yagna
Mr.Srikanth -
Page 48 of 95
Samiti v. Brajkishore, U.P. Bhoodan Yagna Samiti v. Brajkishore,

AIR 1988 SC 2239 [
LNIND 1988 SC 440 ], p. 2244 :
1988 (4) SCC 274 [
LNIND 1988 SC 440 ] (background and purpose of the
statute to be kept in view).
64 Kanta Goel (Smt.) v. B.D. Pathak, Kanta

Goel (Smt.) v. B.D. Pathak,
AIR 1977 SC 1599 [
LNIND 1977 SC 163 ], p. 1661 :
1977 (2) SCC 814 [
LNIND 1977 SC 163 ]. Also see State Bank of
Travancore v. Mohd. M. Khan, State Bank of Travancore v. Mohd. M. Khan,
AIR 1981 SC 1744 [
LNIND 1981 SC 354 ], p. 1749 (para 18) :
(1981) 4 SCC 82 [
LNIND 1981 SC 354 ].
65 Henrietta Muir Edwards v. AG of Canada,

Henrietta Muir Edwards v. AG of Canada,
AIR 1930 PC 120 , pp. 121, 122. For internal aids see
Chapter 3. For external aids, see Chapter 4.
66 Attorney-General v. HRH Prince Ernest Augustus,

Attorney-General v. HRH Prince Ernest Augustus,
(1957) 1 All ER 49 , p. 61 (HL); referred to in Premchand Jain v. R.K. Chhabra,
Premchand Jain v. R.K. Chhabra,
(1984) 2 SCC 302 [
LNIND 1984 SC 35 ], p. 307 :
AIR 1984 SC 981 [
LNIND 1984 SC 35 ]:
1984 Cri LJ 668 ; District Mining Officer v. Tata
Iron & Steel Co., District Mining Officer v. Tata Iron & Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3152 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ].

(1957) 1 All ER 49 , p. 53 (HL)(Viscount Simonds); See
further London Borough of Ealing v. Race Relation Board, London Borough of
Ealing v. Race Relation Board,
(1972) 1 All ER 105 , p. 114 (HL); Utkal Contractors and Joinery Pvt. Ltd. v. State of
Orissa, Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa,
(1987) 3 SCC 279 [
LNIND 1987 SC 466 ], pp. 289, 290 :
AIR 1987 SC 1454 [
v. Tata Iron & Steel Co. Supra District Mining Officer v. Tata Iron & Steel Co. Supra
.
68 Reserve Bank of India v. Pearless General Finance and

Investment Co., Reserve Bank of India v. Pearless General Finance and Investment
Co.,
(1987) 1 SCC 424 [
LNIND 1987 SC 86 ], p. 450 :
AIR 1987 SC 1023 [
Mr.Srikanth -
Page 49 of 95
LNIND 1987 SC 86 ]. See further Utkal

Contractors and Joinery Pvt. Ltd. v. State of Orissa, supra, Utkal Contractors and
Joinery Pvt. Ltd. v. State of Orissa, supra, pp. 288, 289; Kehar Singh v. State, Kehar
Singh v. State,
AIR 1988 SC 1883 [
LNIND 1988 SC 887 ], pp. 1931, 1932 :
1988 (3) SCC 609 [
LNIND 1988 SC 887 ]; R.S. Raghunath v. State
of Karnataka, R.S. Raghunath v. State of Karnataka,
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 89; S. Gopal Reddy
v. State of Andhra Pradesh, S. Gopal Reddy v. State of Andhra Pradesh,
AIR 1996 SC 2184 [
LNIND 1996 SC 1040 ], p. 2188 :
1996 (4) SCC 596 [
LNIND 1996 SC 1040 ]; J.K. Industries v.
Chief Inspector of Factories, J.K. Industries v. Chief Inspector of Factories,
1996 (7) Scale 247 [
LNIND 1996 SC 1547 ], p. 260:
1996 (6) SCC 665 [
LNIND 1996 SC 1547 ] : 1997 SCC (L&S) 1;
Associated Timber Industries v. Central Bank of India, Associated Timber Industries
v. Central Bank of India,
AIR 2000 SC 2689 [
LNIND 2000 SC 1081 ], p. 2693 :
(2000) 7 SCC 93 [
v. Tata Iron & Steel Co. supra; District Mining Officer v. Tata Iron & Steel Co.
supra; Gujarat High Court v. Gujarat Kisan Mazdoor Panchayat,
Gujarat High Court v. Gujarat Kisan Mazdoor Panchayat,
AIR 2003 SC 1201 [
LNIND 2003 SC 312 ], p. 1213 :
(2003) 4 SCC 712 [
LNIND 2003 SC 312 ]; Iridium India Telecom
Ltd. v. Motorola Inc., Iridium India Telecom Ltd. v. Motorola Inc.,
(2005) 2 SCC 145 [
LNIND 2005 SC 15 ], p. 159;
(2007) 7 SCC 309 [
LNIND 2007 SC 905 ], para 21.
69 “Cases and other Materials on Legislation”, by Reid Macdonald And Fordham, 2nd
Edition, p. 1005.
70 Blackstone, commentaries on the Laws of England, Vol. 1, p. 59; referred to in Atmaram

Mittal v. Iswar Singh Punia, Atmaram Mittal v. Iswar Singh Punia,
AIR 1988 SC 2031 [
LNIND 1988 SC 401 ], p. 2034 :
(1998) 4 SCC 284 [
LNIND 1988 SC 401 ]; A.P. Board for Water
Pollution Control v. Andhra Pradesh Rayon's Ltd., A.P. Board for Water Pollution
Control v. Andhra Pradesh Rayon's Ltd.,
AIR 1989 SC 611 , p. 615 :
(1989) 1 SCC 44 [
LNIND 1988 SC 494 ]; Collector of Central
Excise v. Parle Exports, Collector of Central Excise v. Parle Exports,
AIR 1989 SC 644 [
LNIND 1988 SC 559 ], p. 652 :
(1989) 1 SCC 345 [
LNIND 1988 SC 559 ]; State of U.P. v.
Radheyshyam, State of U.P. v. Radheyshyam,
AIR 1989 SC 682 [
LNIND 1989 SC 14 ], p. 690 :
1989 (1) SCC 591 [
Mr.Srikanth -
Page 50 of 95

v. Tata Iron & Steel Co., District Mining Officer v. Tata Iron & Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3152 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ].
71 Aron Soloman v. A. Soloman & Co. Ltd.,

Aron Soloman v. A. Soloman & Co. Ltd.,
(1897) AC 22 , p. 38 (HL); referred to in Lord Howard de Walden v. IRC,
Lord Howard de Walden v. IRC,
(1948) 2 All ER 825 , p. 830 (HL); Commonwealth of Australia v. Bank of New South
Wales, Commonwealth of Australia v. Bank of New South Wales,
(1949) 2 All ER 755 , p. 769 (PC); R.L. Arora v. State of
Uttar Pradesh, R.L. Arora v. State of Uttar Pradesh,
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], p. 1244 :
(1964) 6 SCR 784 [
LNIND 1964 SC 31 ]; Shahdara
(Delhi) Saharanpur Light Railway Co. Ltd. v. Workers Union, Shahdara (Delhi)
Saharanpur Light Railway Co. Ltd. v. Workers Union,
AIR 1969 SC 513 [
LNIND 1968 SC 281 ], p. 519 :
1969 (2) SCR 131 [
LNIND 1968 SC 281 ]; Hansraj Gordhandas v.
H.H. Dave, Hansraj Gordhandas v. H.H. Dave,
AIR 1970 SC 755 [
LNIND 1968 SC 301 ], p. 759 :
(1969) 2 SCR 253 [
LNIND 1968 SC 301 ]; Shri Umed v. Raj
Singh, Shri Umed v. Raj Singh,
AIR 1975 SC 43 [
LNIND 1974 SC 255 ], pp. 63, 64 :
(1975) 1 SCC 76 [
LNIND 1974 SC 255 ]; Commissioner of Sales
Tax, U.P. v. Super Cotton Bowl Refilling Works, Commissioner of Sales Tax, U.P. v. Super
Cotton Bowl Refilling Works,
AIR 1989 SC 922 [
LNIND 1989 SC 69 ], p. 930 :
(1989) 1 SCC 643 [
LNIND 1989 SC 69 ]; State of Madhya Pradesh
v. G.S. Dall and Flour Mills, State of Madhya Pradesh v. G.S. Dall and Flour Mills,
AIR 1991 SC 772 [
150; Harbhajan Singh v. Press Council of India, Harbhajan Singh v. Press Council of
India,
AIR 2002 SC 1351 [
LNIND 2002 SC 196 ], p. 1356 :
(2002) 3 SCC 722 [
LNIND 2002 SC 196 ]:
(2002) 96 DLT 691 [
LNIND 2002 SC 196 ].
72 For example see

AIR 1964 SC 669 [
LNIND 1963 SC 256 ]:
1964 (5) SCR 387 [
LNIND 1963 SC 256 ]. The question in this case was
whether the State was bound “by necessary implication” by Displaced Persons (Debts
Adjustments) Act, 1951 and the court held that the State was bound, for a contrary
result would have frustrated the beneficent purpose of the Act.
Mr.Srikanth -
Page 51 of 95
73 Organo Chemical Industries v. Union of India,

Organo Chemical Industries v. Union of India,
AIR 1979 SC 1803 [
LNIND 1979 SC 288 ], p. 1817 :
(1979) 4 SCC 573 [
LNIND 1979 SC 288 ]; Directorate of
Enforcement v. Deepak Mahajan, Directorate of Enforcement v. Deepak Mahajan,
JT 1994 (1) SC 281 [
LNIND 1994 SC 135 ], p. 302 :
AIR 1994 SC 1775 , p. 1785 :
(1994) 3 SCC 440 .
74 Chairman, Board of Mining Examination and Chief Inspector of

Mines v. Ramjee, Chairman, Board of Mining Examination and Chief Inspector of
Mines v. Ramjee,
AIR 1977 SC 965 [
LNIND 1977 SC 67 ], p. 968 : 1977 SCC (L&S)
226. See further Directorate of Enforcement v. Deepak Mahajan, Directorate of
Enforcement v. Deepak Mahajan, supra, p. 1785 of AIR.
75 Nagendranath Dey v. Sureshchandra Dey,

Nagendranath Dey v. Sureshchandra Dey,
AIR 1932 PC 165 , p.168; Siraj-ul-Haq Khan v.
Sunni Central Board, Siraj-ul-Haq Khan v. Sunni Central Board,
AIR 1959 SC 198 [
LNIND 1958 SC 102 ], p. 205 :
1959 SCR 1287 [
LNIND 1958 SC 102 ]; Shakuntala S. Tiwari v.
Hemchand, Shakuntala S. Tiwari v. Hemchand,
(1987) 3 SCC 211 [
LNIND 1987 SC 457 ], pp. 218, 220 :
AIR 1987 SC 1823 [
LNIND 1987 SC 457 ]; R. Rudraiah v. State of
Karnataka, R. Rudraiah v. State of Karnataka,
AIR 1998 SC 1070 [
LNIND 1998 SC 147 ], p. 1075 :
1998 (3) SCC 23 [
LNIND 1998 SC 147 ]; Antonysami v.
Arulanangam, Antonysami v. Arulanangam,
AIR 2001 SC 2967 [
LNIND 2001 SC 2450 ], p. 2972 :
(2001) 9 SCC 658 [
LNIND 2001 SC 2450 ]; Hamid Joharan v.
Abdulsalam, Hamid Joharan v. Abdulsalam,
AIR 2001 SC 3404 [
LNIND 2001 SC 1689 ], p. 3409 :
(2001) 7 SCC 573 [
LNIND 2001 SC 1689 ]; State of A.P. v. Marki
Venkaiah, State of A.P. v. Marki Venkaiah,
(2003) 7 SCC 280 [
LNIND 2003 SC 589 ], p. 283 :
AIR 2003 SC 2949 [
LNIND 2003 SC 589 ]. No implied saving can be read for
persons under disability: See Khan v. Collector of Bareilly,
Khan v. Collector of Bareilly,
(1873) 1 IA 167 , p. 176. The courts have no power to extend the
period of limitation on equitable grounds: P.K. Ramchandran v. State of Kerala, P.K. Ramchandran v. State
of Kerala,
AIR 1998 SC 2276 [
LNIND 1997 SC 1239 ], p. 2277 :
1997 (7) SCC 556 [
LNINDORD 1997 SC 126 ]. See further
Padmasundara Rao v. State of T.N., Padmasundara Rao v. State of T.N.,
Mr.Srikanth -
Page 52 of 95
AIR 2002 SC 1334 [

LNIND 2002 SC 201 ]:
(2002) 3 SCC 533 [
LNIND 2002 SC 201 ] (Proviso to
section 6(1) of the Land Acquisition Act, 1894 as amended by Act 68 of 1984
providing period of limitation from the date of notification under section 4 for issuance
of section 6 notification construed literally).
76 State of Punjab v. Qaisar Jehan Begum,

State of Punjab v. Qaisar Jehan Begum,
AIR 1963 SC 1604 [
LNIND 1963 SC 32 ], p. 1606 :
1964 (1) SCR 971 [
LNIND 1963 SC 32 ]; Harish Chandra Raj
Singh (Raja) v. Deputy Land Acquisition Officer, Harish Chandra Raj Singh
(Raja) v. Deputy Land Acquisition Officer,
AIR 1961 SC 1500 [
LNIND 1961 SC 145 ], pp. 1504, 1505 :
1962 (1) SCR 676 [
LNIND 1961 SC 145 ]; Madanlal v. State of
U.P., Madanlal v. State of U.P.,
AIR 1975 SC 2085 [
LNIND 1975 SC 302 ]:
(1975) 2 SCC 779 [
LNIND 1975 SC 302 ]; Assistant Transport
Commissioner, Lucknow v. Nandsingh, Assistant Transport Commissioner, Lucknow
v. Nandsingh,
AIR 1980 SC 15 [
LNIND 1979 SC 298 ]:
1979 (4) SCC 19 [
LNIND 1979 SC 298 ]; Dara Singh v.
State, Dara Singh v. State,
AIR 1981 SC 427 [
LNIND 1980 SC 433 ], p. 430 :
(1980) 4 SCC 586 [
LNIND 1980 SC 433 ]; Precision Steel and
Engineering Works v. Prem Deva, Precision Steel and Engineering Works v. Prem
Deva,
AIR 1982 SC 1518 [
LNIND 1982 SC 138 ], p. 1519 :
(1982) 3 SCC 270 [
LNIND 1982 SC 138 ]. See further Anandilal
v. Ram Narain, Anandilal v. Ram Narain,
(1984) 3 SCC 561 [
LNIND 1984 SC 155 ], p. 567 :
AIR 1984 SC 1383 [
LNIND 1984 SC 155 ]. (It is permissible to adopt a
beneficent construction of a rule of limitation if alternative constructions are possible). The object and
purpose of a limitation provision has also its impact on its construction: Compare
Harish Chandra Raj Singh's case (supra), a case under
s. 18 of the Land Acquisition Act with Kaliyappan v. State of Kerala,
Kaliyappan v. State of Kerala,
AIR 1989 SC 239 [
LNIND 1988 SC 528 ]:
1989 (1) SCC 113 [
LNIND 1988 SC 528 ] a case under s. 11A of the same
Act. Under s. 18 which provides for a reference within a certain period from the date of
award at the instance of the owner, the date of award is construed to mean the date of communication of
award to him. But under s. 11A which requires making of award within two years of the
declaration under s. 6, the award is construed to be made when it is signed. For construction of the date of
making of declaration under section 6 and requirement of publication in gazette see Krishi Utpadan
Mandi Samiti v. Makrand Singh, Krishi Utpadan Mandi Samiti v. Makrand Singh,
1995 (2) SCC 497 [
LNIND 1994 SC 1126 ]:
1995 (1) JT 487 ; Eugenio Misquita v. State of
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Goa, Eugenio Misquita v. State of Goa,

AIR 1997 SC 3939 [
LNIND 1997 SC 1275 ]:
(1997) 8 SCC 47 [
LNIND 1997 SC 1275 ]; S.H. Rangappa v. State
of Karnataka, S.H. Rangappa v. State of Karnataka,
AIR 2001 SC 3868 [
LNIND 2001 SC 2389 ]; Sriniwas Ramdas Khatod
v. State of Maharashtra, Sriniwas Ramdas Khatod v. State of Maharashtra,
AIR 2002 SC 187 [
LNIND 2001 SC 2591 ]:
(2002) 1 SCC 689 [
LNIND 2001 SC 2591 ]:
(2002) 1 KLT 140 ; Kunwar Pal Singh v. State of U.P.,
Kunwar Pal Singh v. State of U.P.,
(2007) 5 SCC 85 [
LNIND 2007 SC 382 ]:
AIR 2007 SC 1675 [
LNIND 2007 SC 382 ][Date of publication of the
declaration under s. 6 of L.A. Act for counting the period of two years for making the
award under section 11-A is the last of the dates of publications required under section 6(2)[.
Similarly, date of order with reference to the person or authority making the order is the date when it is
signed, but with reference to party affected for going up in appeal or revision, date of
order is the date of express or implied communication of the order to the party: Collector of Central Excise v.
M.M. Rubber & Co., Collector of Central Excise v. M.M. Rubber
& Co.,
AIR 1991 SC 2141 [
LNIND 1991 SC 431 ]: 1992 S (1) SCC 471 ; MCD v.
Qimat Rai Gupta, MCD v. Qimat Rai Gupta,
(2007) 7 SCC 309 [
LNIND 2007 SC 905 ], para 21. ‘The date of the
order’ under
s. 48AA of the Advocates Act, 1961 for filing review within sixty days is the date of the
communication or knowledge of the order: D. Saibaba v. Bar Council of India, D. Saibaba v. Bar Council of
India,
AIR 2003 SC 2502 [
LNIND 2003 SC 510 ], p. 2505 :
(2003) 6 SCC 186 [
LNIND 2003 SC 510 ]. Limitation of three years for
revision to prevent fraud would start running from the date of discovery of the fraud:
State of Maharashtra v. Rattanlal, State of Maharashtra v. Rattanlal,
AIR 1993 SC 1733 : (1993) 3 SCC 326. Limitation for suit
for damages in tort against the state starts when there is refusal to pay the damages: Jay Laxmi Salt
Works (P) Ltd. v. State of Gujarat, Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat,
JT 1994 (3) SC 492 , pp. 506, 507:
1994 (3) SCC 8 . Principle of
section 10 Limitation Act , 1973 which applies to original suits applied to extend
limitation for appeal on grounds of public policy: Varadraja Perumal Temple v. K. Ramchandra,
Varadraja Perumal Temple v. K. Ramchandra,
1995 (6) Scale 25 : 1995 Supp (4) SCC 87. Provision
requiring publication in official gazette and in such other manner as may be directed and prescribing period of
limitation from ‘such publication’ construed to mean that period of limitation will start
from the date of publication in official gazette and not from the other mode of publication which may be
earlier in time: Mohd. Abubakkar Siddique v. Mustafa-Shahidul Islam,
Mohd. Abubakkar Siddique v. Mustafa-Shahidul Islam,
AIR 2000 SC 731 [
LNIND 2000 SC 117 ], p. 732 :
(2000) 2 SCC 62 [
LNIND 2000 SC 117 ]; Raipur Development
Authority v. Anupam Sahkari Griha Nirman Samiti, Raipur Development Authority v. Anupam
Sahkari Griha Nirman Samiti,
JT 2000 (4) SC 60 [
LNIND 2000 SC 554 ], pp. 70, 71 :
(2000) 4 SCC 357 [
LNIND 2000 SC 554 ]. Provisions like
section 14 of the Limitation Act , 1973 for condonation of delay and extention of
Mr.Srikanth -
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limitation are liberally construed: Union of India v. West Coast Paper Mills Ltd.,
Union of India v. West Coast Paper Mills Ltd.,
(2004) 3 SCC 458 [
LNIND 2004 SC 264 ], p. 464 (para 14) :
AIR 2004 SC 3079 [
LNIND 2004 SC 264 ]. But suo motu
power of revision to be exercised ‘at any time’ even in furtherance of social justice cannot be exercised after
unreasonable delay: Situ Sahu v. State of Jharkhand, Situ Sahu v. State of Jharkhand,
(2004) 8 SCC 340 [
LNIND 2004 SC 914 ]. A provision for limitation has to
be specifically enacted and cannot be inferred by courts : Collector of Central Excise v. Raghuvar
(India) Ltd., Collector of Central Excise v. Raghuvar (India) Ltd.,
AIR 2000 SC 2027 [
LNIND 2000 SC 886 ], p. 2033 :
(2000) 5 SCC 299 [
LNIND 2000 SC 886 ].
77 See Chapter 10, title 1(d) ‘Qualifications of the Rule of Strict

Construction’ text and notes 33 to 36 at pp. 791-92.
78 Union of India v. Harjeet Singh Sandhu,

Union of India v. Harjeet Singh Sandhu,
AIR 2001 SC 1772 [
LNIND 2001 SC 947 ], pp. 1780, 1781 :
(2001) 5 SCC 593 [
LNIND 2001 SC 947 ].
79 Magor and St. Mellons Rural District Council v. New Port

Corporation, Magor and St. Mellons Rural District Council v. New Port
Corporation,
(1951) 2 All ER 839 (HL).
80 D. A. Venkatachalam v. Dy. Transport Commissioner,

D. A. Venkatachalam v. Dy. Transport Commissioner,
AIR 1977 SC 842 , pp. 853, 854 :
1977 (2) SCC 273 ; Union of India v. Elphinstone
Spinning and Weaving Co. Ltd., Union of India v. Elphinstone Spinning and Weaving
Co. Ltd.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 563 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 740 :
(2001) 4 SCC 139 [
v. Tata Iron & Steel Co., District Mining Officer v. Tata Iron & Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3153 :
(2001) 7 SCC 358 [
AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], p. 1340 :
(2002) 3 SCC 533 [
LNIND 2002 SC 201 ]; Harbhajan Singh v.
Press Council of India, Harbhajan Singh v. Press Council of India,
AIR 2002 SC 1351 [
LNIND 2002 SC 196 ], pp. 1355, 1356 :
(2002) 3 SCC 722 [
Industries (P) Ltd. v. U.P. Financial Corporation, Unique Butyle Tube Industries
Mr.Srikanth -
Page 55 of 95
(P) Ltd. v. U.P. Financial Corporation,

(2003) 2 SCC 455 [
LNIND 2002 SC 857 ], p. 462 :
AIR 2003 SC 2103 [
LNIND 2002 SC 857 ], p. 2107; Maulvi Hussain
Haji Abraham Umerji v. State of Gujarat, Maulvi Hussain Haji Abraham Umerji v. State
of Gujarat,
(2004) 6 SCC 672 [
LNIND 2004 SC 1560 ], p. 681 :
AIR 2004 SC 3946 [
LNIND 2004 SC 1560 ].
81 Duport Steels Ltd. v. Sirs, Duport Steels Ltd. v. Sirs,

(1980) 1 All ER 529 , p. 541 :
(1980) 1 WLR 142 (HL); Union of India v. Elphinstone
Spinning and Weaving Co. Ltd., supra. Union of India v. Elphinstone Spinning and
Weaving Co. Ltd., supra. .
82 Shah v. Barnet London Borough Council,

Shah v. Barnet London Borough Council,
(1983) 1 All ER 226 , p. 238 :
(1983) 2 AC 309 :
(1983) 2 WLR 16 (HL); referred to in S. Sundaram Pillai v. Pattabiraman,
S. Sundaram Pillai v. Pattabiraman,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], p. 627:
AIR 1985 SC 582 [
LNIND 1985 SC 20 ].
83 See text and notes 63 to 66, supra.
84 Bhagwan Baksh Singh (Raja) v. Secretary of State,

Bhagwan Baksh Singh (Raja) v. Secretary of State,
AIR 1940 PC 82 , p. 86; referred to in Prem
Chand Jain v. R.K. Chabbra, Prem Chand Jain v. R.K. Chabbra,
(1984) 2 SCC 302 [
LNIND 1984 SC 35 ], p. 307 :
AIR 1984 SC 981 [
LNIND 1984 SC 35 ]. For example, see majority and
minority opinions in R.L. Arora v. State of U.P., R.L. Arora v.
State of U.P.,
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ]:
(1964) 6 SCR 784 [
LNIND 1964 SC 31 ].
85 Commissioner v. Ickelheimer, Commissioner v. Ickelheimer, 132 F

(2d) 660, p. 662, referred to in 60 Harvard Law Review 370, p. 376. The same learned judge in another case
said : “Statutes always have some purpose or object to accomplish, whose sympathetic
and imaginative discovery is the surest guide to their meaning:” Cabell v. Markham,
Cabell v. Markham, (1945) 148 F (2nd) 737, p. 739 also referred at p. 339, post.
86 V. C. Rangadurai v. D. Gopalan, V. C. Rangadurai v. D. Gopalan,

AIR 1979 SC 281 [
LNIND 1978 SC 276 ], p. 284 :
(1979) 1 SCC 308 [
LNIND 1978 SC 276 ]. See further Mohan Lal
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v. Jai Bhagwan, Mohan Lal v. Jai Bhagwan,

AIR 1988 SC 1034 [
LNIND 1988 SC 190 ], p. 1037 :
1988 (2) SCC 474 [
LNIND 1988 SC 190 ]. (The meaning of expressions must
be found in the felt necessities of time); Gurdial Batra v. Raj Kumar Jain, Gurdial
Batra v. Raj Kumar Jain,
AIR 1989 SC 1841 [
LNIND 1989 SC 340 ], p. 1842 :
1989 (3) SCC 441 [
LNIND 1989 SC 340 ]. See also
Chapter 4 title 3, pp. 243 to 287. This is called an updating approach; Cross, Statutory
Interpretation, 3rd Edition, p. 51.
87 Charan Lal Sahu v. Union of India, Charan Lal Sahu v. Union of

India,
AIR 1990 SC 1480 [
LNIND 1989 SC 639 ], p. 1536 :
(1990) 1 SCC 613 [
LNIND 1989 SC 639 ].
88 Ibid. Here the Chief Justice was referring to Bentham'S

classification and views on interpretation. According to Bentham, interpretation is strict
when you derive a meaning which you suppose the legislator really entertained and it is liberal when you
arrive at a meaning which you suppose he failed to entertain by inadvertence but would
have entertained had the case which calls for interpretation been present to his view. See Bentham, of Laws in
General, pp. 162, 241 quoted in CROSS, “Statutory Interpretation”, 3rd Edition, pp. 35,
36. The words ‘strict’ and ‘liberal’ are frequently used, not in the sense used by
BENTHAM, but to mean merely narrow and broad.
89 Charan Lal Sahu v. Union of India, supra,

Charan Lal Sahu v. Union of India, supra, p. 1536.
90 Frankfurter, Some reflections on the reading of statutes, “Essays on Jurisprudence from the
Columbia Law Review”, p. 51; Accountants of India v. Price Waterhouse,
Accountants of India v. Price Waterhouse,
AIR 1998 SC 74 [
LNIND 1997 SC 934 ], p. 90 :
(1997) 6 SCC 312 [
LNIND 1997 SC 934 ] (6th Edition of this book, p. 15 is
referred); J.P. Bansal v. State of Rajasthan, J.P. Bansal v. State of Rajasthan,
2003 AIR SCW 1848, p. 1854 :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ]:
(2003) 5 SCC 134 [
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 297. See further
Stock v. Frank Jones (Tipton) Ltd., Stock v. Frank Jones (Tipton) Ltd., (1978) 1 All
EC 948, p. 953 (HL). (The judge must bear in mind the limitations of judicial function).
In his work “The Judicial Process In Comparative Perspective” PROF. Mauro
Cappelletti, who has strong bias for judicial law making (p. 56) says (p. 8): “Words do
often have a meaning so commonly accepted that even the most activist and dynamic judge would find it hard
to ignore”. Further, the learned professor after pointing out certain limitations and
weaknesses of judicial law making has the following words of caution (p. 39): “A good
judge is one who is aware of the above limits and weaknesses and sensitive to those many circumstances
which might advise restraint in some periods, areas and cases and boldness in others”.
Mr.Srikanth -
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91 Lord Radcliffe, The Lawyer and his Times, quoted by Justice Tulzapurkar in Manohar
Nathusao Samarth v. Marotrao, Manohar Nathusao Samarth v.
Marotrao,
AIR 1979 SC 1084 [
LNINDU 2014 BOM 2391 ], p. 1085 :
1979 (4) SCC 93 .
92 Duport Steels Ltd. v. Sirs, Duport Steels Ltd. v. Sirs,

(1980) 1 All ER 529 , p. 551 (HL) :
(1980) 1 WLR 142 : 124 SJ 133. In the same case Lord Diplock said
(p. 542): “It endangers continued public confidence in the political impartiality of the judiciary, which
is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own
preferred amendments to statutes which experience of their operation has shown to have
had consequences that members of the court before whom the matter comes consider to be injurious to public
interest.” The passage from Lord Scarman'S speech quoted in the text was also referred to by Ahmadi, J., in
his dissenting Judgment in Supreme Court Advocates on Record Association v. Union
of India, Supreme Court Advocates on Record Association v. Union of India,
AIR 1994 SC 268 , p. 367 :
1993 (4) SCC 441 . The passage from Lord Diplock's
speech quoted above was referred to by Institute of Chartered Accountants of India v.
Price Waterhouse, Institute of Chartered Accountants of India v. Price Waterhouse,
AIR 1998 SC 74 [
LNIND 1997 SC 934 ], p. 90 :
1997 (6) SCC 312 [
LNIND 1997 SC 934 ]; and by Arijit Pasayat J., in J.P.
Bansal v. State of Rajasthan, J.P. Bansal v. State of Rajasthan, 2003 AIR SCW 1848, p.
1855 :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ]:
(2003) 5 SCC 134 [
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 297.
93 National Textile Workers Union v. P.R. Ramkrishnan,

National Textile Workers Union v. P.R. Ramkrishnan,
AIR 1983 SC 75 , pp. 101, 103 :
(1983) 1 SCC 228 :
(1983) 1 LLJ 45 .
94 Mohd. Ahmed Khan v. Shah Bano Begum,

Mohd. Ahmed Khan v. Shah Bano Begum,
(1985) 2 SCC 556 [
LNIND 1985 SC 145 ], pp. 569 to 571 :
AIR 1985 SC 945 [
LNIND 1985 SC 145 ].
95 Secretary, Tamil Nadu Wakf Board v. Syed Fatima Nachi,

Secretary, Tamil Nadu Wakf Board v. Syed Fatima Nachi,
AIR 1996 SC 2423 (para 5) :
1996 (4) SCC 616 . The Act does not affect the right of
muslim children to get maintenance under
section 127 Cr PC ; Noor Sabha Khatoon v. Mohd. Quasim,
Noor Sabha Khatoon v. Mohd. Quasim,
AIR 1997 SC 3280 [
LNIND 1997 SC 1009 ]:
1997 (5) Scale 248 [
LNIND 1997 SC 1009 ]:
Mr.Srikanth -
Page 58 of 95
(1997) 6 SCC 233 [

LNIND 1997 SC 1009 ].
96
AIR 2001 SC 3958 [
LNIND 2001 SC 2181 ]:
(2001) 7 SCC 740 [
LNIND 2001 SC 2181 ].
97 Ibid p. 3971.
98 Ibid p. 3969, 3973.
1 Mohd. Ahmad Khan v. Shah Bano Begum,

Mohd. Ahmad Khan v. Shah Bano Begum,
(1985) 2 SCC 556 [
LNIND 1985 SC 145 ], p. 573 :
AIR 1985 SC 945 [
LNIND 1985 SC 145 ]. See further Shamim Ara
v. State of U.P., Shamim Ara v. State of U.P.,
(2002) 7 SCC 518 [
LNIND 2002 SC 619 ]:
AIR 2002 SC 3551 [
LNIND 2002 SC 619 ] where the court has proceeded to
reform the Muslim law by curtailing the right of the husband to divorce the wife by
talaq. Commenting on an article ‘The rise of Hero judges’ by John Gava of Adelaide University in
(2001) 24 VNSW LJ 747 Justice P.W. YOUNG of Australia says : “There are clearly some good points made
by Gava. There is also something to be said against his views. One such point is that our society is so
structured that if judges do not on appropriate occasions grasp the mettle, no one will:”
(2002) 76 ALJ 4 .
2 Madhu Kishwar v. State of Bihar, Madhu Kishwar v. State of

Bihar,
AIR 1996 SC 1864 [
LNIND 1996 SC 807 ], pp. 1879, 1881 :
1996 (5) SCC 125 [
LNIND 1996 SC 807 ].
3 Cardozo: “The Nature of the Judicial Process”, p. 141; Idul Hasan v. Rajendra Kumar
Jain, Idul Hasan v. Rajendra Kumar Jain,
AIR 1990 SC 678 [
LNIND 1989 SC 430 ], p. 681 :
1989 (4) SCC 550 [
LNIND 1989 SC 430 ].
4 Mcloughlin v. O'Brian, Mcloughlin v. O'Brian,

(1982) 2 All ER 298 , p. 310 :
(1983) 1 AC 410 :
(1982) 2 WLR 982 (HL). Under the English Common Law
money paid under a mistake of law could not earlier be recovered back. Recently the House of Lords by
majority modified this rule by holding that levies and taxes paid to a local authority under
ultra vires regulations can be recovered as of right. The majority was conscious that however
compelling the principle of justice “it would never be sufficient to persuade Government to promote its
legislative recognition by Parliament; caution otherwise known as the Treasury, would
never allow this to happen”: Woolwich Building Society v. Inland Revenue Commissioners (No. 2),
Woolwich Building Society v. Inland Revenue Commissioners (No. 2),
Mr.Srikanth -
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(1992) 3 All ER 737 , pp. 760, 761 763 :

1993 AC 70 :
(1992) 3 WLR 366 (HL). Further, the original common law
mistake of law rule was later completely abrogated by holding that “English law should now
recognise that there is a general right to recover money paid under a mistake whether of fact or law:”
Kleinwort Benson Ltd. v. Lincoln City Council, Kleinwort Benson Ltd. v. Lincoln City
Council,
(1998) 4 All ER 513 , p. 553 (HL). This general right of
restitution of money paid under a mistake of law also applies when money is paid under a mistake of law to
the Revenue and the period of limitation starts from the date of discovery of mistake :
Deutsche Morgan Grenfell Group plc v. Inland Revenue Commissioners, Deutsche
Morgan Grenfell Group plc v. Inland Revenue Commissioners,
(2007) 1 All ER 449 (HL). The immunity enjoyed under the
common law by barristers and advocates from being sued for professional negligence was also abrogated on
the ground that changes in public policy no longer justified the continuance of the
immunity : Arthur J.S. Hall & Co. v. Simons, Arthur J.S. Hall & Co. v.
Simons,
(2000) 3 All ER 673 (HL). In Australia the common law,
which for 200 years did not recognise any ‘native title’, i.e., title of the aboriginal people of the land
in their occupation, was recently altered by the High Court : Mabo v. Queensland (No.
2), Mabo v. Queensland (No. 2),
(1992) 175 CLR 1 . But the High Court of Australia still sticks to the
view that the Advocates cannot be sued for professional negligence in the conduct of a trial: D'orta-Ekenaike
v. Victoria Legal Aid, D'orta-Ekenaike v. Victoria Legal Aid, (2005) HCA 12 (Kirby
J. dissenting). The decision was eriticised in the media :
(2005) 79 ALJ 201 .
5 Cardozo: The Growth of the Law (Indian Economy Reprint 2002), p. 137.
6 Devlin, The Judge, p. 14. See further Lord Steyn: “The function of the courts is simply to
construe and apply statutes. A judge's task is to interpret and not to interpolate. There is
a Rubicon which judges may not cross : principles of institutional integrity forbid it. That is of course not a
prescription for literal interpretation”. Deferance : a Tangled Story, (2005) Public Law 347.
N. B. The Supreme Court of India is endowed with a residuary judicial power under
Article 142 of the Constitution of passing such decree or making such order as is
necessary for doing complete justice in a cause or matter pending before it. This power is not held by any
other court not even by the High Courts [ State of Punjab v. Surinder Kumar,
State of Punjab v. Surinder Kumar,
AIR 1992 SC 1593 : (1992) 1 SCC 489 :
(1992) 73 Com Cases 490 ]. The creative role that the Supreme Court has
assumed under
Article 142 of the Constitution is much wider than a court's creative role in interpreting
statutes and is plainly legislative in nature. In K. Veeraswamy v. Union of India, K.
Veeraswamy v. Union of India,
(1991) 3 SCC 655 [
LNIND 1991 SC 320 ], p. 708 :
1991 (3) JT 198 :
1991 SCC (Cri) 734 , the Supreme Court by a majority of
3 against 2 issued directions to the Union of India that before registering FIR as also
before sanctioning prosecution under the
Prevention of Corruption Act against a sitting judge of a High Court or Supreme Court,
Chief Justice of India should be consulted. In doing so the majority judges were conscious that such a
requirement could not be spelled from the Act or the
Constitution but they said that the Court's role was not merely of ‘interstitial’ law
maker but also of “a problem solver in the nebulous areas”. Similarly, in P. V.
Narsimha Rao v. State, P. V. Narsimha Rao v. State,
JT 1998 (3) SC 318 [
LNIND 1998 SC 1259 ]:
AIR 1998 SC 2120 [
Mr.Srikanth -
Page 60 of 95
LNIND 1998 SC 1259 ], p. 2165 the Supreme Court has

held that though technically sitting MPS can be prosecuted under the
Prevention of Corruption Act, 1988 without obtaining any sanction for prosecution, the
prosecuting agency shall obtain the permission of the Chairman, Rajya Sabha/Speaker, Lok Sabha before
filing the chargesheet in court against a member of Parliament. On the same lines is the
decision in U.P. Judicial Officers Association v. Union of India, U.P. Judicial
Officers Association v. Union of India,
JT 2002 (8) SC 133 , p. 134, which directs that no FIR
should be registered without permission of the Chief Justice of the concerned High
Court against a judicial officer relating to allegations of having committed an offence in discharge or
purported discharge of his official duties. Even normally the police may not in every case register a FIR on
receipt of information of a cognizable offence and may hold a preliminary inquiry
before registering FIR to check some credibility of the information: Shashikant v. Central Bureau
of Investigation, Shashikant v. Central Bureau of Investigation,
AIR 2007 SC 351 [
LNIND 2006 SC 919 ], para 21 :
(2007) 1 SCC 630 [
LNIND 2006 SC 919 ]. Endowed with the power under
Article 142, the Supreme Court claims to be a “law maker” and a “problem solver” in
nebulous areas but only by supplementing the existing law and not by “supplanting” it:
Supreme Court Bar Association v. Union of India, Supreme Court Bar Association v.
Union of India,
AIR 1998 SC 1895 [
LNIND 1998 SC 455 ], pp. 1908, 1909 :
(1998) 4 SCC 409 [
LNIND 1998 SC 455 ]. See further pp. 271 to 282, post
for Article 142.
7 Gleeson C.J. of the High Court of Australia in a speech made to the Australian Bar
Association Conference in Newyork,
(2000) 74 ALJ 494 (Aust) see further text and note 12, p.
28.
8 See p. 251, post.
9 Even as regards interpretation of the

Constitution some feel that the American Supreme Court and also our Supreme Court
have gone much beyond the permissible limits. william j. quirk in his article “Judicial
Dictatorship” writes: “The court, at will, takes great chunks of public business away from public control. The
public at some point, will have to regain control of its business. ‘The judiciary’, said Hand ‘will
then cease to be independent’ and ‘its independence will be well lost’. The people after all,
are the only ones who can keep liberty in the country”: M.P. chronicle, June 1, 1994. For criticism of our
Supreme Court, see T.R. and hyarujina “Judicial Activism and Constitutional
Democracy in India”. See further nani palkhivala (Sunday Times, December 3, 1995):
“Not a day passes when front pages of Newspapers do not scream about a ‘landmark’ judgment of the
Supreme Court which virtually involves usurping the function of the executive”. soli J.
sorabjee (Sunday Times, December 10, 1995): “True, the judicial pendulum has swung
erratically on occasions. Some orders and directions passed by the Court are apparently beyond the judicial
sphere and do more credit to the heart than the head. Undoubtedly, there can be no
general amorphous judicial supervision of Government. The judiciary may overstep its limits and at times
fail to guard against the danger of judicial populism”. prof. S.P. sathe in his book ‘Judicial Activism in
India’ (2002) concludes (p. 251) : “The court has clearly transcended the limits of the
judicial function and has undertaken functions that really belonged to either the legislature or the executive.
Its decisions clearly violated the limits that the doctrine of separation of powers had imposed on it.” In the
context of PIL Prof. Sathe observes: “They (the Courts) have entertained matters they
ought not to have entertained and they have been guilty of populism as well as
adventurism.” Prof. Sathe also quotes the caution administered by Dr. anand C.J.I.: “care has to be taken
to see that PIL essentially remains public interest litigation and does not become either political interest
Mr.Srikanth -
Page 61 of 95
litigation, or personal interest litigation or publicity interest litigation or used for

persecution” (p. 308). The Supreme Court has reiterated this caution in subsequent cases : Ashok Kumar
Pandey v. State of West Bengal, Ashok Kumar Pandey v. State of West
Bengal,
AIR 2004 SC 280 [
LNIND 2003 SC 992 ], p. 283 :
(2004) 3 SCC 349 [
LNIND 2003 SC 992 ]; Dattaraj Nathuji
Thaware v. State of Maharashtra, Dattaraj Nathuji Thaware v. State of Maharashtra,
(2005) 1 SCC 590 [
LNIND 2004 SC 1240 ], p. 595. For further criticism of
PIL, see V.K.S. Chaudhary, ‘The Ivory Tower’, (2002), pp. 203 to 211. On the question
as to who can file PIL. See Kusam Lata v. Union of India,
Kusam Lata v. Union of India,
(2006) 6 SCC 180 [
LNIND 2006 SC 498 ]:
AIR 2006 SC 2643 [
LNIND 2006 SC 498 ].
10 State of Rajasthan v. Prakashchand, State of Rajasthan v.

Prakashchand,
JT 1997 (9) SC 492 , p. 529 (para 68) :
1998 (1) SCC 1 [
LNIND 1997 SC 1529 ]:
AIR 1998 SC 1344 [
LNIND 1997 SC 1529 ].
11 Ibid, p. 516 (para 38). dr anand CJI in his inaugural address at the
Golden jubilee celebrations of the Rajasthan High Court on August 29, 1999 at Jodhpur
cautioned: “No civilised system can permit judicial authoritarianism and, therefore, the judges at
all levels are expected to be circumspect and self disciplined in the discharge of their judicial functions.” See
further M.P. Oil Extraction v. State of Madhya Pradesh, M.P. Oil Extraction v.
State of Madhya Pradesh,
AIR 1998 SC 145 [
LNIND 1997 SC 1755 ], p. 157 :
(1997) 7 SCC 592 [
LNIND 1997 SC 1755 ] : (“The power of judicial
review of the executive and legislative action must be kept within the bounds of constitutional schemes so
that there may not be any occasion to entertain misgivings about the role of judiciary in
overstepping its limits by unwarranted judicial activism being very often talked of in these days.” J.N.
ray J.); Union of India v. Deoki Nandan Aggarwal, Union of India v. Deoki Nandan
Aggarwal,
AIR 1992 SC 96 [
LNIND 1991 SC 432 ], p. 101 : 1992 supp. (1) SCC
323 (“To invoke judicial activism to set at naught legislative judgment is subversive of the constitutional
harmony and comity of instrumentalities”. V. ramaswamy, J.).
12 Gleeson C.J. of the High Court of Australia in a speech made to the Australian Bar
Association Conference in Newyork,
(2000) 74 ALJ 494 (Aust.) See further cardozo, ‘The Nature
of the Judicial Process’ p. 129: “Judges have, of course, the power, though not the
right, to ignore the mandate of a statute, and render judgment in despite of it. They have the power, though
not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by
precedent and custom. None the less, by that abuse of power, they violate the law.”
13 The complete dilution of the power of the Executive in the matter of appointment and
transfer of judges and the taking away of the power of superintendence of the Central Government over
the C.B.I. may be cited as examples. See on these matters pp. 264, 265 and 275, post.
Mr.Srikanth -
Page 62 of 95

(1957) 1 All ER 49 , pp. 53, 54 (HL).
15 Ibid, p. 61. For full quotation of sir john nicholl's dictasee

text and note 58, at pp. 37-38.
16 Maxwell: Interpretation of Statutes, 11th Edition, Foreword, p. 6.
17 Superintendent and Remembrancer of Legal Affairs v.

Corporation of Calcutta, Superintendent and Remembrancer of Legal Affairs v.
Corporation of Calcutta,
AIR 1967 SC 997 [
LNIND 1966 SC 341 ], pp. 1003, 1007 :
1967 (2) SCR 170 [
LNIND 1966 SC 341 ]:
1967 Cri LJ 950 [
LNIND 1966 SC 341 ]. In this case the old rule that a
Statute does not bind the State unless it is expressly named or brought in by necessary
implication, was rejected and a new rule was formulated that a general Act applies to citizens as well as to
State unless the Act expressly or by necessary implication excepts the State from its operation.
18 Ibid.
19 Ibid.
20 For example see the general observations of shetty J., in Kehar Singh
v. State, Kehar Singh v. State,
AIR 1988 SC 1883 [
LNIND 1988 SC 887 ], p. 1945 :
1988 (3) SCC 609 [
LNIND 1988 SC 887 ] regarding the golden rule. See
comments on it in note 16, p. 85.
21 Maunsel v. Olins, Maunsel v. Olins,

(1975) 2 All ER 16 , p. 18 :
(1974) 1 WLR 830 (HL) (lord reid). According to lord simon
there are primary and secondary canons of construction. The primary rule of construction is to consider
the plain meaning. If there is no plain meaning mischief rule is the most important rule amongst the secondary
canons of construction. There is no hierarchy amongst the secondary canons and which
rule will have paramountcy is likely to depend on all the circumstances of the particular case (ibid, p. 29). The
above passage from lord reid's speech has been quoted with approval in Utkal
Contractors and Joinery Pvt. Ltd. v. State of Orissa, Utkal Contractors and Joinery
Pvt. Ltd. v. State of Orissa,
(1987) 3 SCC 279 [
LNIND 1987 SC 466 ], p. 290 :
AIR 1987 SC 1454 [
LNIND 1987 SC 466 ] and Keshavji Ravji and
Co. v. Commissioner of Income-tax, Keshavji Ravji and Co. v. Commissioner of
Income-tax,
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ], p. 1813 :
1990 (2) SCC 231 [
LNIND 1990 SC 60 ]:
(1990) 183 ITR 1 [
LNIND 1990 JNK 2 ]. As explained by
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Page 63 of 95
vekatachaliah, J., in Nyadar Singh v. Union of India, Nyadar Singh v. Union of India,
AIR 1988 SC 1979 [
LNIND 1988 SC 854 ], p. 1984:
1988 (4) SCC 170 [
LNIND 1988 SC 854 ] : “The meaning to be given to a
particular statutory language depends on the evaluation of a number of interpretative-criteria.—The general
presumption is that these criteria do not detract or stand apart from, but are to be harmonised with, the well
accepted legal principles. In a difficult case, the number of relevant interpretative-
criteria may be so high that the task of the court in assessing their effect is, correspondingly
difficult.” See further bennion, “Statutory Interpretation” (4th Edition) pp. 439-42.
22 Municipal Corporation of Hyderabad v. P.N. Murthy,

Municipal Corporation of Hyderabad v. P.N. Murthy,
(1987) 1 SCC 568 [
LNIND 1987 SC 111 ], p. 572 :
AIR 1987 SC 92 [
LNIND 1986 SC 430 ]:
(1987) 167 ITR 204 [
LNIND 1987 SC 111 ].
23 It is not uncommon to find enactments reminding one of the old British jingle: “I am the
parliamentary draftsman. I compose the country's laws. And of half of the litigation, I
am undoubtedly the cause”: Palace Administrative Board v. RVB Thampuran, Palace
Administrative Board v. RVB Thampuran,
AIR 1980 SC 1187 [
LNIND 1980 SC 144 ], p. 1195 : 1980 Supp SCC 234;
Institute of Chartered Accountats of India v. Price Waterhouse, Institute of Chartered
Accountats of India v. Price Waterhouse,
AIR 1998 SC 74 [
LNIND 1997 SC 934 ], p. 90 :
1997 (6) SCC 312 [
LNIND 1997 SC 934 ]; J.P. Bansal v. State of
Rajasthan, J.P. Bansal v. State of Rajasthan, 2003 AIR SCW 1848, p. 1854 :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ]:
(2003) 5 SCC 134 [
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 297. H. rao in ‘Unfathomable
Mysteries of Legal Language’ (Sunday Chronicle, 14-7-1996) quotes thomas jefferson that statutes
“from their verbosity, their endless tautologies, their involutions of case within case, and parenthesis within
parenthesis, and their multiplied efforts at certainty, by saids and aforesaids, by ors and and s, to make them
more plain, are really rendered more perplexed and incomprehensible, not only to
common readers, but to the lawyers themselves.” The Draftsman must abandon obsolescent vocabulary and
style of expression and must use simple and plainer language: Aluminium Corporation of India v. Union of
India, Aluminium Corporation of India v. Union of India,
AIR 1975 SC 2279 [
LNIND 1975 SC 294 ], pp. 2283, 2284 :
(1975) 2 SCC 472 [
LNIND 1975 SC 294 ]; Chitan J. Vaswani v.
State of West Bengal, Chitan J. Vaswani v. State of West Bengal,
AIR 1975 SC 2473 [
LNIND 1975 SC 416 ], p. 2475 :
(1975) 2 SCC 829 [
LNIND 1975 SC 416 ]. “A good legislation is that the text
of which is plain, simple, unambiguous, precise and there is no repetition of words or usage of superfluous
language:” In the matter of Special Reference 1 of 2002 (Gujarat Assembly Election
Matters)
(2002) 8 SCC 237 [
LNIND 2002 SC 1378 ], p. 279 (Khare, J). There is a
recent trend in some commonwealth countries for drafting and rewriting statutes in plain language or in
otherwords user friendly terms which means that the statutes produced are designed to
Mr.Srikanth -
Page 64 of 95
be readable and easy to use by the relevant audiences to whom they are addressed: ruth sullivan,
‘Some Implications of Plain Language Drafting’, (2001) 22 Statute Law Review 175; Peter Buck and
Richard castle ‘Modern legal Drafting, Cambridge University Press, 2001; Edwin Janner, ‘Clear Simple and
Precise Legislative Drafting : Australian Guidelines, 25 (2004) Statute Law Review 223. The shift towards
use of plain language for drafting statutes is not without controversy. The critics of the use of plain language
say that “the language of our legislation cannot be reduced to baby talk for consumption
of the masses” and the attainment of precision and accuracy for enshrining policy,
stating rights and obligations and regulating future events gives rise to the need for use of difficult language
which is familiar to the lawyers but not to the layman: brian hunt, ‘Plain Language
Drafting : Is it Really the Answer’, (2002) 23 Statute Law Review, 24, pp. 44, 45. See
further (2003) 24 Statute Law Review 112 for another article by brian hunt to show
“why plain language is not entirely suitable in legislative drafting”. The debate about
Plain Language drafting continues see: jefrey barnes, The Continuing Debate About ‘Plain Language’: A Law
Reform conundrum, (2006) 27 Statute Law Review 83. M douglas bellis, Deputy Legislative Counsel, U.S.
House of Representatives in his article ‘Drafting in the U.S. Congress’ in (2001) 22
Statute Law Review 43, 44 tries to discover some universal drafting norms, which
briefly stated are as follows: A good draft contains a clear expression of intent, uses a consistent terminology
throughout, avoids passive voice and aspirational statements meaning thereby statement
of hopes and opinions rather than commands. The terms used are either authoritatively defined in the draft or
by judicial interpretation. Sentences are short. Simple words commonly used in
ordinary speech are preferred. Convoluted sub-division is avoided and so is repetition. Parliamentary
Counsel, daniel greenberg, in his article ‘Nature of Legislative Intention and its Implications for Legislative
Drafting’ (2006) 27 Statute Law Review 1 at p. 26 concludes: “The concept of the legislative intent
is neither as straightforward as it might appear at the first glance nor as elusive as one might fear on closer
examination. As traditionally understood by the courts, it is a concept that is capable of
being discovered by reference to objective criteria. Its nature and the nature of those criteria, requires
to be borne in mind by the draftsman in order to ensure that his draft will be given the meaning that he
intends. In particular, the nature of the objective search for legislative intent requires the
draftsman to determine the nature of primary target audience and the facilities likely to be available to them in
applying and construing the legislation.”
24 Cutler v. Wandsworth Stadium Ltd., Cutler v. Wandsworth Stadium

Ltd.,
(1949) 1 All ER 544 , p. 550 (HL). The canons of construction
form “that common code of juristic communication by which the draftman signals legislative
intention”; they are also “salutory in helping to ensure that legislators are not left in doubt what they are
taking responsibility for”: London Borough of Ealing v. Race Relations Board,
London Borough of Ealing v. Race Relations Board,
(1972) 1 All ER 105 , p. 114 (HL) (lord simon of glaisdale).
25 No-Nail Cases Proprietary Ltd. v. No-Nail Boxes Ltd.,

No-Nail Cases Proprietary Ltd. v. No-Nail Boxes Ltd.,
(1944) 1 All ER 528 , pp. 529, 530 (CA).
26 Carter v. Bradbeer, Carter v. Bradbeer,

(1975) 3 All ER 158 , p. 161 (HL) (LORD DIPLOCK).
27 IbidSee further Fothergill v. Monarch Airlines,

Fothergill v. Monarch Airlines,
(1980) 2 All ER 696 , p. 705 :
(1981) AC 251 :
(1980) 2 WLR 209 (HL) (lord diplock).
28 See p. 34 text and notes 36, 37.
29 Oliver Ashworth (Holdings) Ltd. v. Bellard (Kent) Ltd.,

Oliver Ashworth (Holdings) Ltd. v. Bellard (Kent) Ltd.,
Mr.Srikanth -
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(1999) 2 All ER 791 , p. 805 (laws L.J.) (C.A.). Bennion in his

work on Statutory Interpretation (4th edition, p. 810) divides purposive construction
into (i) purposive and literal construction and (ii) purposive and strained construction.
See further Tanna & Modi v. CIT Mumbai, Tanna & Modi v. CIT Mumbai,
(2007) 7 SCC 434 [
LNIND 2007 SC 715 ], para 22.
30 Oliver Ashworth (Holdings) Ltd. v. Bellard (Kent) Ltd.,

Oliver Ashworth (Holdings) Ltd. v. Bellard (Kent) Ltd., supra, p. 805. Also see
observations of lord reid quoted in note 33, p. 33.
According to lord millett: “We are all purposive constructionists now”: ‘Construing
Statutes’, (1999) 2 Statute Law Review 107, p. 108. A study under taken into the interpretative resources
and tools used by the New Zealand Court of Appeal in 1976, 1986 and 1996 shows that the use of purposive
approach to interpretation was relatively popular (ranging from 40 to 50 per cent) in all
the three years: james allan, Statutory Interpretation and the Courts (1999) 18 New
Zealand University Law Review 440, p. 441. See further john F. maning, ‘What Divides Textualists from
Purposivists’, (2006) 106 Columbia Law Review 70 [The article begins with the words
“Recent scholarship has questioned whether there remains a meaningful distinction between textualism and
purposivism” (p. 70), but in the end it concludes “that textualism continues to represent a
superior account of legislative supremacy despite the need for a more nuanced form of justification”. (p.
111)]
31 R (On the application of Quintavalle) v. Secretary of State for

Health, R (On the application of Quintavalle) v. Secretary of State for Health,
(2003) 2 All ER 113 , p. 123 (H.L.) (lord steyn).
32 Application of the same rule of construction by different judges may result in different
conclusions. For example, see the application of the rule of harmonious construction in resolving
the conflict between fundamental rights and
Art. 194(3) of the Constitution in majority and minority opinions in M.S.M. Sharma
v. Shri Krishna Sinha, M.S.M. Sharma v. Shri Krishna Sinha,
AIR 1959 SC 395 [
LNIND 1958 SC 163 ]: 1959 Supp (1) SCR 806 :
(1959) 2 MLJ (SC) 125 ; and
Article 143, Constitution of India , In re,
Article 143, Constitution of India , In re,
AIR 1965 SC 745 : 1965 (1) SCR 413. In Carter v.
Bradbeer, Carter v. Bradbeer,
(1975) 3 All ER 158 , pp. 161, 162 (HL), lord diplock in his
minority judgment remarked that when the difference of opinion is confined to the effect of applying
undisputed canons of construction and does not extend to the nature of relative weight
of the canons to be applied, no useful purpose is served by a detailed minority opinion of the highest tribunal.
33 See the following observation of lord reid in Jones v. Secretary of

State, Jones v. Secretary of State,
(1972) 1 All ER 145 (HL); “In very many cases it cannot be
said positively that one construction is right and the other wrong. Much may depend on one's approach. If
more attention is paid to meticulous examination of the language used in the statute the
result may be different from that reached by paying more attention to the apparent object of the statute so
as to adopt that meaning of the words under consideration which best accords with it.”
34 Mr. Justice Cordozo By Learned Hand, 52 Harvard Law Review, pp. 361-63.
35 Ibid. In State of Maharashtra v. Jagannath Achyut Karandikar,

State of Maharashtra v. Jagannath Achyut Karandikar,
Mr.Srikanth -
Page 66 of 95
AIR 1989 SC 1133 [

393 :
(1989) LLJ 441 ; Shetty J. said: “We do not have to reflect
upon the rules of interpretation. Since they are well settled. They are now like the habits of driving which
have become ingrained. They come to our assistance by instinct.” prof. james allan
remarks that “the public rationalisation in a written judgement of how a decision has
been reached may differ from the process by which the judge in fact came to decide a case.” : ‘Statutory
Interpretation And the Courts’ (1999) 18 New Zealand University Law Review, 440. As observed by justice
kirby of australia “Interpretation is often, at base, an intuitive process, involving judgement”, and “so
judges may have difficulty in explaining exactly why they chose one interpretation over another”: ‘Towards a
Grand Theory of Interpretation: The Case of Statutes and Contracts’ (2003) 24 Statute
Law Review 95, p. 110.
36 See text and notes 56 to 62, pp. 37, 38. See further R. S.
Raghunath v. State of Karnataka, R. S. Raghunath v. State of
Karnataka,
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 89 :
1992 (1) SCC 335 [
LNIND 1991 SC 516 ]; Powdrill v.
Watson, Powdrill v. Watson,
(1995) 2 All ER 65 , p. 79 (HL); R. v. Secretary of State for
the Home Department, exparte Daly, R. v. Secretary of State for the Home
Department, exparte Daly,
(2001) 3 All ER 433 , p. 447 (HL) (“In law context is
everything” Lord Steyn).

Union of India v. Elphinstone Spinning and Weaving Co. Ltd., 2001 (1) JT SC 536, p.
563 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 740 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ](
Constitution Bench).
38 Philips India Ltd. v. Labour Court, Philips India Ltd. v. Labour

Court,
(1985) 3 SCC 103 [
LNIND 1985 SC 102 ], p. 112 :
AIR 1985 SC 1034 [
LNIND 1985 SC 102 ]:
(1985) 3 SCC 103 [
LNIND 1985 SC 102 ]; Osmania University
Teachers Association v. State of A.P., Osmania University Teachers Association v.
State of A.P.,
AIR 1987 SC 2034 [
LNIND 1987 SC 584 ], p. 2042 :
(1987) 4 SCC 671 [
LNIND 1987 SC 584 ]; Captain Subhash Kumar
v. The Principal Officer, Mercantile Marine Deptt., Captain Subhash Kumar v. The Principal
Officer, Mercantile Marine Deptt.,
AIR 1991 SC 1632 , p. 1638 :
1991 (2) SCC 449 :
1991 Cri LJ 2000 . See further Mohan Kumar
Singhania v. Union of India, Mohan Kumar Singhania v. Union of India,
AIR 1992 SC 1 , p. 29 : 1992 Supp (1) SCC 594
[4th Edition of this book (p. 18) is quoted]; Lalit Mohan Pandy v. Pooran Singh,
Lalit Mohan Pandy v. Pooran Singh,
(2004) 6 SCC 626 [
LNIND 2004 SC 569 ], p. 642.
Mr.Srikanth -
Page 67 of 95
39 AG v. HRH Prince Ernest Augustus, AG v. HRH Prince Ernest

Augustus,
(1957) 1 All ER 49 , p. 55 (HL).
40 Ibid, p. 61.

Madras,
AIR 1953 SC 274 [
LNIND 1953 SC 38 ], p. 276 :
1953 SCR 652 [
LNIND 1953 SC 28 ]:
1953 Cri LJ 1105 [
LNIND 1953 SC 38 ].
42 Charles Robert Leader v. Georage F. Diffey,

Charles Robert Leader v. Georage F. Diffey,
(1888) 13 AC 294 , p. 301.
43 Canada Sugar Refining Co. v. R, Canada Sugar Refining Co. v. R,

(1898) AC 735 , p. 742; referred to in M. Pentiah v.
Veeramallappa Muddala, M. Pentiah v. Veeramallappa Muddala,
AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 1111 :
(1961) 2 SCR 295 [
LNIND 1960 SC 260 ]; Gamman India Ltd. v.
Union of India, Gamman India Ltd. v. Union of India,
AIR 1974 SC 960 [
LNIND 1974 SC 109 ], p. 964 :
(1974) 1 SCC 596 [
LNIND 1974 SC 109 ]; Mysore State Road
Transport Corporation v. Mirza Khasim Ali Beg, Mysore State Road Transport Corporation v.
Mirza Khasim Ali Beg,
AIR 1977 SC 747 [
LNIND 1976 SC 461 ], p. 752 : (1977) SCC
(L&S) 282 :
(1977) 2 SCC 457 [
LNIND 1976 SC 461 ]; Vaddeboyina Tulsamma v.
Vaddeboyina Sesha Reddi, Vaddeboyina Tulsamma v. Vaddeboyina Sesha Reddi,
AIR 1977 SC 1944 [
LNIND 1977 SC 136 ], p. 1948 :
(1977) 3 SCC 99 [
LNIND 1977 SC 136 ]; Punjab Beverages Pvt.
Ltd. v. Suresh Chand, Punjab Beverages Pvt. Ltd. v. Suresh Chand,
AIR 1978 SC 995 [
LNIND 1978 SC 65 ], p. 998 :
1978 (2) SCC 667 [
LNIND 1978 SC 85 ]; Commissioner of
Income-tax v. National Taj Traders, Commissioner of Income-tax v. National Taj
Traders,
AIR 1980 SC 485 [
LNIND 1979 SC 471 ], p. 489 :
(1980) 1 SCC 370 [
LNIND 1979 SC 471 ]; Sultana Begum v. Prem
Chand Jain, Sultana Begum v. Prem Chand Jain,
AIR 1997 SC 1006 [
LNIND 1996 SC 2089 ], pp. 1009, 1010 :
1997 (1) SCC 373 [
LNIND 1996 SC 2089 ]; Kailash Chandra v.
Mr.Srikanth -
Page 68 of 95
Mukundi Lal, Kailash Chandra v. Mukundi Lal,

AIR 2002 SC 829 [
LNIND 2002 SC 72 ], p. 833 :
(2002) 2 SCC 678 [
LNIND 2002 SC 72 ], Padmasundara Rao v.
AIR 2000 SC 1334 , p. 1340 :
(2002) 3 SCC 533 [
LNIND 2002 SC 201 ]; Godawat Pan Masala
Products I.P. Ltd. v. Union of India, Godawat Pan Masala Products I.P. Ltd. v. Union
of India,
(2004) 7 SCC 68 [
LNIND 2004 SC 737 ], p. 88.
44 Newspapers Ltd. v. Industrial Tribunal, U.P.,

Newspapers Ltd. v. Industrial Tribunal, U.P.,
AIR 1957 SC 532 [
LNIND 1957 SC 28 ], p. 536 :
1957 SCR 754 [
LNIND 1957 SC 28 ]; Superintendent and
Remembrancer, West Bengal v. Abani Maity, Superintendent and Remembrancer, West
Bengal v. Abani Maity,
AIR 1979 SC 1029 [
LNIND 1979 SC 179 ], p. 1032 :
(1979) 4 SCC 85 [
LNIND 1979 SC 179 ] Mohan Kumar Singhania v.
Union of India, Mohan Kumar Singhania v. Union of India,
AIR 1992 SC 1 , p. 20 : 1992 Supp (1) SCC 594; Sultana
Begum v. Prem Chand Jain, supra; Sultana Begum v. Prem Chand Jain,
supra; ; Balaram Kumawat v. Union of India, Balaram Kumawat v. Union of India,
(2003) 7 SCC 628 [
LNIND 2003 SC 714 ], p. 634.
45 1 Inst 381 (b); Punjab Beverages Pvt. Ltd. v. Suresh Chand, Punjab
Beverages Pvt. Ltd. v. Suresh Chand,
AIR 1978 SC 995 [
LNIND 1978 SC 65 ],p. 1000 :
1978 (2) SCC 144 [
LNIND 1978 SC 65 ]:
(1978) 2 LLJ 1 [
LNIND 1978 SC 65 ]; Philips India Ltd v
Labour Court, Philips India Ltd v Labour Court,
(1985) 3 SCC 103 [
LNIND 1985 SC 102 ], p. 112 :
AIR 1985 SC 1034 [
LNIND 1985 SC 102 ].
46 Queen v. Eduljee Byramjee, Queen v. Eduljee Byramjee,

(1846) 3 MIA 468, p. 483 (PC)(Dr. Lushington); National Insurance Co. Ltd. v. Anjana
Shyam, National Insurance Co. Ltd. v. Anjana Shyam,
(2007) 7 SCC 445 [
LNIND 2007 SC 974 ], para 17.
47 Bidie (deceased), Re, Bidie (deceased), Re,

(1948) 2 All ER 995 , p. 998 (CA); See further Jagir Singh
v. State of Bihar, Jagir Singh v. State of Bihar,
AIR 1976 SC 997 [
LNIND 1975 SC 469 ], p. 1001 : 1976 SCC (Tax) 204 :
(1976) 2 SCC 942 [
LNIND 1975 SC 469 ]; Keshavananda Bharati v.
Mr.Srikanth -
Page 69 of 95
State of Kerala, Keshavananda Bharati v. State of Kerala,

AIR 1973 SC 1461 [
LNIND 1973 SC 154 ], pp. 1497, 1577 :
(1973) 4 SCC 225 [
LNIND 1973 SC 154 ]; State of West Bengal v.
Pranab Ranjan Roy, State of West Bengal v. Pranab Ranjan Roy,
1998 (2) Scale 251 [
LNIND 1998 SC 308 ], p. 255:
AIR 1998 SC 1887 [
LNIND 1998 SC 308 ], p. 1890 :
(1998) 2 SCC 209 .
48 State of W.B. v. Union of India, State of W.B. v. Union of India,

AIR 1963 SC 1241 [
LNIND 1962 SC 438 ], p. 1265 :
1964 (1) SCR 371 [
LNIND 1962 SC 438 ]; referred to in State of
Punjab v. Okara Grain Buyers Syndicate Ltd., State of Punjab v. Okara Grain Buyers
Syndicate Ltd.,
AIR 1964 SC 669 [
LNIND 1963 SC 256 ], p. 679 :
1964 (5) SCR 387 [
LNIND 1963 SC 256 ]; R.S. Raghunath v. State
of Karnataka, R.S. Raghunath v. State of Karnataka,
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 89 :
(1992) 1 SCC 335 [
LNIND 1991 SC 516 ]; More Modern
Co-operative Transport Society Ltd. v. Financial Commissioner, More Modern Co-
operative Transport Society Ltd. v. Financial Commissioner,
AIR 2002 SC 2513 [
LNIND 2002 SC 421 ], p. 2518 :
(2002) 6 SCC 269 [
LNIND 2002 SC 421 ]; Maniklal Majumdar v.
Gauranga Chandra Dey, Maniklal Majumdar v. Gauranga Chandra Dey,
(2005) 2 SCC 400 [
LNIND 2005 SC 39 ], p. 407.
49 Bentley v. Rotherham, Bentley v. Rotherham,

(1876) 4 Ch D 588 , p. 592(JESSEL, MR); More Modern Co-operative Transport
Society Ltd. v. Financial Commissioner, supra More Modern Co-operative Transport
Society Ltd. v. Financial Commissioner, supra More Modern Co-operative Transport
Society Ltd. v. Financial Commissioner, supra.
50 Administrator-General of Bengal v. Premlal Mullick,

Administrator-General of Bengal v. Premlal Mullick,
(1895) ILR 22 Cal 788, p. 797 (PC) : 22 IA 107, pp. 115, 116.
Lord Watson'S view is to be preferred against the observations of the House of Lords in Warburtan v.
Loveland, Warburtan v. Loveland, (1832) 2 D & Cl. 480, p. 500 that
“no rule of construction can require that when the words of one part of a statute convey a clear meaning it
shall be necessary to introduce another part of a statute for the purpose of controlling or
diminishing the efficacy of the first part.” Moreover, these observations have no application
in the interpretation of related provisions: K.S. Paripoornan v. State of Kerala, K.S. Paripoornan v. State of
Kerala,
JT 1994 (6) SC 182 , p. 217 :
AIR 1995 SC 1012 , p. 1037 :
(1994) 5 SCC 593 :
(1994) 2 KLT 763 .
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51 D.N. Banerji v. P. R. Mukherjee, D.N. Banerji v. P. R. Mukherjee,

AIR 1953 SC 58 [
LNIND 1952 SC 85 ], p. 61 :
1953 SCR 302 [
LNIND 1952 SC 85 ]; N. Subramania Iyer v.
Official Receiver, N. Subramania Iyer v. Official Receiver,
AIR 1958 SC 1 [
LNIND 1957 SC 72 ], p. 10 :
1958 SCR 257 [
LNIND 1957 SC 72 ]; Bangalore Water Supply
and Sewerage Board v. A. Rajappa, Bangalore Water Supply and Sewerage Board v.
A. Rajappa,
AIR 1978 SC 548 [
LNIND 1978 SC 70 ], p. 564 :
(1978) 2 SCC 213 [
LNIND 1978 SC 70 ]; Gramophone Company of
India Ltd. v. Birendra Bahadur Pandey, Gramophone Company of India Ltd. v.
Birendra Bahadur Pandey,
(1984) 2 SCC 534 [
LNIND 1984 SC 51 ], p. 553 :
AIR 1984 SC 667 [
LNIND 1984 SC 51 ]; Banaras Hindu
University v. Indra Pratap Singh (Dr.), Banaras Hindu University v. Indra Pratap
Singh (Dr.),
AIR 1992 SC 780 [
2.
52 Forbes v. Attorney-General of Manitoba,

Forbes v. Attorney-General of Manitoba,
(1937) 1 All ER 249 , pp. 255, 256 (PC)(use of word
‘employer’ in different sections); Anand Nivas (P) Ltd. v. Anandji Kalyanji, Anand
Nivas (P) Ltd. v. Anandji Kalyanji,
AIR 1965 SC 414 [
LNIND 1963 SC 213 ], p. 424 :
(1964) 4 SCR 892 [
LNIND 1963 SC 213 ] (use of word ‘tenant’ in
different sections and clauses); Chief Justice, Andhra Pradesh v. LVA Dikshitulu, Chief Justice, Andhra
Pradesh v. LVA Dikshitulu,
AIR 1979 SC 193 , p. 208 : 1979 SCC (L&S) 99 :
(1979) 2 SCC 34 . (The expression ‘civil services of a State’
was construed not to include High Court staff and subordinate judiciary in Article 371-D, though the same
expression includes them in Article 311).
53 Ramnarayan Mor v. State of Maharashtra,

Ramnarayan Mor v. State of Maharashtra,
AIR 1964 SC 949 [
LNIND 1963 SC 300 ], p. 953 :
1964 (5) SCR 1064 [
LNIND 1963 SC 300 ]:
(1964) 2 Cri LJ 44 [
LNIND 1963 SC 300 ] (use of word ‘evidence’
at three places in clause (6) of
section 207-A, Code of Criminal Procedure ); Indian Iron and Steel
Co. Ltd. v. Biswanath Sonar, Indian Iron and Steel Co. Ltd. v. Biswanath Sonar,
AIR 1967 SC 77 [
LNIND 1966 SC 91 ]; pp. 79, 80 : 1966 Supp SCR 15 (use
of word ‘term’ at two places in section 7(3) of the Bengal Non-Agricultural Tenancy
Act, 1949); K. Ramanathan v. State of T.N., K. Ramanathan v.
State of T.N.,
(1985) 2 SCC 116 [
LNIND 1985 SC 69 ], p. 129 :
AIR 1985 SC 660 [
Mr.Srikanth -
Page 71 of 95
LNIND 1985 SC 69 ](use of word ‘regulating’

in section 3(1) and (2) of the
Essential Commodities Act, 1955 ).
54 See text and note 42, p. 55.

Augustus,
(1957) 1 All ER 49 (HL).

Augustus,
(1957) 1 All ER 49 , p. 53 (HL); Director of Public
Prosecutions v. Schildkamp, Director of Public Prosecutions v. Schildkamp,
(1969) 3 All ER 1640 , p. 1652 (HL); Union of India v.
Sankalchand, Union of India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], pp. 2358, 2372: 1977 SCC
(L&S) 435 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ].

Augustus,
(1957) 1 All ER 49 , p. 61 (HL).

Augustus,
(1957) 1 All ER 49 , p. 61 (HL) (quotation from Brett v. Brett,
Brett v. Brett, (1826) 3 Add 210, p. 216 : 162 ER 456, p. 458, sir john nicholl, MR). In
CET v. Darshan Surendra Parekh, CET v. Darshan Surendra Parekh,
AIR 1968 SC 1125 [
LNIND 1967 SC 367 ], p. 1229 :
1968 (2) SCR 589 [
LNIND 1967 SC 367 ]:
(1968) 69 ITR 683 , shah, J. stated the rule in similar words. See further
Presidential Election, In re, Presidential Election, In re, 1974,
AIR 1974 SC 1682 [
LNIND 2002 SC 665 ], p. 1686 :
(1974) 2 SCC 33 [
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2372: 1977 SCC (L&S)
435:
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ]; K. Balkrishna Rao v.
Haji Abdulla Sait, K. Balkrishna Rao v. Haji Abdulla Sait,
AIR 1980 SC 214 [
LNIND 1979 SC 394 ], p. 221 :
(1980) 1 SCC 321 [
LNIND 1979 SC 394 ].

Augustus,
(1957) 1 All ER 49 , p. 57 (HL).
Mr.Srikanth -
Page 72 of 95
60 CIC Insurance Ltd. v. Bankstown Football Club Ltd.

CIC Insurance Ltd. v. Bankstown Football Club Ltd.
(1997) 187 CLR 384 , p. 408 (Aust) referred in Newcastle City Council v. GTO
General Ltd. Newcastle City Council v. GTO General Ltd.
(1998) 72 ALJR, p. 112 (Aust). See further Gurudevdatta VKSSS Maryadit v.
State of Maharashtra, Gurudevdatta VKSSS Maryadit v. State of Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], pp. 1990-1991 :
(2001) 4 SCC 534 [
LNIND 2001 SC 761 ] (Extracts from the Australian cases
are quoted with apparent approval).
61 R (on the application of Westminister City Council) v. National

Asylum Support Service, R (on the application of
Westminister City Council) v. National Asylum Support Service,
(2002) 4 All ER 654 , p. 655 (HL).
62 R (on the application of Quintavalle) v. Secretary of State for

Health, R (on the application of Quintavalle) v. Secretary of State for Health,
(2003) 2 All ER 113 (8) (HL); R. v. Z. R. v. Z.
(2005) 3 All ER 95 (17) (HL).
63 R. v. Oxford, Shire County Council, R. v. Oxford, Shire County

Council,
(1999) 3 All ER 385 , p. 390 (a, b) (HL).
64 Ibid., p. 396.
65 Associated Newspapers Ltd. v. Registrar of Restrictive Trading

Agreements, Associated Newspapers Ltd. v. Registrar of Restrictive Trading
Agreements,
(1964) 1 All ER 55 (HL).
66 Associated Newspapers Ltd. v. Registrar of Restrictive Trading

Agreements, Associated Newspapers Ltd. v. Registrar of Restrictive Trading
Agreements,
(1964) 1 All ER 55 , pp. 58, 59 (HL). Similarly in Director of Public Prosecutions v.
Schildkamp, Director of Public Prosecutions v. Schildkamp,
(1969) 3 All ER 1640 (HL)
section 332(3) of the Companies Act , 1948 (corresponding to
section 75(3) of the Companies Act , 1928) was construed to create an offence of
fraudulent trading capable of prosecution only after the commencement of a winding up, although the sub-
section read by itself was not so limited. The conclusion as to this limitation was
reached mainly on the ground that the whole fascicule of sections in which section 323 appeared dealt with
liquidation.
67 O.P. Singla v. Union of India, O.P. Singla v. Union of India,

(1984) 4 SCC 450 [
LNIND 1984 SC 212 ], p. 461 : 1984 AIR (SC) 1595 :
1984 SCC (L&S) 657. Referred in Kailash Chand v. Mukundi Lal, Kailash Chand v.
Mukundi Lal,
AIR 2002 SC 829 [
LNIND 2002 SC 72 ], p. 833 :
(2002) 2 SCC 678 [
LNIND 2002 SC 72 ].
Mr.Srikanth -
Page 73 of 95

Madras,
AIR 1953 SC 274 [
LNIND 1953 SC 38 ]:
1953 SCR 677 [
LNIND 1953 SC 38 ].

Madras,
AIR 1953 SC 274 [
LNIND 1953 SC 38 ], p. 276 :
1953 SCR 677 [
LNIND 1953 SC 38 ]. See further Aswini
Kumar Ghose v. Arabinda Bose, Aswini Kumar Ghose v. Arabinda Bose,
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 382 :
1953 SCR 1 [
LNIND 1952 SC 94 ].
70 Darshan Singh Balwant Singh v. State of Punjab,

Darshan Singh Balwant Singh v. State of Punjab,
AIR 1953 SC 83 [
LNIND 1952 SC 83 ], p. 86 :
1953 SCR 319 .
71 Ram Narain v. State of U.P., Ram Narain v. State of U.P.,

AIR 1957 SC 18 [
LNIND 1956 SC 65 ], p. 23 :
1956 SCR 664 [
LNIND 1956 SC 65 ]. See further Kehar Singh
v. State, Kehar Singh v. State,
AIR 1988 SC 1883 [
LNIND 1988 SC 887 ], p. 1932 :
1988 (3) SCC 609 [
LNIND 1988 SC 887 ] (The words and sections like men
do not have their full significance when standing alone. Like men they are better
understood by the company they keep); CIT v. Venkateshwara Hatcheries, CIT v.
Venkateshwara Hatcheries,
AIR 1999 SC 1225 [
LNIND 1999 SC 299 ], p. 1228 :
(1999) 3 SCC 632 [
LNIND 1999 SC 299 ]:
(1999) 237 ITR 174 [
LNIND 1999 SC 299 ].
72 Mango Singh v. Election Tribunal, Mango Singh v. Election

Tribunal,
AIR 1957 SC 871 [
LNIND 1957 SC 89 ], pp. 874, 875 :
1958 SCR 418 [
LNIND 1957 SC 89 ]. See further Deputy
Chief Controller of Imports & Exports, Delhi v. K.T. Kosalram, Deputy Chief
Controller of Imports & Exports, Delhi v. K.T. Kosalram,
AIR 1971 SC 1283 [
LNIND 1970 SC 399 ], p. 1289 :
(1970) 3 SCC 82 [
LNIND 1970 SC 399 ]:
(1971) 2 SCR 507 [
LNIND 1970 SC 399 ].
Mr.Srikanth -
Page 74 of 95
73 D. Sanjeevayya v. Election Tribunal, Andhra Pradesh,

D. Sanjeevayya v. Election Tribunal, Andhra Pradesh,
AIR 1967 SC 1211 [
LNIND 1967 SC 20 ], p. 1213 :
1967 (2) SCR 489 [
LNIND 1967 SC 20 ].
74 Municipal Corporation of Hyderabad v. P. N. Murthy,

Municipal Corporation of Hyderabad v. P. N. Murthy,
(1987) 1 SCC 568 [
LNIND 1987 SC 111 ], p. 572 :
AIR 1987 SC 92 [
LNIND 1986 SC 430 ].
75 Jennings v. Kelly, Jennings v. Kelly,

(1939) 4 All ER 464 , pp. 470, 476, 477 (HL); Tahsildar Singh v. State of U.P.,
Tahsildar Singh v. State of U.P.,
AIR 1959 SC 1012 [
875. See further Chapter 3, title 9(h) “Broad General Rule of
Construction”, p. 204.
76 Gurmej Singh S. v. Sardar Pratap Singh Kairon,

Gurmej Singh S. v. Sardar Pratap Singh Kairon,
AIR 1960 SC 122 [
LNIND 1959 SC 384 ], p. 124 :
(1960) 1 SCR 909 [
LNIND 1959 SC 384 ]. See further Balasinor
Nagrik Co-operative Bank Ltd. v. Bababhai Shankerlal Pandya, Balasinor Nagrik
Co-operative Bank Ltd. v. Bababhai Shankerlal Pandya,
(1987) 1 SCC 606 , p. 608 :
AIR 1987 SC 849 ; Kalawati Bai v.
Soiryabai, Kalawati Bai v. Soiryabai,
AIR 1991 SC 1581 [
LNIND 1991 SC 254 ], p. 1586 :
(1991) 3 SCC 410 [
LNIND 1991 SC 254 ]; Mohan Kumar Singhania
v. Soiryabai, Mohan Kumar Singhania v. Soiryabai,
AIR 1992 SC 1 , p. 20 : 1992 Supp (1) SCC 594 : 1992
SCC (L&S) 455.
77 State of Bihar v. Hiralal Kejriwal, State of Bihar v. Hiralal

Kejriwal,
AIR 1960 SC 47 [
LNIND 1959 SC 158 ], p. 50 :
1960 (1) SCR 726 [
LNIND 1959 SC 158 ]:
1960 Cri LJ 150 [
LNIND 1959 SC 158 ].
78 Jennings v. Kelly, Jennings v. Kelly,

(1939) 4 All ER 464 , p. 477 (HL) (lord wright); Madanlal
Fakirchand v. Shree Changdeo Sugar Mills Ltd., Madanlal Fakirchand v. Shree
Changdeo Sugar Mills Ltd.,
AIR 1962 SC 1543 [
973 (gajendragadkar, J).
Mr.Srikanth -
Page 75 of 95
79 Attar Singh v. Inder Kumar, Attar Singh v. Inder Kumar,

AIR 1967 SC 773 [
LNIND 1966 SC 287 ]:
1967 (2) SCR 50 [
LNIND 1966 SC 287 ].
80 Vacuum Oil Co. v. Secretary of State,

Vacuum Oil Co. v. Secretary of State,
AIR 1932 PC 168 , p. 171. For meaning of ‘wholesale
cash price’, see A.K. Roy v. Voltas Ltd., A.K. Roy v. Voltas
Ltd.,
AIR 1973 SC 225 [
LNIND 1972 SC 564 ]:
1973 (3) SCC 503 [
LNIND 1972 SC 564 ] and Union of India v.
Bombay Tyre International Ltd., Union of India v. Bombay Tyre International Ltd.,
(1984) 1 SCC 467 [
LNIND 1983 SC 294 ]:
AIR 1984 SC 420 [
LNIND 1983 SC 294 ]:
(1984) 2 SCC 102 . For meaning of ‘trade discount’ see Kirloskar Brothers Ltd. v.
Union of India, Kirloskar Brothers Ltd. v. Union of India,
AIR 1992 SC 1324 [
LNIND 1992 SC 229 ]:
(1992) 2 SCC 658 [
LNIND 1992 SC 229 ] : (1992) 39 ECC 1.
81 Ibid.
82 Bentley v. Rotherham, Bentley v. Rotherham,

(1876) 4 Ch D 588 , p. 592 (jessel, MR.).
83 See Chapter 2, title 4(b) “Inconsistency and

Repugnancy to be Avoided; Harmonious Construction”, and Chapter 5, title 8 “Construction of General
Words”.
84 M. Pentiah v. Veeramallappa Muddala, M.

Pentiah v. Veeramallappa Muddala,
AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 1111 :
1961 (2) SCR 295 [
LNIND 1960 SC 260 ]; Tinsukhia Electric
Supply Co. Ltd. v. State of Assam, Tinsukhia Electric Supply Co. Ltd. v. State of
Assam,
AIR 1990 SC 123 [
LNIND 1989 SC 726 ], p. 152 :
(1989) 3 SCC 709 [
LNIND 1989 SC 726 ].
85 CIT v. S. Teja Singh, CIT v. S. Teja Singh,

AIR 1959 SC 352 [
LNIND 1958 SC 138 ], p. 356 :
(1959) 35 ITR 408 . See further Management of Advance
Insurance Co. Ltd. v. Gurudasmal, Management of Advance Insurance Co. Ltd. v.
Gurudasmal,
AIR 1970 SC 1126 [
Mr.Srikanth -
Page 76 of 95
LNIND 1970 SC 526 ], p. 1132 :

(1970) 1 SCC 633 [
LNIND 1970 SC 526 ]; Municipal Council,
Madurai v. Narayanan, Municipal Council, Madurai v. Narayanan,
AIR 1975 SC 2193 [
LNIND 1975 SC 276 ], p. 2197 :
(1975) 2 SCC 497 [
LNIND 1975 SC 276 ] : 1975 SCC (Tax) 386 ;
Commissioner of Income-tax v. Hindustan Bulk Carriers, Commissioner of Income-
tax v. Hindustan Bulk Carriers,
(2003) 3 SCC 57 , p. 73; D. Saiba v. Bar Council of India,
D. Saiba v. Bar Council of India,
AIR 2003 SC 2502 [
LNIND 2003 SC 510 ], p. 2507 (p. 36 of 8th edition of
this book is referred); Balaram Kumawat v. Union of India,
Balaram Kumawat v. Union of India,
(2003) 7 SCC 628 [
LNIND 2003 SC 714 ], p. 636 :
AIR 2004 SC 3268 ; Saurabh Chaudri v. Union of
India, Saurabh Chaudri v. Union of India,
AIR 2004 SC 361 [
LNIND 2003 SC 950 ], p. 373 :
(2003) 11 SCC 146 [
LNIND 2003 SC 950 ]; Nand Kishore Ganesh
Joshi v. Commr. Municipal Corporation Kalyan, Nand Kishore Ganesh Joshi v. Commr.
Municipal Corporation Kalyan,
AIR 2005 SC 34 [
LNIND 2004 SC 1086 ], p. 37 (para 19).
86 See Chapter 6, title 3 “Operation Controlled

on Considerations of Constitutionality; Presumption against Exceeding Constitutional
Powers”. See further Corporation of Calcutta v. Liberty Cinema, Corporation of
Calcutta v. Liberty Cinema,
AIR 1965 SC 1107 [
LNIND 1964 SC 354 ], pp. 1113, 1114 :
1965 (2) SCR 477 [
LNIND 1964 SC 354 ].
87 Salmon v. Duncombe, Salmon v. Duncombe,

(1886) 11 AC 627 , p. 634 (PC); M. Pentiah v.
Veeramallappa Muddala, supra, M. Pentiah v. Veeramallappa Muddala, supra, pp.
1111 (para 10), 1115 (para 28).
88 Fawcett Properties v. Buckingham County Council,

Fawcett Properties v. Buckingham County Council,
(1960) 3 All ER 503 , p. 507 (HL) (lord cohen). A law which
affects fundamental rights and is so vague that the persons applying it are in a boundless sea of
uncertainty, may be declared unconstitutional and void: K.A. Abbas v. Union of India, K.A. Abbas v. Union of
India,
AIR 1971 SC 481 [
LNIND 1970 SC 388 ], p. 496 :
1970 (2) SCC 780 [
LNIND 1970 SC 388 ]. It is the basic principle of legal
jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined: Kartar Singh
v. State of Punjab, Kartar Singh v. State of Punjab,
JT 1994 (2) SC 423 , p. 466:
1994 (3) SCC 569 :
1994 Cri LJ 3139 . But a law may not be declared void for
mere vagueness; Municipal Committee, Amritsar v. State of Punjab,
Municipal Committee, Amritsar v. State of Punjab,
AIR 1969 SC 1100 [
LNIND 1969 SC 27 ], p. 1103 :
Mr.Srikanth -
Page 77 of 95
(1969) 1 SCC 475 [

LNIND 1969 SC 27 ].
89 Tinsukhia Electric Supply Co. Ltd. v. State of Assam,

Tinsukhia Electric Supply Co. Ltd. v. State of Assam,
AIR 1990 SC 123 [
LNIND 1989 SC 726 ], p. 152 :
(1989) 3 SCC 709 [
LNIND 1989 SC 726 ].
90 Manchester Ship Canal Co. v. Manchester Racecourse Co.,

Manchester Ship Canal Co. v. Manchester Racecourse Co.,
(1904) 2 Ch 352 , pp. 360, 361; Tinsukhia Electric Supply
Co. Ltd. v. State of Assam, supra. Tinsukhia Electric Supply Co. Ltd. v. State of
Assam, supra. .
91 Fawcett Properties v. Buckingham County Council,

Fawcett Properties v. Buckingham County Council,
(1960) 3 All ER 503 , p. 516 (HL); Tinsukhia Electric Supply Co. Ltd. v. State of
Assam, supra. Tinsukhia Electric Supply Co. Ltd. v. State of
Assam, supra. .
92 Murray v. IRC, Murray v. IRC,

(1918) AC 541 , p. 553; referred to in Pye v. Minister for
Land for NSW, Pye v. Minister for Land for NSW,
(1954) 3 All ER 514 , p. 524 (PC). See further Tinsukhia
Electric Supply Co. Ltd. v. State of Assam, supra Tinsukhia Electric Supply Co.
Ltd. v. State of Assam, supra .
93 Whitney v. IRC Whitney v. IRC

(1926) AC 37 , p. 52; referred to in CIT v. S. Teja Singh,
CIT v. S. Teja Singh,
AIR 1959 SC 352 [
394; Gursahai v. CIT Gursahai v. CIT
AIR 1963 SC 1062 [
LNIND 1962 SC 287 ], p. 1065 :
(1963) 3 SCR 893 [
LNIND 1962 SC 287 ]; Sodhi Transport Co. v.
State of U.P., Sodhi Transport Co. v. State of U.P.,
(1986) 2 SCC 486 [
LNIND 1986 SC 585 ], p. 492 :
AIR 1986 SC 1099 [
LNIND 1986 SC 585 ]; Tinsukhia Electric
Supply Co. Ltd. v. State of Assam, supra. Tinsukhia Electric Supply Co. Ltd. v. State of
Assam, supra. . See further Shyam Kishori Devi v. Patna Municipal Corporation,
Shyam Kishori Devi v. Patna Municipal Corporation,
AIR 1966 SC 1678 [
LNIND 1966 SC 35 ], p. 1682 :
1966 (3) SCR 466 [
Income-tax v. Hindustan Bulk Carriers, Commissioner of Income-tax v. Hindustan
Bulk Carriers,
(2003) SCC 57 , p. 73 :
AIR 2003 SC 3942 [
LNIND 2002 SC 823 ].
Mr.Srikanth -
Page 78 of 95
1 Salmon v. Duncombe, Salmon v. Duncombe,

(1886) 11 AC 627 , p. 634 (PC); Curtis v. Stovin, Curtis v.
Stovin,
(1889) 22 QBD 513 ; CIT v. S. Teja Singh, supra,
CIT v. S. Teja Singh, supra, . p. 356; M. Pentiah v. Veeramallappa Muddala,
M. Pentiah v. Veeramallappa Muddala,
AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 1111 :
(1961) 2 SCR 295 [
LNIND 1960 SC 260 ]; Deputy Custodian v.
Official Receiver, Deputy Custodian v. Official Receiver,
AIR 1965 SC 951 [
LNIND 1964 SC 220 ], pp. 956, 957 :
1965 (1) SCR 220 [
Income-tax v. Hindusthan Bulk Carriers, supra, Commissioner of Income-tax v. Hindusthan
Bulk Carriers, supra, pp. 73, 74 (SCC).
2 Nokes v. Doncaster Amalgamated Collieries,

Nokes v. Doncaster Amalgamated Collieries,
(1940) 3 All ER 549 , p. 554 (HL); referred to in Pye v. Minister for Lands for NSW,
Pye v. Minister for Lands for NSW,
(1954) 3 All ER 514 , p. 524 (PC); M. Pentiah v.
Veeramallappa Muddala, supra, M. Pentiah v. Veeramallappa Muddala, supra, pp.
1110, 1111 :
(1961) 2 SCR 295 [
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2381 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (L&S) 435;
Superintendent and Remembrancer of Legal Affairs v. Abani Maity, Superintendent
and Remembrancer of Legal Affairs v. Abani Maity,
AIR 1979 SC 1029 [
LNIND 1979 SC 179 ], p. 1033 :
(1979) 4 SCC 85 [
LNIND 1979 SC 179 ]:
1979 SCC (Cri) 902 [
LNIND 1979 SC 179 ]; Mohan Kumar Singhania
v. Union of India, Mohan Kumar Singhania v. Union of India,
AIR 1992 SC 1 , p. 19 : 1992 Supp (1) SCC 594;
Commissioner of Income-tax v. Hindustan Bulk Carriers, supra, Commissioner of
Income-tax v. Hindustan Bulk Carriers, supra, p. 74 (SCC). See further Balram Kumawat v. Union of
India, Balram Kumawat v. Union of India,
(2003) 7 SCC 628 [
LNIND 2003 SC 714 ], pp. 636, 637 :
AIR 2003 SC 3268 [
LNIND 2003 SC 714 ], pp. 3273, 3274; M.T.
Khan v. Govt. of A.P., M.T. Khan v. Govt. of A.P.,
(2004) 2 SCC 267 [
LNIND 2004 SC 16 ], p. 272.
3 CIT v. Distributor (Baroda) (Pvt.) Ltd., CIT

v. Distributor (Baroda) (Pvt.) Ltd.,
AIR 1972 SC 288 [
LNIND 1971 SC 472 ], p. 291 :
1972 (4) SCC 353 [
LNIND 1971 SC 472 ].
4 Krishna Chandra Gangopadhyaya v. Union of India,

Krishna Chandra Gangopadhyaya v. Union of India,
Mr.Srikanth -
Page 79 of 95
AIR 1975 SC 1389 [

LNIND 1975 SC 161 ], p. 1393 :
(1975) 2 SCC 302 [
LNIND 1975 SC 161 ].
5 Johnson v. United States, Johnson v. United States, 163 F.

30, 32: 18 L.R.A. (NS) 1194.
6 BBC Enterprises v. Hi-Tech Xtravision Ltd.,

BBC Enterprises v. Hi-Tech Xtravision Ltd.,
(1990) 2 All ER 118 , pp. 122, 123 : (1990) 2 WLR :
1990 Ch 609 (CA). See further,
Balram Kumawat v. Union of India, supra, Balram Kumawat v. Union of India,
supra, p. 637 (SCC) : p. 3274 (AIR); M.T. Khan v. Govt. of A.P., supra,
M.T. Khan v. Govt. of A.P., supra, p. 272. For purposive construction, see title 3(b), Chapter 2.
7 CIT v. S. Teja Singh, CIT v. S. Teja Singh,

AIR 1959 SC 352 [
LNIND 1958 SC 138 ]: 1959 Supp (1) SCR 394.
8 Ibid., p. 356 (AIR).
9 ITO, Mangalore v. M. Damodar Bhat, ITO, Mangalore v. M.

Damodar Bhat,
AIR 1969 SC 408 [
LNIND 1968 SC 264 ], p. 412 :
1969 (2) SCR 29 [
LNIND 1968 SC 264 ]:
(1969) 71 ITR 806 [
LNIND 1968 SC 264 ].

AIR 1961 SC 1107 [
LNIND 1960 SC 260 ]:
1961 (2) SCR 295 [
LNIND 1960 SC 260 ].
11 Ibid., p. 1111 (AIR).

AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 1111 :
1961 (2) SCR 295 [
LNIND 1960 SC 260 ].
13 Udayan Chinubhai v. R.C. Bali, Udayan Chinubhai v. R.C. Bali,

AIR 1977 SC 2319 [
LNIND 1977 SC 271 ], p. 2327 :
(1977) 4 SCC 309 [
LNIND 1977 SC 271 ].
Mr.Srikanth -
Page 80 of 95
14 Krishnachandra Gangopadhyaya v. Union of India,

Krishnachandra Gangopadhyaya v. Union of India,
AIR 1975 SC 1389 [
LNIND 1975 SC 161 ],p. 1393 :
(1975) 2 SCC 302 [
LNIND 1975 SC 161 ]; J.K. Jute Mills Co.
Ltd. v. State of U.P., J.K. Jute Mills Co. Ltd. v. State of U.P.,
AIR 1961 SC 1534 [
LNIND 1961 SC 180 ], p. 1538 :
(1962) 2 SCR 1 [
LNIND 1961 SC 180 ]; Hiralal Ratanlal v.
STO, Hiralal Ratanlal v. STO,
AIR 1973 SC 1034 [
LNIND 1972 SC 476 ],p. 1040 : 1973 SCC (Tax) 307 ;
West Ramnad Electric Distribution Co. Ltd. v. State of Madras, West Ramnad Electric
Distribution Co. Ltd. v. State of Madras,
AIR 1962 SC 1753 [
LNIND 1962 SC 492 ], pp. 1758, 1759 :
1963 (2) SCR 747 [
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], p. 1239 :
1964 (6) SCR 784 [
LNIND 1964 SC 31 ]. See further Ramkissen
Sinha v. Divisional Forest Officer, Ramkissen Sinha v. Divisional Forest Officer,
AIR 1965 SC 625 [
LNIND 1964 SC 192 ], pp. 627, 628 (para 6) :
1965 (1) SCR 1 [
LNIND 1964 SC 192 ]; Hindustan Gum and
Chemicals Ltd. v. State of Haryana, Hindustan Gum and Chemicals Ltd. v. State of
Haryana,
(1985) 4 SCC 124 [
LNIND 1985 SC 259 ], p. 131:
AIR 1985 SC 1683 [
LNIND 1985 SC 259 ]. See also Western
Transport Pty. v. Kropp, Western Transport Pty. v. Kropp,
(1964) 3 All ER 722 , p. 730 (PC).
15 Bhubaneshwar Singh v. Union of India,

Bhubaneshwar Singh v. Union of India,
JT 1994 (5) SC 83 , p. 88 :
1994 (6) SCC 77 ;
AIR 1996 SC 1916 [
LNIND 1996 SC 798 ], p. 1924 :
(1996) 4 SCC 281 [
LNIND 1996 SC 798 ]; Indian Aluminium Co. v.
State of Kerala, Indian Aluminium Co. v. State of Kerala,
AIR 1996 SC 1431 [
LNIND 1996 SC 257 ], p. 1446 :
(1996) 7 SCC 637 [
LNIND 1996 SC 257 ]; K. Shankaran Nair v.
Devki Amma Malathy Amma, K. Shankaran Nair v. Devki Amma Malathy Amma,
1996 (7) Scale 292 [
LNIND 1996 SC 1550 ], pp. 298, 299 :
1996 (11) SCC 428 [
LNIND 1996 SC 1550 ]; Meerut Development
Authority v. Satbir Singh, Meerut Development Authority v. Satbir Singh,
AIR 1997 SC 1467 [
LNINDORD 1996 SC 40 ], p. 1473 :
(1996) 11 SCC 462 [
LNINDORD 1996 SC 40 ]; State of Tamil Nadu v.
Arooran Sugars Ltd., State of Tamil Nadu v. Arooran Sugars Ltd.,
Mr.Srikanth -
Page 81 of 95
AIR 1997 SC 1815 , pp. 1824, 1825; S. S. Bola v.

B. D. Sardana, S. S. Bola v. B. D. Sardana,
AIR 1997 SC 3127 [
LNIND 1997 SC 930 ], pp. 3209 to 3216; Indira Sawhney
v. Union of India, Indira Sawhney v. Union of India,
AIR 2000 SC 498 , p. 509 :
(2000) 1 SCC 168 ; District Mining Officer v. Tata Iron and
Steel Co., District Mining Officer v. Tata Iron and Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ]:
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ]; Satnam Overseas
(Export v. State of Haryana, Satnam Overseas (Export v. State of Haryana,
(2003) 1 SCC 561 , pp. 587, 588; Easland Combines,
Coimbatore v. Collector of Central Excise, Easland Combines, Coimbatore v. Collector
of Central Excise,
(2003) 3 SCC 410 [
LNIND 2003 SC 18 ], pp. 420, 422 :
AIR 2003 SC 843 [
LNIND 2003 SC 18 ]; Bakhtawar Trust v. M.D.
Narayanan, Bakhtawar Trust v. M.D. Narayanan,
AIR 2003 SC 2236 , p. 2241 :
(2003) 5 SCC 298 ; ITW Signode India Ltd. v. Commr. of
Central Excise, ITW Signode India Ltd. v. Commr. of Central Excise,
(2004) 3 SCC 48 [
LNIND 2003 SC 1007 ], pp. 66 to 71; Virendra
Singh Hooda v. State of Haryana, Virendra Singh Hooda v. State of Haryana,
AIR 2005 SC 137 [
LNIND 2004 SC 1104 ], p. 154 (Effect of writs can also
be taken away). State of Bihar v. Bihar Pensioner's Samaj, State
of Bihar v. Bihar Pensioner's Samaj,
(2006) 5 SCC 65 [
LNIND 2006 SC 314 ]:
AIR 2006 SC 2100 [
LNIND 2006 SC 314 ].
16 B. Shama Rao v. Union Territory of Pondicherry,

B. Shama Rao v. Union Territory of Pondicherry,
AIR 1967 SC 1480 [
LNIND 1967 SC 39 ], pp. 1488 1489 :
1967 (2) SCR 650 [
LNIND 1967 SC 39 ] (instead of re-enacting a new Act
with suitable changes the earlier void law was amended); Janpada Sabha, Chhindwara v. Central Provinces
Syndicate Ltd., Janpada Sabha, Chhindwara v. Central Provinces Syndicate Ltd.,
(1970) 1 SCC 509 [
LNIND 1970 SC 67 ]:
AIR 1971 SC 57 [
LNIND 1970 SC 67 ], p. 61 (retrospectively amending the
Act without setting out the amendments); D. Cawasji and Co. v. State of Mysore, D. Cawasji and Co. v. State
of Mysore, (1984) (Supp) SCC 490 :
AIR 1984 SC 1780 [
LNIND 1984 SC 358 ], (defect not cured and amount
collected sought to be retained by retrospectively enhancing the rate of tax); State of Haryana v.
Karnal Co-op. Farmers Society Limited, State of Haryana v. Karnal Co-op. Farmers
Society Limited,
AIR 1994 SC 1 [
LNIND 1993 SC 190 ], p. 12 :
(1993) 2 SCC 363 [
LNIND 1993 SC 190 ]; Government of Andhra
Pradesh v. G.V.K. Girls High School, Government of Andhra Pradesh v. G.V.K. Girls
High School,
AIR 2000 SC 26 51 [
LNIND 2000 SC 1063 ], p. 2658 :
(2000) 8 SCC 370 [
LNIND 2000 SC 1063 ] (defect not cured).
Mr.Srikanth -
Page 82 of 95
17 Jawaharmal v. State of Rajasthan, Jawaharmal v. State of

Rajasthan,
AIR 1966 SC 764 [
LNIND 1965 SC 227 ], pp. 770, 771 :
1966 (1) SCR 890 [
LNIND 1965 SC 227 ] (mistake in mentioning period);
Wijesuriya v. Amit, Wijesuriya v. Amit,
(1965) 3 All ER 701 (PC).
18 Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan,

Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan,
AIR 1996 SC 2930 [
LNIND 1996 SC 2966 ], p. 2935 :
1996 (2) SCC 449 [
Sadchidananda Misra v. State of Orissa, Sadchidananda Misra v. State of Orissa,
(2004) 8 SCC 599 [
LNIND 2004 SC 947 ], p. 608 :
(2004) 7 JT 602 .
19 Indira Sawhney v. Union of India, Indira Sawhney v. Union of

India,
AIR 2000 SC 498 , pp. 512, 514 :
(2000) 1 SCC 168 .
20 Virendra Singh Hooda v. State of Haryana,

Virendra Singh Hooda v. State of Haryana,
AIR 2005 SC 137 [
LNIND 2004 SC 1104 ], p. 159.
21 CIT v. Mahaliram Ramjidas, CIT v. Mahaliram Ramjidas,

AIR 1940 PC 124 , pp. 126, 127; Gursahai v.
CIT, Gursahai v. CIT,
AIR 1963 SC 1062 [
LNIND 1962 SC 287 ], p. 1065 :
1963 (3) SCR 893 [
LNIND 1962 SC 287 ] : (1963) 48 ITR
(SC) 1.
22 Nelson Motis v. Union of India, Nelson Motis v. Union of India,

AIR 1992 SC 1981 [
LNIND 1992 SC 561 ], p. 1984 :
(1992) 4 SCC 711 [
LNIND 1992 SC 561 ]; Gurudevdatt VKSSS
Maryadit v. State of Maharashtra, Gurudevdatt VKSSS Maryadit v. State of
Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], p. 1991 :
(2001) 4 SCC 534 [
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 296; Nathi Devi v.
Radha Devi Gupta, Nathi Devi v. Radha Devi Gupta,
AIR 2005 SC 648 [
LNIND 2004 SC 1268 ], p. 659 :
Mr.Srikanth -
Page 83 of 95
(2005) 2 SCC 271 [

LNIND 2004 SC 1268 ], p. 277.
23 Sussex Peerage case, (1844) 11 Cl & F 85, p. 143. See further

Commissioners for Special Purposes of the Income-tax v. John Frederick Pamsel,
Commissioners for Special Purposes of the Income-tax v. John Frederick Pamsel,
(1891) AC 531 , p. 542 (HL); Vacher & Sons v. London Society of
Compositors, Vacher & Sons v. London Society of Compositors,
(1913) AC 107 : 82 LJKB 232 : 107 LT 722 (HL); Pakala Narayanswami v.
Emperor, Pakala Narayanswami v. Emperor,
AIR 1939 PC 47 [
LNIND 1939 PC 1 ], p. 51; Corporation of
City of Nagpur v. Its Employees, Corporation of City of Nagpur v. Its Employees,
AIR 1960 SC 675 [
LNIND 1960 SC 32 ], p. 679 :
1960 (2) SCR 942 [
LNIND 1960 SC 32 ]; Sri Ram Daya Ram v.
State of Maharashtra, Sri Ram Daya Ram v. State of Maharashtra,
AIR 1961 SC 674 [
LNIND 1960 SC 308 ], p. 678 :
1961 (2) SCR 890 [
LNIND 1960 SC 308 ]; Collector of Customs v.
Digvijaysinhji Spinning & Weaving Mills Ltd., Collector of Customs v. Digvijaysinhji
Spinning & Weaving Mills Ltd.,
AIR 1961 SC 1549 [
LNIND 1961 SC 172 ], p. 1551 :
1962 (1) SCR 852 [
LNIND 1961 SC 162 ]; Philip John Plasket
Thomas v. CIT, Philip John Plasket Thomas v. CIT,
AIR 1964 SC 587 [
LNIND 1963 SC 73 ], p. 592 :
1964 (2) SCR 480 [
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], p. 1244 :
(1964) 6 SCR 784 [
LNIND 1964 SC 31 ]; Anandji Haridas
& Co. Pvt. Ltd. v. Engineering Mazdoor Sangh, Anandji Haridas & Co. Pvt. Ltd. v.
Engineering Mazdoor Sangh,
AIR 1975 SC 946 [
LNIND 1975 SC 65 ], p. 949 : 1975 SCC (L&S)
165 :
(1975) 3 SCC 862 [
LNIND 1975 SC 65 ]; Govindlal Chagganlal
Patel v. Agriculture Produce Market Committee, Govindlal Chagganlal Patel v. Agriculture
Produce Market Committee,
AIR 1976 SC 263 [
LNIND 1975 SC 300 ], p. 267 :
(1975) 2 SCC 482 [
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2374 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (Lab) 435 ; Chief
Justice, Andhra Pradesh v. L.V.A. Dikshitulu, Chief Justice, Andhra Pradesh v. L.V.A.
Dikshitulu,
AIR 1979 SC 193 , p. 205 :
(1979) 2 SCC 34 : 1979 SCC (Lab) 99 ; Shivram Anand Shiroor v. Radhabai
Shantaram Kowshik (Mrs.), Shivram Anand Shiroor v. Radhabai Shantaram
Kowshik (Mrs.),
(1984) 1 SCC 588 [
LNIND 1984 SC 26 ], p. 592 :
AIR 1984 SC 786 [
Mr.Srikanth -
Page 84 of 95
LNIND 1984 SC 26 ]; Ajay Pradhan

(Dr.) v. State of Madhya Pradesh, Ajay Pradhan (Dr.) v. State of Madhya Pradesh,
AIR 1988 SC 1875 [
LNIND 1988 SC 369 ], p. 1878 :
(1988) 4 SCC 514 [
LNIND 1988 SC 369 ]; State of Kerala v. Dr.
S.G. Savothama Prabhu, State of Kerala v. Dr. S.G. Savothama Prabhu,
JT (1999) 2 SC 41 , p. 44 : 1999 AIR SC 1195 :
(1999) 2 SCC 622 [
LNIND 1999 SC 206 ]; State of Maharashtra v.
Nandet Prabhani Operators Sangh, State of Maharashtra v. Nandet Prabhani
Operators Sangh,
AIR 2000 SC 725 [
LNIND 2000 SC 140 ], p. 727 :
(2000) 2 SCC 69 [
LNIND 2000 SC 140 ]; State of West Bengal v.
Scene Screen (Pvt.) Ltd., State of West Bengal v. Scene Screen (Pvt.) Ltd.,
AIR 2000 SC 3089 [
LNIND 2000 SC 1318 ], p. 3094 :
(2000) 7 SCC 686 [
Agricultural Income-tax, Kerala v. Plantation Corporation of Kerala Ltd.,
Commissioner of Agricultural Income-tax, Kerala v. Plantation Corporation of Kerala Ltd.,
AIR 2000 SC 3714 [
LNIND 2000 SC 1690 ], pp. 3717, 3718; Steel
Authority of India Ltd. v. National Union Water Front Workers, Steel Authority of
India Ltd. v. National Union Water Front Workers,
AIR 2001 SC 3527 [
LNIND 2001 SC 1870 ], p. 3539 :
(2001) 7 SCC 1 [
LNIND 2001 SC 1870 ]; Gurudevdatta VKSSS
Maryadit v. State of Maharashtra, supra; Gurudevdatta VKSSS Maryadit v. State of
Maharashtra, supra; Ombalika Das v. Hulisa Shaw, Ombalika Das v. Hulisa Shaw,
AIR 2002 SC 1685 [
LNIND 2002 SC 255 ], p. 1690; Union of India
v. Hansoli Devi, Union of India v. Hansoli Devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], p. 3245; Illachi Devi
v. Jain Society, Protection of Orphans Illachi Devi v. Jain Society, Protection of
Orphans
(2003) 8 SCC 413 [
LNIND 2003 SC 842 ], p. 426 :
AIR 2003 SC 3397 [
LNIND 2003 SC 842 ]; M.T. Khan v. Govt. of
A.P., M.T. Khan v. Govt. of A.P.,
(2004) 2 SCC 267 [
LNIND 2004 SC 16 ], p. 272 :
AIR 2004 SC 2934 [
LNIND 2004 SC 16 ]; State of Orissa v.
Joginder Patjoshi, State of Orissa v. Joginder Patjoshi,
AIR 2004 SC 1039 , p. 1042 :
(2004) 9 SCC 278 ; Tamil Nadu State Electricity Board v.
Central Electricity Regulatory Commission, Tamil Nadu State Electricity Board v.
Central Electricity Regulatory Commission,
AIR 2007 SC 1711 [
LNIND 2007 SC 509 ](paras 18 and 19) :
(2007) 6 Scale 26 [
LNIND 2007 SC 509 ]; Promoters &
Builders Ass. of Pune v. Pune Municipal Corpn., Promoters & Builders Ass. of Pune v.
Pune Municipal Corpn.,
(2007) 6 SCC 143 [
LNIND 2007 SC 642 ], para 11 :
AIR 2007 SC 1956 [
LNIND 2007 SC 642 ]; T.N. State Electricity
Board v. Central Electricity Regulatory Commission, T.N. State Electricity Board v. Central
Electricity Regulatory Commission,
Mr.Srikanth -
Page 85 of 95
(2007) 7 SCC 636 [

LNIND 2007 SC 509 ], paras 20 to 22.
24 State of Uttar Pradesh v. Vijay Anand Maharaj,

State of Uttar Pradesh v. Vijay Anand Maharaj,
AIR 1963 SC 946 [
LNIND 1962 SC 127 ], p. 950 :
(1963) 1 SCR 1 [
LNIND 1962 SC 127 ] (SUBBA-RAO, J); See further
Thakur Amar Singhji v. State of Rajasthan, Thakur Amar Singhji v. State of
Rajasthan,
AIR 1955 SC 504 [
LNIND 1955 SC 36 ], p. 526 :
(1955) 2 SCR 303 [
LNIND 1955 SC 36 ]; Croxford v. Universal
Insurance Co. Croxford v. Universal Insurance Co.
(1936) 1 All ER 151 , p. 166 (CA); Om Prakash Gupta v. Dig
Vijendrapal Gupta, Om Prakash Gupta v. Dig Vijendrapal Gupta,
AIR 1982 SC 1230 [
LNIND 1982 SC 63 ], p. 1233 :
(1982) 2 SCC 61 [
LNIND 1982 SC 63 ]; Jitendra Tyagi v. Delhi
Administration, Jitendra Tyagi v. Delhi Administration,
AIR 1990 SC 487 [
LNIND 1989 SC 483 ], p. 492 :
(1989) 4 SCC 653 [
LNIND 1989 SC 483 ]; Nelson Motis v. Union
of India, Nelson Motis v. Union of India,
AIR 1992 SC 1981 [
LNIND 1992 SC 561 ], p. 1984 :
(1992) 4 SCC 711 [
LNIND 1992 SC 561 ]; Oswal Agro Mills Ltd.
v. Collector of Central Excise, Oswal Agro Mills Ltd. v. Collector of Central Excise,
AIR 1993 SC 2288 [
716; Council of Homoepathic System of Medicine, Punjab v. Suchintan, Council of
Homoepathic System of Medicine, Punjab v. Suchintan,
AIR 1994 SC 1761 [
LNIND 1993 SC 384 ], p. 1769 : (1993) Supp
(3) SCC 99; State of Orissa v. Joginder Patjoshi, supra. State of Orissa v. Joginder
Patjoshi, supra.
25 A.W. Meads v. Emperor, A.W. Meads v. Emperor,

AIR 1945 FC 21 , p. 23 : 75 IA 185; Pakala
Narayanaswami v. Emperor, Pakala Narayanaswami v. Emperor,
AIR 1939 PC 47 [
LNIND 1939 PC 1 ], pp. 51, 52; Emperor V.
Benoari Lal Sarma, Emperor V. Benoari Lal Sarma,
AIR 1945 PC 48 [
LNIND 1944 PC 32 ], p. 53; CIT, Agri. v.
Keshab Chandra Mandal, CIT, Agri. v. Keshab Chandra Mandal,
AIR 1950 SC 265 [
LNIND 1950 SC 21 ], p. 270 :
1950 SCR 435 [
LNIND 1950 SC 21 ]; Johnson v.
Moreton, Johnson v. Moreton,
(1978) 3 All ER 37 , p. 41 (HL); Tamil Nadu State Electricity
Board v. Central Electricity Regulatory Commission, Tamil Nadu State Electricity
Board v. Central Electricity Regulatory Commission,
AIR 2007 SC 1711 [
LNIND 2007 SC 509 ](para 20) :
(2007) 6 Scale 26 [
LNIND 2007 SC 509 ].
Mr.Srikanth -
Page 86 of 95
26 London Brick Co. Ltd. v. Robinson, London Brick Co. Ltd. v.

Robinson,
(1943) 1 All ER 23 , p. 26 (HL); Smith v. East Elloe RDC,
Smith v. East Elloe RDC,
(1956) 1 All ER 855 , p. 863 (HL).
27 IRC v. Hinchy, IRC v. Hinchy,

(1960) 1 All ER 505 , pp. 508, 512 (HL); Mahalaxmi Mills Ltd., Bhaunagar v. CIT,
Bombay, Mahalaxmi Mills Ltd., Bhaunagar v. CIT, Bombay,
AIR 1967 SC 266 [
LNIND 1960 SC 115 ], p. 269 (para 7) :
(1964) 5 SCR 216 ; Nasiruddin v. State Transport Appellate
Tribunal, Nasiruddin v. State Transport Appellate Tribunal,
AIR 1976 SC 331 [
LNIND 1975 SC 306 ], p. 338 :
(1975) 2 SCC 671 [
LNIND 1975 SC 306 ]; Duport Streets Ltd. v.
Sirs, Duport Streets Ltd. v. Sirs,
(1980) 1 All ER 529 , p. 541 (HL); Precision Steel and Engineering Works v.
Premdeva, Precision Steel and Engineering Works v. Premdeva,
AIR 1982 SC 1518 [
LNIND 1982 SC 138 ], p. 1526 :
(1982) 3 SCC 270 [
LNIND 1982 SC 138 ]; Nasiruddin v. Sita Ram
Agarwal, Nasiruddin v. Sita Ram Agarwal,
(2003) 2 SCC 577 [
LNIND 2003 SC 112 ], p. 588 :
AIR 2003 SC 1593 .
28 Emperor v. Benoarilal Sarma, Emperor v. Benoarilal Sarma,

AIR 1945 PC 48 [
LNIND 1944 PC 32 ], p. 53. See further Ajay
Pradhan (Dr.) v. State of Madhya Pradesh, Ajay Pradhan (Dr.) v. State
of Madhya Pradesh,
AIR 1988 SC 1875 [
LNIND 1988 SC 369 ], p. 1878 :
1988 (4) SCC 514 [
Nandet Prabhani Operators Sangh, State of Maharashtra v. Nandet Prabhani
Operators Sangh,
AIR 2000 SC 725 [
LNIND 2000 SC 140 ], p. 727 :
(2000) 2 SCC 69 [
LNIND 2000 SC 140 ]; Easland Combines
Coimbatore v. CCE, Easland Combines Coimbatore v. CCE,
AIR 2003 SC 843 [
LNIND 2003 SC 18 ], p. 850 :
(2003) 3 SCC 410 [
LNIND 2003 SC 18 ], p. 421; Raghunath Rai
Bareja v. Punjab National Bank, Raghunath Rai Bareja v. Punjab National Bank,
(2007) 2 SCC 230 [
LNIND 2006 SC 1098 ], (paras 43, 44) :
(2007) 1 JT 542 (9th Edition) (pp. 45 to 49) of this book is
referred).
29 Kanailal Sur v. Paramnidhi Sadhu Khan,

Kanailal Sur v. Paramnidhi Sadhu Khan,
AIR 1957 SC 907 [
LNIND 1957 SC 83 ], p. 910 :
1958 SCR 360 [
Mr.Srikanth -
Page 87 of 95
LNIND 1957 SC 83 ]. See further Rananjaya

Singh v. Baijnath Singh, Rananjaya Singh v. Baijnath Singh,
AIR 1954 SC 749 [
LNIND 1954 SC 119 ], p. 752 :
1955 (1) SCR 671 [
LNIND 1954 SC 119 ]; Senior Superintendent,
RMS, Cochin v. K.B. Gopinath, Senior Superintendent, RMS, Cochin v. K.B.
Gopinath,
AIR 1972 SC 148 , p. 14887 :
(1973) 3 SCC 867 [
Nandet Prabhani Operators Sangh, supra, State of Maharashtra v. Nandet Prabhani
Operators Sangh, supra, p. 727; Union of India v. Hansoli Devi, Union of India v. Hansoli Devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], pp. 3245, 3246 :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ]; Nathi Devi v. Radha
Devi Gupta, Nathi Devi v. Radha Devi Gupta,
AIR 2005 SC 648 [
LNIND 2004 SC 1268 ], p. 652 :
(2005) 2 SCC 291 , p. 277.
30 CIT, Agri. v. Keshab Chandra Mandal,

CIT, Agri. v. Keshab Chandra Mandal,
AIR 1950 SC 265 [
LNIND 1950 SC 21 ], p. 270 :
1950 SCR 435 [
LNIND 1950 SC 21 ].
31 Pakala Narayanaswami v. Emperor, Pakala Narayanaswami v.

Emperor,
AIR 1939 PC 47 [
LNIND 1939 PC 1 ], pp. 51, 52. See further
State of Haryana v. Bhajanlal, State of Haryana v. Bhajanlal,
AIR 1992 SC 604 , p. 617 : 1992 Supp (1) SCC 335 :
1992 Cri LJ 527 .
32 Rananjaya Singh v. Baijnath Singh, Rananjaya Singh v. Baijnath

Singh,
AIR 1954 SC 749 [
LNIND 1954 SC 119 ], p. 752 :
(1955) (1) SCR 799 [
LNIND 1954 SC 123 ]. Referred in Dibya Singh
Malana v. State of Orissa, Referred in Dibya Singh Malana v. State of Orissa,
AIR 1989 SC 1737 [
LNIND 1989 SC 241 ], pp. 1740, 1741 : 1989 Supp (2)
SCC 312.
33 Partington v. Attorney-General, Partington v. Attorney-General,

(1869) LR 4 HL 100, p. 122; referred to in IRC v. Duke of Westminster,
IRC v. Duke of Westminster,
(1936) AC 1 , p. 24 (HL); Bank of Chettinad Ltd. v. CIT,
Bank of Chettinad Ltd. v. CIT,
1940 PC 183 , p. 185; A.V. Fernandez v. State
of Kerala, A.V. Fernandez v. State of Kerala,
AIR 1957 SC 657 [
LNIND 1957 SC 34 ]:
1957 SCR 837 [
Chapter 10, title 1(d) ‘Qualifications of the Rule of Strict Construction’.
Mr.Srikanth -
Page 88 of 95
34 M.V. Joshi v. M. U. Shimpi, M.V. Joshi v. M. U. Shimpi,

AIR 1961 SC 1494 [
LNIND 1961 SC 78 ], p. 1498 :
1961 (3) SCR 986 [
LNIND 1961 SC 78 ] : 64 Bom LR 158.
For example—Sentence of ‘imprisonment for life’ means a sentence for whole of the
remaining period of the convicted person's natural life; Gopal Vinayak Godse v. State of
Maharashtra, Gopal Vinayak Godse v. State of Maharashtra,
AIR 1961 SC 600 [
LNIND 1961 SC 11 ], p. 603 :
1961 (3) SCR 440 [
LNIND 1961 SC 11 ]; Mohd. Munna v. Union of
India, Mohd. Munna v. Union of India,
(2005) 7 SCC 417 [
LNIND 2005 SC 701 ], pp. 426, 427; R. v.
Assa Singh, R. v. Assa Singh,
(1965) 1 All ER 938 , p. 940; R. v. Church, R. v. Church,
(1965) 2 All ER 72 , p. 77. See further Chapter 11, title
3 “Strict Construction of Penal Statutes”.
35 C.S.D. Swami v. State, C.S.D. Swami v. State,

AIR 1960 SC 7 [
LNIND 1959 SC 134 ], pp. 9, 10 :
1960 (1) SCR 461 [
LNIND 1959 SC 134 ]; See further Sajjan
Singh v. State of Punjab, Sajjan Singh v. State of Punjab,
AIR 1964 SC 464 [
LNIND 1963 SC 203 ], p. 468 :
1964 (4) SCR 630 [
LNIND 1963 SC 203 ].
Section 5(3) later became section 5(1)(e) and corresponds to

section 13(1)(e) of the PC Act, 1988 .
36 Dhanwantrai Balwantrai v. State of Maharashtra,

Dhanwantrai Balwantrai v. State of Maharashtra,
AIR 1964 SC 575 [
LNIND 1962 SC 324 ]: 1963 Supp (1) SCR 485; CI
Emden v. State of U.P., CI Emden v. State of U.P.,
AIR 1960 SC 548 [
LNIND 1959 SC 226 ]:
(1960) 2 SCR 592 [
LNIND 1959 SC 226 ]; State of Madras v. A.
Vaidyanatha Iyer, State of Madras v. A. Vaidyanatha Iyer,
AIR 1958 SC 61 [
LNIND 1957 SC 98 ]:
1958 SCR 580 [
LNIND 1957 SC 98 ].
Section 4 of the PC Act , 1947 corresponds to
section 20 of the PC Act, 1988 .
See also V. D. Jhingan v. State of U.P., V.

D. Jhingan v. State of U.P.,
AIR 1966 SC 1762 [
LNIND 1966 SC 73 ]:
(1966) 3 SCR 736 [
LNIND 1966 SC 73 ]; R. v. Carr
Briant, R. v. Carr Briant,
Mr.Srikanth -
Page 89 of 95
(1943) 2 All ER 156 ; the onus laid on the accused is not as onerous as is
normally required from the prosecution to establish the charge beyond reasonable doubt and the accused may
discharge the onus by proving preponderance of probability of his defence.
37 Illachi Devi v. Jain Society Protection of Orphans India,

Illachi Devi v. Jain Society Protection of Orphans India,
(2003) 8 SCC 413 [
LNIND 2003 SC 842 ], p. 429 :
AIR 2003 SC 3397 [
LNIND 2003 SC 842 ].
38 D. Saibaba v. Bar Council of India, D. Saibaba v. Bar Council of

India,
AIR 2003 SC 2502 [
LNIND 2003 SC 510 ], 2507 :
(2003) 6 SCC 186 [
LNIND 2003 SC 510 ]:
(2003) 2 KLT 669 . (This proposition is approvingly referred from p. 45 eighth
edition of this book). See further Ibrahimpatnam Taluk Vyavasaya Coolie
Sangham v. K. Suresh Reddy, Ibrahimpatnam Taluk Vyavasaya Coolie
Sangham v. K. Suresh Reddy,
(2003) 7 SCC 667 [
LNIND 2003 SC 687 ], pp. 677, 678.
39 Hutton v. Phillips, Hutton v. Phillips, 45 Del 156,

70A, 2nd 15; Digested in “Cases and other Materials on Legislation” by ried macdonald and fordham, 2nd
Edition, pp. 1013, 1014; Union of India v. Sankalachand, Union
of India v. Sankalachand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2374 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (L&S) 435;
Manohar Nathrao Samarth v. Marotrao, Manohar Nathrao Samarth v. Marotrao,
AIR 1979 SC 1084 [
LNINDU 2014 BOM 2391 ], p. 1089 :
1979 (4) SCC 93 ; Life Insurance Corporation v.
D. J. Bahadur, Life Insurance Corporation v. D. J. Bahadur,
AIR 1980 SC 2181 [
LNIND 1980 SC 442 ], p. 2191 :
1981 (1) SCR 1083 [
LNIND 1980 SC 442 ].
40 Ormond Investment Co. v. Betts, Ormond Investment Co. v. Betts,

(1928) AC 143 , p. 156 (HL); referred to in Kirkness v. John Hudson & Co.,
Kirkness v. John Hudson & Co.,
(1955) 2 All ER 345 , p. 350 (HL) (VISCOUNT SIMONDS).
See further: Imperial Chemical Industries Plc v. Colmel (Inspector of Taxes),
Imperial Chemical Industries Plc v. Colmel (Inspector of Taxes),
(2000) 1 All ER 129 , p. 133 (HL) (“An ambiguity is a word or
phrase fairly open to diverse meanings, the classic example being ‘twelve O'clock’
which, save for users of the 24 hour clock, could equally mean midday or midnight.“)
41 Kirkness v. John Hudson & Co., supra,

Kirkness v. John Hudson & Co., supra, p. 366. See further Union of India v.
Hansoli devi, Union of India v. Hansoli devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], p. 3246 :
(2001) 4 SCC 404 [
Mr.Srikanth -
Page 90 of 95
LNIND 2001 SC 987 ]; State of Orissa v.

Joginder Patjoshi, State of Orissa v. Joginder Patjoshi,
AIR 2004 SC 1039 , p. 1042 :
(2004) 9 SCC 278 .
42 Attorney-General v. HRH Prince Ernest Augustus of Hanover,

Attorney-General v. HRH Prince Ernest Augustus of Hanover,
(1957) 1 All ER 49 , p. 55 (HL); Union of India v.
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2336 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (L&S)
435.
43 Attorney-General v. HRH Prince Ernest Augustus of Hanover,

supra, Attorney-General v. HRH Prince Ernest Augustus of Hanover, supra, p. 62
(Lord Somervell of Harrow).
44 Nyadar Singh v. Union of India, Nyadar Singh v. Union of India,

AIR 1988 SC 1979 [
LNIND 1988 SC 854 ], p. 1984 :
1988 (4) SCC 170 [
LNIND 1988 SC 854 ].
45 See text and Notes 55 to 63, pp. 37 to 39.
46 Inland Revenue Commissioner v. Joiner,

Inland Revenue Commissioner v. Joiner,
(1975) 3 All ER 1050 , pp. 1058, 1059 :
(1975) 1 WLR 1701 : 50 TC 449 (HL) (Lord Diplock).
47 A Oliver Ashworth (Holdings) Pvt. Ltd. v. Ballard (Kent) Ltd.,

A Oliver Ashworth (Holdings) Pvt. Ltd. v. Ballard (Kent) Ltd.,
(1999) 2 All ER 791 , pp. 807, 808 (C.A.) (Laws LJ).
48 Ellerman Lines Ltd. v. Murray, Ellerman Lines Ltd. v. Murray,

1931 AC 126 :
(1930) All ER Rep 503 (HL).
49 R.L. Arora v. State of U.P., R.L. Arora v. State of U.P.,

AIR 1964 SC 1230 [
LNIND 1964 SC 31 ]:
1964 (6) SCR 787 . According to the majority opinion in
this case, cl. (aa) of
section 40(1), Land Acquisition Act , was capable of bearing two constructions
whereas according to the dissenting opinion of ayyanger, J, the clause could bear only
one meaning).
50 Kirkness v. John Hudson & Co. Ltd.,

Kirkness v. John Hudson & Co. Ltd.,
(1955) 2 All ER 345 (HL).
Mr.Srikanth -
Page 91 of 95

Kirkness v. John Hudson & Co. Ltd.,
(1955) 2 All ER 345 , p. 351 (HL).
See for similar observations : Director of Public Prosecutions v.

Ottewell, Director of Public Prosecutions v. Ottewell,
(1968) 3 All ER 153 , p. 157 (HL) (Lord Reid); Farrel v.
Alexander, Farrel v. Alexander,
(1976) 3 All ER 721 , p. 744 (HL) (LORD EDMUND
DAVIES). But “a sense of modesty and respect for the ability of his fellow judges who think otherwise may
make a judge hesitate before deciding that the words are not equally capable of bearing
the meaning which they prefer and he does not”: Inland Revenue Commissioner v.
Joiner, Inland Revenue Commissioner v. Joiner,
(1975) 3 All ER 1050 , p. 1063 :
(1975) 1 WLR 1701 (HL) (Lord Diplock).
52 Ellerman Lines Ltd. v. Murray, Ellerman Lines Ltd. v. Murray,

(1930) All ER Rep 503 , p. 511 (HL).
53 Customs and Excise Commissioners v. Thorn Electrical Industries

Ltd., Customs and Excise Commissioners v. Thorn Electrical Industries Ltd.,
(1975) 3 All ER 881 , p. 884 (HL). For example in the
sentence—she went home in a sedan chair and a flood of tears,—‘in’ is not ambiguous.
54 Powell v. Kempton Park Racecourse Co.,

Powell v. Kempton Park Racecourse Co.,
(1899) AC 143 , p. 185 (HL); Mahadeolal Kanodia v. Administrator General of West
Bengal, Mahadeolal Kanodia v. Administrator General of West Bengal,
AIR 1960 SC 936 [
LNIND 1960 SC 128 ], p. 940 :
1960 (3) SCR 578 [
LNIND 1960 SC 128 ]; CIT v. Indian Bank
Ltd., Madras, CIT v. Indian Bank Ltd., Madras,
AIR 1965 SC 1473 [
LNIND 1964 SC 279 ], p. 1474 (para 8) :
1965 (1) SCR 833 [
LNIND 1964 SC 279 ]; Patangrao Kadam v.
Brithviraj Sayajirao Yadav, Patangrao Kadam v. Brithviraj Sayajirao Yadav,
AIR 2001 SC 1121 [
LNIND 2001 SC 551 ], p. 1126 (para 13); Duports Steels
Ltd. v. Sirs, Duports Steels Ltd. v. Sirs,
(1980) 1 All ER 529 , p. 541 :
(1980) 1 WLR 142 : 124 SJ 133 (HL); Inland Revenue Commissioners v.
Rossminster Ltd., Inland Revenue Commissioners v. Rossminster Ltd.,
(1980) 1 All ER 80 , p. 90 (HL).
55 V.O. Tractoroexport v. Tarapore & Co.,

V.O. Tractoroexport v. Tarapore & Co.,
AIR 1971 SC 1 [
LNIND 1969 SC 438 ], p. 9 :
(1969) 3 SCC 562 [
LNIND 1969 SC 438 ].
56 T B & S Batchelor & Co. Ltd. v. Owners of S.S. Merak,

T B & S Batchelor & Co. Ltd. v. Owners of S.S. Merak,
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Page 92 of 95
(1964) 3 All ER 638 , p. 649; upheld in appeal

(1965) 1 All ER 230 (CA).
57 V.O. Tractoroexport v. Tarapore & Co.,

V.O. Tractoroexport v. Tarapore & Co.,
AIR 1971 SC 1 [
LNIND 1969 SC 438 ], p. 9 :
(1969) 3 SCC 562 [
LNIND 1969 SC 438 ]. For construction of statutes
enacted to give effect to international conventions; see title
5(b2) Chapter 6 and see p. 608 where this case is referred.
58 “It is often found that the more common place a word is, the more difficult it is to arrive at
its exact meaning—and for a very good reason, since it is commonplaces which are
used most vaguely and with the least attention to precise significance”: allen; “Law in
the Making”, 7th Edition, p. 489. “The simpler and more common the word or expression, the more meanings
and shades of meaning it has”: shah, J, in Madhava Rao Scindia v. Union of India,
Madhava Rao Scindia v. Union of India,
AIR 1971 SC 530 [
LNIND 1970 SC 481 ], p. 577 :
(1971) 1 SCC 85 [
observations of lord upjonh in Commissioner of Customs v. Top Ten Promotions Ltd.,
Commissioner of Customs v. Top Ten Promotions Ltd.,
(1969) 3 All ER 39 , p. 90 (HL).
59
(1971) 1 SCR 612 [
LNIND 1970 SC 274 ]:
(1970) 2 SCC 272 [
LNIND 1970 SC 274 ]:
AIR 1970 SC 1573 [
LNIND 1970 SC 274 ].
60
JT 1998 (3) SC 318 [
LNIND 1998 SC 1259 ]:
AIR 1998 SC 2120 [
LNIND 1998 SC 1259 ].
61 Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills Co.
Ltd., Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills Co. Ltd.,
AIR 1950 FC 83 , p. 101 :
1949 FCR 849 .
62 See Statement of Objects and Reasons, AIR Manual, 5th Edition,

Vol. 20, p. 603.
63 Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills,

Moolji Jaitha & Co. v. Khandesh Spinning and Weaving Mills,
AIR 1950 FC 83 , p. 101 :
1949 FCR 849 . In Adcon Electronics Pvt. Ltd.
v. Daulat, Adcon Electronics Pvt. Ltd. v. Daulat,
AIR 2001 SC 3712 [
LNIND 2001 SC 2019 ]:
(2001) 7 SCC 698 [
Mr.Srikanth -
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LNIND 2001 SC 2019 ] a two judge bench of the Supreme

Court noticed the divergence of opinion in the Federal Court but preferred the opinion
of mahajan, J., in holding that a suit for specific performance of a contract of sale without claiming
relief for possession is not a ‘suit for land’.
64 Baliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,

Baliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,
AIR 1988 SC 2267 [
942 :
(1988) 4 SCC 419 [
LNIND 1988 SC 442 ]. The word ‘court’ must be read
in the context and in certain context it can comprehend court of civil jurisdiction and other courts or tribunals
exercising curial or judicial powers. Company Law Board was held to be a court in
the context of
section 9A of Special Court (Trial of offences relating to Transactions in Securities)
Act, 1992 : Canara Bank v. Nuclear Power Corporation of India Ltd.,
Canara Bank v. Nuclear Power Corporation of India Ltd.,
1995 (2) Scale 162 : 1995 Supp (3) SCC 381 :
(1995) 84 Com Case 70 ; Deputy Commissioner (Appeals) functioning under section 41 of the
Tamil Nadu Shops and Establishment Act, 1947 held to be a ‘court’: P. Sarathy v. State
Bank of India, P. Sarathy v. State Bank of India,
AIR 2000 SC 2023 [
LNIND 2000 SC 896 ]:
(2000) 5 SCC 355 [
LNIND 2000 SC 896 ]; Compensation officer appointed
under the Bihar Land Reforms Act held not to be a ‘court’ for section 195(1)(b) Cr.P.C:
Keshab Narayan Banerjee v. State of Bihar, Keshab Narayan Banerjee v. State of
Bihar,
AIR 2000 SC 485 [
LNIND 1999 SC 1498 ]:
(2000) 1 SCC 607 [
LNIND 1999 SC 1498 ]; Manoharlal v. Vinesh
Anand, Manoharlal v. Vinesh Anand,
AIR 2001 SC 1820 [
LNIND 2001 SC 913 ]:
(2001) 3 SCC 401 [
LNIND 2001 SC 435 ] (Arbitrator is not a court in
section 195 Cr.P.C. ); K. Shamrao v. Assistant Charity Commissioner,
K. Shamrao v. Assistant Charity Commissioner,
(2003) 3 SCC 563 [
LNIND 2003 SC 281 ]:
2003 Cri LJ 1575 [
LNIND 2003 SC 281 ] (Assistant Charity Commissioner
appointed under s. 5 of the Bombay Public
Trusts Act , 1950 is a ‘court’ for the purposes of the
contempt of courts Act 1971 ); Prakash H. Jain v. Marie Fernandes,
Prakash H. Jain v. Marie Fernandes,
(2003) 8 SCC 431 [
LNIND 2003 SC 826 ], pp. 437, 438 :
AIR 2003 SC 4591 [
LNIND 2003 SC 826 ](Competent Authority functioning
under chapter VIII of the Maharashtra Rent Control Act, 1999 is not a court);
Manuverma (Dr.) v. State of U.P., Manuverma (Dr.) v. State of
U.P.,
(2005) 1 SCC 73 [
LNIND 2004 SC 1143 ], p. 82 (Chief Justice transferring a
case which was being heard at Lucknow Bench to Allahabad after noticing and hearing the parties acts as a
judicial authority with all the attributes of a court and his order is atleast quasi judicial
amenable to correction in appeal under
Article 136 of the constitution ). Greater Bombay Co-op. Bank Ltd. v. United Yarn
Tex (P.) Ltd., Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex (P.) Ltd.,
(2007) 6 SCC 236 [
LNIND 2007 SC 420 ] (para 76) :
AIR 2007 SC 1584 [
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Page 94 of 95
LNIND 2007 SC 420 ]:

(2007) 5 JT 201 (Registrar or an officer designated as
arbitrator under
Cooperative Societies Act , is not a court in the context of
section 31 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993
). On the question as to when a court can be said to be constituted. See Supreme Court
Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India,
Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of
India,
JT 1994 (6) SC 544 [
LNIND 1989 SC 165 ], pp. 556, 557:
1995 (4) SCC 695 :
1995 SCC (Cri) 822 .
65 Maxwell: “Interpretation of Statutes”, 11th Edition, p. 6.
66 “If the words of an Act are so inflexible that they are incapable in any context of having
any but one meaning, then the court must apply that meaning, no matter how unreasonable
the result—.But such cases are rare because the English Language is a flexible instrument”. lord reid in Zenith
Investment (Torquay) Ltd. v. Kammins Ballrooms Co. Ltd., Zenith Investment
(Torquay) Ltd. v. Kammins Ballrooms Co. Ltd.,
(1970) 2 All ER 871 , p. 874 (HL). “A statutes true meaning”
according to Prof. Allan, “is as much the product of legal and moral judgment as of rules of semanties and
syntax; and its authority is grounded in the reasons that best explain and qualify the text enacted.—The
doctrine of legislative supremacy gives the last word to Parliament, then, only in a
purely formal sense; even ‘the last word’ must be interpreted in accordance with those
precepts of rule of law that distinguish constitutionalism from dictatorship and populism”. Allan, ‘Legislative
Supremacy and Legislative Intention : Interpretation, Meaning and Authority’, (2004) 63 Cambridge Law
Journal 685, p. 708. See further Chapter 2, Title 4 “Regard to consequences”.
67 Girdharilal and Sons v. Balbir Nath Mathur,

Girdharilal and Sons v. Balbir Nath Mathur,
(1986) 2 SCC 237 [
LNIND 1986 SC 45 ], p. 246:
AIR 1986 SC 1099 [
Hansoli Devi, Union of India v. Hansoli Devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ] p. 3246 :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ].
68 “Statutory enactment must ordinarily be construed according to its plain meaning and no
words shall be added, altered or modified unless it is plainly necessary to do so to
prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with
the test of the statute”: Bhavnagar University v. Palitana Sugar Mill (P.)
Ltd., Bhavnagar University v. Palitana Sugar Mill (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ], p. 121 :
AIR 2003 SC 511 [
LNIND 2002 SC 669 ], p. 517 : (2003) 2 Cuj LR 1154.
See further the following statement of the rule in Jagdish Ch. Patnaik v. State of
Orissa, Jagdish Ch. Patnaik v. State of Orissa,
1998 (2) Scale 662 [
LNIND 1998 SC 429 ], p. 668 :
(1998) 4 SCC 456 [
LNIND 1998 SC 429 ] : 1998 SCC (L&S) 1156;
which too it is submitted, suffers from the same defect: “When the language in the statute is unambiguous and
on a plain grammatical meaning being given to the words in the statute, the end result is
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neither arbitrary, irrational or contrary to the object of the statute, then it is the duty of
the court to give effect to the words used in the statute.“
69 Girdharilal and Sons v. Balbirnath Mathur, supra,

Girdharilal and Sons v. Balbirnath Mathur, supra, 242 of SCC.
70 Pp. 53 to 55, supra.
71 Unreasonableness may attract Art. 14; ( Ajay Hasia v. Khalid Mujib, Ajay Hasia v. Khalid
Mujib,
AIR 1981 SC 487 [
LNIND 1980 SC 456 ]:
(1981) 1 SCC 722) [
LNIND 1980 SC 456 ] and clauses 2 to 6 of
Art. 19 of the Constitution . Forexample, see Bhagwanti v. Union of India,
Bhagwanti v. Union of India,
AIR 1989 SC 2088 [
LNIND 1989 SC 825 ]:
(1989) 4 SCC 397 [
LNIND 1989 SC 825 ]; State of Kerala v.
Travancore Chemicals and Manufacturing Co., State of Kerala v. Travancore Chemicals and
Manufacturing Co.,
JT 1998 (7) SC 558 [
LNIND 1998 SC 1150 ]:
(1998) 8 SCC 188 [
LNIND 1998 SC 1150 ]:
AIR 1999 SC 230 [
LNIND 1998 SC 1150 ].
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 2
Guiding Rules
1. LANGUAGE OF THE STATUTE SHOULD BE READ AS IT IS
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.1 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.2 This rule like all other rules
is subject to exceptions. The rule stated above has been quoted with approval by the Supreme
Court.3
(a) Avoiding addition or substitution of words
As stated by the Privy Council: “We cannot aid the Legislature's defective phrasing of an Act, we
cannot add or mend and, by construction make up deficiencies which are left there”.4“It is
contrary to all rules of construction to read words into an Act unless it is absolutely necessary to
do so.”5 Similarly it is wrong and dangerous to proceed by substituting some other words for
words of the statute.6 Speaking briefly the court cannot reframe the legislation for the very good
reason that it has no power to legislate.7
In holding that
section 96(2) of the Motor Vehicles Act , 1939, is exhaustive of defences open to an
insurer, the Supreme Court refused to add word “also” after the words ‘on any of the following
grounds’ and observed: “This, the rules of interpretation, do not permit us to do unless the section
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as it stands is meaningless or of doubtful meaning.”8
Similarly, in construing Art. 31-A(i)(a) of the

Constitution and in holding that the ‘extinguishment or modification’ of any right in
any estate is a distinct concept from the ‘acquisition by the State of any estate or of any rights
therein’, the Supreme Court rejected the argument that the extinguishment or modification of any
such rights should only be in the process of the acquisition by the State of any estate or any rights
therein, as it necessitated reading the words ‘in the process of such acquisition’, which are not
there, after the words ‘extinguishment or modification of any such rights’.9
And, in construing section 14(f) of the U.P. Town Areas Act, 1914, which reads ‘A tax on persons
assessed according to their circumstances and property not exceeding such rate and subject to
such limitations and restrictions as may be prescribed’, the Supreme Court refused to read
residence within the town area as a necessary part of the condition for imposition of the said tax.10
S.K. Das, J. said : “To do so will be to read in clause (f) words which do not occur there”.11
Further in interpreting
section 6 (a) and
section 43 of the
Transfer of Property Act, 1882 , the Supreme Court refused to read a further
exception in section 43 excluding its operation in cases of transfer of spes successionis.
Venkatarama Aiyer, J. quoted with approval the observations of Lord Loreburn, L.C.: “We 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”.12
Again in dealing with

section 42(1) of the Motor Vehicles Act , 1939, which enacts that ‘No owner of a
transport vehicle shall use or permit the use of the vehicle in any public place save in accordance
with the conditions of a permit granted or countersigned’, it was held that the section did not
make it necessary that the owner of the vehicle himself should obtain the permit and that there
was no justification for reading the words ‘to him’ after the words ‘permit granted’.13
On the same principle the House of Lords refused to read the word ‘satisfied’ in section 4 of the
Matrimonial Causes Act, 1950 to mean ‘satisfied beyond reasonable doubt’.14
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In construing the expression ‘establishment under the Central Government’ the Supreme Court
refused to substitute ‘of’ for ‘under’ and held that an establishment not owned by the Central
Government would fall within the expression if there is deep and pervasive control of the Central
Government over the establishment.15 In construing Part I of the first Schedule to the
High Court Judges (Conditions of Service) Act, 1954 , the Supreme Court strongly
disapproved the view of the Allahabad High Court which had substituted the words “more than
five years” for the words “not less than seven years” in para 2 of the Schedule.16
(b) Casus omissus
It is an application of the same 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.17 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.18
section 71 of the U.P. District Boards Act, 1922, provided that a Board may dismiss its secretary
by special resolution which in certain cases required sanction of Local Government, and section
90 conferred a power to suspend the secretary ‘pending inquiry into his conduct or pending the
orders of any authority whose sanction is necessary for his dismissal’. By U.P. Act 1 of 1933,
section 71 was amended 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, however, made in section 90 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.19 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 harmonise the various provisions of an Act passed by
the Legislature. But it is certainly not the duty of the court to stretch the word used by the
Legislature to fill in gaps or omissions in the provisions of an Act”.20
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 Provincial Small Cause Courts Act , 1882.21 S.R. Das, J. for the
Court observed: “Even when there is casus omissus, it is, as said by Lord Russel of Killowen, for
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others than the Courts to remedy the defect”.22
S. 52(3) and 68 of the Forest Act, 1927 as amended in Bihar provide for Confiscation of Vehicle
used in a forest offence and do not provide for release of the vehicle on payment of fine. The
vehicle could be released only when the offence is compounded and compensation money and full
value of the vehicle is paid. It was, therefore, not possible to read a power to levy a fine in lieu of
confiscation and release the vehicle.23
A similar example is furnished by an English Statute, the Agricultural Holdings Act, 1948. The
Act in section 23, which applied to a tenancy from year to year, provided that notice to quit shall
be invalid if it purported to terminate the tenancy before the expiration of twelve months from the
end of the then current year of tenancy. section 2(1) applied the same provision to cases where
land was let for an interest less than a tenancy from year to year and by section 3(1) provision was
made that a tenancy for a term of two years or more was to continue after expiration of the term as
a tenancy from year to year. These provisions of the Act, decided the Court of Appeal, did not
cover the case of a tenancy for eighteen months which terminated on expiry of the term without a
quit notice.24 The Act so interpreted, applied to tenancies for two or over two years, from year to
year and under one year, but not to those between one and two years. There was no apparent
reason why they should not have been included by the Legislature. Devlin, L.J. pointing out that
this was apparently casus omissus, observed: “The court will always allow the intention of a
statute to override the defects of wording but the court's ability to do so is limited by recognised
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 casus 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”.25
An omission by the Legislature to amend a related provision presents great difficulties of

construction. This is illustrated by three cases namely Basavanatappa v. Gangadhar Naryana
Dharwadkar, 26 P.K. Unn v. Nirmala Industries, 27 and
Dadi Jagannadham v. Jammulu Ramulu, 28. All these cases relate to the construction
of Rule 89 of Order 21 of the

Code of Civil Procedure after the amendment of
Article 127 of the Limitation Act, 1963 by Act 104 of 1976. Rule 89 of Order 21
provides that if any person, claiming an interest in the property sold in execution of a decree,
applies to have the execution sale set aside and deposits within thirty days from the date of the
sale, five percent of the purchase money for payment to the purchaser and the amount payable to
the decreeholder for recovery of which the sale was held, ‘the court shall make an order setting
aside the sale’. The period of limitation for applying under Rule 89 for setting aside the sale was
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also thirty days under

Article 127 of the Limitation Act, 1963 before its amendment by Act 104 of 1976 by
which this period of limitation was enlarged from thirty days to sixty days. Parliament, however,
omitted to make corresponding amendment in Rule 89 of Order 21 to enlarge the period for
making the deposit from thirty days to sixty days. The object and reasons of the Bill which
became Act 104 of 1976 showed that the period was enlarged from thirty days to sixty days as the
period of thirty days was considered to be too short for making the deposit often causing hardship.
Having regard to this object a two judge bench of the Supreme Court in Dharwadkar held that not
only the period of limitation for making an application for setting aside the sale was extended
from thirty to sixty days but the period for making the deposit under R. 89 was also impliedly
extended from thirty days to sixty days. But this view was not accepted by a three judge bench in
Nirmala Industries on the reasoning that the omission to amend Rule 89 by Parliament could not
be supplied by the court. Later a five judge bench in Ramulu overruled Nirmala Industries.
Although accepting that the court cannot make up deficiencies left by the legislature, it was
observed that the court must try to harmonize the conflicting provisions. On this reasoning it was
held that Rule 89 does not provide any limitation and it really directs that the court will have no
discretion and will have to set aside the sale if the deposit is made within thirty days and that it
does not prevent deposit being made later. Thus in view of this decision if an application for
setting aside the sale is made within sixty days and deposit is also made within sixty days though
beyond thirty days, the court will have a discretion to set aside the sale.
Before leaving the topic a reference is necessary to certain observations of Denning, L.J. which
have been cited with approval by the Supreme Court.29 Denning, L.J. said: “When a defect
appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament and then he must supplement the written
words so as to give ‘force and life’ to the intention of the Legislature. A judge should ask himself
the question how, if the makers of the Act had themselves come across this ruck in the texture of
it, they would have straightened it out He must then do as they would have done. A judge must
not alter the material of which the Act is woven, but he can and should iron out the creases”.30 In
a subsequent case he restated the same thing in a new form: “We sit here to find out the intention
of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and
making sense of the enactment than by opening it up to destructive analysis”.31 Both these
observation of Denning, L.J. came up for severe criticism at the hands of the House of Lords and
were plainly disapproved.32“It appears to me”, said Lord Simonds, “to be a naked usurpation of
the legislative function under the thin disguise of interpretation”.33 Lord Morton (with whom Lord
Goddard entirely agreed) observed: “These heroics are out of place”34 and pointed out Lord
Tucker: “Your Lordships would be acting in a legislative rather than a judicial capacity if the
view put forward by Denning, L.J., were to prevail”.35 It does not seem, however, reasonable to
infer that Lord Denning was intending to lay down a rule permitting usurpation of legislative
function by courts and it is more proper to infer that he was emphasising in somewhat
unconventional manner that when object or policy of a statute can be ascertained, imprecision in
its language should not be readily allowed in the way of adopting a reasonable construction which
avoids absurdities and incongruities and carries out the object or policy.36 The Denning approach
allows a gap to be filled in somewhat more freely.37 Thus the difference, if at all, is regarding the
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extent of the limited creative role which the judges can play.38 In other words, the difference is as
to how much one can infer by necessary implication to fill in a prima facie gap.39
The Supreme Court in Bangalore Water Supply v. A. Rajappa 40
approved the rule of construction stated by Denning, L.J. while dealing with the definition of
‘Industry’ in the
Industrial Disputes Act, 1947 . The definition is so general and ambiguous that Beg,
C.J.I., said that the situation called for “some judicial heroics to cope with the difficulties
raised”.41 K. Iyer, J., who delivered the leading majority judgment in that case referred with
approbation42 the passage extracted above from the judgment of Denning, L.J. in Seaford Court
Estates Ltd. v. Asher .43 But in the same continuation he also cited a passage from the speech of
Lord Simonds in the case of Magor & St. Mellons R.D.C. v. Newport Corporation
44 as if it also formed a part of the judgment of Denning, L.J. This passage reads : “The duty of
the court is to interpret the words that the Legislature has used. Those words may be ambiguous,
but, even if they are, the power and duty of the court to travel outside them on a voyage of
discovery are strictly limited”.45 As earlier noticed Lord Simonds and other Law Lords in Magor
& St. Mellon's case were highly critical of the views of Denning, L.J. However, as submitted
above, the criticism is more because of the unconventional manner in which the rule of
construction was stated by him.46
In this connection it is pertinent to remember that although a court cannot supply a real casus
omissus it is equally clear that it should not so interpret a statute as to create a casus omissus when
there is really none.47
section 35(2) of the Foreign Exchange Regulation Act, 1973 and
section 104(2) of the Customs Act, 1962 , which are identically worded, provide that
every person arrested by any authorised officer of the Enforcement or Customs, as the case may
be, if not released on bail by the officer arresting him ‘shall, without unnecessary delay, be taken
to a magistrate’. These Acts do not contain any provision empowering the magistrate to authorise
further detention. The corresponding provision in the
Code of Criminal Procedure is section 167(1). section 167(2) empowers the
magistrate to authorise detention of ‘an accused person’. In holding that section 167(2) of the
Code was applicable to authorise detention of a person produced before a magistrate under
section 35(2) of the Foreign Exchange Regulation Act or
section 167(2) of the Customs Act, 1962 , the Supreme Court observed that otherwise
the mandatory direction to take the person arrested, when not released on bail to a magistrate
under these Special Acts “will become purposeless and meaningless and to say that the courts
even in the event of refusal of bail have no choice but to set the person arrested at liberty by
folding their hands as a helpless spectator in the face of what is termed as ‘legislative casus
omissus'$K or legal flaw or lacuna, it will become utterly illogical and absurd.”48 The Andhra
Pradesh Building (Lease Rent and Eviction) Control Act, 1960 classifies buildings into two
categories: I. residential, II. non-residential. There is no separate category of a building which has
both residential and non-residential portions and is let out under a composite lease. But to avoid
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the lacuna that the landlord of such a building is left remedyless, it has been held that such a
building is to be categorised either a residential or a non-residential building having regard to its
nature, accommodation dominant purpose of the lease, primary use of the building and other
relevant circumstances.49
It has been recognised by the Supreme Court50 that if a matter, provision for which may have been
desirable, has not been really provided for by the Legislature, the omission cannot be called a
defect of the nature which can be cured or supplied by recourse to the mode of construction
advocated by Denning, L.J., in the case of Seaford Court Estate Ltd.51 As recently
observed by a
constitution bench “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.”52
(c) Avoiding rejection of words
As on the one hand, it is not permissible to add words or to fill in a gap or lacuna, on the other
hand effort should be made to give meaning to each and every word used by the Legislature. “It is
not a sound principle of construction”, said Patanjali Shastry, C.J.I., “to brush aside words in a
statute as being inapposite surplusage, if they can have appropriate application in circumstances
conceivably within the contemplation of the statute”.53 And as pointed out by Jagannadhadas, J.:
“It is incumbent on the court to avoid a construction, if reasonably permissible on the language,
which would render a part of the statute devoid of any meaning or application”.54“In the
interpretation of statutes”, observed Das Gupta, J.: “the courts always presume that the
Legislature inserted every part thereof for a purpose and the legislative intention is that every part
of the statute should have effect”.55 The Legislature is deemed not to waste its words or to say
anything in vain56 and a construction which attributes redundancy to the Legislature will not be
accepted except for compelling reasons.57
The application of this rule can be illustrated by a decision of the House of Lords58 relating to the
Gaming Act of 1845. The statute in section 18 provides: ‘All contracts or agreements—by way of
gaming or wagering, shall be null and void, and no suit shall be brought or maintained in any
court of law and equity for recovering any sum of money or valuable thing alleged to be won
upon any wager’.59 The defendant in that case as a result of betting with the plaintiffs lost a
certain sum and in consideration of the plaintiffs refraining from following up the procedure with
Tattersall's Committee which would have led to the defendant being then and there posted as a
defaulter, promised to pay the said sum in instalments to the plaintiffs. On the defendant failing to
pay, the plaintiffs brought the suit for recovery of the sum basing their claim on this fresh
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agreement as distinct from the betting transaction. The House of Lords overruling the Court of
Appeal held that although the agreement contained a new promise for good consideration, which
did not fall within the first limb of section 18, nevertheless, it was a promise to pay money ‘won
upon a wager’ and was not enforceable under the second limb of section 18.60 Countering the
argument that the second limb of section 18 beginning with ‘and no suit shall be filed’ was only a
procedural counterpart of the first and was applicable only to suits brought on wagering contracts
declared by first limb to be void, Viscount Simon observed: “Though a parliamentary enactment
(like parliamentary eloquence) is capable of saying the same thing twice over without adding
anything to what has already been said once, this repetition in the case of any Act of Parliament is
not to be assumed. When the Legislature enacts a particular phrase in a statute the presumption is
that it is saying something which has not been said immediately before. The rule that a meaning
should, if possible, be given to every word in the statute implies that, unless there is good reason
to the contrary, the words add something which would not be there if the words were left out”.61
Similarly, in construing section 6(4) of the Bombay Land Requisition Act, 1948, which provides
that ‘the State Government may requisition the premises for the purpose of a State or any other
public purpose’, the Supreme Court rejected the argument that the words ‘any other public
purpose’ are restricted to a public purpose which is also a purpose of the State and said: “If the
words ‘any other public purpose’ in the statute in question have been used only to mean a State
purpose, they would become mere surplusage; Court should lean against such a construction as
far as possible”.62
On the same principle it was held that the words ‘but excluding other village officers’ were not
mere surplusage but carved out an exclusion from the genus of ‘revenue officers’ in
section 123(7)(f) of the Representation of the People Act, 1951 , which before
amendment in 1958 read thus; revenue officers including village accountants, such as, Patwaris,
Lekhpala, Talatis, Karnams and the like but excluding other village officers”.63
In construing section 14(1)(d) and (f) of the U.P. Town Areas Act, 1914, the Supreme Court held
that taxes under these two items, i.e., a tax on trade, calling and profession, and a tax on
circumstances and property are in some respects overlapping otherwise the proviso to cl.(f)—
‘Provided that such person is not already assessed under cls. (a) to (e)’—will become
meaningless.64
And in interpreting the proviso in section 19 of the Hindu Adoption and Maintenance Act, 1956,
which provides for maintenance to a Hindu wife ‘from the estate of her husband or her father or
mother’, it was held that the provision conferred a personal right against the father or mother and
the words ‘the estate of’ before the words ‘her husband’ are not to be read before the words ‘her
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father or mother’ for the right to maintenance of a widowed daughter from the estate of her
parents specifically covered by section 21(VI) read with section 22(2) would become otiose.65
(d) Departure from the rule
In discharging its interpretative function, the court can correct obvious drafting errors and so in
suitable cases “the court will add words, or omit words or substitute words”.66 But “before
interpreting a statute in this way the Court must be abundantly sure of three matters: (1) the
intended purpose of the statute or provision in question, (2) that by inadvertence the draftsman
and Parliament failed to give effect to that purpose in the provision in question; and (3) the
substance of the provision Parliament would have made, although not necessarily the precise
words Parliament would have used, had the error in the Bill been noticed.”67 Sometimes even
when these conditions are satisfied, the court may find itself inhibited from interpreting the
statutory provision in accordance with underlying intention of Parliament, e.g. when the alteration
in language is too far reaching or too big or when the subject matter calls for strict interpretation
such as a penal provision.68
(i) Addition of words when permissible.—As already noticed it is not allowable to read words
in a statute which are not there, but “where the alternative lies between either supplying by
implication words which appear to have been accidentally omitted, or adopting a
construction which deprives certain existing words of all meaning, it is permissible to
supply the words”.69 A departure from the rule of literal construction may be legitimate so
as to avoid any part of the statute becoming meaningless.70 Words may also be read to give
effect to the intention of the Legislature which is apparent from the Act read as a whole.71
Application of the mischief rule or purposive construction may also enable reading of
words by implication when there is no doubt about the purpose which the Parliament
intended to achieve.72 But before any words are read to repair an omission in the Act, it
should be possible to state with certainty that these or similar words would have been
inserted by the draftsman and approved by Parliament had their attention been drawn to
the omission before the Bill passed into law.73
In construing section 5(2) of the U.P. Muslims Waqfs Act, 1936, which provides,
‘Mutwalli of a waqf or any person interested in a Waqf’ or a Central Board may bring a
suit in a Civil Court of competent jurisdiction for a declaration that any transaction
held by the Commissioner of Waqfs to be a Waqf is not a Waqf, the Supreme Court
interpreted the words ‘ any person interested in a Waqf’ as meaning ‘ any person
interested in what is held to be a waqf’.74 Gajendragadkar, J. speaking for the court
observed: “It is well settled that in construing the provisions of a statute courts should
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be slow to adopt a construction which tends to make any part of the statute meaningless
or ineffective”,75 and “where literal meaning of the words used in a statutory provision
would manifestly defeat its object by making a part of it meaningless and ineffective, it
is legitimate and even necessary to adopt the rule of liberal construction so as to give
meaning to all parts of the provision and to make the whole of it effective and
operative”.76
Similarly the words “any debt due before the commencement of this Act to any
banking company” as occurring in section 4(1) of the Kerala Agriculturists Debt Relief
Act, 1970, were construed by the Supreme Court to mean “any debt due at and before
the commencement of this Act”.77 Chandrachud, C.J.I., delivering the judgment of the
court said: “We would have normally hesitated to fashion the clause by so restructuring
it but we see no escape from that course since that is the only rational manner by which
we can give meaning and content to it, so as to further the object of the Act”.78
In entry 10 Schedule 1 of the Gujarat Gram and Nagar Panchayats Taxes and Fees
Rules 1964, one of the items mentioned is ‘Grog Minerals'. As there is no such mineral
as Grog Mineral whereas Grog and Minerals are known to the technical world the
expression ‘Grog Minerals’ was read to mean ‘Grog and Minerals’ instead of rejecting
it as meaningless.79
On the same principle, it was pointed out that the words ‘any party to an arbitration
agreement’ occurring in section 33 of the Indian
Arbitration Act , 1940, must be taken to mean a person ‘who is alleged
to be’ a party to an arbitration agreement80 and the words “where any penalty is
imposed” in Rule 14(1) of the Railway Servants (Discipline and Appeal) Rules, 1968,
were construed to mean where any “penalty is imposable”.81
Similarly the words ‘be reckoned’ which were inadvertently omitted in section
46(7)(iv) of the
Indian Income-tax Act, 1922 , were supplied by construction otherwise
the provision would have become meaningless.82
Clauses (ii) and (iii) of section 10(3)(a) of the Tamil Nadu Buildings (Lease and Rent
Control) Act, 1960 provide the grounds on which the landlord can obtain an order
directing the tenant to put him in possession in respect of a non-residential building but
clause (ii) alone contains the words ‘if the landlord required it for his own use or for
the use of any member of his family’ making the requirement as a precondition for
obtaining possession. But as the intention of the Legislature was not in doubt from the
context and the Act read as a whole the words mentioned above were also read in
clause (iii).83
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section 17 of the Consumer Protection Act, 1986 constitutes a State

Commission for each State but there is no provision in the Act limiting their territorial
jurisdiction. But as the intention of Parliament could not have been that dispute arising
in one State could be taken cognizance of by the State Commission of another State,
applying a purposive construction, limitations of territorial jurisdiction on the lines
provided in section 17 with reference to District Forums with suitable modifications
were read into section 17.84
The Council of European Communities directed that the transfer of an undertaking,

business or part of a business shall not in itself constitute grounds for dismissal of the
employees by the transferor or the transferee. Regulations were made in the United
Kingdom under the European Communities Act, 1972 to give effect to the aforesaid
directive. The relevant regulations in terms gave protection to a ‘person employed
immediately before the transfer’. In a case before the House of Lords85 the transferor
dismissed the employees at 3.30 p.m. with immediate effect whereas the transfer was
effected at 4.30 p.m. on the same date. It was contended that as the employees were
dismissed before the transfer in point of time, they were not persons employed
immediately before the transfer and were not protected by the regulations. Negativing
this contention, the House of Lords held86 that the legislative history made it clear that
the regulations were made to give effect to the directive of the Council of European
Communities and applying a purposive construction the words a person ‘employed
immediately before the transfer’ should be interpreted and read as including ‘a person
who would have been so employed if he had not been unfairly dismissed before the
transfer for a reason connected with the transfer’.
When a choice has to be made out of two constructions, both of which require reading
of some additional wrds, the court will naturally prefer that which is more in
consonance with reason or justice.87 In construing section 423(i)(a) of the
Code of Criminal Procedure , 1898, which reads: ‘In an appeal from
an order of acquittal, reverse such order and find him guilty and pass sentence on him
according to law’, the question was ‘find the accused person guilty of what’ Two
constructions were suggested, one that the sub-section authorises to find the accused
person guilty ‘of such offence as has been charged and of which he has been acquitted’
and the other that the sub-section authorises to find him guilty ‘of the offence
disclosed’. The Supreme Court adopted the latter construction which was more in
consonance with reason or justice.88
It may also be permissible to read words such as, ‘subject to’ or ‘not-withstanding
anything’, in order to reconcile two apparently inconsistent provisions.89“The omission
to make such cross references as may be required to reconcile two textually
inconsistent provisions is a common defect of draftsmanship”.90 In such cases,
therefore, the cross references may be read by implication to remove the
inconsistency.91
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(ii) Rejection of words when permissible.—At times the intention of the Legislature is clear
but the unskilfulness of the draftsman in introducing certain words in the statute results in
apparent ineffectiveness of the language. Since courts strongly lean against reducing a
statute to a futility, it is permissible in such cases to reject the surplus words to make the
statute effective and workable.92
An example of the application of this principle is furnished by a Privy Council

decision93 in an appeal from Natal. The Colonial Ordinance there in question provided:
“Any natural born subject of Great Britain and Ireland resident within this district may
exercise all and singular the rights which such natural born subject could or might
exercise according to the laws and customs of England in regard to the disposal by last
will or testament of property, both real and personal, situated in the district, to all
intents and purposes ‘as if such natural born subject resided in England”. The intention
of the Legislature was plain from the title and preamble that the Ordinance was passed
to enable the British subjects resident in Natal, where Roman Dutch law was being
administered, to make bequests according to English law. The difficulty in giving
effect to this intention was created by the last nine words. The Supreme Court of Natal
held that although the object of the statute was clear, the language used was entirely
ineffective in that a resident in the colony could only make a bequest ‘as if he resided
in England’, and the law of England referred him back to Roman Dutch law of Natal as
the lex situs or lex domicilli. The Privy Council reversing this judgment held that as the
broad intention of the Legislature was not in doubt, the last nine words could be
rejected as immaterial to make the statute effective.94 It is “a very serious matter”,
stated Lord Hobhouse, “to hold that when the main object of the statute is clear it shall
be reduced to a nullity by the draftsman's unskilfulness or ignorance of law”.95 And he
proceeded to add: “It may be necessary for a court of justice to come to such a
conclusion, but their Lordships hold that nothing can justify it except necessity or the
absolute intractability of the language used”.96
The above mentioned Privy Council decision97 was recently followed by the House of
Lords98 in construing para 3A of schedule 3 to the Local Government (Miscellaneous
Provisions) Act, 1982. It is an offence under the schedule to use premises as sex
encounter establishment without a licence. Para 1 of schedule 3 prevents the grant of a
licence for any sex establishment which would otherwise amount to public indecency
offence. The appellant before the House of Lords was prosecuted for using the relevant
premises without a licence as sex encounter establishment as described in para 3A(c).
Para 3A defines sex encounter establishment. Clauses (a), (b) and (c) of para 3A refer
to live performance, services or entertainment for sexual stimulation of customers. But
each of these clauses uses the phrase ‘which is not unlawful’. Because of the use of
these words it was contended by the appellant that the prosecution must prove
affirmatively that the activities at the premises were not so indecent in character as to
amount to an offence at common law. This contention was negatived and the words
‘which is not unlawful’ as used in clauses (a), (b) and (c) were rejected as surplusage.
It was pointed out that by use of the said words the draftsman and the promoters of the
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legislation wished to emphasise that the grant of licences for sex encounter
establishment was not intended to give legal authority for activities which would
otherwise amount to public indecency offence; but for this purpose the words were
wholly otiose because para 1 clearly prevented the grant of a licence having any such
effect. The literal reading of the words as contended by the appellant would have
frustrated substantially the purpose of the enactment and would have led to the
absurdity of supposing that the intention of the legislation was to subject to licensing
control only those establishments conducted in the least offensive way and to leave
those which pander more outrageously to the taste of voyeur immune from any control
or legal restraint. The House of Lords, therefore, held that the words ‘which is not
unlawful’ should be treated as surplusage and as having been introduced by
incompetent draftsmanship.1
(iii)Treating words or provisions as superfluous.—The Legislature sometimes uses

superfluous words or provision or even tautologic expressions because of ignorance of law
or as a matter of abundant caution. “It is not so very uncommon in Act of Parliament”,
said Lord Macnaghtan, “to find special exemptions which are already covered by a general
exemption”.2“Such specific exemptions,” stated Lord Herschell in the same case, “are
often introduced ex majori cautela to quiet the fears of those whose interests are engaged
or sympathies aroused in favour of some particular institution, and who are apprehensive
that it may not be held to fall within a general exemption”.3 And to the similar effect, are
the observations of Lord Reid: “It is not uncommon to find the Legislature inserting
superfluous provision under the influence of what may be abundant caution”.4 Such
superfluous provisions cannot lay the foundation for an argument resting on the maxim,
‘expressio uniusest exclusio alterious'$K and the maxim5 is inapplicable in such cases.
However, insertion of any superfluous provision always gives rise to difficulty of
construction6 as courts start with a presumption that every portion of a statute has some
purpose and its presence was necessary to effectuate that purpose.7 It is only when other
provisions of an Act give out that a provision in the Act owes its origin to a confusion of
ideas or to a misunderstanding of the law or to abundant caution, the court reaches the
conclusion that that provision is superfluous.8
2. THE RULE OF LITERAL CONSTRUCTION
(a) Natural and grammatical meaning
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
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contrary.9“The true way”, according to Lord Brougham is, “to take the words as the Legislature
have given them, and to take the meaning which the words given naturally imply, unless where
the construction of those words is, either by the preamble or by the context of the words in
question, controlled or altered”;10 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 a
whole, the context directs us to do so”.11 In an oft-quoted passage, Lord Wensleydale stated the
rule thus : “In construing wills 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”.12 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”.13
Viscount Simon, L.C., said: “The golden rule is that the words of a statute must prima facie be
given their ordinary meaning”.14 Natural and ordinary meaning of words should not be departed
from “unless it can be shown that the legal context in which the words are used requires a
different meaning”. Such a meaning cannot be departed from by the judges “in the light of their
own views as to policy” although they can “adopt a purposive interpretation if they can find in the
statute read as a whole or in material to which they are permitted by law to refer as aids to
interpretation an expression of Parliament's purpose or policy”.15 For a modern statement of the
rule one may refer to the speech of Lord Simon of Glaisdale in a recent 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 context, without omission or addition. Of course, 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”.16 The rules stated above17 have been quoted with
approval by the Supreme Court.18
In the case19 from which the last mentioned quotation is taken, the question related to section
14(1) of the Immigration Act, 1971, which provides that ‘a person who has a limited leave under
this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any
variation of the leave or against any refusal to vary it’. The words ‘a person who has a limited
leave’ were construed not to include a person “who has had” such limited leave and it was held
that the section applied only to a person who at the time he lodged his appeal was lawfully in the
United Kingdom that is in whose case leave had not expired at the time of lodgment of appeal.
In dealing with order section 14(1), rule 16 of the

Code of Civil Procedure, 1908 , the Supreme Court applied the rule of literal
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construction and held that the said provision contemplates actual transfer of a decree by an
assignment in writing after the decree is passed. S.R. Das, J., referring to the rule under discussion
said: “The cardinal rule of construction of statutes 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”.20
In construing section 3 which laid down the grounds on which a theka tenant could be ejected and
section 5(1) which prescribed that ‘a landlord wishing to eject a theka tenant on one or more of
the grounds specified in section 3 shall apply to the controller,’ the Supreme Court held that these
provisions of the Calcutta Theka Tenancy Act, 1949, did not apply to those cases where a decree
had already been obtained. Rejecting the argument based on the mischief rule in Heydon's case,
Gajendragadkar, J., observed: “The words used in the material provisions of the statute must be
interpreted in their plain grammatical meaning and it is only when such words are capable of two
constructions that the question of giving effect to the policy or object of the Act can legitimately
arise”.21 Similarly, section 28 of the same Act which was omitted by
Amending Act 6 of 1953 was held to be inapplicable even to pending proceedings on
a grammatical construction of the
Amending Act . Das Gupta, J., referring to the rules of construction said: “The
intention of the Legislature has always to be gathered by words used by it, giving to the words
their plain, normal, grammatical meaning”;22 and proceeding further he said: “If the strict
grammatical interpretation gives rise to an absurdity or inconsistency such interpretation should
be discarded and an interpretation which will give effect to the purpose the Legislature may
reasonably be considered to have had, will be put on the words, if necessary even by modification
of the language used”.23
In interpreting
section 6 of the Prevention of Corruption Act , 1947, the Supreme Court held that
sanction is not necessary for taking cognizance of the offences referred to in that section if the
accused has ceased to be a public servant on the date when the Court is called upon to take
cognizance of the offences. The Court rejected the construction that the words ‘who is
employed—and is not removable’ as they occur in clauses (a) and (b) of section (1) mean ‘who
was employed—and was not removable’, as also the construction that the words ‘competent to
remove him from office’ in clause (c) mean ‘would have been competent to remove him from his
office’. Imam, J., pointed out: “In construing the provisions of a statute it is essential for a court to
give effect to the natural meaning of the words used therein, if those words are clear enough”.24
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And in speaking of construction of the Indian

Limitation Act , 1908, Sir Dinshah Mulla stated: “The strict grammatical meaning of
the words is, their Lordships think, the only safe guide”.25 This principle has been reaffirmed by
the Supreme Court.26
In construing
section 6(a) of the Payment of Bonus Act, 1965 , the Supreme Court observed that the
words “depreciation admissible in accordance with the provisions of sub-section (1)of section 32;
of the
Income-tax Act ” have to be given their natural meaning and these words could not
be read as “depreciation allowed by the Income-tax Officer in making assessment on the
employer”. It was, therefore, held that it was for the Industrial Tribunal to determine what was the
depreciation admissible in accordance with sub-section (1)of
section 32 of the Income-tax Act and the Tribunal could not just accept the amount
allowed by the Income-tax Officer as depreciation under that section. It was further held that the
finding of the Income-tax Officer was not even admissible before the Tribunal for purposes of the
Bonus Act.27
By section 11 of the Assisted Schools and Training College (Supple-mentary Provisions) Act,
1960 (Ceylon), the Minister of Education is empowered if he is satisfied that an unaided school
“is being administered in contravention of any of the provisions of the Act etc.” to declare that
such a school shall cease to be an unaided school and that the Director of Education shall be its
manager. In holding that the Minister can only take action if the school at the time of the making
of the order is being carried on in contravention of the Act and not merely on the ground that a
breach of the Act was committed in the past, the Privy Council (Lord Pearce) pointed out : “The
present tense is clear. It would have been easy to say ‘has been administered’ or ‘in the
administration of the school any breach of any of the provisions of the Act has been committed’,
if such was the intention, but for reasons which commonsense may easily supply, it was enacted
that the Minister should concern himself with the present conduct of the school not the past, when
making the order”.28
Sub-section (7) of
section 6 of the Press Council Act, 1978 provides: ‘A retiring member shall be
eligible for renomination for not more than one term.’ The Supreme Court applied the literal and
grammatical meaning of these words and held that the provision applied to a member “just
retiring” and not to a retired member and that a retired member who had held office for two terms
sometime in the past is not debarred from being nominated again.29 In holding so Lahoti, J.,
observed: “Legislature chooses appropriate words to express what it intends, and therefore, must
be attributed with such intention as is conveyed by the words employed so long as this does not
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result in absurdity or anomaly or unless material—intrinsic or external—is available to permit a

departure from the rule.”30
According to a two judge bench of the Supreme Court departure from the literal rule should be
done only in very rare cases and ordinarily there should be judicial restraint in this connection.31
“To adhere as closely as possible to the literal meaning of the words used”, is, as stated by Lord
Cranworth (when Lord Justice) a “cardinal rule,” from which if we depart, “we launch into a sea
of difficulties which it is not easy to fathom”.32 This statement over-emphasizes the role of literal
interpretation, but it is interesting to notice that earlier some of the leading controversies were
resolved in favour of literal construction. The law that a minor's agreement is void was settled by
the Privy Council on a literal construction of section 11 and other related provisions of the
Indian Contract Act, 1872 ,33 and so also the question whether money paid under
mistake of law can be recovered back under section 72 of the same Act was resolved by giving to
the word ‘mistake’, in that section, its ordinary meaning as including even a mistake of law.34
Again, the difference of opinion between the Bombay High Court and other High Courts on the
construction of
section 80 of the Code of Civil Procedure, 1908 as to the necessity of notice under
that section in a suit for injunction was settled by the Privy Council in approving the view, which
was taken by reading the section in its literal sense, that a notice was necessary.35 Further, the
controversy whether a variation made by the appellate decree of the High Court in favour of an
intending appellant to the Supreme Court is a decree of affirmance within
Art. 133(1) of the Constitution was resolved by the Supreme Court by “reading the
clause as a whole and giving the material words their plain grammatical meaning”. It was held
that if the High Court varies the decree under appeal, the appellate decree is not a decree of
affirmance and it is immaterial whether the variation is in favour of the intending appellant or
against him.36 Similarly, the divergence of opinion as to the starting point of limitation under Art.
31 of the Indian
Limitation Act , 1908 which arose on the construction of the words ‘when the goods
ought to have been delivered’, was settled by the Supreme Court by adopting “their strict
grammatical meaning”. The view taken by some of the High Courts that time begins to run from
the date of refusal by the railway to deliver the goods was overruled.37
A departure from the rule of literal construction outside the recognised limits in the guise of
liberal or strict construction leads to unwarranted expansion or restriction of the meaning of words
and gives rise to serious errors. In construing M.P. Abolition of Proprietary Rights Act, 1950,
which in clause ‘(g)’ of section 2 defines ‘Home-farm’ as meaning ‘land recorded as Sir and
Khudkast in the name of a proprietor in the annual papers for the year 1948-49’, the Nagpur High
Court held that this definition should be construed liberally and that land, though not recorded as
Khudkast of the proprietor in the annual papers of 1948-49 but which ought to have been recorded
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as such, was within this definition. This decision was overruled by the Supreme Court by
interpreting the said definition section in its natural and ordinary meaning and consequently
holding that the basis for treating a particular land as home-farm under the Act “was the record
and not the fact of actual cultivation”. It was pointed out: “There is no ambiguity about the
definition of ‘home-farm’ and so the question of strict or liberal construction does not arise”.38
Similarly, the words ‘khas possession’ occurring in sections 2(k) and 6 of the Bihar Land Reforms
Act, 1950, were construed by the Patna High Court as embracing even a mere right to possess;
and this view was overruled by the Supreme Court again showing the importance of literal
construction.39 And, in interpreting section 26(2); of the C.P. and Berar Sales Tax Act, 1947,
which reads ‘no prosecution or suit shall be instituted against any person in respect of anything
done or intended to be done under this Act unless the suit or prosecution has been instituted
within three months from the date of the Act complained of’, the view of the Madhya Pradesh
High Court was that the words ‘any person’ are restricted to Government servants. This departure
from literal construction was also overruled by the Supreme Court.40 Again “judicial activism in
the reverse gear”, by restricting the wide words ‘any currency note or banknote’ used in
section 489A of the Penal Code to Indian Currency notes and bank notes, shown by
the Kerala High Court was overruled by the Supreme Court holding that the words were large
enough in amplitude to cover currency notes and bank notes of all countries.41 Further in
construing
Article 171 of the Constitution and holding that a person elected from graduates
constituency need not himself be a graduate as the words of the article do not in terms so provide,
the Supreme Court overruled the contrary opinion of the Madras High Court and stressed the
importance of the literal construction.42
(b) Explanation of the rule
In the statement of the rule “the epithets ‘natural’, ‘ordinary’, ‘literal’, ‘grammatical’ and
‘popular’ are employed almost interchangeably”,43 to convey the same idea. The word ‘primary’
is also used in the same sense.44 When it is said that words are to be understood first in their
natural, ordinary or popular sense, what is meant is that the words must be ascribed that natural,
ordinary or popular meaning which they have in relation to the subject-matter with reference to
which and the context in which they have been used in the statute. Brett, M.R. called it a “cardinal
rule” that “Whenever you have to construe a statute or document you do not construe it according
to the mere ordinary general meaning of the words, but according to the ordinary meaning of the
words as applied to the subject-matter with regard to which they are used”.45“No word”, says
Professor H.A. Smith “has an absolute meaning, for no words can be defined in vacuo, or without
reference to some context”.46 According to Sutherland there is a “basic fallacy” in saying “that
words have meaning in and of themselves ”,47 and “reference to the abstract meaning of words”,
states Craies, “if there be any such thing, is of little value in interpreting statutes”.48 In the words
of Justice Holmes: “A word is not a crystal transparent and unchanged; it is the skin of a living
thought and may vary greatly in colour and content according to the circumstances and the time in
which it is used.”49 Shorn of the context, the words by themselves are “slippery customers”.50
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Therefore, in determining the meaning of any word or phrase in a statute the first question to be
asked is—” What is the natural or ordinary meaning of that word or phrase in its context in the
statute? It is only when that meaning leads to some result which cannot reasonably be supposed to
have been the intention of the Legislature, that it is proper to look for some other possible
meaning of the word or phrase”.51 The context, as already seen, in the construction of statutes,
means the statute as a whole, the previous state of the law, other statutes in pari materia, the
general scope of the statute and the mischief that it was intended to remedy.52 The above
discussion relating to the meaning of a word or phrase in the construction of a statute was quoted
by Arijit Pasayat, J., (from 8th Edition, pp. 80, 81 of this Book) and was said to furnish “an
appropriate guide.”53
It is often said that a word, apart from having a natural, ordinary or popular meaning (including
other synonyms i.e. literal, grammatical and primary), may have a secondary meaning which is
less common e.g. technical or scientific meaning. But once it is accepted that natural, ordinary or
popular meaning of a word, in the process of interpreting a statute, is derived from its context, the
distinction drawn between different meanings loses much of its relevance.54 In construing the
word ‘coal’ in a Sales Tax Act, the Supreme Court ruled in favour of the popular meaning by
applying the test: “What would be the meaning which persons dealing with coal and consumers
purchasing it as fuel would give to that word”.55 On this test coal was held to include charcoal and
not restricted to coal obtained as a mineral. In contrast, it was said that in the Colliery Control
Order, the word ‘coal’ will be understood in its technical or scientific sense and will be
interpreted as a mineral product and will, therefore, not include charcoal. In the words of the
court: “The Colliery Control Order deals with collieries and obviously, therefore, the term coal
there is used as a mineral product”.56 It can quite legitimately be said that the natural, ordinary or
popular meaning of the term ‘coal’ would be coal used as fuel in the context of a Sales Tax Act,
and coal as a mineral product in the context of the Colliery Control Order. In a recent case57 the
question before the Supreme Court related to the construction of the word ‘marble’ as used in
item 62, Appendix 2, Part B of the Import and Export Policy (April 1988-March 1991). Chapter
25 of Schedule 1, Appendix 1-B of the ITC schedule mentions mineral products which can be
imported under the open General Licence. One of the items in Sch. 1 is item 25 which reads :
‘Marble, travertine, ecoussine and other calcareous monumental or building stone of an apparent
specific gravity of 2.5 or more’. Appendix 2, Part B of the Imports and Exports Policy, where the
word ‘marble’ alone figures in entry no. 62, enumerates the restricted items. In a generic sense
‘marble’ includes any calcareous rock which is sufficiently hard and coherent to take a good
polish and which can be cut into desired sizes free of cracks. But technically i.e. in petrological or
geological sense ‘marble’ is distinguished from other calcareous rocks by the fact that it is a
metamorphic rock formed from re-crystallisation of limestones and has a visibly crystallined
nature. Having regard to the context, specially the fact that in item 25 of ITC schedule other
calcareous rocks were mentioned along with marble whereas in item 62 of Import and Export
Policy marble alone was mentioned, the Supreme Court concluded: “The only natural meaning
that follows from this is that Entry 62 is confined only to marble as it is understood in a
petrological or geological sense.”58 Thus here the technical or scientific meaning was accepted as
the natural meaning in the context.
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In a case before the Supreme Court, the question was as to the meaning of the word ‘vegetables’
as it occurred in the C.P. and Berar Sales Tax Act, 1947 as amended by Act 16 of 1948, whether it
included betel leaves or not. Although the word in natural history and according to dictionary
meaning is comprehensive enough to include betel leaves, the Supreme Court held that “being a
word of everyday use it must be construed in its popular sense, meaning that sense which people
conversant with the subject-matter with which the statute is dealing would attribute to it” and so
the word was construed to denote those classes of vegetable matter which are grown in kitchen
gardens.59 It was, therefore, held that betel leaves60 and sugarcane61 were excluded from its
purview. Popular sense of a word as explained above is normally preferred as against scientific
meaning in construing entries of goods in a fiscal statute.62 Consumers' understanding of the
expressions used in legislation relating to them is also an imput in judicial construction.63 So in
construing entries of goods in Excise, Customs, Octroi or Sales Tax Acts resort should normally
be had not to the scientific or technical meaning but to their popular meaning viz. the meaning
attached to the expressions by those dealing in them.64 Applying the test of popular meaning it
was held while construing the Uttar Pradesh Sales Tax Act, 1948 that tooth powder is a ‘toilet
requisite”65 and powerloom cloth is not ‘cloth manufactured by the mills’.66 The popular meaning
in the context of a Sales Tax Act is that meaning which is popular in commercial circles for the
Act essentially, in its working, is concerned with dealers who are commercial men.67 Rice and
paddy were, therefore, held to be different commodities for purposes of the Punjab Sales Tax Act,
1969.68 Applying the same test, the word ‘textiles’ was construed to cover cotton/woollen dryer
felts.69 Construing in the popular sense the words ‘Livestock, that is to say all domestic animals
such as oxen, bulls, cows buffaloes, goats, sheep, horses etc.’, as they occur in the Andhra
Pradesh General Sales Tax Rules, 1957, it was held that ‘chicks’will not be covered by these
words although in literal sense ‘animal’ refers to any and every ‘animate’ object as distinct from
inanimate object.70
Popular meaning has also been applied in the context of the Central Excises and Salt Act, 1944
for holding that exemption from tax granted in respect of ‘condensed milk’ by a notification did
not cover condensed skimmed milk.71 The same test was applied in holding that toilet soap was
‘Household’ soap and not soap of ‘other sorts’ in Schedule 1 of the Central Excises and Salt Act,
1944.72 In that context it was observed: “if anybody goes to market and asks for toilet soap he
must ask only for household bathing purpose and not for industrial or other sorts. Even the people
dealing with it would supply it for household purpose.”73 Ordinary meaning was also used in
holding that the expression ‘Printed Books’ in an exemption notification did not cover printed
loose sheets of drawing designs, etc. put up in a folder.74 But if a tariff schedule prescribes its own
rules of interpretation those rules must necessarily be first followed.75
The popular meaning test was applied in holding that the word ‘houses'in the Bombay Village
Panchayats Act, 1933, which empowers a Panchayat to levy a tax upon owners or occupiers of
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‘houses and land’, meant all buildings including factory buildings.76
In deciding that the word ‘Poultry’ in the Fertilisers and Feeding Stuffs Act, 1926 which provides
for statutory warranty on the sale of an article ‘for use as food for cattle or poultry’ does not
include pheasants, the Court of Appeal held that ‘poultry’ being a common English word should
be construed in its ordinary sense, i.e., that sense which an ordinary educated Englishman would
attach to that word.77 It was pointed out that the fact that according to scientific evidence
pheasants and domestic hens are ancestrally of the same species as the jungle fowl or the fact that
an American Dictionary of 1961 gives a meaning of ‘poultry’ as including pheasants, or the fact
that hand reared or artificially reared pheasants are often fed food sold under the description
‘poultry food’ and thus need the protection of the Act, are irrelevant considerations for departing
from the ordinary sense of the word.78
Section 2(f) of the Kerala Forest Act, 1961 defines forest produce to include the following
whether found in or brought from a forest or not that is to say: ‘timber, charcoal, wood-oil’. The
question in a case79 before the Supreme Court was whether sandal wood oil is ‘wood-oil’ as used
in the above definition of forest produce. Sandal wood oil is produced at a factory level by
mechanised process utilising the heart wood and roots of sandal wood trees removed from forest
as a raw material. The argument before the Supreme Court by referring to technical dictionaries
was that wood oil is a natural produce of the forest derived as an exudation from living trees in
the forest belonging to the family of Dipterocarpucoe trees and it will not include sandal wood oil
which is a bye-product from sandal wood by industrial process. The above argument was not
accepted. It was pointed out that the object of the Act was to conserve forest wealth and there was
no indication in the Act to exclude what was ordinarily and in common parlance spoken of as
wood oil. On this reasoning it was held that sandal wood oil was wood oil within the definition of
forest produce.
In holding that ‘supari’ or ‘betel nut’ though derived and prepared out of the usufruct of the
Areca-palm tree, is not for that reason ‘Fruit product’ within Rule 29(f) of the Prevention of Food
Adulteration Rules, 1955, the Supreme Court referred to the rule that it is not the technical or
scientific sense but the sense as understood in common parlance that generally matters in
construing statutes.80
The principle that in statutes directed to commercial men, words having definite commercial
sense must be understood in that sense as that would be “the natural and proper sense” in that
context81 has been applied in the construction of Income-tax Acts. It was, therefore, held that the
words ‘profits and gains’, when used in an
Income-tax Act should be understood in a sense which no commercial man would
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misunderstand.82 Applying the same principle the expression ‘borrowed money’ or ‘capital
borrowed’ when used in an
Income tax Act has to be understood in its ordinary commercial usage implying a
transaction of loan with relationship of borrower and lender.83 Similarly the word ‘investments’ in
section 23A of the Income-tax Act, 1922 was construed in the ordinary popular sense
of the word as used by businessmen and it was held that it is not limited to investments in shares,
debentures, stocks etc. but also covers investments in house property or other income yielding
property.84 In determining the commercial sense of an expression in a statute directed to
commercial men but not containing any definition of that expression, it may be relevant to refer to
the normal rules of accountancy prevailing in commerce and industry.85
“In legislations pertaining to the world of business and commerce the dictionary to refer to is the
dictionary of the inhabitants of that world” observed Thakker, J. in holding that the word
‘khandsari’ in section 2(a) of the U.P. Krishi Utpadan Mandi Adhiniyam, 1964 embraced
Khandsari sugar manufactured in factories by open pan process.86
The justification of the rule that the words are to be understood in their natural, ordinary or
popular sense is well expressed by Justice Frankfurter: “After all legislation when not expressed
in technical terms is addressed to common run of men and is therefore to be understood according
to sense of the thing, as the ordinary man has a right to rely on ordinary words addressed.”87 In
determining, therefore, whether a particular import is included within the ordinary meaning of a
given word, one may have regard to the answer which everyone conversant with the word and the
subject-matter of statute and to whom the legislation is addressed, will give if the problem were
put to him.88 In holding that a railway workman who was oiling an apparatus was not engaged in
‘repairing’ the same, Lord Simonds observed: “Had one of these workmen after oiling the
apparatus been asked whether he had been repairing it, he would surely have answered, ‘No’. And
that is the answer which I must give unless the context compels me to something else than the
ordinary meaning”.89 Similarly, in emphasising that the ordinary meaning of ‘sale’ does not
include compulsory acquisition of property on payment of compensation, Viscount Simonds said:
“So far as the ordinary use of language is concerned it is difficult to avoid being dogmatic, but,
for my part, I can only echo what Singleton, L.J., said ‘what would any one accustomed to the use
of words ‘sale’ or ‘sold’ answer It seems to me that everyone must say the tax-payers did not
sell’. I am content to march in step with everyone and say the tax-payers did not sell”.90
The same method was adopted by Lord Diplock in construing the words ‘he makes any
unwarranted demand with menaces’ as they occur in section 21 of the Theft Act, 1968. The
question in the case91 was whether the act of posting a letter containing a demand with menaces
fell within the section irrespective of whether the letter was or was not delivered to the addressee.
Lord Diplock observed that the words should be construed by ascribing to them their ordinary
meaning which should be ascertained by answering the question: “Would a man say in ordinary
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conversation ‘I have made a demand’ when he had written a letter and posted it to the person to
whom the demand was addressed or would he not use those words until the letter has been
received and read by the addressee” Lord Diplock then answered the question thus: “My answer
to the question is that it would be normal for him to say ‘I have made a demand’ as soon as he had
posted the letter, for he would have done all that was in his power to make the demand”.92 And
this method was also applied in determining the commercial sense of ‘cost’ in the context of the
MODVAT scheme and as used in section 4(1)(b) of the Central Excises and Salt Act 1944 (read
with Rule 6 of the Valuation Rules), a statute directed to commercial men. The Court (Bharucha,
J.) observed: “A man of commerce would in our view look at the matter thus ‘I paid Rs. 100 to
the seller of the raw material as the price thereof. The seller of the raw material had paid Rs. 10 as
the excise duty thereon. Consequent upon purchasing the raw material by virtue of the MODVAT
scheme, I have been entitled to the credit of Rs. 10 with the excise authorities and can utilise this
credit when I pay excise duty on my finished product. The real cost of the raw material to me is
therefore Rs. 90. In reckoning the cost of the final product I would include Rs. 90 on this
account.’ This in real terms is the cost of the raw material and it is this, in our view, which should
be included in computing the cost of the excisable product.”93
Apart from context,94 the consequences flowing from rival constructions have an important
bearing in the selection of the true meaning.95
(c) Exact meaning preferred to loose meaning
There is a presumption that words are used in an Act of Parliament correctly and exactly and not
loosely and inexactly.96 In ascribing to the word ‘contiguous’its exact meaning, i.e., ‘touching’ in
preference to its loose meaning, i.e., ‘neighbouring’, Lord Hewart, C.J., stated: “It ought to be the
rule, and we are glad to think that it is the rule, that words are used in an Act of Parliament
correctly and exactly and not loosely and inexactly. Upon those who assert that the rule has been
broken, the burden of establishing their proposition lies heavily, and they can discharge it only by
pointing to something in the context which goes to show that the loose and inexact meaning must
be preferred”.97 This principle was approved and followed by the Privy Council where the
question was as to the true meaning of the word ‘adjoining’. It was pointed out that the exact
meaning of the word was ‘conterminous’ as distinguished from its loose meaning of ‘near’ or
‘neighbouring’; the former meaning was, therefore, preferred.1 In selecting, therefore, the
ordinary meaning of a word one should prefer the exact meaning unless the context clearly directs
otherwise.
But in applying the rule the secondary meaning, i.e., the less common meaning of a word should
not be confounded with its loose meaning. Preference for secondary meaning of a word when the
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purpose of the statute in which it is used points to that meaning is permissible and adoption of that
course does not offend the rule that preference should not be given to loose meaning. For
example, the word ‘obtain’ in its primary sense requires some request or effort to acquire or get
something, but in its secondary sense it means to acquire or get without any qualification, and if
in a statute, having regard to the mischief aimed at, this secondary meaning of the word is
preferred, it cannot be said that preference has been given to loose meaning.2
(d) Technical words in technical sense
(i) Special meaning in trade, business, etc.—As a necessary consequence of the principle that
words are understood in their ordinary or natural meaning in relation to the subject-matter,
in legislation relating to a particular trade, business, profession, art or science, words
having a special meaning in that context are understood in that sense. Such a special
meaning is called the technical meaning to distinguish it from the more common meaning
that the word may have. Lord Jowitt, L.C., has stated the rule as follows: “It is, I think,
legitimate in construing a statute relating to a particular industry to give to the words used
a special technical meaning if it can be established that at the date of the passing of the
statute such special meaning was well understood and accepted by those conversant with
the industry”. As pointed by Lord Esher, M.R.: “If the Act is one passed with reference to
a particular trade, business or transaction and words are used which everybody conversant
with that trade, business or transaction knows and understands to have a particular
meaning in it, then the words are to be construed as having that particular meaning”. The
same rule applies in construing the words in a taxing statute which describes the goods
that are liable to taxation. The Supreme Court “has consistently taken the view that, 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 it is they who are concerned with it, and, it
is the sense in which they understand it which constitutes the definitive index of legislative
intention”. In other words “the true test for classification was the test of commercial
identity and not the functional test. It needs to be ascertained as to how the goods in
question are referred to in the market by those who deal with them, be it for the purposes
of selling, purchasing or otherwise.” Similar test is applied for determining when
manufacture takes place or in other words whether an article after subjecting it to
processing becomes a different article or remains the same. Same test is applied for
deciding whether an article has been consumed or used in a local area in the context of
levy of octroi tax. The question to be asked in such cases is: “How is the product identified
by the class or section of people dealing with or using the product If a word has acquired a
particular meaning in the trade or commercial circles that meaning becomes the popular
meaning in the context and should normally be accepted.
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1 Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests,
AIR 1990 SC 1747 [
LNIND 1990 SC 902 ], p. 1752 :
1990 (2) JT 130 : 1990 Supp SCC 785; Mohammad Alikhan v. Commissioner of Wealth Tax,
AIR 1997 SC 1165 [
LNIND 1997 SC 1969 ], p. 1167 :
1997 (3) SCC 511 [
LNIND 1997 SC 1969 ]; Institute of Chartered Accountants of India v. Price Waterhouse,
AIR 1998 SC 74 [
LNIND 1997 SC 934 ], p. 90 :
(1997) 6 SCC 312 [
LNIND 1997 SC 934 ]; Dental Council of India v. Hari Prakash,
AIR 2001 SC 3303 [
LNIND 2001 SC 1862 ], p. 3308 :
(2001) 8 SCC 61 [
LNIND 2001 SC 1862 ]; J.P. Bansal v. State of Rajasthan, 2003 AIR SCW 1848, p. 1855 :
(2003) 5 SCC 134 [
LNIND 2003 SC 322 ] :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ]; Dental Council of India v. Hari Prashad,
(2001) 8 SCC 61 [
LNIND 2001 SC 1862 ], p. 69 :
AIR 2001 SC 3303 [
LNIND 2001 SC 1862 ]; Illachi Devi v. Jain Society Protection of Orphans,
(2003) 8 SCC 413 [
LNIND 2003 SC 842 ], p. 426; State of Jharkhand v. Govind Singh,
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 296; Commissioner of Income Tax, Kerala v. Tata Agencies,
(2007) 6 SCC 429 [
LNIND 2007 SC 834 ], paras 57 and 60.
2 Shyam Kishori Devi v. Patna Municipal Corporation,

AIR 1966 SC 1678 [
LNIND 1966 SC 35 ], p. 1682 :
1966 (3) SCR 466 [
LNIND 1966 SC 35 ] (the words of a statute never should, in interpretation, be added to or
subtracted from without almost a necessity) Management, Shahdara (Delhi) Saharanpur Light Rly. Co. Ltd. v. S.S. Rly. Workers
Union,
AIR 1969 SC 513 [
LNIND 1968 SC 281 ], p. 518 :
(1969) 2 SCR 131 [
LNIND 1968 SC 281 ]; S. Narayanaswami v. G. Panneerselvam,
AIR 1972 SC 2284 [
LNIND 1972 SC 221 ], p. 2289 :
(1972) 3 SCC 717 [
LNIND 1972 SC 221 ]; Union of India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2337 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ]; A.R. Antuley v. Ramdas Srinivas Nayak,
(1984) 2 SCC 500 [
LNIND 1984 SC 42 ], pp. 518, 519 :
AIR 1984 SC 718 [
LNIND 1984 SC 42 ]; Mohammad Alikhan v. Commissioner of Wealth Tax, supra; Institute of
Chartered Accountants of India v. Price Waterhouse, supra; State of Maharashtra v. Nanded Prabhani Operator Sangh,
AIR 2000 SC 725 [
LNIND 2000 SC 140 ], p. 727 :
(2000) 2 SCC 69 [
LNIND 2000 SC 140 ]; Grasim Industries Ltd. v. Collector of Customs,
AIR 2002 SC 1706 [
LNIND 2002 SC 260 ], p. 1709 :
(2002) 4 SCC 297 [
Mr.Srikanth -
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LNIND 2002 SC 260 ]; J.P. Bansal v. State of Rajasthan, supra; State of Jharkhand v. Govind
Singh, supra. .
3 Harbhajan Singh v. Press Council of India,

AIR 2002 SC 1351 [
LNIND 2002 SC 196 ], p. 1354 :
(2002) 3 SCC 722 [
LNIND 2002 SC 196 ] (8th Edition p. 54 of this book is quoted) Sakshi v. Union of India,
(2004) 5 SCC 518 [
LNIND 2004 SC 657 ], p. 537 :
AIR 2004 SC 3566 [
LNIND 2004 SC 657 ], p. 3590 (9th Edn., p. 58 of this book is referred).
4 Crawford v. Spooner, (1846) 6 Moore PC 1, pp. 8, 9 : 4 MIA 179, p. 187 (PC); referred to in Lord
Howard de Walden v. IRC,
(1948) 2 All ER 825 , p. 830 (HL); Nalinakhya Bysack v. Shyamsunder Halder,
AIR 1953 SC 148 [
LNIND 1953 SC 11 ], p. 152 :
1953 SCR 533 [
LNIND 1953 SC 11 ]; :
1953 SCR 533 [
LNIND 1953 SC 11 ]; State of Madhya Pradesh v. G.S. Dall and Flour Mills,
AIR 1991 SC 772 [
LNIND 1990 SC 563 ], p. 785 : 1992 Supp (1) SCC 150; Grasim Industries Ltd. v. Collector of
Customs, supra, p. 1709. See further Union of India v. Deoki Nandan Aggarwal,
AIR 1992 SC 96 [
LNIND 1991 SC 432 ], p. 101 : 1992 Supp (1) SCC 323; State of Gujarat v. Dilipbhai Nathjibhai
Patel,
JT 1998 (2) SC 253 [
LNIND 1998 SC 279 ], p. 255:
1998 (2) Scale 145 [
LNIND 1998 SC 279 ], p. 147 :
(1998) 3 SCC 234 [
LNIND 1998 SC 279 ].
5 Renula Bose (Smt.) v. Rai Manmathnath Bose,

AIR 1945 PC 108 , p. 110 : 72 IA 156; Stock v. Frank Jones (Tiptan) Ltd.,
(1978) 1 All ER 948 , p. 951 (HL); Grunwick Processing Laboratories Ltd. v. Advisory
Conciliation and Arbitration Service,
(1978) 1 All ER 338 , p. 368 :
(1978) AC 655 (HL); Assessing Authority-Cum-Excise and Taxation Officer v. East India
Cotton Mfg. Co. Ltd.,
AIR 1981 SC 1610 [
LNIND 1981 SC 303 ], p. 1615 :
(1981) 3 SCC 531 [
LNIND 1981 SC 303 ]; Director General, Telecommunication v. T.N. Peethambaram,
(1986) 4 SCC 348 [
LNIND 1986 SC 335 ], p. 349 :
AIR 1987 SC 162 [
LNIND 1986 SC 335 ]: 1986 SCC (L&S) 780.
6 Pinner v. Everett,
(1969) 3 All ER 257 , p. 259 (HL); Brutus v. Cozens,
(1972) 2 All ER 1297 , pp. 1299, 1303, 1304 (HL) (“We have been warned time and again not to
substitute other words for the words of a statute. And there is very good reason for that. Few words have exact synonyms. The
overtones are almost always different.” This is especially true in case of an ordinary English word of common use for “the easiest
word, whatever it may be, can never be translated into one more easy”) Seramco Ltd. Superannuation Fund Trustees v. Income-tax
Commissioner,
(1976) 2 All ER 28 , p. 35 :
1977 AC 287 (PC) (In case of an ordinary word there should be no attempt to substitute or
Mr.Srikanth -
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paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case) Murray v.
Foyle Meats Ltd.,
(1999) 3 All ER 769 , p. 773 (HL) (The temptation of substituting other expressions for the
words of the statute by way of explaining what it is thought the legislature is endeavouring to say is to be discouraged) Gilligan, IN
RE.
(2000) 1 All ER 113 , p. 122 (HL); Northern Securities Co. v. U.S., 193 U.S. 197, p. 400 per
HOLMES J. (much trouble is made by substituting other phrases assumed to be equivalent, which then are reasoned from as if they
were in the Act) Sakshi v. Union of India,
(2004) 5 SCC 518 [
LNIND 2004 SC 657 ], p. 537 :
AIR 2004 SC 3566 [
LNIND 2004 SC 657 ], p. 3570 (9th Edn., p. 59 of this book is referred), Maulvi Hussain Haji
Abraham Umarji v. State of Gujarat,
(2004) 6 SCC 672 [
LNIND 2004 SC 1560 ], p. 680; Commissioner of Income Tax, Kerala v. Tata Agencies,
(2007) 6 SCC 429 [
LNIND 2007 SC 834 ], para 61.
7 State of Kerala v. Mathai Verghese,

(1986) 4 SCC 746 [
LNIND 1986 SC 461 ], p. 749 :
AIR 1987 SC 33 [
LNIND 1986 SC 461 ]; Union of India v. Deoki Nandan Aggarwal,
AIR 1992 SC 96 [
LNIND 1991 SC 432 ], p. 101 : 1992 Supp (1) SCC 323; J.P. Bansal v. State of Rajasthan, 2003
AIR SCW 1848, p. 1855 :
(2003) 5 SCC 134 [
LNIND 2003 SC 322 ] :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ]; State of Jharkhand v. Govind Singh,
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 297.
8 British India General Insurance Co. Ltd. v. Captain Itbar Singh,

AIR 1959 SC 1331 [
LNIND 1959 SC 112 ], pp. 1334, 1335 :
1960 (1) SCR 168 [
LNIND 1959 SC 112 ].
9 Sri Ram Ramnarain v. State of Bombay,

AIR 1959 SC 459 , p. 470 : 1959 Supp (1) SCR 489.
10 Ramnarain v. State of U.P

AIR 1959 SC 459 , p. 470 :
1956 SCR 664 [
LNIND 1956 SC 65 ].
11 Ibid, p. 23.
12 Jumma Masjid v. Kodimaniandra,

AIR 1962 SC 847 [
LNIND 1962 SC 4 ], p. 850 : 1962 Supp (2) SCR 554 [Lord Loreburn, L.C's. observations in
Vickers Sons and Maxim Ltd. v. Evans,
(1910) AC 444 , p. 445 (HL)].
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13 K.M. Viswanatha Pillai v. K.M. Sanmughan Pillai,

AIR 1969 SC 493 [
LNIND 1968 SC 394 ], p. 495 :
(1969) 1 SCC 188 [
LNIND 1968 SC 394 ].
14 Blyth v. Blyth,
(1966) 1 All ER 524 (HL). Followed in N.G. Dastane (Dr.) v. S. Dastane
(Mrs.),
AIR 1975 SC 1534 [
LNIND 1975 SC 125 ]:
(1975) 2 SCC 326 [
LNIND 1975 SC 125 ] while construing the word ‘satisfied’ in the Marriage Act, 1955. See
further H (minors) (sexual abuse: standard of proof), Re,
(1996) 1 All ER 1 , p. 7 (HL) [‘Satisfied’ is a neutral word “with a wide range of meanings
covering the criminal burden of proof (satisfied to be sure) through the civil burden of proof (satisfied on a balance of probabilities)
to a synonym for ‘conclude’ or ‘determine’.”].
15 C.V. Raman v. Management of Bank of India,

AIR 1988 SC 1369 [
LNIND 1988 SC 1033 ], p. 1377 :
(1988) 3 SCC 105 [
LNIND 1988 SC 1033 ] :
(1998) 1 KLT 759 .
16 Union of India v. Deoki Nandan Aggarwala,

AIR 1992 SC 96 [
LNIND 1991 SC 432 ]: 1992 Supp (1) SCC 323.
17 Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd.,

AIR 1933 PC 63 , p. 65; Kamalranjan Roy v. Secretary of State,
AIR 1938 PC 281 , p. 283; Hiradevi v. District Board, Shahjahanpur,
AIR 1952 SC 362 [
LNIND 1952 SC 53 ], p. 365 :
1952 SCR 1122 [
LNIND 1952 SC 53 ]; Nalinakhya Bysack v. Shyamsunder,
AIR 1953 SC 148 [
LNIND 1953 SC 11 ], p. 152 :
1953 SCR 533 [
LNIND 1953 SC 11 ]; Lord Howard de Walden v. IRC,
(1948) 2 All ER 825 , p. 830 (HL); Magor & St. Mellans Rural District Council v. Newport
Corporation,
(1951) 2 All ER 839 , pp. 841, 846, 850 (HL); S. Narayanaswami v. G. Panneeoselvam,
AIR 1972 SC 2284 [
LNIND 1972 SC 221 ], p. 2289 (para 10) :
(1972) 3 SCC 717 [
LNIND 1972 SC 221 ]; Dhoom Singh v. Prakash Chandra Sethi,
AIR 1975 SC 1012 [
LNIND 1975 SC 75 ], p. 1016 :
(1975) 1 SCC 597 [
LNIND 1975 SC 75 ]; Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants,
Kanpur,
AIR 1975 SC 1039 [
LNIND 1975 SC 87 ], p. 1043 : 1975 SCC (Tax) 185 :
(1975) 4 SCC 22 [
LNIND 1975 SC 87 ]; Commissioner of Sales Tax v. Mangal Sen Shyamlal,
AIR 1975 SC 1106 [
LNIND 1975 SC 140 ], p. 1110 : 1975 SCC (Tax) 201 :
(1975) 4 SCC 35 [
LNIND 1975 SC 140 ]; Tarulata Syam Smt. v. Commissioner of Income-tax, West Bengal,
Mr.Srikanth -
Page 29 of 58
AIR 1977 SC 1802 [

LNIND 1977 SC 201 ], p. 1811 :
(1977) 3 SCC 305 [
LNIND 1977 SC 201 ]; Johnson v. Moreton,
(1978) 3 All ER 37 , p. 41 (HL); Waliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,
AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2283 :
(1988) 4 SCC 419 [
LNIND 1988 SC 442 ]; Maruti Wire Industries Pvt. Ltd. v. STO 1st Circle Mantancherry,
AIR 2001 SC 1413 [
LNIND 2001 SC 826 ], p. 1415; Padmasundara Rao v. State of T.N.,
AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], p. 1340; Unique Butyle Tube Industries (P) Ltd. v. U.P. Financial
Corporation,
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ], p. 462; Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial
Corporation,
AIR 2003 SC 2103 [
LNIND 2002 SC 857 ], p. 2107 :
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ] : 2003 All LJ 427 (Legislative casus omissus cannot be supplied by
judicial interpretative process) Union of India v. Ravikumar,
(2003) 6 SCC 516 [
LNIND 2003 SC 563 ], pp. 525, 526 :
AIR 2003 SC 2917 [
LNIND 2003 SC 563 ]; P.T. Rajan v. J.P.M. Sahir,
(2003) 8 SCC 498 , p. 516 :
(2003) 11 SCC 405 [
LNIND 2003 SC 794 ]; Asst. Commissioner Assessment II Bangalore v.
Valliappa Textiles Ltd.,
AIR 2004 SC 86 [
LNIND 2003 SC 794 ], p. 91 :
(2004) 9 JT 136 [
LNIND 2004 SC 1077 ]; Sri Rama Saha v. State of West Bengal,
AIR 2004 SC 5080 [
LNIND 2004 SC 1077 ], p. 5087 (para 20) :
(2004) 9 JT 136 [
LNIND 2004 SC 1077 ]; State of Jharkhand v. Govind Singh,
AIR 2005 SCC 294 , pp. 298, 299.
18 See text and note 47, p. 71, infra.
19 Hiradevi v. District Board, Shahjahanpur,

AIR 1952 SC 362 [
LNIND 1952 SC 53 ]:
1952 SCR 1122 [
LNIND 1952 SC 53 ].
20 Ibid., p. 365.
21 Nalinakhya Bysack v. Shyamsunder,

AIR 1953 SC 148 [
LNIND 1953 SC 11 ]:
1953 SCR 930 [
LNIND 1953 SC 10 ].
Mr.Srikanth -
Page 30 of 58
22 Nalinakhya Bysack v. Shyamsunder, supra, p. 152 quoting Hansraj

Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd.,
AIR 1933 PC 63 , p. 65 : 60 IA 13 (Lord Russel of Killowen).
23 State of Jharkhand v. Govind Singh,

AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 296.
24 Gladstone v. Bower,
(1960) 3 All ER 353 (CA).
25 Ibid., p. 358.
26
(1986) 4 SCC 273 [
LNIND 1986 SC 309 ] :
AIR 1987 SC 53 : (1986) 162 ITR 373.
27
AIR 1990 SC 933 [
LNIND 1990 SC 98 ]:
(1990) 2 SCC 378 [
LNIND 1990 SC 98 ] :
(1990) 1 KLT 903 [
LNIND 1990 KER 70 ].
28
AIR 2001 SC 2699 [
LNIND 2001 SC 1790 ]:
(2001) 7 SCC 71 [
LNIND 2001 SC 1790 ].
29 M. Pentiah v. Muddala Veeramallapa,

AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 115 :
(1961) 2 SCR 295 [
LNIND 1960 SC 260 ]; State of Bihar v. Asiskumar Mukerjee,
AIR 1975 SC 192 [
LNIND 1974 SC 393 ], p. 196 :
(1975) 3 SCC 602 [
LNIND 1974 SC 393 ] :
(1975) 1 LLJ 198 [
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2337 :
1977 (4) SCC 193 [
LNIND 1977 SC 268 ]; Bangalore Water Supply v. A. Rajappa,
AIR 1978 SC 548 [
LNIND 1978 SC 70 ], pp. 552, 561 :
1978 (2) SCC 213 [
LNIND 1978 SC 70 ]; State of Karnataka v. Hansa Corporation,
AIR 1981 SC 463 [
LNIND 1980 SC 408 ], pp. 469, 470 :
(1980) 4 SCC 697 [
LNIND 1980 SC 408 ]; Hameedia Hardware Stores v. B. Mohan Lal Sowear,
Mr.Srikanth -
Page 31 of 58
AIR 1988 SC 1060 [

LNIND 1988 SC 199 ], pp. 1067, 1068 :
1988 (2) SCC 513 [
LNIND 1988 SC 199 ]; Pushpa Devi v. Milkhiram,
AIR 1990 SC 808 [
LNIND 1990 SC 69 ], p. 813; N.K. Jain v. C.K. Shah,
AIR 1991 SC 1289 [
LNIND 1991 SC 173 ], p. 1301 :
1991 (2) SCC 495 [
LNIND 1991 SC 173 ]; Directorate of Enforcement v. Deepak Mahajan,
1994 JT (1) SC 281 , p. 301 :
AIR 1994 SC 1775 , pp. 1784, 1785; S. Gopal Reddy v. State of Andhra Pradesh,
AIR 1996 SC 2184 [
LNIND 1996 SC 1040 ], p. 2188 :
1996 (5) Scale 78 , p. 85; State of Bihar v. Bihar Distillery Ltd.,
AIR 1997 SC 1511 [
LNIND 1996 SC 2869 ], p. 1520 :
(1997) 2 SCC 453 [
LNIND 1996 SC 2869 ]; NEPC Micon Ltd. v. Magna Leasing Ltd.,
AIR 1999 SC 1952 [
LNIND 1999 SC 470 ], p. 1957 :
(1999) 4 SCC 253 [
LNIND 1999 SC 470 ]; Gujarat Composite Ltd. v. Ranip Nagarpalika,
JT 1999 (9) SC 62 [
LNIND 1999 SC 1791 ], p. 66 :
(1999) 8 SCC 675 [
LNIND 1999 SC 1791 ]; Reema Aggarwal v. Anupam,
(2003) 3 SCC 199 , p. 213.
30 Seaford Court Estates Ltd. v. Asher,

(1949) 2 All ER 155 , p. 164 (CA).
31 Magor & St. Mellons Rural District Council v. Newport Corporation,

(1950) 2 All ER 1226 , p. 1236 (CA). [LORD DENNING in a dissenting judgment reiterated his
liberal views; he said: “How should we construe an Act of Parliament I have said before and I repeat it now, that we should so
construe an Act of Parliament as to effectuate the intention of makers of it and not to defeat it. If they have by mistake overlooked
something, we should do our best to smooth it out. We should construe it so as to avoid absurdities and incongruities and to
produce a consistent and just result.” Lucy v. W.T. Henleys Telegraph Works Co. Ltd.,
(1969) 3 All ER 456 , p. 462 (CA). LORD DENNING later reaffirmed his views in the following
words : “Faced with glaring injustice, the judges are, it is said, impotent incapable and sterile. Not so with us in this court—.
Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good
sense to remedy it by reading words in, if neccessary, so as to do what Parliament would have done had they had the situation in
mind.” Nothman v. London Borough of Barner,
(1978) 1 All ER 1243 , p. 1246 :
(1978) 1 WLR 220 (CA). In the House of Lords, LORD RUSSEL was critical of these
“Sweeping comments”: see
(1979) 1 All ER 142 , p. 151 (HL).]
32 Magor & St. Mellons R.D.C. v. Newport Corporation,

(1951) 2 All ER 839 (HL).
33 Ibid., p. 841. LORD SIMONDS' disapproval of Denning approach was cited with approval in
Punjab Land and Development Corporation v. Presiding Officer, Labour Court,
1990 (3) SCR 111 [
LNIND 1990 SC 310 ], pp. 153, 154 :
(1990) 3 SCC 682 [
LNIND 1990 SC 310 ] and noticed in O.S. Singh v. Union of India,
1995 (6) Scale 8 :
1996 (7) SCC 37 : 1996 SCC (L&S) 373.
Mr.Srikanth -
Page 32 of 58
34 Ibid., p. 846.
35 Ibid., p. 850.
36 See title 1(d) Departure from the Rule, title (3) Regard to Subject and Object, and title (4) Regard to
Consequences, infra.
37 DENNING, The Closing Chapter, pp. 101 to 118.
38 The current tendency among English judges would appear to incline away from the Denning approach : Cross:
Staturoy Interpretation, 3rd Edition, p. 47.
39 The two views on casus omissus are discussed in O.S. Singh v. Union of India, 1995 (6) Scale 8, pp. 16, 17 :
1996 (7) SCC 37 : 1996 SCC (L&S) 373.
40
AIR 1978 SC 548 [
LNIND 1978 SC 70 ]:
1978 (2) SCC 213 [
LNIND 1978 SC 70 ]. See further CIT v. B.N. Bhattacharjee,
(1979) 4 SCC 121 [
LNIND 1979 SC 274 ], p. 136 :
AIR 1979 SC 1725 [
LNIND 1979 SC 274 ]; Bhagmal v. Ch. Parbhu Ram,
(1985) 1 SCC 61 [
LNIND 1984 SC 302 ], pp. 87, 88 :
AIR 1985 SC 150 [
LNIND 1984 SC 302 ]; State of Tamil Nadu v. Kodaikanal Motor Union,
(1986) 3 SCC 91 [
LNIND 1986 SC 162 ], p. 100 :
AIR 1986 SC 1173 [
LNIND 1986 SC 169 ].
41 Ibid., p. 552 (Beg, C.J.I., noticed the disapproval of the House of Lords and referred to the passages from the
speeches of Law Lords which are quoted above; See text and notes 33 to 35, supra).
42
AIR 1978 SC 548 [
LNIND 1978 SC 70 ], p. 561 :
1978 (2) SCC 213 [
LNIND 1978 SC 70 ].
43 See text and note 30, supra.
44
(1951) 2 All ER 839 .
Mr.Srikanth -
Page 33 of 58
45 Magor & St. Mellons R.D.C. v. Newport Corporation,

(1951) 2 All ER 839 , p. 841.
46 This paragraph in the book was quoted by Sinha, J., from 5th Edition of this book in Gujarat High Court v. Gujarat
Kishan Mazdoor Panchayat,
AIR 2003 SC 1201 [
LNIND 2003 SC 312 ], p. 1214 :
(2003) 4 SCC 712 [
LNIND 2003 SC 312 ] :
(2003) 2 LLN 328 .
47 Karnataka State v. Union of India,

AIR 1978 SC 68 [
LNIND 1977 SC 312 ], p. 107 :
(1977) 4 SCC 608 [
LNIND 1977 SC 312 ]; CIT v. National Taj Traders,
AIR 1980 SC 485 [
LNIND 1979 SC 471 ], p. 489 :
(1980) 1 SCC 370 [
LNIND 1979 SC 471 ]; M.G. Wagh v. Jay Engineering Works Ltd.,
(1987) 1 SCC 542 [
LNIND 1987 SC 44 ], p. 546 :
AIR 1987 SC 670 [
LNIND 1987 SC 44 ]; Unique Butyle Tube Industries Pvt. Ltd. v. U.P. Financial Corporation,
AIR 2003 SC 2103 [
LNIND 2002 SC 857 ], p. 2108 :
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ] : 2003 All LJ 427 ; Union of India v. Ranjit Kumar,
(2003) 6 SCC 516 [
LNIND 2003 SC 563 ], pp. 525, 526 :
AIR 2003 SC 2917 [
LNIND 2003 SC 563 ]; Ramesh Mehta v. Sanwal Chand Singhavi,
(2004) 5 SCC 409 [
LNIND 2004 SC 529 ], p. 423 (para 12) :
AIR 2004 SC 2258 [
LNIND 2004 SC 529 ]. See further Chapter 10, text and notes 76 to 81, p. 816.
48 Directorate of Enforcement v. Deepak Mahajan,

JT 1994 (1) SC 281 [
LNIND 1994 SC 135 ], p. 325 :
AIR 1994 SC 1775 , p. 1803 :
(1994) 3 SCC 440 .
49 Boddu Narayanamma v. Sri Venkatarama Aluminium Co.,

JT 1999 (7) SC 364 [
LNIND 1999 SC 848 ]: (
1999(7 SCC 589 [
LNIND 1999 SC 848 ].
50 Petron Engineering Construction (Pvt.) Ltd. v. Central Board of Direct

Taxes,
AIR 1989 SC 501 [
LNIND 1988 SC 581 ], pp. 508, 509 : 1989 Supp (2) SCC 7 :
(1989) 175 ITR 523 [
LNIND 1988 SC 581 ].
Mr.Srikanth -
Page 34 of 58
52 Padmasundara Rao v. State of T.N.,

AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], p. 1340 :
(2002) 3 SCC 533 [
LNIND 2002 SC 201 ]. See further Unique Butyle Tube Industries (P.) Ltd. v.
U.P. Financial Corporation,
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ], pp. 462, 463 : 2003 All LJ 427 :
AIR 2003 SC 2103 [
LNIND 2002 SC 857 ]; Shiv Shakti Co-op. Housing Society Nagpur v. Swaraj Developers,
AIR 2003 SC 2434 [
LNIND 2003 SC 454 ], pp. 2440, 2441 :
(2003) 6 SCC 659 [
LNIND 2003 SC 454 ]; State of Orissa v. Joginder Patjoshi,
AIR 2004 SC 1039 , p. 1041 :
(2004) 9 SCC 278 ; State of Jharkhand v. Govind Singh,
AIR 2005 SC 294 [
LNIND 2004 SC 1208 ], p. 298; Sangeeta Singh v. Union of India,
(2005) 7 SCC 484 [
LNIND 2005 SC 631 ], pp. 489, 490(Rule applied for construction of advertisement for grant of
dealership and distribution of petrol pumps) Union of India v. Shardindu,
(2007) 6 SCC 276 [
LNIND 2007 SC 695 ] (paras 24, 25) :
(2007) 7 JT 439 :
(2007) 7 Scale 575 [
LNIND 2007 SC 695 ].
53 Aswini Kumar Ghose v. Arabinda Bose,

AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 377 :
1953 SCR 1 [
LNIND 1952 SC 94 ]; see further Union of India v. Hansoli Devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], p. 3246 :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ]; State of Orissa v. Joginder Patjoshi,
AIR 2004 SC 1039 , p. 1142 :
(2004) 9 SCC 278 .
54 Rao Shiv Bahadur Singh v. State of U.P.,

AIR 1953 SC 394 [
LNIND 1953 SC 68 ], p. 397 :
1953 SCR 1188 [
LNIND 1953 SC 68 ].
55 J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. StateU.P., of

AIR 1961 SC 1170 [
LNIND 1960 SC 337 ], p.1174 :
(1962) 1 SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 1 LLJ 540 [
LNIND 1960 SC 337 ]; Shri Mohammad Alikhan v. Commissioner of Wealth Tax,
AIR 1997 SC 1165 [
LNIND 1997 SC 1969 ], p. 1167 :
(1997) 3 SCC 511 [
LNIND 1997 SC 1969 ]; Dilawar Babu Kurane v. State of Maharashtra,
AIR 2002 SC 564 [
LNIND 2002 SC 1739 ], p. 566 :
(2002) 2 SCC 135 [
Mr.Srikanth -
Page 35 of 58
LNIND 2002 SC 1739 ]; Ramphal Kundu v. Kamal Sharma,

AIR 2004 SC 1039 , p. 1042 :
(2004) 9 SCC 278 .
56 Quebec Railway, Light, Heat & Power Co. v. Vandry,

AIR 1920 PC 181 , p. 186 :
1920 AC 662 ; see further Union of India v. Hansoli Devi, Union of India v.
Hansoli Devi, supra.
57 Ghanshyamdas v. Regional Asstt. Commr., Sales Tax,

AIR 1964 SC 766 [
LNIND 1963 SC 193 ], p. 772 :
1964 (4) SCR 436 [
LNIND 1963 SC 193 ]. See further CIT v. Kanpur Coal Syndicate,
AIR 1965 SC 325 [
LNIND 1964 SC 167 ], p. 327 :
1964 (8) SCR 85 [
LNIND 1964 SC 167 ]; State of Rajasthan v. Leela Jain,
AIR 1965 SC 1296 [
LNIND 1964 SC 228 ], p. 1299 :
(1965) 1 SCR 276 [
LNIND 1964 SC 228 ]; Bhanu Pratap Singh (Raja) v. Asstt. Custodian,
AIR 1966 SC 245 [
LNIND 1965 SC 178 ], p. 247 :
(1966) 1 SCR 304 [
LNIND 1965 SC 178 ]; CIT v. Moon Mills,
AIR 1966 SC 870 [
LNIND 1965 SC 271 ], p. 873 :
1974 (3) SCC 554 [
LNIND 1973 SC 322 ]; D.R. Jerry v. Union of India,
AIR 1974 SC 130 [
LNIND 1973 SC 322 ], p. 133 :
1974 (3) SCC 554 [
LNIND 1973 SC 322 ]; Shri Balaganeshan Metals v. Shanmugham Chetty,
(1987) 2 SCC 707 [
LNIND 1987 SC 420 ], p. 713 :
AIR 1987 SC 1668 [
LNIND 1987 SC 420 ]; State of Uttar Pradesh v. Radhey Shyam,
AIR 1989 SC 682 [
LNIND 1989 SC 14 ], pp. 689, 690 :
1989 (1) SCC 591 [
LNIND 1989 SC 14 ]; State of Maharashtra v. Santosh Shankar Acharya,
(2000) 7 SCC 463 [
LNIND 2000 SC 1031 ], p. 469 :
AIR 2000 SC 2504 [
LNIND 2000 SC 1031 ]; Borosil Glass Works Ltd. Employees Union v. D.D. Bambode,
AIR 2001 SC 378 , p. 380 :
(2001) 1 SCC 350 ;
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], p. 3246 :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ]; Nathi Devi v. Radha Devi,
(2005) 2 SCC 271 [
LNIND 2004 SC 1268 ], p. 277 :
AIR 2005 SC 648 [
LNIND 2004 SC 1268 ], p. 652; Promoters & Builders Ass. of Pune v. Pune Municipal Corpn.,
(2007) 6 SCC 143 [
LNIND 2007 SC 642 ] (para 11) :
AIR 2007 SC 1956 [
LNIND 2007 SC 642 ].
Mr.Srikanth -
Page 36 of 58
58 Hill v. Williams Hill (Park Lane) Ltd.,

(1949) 2 All ER 452 (HL); referred to in Gherulal Parakh v. Mahadeodas Maiya,
AIR 1959 SC 781 [
LNIND 1959 SC 38 ], pp. 789, 790, 791 : 1959 Supp (2) SCR 406.
59 Cf.
section 30, Indian Contract Act, 1872 .
60 Hill v. Williams Hill (Park Lane) Ltd., supra.
61 Hill v. Williams Hill supra, p. 461; referred to in Umed v. Raj-singh,

AIR 1975 SC 43 [
LNIND 1974 SC 255 ], p. 63 :
(1975) 1 SCC 76 [
LNIND 1974 SC 255 ].
62 State of Bombay v. Ali Gulshan,

AIR 1955 SC 810 [
LNIND 1955 SC 70 ], p. 816 :
(1955) 2 SCR 867 [
LNIND 1955 SC 70 ] : 58 Bom LR 490.
63 S. Gurmej Singh v. S. Pratap Singh Kairon,

AIR 1960 SC 122 [
LNIND 1959 SC 384 ], p. 125 :
1960 (1) SCR 909 [
LNIND 1959 SC 384 ].
64 Ramnarain v. State of U.P.,

AIR 1957 SC 18 [
LNIND 1956 SC 65 ], p. 21 :
1956 SCR 664 [
LNIND 1956 SC 65 ].
65 Balwant Kaur v. Chanan Singh,

AIR 2000 SC 1908 [
LNIND 2000 SC 677 ], p. 1914 :
(2000) 6 SCC 310 [
LNIND 2000 SC 677 ].
66 Inco Europe Ltd. v. First Choice Distribution (a firm),

(2000) 2 All ER 109 , p. 115 (HL).
67 Ibid.
68 Ibid.
69 Craies Statute Law, 7th Edition, p. 109. See further Surjit Singh Kalara v. Union of India,
(1991) 2 SCC 87 [
Mr.Srikanth -
Page 37 of 58
LNIND 1991 SC 85 ] (para 19); H.C. Suman v. Rehabilitation Ministry Employees Co-operative
House Building Society Ltd.,
AIR 1991 SC 2160 [
LNIND 1991 SC 421 ], pp. 2167, 2168 :
(1991) 4 SCC 485 [
LNIND 1991 SC 421 ]; M.J. Exports Ltd. v. CEGAT,
AIR 1992 SC 2014 [
LNIND 1992 SC 406 ], p. 2024 :
1992 (3) JT 398 [
LNIND 1992 SC 406 ] : 1993 Supp (1) SCC 169.
70 Siraj-ul-Haq v. Sunni Central Board of Waqf, U.P.,

AIR 1959 SC 198 [
LNIND 1958 SC 102 ]:
1959 SCR 1287 [
LNIND 1958 SC 102 ].
71 Hameedia Hardware Stores v. B. Mohan Lal Sowear,

AIR 1988 SC 1060 [
LNIND 1988 SC 199 ], p. 1067 :
1988 (2) SCC 513 [
LNIND 1988 SC 199 ]; H.C. Suman v. Rehabilitation Ministry Employees Co-operative House
Building Society Ltd., supra.
72 Pickstone v. Freemans Plc.,

(1988) 2 All ER 803 , pp. 813, 817 :
1989 AC 66 :
(1988) 3 WLR 265 (HL); Lister v. Forth Drydock and Engineering Co. Ltd.,
(1989) 1 All ER 1134 :
(1990) 1 AC 546 (HL).
73 Jones v. Wrotham Park Settled Estates,

(1979) 1 All ER 286 , p. 289 (HL)(Lord Diplock) Inco Europe Ltd. v. First Choice Distribution
(a firm) supra . See further Union of India v. Hansoli Devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], p. 3246 :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ].
74 Siraj-ul-Haq v. Sunni Central Board of Waqf, U.P.,

AIR 1959 SC 198 [
LNIND 1958 SC 102 ]:
1959 SCR 1287 [
LNIND 1958 SC 102 ].
75 Ibid., p. 204 (AIR) (paras 16 and 17).
76 Siraj-ul-Haq v. Sunni Central Board, U.P.,

AIR 1959 SC 198 [
LNIND 1958 SC 102 ]:
1959 SCR 1287 [
LNIND 1958 SC 102 ].
Mr.Srikanth -
Page 38 of 58
77 State Bank of Travancore v. Mohammad,

AIR 1981 SC 1744 [
LNIND 1981 SC 354 ], p. 1750 :
(1981) 4 SCC 82 [
LNIND 1981 SC 354 ].
78 Ibid.
79 Gujarat Composite Ltd. v. Ranip Nagarpalika,

JT 1999 (9) SC 62 [
LNIND 1999 SC 1791 ], p. 65 :
AIR 2000 SC 135 [
LNIND 1999 SC 1791 ], p. 137 :
(1999) 8 SCC 675 [
LNIND 1999 SC 1791 ]
80 Chaturbhuj Mohanlal v. Bhicam Chand, 53 Cal WN 410; Mathu Kutty v. Varee Kutty,
AIR 1950 Mad 64 [
LNIND 1949 MAD 59 ]; approved in Lalchand v. Basanta Mal Devi Dayal (M/s.), 49 Pun LR
246; Siraj-ul-Haq v. Sunni Central Board of Wakf,
AIR 1959 SC 198 [
LNIND 1958 SC 102 ], p. 204 (para 17) :
1959 SCR 1287 [
LNIND 1958 SC 102 ].
81 Divisional Personnel Officer, Southern Railway v. T.R. Challappan,

AIR 1975 SC 2216 [
LNIND 1975 SC 339 ]: (
1976) 3 SCC 190 [
LNIND 1975 SC 339 ] : 1976 SCC (L&S) 398.
82 Champa Kumari Singhi v. Member, Board of Revenue, West Bengal,

AIR 1970 SC 1108 [
LNIND 1970 SC 24 ], p. 1111 :
(1970) 1 SCC 404 [
LNIND 1970 SC 24 ].
83 Hameedia Hardware Stores v. B. Mohan Lal Sowear,

AIR 1988 SC 1060 [
LNIND 1988 SC 199 ], p. 1067 :
(1988) 2 SCC 513 [
LNIND 1988 SC 199 ].
84 Union Bank of India v. Seppo Rally,

AIR 1999 SC 62 , p. 66 :
(1999) 8 SCC 357 [
LNIND 1999 SC 862 ] :
(1999) 35 CLA 203 .
85 Lister v. Forth Day Dock and Engineering Co. Ltd.,

(1989) 1 All ER 1134 :
(1990) 1 AC 546 :
(1989) 2 WLR 634 (HL).
Mr.Srikanth -
Page 39 of 58
86 Ibid, pp. 1139, 1153.
87 Ramaswamy Nadar v. State of Madras,

AIR 1958 SC 56 [
LNIND 1957 SC 102 ], p. 58 :
1958 SCR 739 [
LNIND 1957 SC 102 ] :
1958 Cri LJ 228 [
LNIND 1957 SC 102 ].
88 Ibid., p. 58.
89 Food Controller v. Cork,

(1923) AC 647 :
(1923) All ER Rep 463 , p. 471 (HL); Ramkissendas Dhanuka v. Satyacharan Lal,
AIR 1950 PC 81 [
LNIND 1938 PC 61 ], p. 83; Cf. Raj Krishna Bose v. Vinod Kanungo,
AIR 1954 SC 202 [
LNIND 1954 SC 17 ], p. 203 (para 11) :
1954 SCR 913 [
LNIND 1954 SC 17 ].
90 Ramkissendas Dhanuka v. Satyacharan Lal, supra, p. 83.
91 See footnote 89, supra.
92 Salmon v. Duncombe,
(1886) 11 AC 627 (PC) : 55 LJPC 69. See further Union of India v. Hansoli
Devi,
AIR 2002 SC 3240 [
LNIND 2002 SC 569 ], p. 3246 :
(2002) 7 SCC 273 [
LNIND 2002 SC 569 ].
93 Salmon v. Dunombe .
94 Ibid.
95 Ibid.
96 Ibid.
97 Salmon v. Duncombe,
(1886) 11 AC 627 (PC) : 55 LJ PC 69.
Mr.Srikanth -
Page 40 of 58
98 Mcmonagle v. Westminster City Council,

(1990) 1 All ER 993 :
(1990) 2 AC 716 :
(1990) 2 WLR 823 (HL).
1 Ibid, pp. 997, 998. See further R. v. R.,

(1991) 4 All ER 481 , p. 489 :
(1992) 1 AC 599 :
(1991) 3 WLR 767 (HL)(Word ‘un-lawful’ in s. 1(2) of Sexual Offences (Amendment) Act,
1976, held surplusage) Labour Contact Co-operative Society Palikur v. Director & Mines of Geology Hyderabad,
AIR 1993 SC 147 , p. 150 : (1993) Supp (2) SCC 316 (word ‘within’ in Rule 12(4) Mineral
Concession Rules, 1966 ignored on the ground that it was inappropriate and was used incautiously by the draftsman).
2 Commissioner for Special Purposes of Income-tax v. John Frederick Pemsel,

(1891-94) All ER Rep. 28 , p. 59 :
(1891) AC 531 (HL).
3 Ibid, p. 51.
4 I.R. Commissioners v. Dowdall O'Mahoney & Co.,

(1952) 1 All ER 531 , p. 537 :
1952 AC 401 (HL); Gokaraju Rangaraju v. State of Andhra Pradesh,
AIR 1981 SC 1473 [
LNIND 1981 SC 236 ], p. 1479 :
(1981) 3 SCC 132 [
LNIND 1981 SC 236 ]; Walker (Inspector of Taxes) v. Centaur Clothes Group Ltd.,
(2000) 2 All ER 589 , p. 595 (HL). (It is not uncommon for Parliament to say expressly what the
courts would have inferred anyway). See further Hakim Ali v. Board of Revenue,
AIR 1991 SC 972 [
LNIND 1990 SC 925 ], p. 972 : 1991 Supp (1) SCC 565. [This book (4th Edition, p. 51) is
referred]; State of Uttar Pradesh v. Union of India,
AIR 2003 SC 1147 [
LNIND 2003 SC 145 ], pp. 1154, 1155 :
(2003) 3 SCC 239 [
LNIND 2003 SC 145 ] :
(2003) 130 STC 1 .
5 The maxim means that express mention of one or more persons or things of a particular class may be regarded as by
implication excluding all others of that class. “It is doubtful whether the maxim does any more than draw attention to a fairly
obvious linguistic point, viz., that in many contexts the mention of some matters warrants an inference that other cognate matters
were intentionally excluded:” (Cross, Statutory Interpretation, 3rd Edition p. 140). The maxim will not apply when the ‘expressio’
is superfluous added by way of abundant caution or misunderstanding of the law or similar causes. It will also not apply when the
provisions of the Act show that the exclusion could not have been intended. So, the maxim has been called “a valuable servant but a
dangerous master”: Calquhoun v. Brooks,
(1889) 21 QBD 52 ; CCE v. National Tobacco Co. of India Ltd.,
AIR 1972 SC 2563 [
LNIND 1972 SC 357 ], p. 2573 :
(1972) 2 SCC 560 [
LNIND 1972 SC 357 ]; D.R. Venkatchalam v. Dy. Transport Commissioner,
AIR 1977 SC 842 , p. 849 :
(1977) 2 SCC 273 ; Karnataka State v. Union of India,
AIR 1978 SC 68 [
LNIND 1977 SC 312 ], p. 107 : Mary Angel v. State of Tamil Nadu,
AIR 1999 SC 2245 [
LNIND 1999 SC 546 ], p. 2252 :
1999 (5) SCC 209 [
LNIND 1999 SC 546 ].
Mr.Srikanth -
Page 41 of 58
6 See Shri Gopal Jalan & Co. v. Calcutta Stock Exchange Association,
AIR 1964 SC 250 [
LNIND 1963 SC 155 ], pp. 253, 254 :
1964 (3) SCR 698 [
LNIND 1963 SC 155 ]. See further Chapter 3 : Title 9 ‘Proviso’: (e) ‘At times added to allay
fears’ at p. 199; Madanlal Fakir Chand Dudhediya v. Shree Changdeo Sugar Mills Ltd.,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ]: 1962 Supp (3) SCR 973; Curtis v. Maloney,
(1950) 2 All ER 982 (CA).
7 J.K. Cotton Spinning & Weaving Mills v. State of U.P.,

AIR 1961 SC 1170 [
LNIND 1960 SC 337 ], p. 1174 :
1962 (1) SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 3 SCR 185 . See Title 1(c) ‘Avoiding Rejection of Words’, supra.
8 See cases in f.n. 6 supra.
9 Crawford v. Spooner, (1846) 4 MIA 179, p. 181 : 6 MOO PC 1 (PC); Grey v. Pearson, (1857) 6
HLC 61, p. 106 : 10 ER 1216, p. 1234 (HL); River Wear Commrs. v. Adamson,
(1877) 2 AC 743 :
(1874-80) All ER Rep. 1 , p. 12 (HL); Attorney-General v. Milne,
(1914) AC 765 :
(1914-15) All ER Rep 1061 , p. 1053 (HL); Corporation of the City of Victoria v. Bishop of
Vancouver Island,
AIR 1921 PC 240 , p. 242; Nagendra Nath Dey v. Suresh Chandra Dey,
AIR 1932 PC 165 , p. 167; Pakala Narayana Swami v. Emperor,
AIR 1939 PC 47 [
LNIND 1939 PC 1 ], pp. 51, 52; Nokes v. Doncaster Amalgamated Collieries Ltd.,
(1940) AC 1014 :
(1940) 3 All ER 549 , p. 553 (HL); Jugalkishore Saraf v. Raw Cotton Co. Ltd.,
AIR 1955 SC 376 [
LNIND 1955 SC 21 ], p. 381 :
(1955) 1 SCR 1369 [
LNIND 1955 SC 21 ]; S.A. Venkataraman v. State,
AIR 1958 SC 107 [
LNIND 1957 SC 134 ], p. 109 :
1958 SCR 1040 [
LNIND 1957 SC 134 ]; Siraj-ul-Haq v. Sunni Central Board of Waqf,
AIR 1959 SC 198 [
LNIND 1958 SC 102 ], p. 205 :
1959 SCR 1287 [
LNIND 1958 SC 102 ]; Shri Ram Daya Ram v. State of Maharashtra,
AIR 1961 SC 674 [
LNIND 1960 SC 308 ], p. 678 :
(1961) 2 SCR 890 [
LNIND 1960 SC 308 ]; Madanlal Fakir Chand Dudhediya v. Shri Changdeo Sugar Mills Ltd.,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ], p. 1551 : 1962 Supp (3) SCR 973;
AIR 1963 SC 946 [
LNIND 1962 SC 127 ], p. 950 :
(1963) 1 SCR 1 [
LNIND 1962 SC 127 ]; Manmohan Das Shah v. Bishun Das,
AIR 1967 SC 643 [
LNIND 1966 SC 252 ]:
(1967) 1 SCR 836 [
LNIND 1966 SC 252 ]; Management, Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v.
Workers Union,
Mr.Srikanth -
Page 42 of 58
AIR 1969 SC 513 [

LNIND 1968 SC 281 ], p. 518 :
(1969) 2 SCR 131 [
LNIND 1968 SC 281 ]; Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut,
(1984) 1 SCC 1 , p. 9 :
AIR 1984 SC 505 [
LNIND 1983 SC 289 ]; Oega Tellis v. Bombay Municipal Corporation
(1985) 3 SCC 545 [
LNIND 1985 SC 215 ], p. 581 :
AIR 1986 SC 180 [
LNIND 1985 SC 215 ]; Doypack Systems Pvt. Ltd. v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 801 :
(1988) 2 SCC 299 [
LNIND 1988 SC 589 ]; Oswal Agro Mills Ltd. v. Collector of Central Excise,
AIR 1993 SC 2288 [
LNIND 1993 SC 393 ], p. 2292 :
1993 (3) JT 260 ; Mohammad Ali Khan v. Commissioner of Wealth Tax,
JT 1997 (3) SC 250 [
LNIND 1997 SC 1969 ], p. 253:
AIR 1997 SC 1165 [
LNIND 1997 SC 1969 ], p. 1167; Gurudeva-datta VKSSS Maryadit v. State of Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], p. 1991; Colgate Palmolive (India) Ltd. v. M.R.T.P. Commission,
AIR 2003 SC 317 [
LNIND 2002 SC 713 ], p. 320 :
(2003) 1 SCC 129 [
LNIND 2002 SC 713 ]; M.P. Khan v. Govt. of A.P.,
(2004) 2 SCC 267 [
LNIND 2004 SC 16 ], p. 272 :
AIR 2004 SC 2934 [
LNIND 2004 SC 16 ]; State of Himachal Pradesh v. Pawan Kumar,
AIR 2005 SC 2265 [
LNIND 2005 SC 355 ], p. 2269(9th Edn., p. 78 of this book is referred) State of Rajasthan v.
Babu Ram,
(2007) 6 SCC 55 [
LNIND 2007 SC 777 ], p. 57 :
AIR 2007 SC 2018 [
LNIND 2007 SC 777 ]; State of Haryana v. Suresh,
AIR 2007 SC 2245 [
LNIND 2007 SC 779 ], para 12(9th edition p. 78 of this book is referred).
10 Crawford v. Spooner, (1846) 4 MIA 179, p. 181 : 6 Moo PC 1 (PC).
11 Attorney General v. Milne,

(1914-15) All ER Rep 1061 , p. 1063 :
1914 AC 765 (HL).
12 Grey v. Pearson, (1857) 6 HLC 61, p. 106 : 10 ER 1216, p. 1234 (HL); referred to in Walton, Ex
parte, RE. Levy,
(1881) 50 LJ Ch 657 , p. 659(Jessel, M.R.) Caledonia Rly. v. North British Rly.,
(1881) 6 AC 114 , p. 131 (HL)(Lord Blackburn) Vacher & Sons v. London Society of
Compositors,
(1913) AC 107 :
(1911-13) All ER Rep 241 , p. 246 (HL)(Lord Macnaghten) Corporation of the City of Victoria
v. Bishop of Vancouver Island,
AIR 1921 PC 240 , p. 242(Lord Atkinson) Pakala Narayana Swami v. Emperor,
AIR 1939 PC 47 [
LNIND 1939 PC 1 ], p. 51 (Lord Atkinson) Keshavananda Bharati v. State of Kerala,
AIR 1973 SC 1461 [
LNIND 1973 SC 154 ], p. 1538 :
Mr.Srikanth -
Page 43 of 58
(1973) 4 SCC 225 [

LNIND 1973 SC 154 ]; Nandini Satpathy v. P.L. Dani,
AIR 1978 SC 1025 , p. 1039 :
(1978) 2 SCC 424 ; Chandvarkar Sita Ratna Rao v. Ashalata S. Guram,
(1986) 4 SCC 447 , p. 476 :
AIR 1987 SC 117 ; Union of v. Rajivkumar,
(2003) 6 SCC 516 [
LNIND 2003 SC 563 ], p. 526 :
AIR 2003 SC 2917 [
LNIND 2003 SC 563 ]. Lord Wensleydale himself in [ Abbot v. Middleton
(1858) 28 LJ Ch 110 , p. 114 (HL)], pointed out that the rule was in substance laid down by Mr.
Justice Burton in [ Warburton v. Loveland (1828) 1 Hud & Brooke 623] was described as “a rule of commonsense as strong as can
be ” by Lord Ellenborough in [ Doe v. Jessep (1810) 12 East 288, p. 292], was stated to be “a cardinal rule ” by Lord Cranworth in
Grundy v. Pinnigar, (1852) 1 De GM & G 502 :
(1852) 21 LJ Ch 404 , p. 406 and “the golden rule”, by Jervis, C.J. in Mattison v. Hart, (1854) 14
CB 357 : (1854) 23 LJCP 108, p. 114. In Becke v. Smith,
(1836) 150 ER 724 , p. 726 also Parke, B (before he became Lord Wensleydale) referred to the
rule laid down by Burton, J., in Warburton v. Loveland, supra, and called it a “very useful rule in the construction of a statute”.
13 Corporation of the City of Victoria v. Bishop of Vancouver Island,

AIR 1921 PC 240 , p. 242.
14 Nokes v. Doncaster Amalgamated Collieries Ltd.,

(1940) AC 1014 :
(1940) 3 All ER 549 , p. 553 (HL); Chandvarkar Sita Ratna Rao v. Ashalata S. Guram,
(1986) 4 SCC 447 , p. 476 :
AIR 1987 SC 117 .
15 Shah v. Barnet London Borough Council,

(1983) 1 All ER 226 , pp. 235, 238 (HL).
16 Suthendran v. Immigration Appeal Tribunal,

(1976) 3 All ER 611 , p. 616 :
(1976) 3 WLR 725 (HL) See further Farrel v. Alexander,
(1976) 2 All ER 721 , p. 736 :
(1977) AC 59 (HL); Reference under section 48A of the Criminal Appeal Northern Ireland Act,
1968
(1976) 2 All ER 937 , p. 957 (HL); Stock v. Frank Jones (Tipton) Ltd.,
(1978) 1 All ER 948 , p. 952 :
(1978) 1 WLR 231 (HL); Applin v. Race Relations Board,
(1974) 2 All ER 73 , p. 91 (HL); (The golden rule “always potent is particularly so if there are
forensic situations which Parliament seemingly either did not envisage or preferred not to deal with rather leaving them to the
courts”.). In Kehar Singh v. State,
AIR 1988 SC 1883 [
LNIND 1988 SC 887 ], p. 1945 :
1988 (3) SCC 609 [
LNIND 1988 SC 887 ], Jagannath Shetty J. observed: “During the last several years the golden
rule has been given a go-bye” (para 228). What he here meant by the golden rule is stated by him earlier as ‘the grammatical or
literal meaning unmindful of consequences’ (para 227). The golden rule as stated in the text of which Lord Simon'S formulation is a
modern example, is not unmindful of consequences and the observations of Jagannath Shetty, J., have no application to it. The
confusion arises because the literal rule even without qualification as to consequences is sometimes spoken of as the golden rule. [
See Cross, “Statutory Interpretation”, 3rd Edition, p. 16 (footnote)]. According to Cross, the rule permitting departure from the
literal rule by recourse to the consequences of applying the natural or ordinary meaning is commonly called the golden rule to
distinguish it from the literal and mischief rules. (Cross, pp. 15, 16 supra.). For ‘golden rule of construction’ see also: Maulvi
Hussein Haji Abraham Umarji v. State of
(2004) 6 SCC 672 [
LNIND 2004 SC 1560 ], (para 23) :
AIR 2004 SC 3946 [
LNIND 2004 SC 1560 ]; Lalu Prasad v. State of Bihar,
(2007) 1 SCC 49 [
Mr.Srikanth -
Page 44 of 58
LNIND 2006 SC 1094 ], (para 8) :

(2007) 1 JT 183 .
17 See text and notes 15 and 16 supra.
18 Harbhajan Singh v. Press Council of India,

AIR 2002 SC 1351 [
LNIND 2002 SC 196 ], p. 1354 :
(2002) 3 SCC 722 [
LNIND 2002 SC 196 ] (8th Edition of this book p. 74 is referred) Guru Jambheshwar University
v. Dharam Pal,
(2007) 2 SCC 265 [
LNIND 2007 SC 65 ], (para 16) :
AIR 2007 SC 1040 [
LNIND 2007 SC 65 ][9th Edition (pp. 78, 79) of this book is referred].
19 Suthendran v. Immigration Appeal Tribunal, supra.
20 Jugalkishore Saraf v. Raw Cotton Co. Ltd.,

AIR 1955 SC 376 [
LNIND 1955 SC 21 ], p. 381 :
1955 (1) SCR 1369 [
LNIND 1955 SC 21 ].
21 Kanai Lal Sur v. Paramnidhi Sadhukhan,

AIR 1957 SC 907 [
LNIND 1957 SC 83 ]:
1958 SCR 360 [
LNIND 1957 SC 83 ].
22 Mahadeolal Kanodia v. Administrator General of West Bengal,

AIR 1960 SC 936 [
LNIND 1960 SC 128 ], p. 939 :
1960 (3) SCR 499 .
23 Ibid. Referred to in Union of India v. Filip Tiago De Gamma of Vedum Vasco De Gama,
AIR 1990 SC 981 [
LNIND 1989 SC 598 ], p. 983 :
1990 (1) SCC 277 [
LNIND 1989 SC 598 ] : 1990 Mh CJ 724.
24 S.A. Venkataraman v. State,

AIR 1958 SC 107 [
LNIND 1957 SC 134 ], p. 109 :
1958 SCR 1040 [
LNIND 1957 SC 134 ]. Confirmed by
Constitution Bench in R.S. Nayak v. A.R. Antulay,
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ] :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ]. Same view taken of
Section 19 of Prevention of Corruption Act, 1988 : Prakash Singh Badal v. State of Punjab,
(2007) 1 SCC 1 [
Mr.Srikanth -
Page 45 of 58
LNIND 2006 SC 1091 ]; Lalu Prasad v. State of Bihar,

(2007) 1 SCC 49 [
LNIND 2006 SC 1094 ] :
(2007) 1 JT 183 .
25 Nagendra Nath Dey v. Suresh Chandra Dey,

AIR 1932 PC 165 , p. 167. See further General Accident Fire & Life
Assurance Corporation v. Janmahomed Abdul Rahim,
AIR 1941 PC 6 , p. 9.
26 Siraj-ul-Haq v. Sunni Central Board of Waqf,

AIR 1959 SC 198 [
LNIND 1958 SC 102 ], p. 205 :
1959 SCR 1287 [
LNIND 1958 SC 102 ]; Boota Mal v. Union of India,
AIR 1962 SC 1716 [
LNIND 1962 SC 133 ], pp. 1718, 1719 :
(1963) 1 SCR 70 [
LNIND 1962 SC 133 ]; Municipal Board, Pushkar v. State Transport Authority, Rajasthan,
AIR 1965 SC 458 [
LNIND 1962 SC 383 ], pp. 464, 465, (Paras 22 and 23) : 1963 Supp (2) SCR 373. But see
State of Punjab v. Qaisar Jehan Begum,
AIR 1963 SC 1604 [
LNIND 1963 SC 32 ], p. 1606 :
1964 (1) SCR 971 [
LNIND 1963 SC 32 ]. See also Chapter 1, Title 2 “Intention of the Legislature”, text and notes
75, 76, p. 18.
27 Workmen of National and Grindlays Bank Ltd. v. National and Grindlays Bank Ltd.,
AIR 1976 SC 611 [
LNIND 1976 SC 12 ], p. 618 :
(1976) 1 SCC 925 [
LNIND 1976 SC 12 ] :
(1976) 1 LLJ 463 [
LNIND 1976 SC 12 ].
28 Mardana Mosque v. Badi-ud-din Mohmud,

(1966) 1 All ER 545 , p. 551 (PC). See further F.S. Gandhi v. Commissioner of
Wealth Tax,
AIR 1991 SC 1866 [
LNIND 1990 SC 291 ], p. 1869 :
1990 (3) SCC 624 [
LNIND 1990 SC 291 ] :
(1990) 84 CTR 35 (The word ‘is’ normally referring to the present often has a future meaning
and may also have a past significance.)
29 Harbhan Singh v. Press Council of India,

AIR 2002 SC 1351 [
LNIND 2002 SC 196 ]:
(2002) 3 SCC 722 [
LNIND 2002 SC 196 ].
30 Ibid., p. 1353.
Mr.Srikanth -
Page 46 of 58
31 Raghunath Rai Bareja v. Punjab National Bank,

(2007) 2 SCC 230 [
LNIND 2006 SC 1098 ] (para 43)) :
(2007) 1 JT 542 .
32 Grundy v. Pinniger, (1852) 1 De GM & G 502 :

(1852) 21 LJ Ch 405 , p. 406; quoted by Lord Wensleydale in Abbot V. Middleton,
(1858) 28 LJ Ch 110 , p. 114 (HL). Also approvingly quoted in Raghunath Rai Bareja v. Punjab
National Bank,
(2007) 2 SCC 230 [
LNIND 2006 SC 1098 ] (para 42) :
(2007) 1 JT 542 .
33 Mohori Bibee v. Dharmodas Ghose, ILR 30 Cal 539, pp. 547, 548 : 30 IA 114 (PC).
34 Sales Tax Officer, Benaras v. Kanhaiyalal Mukundlal Saraf,

AIR 1959 SC 135 [
LNIND 1958 SC 107 ], p. 139 :
1959 SCR 1350 [
LNIND 1958 SC 107 ]. The view taken in this case has been modified to this extent that refund
of tax paid under a mistake cannot be allowed if the plaintiff had passed on the burden to others: Mafatlal Industries Ltd. v. Union
of India,
JT 1996 (11) SC 283 [
LNIND 1996 SC 2186 ]:
1997 (5) SCC 536 [
LNIND 1996 SC 2186 ]. For Period of limitation in such suits see Union of India v. West Coast
Paper Mills Ltd.,
(2004) 2 SCC 747 [
LNIND 2004 SC 264 ] :
AIR 2004 SC 1596 [
LNIND 2004 SC 264 ].
35 Bhagchand Dagdusa Gujrathi v. Secretary of State for India,

AIR 1927 PC 176 , p. 185. See further Sawai Singhai Nirmalchand v. Union of
India,
AIR 1966 SC 1068 [
LNIND 1965 SC 235 ]:
1966 (1) SCR 986 [
LNIND 1965 SC 235 ].
36 Tirumalachetti Rajaram v. Tirumalachetti Radhakrishnayya Chetty,

AIR 1961 SC 1795 [
LNIND 1961 SC 213 ], pp. 1797, 1798 :
1962 (2) SCR 452 [
LNIND 1961 SC 213 ].
37 Boota Mal v. Union of India,

AIR 1962 SC 1716 [
LNIND 1962 SC 133 ]:
1963 (1) SCR 70 [
LNIND 1962 SC 133 ].
38 Haji S.K. Subhan v. Madhorao,

AIR 1962 SC 1230 [
LNIND 1961 SC 334 ], pp. 1236, 1238 : 1962 Supp (1) SCR 123. See further
Mr.Srikanth -
Page 47 of 58
Amba Prasad v. Mahboob Ali Shah,

AIR 1965 SC 54 , pp. 58, 59 :
1964 (7) SCR 800 [
LNIND 1964 SC 145 ]; Udai v. Director of Consolidation,
AIR 1990 SC 471 : 1991 (1) SCC 588. [Cases, under section 20, U.P. Zamindari Abolition Act
(1 of 1951)]. But entries in the revenue record can be challenged on the ground that they were fraudulently or surreptitiously made:
Sonawati v. Shri Ram,
AIR 1968 SC 466 [
LNIND 1967 SC 277 ], p. 468 :
1968 (1) SCR 617 [
LNIND 1967 SC 277 ]; Vishwa Vijai v. Fakhrul Hussain,
AIR 1976 SC 1485 [
LNIND 1976 SC 206 ], p. 1488 :
(1976) 3 SCC 642 [
LNIND 1976 SC 206 ]; Wali Mohammad v. Ram Surat,
AIR 1989 SC 2296 [
LNIND 1989 SC 461 ]: 1989 Supp (1) SCR 211 :
(1989) 4 SCC 574 [
LNIND 1989 SC 461 ]. In Gorabai (Smt.) v. Ummed Singh,
(2004) 5 SCC 130 [
LNIND 2004 SC 518 ] :
AIR 2004 SC 2594 [
LNIND 2004 SC 518 ] arising out of the Madhya Bharat Zamindari Abolition Act, 1951
Khudkast land ‘so recorded in the annual village papers before the date of vesting’ was liberally construed and it was held that land
need not be so recorded immediately before the date of vesting.
39 Suraj Ahir v. Prithinath Singh,

AIR 1963 SC 454 [
LNIND 1962 SC 229 ], p. 458 :
1963 (3) SCR 290 [
LNIND 1962 SC 229 ]; affirmed in review—
AIR 1963 SC 1041 [
LNIND 1962 SC 505 ]; Ram Ran Bijai Singh v. Behari Singh,
AIR 1965 SC 524 [
LNIND 1963 SC 128 ], p. 529 :
(1964) 3 SCR 363 [
LNIND 1963 SC 128 ]; Gurucharan Singh v. Kamala Singh,
AIR 1977 SC 5 [
LNIND 1975 SC 333 ]:
(1977) 2 SCC 152 ; Ramesh Bijoy v. Pashupati Rai,
AIR 1979 SC 1769 [
LNIND 1979 SC 287 ]:
1979 (4) SCC 27 [
LNIND 1979 SC 287 ]; Baleshwar Tiwari v. Sheo Jatan Tiwary,
AIR 1997 SC 2089 [
LNIND 1997 SC 1989 ]:
(1997) 5 SCC 112 [
LNIND 1997 SC 1989 ]. But Khas possession of one co-sharer will be Khas possession of all the
co-sharers: Basudevanand v. Harihar,
AIR 1974 SC 1991 [
LNIND 1974 SC 205 ]:
(1974) 2 SCC 514 [
LNIND 1974 SC 205 ]. Similarly “has cultivated” cannot be construed as implying mere
intention to cultivate: P. Venkataswami v. D.S. Ramreddi,
AIR 1976 SC 1066 [
LNIND 1976 SC 63 ]:
1976 (3) SCC 665 [
LNIND 1976 SC 63 ] (overruling Andhra Pradesh High Court).
40 Sitaram v. State of M.P.,

AIR 1962 SC 1146 [
LNIND 1962 SC 53 ]: 1962 Supp (3) SCR 21. See further Public Prosecutor,
Madras v. R. Raju,
Mr.Srikanth -
Page 48 of 58
AIR 1972 SC 2504 [

LNIND 1972 SC 349 ]:
1972 (2) SCC 410 [
LNIND 1972 SC 349 ]. N.B.—But the words ‘any person’ may be used in a limited sense, for
example, see ITO, Sitapur v. Murlidhar Bhagwandas,
AIR 1965 SC 342 [
LNIND 1964 SC 21 ], p. 349 :
1964 (6) SCR 411 [
LNIND 1964 SC 21 ], (para 10). For different meanings of the word ‘person’ see Chapter 5, text
and notes 4 to 9, p. 462.
41 State of Kerala v. Mathai Verghese,

(1986) 4 SCC 746 [
LNIND 1986 SC 461 ] :
AIR 1987 SC 33 [
LNIND 1986 SC 461 ]:
1987 Cri LJ 308 [
LNIND 1986 SC 461 ].
42 S. Narayanswami v. G. Ponneerselvam,
AIR 1972 SC 2284 [
LNIND 1972 SC 221 ], p. 2285 :
1972 (3) SCC 717 [
LNIND 1972 SC 221 ].
43 Craies : Statute Law, 7th Edition, p. 65.
44 Ibid.
45 Lion Insurance Association v. Tucker,

(1883-84) 12 QBD 176 , p. 186. See further Re, Bidie (deceased), Bidie v. General Accident,
Fire and Life Assurance Corporation Ltd.,
(1948) 2 All ER 995 , p. 998 (Lord Greene, M.R.) Captain Subhash Kumar v. Principal Officer,
Mercantile Marine Deptt.,
AIR 1991 SC 1632 , p. 1638:
1991 (2) SCC 449 .
46 ‘Interpretation in English and Continental Law’, Journal of Comparative Legislation, Nov. 1927, quoted in ALLEN:
“Law in the Making”, 5th Edition, p. 482; Union of India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2373 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (L&S) 435.
47 Sutherland : Statutory Construction, 3rd Edition, Vol. II, p. 316.
48 Craies : Statute Law, 7th Edition, p. 66. See further R. v. Brown,

(1996) 1 All ER 545 , p. 560 :
1996 AC 543 :
(1996) 2 WLR 203 (HL): “The unit of communication by means of language is the sentence and
not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of whole;”
(Lord Hoffman). In the felicitious language of judge Learned hand, “the meaning of a sentence may be more than that of the
separate words, as a melody is more than the notes, and no degree of particularity can ever obviate recourse to the setting in which
Mr.Srikanth -
Page 49 of 58
all appear and which all collectively create”; quoted in K.P.Verghese v. Income-tax Officer, Ernakulam,
(1981) 4 SCC 173 [
LNIND 1981 SC 373 ], p. 180 :
AIR 1981 SC 1922 [
LNIND 1981 SC 373 ].
49 Towne v. Eisner, (1917) 245 U.S. 418, at p. 425; Keshavananda Bharati v. State of Kerala,
AIR 1973 SC 1461 [
LNIND 1973 SC 154 ], p. 1497 :
(1973) 4 SCC 225 [
LNIND 1973 SC 154 ], p. 316; Union of India v. Filip Tiago De Gama of Vedem Vasco De
Gama,
AIR 1990 SC 981 [
LNIND 1989 SC 598 ], p. 985 :
1990 (1) SCC 277 [
LNIND 1989 SC 598 ]. According to CORBIN, the description given by Holmes that a word is
“skin of a living thought” is not accurate for according to him a word is “merely a skin ready to be filled with the thought of its
user, to be blown across space until, it can spill its contents into the mind of a receiver”: Arthur L. Corbin in his Foreword to the
Growth of the Law by Benzamin N. Cardozo, Indian Economy Reprint, 2002, p. xiii.
50 Nyadar Singh v. Union of India,

AIR 1988 SC 1979 [
LNIND 1988 SC 854 ], p. 1984 :
1988 (4) SCC 170 [
LNIND 1988 SC 854 ]. To find out the exact connotation of a word in a statute, we must look to
the context in which it is used; Maharaj Singh v. State of U.P.,
AIR 1976 SC 2602 [
LNIND 1976 SC 414 ], p. 2607 :
1977 (1) SCC 155 [
LNIND 1976 SC 414 ]; Thiru Manickam & Co. v. State of Tamil Nadu,
AIR 1977 SC 518 [
LNIND 1976 SC 392 ], p. 521 : 1977 SCC (Tax) 165 :
(1977) 1 SCC 199 [
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2358 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (L&S) 435; State of Kerala v. Ranganatha Reddy,
AIR 1978 SC 209 [
LNIND 1977 SC 301 ], p. 233 :
1978 (1) SCC 1 [
LNIND 1977 SC 301 ]; Prithi Pal Singh v. Union of India,
AIR 1982 SC 1413 [
LNIND 1982 SC 123 ], p. 1419 :
(1982) 3 SCC 140 [
LNIND 1982 SC 123 ]; Municipal Corporation of Greater Bombay v. Bharat Petroleum
Corporation Ltd.,
AIR 2002 SC 1638 [
LNIND 2002 SC 249 ], p. 1643 :
(2002) 4 SCC 609 [
LNIND 2002 SC 286 ].
51 Pinner v. Everett,
(1969) 3 All ER 257 , p. 258 (HL) (LORD REID). See further Maunsell v. Olins,
(1975) 1 All ER 16 , p. 26 :
(1975) AC 373 (HL) : “Statutory language, like all language, is capable of an almost infinite
gradation of ‘register’—i.e., it will be used at the semantic level appropriate to the subject-matter and to the audience addressed (the
man in the street, lawyers, merchants etc.). It is the duty of a court of construction to tune in to such register and so to interpret the
statutory language as to give to it the primary meaning which is appropriate in that register. In other words statutory language must
always be given presumptively the most natural and ordinary meaning which is appropriate in the circumstances.” (Lord Simon)
Mr.Srikanth -
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52 See text and notes 36 (p. 34) and 56 to 60 (pp. 37-38).
53 Special Reference No. 1 of 2002 D/28-10-2002 (Under Article 143(1) of the Consti-tution
AIR 2003 SC 87 [
LNIND 2002 SC 1378 ], p. 138 :
(2003) 8 SCC 237 ). The above discussion was more recently again quoted with approval by
Naolekar J. (from 9th edition pp. 86-7) in ICICI Bankicici Bank v. Municipal Corporation of Greater Bombay,
(2005) 6 SCC 404 [
LNIND 2005 SC 579 ], p. 414 which related to the meaning of ‘advertisement’ in section 328 of
the Bombay Municipal Corporation Act 1988 and which was held to be one denoting the business ac-tivity of the displayer.
54 CROSS: Statutory Interpretation, 3rd Edition, p. 82, where the author quotes DREDGER: “The secondary meaning is
the literal meaning in the context.—Except where a mistake is corrected or a meaning is given to senseless words, there is no such
thing as a literal meaning as distinguished from some other meaning.” DREDGER, Statutes : The Mischievous Golden Rule (1981)
59 Can Bar Rev. 781.
55 Commissioner of Sales Tax, M.P., Indore v. Jaswant Singh Charan Singh,

AIR 1967 SC 1454 [
LNIND 1967 SC 44 ], p. 1457 :
1967 (2) SCR 720 [
LNIND 1967 SC 44 ].
56 Ibid.
57 Akbar Badruddin Jiwani v. Collector of Customs, Bombay,

AIR 1990 SC 1579 [
LNIND 1990 SC 82 ]: 1990 (2) SCC 203 : (1990) 27 ECC 69.
58 Akbar Badruddin v. Collector of Customs,

AIR 1990 SC 1579 [
LNIND 1990 SC 82 ], p. 1595 :
1990 (2) SCC 203 [
LNIND 1990 SC 82 ] : (1990) 27 ECC 69.
59 Ramavatar Budhaiprasad v. Assistant Sales Tax

Officer,
AIR 1961 SC 1325 [
LNIND 1961 SC 107 ], p. 1326 :
1962 (1) SCR 279 [
LNIND 1961 SC 107 ]; followed in Rambux Chaturbhuj v. State of Rajasthan,
AIR 1963 SC 351 [
LNIND 1961 SC 549 ]:
1961 (12) STC 330 .
60 Ibid.
61 Motipur Zamindari Co. v. State of Bihar,

AIR 1962 SC 660 [
LNIND 1961 SC 358 ]: 1962 Supp (1) SCR 498. Sugarcane is not ‘vegetable product’ and sugar
mill is not ‘Processing of vegetable products industry’: AIR Saraswati Sugar Mills v. Haryana State Board,
1992 SC 224 :
Mr.Srikanth -
Page 51 of 58
1992 (1) SCC 418 [

LNIND 1991 SC 546 ]. Chillies and Lemons have been held to be vegetables; Mongulu Sahu
Ramahari Sahu v. Sales Tax Officer, Ganjam,
AIR 1974 SC 390 : 1972 (4) SCC 423. Green ginger has been held to be vegetables; State of
West Bengal v. Washi Ahmed,
AIR 1977 SC 1638 [
LNIND 1977 SC 120 ]: 1977 SCC (Tax) 278 :
(1977) 2 SCC 246 [
LNIND 1977 SC 120 ]. Coconut has been held to be neither ‘fresh fruit’ nor ‘vegetables’, P.A.
Thillai Chidambara Nadar v. Addl. Appellate Assistant Commissioner,
(1985) 4 SCC 30 [
LNIND 1985 SC 230 ] :
AIR 1985 SC 1678 [
LNIND 1985 SC 224 ]. Watery Coconut is neither green fruit nor dried fruit; Shri Bharuch
Coconut Trading Co. v. Municipal Corporation of the City of Ahmedabad,
AIR 1991 SC 494 [
LNIND 1990 SC 943 ]: 1992 Supp (1) SCC 298.
62 CCE v. Krishna Carbon Paper Co.,

AIR 1988 SC 2223 [
LNIND 1988 SC 455 ], pp. 2228, 2229 :
1989 (1) SCC 150 [
LNIND 1988 SC 455 ].
63 Trimbuk Kothul v. State of Maharashtra,

AIR 1977 SC 435 [
LNIND 1976 SC 435 ], p. 440 :
1977 (1) SCC 300 [
LNIND 1976 SC 435 ].
64 United Offset Process Pvt. Ltd. v. Asstt. Collector of Customs,

AIR 1989 SC 622 [
LNIND 1988 SC 516 ], p. 624 : 1989 Supp (1) SCC 131; Union of India v. Garware Nylons Ltd.,
AIR 1996 SC 3509 [
LNIND 1996 SC 1419 ], p. 3512 :
1996 (6) Scale 667 [
LNIND 1996 SC 1419 ], p. 672 :
(1996) 10 SCC 413 [
LNIND 1996 SC 1419 ] (Sixth Edition of this book, p. 67 is referred) Municipal Corporation for
the City of Thane v. Asmaco Plastic Industries,
1998 (4) Scale 196 [
LNIND 1998 SC 615 ], p. 199 :
JT 1998 (5) SC 1 , p. 15 :
AIR 1998 SC 2440 [
LNIND 1998 SC 615 ]:
(1999) 1 SCC 372 ; Alpine Industries v. Collector of Central Excise New Delhi,
(2003) 3 SCC 111 [
LNIND 2003 SC 27 ], p. 114 (para 5) :
AIR 2003 SC 935 [
LNIND 2003 SC 27 ]; Naturalle Health Products (P.) Ltd. v. Collector of Central Excise,
AIR 2004 SC 669 [
LNIND 2003 SC 977 ], p. 681 (para 41) :
(2004) 9 SCC 136) [
LNIND 2003 SC 977 ] (Ayurvedic medicine). For test to determine whether an article is
‘medicament’ (medicinal preparation) or cosmetic, see Puma Ayurvedic Herbal (P) Ltd. v. Commissioner Central Excise,
(2006) 3 SCC 266 [
LNIND 2006 SC 169 ] :
AIR 2006 SC 1561 [
LNIND 2006 SC 169 ] and cases referred to therein.
Mr.Srikanth -
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65 Sarin Chemical Laboratory v. Commissioner of Sales Tax, U.P.,

AIR 1971 SC 65 [
LNIND 1970 SC 295 ]:
1970 (2) SCC 403 [
LNIND 1970 SC 295 ]. See further State of Gujarat v. Prakash Trading Co., Ahmedabad,
AIR 1973 SC 960 [
LNIND 1972 SC 374 ]:
1972 (2) SCC 689 [
LNIND 1972 SC 374 ].
66 Sales Tax Commissioner, U.P. v. Ladha Singh Mal Singh,

AIR 1971 SC 2221 [
LNIND 1971 SC 326 ]:
1971 (2) SCC 407 [
LNIND 1971 SC 326 ]. See further Commissioner of Sales Tax, U.P. v. S.N. Bros., Kanpur,
AIR 1973 SC 78 [
LNIND 1972 SC 524 ], p. 80 : 1973 SCC (Tax) 254 (“Dyes and colours” will not include “food
colours” and “Scents and perfumes” will not include “syrup essences”). Avadh Sugar Mills Ltd. v. Sales Tax Officer, Sitapur,
AIR 1973 SC 2440 [
LNIND 1973 SC 46 ]: 1973 SCC (Tax) 569 (“Oil seeds” will include groundnut) State of Uttar
Pradesh v. Kores (India) Ltd.,
AIR 1977 SC 132 [
LNIND 1976 SC 373 ]: 1977 SCC (Tax) 40 :
(1976) 4 SCC 477 [
LNIND 1976 SC 373 ]. (Carbon paper is not covered in the expression “paper other than hand
paper” and typewriter ribbon is not included in “typewriters and parts thereof”) Commissioner of Sales Tax, U.P. v. Macneill and
Barry Ltd., Kanpur,
(1986) 1 SCC 23 [
LNIND 1985 SC 345 ] :
AIR 1986 SC 386 [
LNIND 1985 SC 345 ](Ammonia paper and Ferropaper are not covered in the expression ‘paper
other than hand made paper’) State of Uttar Pradesh v. Indian Hume Pipe Co. Ltd.,
AIR 1977 SC 1132 [
LNIND 1977 SC 115 ]: 1977 SCC (Tax) 335. (Sanitary fitting does not cover “RCC or Hume
pipes which are extremely heavy for use in lavatories, urinals or bathrooms etc.”) Deputy Commissioner of Sales Tax v. G.S. Pai &
Co.,
AIR 1980 SC 611 [
LNIND 1979 SC 409 ]:
1980 (1) SCC 142 [
LNIND 1979 SC 409 ]. (“Bullion Specie” does not include ornaments or articles of gold) P.S.T.
Data System Ltd. v. Collector Central Excise,
AIR 1997 SC 785 [
LNIND 1996 SC 2169 ]:
(1997) 2 SCC 78 [
LNIND 1996 SC 2169 ] (Software e.g. floppies, discs etc. sold alongwith computer not covered
in tariff item ‘computers all sorts’) Associated Cement Companies Ltd. v. Commissioner of Customs,
AIR 2001 SC 862 [
LNIND 2001 SC 226 ]:
(2001) 4 SCC 593 [
LNIND 2001 SC 226 ] (Drawings designs relating to machinery or industrial technology are
‘goods’ under
s. 2(22)(e) of the Customs Act and chargeable to duty under Chapter 49 of the Customs Tariff Act, 1975).
67 Ganesh Trading Co. v. State of Haryana,

AIR 1974 SC 1362 , p. 1363 : 1974 SCC (Tax) 100 :
(1974) 3 SCC 620 affirmed in Baburam Jagdish Kumar & Co. v. State of Punjab,
(1979) 3 SCC 616 [
LNIND 1979 SC 272 ] :
AIR 1979 SC 1475 [
LNIND 1979 SC 272 ]; Satnam Overseas (Eport) v. State of Haryana,
(2003) 1 SCC 561 , pp. 583, 584 :
AIR 2003 SC 66 [
LNIND 2002 SC 659 ]. See further Mukesh Kumar Aggarwal & Co. v. State of M.P.,
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AIR 1988 SC 563 [

LNIND 1987 SC 862 ], p. 564 : 1988 Supp SCC 232 (“The comman commercial” sense of the
words and not “their scientific or technical sense” is to be adopted for our merchants are not supposed to be “naturalists, geologists
or botanists”) State of Goa v. Lieukoplast (India) Ltd.,
AIR 1997 SC 1875 [
LNIND 1997 SC 356 ], pp. 1877, 1878 :
1997 (4) SCC 82 [
LNIND 1997 SC 356 ] (The question whether certain articles could in ordinary commercial sense
be treated as ‘drugs and medicines’ in a Sales Tax Act is a question of fact to be agitated before the authorities under the Act)
Union of India v. Garware Nylons Ltd.,
AIR 1996 SC 3509 [
LNIND 1996 SC 1419 ], p. 3512 :
1996 (6) Scale 667 [
LNIND 1996 SC 1419 ], p. 672 :
(1996) 10 SCC 413 [
LNIND 1996 SC 1419 ] (Sixth Edition of this book, p. 67 is referred).
68 Ganesh Trading Co., Karnal v. State of Haryana, supra. Flour, maida and suji derived from wheat
are not ‘wheat’: Rajasthan Roller Flour Mills Association v. State of Rajasthan,
AIR 1994 SC 64 [
LNIND 1993 SC 652 ]: 1994 Supp (1) SCC 413. Seeds prepared after applying insecticides and
other chemicals to foodgrains are not ‘agricultural produce’; State of Rajasthan v. Rajasthan Input Dealers Association,
AIR 1996 SC 2179 [
LNIND 1996 SC 1032 ]:
(1996) 5 SCC 479 [
LNIND 1996 SC 1032 ]. Followed in Krishi Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej
Ltd.,
(2004) 1 SCC 391 [
LNIND 2003 SC 1036 ] :
(2003) 9 JT 548 but distinguished in Seedsman Association v. Principal Secretary Govt. of A.P.,
AIR 2004 SC 1690 [
LNIND 2004 SC 186 ]:
(2004) 9 SCC 56 [
LNIND 2004 SC 186 ] (In this case there was no allegation that seeds became unfit for human
consumption).
69 Porritts and Spencer (Asia) Ltd. v. State of Haryana,

AIR 1979 SC 300 [
LNIND 1978 SC 226 ]:
(1979) 1 SCC 82 [
LNIND 1978 SC 226 ] : 1979 SCC (Tax) 38. But only those varieties of felt constitute ‘Cloth’
which are pliable and capable of being wrapped folded or wound around, Filterco v. Commissioner of Sales Tax,
(1986) 2 SCC 103 [
LNIND 1986 SC 30 ] :
AIR 1986 SC 626 [
LNIND 1986 SC 30 ]. Carpets are covered by ‘textiles’; Ess De Carpet Enterprises v. Union of
India,
AIR 1990 SC 455 [
LNIND 1989 SC 612 ]:
(1990) 1 SCC 461 [
LNIND 1989 SC 612 ]. The terms ‘yarn’ and fibre in the definition of ‘textiles’ in the
Textiles Committee Act, 1963 to be understood in the popular commercial sense as prevalent in the textile industry;
Sir Silk Ltd. v. Textiles Committee,
AIR 1989 SC 317 [
70 Royal Hatcheries Pvt. Ltd. v. State of Andhra Pradesh,

AIR 1994 SC 666 : 1993 (6) JT 248. Compare and Contrast ITC Ltd. v. Person in charge
Agricultural Market Committee Kakinada,
(2004) 2 SCC 794 [
LNIND 2004 SC 135 ], pp. 798, 799 :
Mr.Srikanth -
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AIR 2004 SC 1794 [

LNIND 2004 SC 429 ][Construction of definition of Livestock in the A.P. (Agricultural Produce
and Livestock) Markets Act, 1966; ‘Fish’, ‘Prawn’ held to be ‘animal’ within the definition of Livestock.] See further text and note
50, p. 180.
71 Healthways Dairy Products Co. Regd., Gauhati v. Union of India,

AIR 1976 SC 2221 [
LNIND 1975 SC 391 ], p. 2222 :
1976 (2) SCC 887 [
LNIND 1975 SC 391 ]. Same test applied in construing exemption granted in respect of ‘all
kinds of food products and food preparations’ and in holding that the exemption did not cover non-alcoholic beverage bases like
Gold Spot base, Limca base or Thumps up base; Collector of Central Excise v. Parle Exports Ltd.,
AIR 1989 SC 644 [
LNIND 1988 SC 559 ]:
1989 (1) SCC 345 [
LNIND 1988 SC 559 ]. Similarly exemption granted for ‘Broadcasting television receiver’ was
interpreted not to cover ‘Projection television receiver Set’ for the two are entirely different products in the mind of consumers:
Collector of Central Excise v. Fusebase Eltoto Ltd.,
AIR 1994 SC 1289 , p. 1291 :
1993 (4) JT 280 : 1993 Sup (3) SCC 385. For other cases under the
Central Excises Act, 1944 and Indian Tariff Act, 1934, see text and notes 6 to 11, pp. 104 to 108 and notes 20 to
26, pp. 109-10. For a case under the
Companies (Profits) Surtax Act, 1964 see CIT, Bombay v. NS Fibres,
AIR 1981 SC 1524 : (1981) 3 SCC 152.
72 Oswal Agro Mills Ltd. v. Collector of Central Excise,

AIR 1993 SC 2288 [
LNIND 1993 SC 393 ]:
1993 (3) JT 260 : 1993 Supp (3) SCC 716 :
(1993) 66 ELT 37 [
LNIND 1993 SC 393 ].
73 Ibid, p. 2295.
74 Commissioner of Customs v. Parassampuria,

AIR 2001 SC 3501 [
LNIND 2001 SC 1873 ], p. 3506 :
(2001) 9 SCC 74 [
LNIND 2001 SC 1873 ] :
(2001) 133 ELT 9 .
75 Fenner (India) Ltd. v. Collector of Central Excise,

1995 (2) Scale 508 , p. 510 : 1995 Supp (2) SCC 678. See further Collector of
Central Excise, Hyderabad v. Bakelite Hylam Ltd.,
AIR 1997 SC 1988 [
LNIND 1997 SC 1867 ], p. 1991 :
1997 (3) JT 639 :
(1997) 10 SCC 350 [
LNIND 1997 SC 1867 ] .K (The Central Excise Tariff Act, 1986 is based on the (HSN)
Harmonised System of Nomenclature and the internationally accepted nomenclature has been adopted to reduce disputes on
account of tariff classification. Accordingly HSN is a safe guide for ascertaining the true meaning of any expression in the Act.
Further the Act lays down specific Rules of Interpretation and contains Notes which govern the Interpretation of various entries in
it) Union of India v. Pesticides Manufacturing & Formulators Association of India,
(2002) 8 SCC 410 [
LNIND 2002 SC 653 ], p. 419 (HSN nomenclature of insecticides used); Forbes Gokak Ltd. v.
Collector of Central Excise Aurangabad,
(2003) 6 SCC 128 [
LNIND 2003 SC 247 ] (construction in confirmity with HSN explanatory notes and Rules for
Mr.Srikanth -
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interpretation of schedule). Commissioner of Central Excise Nagpur v. Simplex Mills Co. Ltd.,
(2005) 3 SCC 51 [
LNIND 2005 SC 212 ], p. 56 (Rules for interpretation of the Schedule applied); DCL Poloyester
Ltd. Nagpur v. Collector of Central Excise Customs, Nagpur,
(2005) 3 SCC 455 [
LNIND 2005 SC 171 ], p. 466 (para 22) (Rules of Interpretation applied); O.K. Play (India) Ltd.
v. Commissioner Central Excise Delhi,
(2005) 2 SCC 460 [
LNIND 2005 SC 110 ] (HSN and explanatory notes thereto provide a safe guide); Muller and
Phipps (India) Ltd. v. Collector of Central Excise,
(2004) 4 SCC 787 [
LNIND 2004 SC 600 ], p. 797 (when HSN meaning not to be followed). Bakelite Hylam Ltd. v.
Collector of Central Excise, Hyderabad,
JT 1998 (5) SC 77 [
LNIND 1998 SC 606 ], pp. 80, 81 :
AIR 1998 SC 2556 [
LNIND 1998 SC 606 ], p. 2558 (If the tariff item contains its own definition that has to be
followed in preference to popular meaning); Sprint R.P.G. India Ltd. v. Commissioner of Customs,
AIR 2000 SC 749 [
LNIND 2000 SC 136 ], p. 753 :
(2000) 2 SCC 486 [
LNIND 2000 SC 136 ] :
(2002) 116 ELT 6 (Rules of Interpretation contained in First Schedule to the Customs Tariff Act
applied in holding that imported computer software loaded on hard disk drive is taxable under heading 85.24, as ‘computer
software’ and not as ‘hard disk’ simpliciter under heading 84.71) Commissioner of Control Excise Pondicherry v. ACER India Ltd.,
(2004) 8 SCC 173 [
LNIND 2004 SC 972 ], pp. 188, 193 :
(2004) 7 JT 248 (Computer and Software are different marketable commodities. Rule 1 of
General rules of Interpretation contained in the schedule applied).
76 Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, Pimpri

Waghere,
AIR 1976 SC 2463 [
LNIND 1976 SC 291 ], pp. 2466, 2468 : 1976 SCC (Tax) 457 :
(1976) 4 SCC 177 [
LNIND 1976 SC 291 ].
77 Hardwick Game Farm v. Suffolk etc. Association Ltd.,

(1966) 1 All ER 309 , pp. 323, 324, 334 (CA); affirmed in appeal on this point
(1968) 2 All ER 444 (HL). See further Earl of Normanton v. Giles,
(1980) 1 All ER 106 :
(1980) 1 WLR 28 (HL). (Pheasants reared for sport are not ‘livestock’ and rearing of pheasants
is not agriculture.)
78 Hardwick Game Farm v. Suffolk etc. Association Ltd.,

(1966) 1 All ER 309 , pp. 323, 324, 334 (CA).
79 Forest Range Officer v. Khushboo Enterprises,

AIR 1994 SC 120 [
LNIND 1993 SC 425 ], p. 124 :
1993 (3) JT 222 : 1993 Supp (3) SCC 627.
80 Dinesh Chandra Jamanadas Gandhi v. State of Gujarat,

AIR 1989 SC 1011 [
LNIND 1989 SC 31 ], p. 1017 :
1989 (1) SCC 420 [
LNIND 1989 SC 31 ].
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81 CIT (Central), Calcutta v. Moon Mills Ltd.,

AIR 1966 SC 870 [
LNIND 1965 SC 271 ], p. 872 (para 4) :
1966 (2) SCR 393 [
LNIND 1965 SC 271 ]. See further under title (d) ‘Technical words in Technical Sense’, infra.
82 Ibid; Challapalli Sugar Ltd. v. Commissioner of Income-tax,

A.P.,
AIR 1975 SC 97 [
(1975) 3 SCC 572 [
LNIND 1974 SC 336 ].
83 Inland Revenue Commissioners v. Rowntree and Co. Ltd.,

(1948) 1 All ER 482 (CA); Commissioner of Income-tax v. Bazpur Co-operative Sugar Factory
Ltd.,
AIR 1989 SC 1866 [
LNIND 1989 SC 276 ], p. 1870 :
1989 (2) JT 562 .
84 Nawab Estates (P) Ltd. v. Commissioner of Income-tax, West Bengal,

AIR 1977 SC 153 [
LNIND 1976 SC 369 ], pp. 156, 157 :
1977 (1) SCC 7 [
LNIND 1976 SC 369 ].
85 Challapali Sugars Ltd. v. Commissioner of Income-tax, A.P., supra (meaning of

‘actual cost’) Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income-tax,
AIR 1999 SC 1455 [
LNIND 1999 SC 1473 ], p. 1459 :
(1999) 4 SCC 306 [
LNIND 1999 SC 1473 ] (meaning of ‘loss’); Collector of Central Excise Pune v. Dai Ichi
Karkaria Ltd.,
JT 1999 (5) SC 595 , pp. 606, 607 :
AIR 1999 SC 3234 [
LNIND 1999 SC 672 ], p. 3241 (meaning of ‘cost’) :
(1999) 7 SCC 448 [
LNIND 1999 SC 672 ]; Commissioner Central Excise, Pune v. Cadbury India Ltd.,
(2006) 7 SCC 228 [
LNIND 2006 SC 574 ] (para 12) :
AIR 2006 SC 2838 [
LNIND 2006 SC 574 ](meaning of ‘cost’).
86 Rathi Khandsari Udyog v. State of Uttar Pradesh,

(1985) 2 SCC 485 [
LNIND 1985 SC 62 ], p. 506 :
AIR 1985 SC 679 [
LNIND 1985 SC 62 ]: 1985 All LJ 226.
87 Wilma E. Addison v. Holly Hill Fruit Products, 322 US 607, p. 618 : 88 Law Ed 1488, p. 1496. See
further Union of India v. Garware Nylons Ltd.,
AIR 1996 SC 3509 [
LNIND 1996 SC 1419 ], p. 3512 :
1996 (6) Scale 667 [
LNIND 1996 SC 1419 ], p. 672 (passages from Sixth Edition, p. 70 of this book are referred).
Mr.Srikanth -
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88 Commr. of Sales Tax, M.P., Indore v. Jaswant Singh Charan Singh,

AIR 1967 SC 1454 [
LNIND 1967 SC 44 ], p. 1457 :
1967 (2) SCR 720 [
LNIND 1967 SC 44 ]. See further text and notes 55 and 56, p. 93. Union of India v. Garware
Nylons Ltd.,
AIR 1996 SC 3509 [
LNIND 1996 SC 1419 ], p. 3512 :
1996 (6) Scale 667 [
LNIND 1996 SC 1419 ], p. 672 :
(1996) 10 SCC 413 [
LNIND 1996 SC 1419 ] (passages from Sixth Edition, p. 70 of this book are referred).
Maheshwari Fish Seed Farm v. T.N. Electricity Board,
(2004) 4 SCC 705 [
LNIND 2004 SC 498 ], p. 710 :
AIR 2004 SC 2341 [
LNIND 2004 SC 498 ](9th Edn., p. 95 of this book is referred. ‘Agriculture’ for purposes of T.N.
Revision of Tariff Rates on Supply of Electrical Energy Act, 1978 will not include aquaculture/pisiculture).

(1946) 1 All ER 255 , p. 271 :
1946 AC 278 (HL).

(1955) 2 All ER 345 , p. 348 (HL).
91 Treacy v. Director of Public Prosecutions,

(1971) 2 WLR 112 , p. 128 :
(1971) 1 All ER 110 :
1971 AC 536 (HL). For further illustration of the application of this method see
Thomas v. Frayer,
(1970) 2 All ER 1 , p. 5 (CA) (letters ‘g’ and ‘h’).
92 Treacy v. Director of Public Prosecutions,

(1971) 2 WLR 112 , p. 128 :
1971 AC 537 (HL).
93 Collector of Central Excise Pune v. Dai Ichi

Karkaria Ltd.,
JT 1999 (5) SC 595 , p. 607 :
AIR 1999 SC 3234 [
LNIND 1999 SC 672 ], pp. 3241, 3242 :
(1999) 7 SCC 448 [
LNIND 1999 SC 672 ]. For MODVAT and CENVAT schemes, see further
Vikram Cement v. Commissioner Central Excise, Indore,
(2006) 2 SCC 351 [
LNIND 2006 SC 38 ] :
(2006) 1 JT 385 .
94 See Chapter 1, title 3 ‘Statute must be Read as a whole in its context’.
95 See title 4 ‘Regard to Consequences’, infra.
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96 Prithipal Singh v. Union of India,

AIR 1982 SC 1413 [
LNIND 1982 SC 123 ], p. 1419 :
(1982) 3 SCC 140 [
LNIND 1982 SC 123 ]; A.P. Board for Pollution Control v. Andhra Pradesh Rayons Ltd.,
AIR 1989 SC 611 , p. 615 :
(1989) 1 SCC 44 [
LNIND 1988 SC 494 ].
97 Spillers Ltd. v. Caradix Assessment Committee & Pritchard,

(1931) 2 KB 21 :
(1931) All ER Rep 524 , pp. 528, 529. Distinguished in Attorney-General's Reference (No. 1 of
1988),
(1989) 2 All ER 1 (HL).
1 Mayor, Councillors and Burgesses v. Taranaki Electric Power Board,

AIR 1933 PC 216 . See further Buckinghamshire County Council v. Trigg,
(1963) 1 All ER 403 , p. 406 (words ‘adjoins’, ‘fronts’ or ‘abuts’ envisage actual contact). Cf.
Mayor, etc. of the City of Wellington v. Mayor, etc. of Lower Hutt,
(1904) AC 773 , p. 775 (PC) (word ‘adjacent’ includes place close to or near and not only places
adjoining). Also see, Hukma v. State of Rajasthan,
AIR 1965 SC 476 [
LNIND 1963 SC 207 ], p. 479 :
1964 (4) SCR 708 [
LNIND 1963 SC 207 ] (the words ‘areas adjoining the Land Customs Frontier’ do not mean only
a few miles touching the frontier but may include an entire district or even an entire State adjoining the frontier).
2 Attorney-General's Reference (No. 1 of 1988),

(1989) 2 All ER 1 (HL).
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 2
Guiding Rules
The power, therefore, given to a Surveyor under section 65 of the English Highways Act, 1835 to
‘lop’ trees growing near a highway was construed as conferring the power to cut off the branches
but not to ‘top’, i.e., to cut off the top of the tree.12 Illustrating the principle, said Lord Esher :
“The ‘waist’ or the ‘skin’ are well-known terms applied to a ship and nobody would think of their
meaning the waist or skin of a person when they are used in an Act of Parliament dealing with
ships”.13 Similarly, construing the word ‘practice’ in Supreme Court Advocates (Practice in High
Court) Act, 1951, Patanjali Shastri, C.J. said: “The practice of law in this country generally
involves the exercise of both the functions of acting and pleading on behalf of a litigant party;
accordingly when the Legislature confers upon an advocate ‘the right to practice’ in a court, it is
legitimate to understand that expression as authorising him to appear and plead as well as to act
on behalf of suitors in that Court”.14
In applying the rule, however, its limitations must be kept in view. The special meaning
contended for a particular word must have been understood as such by all those conversant with
the trade, business or industry concerned, that is, by the class as a whole and not by a portion
only, viz., the management of the industry. Further, this general understanding and acceptance of
a special meaning must have been in vogue at the time of the passing of the Act using the
particular word for which that meaning is contended.15 Because of these limitations of the rule the
House of Lords did not accept the contention that the phrase ‘Permanent way’ or ‘Permanent way
man’ has a special meaning in the Railway Industry.16 Evidence to show that a word has acquired
a special meaning in the business or industry concerned is admissible.17 It has been suggested that
in dealing with economic and technological laws the court should have the benefit of expert
advice in the shape of assessor evidence.18 Further the opinion expressed by the relevant
Government Department which is expected to have expert knowledge in the matter may be relied
upon. So a non-statutory notification of the Ministry of Finance declaring Dhania, Jeera, Postak
and Methi to be oil-seeds under section 14, item VI of the
Central Sales Tax Act, 1956 , was relied upon for holding that these articles are
Mr.Srikanth -
Page 2 of 58
included in the expression ‘oil-seeds’.19
In dealing with a question of Excise duty on ‘refined oil’, it was held that purification of raw oil in
the process of manufacture of Vanaspati where deodorization is done after hydrogenation does
not at any stage transform the oil into refined oil as known to the consumers and commercial
community because in commercial world oil is always deodorised before it is marketed as refined
oil.20 In reaching this conclusion the Supreme Court considered the evidence of manufacturers of
refined oil and the specification of refined oil by the Indian Standards Institution. In similar
context it was held that kiln gas produced by burning limestone and coke in a lime kiln and used
in the manufacture of sugar by carbonisation process and of soda ash by solvay ammonia soda
process is not ‘carbondioxide’ as known to the trade.21 These cases were distinguished in a later
case where it was held that uncut circles manufactured by rolling bellets of copper alloys were
liable to Excise duty as ‘circles of any form’. It was pointed out that no evidence had been led to
show that in commercial community uncut circles are not known as circles.22 Similarly,
commercial sense will not have much relevance in the context of goods which are not marketable,
and in such cases, what will have to be seen, in the context of a tariff schedule, is whether the
broad description of the article in question fits in with the expression used in the tariff.23 For this
reason ‘properzi rods' $Kwere held to fall within the description of ‘wire rods’in entry 27(a)(ii) of
the first schedule to the Central Excises and Salt Act, 1944.24 If the Legislature has itself adopted
a technical term in a tariff schedule, then that entry has to be understood in the technical sense and
an article falling within the ambit of the technical term cannot be relegated to the residuary
entry.25 On this reasoning the entry of ‘Cellulose Ether’ in the Central Excise Tariff Act, 1986
was held to include an article manufactured under the name ‘Sodium Carboxymethye Cellulose’
which was tested and found to be Cellulose Ether.26
In construing item 8 in the Schedule to the

Minimum Wages Act, 1948 , which reads ‘Employment in stone breaking or stone
crushing’, it has been pointed out that the activity of stone breaking or stone crushing in
commercial world means that activity by which common rock is reduced to fragments by
mechanical means—such fragments being marketed and used for profit.27 On this reasoning the
incidental activity of breaking stones to get at manganese in a manganese mine has not been held
to be stone breaking or stone crushing.28 Similarly the removal of thick layers of limestone by
breaking for reaching the thin layers which are cut into flooring stones and are marketed as such
has also not been held to be stone breaking or stone crushing operation in commercial sense.29
The context may show that a word having a special meaning in commercial world has not been
used in that sense. The word ‘hank’ in commercial world is understood to mean a coil of yarn of
840 yards in length but in certain notifications issued under the Central Excise Rules, 1944, it was
construed in its ordinary sense to mean a coil of yarn not of any particular length.30 The court
interpreting tariff entries may have to consider both, trade meaning and dictionary meaning and
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adopt that meaning which is suited in the context.31 Applying this method cigarette packets were
held to be ‘boxes’ and not ‘other packing containers’ while interpreting tariff item 17(4) of the
Central Excise and Salt Act 1944 which refers to ‘boxes, cartons, bags and other packing
containers’.32
(ii) Legal sense of words.—On the same principle when words acquire a technical meaning
because of their consistent use by the Legislature in a particular sense or because of their
authoritative construction by superior courts, they are understood in that sense when used
in a similar context in subsequent legislation.33 This is also sometimes referred to as the
legal sense of such words.34 When a word has acquired a special connotation in law,
dictionaries cease to be helpful in interpreting that word.35 The context may, however,
show that the Legislature intended to use the word in its literal sense and not in its legal
sense.36
In construing the words ‘beyond the seas’and in holding that the said words have acquired a
technical meaning and are synonymous in legal import with the words ‘out of the realm’ or ‘out
of territories’. Sir John Jervis speaking for the Judicial Committee of Privy Council said: “These
words ‘beyond the seas’ are of extensive application in the law, many ancient rights being saved
by the common law to persons ‘beyond the seas’. It is, therefore, of considerable importance to
ascertain what has been deemed to be the legal import and meaning of them, because, if it shall
appear that they have long been used, in a sense which may not improperly be called technical,
and have been judicially construed to have a certain meaning, and have been adopted by the
Legislature in that sense long prior to the statute, the rule of construction of statutes will require
that the words in the Statute should be construed according to the sense in which they had been so
previously used, although that sense may vary from the strict literal meaning of them”.37
As stated by Lord Macnaghten: “In construing Acts of Parliament, it is a general rule, that words
must be taken in their legal sense unless the contrary intention appears”.38 The words ‘charitable
institution’ have thus a technical meaning and it has been held that ‘Lost Dogs Home’ is such an
institution.39
Similarly, the words, ‘Judgment’ and ‘Final Order’ have acquired a technical meaning.
‘Judgment’ means “the declaration or final determination of the rights of the parties in the matter
brought before the court” and ‘Final Order’ means “an order which finally determines the rights
of the parties and brings the case to end”.40 These words were given the same meaning by the
Privy Council in construing
section 109 of the Code of Civil Procedure, 1908 ;41 by the Federal Court in construing
section 205 of the Government of India Act of 1935;42 and by the Supreme Court in construing
Articles 133 and
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134 of the
Constitution .43 A decision arrived at in the consultative jurisdiction of the High Court
was therefore held not to be a judgment or final order within the meaning of cl. 39 of the Letters
Patent (Bombay), or cl. 31 of the Letters Patent (Patna).44
In construing the expression ‘taxes on sale of goods’as they occur in entry 48, List II, Government
of India Act, 1935, the Supreme Court rejected the argument that supply of materials under a
building contract amounts to sale and held that the words ‘sale of goods’ have been used in the
entry in the legal sense which comprises of two essentials (i) agreement to sell movable for a
price and (ii) property passing therein pursuant to that agreement. Venkatarama Aiyer, J.,
explaining the principle of construction observed: “The ratio of the rule of interpretation that
words of legal import occurring in a statute should be construed in their legal sense is that those
words have, in law, acquired a definite and precise sense and that, accordingly, the legislative
must be taken to have intended that they should be understood in that sense. In interpreting an
expression used in a legal sense, therefore, we have only to ascertain the precise connotation
which it possesses in law”.45 The rule stated above was applied in construing the expression
‘undischarged insolvent’ in
Article 191(1)(c) of the Constitution 46
. It was held that the said expression has acquired
a legal sense in the law of insolvency meaning a person adjudged insolvent by the Insolvency
court and not discharged by the Court under the Insolvency Act, and it is this meaning which is to
be applied to that expression in Article 191(1)(c) and not the general sense of a person who is in
impecunious circumstances unable to repay his debts.47
Similarly in dealing with section 73 of the Bombay Municipality Boroughs Act, 1925 which
authorises a municipality to impose ‘a rate on buildings or lands’ the Supreme Court held that the
word ‘rate’ should be construed in a technical sense because it had acquired a special meaning to
connote a tax imposed by local authorities on the annual value which is arrived at by one of three
modes namely: (i) actual rent fetched, (ii) where it is not let, rent based on hypothetical tenancy
and (iii) where either of these two modes is not available by valuation based on capital value.48 It
was further held that the rate could not be imposed at a percentage of capital value though it could
be imposed on a percentage of annual value derived from capital value.49 For the same reason a
rate on land and buildings cannot be levied on a flat rate method according to floor50 or on
machinery situate on the building.51
And in construing item 2 of Schedule III to the

Payment of Bonus Act, 1965 , it was observed that the words ‘working funds’ when
used in the context of a banking company must be understood in the technical sense which they
have acquired in that context. Reference in this connection was made to Sen Award of 1949 and
Sastri Award of 1953. The words ‘working funds’ were therefore, construed to mean ‘paid-up
capital, reserves and average of the deposits for 52 weeks of each year for which weekly returns
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of deposits are submitted to the Reserve Bank of India’.52
But the intention of the Legislature may not be to use a word or expression having a legal
meaning in that sense and to use it in its natural or literal sense. Section 32 of the Race Relations
Act, 1976 (U.K.) provides that acts of racial discrimination done by a person ‘in the course of his
employment’ shall be treated as done by his employer as well as by him, whether or not it was
done with the employer's knowledge or approval. The words ‘in the course of employment’ have
a technical or legal meaning in the tort law relating to vicarious responsibility. But that meaning
of the words in Section 32 would have severely restricted its operation and largely frustrated the
object of the Act to prevent racial discrimination. Therefore in interpreting Section 32 the words
in question were given their natural everyday meaning.53 Similarly the word ‘consideration’
which has a technical meaning in contract law was construed to be used not in that sense but in a
broad sense in Section 25(a) of the Greater London Council (General Powers) Act, 1978.54 The
section defines ‘use as temporary sleeping accommodation’ to mean also ‘use for a consideration
and arising by reason of the employment of the occupant’. The purpose of the legislation was
plainly to enable the planning authority to control short term transitory occupation by employees
and their families visiting London. This purpose would have been frustrated if planning authority
was required to consider in each case whether the occupation was linked to some contractual
obligation of the person using the flat so as to be ‘consideration’ for it in the contractual sense. It
was, therefore, held that the word ‘consideration’ was not used in that sense but in a broad sense
and it was sufficient that the flat was used ‘by the reason of’ or ‘on account of’ the existence of
employment relationship.55
3. REGARD TO SUBJECT AND OBJECT
(a) General
As stated earlier56 and as approved by the Supreme Court: “The words of a statute, when there is
doubt about their meaning, are to be understood in the sense in which they best harmonise with
the subject of the enactment and the object which the Legislature has in view. Their meaning is
found not so much in a strict grammatical or etymological propriety of language, nor even in its
popular use, as in the subject or in the occasion on which they are used, and the object to be
attained”.57 The courts have declined “to be bound by the letter, when it frustrates the patent
purposes of the statute”.58 In the words of Shah, J.: “It is a recognised rule of interpretation of
statutes that expressions used therein should ordinarily be understood in a sense in which they
best harmonise with the object of the statute, and which effectuate the object of the Legislature”.59
Therefore, when two interpretations are feasible the court will prefer that which advances the
remedy and suppresses the mischief as the Legislature envi-sioned.60 The Court should adopt an
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object oriented approach keeping in mind the principle that legislative futility is to be ruled out so
long as interpretative possibility permits.61 The object oriented approach, however, cannot be
carried to the extent of doing violence to the plain lauguage used by rewriting the section or
substituting words in place of the actual words used by the Legislature.62
Having regard to the object of the U.P. Bhoodan Yagna Act, 1953 to implement the Bhoodan
movement, which aimed at distribution of land to landless labourers who were versed in
agriculture and who had no other means of subsistence, it was held that the expression ‘landless
persons' in section 14, which made provision for grant of land to landless persons, was limited to
landless labourers as described above and did not include a landless businessman residing in a
city.63
Similarly, in
section 2(k) of the Industrial Disputes Act, 1947 which reads, “‘Industrial dispute’
means any dispute or difference between employers and employees or between employers and
workmen, or between workmen and workmen which is connected with the employment or non-
employment or the terms of employment or with the conditions of labour, of any person,” the
expression ‘any person’ was construed, having regard to the scheme and object of the Act, to be
subject to two crucial limitations: “(1) The dispute must be a real dispute between the parties to
the dispute so as to be capable of settlement or adjudication by one party to the dispute giving
necessary relief to the other, and (2) the person regarding whom the dispute is raised must be one
in whose employment, non-employment, terms of employment, or conditions of labour the parties
to the dispute have a direct or substantial interest.64
In interpreting
section 235(2) of the Code of Criminal Procedure, 1973 , which provides that “if the
accused is convicted, the Judge shall hear the accused on the question of sentence and then pass
sentence on him according to law”, the Supreme Court held that the section was mandatory and
that it was not confined to hearing oral submissions, but was also intended to give an opportunity
to the prosecution and the accused to place before the court facts and material relating to various
factors bearing on the question of sentence, and if they are contested by either side, then to
produce evidence for the purpose of establishing the same. This conclusion was reached having
regard to the object of Parliament in enacting section 235(2)to bring the law in conformity with
the modern trends in penalogy and sentencing procedure.65
In dealing with
section 19 of the Delhi Rent Control Act, 1958 which obliges the landlord to occupy
the premises from which he evicts a tenant on the ground of his bona fide need under section 14
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and prohibits him to relet it, the Supreme Court held that the section was applicable to premises of
which possession is obtained by the landlord under section 14A on the ground that he is required
to vacate the premises allotted to him by the Government. This result was reached having regard
to the object of sections 19 and 14A and to avoid any obvious lacuna.66
Section 23 of the Representation of the People Act, 1951 permits ‘inclusion of the
names in the electoral roll till the last date for making nominations' for an election in the
concerned constituency.
Section 33(1) of the Representation of the People Act, 1951 specifies that the
nomination paper shall be presented ‘between the hours of 11 O’clock in the forenoon and 3
O’clock in the afternoon’. Reading these provisions together in the light of the object behind
them, the Supreme Court construed the words ‘last date’ in section 23 of the 1951 Act as follows:
“If the purpose of the provision were to illumine its sense, if the literality of the text is to be
invigorated by a sense of rationality, if conscionable commonsense were an attribute of statutory
construction, there can hardly be any doubt that the expression ‘last date for making nominations'
must mean the last hour of the last date during which presentation of nomination papers is
permitted under section 33 of the 1951 Act”.67
empowers the authorised officer to suspend a President or Vice-President ‘who has been detained
in a prison during trial under the provision of any law for the time being in force’. Having regard
to the object of the Act to enable smooth functioning of the municipality and to keep shady
characters away the words in section 40(1) were not given a restricted meaning to limit the
detention in prison after charge is framed and were given a wider meaning to permit suspension
even when detention in prison was during investigation by police.68
Under
section 8(3) of the Representation of the People Act, 1951 ‘a person convicted of any
offence and sentenced to imprisonment for not less than two years' is disqualified for being
chosen as and for being a member of the Legislature of a State. Having regard to the object that
the provision was meant to prevent persons with criminal background from entering the
legislature, the expression ‘a person convicted of any offence’ was construed as ‘all offences of
which a person has been charged and held guilty at one trial’ and the expression ‘sentenced to
imprisonment for not less than 2 years' was required to be calculated by taking the total term of
imprisonment for which the person has been sentenced. Thus a person who is sentenced for two
offences in one trial but is not sentenced for any of the offences to a sentence of more than 2 years
will still be disqualified if the total sentence of imprisonment for the two offences to run
consecutively exceeds 2 years.69 For the same reason section 8(4) of the Act, which suspends the
disqualification, when a person is a member of the Legislature at the time when he is sentenced,
for a period of three months and till the disposal of his appeal or revision if it is filed within that
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period, has been held not to apply after the person ceases to be a member of the Legislature or the
House is dissolved.70
Section 8 of the Police and Criminal

Evidence Act , 1984 empowers a Justice of the Peace to issue a warrant authorising a
police constable to enter and search premises for material likely to be of evidential value in
relation to a serious arrestable offence and to seize and retain such material. Items subject to legal
privilege are expressly excluded from the ambit of material which may be the subject-matter of
such a warrant. The expression ‘items subject to legal privilege’ is defined in section 10(1) in
short to mean communications between a professional legal adviser and his client when in
possession of a person who is entitled to possession. Section 10(2), however, provides that “items
held with the intention of furthering a criminal purpose are not subject to legal privilege”. The
question before the House of Lords,71 which gave rise to a sharp divergence of opinion, was as to
whose intention the expression ‘with the intention of furthering a criminal purpose’ contained in
section 10(2) referred. Did it refer to the intention of any person including the holder The
communications protected as items of legal privilege are generally in possession of solicitors who
rarely have the intention of furthering a criminal purpose. The purpose of the Act was to give the
police the power with the authorisation of a judicial authority to search for and seize material
likely to be of evidential value. Therefore, if the intention of furthering a criminal purpose in
section 10(2) referred only to the intention of the holder that would do little to assist in achieving
the purpose of the Act. Whereas if the intention referred to therein embraced the intention of any
person that would promote the purpose of the Act and would prevent the legal privilege being
used to protect the perpetrators of serious crimes. On these considerations essentially, the
majority72 in the House of Lords held that the intention referred to in section 10(2) embraced the
intention of any person including the holder. The minority,73 on the other hand, adopted the
ordinary grammatical meaning and were of the view that the words “items held with the intention
of furthering a criminal purpose” as occurring in section 10(2) referred only to the intention of the
holder.
The same expression used in two different enactments in similar context may have different
meanings having regard to the object of each enactment. This is illustrated by the construction of
the expression ‘interlocutory order’ in
section 397(2) of the Code of Criminal Procedure , 1974, and section 11 of the
Special Courts Act, 1979. In the former it is understood in a strict sense but in the latter, in a wide
sense having regard to the object of speedy trial.74
It has already been seen that even ordinarily the meaning of a word is not to be taken in abstract
but regard must be had to the setting in which the word occurs as also to the subject-matter and
object of the enactment. However, in case of doubt these factors gain great prominence in
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selecting the true meaning out of the rival interpretations which may be reasonably open.
(b) Rule in Heydon's case; purposive construction:

mischief 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 Heydon's case75
which has “now attained the status of a classic.76 The rule which is also known as ‘purposive
construction’ or ‘mischief rule’,77 enables consideration of four matters in construing an Act: (i)
What was the law before the 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 Bihar78 by S.R. Das, C.J.I. as follows: “It is a sound rule of construction
of a statute firmly established in England as far back as 1584 when Heydon's case79
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, and
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 privato commodo, and to add force and life to the cure and remedy,
according to the true intent of the makers of the Act, pro bono publico.”80
In Re, Mayfair Property Co., 81 Lindley, M.R. in 1898 found the rule “as
necessary now as it was when Lord Coke reported Heydon's case”.82
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In Eastman Photographic Materials Co. v. Comptroller General of Patents, Designs and Trade
Marks,83 Earl Of Halsbury re-affirmed the rule as follows: “My lords, it appears to
me that to construe the Statute in question, it is not only legitimate but highly convenient to refer
both to the former Act and to the ascertained evils to which the former Act had given rise, and to
the later Act which provides the remedy. These three being compared, I cannot doubt the
conclusion.”84
In the above mentioned formulations of the rule, as pointed out by Lord Reid, “the word mischief
is traditional”. He expanded it to include “the facts presumed to be known to Parliament when the
Bill which became the Act in question was before it” and “the unsatisfactory state of affairs”
disclosed by these facts “which Parliament can properly be supposed to have intended to remedy
by the Act”.85 The rule is more briefly stated by Lord Roskill: “Statutes should be given what has
become known as a purposive construction, that is to say that the courts should identify the
‘mischief’ which existed before passing of the statute and then if more than one construction is
possible, favour that which will eliminate the mischief so identified”.86 In the words of Lord
Griffith: “The courts now adopt a purposive approach which seeks to give effect to the true
purpose of legislation and are prepared to look at much extraneous material that bears on the
background against which the legislation was enacted.”87 When two competing Acts construed to
further the purposes behind them produce a conflict, the court may resolve the conflict by taking
into consideration as to which Act represents “the superior purpose” in addition to other relevant
factors.88 In applying a purposive construction a word of caution is necessary that the text of the
statute is not to be sacrificed and the court cannot rewrite the statute on the assumption that
whatever furthers the purpose of the Act must have been sanctioned.89 Therefore, the court cannot
add to the means enacted by the legislature for achieving the object of the Act.90 As expressed by
the Supreme Court of United States: “No legislation pursues its purposes at all costs. Deciding
what competing values will or will not be sacrificed to the achievement of a particular objective is
the very essence of legislative choice—and it frustrates rather than effectuates legislative intent
simplistically to assume that whatever furthers the statute's primary objective must be the law”.91
The Supreme Court in Bengal Immunity Co.'s case92 applied the rule in construction of
Art. 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 provincial
Legislatures founded on the theory of territorial nexus S.R. Das, C.J.I., proceeded to say: “It was
to cure this mischief of multiple taxation and to preserve the free flow of inter-State trade or
commerce in the Union of India regarded as one economic unit without any provincial barrier that
the
constitution -makers adopted Art. 286 in the
Constitution 93
”. The rule was again applied by the Supreme Court in similar context
while construing the changes brought about by the
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Constitution 46th Amendment Act.94
An illustration of the application of the rule is also furnished in the construction of

section 2(d) of the Prize Competitions Act, 1955 . This section defines ‘Prize
Competition’ as meaning “any competition in which prizes are offered for the solution of any
puzzle based upon the building up arrangement, combination or permutation of letters, words or
figures”. The question was whether in view of this definition, the Act applies to competitions
which involve substantial skill and are not in the nature of gambling. The Supreme Court, after
referring to the previous state of the law, to the mischief that continued under that law and to the
resolutions of various States under Art. 252(1) authorising Parliament to pass the Act 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”.95
A further example is furnished in the construction of

section 16(3) of the Indian Income-tax Act, 1922 . The sub-section reads: “In
computing the total income of any individual for the purpose of assessment, there shall be
included (a) so much of the income of a wife or minor child of such individual as arises indirectly
or directly—”. The question before the Supreme Court was whether word ‘individual’ occurring
in the aforesaid sub-section meant only a male or also included a female. After finding that the
said word in the setting was ambiguous, Bhagwati, J., observed: “In order to resolve this
ambiguity, therefore, we must of necessity have resort to the state of the law before the enactment
of the provisions, the mischief and the defect for which the law did not provide; the remedy which
the Legislature resolved and appointed to cure the defect; and the true reason of the remedy.”1
After referring to these factors, Bhagwati, J., proceeded to point out: “It is clear that the evil
which was sought to be remedied was the one resulting from the wide-spread practice of husbands
entering into nominal partnerships with their wives and fathers admitting their minor children to
the benefits of the partnerships of which they were members. This evil was sought to be remedied
by the enactment of section 16(3)in the Act. If this background of the enactment of section 16(3)
is borne in mind there is no room for any doubt that howsoever that mischief was sought to be
remedied by amending the Act, the only intention of the Legislature in doing so was to include the
income derived by the wife or minor child, in computation of the total income of the male
assessee, the husband or the father, as the case may be, for the purpose of assessment.”2 The
words ‘any individual’ were, therefore, construed as restricted to males.3
A more recent example is furnished in the construction of

section 195(3) of the Code of Criminal Procedure, 1973 which reads: “In clause (b),
of sub-section (1) the term court means a Civil, Revenue or Criminal Court and includes a
tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a
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court for the purposes of this section.” The Supreme Court pointed out that this section was
enacted to implement the recommendations of the 41st report of the Law Commission which had
referred to the unsatisfactory state of the law due to conflict of opinion between different High
Courts as to the meaning of the word court in section 195 of the earlier Code and had
recommended that a tribunal might be regarded as a court only if declared by the Act constituting
it to be a court for purposes of section 195.4 On this view it was held that a Commission of
Inquiry constituted under the
Commissions of Inquiry Act, 1952 was not a court for purposes of section 195 as it
was not declared to be so under the Act.5
Purposive construction has very often been employed in construction of laws passed to implement
international agreements or conventions and regulations made to give effect to the directions of
the Council of European Communities.6
Purposive construction has also been applied to penal statutes to avoid a lacuna and to suppress
the mischief and advance the remedy.7
The Supreme Court in Sodra Devi's case8 expressed the view that the rule in Heydon's case
9 is applicable only when the words in question are ambiguous and are reasonably capable of
more than one meaning. In that case Bhagwati, J., criticising the mode of approach of the High
Court, stated: “The High Court plunged headlong into a discussion of the reason which motivated
the Legislature into enacting section 16(3), and took into consideration the recommendations
made in the Income-tax Enquiry Report, 1936 and also the Statement of Objects and Reasons for
the enactment of the same, without considering in the first instance whether there was any
ambiguity in the word, ‘individual’ as used therein.” It was pointed out that the rule in Heydon's
case10 is applicable only when language is ambiguous and the said rule in that case was only
applied after first finding that the words ‘any individual’ in the setting are ambiguous.11 Similarly,
in another case12 Gajendragadkar, J., stated that the recourse to object and policy of the Act or
consideration of the mischief and defect which the Act purports to remedy is only permissible
when the language is capable of two constructions. But it has already been seen that for deciding
whether the language used by the Legislature is plain or ambiguous it has to be studied in its
context,13 and ‘context’ embraces previous state of the law and the mischief which the statute was
intended to remedy.14 Therefore, it is not really correct to say that the rule in Heydon's case15 is
not applicable when the language is not ambiguous. The correct principle is that after the words
have been construed in their context and it is found that the language is capable of bearing only
one construction, the rule in Heydon's case ceases to be controlling and gives way to the plain
meaning rule.16
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The Supreme Court in P.E.K. Kalliani Amma (Smt.) v. K. Devi 17
referred extensively to the rule in Heydon's case and to the opinions of Bhagwati and
Gajendragadkar judges and of Lord Simon but did not resolve the difference in them. The court
said: “Be that as it may, we are not invoking the Rule but we have nevertheless to keep in mind
the principles contained therein.” It is submitted that keeping in mind the principles of the Rule
without first coming to the conclusion that the statutory provision in question was ambiguous is a
tacit approval of the correct principle stated above.
But the rule cannot be used to “the length of applying unnatural meanings to familiar words or of
so stretching the language that its former shape is transformed into something which is not only
significantly different but has a name of its own” especially when “the language has no evident
ambiguity or uncertainty about it.18
It has also been said that the application of the rule in Heydon's case should not be taken to
extremes; that if there were many problems before the enactment of the statute it does not follow
that in an effort to solve some of them the Parliament intended to solve all; and that loyalty to the
rule does not require the adoption of a construction which leads manifestly to absurd results.
These propositions stated by Lord Roskill in Anderton v. Ryan 19 are unexceptional
but their misapplication may lead to a narrow construction defeating the object of the statute as
actually happened in that case which was overruled within a year in R. v. Shivpuri 20
Further, if the statutory language in its primary or ordinary meaning in the context has a wider
effect, it cannot be artificially confined to remedy the single identified mischief which is
conceived to have occasioned the statutory provision for once a mischief has been drawn to the
attention of the parliamentary draftsman he would have considered whether any concomitant
mischiefs should be dealt with as a necessary corollary.21
4. REGARD TO CONSEQUENCES
If the language used is capable of bearing more than one construction, in selecting the true
meaning regard must be had to the consequences resulting from adopting the alternative
constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity
or anomaly or which leads to inconsistency or uncertainty and friction in the system which the
statute purports to regulate has to be rejected and preference should be given to that construction
which avoids such results.22 This rule has no application when the words are susceptible to only
one meaning and no alternative construction is reasonably open.23
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(a) Hardship, inconvenience, injustice, absurdity and anomaly to be avoided
In selecting out of different interpretations “the court will adopt that which is just, reasonable and
sensible rather than that which is none of those things”24 as it may be presumed “that the
Legislature should have used the word in that interpretation which least offends our sense of
justice”.25 If the grammatical construction leads to some absurdity or some repugnance or
inconsistency with the rest of the instrument, it may be departed from so as to avoid that
absurdity, and inconsistency.26 Similarly, a construction giving rise to anomalies should be
avoided.27 As approved by Venkatarama Aiyar, J., “Where the language of a statute, in its
ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent
purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it which modifies the meaning of the
words, and even the structure of the sentence.”28
Nowadays when laws are made by the representatives of the people, it is proper to assume that
law-makers enact laws which the society considers as honest, fair and reasonable and thus justice
and reason constitute the great general legislative intent in every piece of legislation. In the
absence, therefore, of some other indication that harsh or ridiculous effect was actually intended
by the Legislature, it cannot be readily accepted that it represents the legislative intent.29 The
word ‘held’ in section 9 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950
was, on this principle, construed as meaning ‘lawfully held’ as a contrary construction would have
conferred title on trespassers and would have deprived real owners of the benefit of the
provision.30
In a case already noticed31 the Supreme Court was concerned with the construction of
section 99 of the Representation of the People Act, 1951 (as it stood prior to
amendment by Act 27 of 1957) which authorises the Election Tribunal at the conclusion of the
trial to name all persons who have been guilty of corrupt practice. The power, however, is subject
to a proviso which prior to its amendment read : ‘provided that no person shall be named in the
order unless—(a) he has been given notice to appear before the Tribunal and to show cause why
he should not be so named; and (b) if he appears in pursuance of the notice, he has been given
opportunity of cross-examining any witness who has already been examined and of calling
evidence in his defence and of being heard’. The contention before the Supreme Court was that
even parties to the election petition were entitled to the benefit of the proviso as the words ‘no
person shall be named’ interpreted in literal sense included such persons. The Supreme Court,
rejecting this contention pointed out: “If the contention is to be accepted, then the result will be
that even though there was a full trial of the charges set out in the petition, if the tribunal is
disposed to hold them proved it has first to give notice of the finding which it proposes to give, to
the parties and to hold a fresh trial of the very matters that had been already tried. That is an
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extraordinary result for which it is difficult to discover any reason or justification”.32
Principles of ‘sincerity’, substantial justice and fairness were applied in interpreting section 2 of
the Hindu Widows Remarriage Act, 1856 and the Madras Hindu (Bigamy Prevention) Act, 1949.
Section 2 of the former Act provides that all rights and interest which a Hindu widow had in her
husband's property ‘shall upon her remarriage cease and determine’. The Madras Act prohibited a
bigamous marriage, therefore, marriage of a Hindu widow with a person whose first wife was
living could not be held to be a valid marriage. Still it was held that such a marriage amounted to
‘remarriage’ within section 2 of the 1856 Act and the widow ceased to hold any rights in the
property held by her deceased husband.33 The question of ‘remarriage’ was also held to be
concluded by a prior decision on principles of res judicata and the final outcome may have been
just and equitable in the special facts of the case. But the view that an invalid or void marriage
could amount to ‘remarriage’ under section 2 of the 1856 Act is open to objection. It is submitted
that apart from other reasons the Act made the widow lose her rights in the property left by her
deceased husband for the reason that the widow on remarriage got rights in the property of her
new husband and this could be possible only if the remarriage was valid. So if the widow was
made to lose her rights in the property of her deceased husband as a result of invalid remarriage
she would be wholly unprotected even for her maintenance and the view taken will not be in
furtherance of either gender equality or fairness to which reference was made by the court in its
judgment.
Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 provides for
eviction of a tenant who has not paid or tendered the rent due. There is a proviso to that section
which reads: ‘Provided that if the tenant on the first hearing of the application for ejectment after
due service’ pays or tenders the arrears of rent and interest at 6% per annum on such arrears
together with cost of application assessed by the controller, the tenant shall be deemed to have
duly paid or tendered the rent’. The proviso does not in terms provide that if there be a genuine
dispute regarding the arrears due the controller will provisionally determine the arrears and give
time to the tenant to deposit the same to save eviction. But such a provision was read by
implication to avoid hardship and injustice to the tenant in case of a genuine dispute of arrears of
rent. The court reached this conclusion by holding that the qualifying expression ‘assessed by the
controller’ in the proviso qualified also ‘the arrears of rent’ and not merely ‘cost of application’.34
In construing section 66(1) of the Central Provinces and Berar Municipalities Act, 1922 which
authorised imposition of ‘a terminal tax on goods or animals imported into or exported from the
limits of a municipality’, the question before the Supreme Court was whether the said clause
empowered the municipality to levy a tax on goods in transit. The High Court had adopted the
derivative meaning of words import and export, i.e., to bring in and to carry away and had
therefore held that the municipality had the power to levy terminal tax on goods in transit. The
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Supreme Court in reversing the decision of the High Court pointed out that the words import and
export in their ordinary commercial sense do not refer to goods in transit; and in selecting the
commercial sense of the words in preference to derivative sense, Kapur, J., observed: “The effect
of the construction of ‘import’ or ‘export’ in the manner insisted upon by the respondent
(municipal committee) would make railborne goods passing through a railway station within the
limits of a municipality liable to the imposition of the tax on their arrival at the railway station or
departure therefrom or both which would not only lead to inconvenience but confusion, and
would also result in inordinate delays and unbearable burden on trade both inter-State and intra-
State. It is hardly likely that that was the intention of the Legislature. Such an interpretation would
lead to absurdity which has according to rules of interpretation to be avoided”.35
On the presumption that a statute is intended to be just and reasonable, it is not construed to take
away private rights of property without compensation unless the intention to do so is expressed in
clear and unambiguous terms.36 On the same principle expropriatory legislation is strictly
construed37 and a regulatory Act relating to regulation of user of land is not construed prohibiting
transfer which does not affect its user.38 Similarly the presumption is that in the absence of an
express provision to the contrary Parliament does not intend to authorise tortious conduct, for
example to take away the common law right to keep one's home free from an intruder even if he is
a public officer.39 So the Court does not countenance the expropriation by a public authority
without clear statutory sanction of money or property belonging to an individual even if it is
suspected to be proceeds of illegal drug dealing.40 And, on the same principle, it is presumed that
the law does not compel the doing of impossibilities. Therefore, a statutory provision laying down
a duty is construed as not applying to a case where performance is impossible.41 Similarly, a
prima facie absolute statutory obligation may be construed subject to an implied limitation that its
performance can be refused on grounds of public policy e.g. when the performance may give rise
to a real risk of a serious crime.42 And codes of procedure regulating proceedings in courts are to
be construed as to render justice wherever reasonably possible,43 to avoid injustice from a mistake
of the court44 and even to enable recalling of an order obtained by fraud.45 On the principle that
codes of procedure are not construed to frustrate justice, the maximum period of detention in
police custody of an accused prescribed by
section 167(2) of the Code of Criminal Procedure was held to apply to offences
committed in one transaction, but not in respect of an offence committed in a different
transaction, for a contrary construction would frustrate the investigation of such a different
offence by denying police custody normally available for investigation.46
The
Railway Claims Tribunal Act, 1987 excludes the jurisdiction of all courts to entertain
claims against a railway administration and vests the same in the Claims Tribunal constituted
under the Act. The Act confers certain powers of civil courts exercisable under the
Code of Civil Procedure on the Tribunal but there is no specific mention of the
power under Order 33 to entertain claims of indigent persons. Still the Supreme Court ruled that
the Tribunal must be held to have the implied power of invoking the provisions of Order 33 of the
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Code.47 A contrary conclusion would have resulted in gross injustice to persons unable to pay the
required fee as they would have been left without a remedy of either approaching the civil court
because of bar of jurisdiction or of moving the Tribunal because of inapplicability of Order 33.48
In the context of order 22 of the

Code of Civil Procedure and abatement of entire appeal, when the legal
representatives of one of the appellants who died during pendency of appeal are not brought on
record in time, a
Constitution Bench of the Supreme Court observed: “Laws of procedure are meant
to regulate effectively, assist and aid the object of doing substantial and real justice and not to
foreclose even an adjudication on the merits of substantial rights of citizens under personal
property and other laws. Procedure has always been viewed as the handmaid of justice and not
meant to hamper the cause of justice.—Technical objections which tend to be stumbling blocks to
defeat and delay substantial and effective justice should be strictly viewed for being discouraged
except when mandate of the law inevitably necessitates it.”49
Consideration of hardship, injustice or absurdity as avoiding a particular construction is a rule

which must be applied with great care. “The argument ab inconvenienti”, said Lord Moulton, “is
one which requires to be used with great caution”.50 Explaining why great caution is necessary
Lord Moulton further observed: “There is a danger that it may degenerate into a mere judicial
criticism of the propriety of the Acts of Legislature. We have to interpret statutes according to the
language used therein, and though occasionally the respective consequences of two rival
interpretations may guide us in our choice in between them, it can only be where, taking the Act
as a whole and viewing it in connection with existing state of the law at the time of the passing of
the Act, we can satisfy ourselves that the words cannot have been used in the sense to which the
argument points”.51 According to Brett, L.J., the inconvenience necessitating a departure from the
ordinary sense of the words should not only be great but should also be what he calls an “absurd
inconvenience”.52 Moreover, individual cases of hardship or injustice have no bearing for
rejecting the natural construction,53 and it is only when the natural construction leads to some
general hardship or injustice and some other construction is reasonably open that the natural
construction may be departed from. It is often found that laws enacted for the general advantage
do result in individual hardship; for example laws of Limitation, Registration, Attestation
although enacted for the public benefit, may work injustice in particular cases but that is hardly
any reason to depart from the normal rule to relieve the supposed hardship or injustice in such
cases.54“It is the duty of all courts of justice”, said Lord Campbell, “to take care for the general
good of the community, that hard cases do not make bad law”.55‘Absurdity’ according to Willes,
J., should be understood “in the same sense as repugnance that is to say something which would
be so absurd with reference to the other words of the statute as to amount to a
repugnance”.56“Absurdity”, said Lord Greene, M.R., “like public policy, is a very unruly horse”.57
He proceeded to add: “There is one rule, I think which is clear that, although the absurdity or the
non-absurdity of one conclusion as compared with another may be and very often is, of assistance
to the court in choosing between two possible meanings of ambiguous words, it is a doctrine
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which must be applied with great care, remembering that judges may be fallible in this question of
an absurdity and in any event it must not be applied so as to result in twisting language into a
meaning which it cannot bear. It is a doctrine which must not be used to re-write the language in a
way different from that in which it was originally framed”.58 The alternative construction
contended for must be such which does not put an undue strain on the words used;59 and does not
require recasting of the Act or any part of it. It must be possible to spell the meaning contended
for out of the words actually used.60
No doubt in cases of ambiguity that construction which better serves the ends of fairness and
justice will be accepted, but otherwise it is for the Legislature in forming its policy to consider
these elements.61 If no alternative construction is open, the court cannot ignore a statutory
provision “to relieve what it considers a distress resulting from its operation; a statute has to be
given effect to whether the court likes it or not”.62 The function of the court is to find out what is
legal and not what is right.63 It is presumed that a legislative body intends which is the necessary
effect of its enactments; the object, the purpose and the intention of the enactment is the same; it
need not be expressed in any recital or preamble; and it is not competent for any court judicially
to ascribe any part of the legal operation of the statute to inadvertence.64
The Courts should as far as possible avoid a construction which results in anomalies.65 In a case
arising under the
Representation of the People Act, 1951 , the Supreme Court held that if the Returning
Officer had rejected a nomination paper of a candidate on one disqualification, it was open for the
Election Tribunal to find the rejection proper on some other ground of disqualification which may
not have been raised before the Returning Officer. It was pointed out that if this construction is
not placed on section 100(1)(c) of the Act the result will be anomalous in that if the decision
under section 36(6) of the Returning Officer on the objection on which he rejected the nomination
paper is held to be bad, the Tribunal will have no option but to set aside the election under section
100(1)(c) even though the candidate was disqualified and his nomination paper was rightly
rejected. In holding so Venkatarama Aiyar, J. observed: “It is no doubt true that if on its true
construction, a statute leads to anomalous results, the Courts have no option but to give effect to it
and leave it to the Legislature to amend and alter the law. But when on a construction of a statute,
two views are possible, one which results in an anomaly and the other not, it is our duty to adopt
the latter and not the former, seeking consolation in the thought that the law bristles with
anomalies.”66
Rule 11(VI) of the Central Services (Classification, Appeal and Control) Rules, 1965 empowers
the imposition of the penalty of “reduction to a lower time-scale of pay, grade, post or service”. In
construing this rule the Supreme Court held that a person initially recruited to a higher time-scale,
grade or post or service cannot be reduced to a post in a lower time-scale, grade or service or to a
lower post. Though the language of the rule is prima facie wide a restricted construction was
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placed to avoid the anomaly which a wider construction would have produced for a person
directly recruited to a higher post may not have the requisite qualification or skills for the lower
post and his reduction to a lower post may affect the recruitment policy itself.67
In construing
section 446(1) of the Companies Act, 1956 , which provides that when a winding up
order has been made or the official liquidator has been appointed no suit or legal proceedings
shall be commenced or continued against the company except with the leave of the court, the
Supreme Court held that assessment proceedings under the
Income-tax Act do not fall within the section. This conclusion was reached on the
ground that only such proceedings fall under section 446(1) which could appropriately be dealt
with by the winding up court under section 446(2) and “it would lead to anomalous consequences
if the winding up court were to be held empowered to transfer the assessment proceeding to itself
and assess the company to income-tax”.68
But when a statute deals with a subject-matter which is productive of many difficulties, not all of
which can be perceived and provided against in advance, anomalies cannot be treated as a
satisfactory guide in matters of construction, and the courts can do no more than look at the
language used and give it a fair and reasonable construction.69 Similarly, when none of the
alternative constructions can steer clear of the anomalies, the question cannot be resolved by a
balancing of the anomalies70 and grammatical construction of the provision in question is the only
safe guide.71 It must also be remembered that a court would only be justified in departing from the
plain word of the statute when it is satisfied that (1) there is clear and gross balance of anomaly,
(2) Parliament, the legislative promoters and the draftsman could not have envisaged such
anomaly and could not have been prepared to accept it in the interest of a supervening legislative
objective, (3) the anomaly can be obviated without detriment to such a legislative objective, and
(4) the language of the statute is susceptible of the modification required to obviate the anomaly.72
Therefore, the court cannot decline to give effect to clear and unambiguous language to avoid an
anomaly even if it was the result of an omission on the part of the draftsman which went
undetected during passage of the Bill through Parliament.73
(b) Inconsistency and repugnancy to be avoided; harmonious construction
It has already been seen that a statute must be read as a whole and one provision of the Act should
be construed with reference to other provisions in the same Act so as to make a consistent
enactment of the whole statute.74 Such a construction has the merit of avoiding any inconsistency
or repugnancy either within a section or between a section and other parts of the statute. It is the
duty of the courts to avoid “a head on clash”75 between two sections of the same Act and,
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“whenever it is possible to do so, to construe provisions which appear to conflict so that they
harmonise”.76 It should not be lightly assumed that “Parliament had given with one hand what it
took away with the other”.77 The provisions of one section of a statute cannot be used to defeat
those of another “unless it is impossible to effect reconciliation between them”.78 The same rule
applies in regard to sub-sections of a section. In the words of Gajendragadkar, J.: “The sub-
sections must be read as parts of an integral whole and as being interdependent; an attempt should
be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid
repugnancy”.79 As stated by Venkatarama Aiyar, J.: “The rule of construction is well settled that
when there are in an enactment two provisions which cannot be reconciled with each other, they
should be so interpreted that, if possible, effect should be given to both. This is what is known as
the rule of harmonious construction”.80 That, effect should be given to both, is the very essence of
the rule. Thus a construction that reduces one of the provisions to a “useless lumber”81 or “dead
letter”82 is not harmonious construction. To harmonise is not to destroy.83 A familiar approach in
all such cases is to find out which of the two apparently conflicting provisions is more general and
which is more specific and to construe the more general one as to exclude the more specific.84 The
question as to the relative nature of the provisions general or special has to be determined with
reference to the area and extent of their application either generally or specially in particular
situations.85 The principle is expressed in the maxims Generalia specialibus non derogant,86 and
Generalibus specialia derogant.87 If a special provision is made on a certain matter, that matter is
excluded from the general provision.88 Apart from resolving conflict between two provisions in
the Act, the principle can also be used for resolving a conflict between a provision in the Act and
a rule made under the Act.89 Further, these principles have also been applied in resolving a
conflict between two different Acts90 and in the construction of statutory rules1 and statutory
orders.2 But the principle, that a special provision on a matter excludes the application of a
general provision on that matter, has not been applied when the two provisions deal with
remedies, for validity of plural remedies cannot be doubted.3 Even if the two remedies happen to
be inconsistent, they continue for the person concerned to choose from, until he elects one of
them.4
The Supreme Court applied the rule in resolving a conflict between Articles 25(2)(b) and 26(b) of
the
Constitution and it was held that the right of every religious denomination or any
section thereof to manage its own affairs in matter of religion [Art. 26(b)] is subject to a law made
by a State providing for social welfare and reform or throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus [Art. 25(2)(b)].5
Same rule was applied to resolve the conflict between Articles 19(1)(a) and 194(3) of the
Constitution and it was held that the right of freedom of speech guaranteed under
Art. 19(1)(a) is to be read as subject to powers, privileges and immunities of a House of the
Legislature which are those of the House of Commons of the United Kingdom as declared by
latter part of Art. 194(3).6 It is, however, interesting to notice that in Special Reference No. 1 of
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1964,7 it was decided that 194(3)
is subordinate to Articles 21, 32, 211 and 226. This conclusion was also reached by recourse to
the rule of harmonious construction.
By invoking the same rule the Supreme Court held that the apparently absolute power of the
Governor under
Art. 161 of the Constitution to grant pardon or to suspend a sentence passed on an
accused person is not available during the period the matter becomes sub judice before the
Supreme Court as otherwise it will conflict with the judicial power of that court provided under
Art. 142 of the Constitution .8 A similar result was reached in interpreting
sections 401 and
426 of the
Code of Criminal Procedure , 1898. 9
Applying the same rule it has been held that the general provision under
Art. 372 of the Constitution regarding continuance of existing laws is subject to
Art. 277 of the Constitution which is a special provision relating to taxes, duties,
cesses or fees lawfully levied at the commencement of the
Constitution . 10
The principle of harmonious construction has very often been applied in construction of
apparently conflicting legislative entries in Schedule VII of the Government of India Act, 1935
and the
Constitution . 11
An important question as to the power of courts to decide a question of privilege concerning

documents relating to affairs of State was answered by the Supreme Court by harmonising
sections 123 and
162 of the
Indian Evidence Act, 1872 12
. The affidavit of the head of the department or the
minister is not conclusive that a particular document relates to affairs of State. The opinion of the
Head of the Department or the Minister is open to judicial review and if necessary the court can
inspect the document. In deciding upon the question of privilege the court has to balance the
public interest which demands the withholding of the document against the public interest in the
administration of justice that the courts should have fullest possible access to all relevant
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materials13 and in the citizen's right of information under

Article 19(1) a of the Constitution .14
An interesting question relating to a conflict between two equally mandatory provisions, viz.,
sections 17 (1) and
18 (1) of the
Industrial Disputes Act, 1947 , is a good illustration of the importance of the principle
that every effort should be made to give effect to all the provisions of an Act by harmonising any
apparent conflict between two or more of its provisions. Section 17(1) of the Act requires the
Government to publish every award of a Labour Tribunal within thirty days of its receipt and by
sub-section (2)of section 17 the award on its publication becomes final. Section 18(1) of the Act
provides that a settlement between employer and workmen shall be binding on the parties to the
agreement. In a case where a settlement was arrived at after receipt of the award of a Labour
Tribunal by the Government but before its publication, the question was whether the Government
was still required by section 17(1) to publish the award. In construing these two equally
mandatory provisions, the Supreme Court held that the only way to resolve the conflict was to
hold that by the settlement, which becomes effective from the date of signing, the industrial
dispute comes to an end and the award becomes infructuous and the Government cannot publish
it.15
Another example of application of the rule is found in the construction of section 100(4) and
section 217(2)(e) of the Motor Vehicles Act, 1988 . section 217(2)(e) requires that all
pending Nationalisation Schemes under the repealed Act should be finalised in accordance with
section 100 of the new Act. Section 100(4) provides that schemes not finalised within one year
from the date of publication of the proposal shall lapse. There was no such limitation under the
repealed Act and schemes remained pending for years after the proposal was published. To give
effect to both sections 100(4) and 217(2)(e)it was held that in cases of schemes pending under the
repealed Act the period of one year will be counted from the commencement of the new Act and
not from the publication of the proposal.16
A further example may be found in the interpretation of section 6 of this Madhya Pradesh Motor
Vehicles Taxation Act, 1947 which prohibits a local Authority to impose “a tax toll or licence fee
in respect of a motor vehicle”. Section 3(1) of the Taxation Act authorises imposition of a tax on
“motor vehicles used or kept for use” at the specified rates. Section 127(1)(iii) of the Madhya
Pradesh Municipalities Act, 1961 authorises imposition of tax on “vehicles-entering the limits of
the municipality”. On a comparison of the two Acts the Supreme Court held that on harmonious
construction of the two Acts the prohibition in section 6 of the Taxation Act related to a tax on
vehicles used or kept for use which could be levied under section 3(1)and not the entry tax which
could be imposed by a municipality under section 127(1)(iii) of the Act.17
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The rule of harmonious construction was also applied in construing and resolving the conflict
between
sections 276B and
278B of the
Income-tax Act, 1961 18
. Section 276B lays down that if a person fails to pay to the
credit of the Central Government the tax deducted at source, he shall be punished with rigorous
imprisonment for a term which shall not be less than three months and shall also be liable to fine.
Section 278B expressly and also as supported from the recommendation in the Law Commission
report makes a company and its officers liable for the offences under the Act. The mandatory
sentence of imprisonment prescribed by section 276B obviously could not be applied to a
company. The question, therefore, arose whether a company could at all be prosecuted under
section 276B. Resolving the conflict by harmonious construction, it was held that the company
would be liable for the offence but it will be liable to be punished only by imposition of fine. By
adopting the rule of harmonious construction the mandatory sentence of imprisonment in section
276B was interpreted to mean that it will be imposed where it is possible to impose it.19
As already seen the principle of harmonious construction is also applicable in construction of

provisions of subordinate legislation.20 For example the principle was applied in resolving a
conflict between cl. 5(a) and cl. 23 of the Government Order, 1948, passed under the Uttar
Pradesh
Industrial Disputes Act, 1947 . It was held that the special provision made in cl. 23
relating to discharge or dismissal of workmen pending an inquiry or appeal was outside the more
general provisions of cl. 5(a) which related to all industrial disputes in general.21
(c) When Reconciliation not possible
If two sections of an Act cannot be reconciled, as they may be absolute contradictions, it is often
said that the last must prevail.22 But this should be accepted only in the last resort. As observed by
Lord Evershed, M.R.: “It is no doubt true that if two sections of an Act of Parliament are in truth
irreconcilable, then prima facie the later will be preferred. But these are arguments of the last
resort. The first duty of the court must be, if the result is fairly possible, to give effect to the whole
expression of the parliamentary intention”.23 In a case in which two provisos were somewhat
repugnant to each other, Lord Macmillan said: “If proviso 2 is repugnant in any way to proviso 1,
it must prevail for it stands last in the enactment and so to quote Lord Tenterden, C.J., ‘speaks the
last intention of the makers'. The last word is with the respondent and must prevail”.24 But the rule
that the later section should always be preferred in case it is irreconcilable with a prior section,
seems somewhat doubtful and illogical for as Jervies, C.J., observed during the course of
arguments in a case: “How can we say that one provision is repealed by the other when both
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received the Royal assent at the same time”25 In case of conflict between two sections of the same
Act a more logical approach is indicated by Lord Herschell, L.C.: “You have to try and reconcile
them as best as you may. If you cannot, you have to determine which is the leading provision, and
which the subordinate provision and which must give way to the other”.26 After quoting these
words of Lord Herschell L.C., the High Court of Australia recently observed: “only by
determining the hierarchy of the provisions will it be possible in many cases to give each
provision the meaning which best gives effect to its purpose and language maintaining the unity
of the statutory scheme.”27
(d) Avoiding uncertainty and friction in the system which the statute purports
to regulate
This principle has been stated by Lord Shaw in the following words: “Where words of a statute
are clear, they must, of course, be followed but in their Lordships' opinion, where alternative
constructions are equally open that alternative is to be chosen which will be consistent with the
smooth working of the system which the statute purports to be regulating; and that alternative is to
be rejected which will introduce uncertainty, friction or confusion into the working of the
system”.28
The above principle was accepted and the observations of Lord Shaw were quoted from Maxwell
by Subbarao, J., in construing section 193 of the Sea
Customs Act and in coming to the conclusion that the Chief Customs Authority was
not an ‘Officer of Customs'.29 Same principle was applied in construing section 2(c)of the
Suppression of Immoral Traffic in Women and Girls Act, 1956, which defines a Magistrate to
mean ‘a District Magistrate, a Sub-Divisional Magistrate of the First Class specially empowered
by the State Government—’.30 It was held that the empowering does not require the process of
selection or discrimination as regards an individual on whom the special power is conferred and
the adverb ‘specially’ refers to the special purpose of empowerment. One of the reasons given
was that a contrary conclusion would impede the efficacy of the provision and introduce
inconvenience, friction, confusion and artificiality in the working of the provision.
Similar principle was applied by the Supreme Court in construing the fundamental right under
Art. 22(1) and (2) of the
Constitution ; and it was held that the said Article applies to give protection against
such arrests as are effected otherwise than under a warrant issued by a court on the allegation or
accusation that the arrested person has committed some criminal or quasi-
criminal act and that the physical restraint put upon an abducted person in process of
recovering and taking into custody and delivery of the person to the custody of an officer-in-
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charge of the nearest camp under section 4 of Abducted Persons (Recovery and Restoration) Act,
1949, is not arrest and detention within the meaning of Art. 22(1) and (2). In holding so S.R. Das,
J., observed: “If two constructions are possible then the court must adopt that which will ensure
smooth and harmonious working of the
Constitution and eschew the other which will lead to absurdity or give rise to
practical inconvenience or make well-established provision of existing law nugatory”.31
And in construing
Article 371-D of the Constitution , the Supreme Court held that the words ‘civil
service of the State’ as used therein did not include the High Court staff and the subordinate
judiciary, although the same words used in Article 311 include these categories. The narrower
construction of these words in Article 371-D was adopted on the ground that a wider construction
would encroach upon the principle of independence of judiciary enshrined in
Articles 229 and
235 of the
Constitution and the narrower construction ensures smooth working of the
Constitution and harmony amongst its various provisions. The court observed:
“Where two alternative constructions are possible, the court must choose the one which will be in
accord with the other parts of the statute and ensure its smooth, harmonious working and eschew
the other which leads to absurdity, confusion or friction, contradiction and conflict between its
various provisions, or undermines or tends to defeat or destroy the basic scheme and purpose of
the enactment”.32
12 Unwin v. Hanson,
(1891) 2 QB 115 : 60 LJ QB 531 (CA).
13 Ibid, p. 119.
14 Aswinikumar Ghose v. Arabinda Bose,

AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 373 :
1953 SCR 1 [
LNIND 1952 SC 94 ]; See further Lily Isabel Thomas, In re,
AIR 1964 SC 855 [
LNIND 1964 SC 596 ], p. 857 :
1964 (6) SCR 229 .

(1946) 1 All ER 255 , p. 257 :
1946 AC 278 (HL).
Mr.Srikanth -
Page 26 of 58
16 Ibid.
17 Ibid, pp. 257, 260, 262, 266, 269; Union of India v. Delhi Cloth & General Mills Co. Ltd.,
AIR 1963 SC 791 [
LNIND 1962 SC 333 ]: 1963 Supp (1) SCR 586; South Bihar Sugar Mills v. Union of India,
AIR 1968 SC 922 [
LNIND 1968 SC 30 ]:
1968 (3) SCR 21 [
LNIND 1968 SC 30 ]. See further Attorney-General v. Emily Moore,
AIR 1938 PC 238 , p. 241 and cases in note 10, p. 108.
18 Carew and Company Ltd. v. Union of India,

AIR 1975 SC 2260 [
LNIND 1975 SC 290 ], pp. 2271, 2272 :
(1975) 2 SCC 791 [
LNIND 1975 SC 290 ].
19 State of Orissa v. Dinabandhu Sahu and

Sons,
AIR 1976 SC 1561 [
LNIND 1976 SC 144 ]: 1977 SCC (Tax) 57 :
(1976) 4 SCC 431 [
LNIND 1976 SC 144 ]. See further text and notes 20 to 25, pp. 336 to 338.
20 Union of India v. Delhi Cloth & General Mills Co. Ltd.,

AIR 1963 SC 791 [
LNIND 1962 SC 333 ]: 1963 Supp (1) SCR 586.
21 South Bihar Sugar Mills v. Union of India,

AIR 1968 SC 922 [
LNIND 1968 SC 30 ]:
1968 (3) SCR 21 [
LNIND 1968 SC 30 ].
22 Union of India v. Ramlal Mansukhrai,

AIR 1971 SC 2333 [
LNIND 1970 SC 330 ], p. 2335 :
1970 (2) SCC 472 [
LNIND 1970 SC 330 ].
23 Indian Aluminium Cables Ltd. v. Union of India,

(1985) 3 SCC 284 [
LNIND 1985 SC 201 ], p. 291 :
AIR 1985 SC 1201 [
LNIND 1985 SC 201 ].
24 Ibid.
25 Reliance Cellulose Products Ltd., Hyderabad v. CCE,

AIR 1997 SC 3414 , p. 3419 :
1997 (5) JT 742 :
(1997) 6 SCC 464 .
Mr.Srikanth -
Page 27 of 58
26 Ibid, p. 3420 (AIR).
27 Labour Inspector, Central v. Chittapur Stone Quarrying Co. (Pvt.) Ltd.,

AIR 1972 SC 1177 [
LNIND 1972 SC 212 ]:
(1972) 3 SCC 605 [
LNIND 1972 SC 212 ].
28 Madhya Pradesh Mineral Industry Association, Nagpur v. Regional Labour Commissioner (Central),
Jabalpur,
AIR 1960 SC 1068 [
LNIND 1960 SC 114 ]:
1960 (3) SCR 476 [
LNIND 1960 SC 114 ]. See further Mineral and Metals Trading Corpn. v.
Union of India,
AIR 1972 SC 2551 [
LNIND 1972 SC 389 ]:
1972 (2) SCC 620 [
LNIND 1972 SC 389 ] and Indian Hard Metals (P) Ltd. v. Union of India,
AIR 1979 SC 397 [
LNIND 1978 SC 359 ]:
(1979) 4 SCC 155 [
LNIND 1978 SC 359 ], for meaning of ‘Wolfram Ore’ in commercial sense.
29 Labour Inspector, Central v. Chittapur Stone Quarrying Co. (Pvt). Ltd., supra.
30 Cannanore Spinning & Weaving Mills Ltd. v. Collector of Customs & Central Excise, Cochin,
AIR 1970 SC 1950 [
LNIND 1969 SC 403 ]:
1969 (3) SCC 112 [
LNIND 1969 SC 403 ].
31 CCE v. ITC Ltd.,

(2003) 3 SCC 379 [
LNIND 2003 SC 171 ], p. 390 :
AIR 2003 SC 1484 [
LNIND 2003 SC 171 ]:
(2003) 152 ELT 241 .
32 Ibid.
33 Her Highness Ruckmaboye v. Lulloobhoy Motichand, (1851-52) 5 MIA 234, pp. 250, 260
(PC)(meaning of beyond the seas) Commissioner for Special Purposes v. John Frederick Pemsel,
(1891-94) All ER Rep 28 , p. 54 (HL) (meaning of ‘charitable institution’) State of Madras v.
Gannon Dunkerly & Co.,
AIR 1958 SC 560 [
LNIND 1958 SC 39 ], p. 573 :
1959 SCR 379 [
LNIND 1958 SC 39 ] (meaning of ‘Sale of goods’) Diamond Sugar Mills v. State of U.P.,
AIR 1961 SC 652 [
LNIND 1960 SC 339 ]:
1961 (3) SCR 242 [
LNIND 1960 SC 339 ] (meaning of ‘Local Area’) Gordhandas Hargovindas v. Municipal
Mr.Srikanth -
Page 28 of 58
Commissioner, Ahmedabad,
AIR 1963 SC 1742 [
LNIND 1963 SC 84 ], p. 1749 :
1964 (2) SCR 608 [
LNIND 1963 SC 84 ] (meaning of ‘Rate’) Diwan Brothers v. Central Bank,
AIR 1976 SC 1503 [
LNIND 1976 SC 224 ], p. 1515 :
(1976) 3 SCC 800 [
LNIND 1976 SC 224 ] (Decree should be understood as defined in
CPC ) Shah v. Barnet London Borough Council,
(1983) 1 All ER 226 , pp. 233, 234 (HL)(meaning of ordinarily resident in United Kingdom)
Thampnoor Ravi v. Charupara Ravi,
JT 1999 (7) SC 231 [
LNIND 1999 SC 813 ], pp. 244, 245 :
AIR 1999 SC 3309 [
LNIND 1999 SC 813 ], p. 3316 :
(1999) 8 SCC 74 [
LNIND 1999 SC 813 ] (The expression ‘undischarged insolvent’ has acquired a technical
meaning in law). Meaning well accepted in law is to be preferred to natural meaning: See Duckering v. Gollam,
(1965) 2 All ER 115 , p. 120 (HL) (Letter G.).
34 Commissioner for Special Purposes of Income-tax v. John Frederick Pemsel, supra, p. 54; State of
Madras v. Gannon Dunkerley & Co. supra, p. 573; Thampnoor Ravi v. Charupara Ravi, supra .
35 State of Punjab v. Inder Singh,

JT 1997 (8) SC 466 , p. 479 :
AIR 1998 SC 7 : (1997) 8 SCC 372. (The word ‘deputation’ has a different connotation in
service law and dictionary meaning is of no help) Thampnoor Ravi v. Charupara Ravi, supra .
36 See text and notes 53 to 55, pp. 115-16.
37 H.H. Ruckmaboye v. Lulloobhoy Motichand, (1851-52) 5 MIA 234, p. 250 : 8 Moo PC 4 (PC).
Referred in Keshavji Ravji and Co. v. Commissioner of Income tax,
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ], p. 1813 :
(1990) 2 SCC 231 [
LNIND 1990 SC 60 ].
38 Commissioner for Special Purposes of Income-tax v. John Frederick Pemsel,

(1891-94) All ER Rep 28 , p. 54 :
(1891) AC 531 (HL); referred to in Chesterman v. Federal Commissioner of Taxation,
(1926) AC 128 , p. 131 (PC); Laurence Arthur Adamson v. Melbourne & Metropolitan Board of
Works,
AIR 1929 PC 181 , p. 182.
39 Laurence Arthur Adamson v. Malbourne & Metropolitan Board of Works, supra.

N.B.— The definition of ‘Charitable purpose’ under the Indian Income-tax Legislation is not
identical with definition of ‘Charity’ formulated in Pemsel's case, supra; see CIT v. Andhra Chamber of
Commerce, Madras,
AIR 1965 SC 1281 [
LNIND 1964 SC 248 ], p. 1287 :
1965 (1) SCR 565 [
LNIND 1964 SC 248 ]; Lokshikshan Trust v. CIT, Mysore,
AIR 1976 SC 10 [
LNIND 1975 SC 305 ]; Indian Chamber of Commerce v. CIT, West Bengal,
Mr.Srikanth -
Page 29 of 58
AIR 1976 SC 348 [

LNIND 1975 SC 346 ]: 1976 SCC (Tax) 41 :
(1976) 1 SCC 324 [
LNIND 1975 SC 346 ]. See further Municipal Corporation Delhi v. Children
Book Trust,
AIR 1992 SC 1456 [
LNIND 1992 SC 330 ]:
1992 (3) SCC 390 [
LNIND 1992 SC 330 ] (Society running school when entitled to exemption from tax under the
Delhi Municipal Corporation Act ).
40 S. Kuppuswami Rao v. King,

AIR 1949 FC 1 , pp. 3, 4. For meaning of ‘final order’ see also Haron Bin
Mohd. Zaid v. Central Securities (Holdings) Ltd.,
(1982) 2 All ER 481 (PC).
41 Ramchand Manjimal v. Goverdhandas etc.,

AIR 1920 PC 86 : 47 IA 124.
42 S. Kuppuswami Rao v. King, supra,pp. 3, 4.
43 Sardar Syedna Taher Saifuddin v. State of Bombay,

AIR 1958 SC 253 [
LNIND 1957 SC 130 ], p. 255 :
1958 SCR 1010 ; Jethanand & Sons v. State of U.P.,
AIR 1961 SC 794 [
LNIND 1961 SC 47 ], p. 795 :
1961 (3) SCR 754 [
LNIND 1961 SC 47 ]; State of U.P. v. Sujan Singh, (Col.),
AIR 1964 SC 1897 [
LNIND 1964 SC 138 ], p. 1901 :
1964 (7) SCR 734 [
LNIND 1964 SC 138 ]. See further Petlad Turkey Red Dye Works Co. Ltd. v
Commissioner of Income-tax, Bombay,
AIR 1963 SC 1484 [
LNIND 1962 SC 353 ], pp. 1486, 1487; Samarendra Nath Sinha v. Krishna Kumar Nag,
AIR 1967 SC 1440 [
LNIND 1966 SC 283 ], p. 1442 :
1967 (2) SCR 18 [
LNIND 1966 SC 283 ]. For meaning of ‘judgment’ in Letters Patents see also
Employer in Relation to Management of Central Mine Panning and Design Institute Ltd. v. Union of India,
AIR 2001 SC 883 [
LNIND 2001 SC 225 ]:
(2001) 2 SCC 588 [
LNIND 2001 SC 225 ].
44 Tata Iron & Steel Co. v. Chief Revenue Authority of Bombay,

AIR 1923 PC 148 ; Delhi Cloth & General Mills Co. Ltd. v. CIT, Delhi,
AIR 1927 PC 242 [
LNIND 1927 BOM 129 ]; Premchand Satramdas v. State of Bihar,
AIR 1951 SC 14 [
LNIND 1950 SC 45 ]:
1950 SCR 799 [
LNIND 1950 SC 45 ]; Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income-tax,
AIR 1963 SC 1484 [
LNIND 1962 SC 353 ], pp. 1486, 1487 : 1963 Supp (1) SCR 871; Thomas (Arthur) v. Queen,
(1979) 2 All ER 142 , p. 149 (PC); For meaning of Letters Patent see P.V. Hemlatha v.
Mr.Srikanth -
Page 30 of 58
Kattamkandi Puthiya Maliockal Sahuda,

AIR 2002 SC 2445 [
LNIND 2002 SC 403 ], p. 2457 :
(2002) 5 SCC 548 [
LNIND 2002 SC 403 ].
45 State of Madras v. Gannon Dunkerly & Co.,

AIR 1958 SC 560 [
LNIND 1958 SC 39 ], p. 573 :
1959 SCR 379 [
LNIND 1958 SC 39 ]. See further Esso Petroleum Ltd. v. Commissioner of
Customs and Excise,
(1976) 1 All ER 117 , p. 133 (HL); Everest Copiers v. State of Tamil Nadu,
1996 (5) Scale 533 :
AIR 1996 SC 2662 [
LNIND 1996 SC 1117 ](making of photocopies is a contract of work and labour and not sale of
goods) Hindusthan Shipyard Ltd. v. State of Andhra Pradesh,
JT 2000 (8) SC 29 [
LNIND 2000 SC 951 ]:
AIR 2000 SC 2411 [
LNIND 2000 SC 951 ]:
(2000) 6 SCC 579 [
LNIND 2000 SC 951 ](manufacture and supply of ships held to be ‘sale’ and not ‘works
contract’) State of A.P. v. Kone Elevators India Ltd.,
(2005) 3 SCC 389 (supply of lift by the manufacturer who brought it in a knocked down
condition and installed it at the site kept ready by the customer was held to be sale and not ‘works contract’).
Note.— The
Constitution 46th Amendment Act, 1982 added clause (29A), in Article 366 to widen the meaning of ‘tax on sale
or purchase of goods’ and now sales tax can be levied on the value of building material used in execution of a works contract even
in a single and indivisible contract ( Builders Association of India v. Union of India,
AIR 1989 SC 1371 [
LNIND 1989 SC 206 ]:
(1989) 2 SCC 645 [
LNIND 1989 SC 206 ]; Builders Association of India v. State of Karnataka,
AIR 1993 SC 991 [
LNIND 1992 SC 839 ]) :
(1993) 1 SCC 409 ; State of U.P. v. PNC Construction Co. Ltd.,
(2007) 7 SCC 320 [
LNIND 2007 SC 946 ] (paras 22 and 26), or on the supply of food and drinks by Hoteliers and
Restaurant holders ( K. Damodaraswamy Naidu and Bros. v. State of Tamil Nadu,
AIR 1999 SC 3909 [
LNIND 1999 SC 922 ]:
(2000) 1 SCC 521) or on the transfer of right to use any goods ( 20th Century Finance
Corporation v. State of Maharashtra,
JT 2000 (7) SC 177 [
LNIND 2000 SC 867 ]:
AIR 2000 SC 2436 [
LNIND 2000 SC 867 ]:
(2000) 6 SCC 12 [
LNIND 2000 SC 867 ]; State of U.P. v. Union of India,
(2003) 3 SCC 239 [
LNIND 2003 SC 145 ] :
AIR 2003 SC 1147 [
LNIND 2003 SC 145 ]), or on the sale of Electricity ( State of A.P. v. National Thermal Power
Corporation of India,
AIR 2002 SC 1895 [
LNIND 2002 SC 311 ]:
(2002) 5 SCC 203) [
LNIND 2002 SC 311 ] or on the supply of telephone connection ( State of Uttar Pradesh v.
Mr.Srikanth -
Page 31 of 58
Union of India,
AIR 2003 SC 1147 [
LNIND 2003 SC 145 ]). Sales under the compulsion of a statute are also exigible to sales tax;
Food Corporation of India v. State of Kerala,
AIR 1997 SC 1252 [
LNIND 1997 SC 5 ]:
(1997) 3 SCC 410 [
LNIND 1997 SC 5 ].
46 Thampanoor Ravi v. Charupara Ravi,

JT 1999 (7) SC 231 [
LNIND 1999 SC 813 ], pp. 244, 245 :
AIR 1999 SC 3309 [
LNIND 1999 SC 813 ], p. 3316 :
(1999) 8 SCC 74 [
LNIND 1999 SC 813 ].
47 Ibid.
48 Gordhandas Hargovindas v. Municipal Commissioner, Ahmedabad,

AIR 1963 SC 1742 [
LNIND 1963 SC 84 ], p. 1749 :
1964 (2) SCR 608 [
LNIND 1963 SC 84 ]; followed in Godhara Borough Municipality, Godhara v. Godhara
Electricity Co. Ltd.,
AIR 1968 SC 1504 [
LNIND 1968 SC 77 ]:
1968 (3) SCR 481 [
LNIND 1968 SC 77 ].
49 Ibid.
50 New Manak Chowk Spg. and Wvg. Mills Co. Ltd. v. Municipal Corporation of the City of
Ahmedabad,
AIR 1967 SC 1801 [
LNIND 1967 SC 40 ]:
(1967) 2 SCR 679 [
LNIND 1967 SC 40 ].
51 Ibid; Krishna Mohan (P.) Ltd. v. Municipal Corporation of Delhi,

(2003) 7 SCC 151 [
LNIND 2003 SC 588 ] :
AIR 2003 SC 2935 [
LNIND 2003 SC 588 ].
52 Workmen of National and Grindlays Bank Ltd. v. National and Grindlays Bank Ltd.,
AIR 1976 SC 611 [
LNIND 1976 SC 12 ], p. 621 :
(1976) 1 SCC 925 [
LNIND 1976 SC 12 ].
Mr.Srikanth -
Page 32 of 58
53 Jones v. Tower Boot Co. Ltd.,

(1997) 2 All ER 406 :
(1997) 1 RLR 168 (CA).
54 R. v. Kensingtan and Chelsea Royal Londan Borough Council,

(1999) 3 All ER 929 (HL).
55 Ibid, pp. 931, 934.
56 See Chapter 1, title 2 ‘Intention of the Legislature’, text and notes 57 to 69, pages 14 to 17.
57 Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate,

AIR 1958 SC 353 [
LNIND 1958 SC 1 ], p. 356 :
1958 SCR 1156 [
LNIND 1958 SC 1 ]; State of U.P. v. C. Tobit,
AIR 1958 SC 414 [
LNIND 1958 SC 9 ],p. 416 :
1958 SCR 1275 [
LNIND 1958 SC 9 ]; Santasingh v. State of Punjab,
AIR 1976 SC 2386 [
LNIND 1976 SC 268 ], p. 2389:
1976 SCC (Cri) 546 [
LNIND 1976 SC 268 ] :
(1976) 4 SCC 190 [
LNIND 1976 SC 268 ]; ; Mukesh K. Tripathi v. Senior Divisional Manager,
(2004) 8 SCC 387 , p. 401 :
AIR 2004 SC 4179 .
N.B.— This passage in the Supreme Court Cases is taken from MAXWELL on Statutes, 11th
Edition, p. 51 (12th Edition, p. 76) which is based on the dictum of ABBOT, C.J. in R. v. Hall,
(1822) 107 ER 47 , p. 51, and which was cited with approval by LORD ROMILLY in Lion,
(1869) 16 ER 688 , p. 691 (PC). Similar language is used in Broom's Legal Maxims (pp. 466,
467) which is referred to in Ashok Singh v. Assistant Controller of Estate Duty,
AIR 1992 SC 1756 [
LNIND 1992 SC 400 ], p. 1761 :
1992 (3) SCC 169 [
LNIND 1992 SC 400 ] :
(1992) 196 ITR 160 .
58 Cabell v. Markham, 148 F 2d 737 (2d cir 1945), (Judge Learned Hand).
59 New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar,

AIR 1963 SC 1207 , p. 1213 : 1963 Supp (2) SCR 459; see further Kanwar
Singh v. Delhi Administration,
AIR 1965 SC 871 [
LNIND 1964 SC 194 ]:
(1965) 1 SCR 7 [
LNIND 1964 SC 194 ]; Deputy Custodian, v. Official Receiver,
AIR 1965 SC 951 [
LNIND 1964 SC 220 ], pp. 956, 957:
1965 (1) SCR 220 [
LNIND 1964 SC 220 ]; Motor Owners Insurance Co. Ltd. v. J.K. Modi,
AIR 1981 SC 2059 [
LNIND 1981 SC 403 ], p. 2065 :
Mr.Srikanth -
Page 33 of 58
(1981) 4 SCC 660 [

LNIND 1981 SC 403 ]; Ambica Quarry Works v. State of Gujarat,
(1987) 1 SCC 213 [
LNIND 1986 SC 513 ], p. 221 :
AIR 1987 SC 1073 [
LNIND 1986 SC 513 ]; Kameshwarr Singh Shrivastava v. IV. Addl. District Judge, Lucknow,
AIR 1987 SC 138 [
LNIND 1986 SC 449 ], p. 141 :
1987 (1) SCR 224 ; Municipal Corporation of Greater Bombay v. Indian Oil Corporation,
AIR 1991 SC 686 [
LNIND 1990 SC 821 ], p. 689 : 1991 Supp (2) SC 18; N.K. Jain v. C.K. Shah,
AIR 1991 SC 1289 [
LNIND 1991 SC 173 ], pp. 1304, 1305 :
1991 (2) SCC 495 [
LNIND 1991 SC 173 ]; K. Veeraswamy v. Union of India,
(1991) 3 SCC 655 [
LNIND 1991 SC 320 ], p. 702 :
1991 (3) JT 198 ; Land Acquisition Officer and Mandal Revenue Officer v. Narsaiah,
JT 2001 (3) SC 157 [
LNIND 2001 SC 575 ], p. 161 :
(2001) 3 SCR 530 :
AIR 2001 SC 1177 .
60 Carew & Company v. Union of India,

AIR 1975 SC 2260 [
LNIND 1975 SC 290 ], p. 2270 :
(1975) 2 SCC 791 [
LNIND 1975 SC 290 ]; State of Haryana v. Sampuran Singh,
AIR 1975 SC 1952 [
LNIND 1975 SC 320 ], pp. 1955, 1957 :
(1975) 2 SCC 810 [
LNIND 1975 SC 320 ]. [In Sampuran Singh's case, the court reiterated what it had said in
Amarsingh's case
AIR 1974 SC 994 [
LNIND 1974 SC 16 ], p. 996:
(1974) 2 SCC 70 [
LNIND 1974 SC 16 ] that if the constitutionally envisioned socio-economic revolution is not to
be a paper tiger, agrarian laws have to be meaningfully enacted, interpreted and executed and the court is not the anti hero in the
drama of limping land reform]. Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut,
(1984) 1 SCC 1 , p. 9 :
AIR 1984 SC 505 [
LNIND 1983 SC 289 ]; Reserve Bank of India v. Peerless General Finance and Investment Co.
Ltd.,
1996 (1) Scale 13 [
LNIND 1996 SC 22 ] at p. 15:
AIR 1996 SC 646 [
LNIND 1996 SC 22 ], p. 655 (Para 22) :
(1996) (1) SCC 642 [
LNIND 1996 SC 22 ]; A-One Graintes v. State of U.P.,
AIR 2001 SC 1203 [
LNIND 2001 SC 434 ], p. 1209; The Mor Modern Co-operative Transport Society Ltd. v.
Financial Commissioner and Secretary to Govt. of Haryana,
AIR 2002 SC 2513 [
LNIND 2002 SC 421 ], p. 2518 :
(2002) 6 SCC 269 [
LNIND 2002 SC 421 ]; Bipinchandra Parshottamdas Patel v. State of Gujarat,
(2003) 4 SCC 642 [
LNIND 2003 SC 431 ], pp. 657, 658 :
AIR 2003 SC 2256 [
LNIND 2003 SC 431 ].
61 Busching Schmitz Private Ltd. v. P.T. Menghani,

AIR 1977 SC 1569 [
Mr.Srikanth -
Page 34 of 58
LNIND 1977 SC 135 ], pp. 1575, 1576:

1977 (2) SCC 835 [
LNIND 1977 SC 135 ]; S.P. Jain v. Krishan Mohan Gupta,
(1987) 1 SCC 191 [
LNIND 1986 SC 493 ], p. 201 :
AIR 1987 SC 222 [
LNIND 1986 SC 493 ]. See further Nath Devi v. Radha Devi,
(2005) 2 SCC 271 [
LNIND 2004 SC 1268 ], p. 277.
62 CIT v. Budhraja and Company,

AIR 1993 SC 2529 , p. 2535 : 1994 Supp (1) SCC 280 :
(1993) 204 ITR 412 .
63 U.P. Bhoodan Yagna Samiti v. Braj Kishore,

AIR 1988 SC 2239 [
LNIND 1988 SC 440 ]:
1988 (4) SCC 274 [
LNIND 1988 SC 440 ].
64 Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea

Estate,
AIR 1958 SC 353 [
LNIND 1958 SC 1 ], p. 364 :
1958 SCR 1156 [
LNIND 1958 SC 1 ]. See further Workmen v. Dharampal Premchand
(Saugandhi),
(1965) 3 SCR 394 [
LNIND 1965 SC 83 ] :
AIR 1966 SC 182 [
LNIND 1965 SC 83 ]; J.H. Jadhav v. Forbes Gokak Ltd.,
(2005) 3 SCC 202 [
LNIND 2005 SC 133 ], p. 205.
65 Santa Singh v. State of Punjab,

AIR 1976 SC 2386 [
LNIND 1976 SC 268 ]:
1976 SCC (Cri) 546 [
LNIND 1976 SC 268 ]. See further Ram Deo Chauhan v. State of Assam,
AIR 2001 SC 2231 [
LNIND 2001 SC 1233 ], p. 2235 :
(2001) 5 SCC 714 [
LNIND 2001 SC 1233 ].
66 Busching Schmitz Private Ltd. v. P.T. Menghani,

AIR 1977 SC 1569 [
LNIND 1977 SC 135 ], p. 1577 :
1977 (2) SCC 835 [
LNIND 1977 SC 135 ].
67 Narendra Madivalapa Kheni v. Manikrao Patil,

AIR 1977 SC 2171 [
LNIND 1977 SC 232 ], p. 2180 :
(1977) 4 SCC 16 [
LNIND 1977 SC 232 ].
Mr.Srikanth -
Page 35 of 58
68 Bipinchandra Parshottamdas Patel v. State of Gujarat,

(2003) 4 SCC 642 [
LNIND 2003 SC 431 ] :
AIR 2003 SC 2256 [
LNIND 2003 SC 431 ]:
(2003) 4 SCC 642 [
LNIND 2003 SC 431 ].
69 K. Prabhakaran v. P. Jayarajan,
(2005) 1 SCC 754 [
LNIND 2005 SC 30 ], p. 783.
70 Ibid., pp. 781, 782.
71 Francis & Francis (a firm) v. Central Criminal Court,

(1988) 3 All ER 775 (HL).
72 Ibid. (Lord Brandon, Lord Griffith and Lord Goff).
73 Ibid. (Lord Bridge and Lord Oliver).
74 V.C. Shukla v. State,

AIR 1980 SC 962 : 1980 SCC (Cri) 695 : 1980 Supp SCC 92.
75 (1584) 3 Co. Rep. 7 a, p. 7b : 76 ER 637.
76 Kanailal Sur v. Paramnidhi Sadhukhan,

AIR 1957 SC 907 [
LNIND 1957 SC 83 ], p. 910 :
1958 SCR 360 [
LNIND 1957 SC 83 ].
77 Anderton v. Ryan,
(1985) 2 All ER 355 , p. 359 (HL). The Law Commission (U.K.) in 1969 disapproved of the term
‘mischief’ being archaic and preferred a ‘purposive’ approach to construction : CROSS: “Statutory Interpretation”, 3rd Edition, pp.
17, 18.
78
AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 674 :
1955 (2) SCR 603 [
LNIND 1955 SC 122 ], see further CIT, Patiala v. Shahzada Nand & Sons,
AIR 1966 SC 1342 [
LNIND 1966 SC 25 ], p. 1347 :
1966 (3) SCR 379 [
LNIND 1966 SC 25 ]; Sanghvi Jeevraj Ghewar Chand v. Madras Chillies, Grains & Kirana
Merchants Workers Union,
AIR 1969 SC 530 [
LNIND 1968 SC 164 ], p. 533 :
1969 (1) SCR 366 [
Mr.Srikanth -
Page 36 of 58

AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2358 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ]; K.P. Verghese v. I.T. Officer,
AIR 1981 SC 1922 [
LNIND 1981 SC 373 ], p. 1929 :
(1981) 4 SCC 173 [
LNIND 1981 SC 373 ]; Raipur Development Authority v. Anupam Sahkari Griha Nirman Samiti,
JT 2000 (4) SC 60 [
LNIND 2000 SC 554 ], pp. 70, 71 :
(2000) 4 SCC 357 [
LNIND 2000 SC 554 ]; Steel Authority of India Ltd. v. National Union Water Front Workers,
AIR 2001 SC 3527 [
LNIND 2001 SC 1870 ], p. 3552 :
(2001) 7 SCC 1 [
LNIND 2001 SC 1870 ]; Zile Singh v. State of Haryana,
AIR 2004 SC 5100 [
LNIND 2004 SC 1050 ], p. 5105 :
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ].
79 Heydon's case, (1584) 3 Co. Rep. 7 a, p. 7b : 76 ER 637.
80 Bengal Immunity Co. v. State of Bihar,

AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 674 :
1955 (2) SCR 603 [
LNIND 1955 SC 122 ]. See further CIT, Patiala v. Shahzada Nand & Sons,
AIR 1966 SC 1342 [
LNIND 1966 SC 25 ],p. 1347 :
1966 (3) SCR 379 [
LNIND 1966 SC 25 ]; Sanghvi Jeevraj Ghewar Chand v. Madras Chillies, Grains & Kirana
AIR 1969 SC 530 [
LNIND 1968 SC 164 ], p. 533 :
1969 (1) SCR 366 [
LNIND 1968 SC 164 ]; Swantraj v. State of Maharashtra,
AIR 1974 SC 517 [
LNIND 1974 SC 26 ], p. 520 :
1974 SCC (Cri) 930 [
LNIND 1974 SC 26 ] :
(1975) 3 SCC 322 [
LNIND 1974 SC 26 ]; Applin v. Race Relations Board,
(1974) 2 All ER 73 , p. 89 (HL); Rani Choudhury v. Surajjit Singh Choudhury,
AIR 1982 SC 1397 [
LNIND 1982 SC 121 ],p. 1399 :
(1982) 2 SCC 596 [
LNIND 1982 SC 121 ]; Babaji Kondaji Garod v. Nasik Merchants Co-operative Bank Ltd.,
(1984) 2 SCC 50 [
LNIND 1983 SC 323 ], p. 59 :
AIR 1984 SC 192 [
LNIND 1983 SC 323 ]; Waliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,
AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2281 :
1988 (4) SCC 419 [
LNIND 1988 SC 442 ]; PEK Kalliani Amma (Smt.) v. K. Devi,
1996 (4) Scale 131 , pp. 148, 149:
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ], p. 1975; Pawan Kumar v. State of Haryana,
JT 1998 (1) SC 565 [
LNIND 1998 SC 176 ], p. 571:
AIR 1998 SC 958 [
Mr.Srikanth -
Page 37 of 58
LNIND 1998 SC 176 ], p. 963 :

(1998) 3 SCC 309 [
LNIND 1998 SC 176 ]; Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd.,
AIR 2004 SC 355 [
LNIND 2003 SC 995 ], p. 359 :
(2004) 1 SCC 702 [
LNIND 2003 SC 995 ]. National Insurance Co. Ltd. v. Baljit Kaur,
(2004) 2 SCC 1 [
LNIND 2004 SC 23 ], pp. 6, 7 :
AIR 2004 SC 1340 [
LNIND 2004 SC 23 ].
81
(1898) 2 Ch 28 , p. 35; see further Thomson v. Lord Clanmorris,
(1900) 1 Ch D 718 , p. 725(Lindley, M.R.).
82 Supra.
83
(1898) AC 571 , p. 576.
84 Ibid, referred to in Bengal Immunity Co. v. State of Bihar,

AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 674 :
1955 (2) SCR 603 [
LNIND 1955 SC 122 ].
85 Black-Clawson International Ltd. v. Papierwerke Waldhof Ascheffenburg,

(1975) 1 All ER 810 , p. 814 :
(1975) 2 WLR 512 :
1975 AC 591 (HL); Goodyear India Ltd. v. State of Haryana,
AIR 1990 SC 781 [
LNIND 1989 SC 725 ], p. 789 :
(1990) 2 SCC 71 [
LNIND 1989 SC 725 ].
86 Anderton v. Ryan,
(1985) 2 All ER 355 , p. 359 :
(1985) AC 567 :
(1985) 2 WLR 968 (HL).
87 Pepper v. Hart,
(1993) 1 All ER 42 , p. 50 (HL). See further Lalit Mohan Pandey v Pooran
Singh,
(2004) 6 SCC 626 [
LNIND 2004 SC 569 ], pp. 642, 643.
88 Allahabad Bank v. Canara Bank,

JT 2000 (4) SC 411 [
LNIND 2000 SC 2274 ], p. 432 (para 34) :
(2000) 4 SCC 406 [
LNIND 2000 SC 2274 ] :
Mr.Srikanth -
Page 38 of 58
AIR 2000 SC 1535 [

LNIND 2000 SC 2274 ].
89 Shri Ram Saha v. State,

AIR 2004 SC 5080 [
LNIND 2004 SC 1077 ], p. 5089 (para 18) :
(2004) 9 JT 136 [
LNIND 2004 SC 1077 ] (Requirement of permission of collector for felling trees from non-forest
private plantation cannot be imported if not enacted to prevent pilferage of forest). See further text and note 18, p. 127, infra.
90 Director of Public Prosecutions v. Bhagwan,

(1970) 3 All ER 97 (HL). This case is discussed at page 817, infra.
91 Rodriguez v. United States, (1987) 480 US 522, pp. 525, 526. Also Quoted by KIRBY J. in Attorney
General (WA) v. Marquet, (2003) 78 ALJR 105, p. 130.
92 Bengal Immunity Co. v. State of Bihar,

AIR 1955 SC 661 [
LNIND 1955 SC 122 ]:
1955 (2) SCR 603 [
LNIND 1955 SC 122 ].
93 Ibid, p. 675.
94 Goodyear India Ltd v. State of Haryana,

AIR 1990 SC 781 [
LNIND 1989 SC 725 ]:
1990 (2) SCC 71 [
LNIND 1989 SC 725 ].
95 RMD Chamarbaugwalla v. Union of India,

AIR 1957 SC 628 [
LNIND 1957 SC 37 ], p. 632 :
1957 SCR 930 ; (See also page 631 of AIR wherein Heydon's case is referred).
1 CIT v. Sodra Devi,

AIR 1957 SC 832 [
LNIND 1957 SC 59 ], pp. 837, 838 :
1958 SCR 1 [
LNIND 1957 SC 59 ]; (see also page 835 of AIR Report wherein Heydon's case is referred). See
further CIT v. Shri Om Prakash
JT 1999 (5) SC 104 [
LNIND 1999 SC 615 ]:
AIR 1999 SC 2534 [
LNIND 1999 SC 615 ]:
(1999) 6 SCC 349 [
LNIND 1999 SC 615 ] (construction of
section 64(1) of the I.T. Act 1961 which holds that ‘individual’ does not include karta of a joint Hindu family).
2 CIT v. Sodra Devi, supra, p. 839 :

1957 SCR 930 . For another example of application f the rule in Heydon's case, see
Mahijibhai v. Manibhai,
Mr.Srikanth -
Page 39 of 58
AIR 1965 SC 1477 [

LNIND 1964 SC 349 ], p. 1482 :
1965 (2) SCR 436 [
LNIND 1964 SC 349 ].
3 Ibid.
4 Baliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,

AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2280 :
1988 (4) SCC 419 [
LNIND 1988 SC 442 ].
5 Baliram Waman Hiray (Dr.) v. Mr. Justice B. Lenin,

AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2283 :
(1988) 4 SCC 419 [
LNIND 1988 SC 442 ].
6 See text and notes 20 (p. 216) and 59-60 (p. 601).
7 See text and notes 59, 60, pp. 849-50, Chapter 11.
8
AIR 1957 SC 832 [
LNIND 1957 SC 59 ], p. 835 :
1958 SCR 1 [
LNIND 1957 SC 59 ].
9 Supra.
10 (1584) 3 Co Rep 7 a : 76 ER 637.
11 CIT, M.P. & Bhopal v. Sodra Devi,

AIR 1957 SC 832 [
LNIND 1957 SC 59 ], p. 835 :
1958 SCR 1 [
LNIND 1957 SC 59 ].

AIR 1957 SC 907 [
LNIND 1957 SC 83 ], pp. 910, 911 :
1958 SCR 360 [
LNIND 1957 SC 83 ].
13 See Chapter 1, title 6, p. 53.
Mr.Srikanth -
Page 40 of 58
14 See Chapter 1, text and note 36, p. 34; and text and notes 56-59, pp. 37-38.
15 Supra.
16 LORD SIMON explains this aspect by saying that the rule in Heydon's case is available at two stages; first before
ascertaining the plain and primary meaning of the statute and secondly at the stage when the court reaches the conclusion that there
is no such plain meaning: Maunsell v. Olins,
(1975) 1 All ER 16 , p. 29 :
(1974) 1 WLR 830 :
(1974) 2 All ER 250 (HL).
17
1996 (4) Scale 131 , p. 149 :
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ], p. 1975 :
(1996) 4 SCC 76 [
LNIND 1996 SC 869 ].
18 Cutter v. Eagle Star Insurance Co. Ltd.,

(1998) 4 All ER 417 , p. 425 (HL) (‘Road’ not construed to include ‘carpark’).
19
(1985) 2 All ER 355 , p. 363 :
(1985) 2 WLR 986 :
(1985) AC 567 (HL).
20
(1986) 2 All ER 334 :
(1987) AC 1 :
(1986) 2 WLR 988 (HL).
21 Maunsell v. Olins,
(1975) 1 All ER 16 , p. 27 :
(1987) AC 1 :
(1986) 2 WLR 988 (HL); R. v. Secretary of State for the Environment exparte Spath Home,
(2001) All ER 195 , pp. 205, 210 (J) (HL).
22 See titles 4(a): ‘Hardship, Inconvenience, Injustice, Absurdity and Anomaly to be avoided’; and 5(b)
‘nconsistency and Repugnancy to be avoided; Harmonious Construction’, infra. The real role that is played by consideration of
consequences in the process of construction is correctly appreciated by MAX RADIN: “It is true that the consideration of
consequences of a decision has at all times been a controlling factor in the judicial process. Those courts who declare vigorously
that they are completely indifferent to the consequences of what they decide and would decide as they do though the heaven fell,
merely mean that they do not believe that the consequences will be seriously harmful. If they meant what they said, and acted on it,
they would be taking a long step towards the destruction of our judicial system” (33 Calif. L. Rev. 219, p. 228) referred in Brij
Gopal v. State of M.P., D. Saibaba v. Bar Council of India,
AIR 2003 SC 2502 [
LNIND 2003 SC 510 ], p. 2507 :
(2003) 6 SCC 186 [
LNIND 2003 SC 510 ] :
AIR 2003 SC 2502 [
LNIND 2003 SC 510 ] and Modern School v. Union of India,
AIR 2004 SC 2236 [
LNIND 2004 SC 564 ], pp. 2256, 2257 :
Mr.Srikanth -
Page 41 of 58
(2004) 9 SCC 741 [

LNIND 2004 SC 461 ] where the rule as stated above has been quoted with approval from earlier
editions of this book.
23 See Chapter 1, title 5 ‘If meaning plain, effect must be given to it irrespective of consequences’.
24 Holmes v. Bradfield Rural District Council,

(1949) 1 All ER 381 , p. 384 (KBD) (FINNEMORE, J.); Nasiruddin v. State Transport Appellate
Tribunal,
AIR 1976 SC 331 [
LNIND 1975 SC 306 ], p. 338 :
(1975) 2 SCC 671 [
LNIND 1975 SC 306 ].
25 Simms v. Registrar of Probates,

(1900) AC 323 , p. 335 (PC) (Lord Hobhouse). See further Cramas Properties
Ltd. v. Cannaught Fur Trimmings Ltd.,
(1965) 2 All ER 382 (HL), p. 385 (LORD REID), p. 387 (Lord Guest) (A reasonable
construction is to be pre ferred to an irrational construction leading to uncertainty) Trent River Authority v. National Coal Board,
(1970) 1 All ER 558 , p. 563 (HL). (Lord Wilberfore) (“When the statutory words are capable of
two meanings preference should be given to that meaning which produces the more reasonable and just result.”) Madhav Rao
Jivajirao v. Union of India,
AIR 1971 SC 530 [
LNIND 1970 SC 481 ], p. 576 :
1971 (1) SCC 85 [
LNIND 1970 SC 481 ], p. 162 (SHAH, J.) (“The court will interpret a statute, as far as possible,
agreeable to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be
adopted, for there is always a presumption against the law-maker intending injustice and unreason”) Union of India v. B.S.
Agarwal,
AIR 1998 SC 1537 , p. 1546 :
(1997) 8 SCC 89 (court to lean in favour of such interpretation which conforms to justice and
fair play and prevents potentiality to injustice) Debenhams Plc. v. Westminister City Council,
(1987) 1 All ER 51 , p. 55 :
(1987) AC 396 :
(1986) 3 WLR 1063 ((HL) (That meaning which produces an unrea sonable result is to be
rejected in favour of that which does not) Paradise Printers v. Union Territory of Chandigarh,
AIR 1988 SC 354 [
LNIND 1987 SC 817 ], p. 358 :
1988 (1) SCC 440 [
LNIND 1987 SC 817 ] (when there is a choice of meanings, there is a presumption that one
which produces an unjust or inconvenient result was not intended) Union of India v. North Telumer Colliary,
AIR 1989 SC 1728 [
LNIND 1989 SC 344 ], p. 1732 :
(1989) 2 SCC 342 (construction which leads to ‘unjust benefit’ to be avoided’) Sachida Nand
Singh v. State of Bhiar,
AIR 1998 SC 1121 [
LNIND 1998 SC 138 ], p. 1123 :
1988 (2) SCC 493 (natural meaning leading to mischievous consequences to be avoided when
alternative construction is open) Bhatia International v. Bulk Trading S.A.,
AIR 2002 SC 1432 [
LNIND 2002 SC 1441 ], p. 1438 :
(2002) 4 SCC 105 [
LNIND 2002 SC 1441 ];
AIR 2002 SC 2004 [
LNIND 2002 SC 328 ], p. 2014 v. Jagadamba Industrial Corporation,
AIR 2002 SC 2004 [
LNIND 2002 SC 328 ], p. 2014 :
(2002) 5 SCC 440 [
LNIND 2002 SC 328 ] (Eighth Edition p. 113 of this book is referred) Unique Butyle Tube
Industries P. Ltd. v. U.P. Financial Corporation,
(2003) 2 SCC 455 [
Mr.Srikanth -
Page 42 of 58
LNIND 2002 SC 857 ], p. 463 : 2003 All LJ 427 ; D. Saibaba v. Bar Council of India,
AIR 2003 SC 2502 [
LNIND 2003 SC 510 ], p. 2507 (Eighth edition of this book p. 113 is referred) Ibrahimpatnam
Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy,
(2003) 7 SCC 667 [
LNIND 2003 SC 687 ], p. 678 :
(2003) 7 SCC 667 [
LNIND 2003 SC 687 ] :
AIR 2003 SC 3592 [
LNIND 2003 SC 687 ]; Lalit Mohan Pandey v. Pooran Singh,
(2004) 6 SCC 626 [
LNIND 2004 SC 569 ], pp. 643, 644 :
AIR 2004 SC 2303 [
LNIND 2004 SC 569 ].
26 Grey v. Pearson, (1857) 6 HLC 61, p. 106: 10 ER 1216, p. 1234 (HL); See further title 2(a) ‘Natural
and Grammatical Meaning’, text and notes 18 (p. 79), 22 (p. 80). Also see Shamrao v. District Magistrate, Thana,
AIR 1952 SC 324 [
LNIND 1952 SC 38 ], p. 327 :
1952 SCR 683 [
LNIND 1952 SC 38 ]. “The object of the construction of a statute being to ascertain the will of
the Legislature, it may be presumed that neither injustice nor absurdity was intended. If, therefore literal interpretation would
produce such a result, and the language admits of an interpretation which would avoid it, then such an interpretation may be
adopted” : Owen Thomas Mangin v. IRC,
(1971) 2 WLR 39 , p. 42 (PC) (LORD DONOVAN):
(1971) 1 All ER 179 , p. 182 referred in Imperial Chemicals Industries v. Colmer,
(1996) 2 All ER 23 , p. 32.
27 Veluswami Thevar v. G. Raja Nainar,

AIR 1959 SC 422 [
LNIND 1958 SC 148 ], pp. 427, 428: 1959 Supp (1) SCR 404. K. Prabhakaran v. P. Jayarajan,
(2005) 1 SCC 754 [
LNIND 2005 SC 30 ], p. 773 (para 33).
28 Tirath Singh v. Bachittar Singh,

AIR 1955 SC 830 [
LNIND 1955 SC 53 ], p. 833 :
1955 (2) SCR 457 [
LNIND 1955 SC 53 ] (passage from MAXWELL, Interpretation of Statutes, 11th Edition, p. 221
approved) State of M.P. v. Azad Bharat Finance Co.,
AIR 1967 SC 276 [
LNIND 1966 SC 144 ], p. 278 : 1966 Supp SCR 473 ; Union of India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], pp. 2337, 2358, 2373 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (Lab) 435 ; CIT v. National Taj Traders,
AIR 1980 SC 485 [
LNIND 1979 SC 471 ], p. 490 :
(1980) 1 SCC 370 [
LNIND 1979 SC 471 ]; Verghese v. I.T. Officer,
AIR 1981 SC 1922 [
LNIND 1981 SC 373 ], p. 1928 :
(1981) 4 SCC 173 [
LNIND 1981 SC 373 ]; Bhag Mal v. Ch. Parbhu Ram,
(1985) 1 SCC 61 [
LNIND 1984 SC 302 ], p. 88 :
AIR 1985 SC 150 [
LNIND 1984 SC 302 ]; State of Tamil Nadu v. Kodaikanal Motor Union,
(1986) 3 SCC 91 [
LNIND 1986 SC 162 ], p. 100 :
AIR 1986 SC 1173 [
Mr.Srikanth -
Page 43 of 58
LNIND 1986 SC 169 ]; Commissioner of Income-tax v. J.H. Gotla Yadgiri,

(1985) 4 SCC 343 [
LNIND 1985 SC 270 ], p. 359 :
AIR 1985 SC 1698 [
LNIND 1985 SC 270 ]; C.W.S. (India) Ltd. v. Commissioner of Income-tax,
JT 1994 (3) SC 116 [
LNIND 1994 SC 287 ], p. 121: 1994 Supp (2) SCC 296; R. Rudraiah v. State of Karnataka,
JT 1998 (1) SC 435 [
LNIND 1998 SC 147 ], pp. 443, 444:
AIR 1998 SC 1070 [
LNIND 1998 SC 147 ], p.1075 :
(1998) 3 SCC 23 [
LNIND 1998 SC 147 ]; Molar Mal v. Kay Iron Works (P.) Ltd.,
AIR 2000 SC 1261 [
LNIND 2000 SC 476 ], p. 1266 :
(2000) 4 SCC 285 [
LNIND 2000 SC 476 ]; Padmasundara Rao v. State of T.N.,
AIR 2002 SC 1334 [
LNIND 2002 SC 201 ], pp. 1340, 1341 :
(2002) 3 SCC 533 [
LNIND 2002 SC 201 ]; Modern School v. Union of India,
AIR 2004 SC 2236 [
LNIND 2004 SC 564 ], p. 2257 :
(2004) 9 SCC 741 [
LNIND 2004 SC 461 ]. (This entire para quoted with approval by SINHA, J. from 9th Edn., pp.
121, 122 of this book).
29 Budhan Singh v. Babi Bux,

AIR 1970 SC 1880 [
LNIND 1969 SC 283 ], p. 1883 :
1969 (2) SCC 481 [
LNIND 1969 SC 283 ], State of Uttar Pradesh v. Sarjudevi,
AIR 1977 SC 2196 [
LNIND 1977 SC 226 ], p. 2200 :
1977 (4) SCC 2 [
LNIND 1977 SC 226 ].
30 Ibid. ‘Hold’ may cover a case of ownership without possession as also lawful possession without
ownership: State of Andhra Pradesh v. Mohd. Ashrafuddin,
AIR 1982 SC 913 [
LNIND 1982 SC 61 ]:
(1982) 2 SCC 1 [
LNIND 1982 SC 61 ]. For other cases where the word ‘Lawfully’ was similarly read, see
Adlam v. Law Society,
(1968) 1 All ER 17 ; Abdul Manan, In re,
(1971) 1 WLR 859 , p. 861 (CA). Money ‘payable’ or money ‘due’ may mean money, legally
recoverable and not barred by limitation: New Delhi Municipal Committee v. Kaluram,
AIR 1976 SC 1637 [
LNIND 1976 SC 183 ], p. 1639 :
(1976) 3 SCC 407 [
LNIND 1976 SC 183 ]; ‘amounts due’ has also the same meaning State of Kerala v. V.R.
Kallianikutty,
JT 1999 (2) SC 541 :
AIR 1999 SC 1305 [
LNIND 1999 SC 336 ]:
(1999) 3 SCC 657 [
LNIND 1999 SC 336 ] and ‘occupation’ may mean ‘lawful occupation’, K.M. Mathew v. Hamsa
Haji,
(1987) 3 SCC 326 [
LNIND 1987 SC 912 ], p. 330 : 1987 AIR (SC) 1326. But in the context of rent control
legislation requiring the tenant to deposit ‘entire amount of rent due’ or ‘the arrears of rent’ to save eviction these expressions have
been construed to include even that part of arrears which have become barred by limitation: Rakesh Wadhwan v. Jagadamba
Industrial Corporation,
Mr.Srikanth -
Page 44 of 58
AIR 2002 SC 2004 [

LNIND 2002 SC 328 ], p. 2010 :
(2002) 5 SCC 440 [
LNIND 2002 SC 328 ]. The word ‘lawfully’ cannot also be generally read in a provision which
refers to domicile or habitual residence for a person may acquire a domicile of choice at a place or may be habitually resident at a
place though his residence at that place was unlawful: Mark v. Mark,
(2005) 3 All ER 912 (paras 33, 36, 49) (HL).
31 See first case in footnote 28, supra.
32 Thirath Singh v. Bachittar Singh,

AIR 1955 SC 830 [
LNIND 1955 SC 53 ], p. 833 :
1955 (2) SCR 457 [
LNIND 1955 SC 53 ].
33 Velamuri Venkata Shivprasad v. Kothuri Venkateshwarlu,

JT 1999 (9) SC 249 :
AIR 2000 SC 434 [
LNIND 1999 SC 1047 ]:
(2000) 2 SCC 139 [
LNIND 1999 SC 1047 ].
34 Rakesh Wadhawan v. Jagadamba Industrial Corporation,

AIR 2002 SC 2004 [
LNIND 2002 SC 328 ], p. 2012 :
(2002) 5 SCC 440 [
LNIND 2002 SC 328 ].
35 Central India Spinning, Weaving and Manufacturing Co. Ltd., Empress Mills, Nagpur v. Municipal
Committee, Wardha,
AIR 1958 SC 341 [
LNIND 1957 SC 139 ], p. 346 :
1958 SCR 1102 [
LNIND 1957 SC 139 ]. But in
section 53 of the Copyright Act, 1957 the word ‘import’ has been construed to include importation for transit
across the country. Gramophone Co. of India Ltd. v. Bir Bahadur Pandey,
(1984) 2 SCC 534 [
LNIND 1984 SC 51 ], p. 555 :
AIR 1984 SC 667 [
LNIND 1984 SC 51 ].
36 Minister of Housing & Local Government v. Hartnell,

(1965) 1 All ER 490 (HL); Huges v. Doncaster Metropolitan Borough Council,
(1991) 1 All ER 295 , p. 303 :
(1991) 1 AC 382 :
(1991) 2 WLR 16 (HL); R. v. Secretary of State for the Environment exparte Spath Holme Ltd.,
(2001) 1 All ER 196 , p. 203 (HL). But this principle will not apply to welfare legislations like
Zamindari Abolition Acts or Ceiling Acts; For example see Raja Satyendra Narain Singh v. State of Bihar,
(1987) 3 SCC 319 [
LNIND 1987 SC 455 ], p. 325:
AIR 1987 SC 1390 [
LNIND 1987 SC 455 ]; State of M.P. v. Board of Revenue,
1983 MPLJ 148 , p. 156 (G.P. Singh C.J.). The principle will also not apply to a nationalisation
Act passed to give effect to Article 39(b) and (c) of the
Constitution ; Doypack Systems Pvt. Ltd. v. Union of India,
AIR 1988 SC 782 [
Mr.Srikanth -
Page 45 of 58
LNIND 1988 SC 589 ], pp. 803, 804 :

1988 (2) SCC 299 [
LNIND 1988 SC 589 ].
37 DLF Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, 2003 AIR SCW
1046, p. 1056 (para 36) :
(2003) 5 SCC 622 [
LNIND 2003 SC 213 ], pp. 634, 635; State of Maharashtra v. B.E. Billimoria,
(2003) 7 SCC 336 , p. 347 :
AIR 2003 SC 4368 ; Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli,
(2007) 6 SCC 81 (para 29) :
(2007) 6 Scale 353 :
(2007) 6 JT 264 .
38 Ibid (para 35). For meaning of regulation see pp. 966-968.
39 Morris v. Beardmore,
(1980) 2 All ER 753 , p. 757 :
(1981) AC 446 (HL).
40 Webb v. Chief Constable of Merseyside Police,

(2000) 1 All ER 200 (CA).
41 Cochin State Power & Light Corporation Ltd. v. State of Kerala,

AIR 1965 SC 1688 [
LNIND 1965 SC 56 ], p. 1691 :
(1965) 3 SCR 187 [
LNIND 1965 SC 56 ]; Burns v. Bidder,
(1966) 3 All ER 29 . Presidential Election, In re, 1974,
AIR 1974 SC 1682 [
LNIND 2002 SC 665 ], p. 1686 :
(1974) 2 SCC 33 [
LNIND 1974 SC 688 ]; Superintendent of Taxes v. Onkarmal Nathumal Trust,
AIR 1975 SC 2065 [
LNIND 1975 SC 191 ], pp. 2069, 2074, 2077 :
(1976) 1 SCC 766 [
LNIND 1975 SC 191 ]; Rajkumar Dey v. Tarapada Dey,
(1987) 4 SCC 388 , pp. 402, 403 :
AIR 1987 SC 2195 [
LNIND 1987 SC 647 ]; B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmik,
AIR 1987 SC 1010 [
LNIND 1987 SC 921 ], p. 1013 :
(1987) 2 SCC 407 [
LNIND 1987 SC 921 ]; Vatan Mal v. Kailash Nath,
AIR 1989 SC 1534 [
LNIND 1989 SC 195 ], pp. 1538, 1539 :
(1989) 3 SCC 79 [
LNIND 1989 SC 195 ]; Ashok Singh v. Assistant Controller of Estate Duty,
AIR 1992 SC 1756 [
LNIND 1992 SC 400 ], p. 1761 :
1992 (3) SCC 169 [
LNIND 1992 SC 400 ]; Vinod Krishna Kaul v. Union of India,
1995 (6) Scale 570 , p. 571 :
(1996) 1 SCC 41 [
LNIND 1995 SC 1403 ];
(2002) 8 SCC 237 [
LNIND 2002 SC 1378 ], p. 322. Kishansingh Tomar v. Municipal Corporation, city of
Ahmedabad,
Mr.Srikanth -
Page 46 of 58
AIR 2007 SC 269 [

LNIND 2006 SC 847 ](Const. Bench) (paras 17 to 20) :
(2006) 8 SCC 352 [
LNIND 2006 SC 847 ]. (Period for holding elections to Municipal Corporation fixed by
Article 243-U of the Constitution is mandatory and electoral rolls should be revised within a reasonable time
before holding election. But if it is not possible to revise the electoral rolls before the period fixed for holding elections, the election
must be held on old electoral rolls. In this case, the case of Special Reference No. 1 of 2002:
AIR 2003 SC 87 [
LNIND 2002 SC 1378 ], which is also a
Constitution Bench decision regarding elections to a legislative assembly under
Article 174(1) of the Constitution and where similar view was taken was followed). But see Pilloo Dhunji Shaw V.
Municipal Corporation, City of Poona,
AIR 1970 SC 1201 [
LNIND 1970 SC 6 ], pp. 1203, 1204 :
1970 (1) SCC 213 [
LNIND 1970 SC 6 ].
42 R. v. Registrar General, ex parte, Smith,

(1990) 2 All ER 170 :
(1991) 2 QB 393 :
(1991) 2 WLR 782 (QBD). See further for meaning of ‘Public Policy’ India Financial
Association of Seventh Day Adventists v. M.A. Unneerikutty,
(2006) 6 SCC 351 [
LNIND 2006 SC 541 ] (para 17) :
(2006) 6 JT 351 (“The term ‘Public Policy’ has an entirely different and more extensive
meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current
needs of the community. Judges as trusted interpreters of law, have to interpret it. While doing so, precedents will also guide them
to a substantial extent.”)
43 Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab,

AIR 1998 SC 1624 [
LNIND 1998 SC 412 ], p. 1627 :
1998 (4) SCC 343 [
LNIND 1998 SC 412 ]; Shreenath v. Rajesh,
AIR 1998 SC 1827 [
LNIND 1998 SC 435 ], p. 1828 :
(1998) 4 SCC 543 [
LNIND 1998 SC 435 ]; New India Assurance Co. Ltd. v. R. Srinivasan,
AIR 2000 SC 941 [
LNIND 2000 SC 389 ], p. 493 :
(2000) 3 SCC 242 [
LNIND 2000 SC 389 ].
44 A.R. Antulay v. R.S. Nayak,

AIR 1988 SC 1531 [
LNIND 1988 SC 264 ], p. 1561 :
(1988) 2 SCC 602 [
LNIND 1988 SC 264 ]; Chinnamal v. Arumugham,
AIR 1990 SC 1828 [
LNIND 1990 SC 21 ], p. 1833 :
1990 (1) SCC 513 [
LNIND 1990 SC 21 ]. See further the maxim Actus Curiae neminem gravabit, (which means that
an act of the court shall prejudice none) and the following cases : South Eastern Coalfields Ltd. v. State of M.P.,
(2003) 8 SCC 648 [
LNIND 2003 SC 871 ] :
AIR 2003 SC 4482 [
LNIND 2003 SC 871 ]; Karnataka Rare Earth v. Senior Geological Department of Mines and
Geology,
(2004) 2 SCC 783 [
LNIND 2004 SC 109 ], pp. 790, 791 :
Mr.Srikanth -
Page 47 of 58
AIR 2004 SC 2915 [

LNIND 2004 SC 109 ].
45 United India Insurance Co. Ltd. v. Rajendra Singh,

AIR 2000 SC 1165 [
LNIND 2000 SC 477 ]:
(2000) 3 SCC 581 [
LNIND 2000 SC 477 ].
46 Central Bureau of Investigation v. Anupam J. Kulkarni,

AIR 1992 SC 1768 [
LNIND 1992 SC 397 ], p. 1779 :
(1992) 3 SCC 141 [
LNIND 1992 SC 397 ].
47 A.A. Hajee Muniuddin v. Indian Railways,

AIR 1993 SC 361 [
LNIND 1992 SC 840 ], p. 364 :
1992 (4) SCC 736 [
LNIND 1992 SC 840 ].
48 Ibid.
49 Sardar Amrjit Singh Kalra v. Pramod Gupta,

(2003) 3 SCC 272 [
LNIND 2002 SC 821 ] (paras 26 and 31) :
AIR 2003 SC 2588 [
LNIND 2002 SC 821 ].
50 Vacher & Sons v. London Society of Compositors,

(1913) AC 107 :
(1911-13) All ER Rep 241 , p. 252 (HL).

(1913) AC 107 :
(1911-13) All ER Rep 241 , pp. 252, 253 (HL).
52 R. v. Townbridge Overseers,
(1884)13 QBD 339 , p. 342. See Nasiruddin v. State Transport Appellate Tribunal,
AIR 1976 SC 331 [
LNIND 1975 SC 306 ], p. 338 :
(1975) 2 SCC 671 [
LNIND 1975 SC 306 ].
53 Young & Co. v. Leamington Spa Corporation,

(1883) 8 AC 517 , p. 527 (HL);
Hindu Women's Rights to Property Act , In re,
AIR 1941 PC 72 , p. 77; Dominion of India v. Shrinbai,
AIR 1954 SC 596 [
LNIND 1954 SC 92 ], p. 600 :
(1955) 1 SCR 206 [
LNIND 1954 SC 92 ]; Lord Advocate v. De Rosa,
Mr.Srikanth -
Page 48 of 58
(1974) 2 All ER 849 , p. 863 (HL); Orissa Warehousing Corporation v. Commissioner of

Income-tax,
JT 1999 (2) SC 527 [
LNIND 1999 SC 338 ], p. 540 :
AIR 1999 SC 1388 [
LNIND 1999 SC 338 ]:
(1999) 4 SCC 197 [
LNIND 1999 SC 338 ]. The same principle applies in adjudicating upon the constitutionality of a
law on the ground of unreasonableness: “A law has to be adjudged for its constitutionality by the generality of cases it covers, not
by the freaks and exceptions it martyrs;” R.S. Joshi v. Ajit Mills Ltd.,
(1977) 4 SCC 98 [
LNIND 1977 SC 260 ], p. 106 :
AIR 1977 SC 2279 [
LNIND 1977 SC 260 ]; Maharashtra State Board of Secondary and Higher Secondary
Education v. Paritosh Bhupeshkumar Sheth,
(1984) 4 SCC 27 [
LNIND 1984 SC 173 ], p. 50 :
AIR 1984 SC 1543 [
LNIND 1984 SC 173 ]; Shiv Shakti Co-op. Housing Society v. Swaraj Developers,
AIR 2003 SC 2434 [
LNIND 2003 SC 454 ], pp. 2441, 2442 :
(2003) 6 SCC 659 [
LNIND 2003 SC 454 ].
54 For a case of hardship from

Limitation Act , see Lucy v. Henleys Telegraph Works,
(1969) 3 All ER 456 , p. 465 (CA). Normally the strict grammatical construction of a limitation
provision is the only safe guide: R. Rudraiah v. State of Karnataka,
JT 1998 (1) SC 435 [
LNIND 1998 SC 147 ], pp. 443, 444:
AIR 1998 SC 1070 [
LNIND 1998 SC 147 ], p. 1075 :
(1998) 3 SCC 23 [
LNIND 1998 SC 147 ]. See further text and notes 75, 76, p. 18, ante.
55 East India Company v. Odichurn Paul, 7 Moo PC 85: (1849) 5 MIA 43, p. 69 (PC); Joseph v.
Joseph,
(1966) 3 All ER 486 , p. 492 (CA); Lord Advocate v. De Rosa,
(1974) 2 All ER 849 , p. 863 (HL); State Bank of India v. N. Sundara Money,
AIR 1976 SC 1111 [
LNIND 1976 SC 13 ], p. 1115 : 1976 SCC (L&S) 132 :
(1976) 1 SCC 822 [
LNIND 1976 SC 13 ]; Mohan Kumar Singhania v. Union of India,
AIR 1992 SC 1 , p. 26 : 1992 Supp (1) SCC 594; Orissa Warehousing Corporation v.
Commissioner of Income-tax,
JT 1999 (2) SC 527 [
LNIND 1999 SC 338 ], p. 540 :
AIR 1999 SC 1388 [
LNIND 1999 SC 338 ]:
(1999) 4 SCC 197 [
LNIND 1999 SC 338 ]. Lord Denning was critical of this maxim; see Vandervell's Trust (No. 2),
In re,
(1974) Ch 269 , p. 322. But Holmes, J., in Northern Securities Co. v. U.S., 193 U.S. 197, p. 400
said : “Great cases like hard cases make bad law:” Referred in Indira Nehru Gandhi (Smt.) v. Raj Narain,
AIR 1975 SC 2299 , p. 2370 : 1975 Supp SCC 1.
56 Christopherson v. Lotinga, (1864) 33 LJ CP 121, p. 123.
57 Grundt v. Great Boulder Proprietary Gold Mines Ltd.,

(1948) 1 All ER 21 , p. 29 (CA).
Mr.Srikanth -
Page 49 of 58
58 Grundt v. Great Boulder Proprietary Gold Mines Ltd.,

(1948) 1 All ER 21 , pp. 29, 30 (CA). See further State of Rajasthan v. Leela Jain,
AIR 1965 SC 1296 [
LNIND 1964 SC 228 ], p. 1301 (Para 16) :
(1965) 1 SCR 276 [
LNIND 1964 SC 228 ] : Keshavananda Bharati v. State of Kerala,
AIR 1973 SC 1461 [
LNIND 1973 SC 154 ], pp. 1539, 1540 :
(1973) 4 SCC 225 [
LNIND 1973 SC 154 ].

AIR 1957 SC 907 [
LNIND 1957 SC 83 ], p. 911 :
1958 SCR 360 [
LNIND 1957 SC 83 ].
60 Shamrao V. Parulekar v. District Magistrate, Thana,

AIR 1952 SC 324 [
LNIND 1952 SC 38 ], p. 327 :
1952 SCR 683 [
LNIND 1952 SC 38 ].
61 IRC v. Mutual Investment Co.,

(1966) 3 All ER 265 , p. 268 (PC).
62 Martin Burn Ltd. v. Calcutta Corporation,

AIR 1966 SC 524 [
LNIND 1965 SC 197 ], p. 535 :
(1966) 1 SCR 493 [
LNIND 1965 SC 195 ].
63 Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,

(1986) 4 SCC 447 , p. 476 :
AIR 1987 SC 117 .
64 Kariapper v. Wijesinha,
(1967) 3 All ER 485 , p. 494 :
1968 AC 717 (PC).
65 N.T. Veluswami Thevar v. G. Raja Nainar,

AIR 1959 SC 422 [
LNIND 1958 SC 148 ], pp. 427, 428 : 1959 Supp (1) SCR 623; Indo China Steam Navigation
Co. Ltd. v. Jasjit Singh,
AIR 1964 SC 1140 [
LNIND 1964 SC 25 ], p. 1149 :
(1964) 6 SCR 594 [
LNIND 1964 SC 25 ] (para 23); Banarsi Debi v. ITO,
AIR 1964 SC 1742 [
LNIND 1964 SC 112 ], p. 1746 (para 11) :
1964 (7) SCR 539 [
LNIND 1964 SC 112 ]; Lalji Haridas v. State of Maharashtra,
AIR 1964 SC 1154 [
Mr.Srikanth -
Page 50 of 58
LNIND 1964 SC 34 ], pp. 1159, 1160 (para 16) :

1964 (6) SCR 700 [
LNIND 1964 SC 34 ] : 66 Bom LR 460; Deputy Custodian v. Official Receiver,
AIR 1965 SC 951 [
LNIND 1964 SC 220 ], p. 955 (para 9) :
1965 (1) SCR 220 [
LNIND 1964 SC 220 ]; Mahijibhai v. Manibhai,
AIR 1965 SC 1477 [
LNIND 1964 SC 349 ], p. 1485 (para 29) :
1965 (2) SCR 436 [
LNIND 1964 SC 349 ].
66 N.T.Veluswami Thevar v. G. Raja Nainar,

AIR 1959 SC 422 [
LNIND 1958 SC 148 ], pp. 427, 428 : 1959 Supp (1) SCR 623.
67 Nyadar Singh v. Union of India,

AIR 1988 SC 1979 [
LNIND 1988 SC 854 ], pp. 1985, 1986 :
1988 (4) SCC 170 [
LNIND 1988 SC 854 ].
68 S.V. Kondeakar v. V.M. Deshpande,

AIR 1972 SC 878 [
LNIND 1972 SC 3 ], p. 886 :
1972 (1) SCC 438 [
LNIND 1972 SC 3 ] :
(1972) 83 ITR 685 .
69 Duckering v. Gollan,
(1965) 2 All ER 115 , p. 120 (HL).
70 Dawson v. Inland Revenue Commissioner,

(1989) 2 All ER 289 , p. 292 :
(1990) 1 AC 1 (HL).
71 Bhagwandas v. Parasnath,
AIR 1970 SC 971 [
LNIND 1968 SC 297 ], p. 976 :
1969 (2) SCR 297 [
LNIND 1968 SC 297 ].
72 Stock v. Frank Jones (Tipton) Ltd.,

(1978) 1 All ER 948 , p. 954 :
(1978) 1 WLR 231 (HL) (Lord Simon).
73 Regina v. Secretary of State for Foreign and Commonwealth Affairs,

(1991) 3 WLR 146 :
(1991) 2 AC 439 :
(1991) 3 All ER 353 (HL).
74 See Chapter 1, title 3, ‘Statute must be read as a whole in its context’ p. 34.
Mr.Srikanth -
Page 51 of 58
75 Raj Krushna v. Binod Kanungo,

AIR 1954 SC 202 [
LNIND 1954 SC 17 ], p. 203 :
1954 SCR 913 [
LNIND 1954 SC 17 ]; Sultana Begum v. Premchand Jain,
AIR 1997 SC 1006 [
LNIND 1996 SC 2089 ], pp. 1009, 1010 :
1997 (1) SCC 373 [
LNIND 1996 SC 2089 ]; Kailash Chandra v. Mukundi Lal,
AIR 2002 SC 829 [
LNIND 2002 SC 72 ], p. 834 :
(2002) 2 SCC 678 [
LNIND 2002 SC 72 ]; CIT v. Hindustan Bulk Carriers,
(2003) 3 SCC 57 , p. 74.
76 Ibid. See further University of Allahabad v. Amritchand Tripathi,

AIR 1987 SC 57 [
LNIND 1986 SC 291 ], p. 60 :
1986 (4) SCC 176 [
LNIND 1986 SC 291 ]; Krishna Kumar v. State of Rajasthan,
AIR 1992 SC 1789 [
LNIND 1991 SC 367 ], pp. 1793, 1794 :
1991 (4) SCC 258 [
LNIND 1991 SC 367 ]; Sultana Begum v. remchand Jain, supra; Commissioner
of Income-tax v. Hindustan Bulk Carriers, supra.
77 Dormer v. Newcastle-on-Tyne Corpn.,

(1940) 2 All ER 521 , p. 527 (CA) (GOddard, L.J.). See further Tahsildar
Singh v. State of U.P.,
AIR 1959 SC 1012 [
LNIND 1959 SC 96 ], p. 1022 : 1959 Supp (2) SCR 875; K.M. Nanawati v. State of Bombay,
AIR 1961 SC 112 [
LNIND 1960 SC 193 ], p. 137 :
(1961) 1 SCR 497 [
LNIND 1960 SC 193 ]; Krishna Kumar v. State of Rajasthan, supra; Central
Bank of India v. Ravindra,
AIR 2001 SC 3095 , p. 3114 :
(2002) 1 SCC 367 (7th Editionp. 113 of this book is referred); Commissioner of Income-tax v.
Hindustan Bulk Carriers, supra; Godawat Pan Masala Products India P. Ltd. v. Union of India,
(2004) 7 SCC 68 [
LNIND 2004 SC 737 ], p. 88 :
AIR 2004 SC 4057 [
LNIND 2004 SC 737 ][Power of Central Government to make rules under s. 22(1-A) ‘f’ of the
Prevention of Food Adulteration Act, 1954 to prohibit manufacture and sale of such articles, which are injurious to
health, shows that the State Government has no such power and the power conferred by s. 7(iv) on the Food (Health) Authority to
prohibit sale ‘for the time being’ is to meet an exigency for a short term.]
78 Mohammad Sher Khan v. Raja Seth Swami Dayal, Sanjeevayya D. v. Election

Tribunal, Andhra Pradesh,
AIR 1967 SC 1211 [
LNIND 1967 SC 20 ], p. 1213 (para 4) :
1967 (2) SCR 489 [
LNIND 1967 SC 20 ]; Krishna Kumar v. State of Rajasthan, supra; Sultana
Begum v. Premchand Jain, supra; Commissioner of Income-tax v. Hindustan Bulk Carriers, supra.
79 Madanlal Fakirchand Dudhediya v. Shree Changdeo Sugar Mills Ltd.,

AIR 1962 SC 1543 [
LNIND 1962 SC 125 ], p. 1551 :
Mr.Srikanth -
Page 52 of 58
(1962) 2 SCR 36 [
LNIND 1961 SC 183 ]; see further Tahsildar Singh v. State of U.P., supra, p.
1022. See Chapter 1, title 3 ‘Statute must be read as a whole’ in its context, text and notes 75 to 77, pp. 41, 42; and Chapter 3, title
9(h) ‘The Broad General Rule of Construction’, text and notes 10 to 16, pp. 205-06.
80 Venkataramana Devaru v. State of Mysore,

AIR 1958 SC 255 [
LNIND 1957 SC 119 ], p. 268 :
1958 SCR 895 [
LNIND 1957 SC 119 ]; Krishna Kumar v. State of Rajasthan,
AIR 1992 SC 1789 [
LNIND 1991 SC 367 ], p. 1794 :
1991 (3) SCR 500 [
LNIND 1991 SC 367 ] :
(1991) 4 SCC 258 [
LNIND 1991 SC 367 ]; Sultana Begum v. Premchand Jain,
AIR 1997 SC 1006 [
LNIND 1996 SC 2089 ], pp. 1009, 1010 :
1997 (1) SCC 373 [
LNIND 1996 SC 2089 ]. See further, British Airways Plc v. Union of India,
AIR 2002 SC 391 [
LNIND 2001 SC 2534 ], p. 393 :
(2002) 2 SCC 95 [
LNIND 2001 SC 2534 ].
81 Calcutta Gas Co. (Proprietary) Ltd. v. State

W.B., of
AIR 1962 SC 1044 [
LNIND 1962 SC 477 ], p. 1051 : 1962 Supp (3) SCR 1; Sultana Begum v. Premchand Jain,
supra; CIT v. Hindustan Bulk Carriers,
(2003) 3 SCC 57 , p. 74 :
(2003) 159 ITR 449 .
82 J.K. Cotton Spinning & Weaving Mills v. U.P., State of

AIR 1961 SC 1170 [
LNIND 1960 SC 337 ], p. 1174 :
1962 (1) SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 3 SCR 185 ; Sultana Begum v. Premchand Jain, supra; Anwar Hasan
Khan v. Mohammad Shaji,
AIR 2001 SC 2984 [
LNIND 2001 SC 2393 ], p. 2986 :
(2001) 8 SCC 540 [
LNIND 2001 SC 2393 ]; Commissioner of Income-tax v. Hindustan Bulk Carriers, supra.
83 J.K.Cotton Spinning & Weaving Mills v. U.P., State of

AIR 1961 SC 1170 [
LNIND 1960 SC 337 ], p. 1174 :
1962 (1) SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 3 SCR 185 ; Chief Inspector of Mines v. Karam Chand Thaper,
AIR 1961 SC 838 [
LNIND 1961 SC 57 ], p. 843 (para 13) :
1962 (1) SCR 9 [
LNIND 1961 SC 57 ]; Sultana Begum v. Premchand Jain, supra.
84 South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivandrum,

AIR 1964 SC 207 [
LNIND 1963 SC 182 ], p. 215 :
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1964 (4) SCR 280 [

LNIND 1963 SC 182 ]; Weverly Jute Mills Co. Ltd. v. Raymon & Co. (India) (Pvt.) Ltd.,
AIR 1963 SC 90 [
LNIND 1962 SC 587 ], p. 95 :
(1963) 3 SCR 209 [
LNIND 1964 SC 416 ]; J.K. Cotton Spinning & Weaving Mills v. State of U.P.,
AIR 1961 SC 1170 [
LNIND 1960 SC 337 ], p. 1194 :
1962 (1) SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 3 SCR 185 ; Paradip Port Trust v. Their Workmen,
AIR 1977 SC 36 [
LNIND 1976 SC 320 ], p. 44 : 1977 SCC (L&S) 253; U.P. State Electricity Board v.
Harishanker,
AIR 1979 SC 65 : (1978) 4 SCC 16 : 1978 SCC (Lab) 481 ; Life Insurance Corporation of
India v. D.J. Bahadur,
AIR 1980 SC 2181 [
LNIND 1980 SC 442 ], pp. 2202, 2208; State of U.P. v. Renusagar Power Co.,
AIR 1988 SC 1737 [
LNIND 1988 SC 619 ], p. 1751 :
1988 (4) SCC 59 [
LNIND 1988 SC 619 ]; State of Rajasthan v. Gopikishan, supra, p. 1756. See further
Life Insurance Corporation of India v. S.V. Oak,
AIR 1965 SC 975 [
LNIND 1964 SC 243 ], p. 980 :
1965 (1) SCR 403 [
LNIND 1964 SC 243 ] (Compulsive provision will control a discretionary provision).
85 Collector of Central Excise Jaipur v. Raghuvar (India) Ltd.,

JT 2000 (7) SC 99 [
LNIND 2000 SC 886 ], p. 111 :
(2000) 5 SCC 299 [
LNIND 2000 SC 886 ] :
AIR 2000 SC 2027 [
LNIND 2000 SC 886 ].
86 General things do not derogate from special things. Osborn's Law Dictionary.
87 Special things derogate from general things. Osborn's Law Dictionary.
88 Venkateshwar Rao v. Govt. of Andhra Pradesh,

AIR 1966 SC 828 [
LNIND 1965 SC 254 ]:
1966 (2) SCR 172 [
LNIND 1965 SC 254 ]; CIT, Patiala v. Shahzada Nand & Sons,
AIR 1966 SC 1342 [
LNIND 1966 SC 25 ], p. 1347 :
(1966) 3 SCR 379 [
LNIND 1966 SC 25 ]; State of Gujarat v. Patel Ramajibhai Danabhai,
AIR 1979 SC 1098 [
LNIND 1979 SC 258 ], p. 1103 :
1979 (3) SCC 347 [
LNIND 1979 SC 258 ]; State of Bihar v. Yogendra Singh,
AIR 1982 SC 882 [
LNIND 1982 SC 55 ], p. 886 :
(1982) 1 SCC 664 [
LNIND 1982 SC 55 ]; Maharashtra State Board of Secondary and Higher Secondary Education
v. Paritosh Bhupesh Kumar Sheth,
(1984) 4 SCC 27 [
LNIND 1984 SC 173 ], p. 47 :
Mr.Srikanth -
Page 54 of 58
AIR 1984 SC 1543 [

LNIND 1984 SC 173 ]; State of Rajasthan v. Gopikishan, supra, p. 1756.
89 Collector of Central Excise, Jaipur v. Raghuvar India Ltd., supra, (

section 11A of the Central Excise Act and Rule 57-I of the Rules).
90 See text and notes 70 to 79, pp. 362-364, Chapter 7, title 5(b) and 5(c), pp. 644 to 652. For example,
see Jogendra Lal Saha v. State of Bihar,
AIR 1991 SC 1148 , p. 1149 : 1991 Supp (2) SCC 654; (Sections 82 and 83 of the Forest Act,
1927 are special provisions which prevail over the provisions in the
Sale of Goods Act ) Jasbir Singh v. Vipin Kumar Jaggi,
AIR 2001 SC 2734 [
LNIND 2001 SC 1717 ], p. 2743 :
(2001) 8 SCC 289 [
LNIND 2001 SC 1717 ] (
Section 64 of NDPS Act will prevail over
section 307 Crpc 1974 as it is a special provision in a Special Act which is also later) P.V. Hemlatha v. Kattam
Kandi Puthiya Maliackal Saheeda,
AIR 2002 SC 2445 [
LNIND 2002 SC 403 ], p. 2457 :
(2002) 5 SCC 548 [
LNIND 2002 SC 403 ] :
(2002) 1 KLJ 665 (conflict between section 23 of the Travancore Cochin High Court Act and
section 98(3) Civil Procedure Code resolved by holding the latter to be special law. Reference is made to pp. 113,
114 of 7th Edition of this book). Talchar Municipality v. Talcher Regulated Market Committee,
(2004) 6 SCC 178 [
LNIND 2004 SC 717 ] :
AIR 2004 SC 3954 [
LNIND 2004 SC 717 ](Section 4(4) of the Orissa Agricultural Produce Markets Act, 1956 was
held to prevail over section 295 of the Orissa Municipalities Act, 1950 as the former was a special provision and also started with a
non-obstante clause) Iridium India Telecom Ltd. v. Motorola Inc,
(2005) 2 SCC 145 [
LNIND 2005 SC 15 ], pp. 163, 164 (Letters Patent and rules made under it constitute special law
for the High Court concerned and are not displaced by the general provisions of the
Civil Procedure Code .)
1 A.N. Sehgal v. Raje Ram Sheoram,

AIR 1991 SC 1406 [
LNIND 1991 SC 196 ], p. 1413 :
1991 (2) JT 123 : 1992 Supp (1) SCC 304; State of Rajasthan v. Gopikishan,
AIR 1992 SC 1754 , p. 1756 : 1993 Supp (1) SCC 522; Jagdish Singh v. Lt. Governor, Delhi,
AIR 1997 SC 2239 [
LNIND 1997 SC 433 ], p. 2242 :
1997 (4) SCC 435 [
LNIND 1997 SC 433 ].
2 J.K. Cotton Spinning & Weaving Mills Ltd. v. State of U. P.,

AIR 1961 SC 1170 [
LNIND 1960 SC 337 ]:
1962 (1) SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 3 SCR 185 .
3 Bihar State Co-operative Marketing Union Ltd. v. Uma Shankar Saran,

AIR 1993 SC 1222 [
LNIND 1992 SC 521 ], p. 1224 :
1992 (4) SCC 196 [
LNIND 1992 SC 521 ].
Mr.Srikanth -
Page 55 of 58
4 Ibid.
5 Venkataramana Devaru v. State of Mysore,

AIR 1958 SC 255 [
LNIND 1957 SC 119 ]:
1958 SCR 895 [
LNIND 1957 SC 119 ].
6 M.S.M. Sharma v. Krishna Sinha,

AIR 1959 SC 395 [
LNIND 1958 SC 163 ], p. 410 : 1959 Supp (1) SCR 806.
7
AIR 1965 SC 745 , p. 761 (para 36) :
1965 (1) SCR 413 .
8 K.M. Nanawati v. State of Bombay,

AIR 1961 SC 112 [
LNIND 1960 SC 193 ], pp. 122, 123, 124 :
1961 (1) SCR 497 [
LNIND 1960 SC 193 ].
9 Ibid., p. 121
10 South India Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum,

AIR 1964 SC 207 [
LNIND 1963 SC 182 ], p. 215 :
1964 (4) SCR 280 [
LNIND 1963 SC 182 ].
11 C.P. & Berar Motor Spirit & Lubricants Taxation Act, In re,
AIR 1939 FC 1 , p. 5; G.G. in Council v. Province of Madras,
AIR 1945 PC 98 [
LNIND 1945 PC 3 ], pp. 100, 101; Calcutta Gas (Proprietary) Ltd. v. State of W.B.,
AIR 1962 SC 1044 [
LNIND 1962 SC 477 ], p. 1050 : 1962 Supp (3) SCR 1; Waverly Jute Mills Co. Ltd. v. Raymon
& Co. (India) (Pvt.) Ltd.,
AIR 1963 SC 90 [
LNIND 1962 SC 587 ], p. 95 :
1963 (3) SCR 209 [
LNIND 1964 SC 416 ].
12 State of Uttar Pradesh v. Raj Narain,

AIR 1975 SC 865 [
LNIND 1975 SC 32 ]:
(1975) 4 SCC 478 ; S.P. Gupta v. President of India,
AIR 1982 SC 149 : 1981 Supp SCC 87. See further Doypack Systems Pvt. Ltd.
v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], pp. 797, 798 :
(1988) 2 SCC 299 [
Mr.Srikanth -
Page 56 of 58
LNIND 1988 SC 589 ]; R.K. Jain v. Union of India,

AIR 1993 SC 1769 [
LNIND 1993 SC 466 ], pp. 1774, 1788, 1795-97 :
1993 (4) SCC 119 [
LNIND 1993 SC 466 ].
13 Ibid. The law is the same in America and England; see Nixon v. U.S.A., (1975) 418
U.S. 683 ; Conway v. Rimmer,
(1968) 1 All ER 874 (HL); Burmah Oil Co. Ltd. v. Bank of England,
(1979) 3 All ER 700 :
1980 AC 1090 :
(1979) 3 WLR 722 (HL) (This case makes a distinction between a ‘class’ objection and a
‘contents’ objection; see pp. 732, 733 All ER). On the question as to when will the court direct production of the document for its
inspection to decide the objection of privilege see Air Canada v. Secretary of State for Trade,
(1983) 1 All ER 910 :
(1983) 2 AC 394 :
(1983) 2 WLR 494 (HL).
14 Peoples Union for Civil Liberties v. Union of

India,
AIR 2004 SC 1442 [
LNIND 2004 SC 1473 ]:
(2004) 2 SCC 476 (Govt. order of non-disclosure of the report of the Atomic Energy Regulatory
Board. Privilege held justified).
15 Sirsilk Ltd. v. Govt. of Andhra Pradesh,

AIR 1964 SC 160 [
LNIND 1963 SC 70 ], pp. 162, 163 :
1964 (2) SCR 448 [
LNIND 1963 SC 70 ].
N.B.— For further illustration see Life Insurance Corporation of India v. S. V. Oak,
AIR 1965 SC 975 [
LNIND 1964 SC 243 ], p. 980 :
1965 (1) SCR 403 [
LNIND 1964 SC 243 ] (
Sections 9 and
28 of the
Life Insurance Corporation Act 1958) Sadanandan Bhadran v. Madhavan Sunil Kumar,
AIR 1998 SC 3043 [
LNIND 1998 SC 809 ], p. 3047 :
1998 (6) SCC 514 [
LNIND 1998 SC 809 ] (
sections 138 and
142 of the
Negotiable Instruments Act, 1881 ).
16 Krishna Kumar v. State of Rajasthan,

AIR 1992 SC 1789 [
LNIND 1991 SC 367 ]:
1991 (4) SCC 258 [
LNIND 1991 SC 367 ].
17 Contonment Board, Mhow v. M.P. State Road Transport Corporation,

AIR 1997 SC 2013 [
LNIND 1997 SC 676 ], p. 2019 :
1997 (4) JT 561 :
Mr.Srikanth -
Page 57 of 58
(1997) 9 SCC 450 [

LNIND 1997 SC 676 ].
18 M. V. Javali v. Mahajan Borewell & Co.,

JT 1997 (8) SC 386 [
LNIND 1997 SC 1273 ]:
(1997) 8 SCC 72 [
LNIND 1997 SC 1273 ] :
AIR 1997 SC 3964 [
LNIND 1997 SC 1273 ].
19 M.V. Javali v. Mahajan Borewell & Co.,

JT 1997 (8) SC 386 [
LNIND 1997 SC 1273 ], pp. 391, 392 :
1997 (8) SCC 72 [
LNIND 1997 SC 1273 ].
20 See text and notes 1 and 2, p. 143 supra.
21 J.K. Cotton Spinning & Weaving Mills Ltd. v. State of U.P.,

AIR 1961 SC 1170 [
LNIND 1960 SC 337 ]:
1962 (1) SCJ 417 [
LNIND 1960 SC 337 ] :
(1961) 3 SCR 185 .
22 Wood v. Riley,
(1867) LR 3 CP 26, p. 27; K.M. Nanavati v. State of Bombay,
AIR 1961 SC 112 [
LNIND 1960 SC 193 ], p. 137 :
1961 (1) SCR 497 [
LNIND 1960 SC 193 ].
23 Eastbourne Corpn. v. Fortes Ltd.,

(1959) 2 All ER 102 , p. 107 (CA).
24 King v. Dominion Engineering Co. Ltd.,

AIR 1947 PC 94 , p. 95.
25 Castrige v. Page,
(1853) 138 ER 1278 , p. 1279.
26 Institute of Patent Agents v. Lockwood,

(1894) AC 347 , p. 360 : 63 LJ PC 75 (HL); quoted in another connection in Chief Inspector of
Mines v. Karam Chand Thapar,
AIR 1961 SC 838 [
LNIND 1961 SC 57 ], p. 844 :
(1962) 1 SCR 9 [
LNIND 1961 SC 57 ]. See further Laxmi Devi v. Mukund Kanwar,
AIR 1965 SC 834 [
LNIND 1964 SC 366 ], p. 838 (Para 16) :
1965 (1) SCR 726 [
Mr.Srikanth -
Page 58 of 58
LNIND 1964 SC 366 ], where

section 2(d) of the Transfer of Property Act was held to prevail over section 5 of the same Act.
27 Project Blue Sky Inc. v. Australian Broadcasting Authority, (1998) 72 ALJR 841, p. 855 (Aust.).
28 Shannon Realities Ltd. v. St. Michel (Ville De),

(1924) AC 185 , pp. 192, 193 (PC); Central Bank of India v. Ravindra,
AIR 2001 SC 3095 , p. 3114 :
(2002) 1 SCC 367 (Reference is made to 7th Edition p. 119 of this book).
29 Collector of Customs v. Digvijaya Singhji Spinning & Weaving MillsLtd.,

AIR 1961 SC 1549 [
LNIND 1961 SC 172 ], pp. 1551, 1553 :
1962 (1) SCR 896 [
LNIND 1961 SC 172 ].
30 State of Gujarat v. Chaturbhuj Maganlal,

AIR 1976 SC 1697 [
LNIND 1976 SC 164 ], p. 1700 :
1976 SCC (Cri) 359 [
LNIND 1976 SC 164 ] :
(1976) 3 SCC 54 [
LNIND 1976 SC 164 ].
31 State of Punjab v. Ajaib Singh,

AIR 1953 SC 10 [
LNIND 1952 SC 68 ], p. 14 :
1953 SCR 254 [
LNIND 1952 SC 68 ]; Chandra Mohan v. State of U.P.,
AIR 1966 SC 1987 [
LNIND 1966 SC 148 ], p. 1993 :
1967 (1) SCR 77 [
LNIND 1966 SC 148 ].
32 Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu,

AIR 1979 SC 193 , p. 205 :
(1979) 2 SCC 34 .
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 3
Internal Aids to Construction
1. LONG TITLE
It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid to its
construction.1 The long title which often precedes the preamble must be distinguished with the
short title; the former taken along with the preamble or even in its absence is a good guide
regarding the object, scope or purpose of the Act,2 whereas the latter being only an abbreviation
for purposes of reference is not a useful aid to construction.3
Referring to the Trade Disputes Act, 1906 (6 Edw. 7, c. 47), Lord Moulton said: “The title of an
Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of
interpreting the Act as a whole, and ascertaining its scope. This is not the case with the short title,
which in this case is ‘the Trade Disputes Act, 1906’. This is a title given to the Act solely for the
purpose of facility of reference. If I may use the phrase, it is a statutory nickname to obviate the
necessity of always referring to the Act under its full and descriptive title. The full title of the Act
is; ‘An Act to provide for the regulation of Trade Unions and Trade Disputes’. The title as it
stands is not only intelligible, but describes admirably the purposes of the Act”.4
While dealing with the Supreme Court Advocates (Practice in High Courts) Act, 1951, which
bears a full title thus ‘An Act to authorise Advocates of the Supreme Court to practise as of right
in any High Court’, S.R. Das, J., observed: “One cannot but be impressed at once with the
wording of the full title of the Act. Although there are observations in earlier English cases that
the title is not a part of the statute and is, therefore, to be excluded from consideration in
construing the statutes, it is now settled law that the title of a statute is an important part of the
Act and may be referred to for the purpose of ascertaining its general scope and of throwing light
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on its construction, although it cannot override the clear meaning of the enactment”.5
The title of the Madras General Sales Tax Act, 1939, was utilised to indicate that the object of the
Act is to impose taxes on sales that take place within the province.6
The title and the preamble were used as indicative of underlying purpose and policy of the West
Bengal Criminal Law Amendment (Special Courts) Act, 1949 and for upholding the classification
of offences triable by special courts under special procedure.7
Wide discretion conferred on the Government under a statute and challenged as arbitrary has been
upheld on the ground that the discretion so conferred can be exercised only in furtherance of the
object and policy of the Act as given out by the long title and preamble and is thus not unfettered
or unguided.8
The title although part of the Act is in itself not an enacting provision and though useful in case of
ambiguity of the enacting provisions, is ineffective to control their clear meaning.9 As stated by
Donovan, J.: “The long title is a legitimate aid to the construction—. When Parliament proclaims
what the purpose of an Act is, it would be wrong to leave that out of account when construing the
Act—in particular, when construing some doubtful or ambiguous expression. In many cases the
long title may supply the key to the meaning. The principle, as I understand it, is that where
something is doubtful or ambiguous the long title may be looked to resolve the doubt or
ambiguity, but in the absence of doubt or ambiguity, the passage under construction must be taken
to mean what it says, so that if its meaning be clear, that meaning is not to be narrowed or
restricted by reference to the long title”.10 To the same effect are the observations of Ayyanger, J.:
“The long title of the Act—on which learned counsel placed considerable reliance as a guide for
the determination of the scope of the Act and the policy underlying the legislation, no doubt,
indicates the main purposes of the enactment but cannot, obviously, control the express operative
provisions of the Act”.11
2. PREAMBLE12
The preamble of a statute like the long title is a part of the Act and is an admissible aid to
construction. Although not an enacting part, the preamble is expected to express the scope, object
and purpose of the Act more comprehensively than the long title. It may recite the ground and
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cause of making the statute, the evils sought to be remedied13 or the doubts which may be
intended to be settled. In the words of Sir John Nicholl: “It is to the preamble more specially that
we are to look for the reason or spirit of every statute, rehearsing this, as it ordinarily does, the
evils sought to be remedied, or the doubts purported to be removed by the statute, and so
evidencing, in the best and most satisfactory manner, the object or intention of the Legislature in
making or passing the statute itself”.14 As enunciated by Tindal C.J., in delivering the opinion of
the judges who advised the House of Lords in Sussex Peerage case15: “If any doubt arise from the
terms employed by the Legislature, it has always been held a safe means of collecting the
intention to call in aid the ground and cause of making the statute, and to have recourse to the
preamble, which according to Chief Justice Dyer16 is a ‘key to open the minds of the makers of
the Act, and the mischiefs which they intended to redress’.”17 The subject has been explained
lucidly in a more recent decision of the House of Lords.18 The decision establishes the following
propositions: the preamble being a part of the statute can be read along with other portions of the
Act to find out the meaning of words in the enacting provisions as also to decide whether they are
clear or ambiguous;19 the preamble in itself is not an enacting provision and is not of the same
weight as an aid to construction of a section of the Act as are other relevant enacting words to be
found elsewhere in the Act;20 the utility of preamble diminishes on a conclusion as to clarity of
enacting provisions.21 The Supreme Court recently approvingly quoted these propositions.22
Referring to the question as to how far the enacting provisions are controlled or restricted by the
preamble, Lord Simonds (Lord Tucker agreeing) said: “But where it is in the preamble that the
reason for restriction is to be found, the difficulty is far greater. For, as has so often been said,
Parliament may well intend the remedy to extend beyond the immediate mischief. The single fact,
therefore, that enacting words are more general than the preamble would suggest is not enough.
Something more is needed—. To say then that you may not call in aid the preamble in order to
create an ambiguity in effect means very little—.23 I would suggest that it (the rule) is better stated
by saying that the context of the preamble is not to influence the meaning otherwise ascribable to
the enacting part unless there is a compelling reason for it. And I do not propose to define that
expression except negatively by saying—that it is not to be found merely in the fact that the
enacting words go further than the preamble has indicated. Still less can the preamble affect the
meaning of enacting words when its own meaning is in doubt.”24 Lord Normand on the same
matter observed: “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 obscure or
indefinite enacting words that the preamble may legitimately prevail”.25 Lord Somervell stated the
principle thus: “Preambles differ in their scope and, consequently, in the weight, if any, which
they may have on one side or the other of a dispute. There can be no rule. If, in an Act the
Preamble is a general or brief statement of the main purpose, it may well be of little, if any, value.
The Act may, as has been said, go on beyond, or, in some respects fall short of, the purpose so
briefly stated. Most Acts contain exceptions to their main purpose, on the meaning of which such
a preamble would presumably, throw no light. On the other hand, some general and most local
Acts have their limits set out in some detail. I will not hazard an example but there may well be
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cases in which a section, read with the preamble, may have a meaning different from that which it
would have if there were no preamble. Court will, of course, bear in mind that a preamble is not
an enacting provision, but I think it must have such weight as it can support in all contests as to
construction”.26 Lord Morton on the same point laid down that if the preamble is ambiguous it
cannot in any way control the enacting part. He proceeded to observe: “In fact, if the preamble
were clear one way and the enacting part were equally clear the other way, there can be no doubt
that the latter must prevail”.27
The principle has also been enunciated by the Supreme Court, where Mudholkar, J., speaking for
the court observed: “It is one of the cardinal principles of construction that where the language of
an Act is clear, the preamble must be disregarded though, where the object 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, nay, we will be required to do so, if we find that the
language used by Parliament is ambiguous or is too general though in point of fact Parliament
intended that it should have a limited application.”28 These observations, it is submitted, must be
read subject to the rule that the Act including the preamble must be read as a whole to decide
whether any part of the enacting provision is clear or ambiguous.29
“If, however, having read the Act as a whole, including the preamble, the enacting words clearly
negative the construction which it is sought to support by the preamble, that is an end of it.”30
The Rajasthan (Protection of Tenants) Ordinance, 1949 contained a preamble which ran as
follows: ‘Whereas with a view to putting a check on the growing tendency of landlords to eject or
dispossess tenants from their holdings and in the wider national interest of increasing the
production of foodgrains, it is expedient to make provisions for the protection of tenants in
Rajasthan from ejectment or dispossession from their holdings.’ The Ordinance by section 3 was
to remain in force for two years unless the period was further extended by the Rajpramukh.
Section 4 of the Ordinance provided that during the continuance of the Ordinance no tenant could
be ejected or dispossessed and by section 15 power was conferred upon the Government to
exempt any person or class of persons from the operation of the Ordinance. It was contended
before the Supreme Court that the power conferred upon the Rajpramukh to extend the life of the
Act amounted to delegation of legislative function and was bad and further the power of granting
exemption conferred by section 15 was unfettered and uncanalised and therefore repugnant to
Art. 14 of the Constitution . In rejecting the first contention the Supreme Court
pointed out that the preamble of the Ordinance clearly recited the state of facts necessitating the
enactment of the law; and the power to extend the life of the Act conferred on the Rajpramukh
was dependent on his satisfaction as to those state of facts continuing to exist on expiry of the
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original period of the Act. It was, therefore, a case of conditional legislation and not a case of
delegated legislation.31 Dealing with the second contention regarding section 15, it observed: “It
is true that section does not itself indicate the grounds on which exemption can be granted, but the
preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature; and as
that governs section 15 of the Ordinance, the decision of the Government thereunder cannot be
said to be unguided”.32 Thus discretionary power conferred in wide terms and challenged as
unfettered and unguided was upheld by recourse to the preamble and by holding that the
discretion so conferred was restricted in that it could be used only in furtherance of the object and
policy of the Act as disclosed in the preamble.33
Similarly,
section 23(1) of the Urban Land (Ceiling and Regulation) Act, 1976 which permits
the allotment of any land vesting in the Government to any person for any purpose relating to, or
in connection with any industry or for providing residential accommodation of such type as may
be approved by the State Government to the employees of any industry was given a restrictive
construction having regard to the Act's preamble and section 23(4). The preamble shows that the
Act was passed with the object of preventing concentration of urban land in the hands of a few
persons and with a view to bringing about an equitable distribution of land in urban
agglomerations to subserve the common good. Section 23(4) provides that subject to the
provisions of section 23(1) all vacant land shall be disposed of by the State Government to
subserve the common good. Although section 23(4) was ‘subject to’ section 23(1), yet it was held
that disposal of land under section 23(1) can only be for the common good and not otherwise. A
contrary construction would have made section 23(1) unconstitutional as was held by the
minority. The majority, however, gave it a restricted interpretation observing: “The Preamble to
the Act ought to resolve interpretational doubts arising out of the defective drafting of section
23”.34
The Bihar Annual

Finance Act , 1950, amended the definition of ‘dealer’ in the Bihar Sales Tax Act,
1947, It was contended before the Supreme Court35 that having regard to the preamble change in
definition of ‘dealer’ was applicable only for the financial year beginning from April 1, 1950 and
was not applicable for subsequent years. The preamble of the
Finance Act to which recourse was taken for this contention ran as follows:
‘Whereas it is expedient to amend the Bihar Sales Tax Act, 1947, and to lay down rates of sales
tax payable under the Bihar Sales Tax Act, 1947, for the financial year beginning on the 1st day
of April, 1950 and to make further provisions in connection with the finance of the State of
Bihar’. In rejecting the contention so put forward Kapur, J., observed: “The preamble cannot limit
or change the meaning of the plain words of section 2(c) of the Act which apply to the appellant
and therefore the amended section is applicable to the present case. It is erroneous approach to the
question to say that because of the words ‘for the financial year beginning on the first day of
April, 1950’ in the particular context in the preamble, the definition of the word ‘dealer’ was
amended only for one year. Nothing has been shown indicating that section 2(i) of Bihar
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Finance Act intended to effect a temporary amendment in the previous definition of

the word ‘dealer’ in clause (c) of section 2 of the Act.”36
The
Coal Bearing Areas (Acquisition and Development) Act, 1957 in section 4(1)
provides: ‘whenever it appears to the Central Government that coal is likely to be obtained from
land in any locality, it may, by notification in the Official Gazette, give notice of its intention to
prospect for coal therein’. On issue of such a notification in respect of any land any prospecting
license or mining lease granted to any person ceases to have effect and provision is made for
acquisition of land so notified as also for payment of compensation etc. The Act contains a
preamble which runs as follows: ‘An Act to establish in the economic interest of India greater
public control over the coal mining industry and its development by providing for the acquisition
by the State of unworked land containing or likely to contain coal deposits or of right in or over
such land, for the extinguishment or modification of such rights accruing by virtue of any
agreement, lease, license or otherwise, and for matters connected therewith’. The argument before
the Supreme Court was that the Act applied only to virgin lands and not to those lands which are
being worked or were worked in the past. Support for this contention was taken from the words
‘unworked land’ in the preamble. Rejecting the contention on the ground that the language of the
enacting provisions was clear and therefore not controlled by the preamble, the Supreme Court
pointed out: “On the plain language of sub-section (1) of section 4, the Central Government has
been empowered to issue a notification with reference to its intention of prospecting any land in a
locality and not only such land as is virgin.”37 This case was followed in holding that reference to
‘mismanagement’ in the preamble of the Textile Undertakings (Taking over of Management) Act,
1983 could not restrict the operation of the Act to only those mills of the companies mentioned in
the Schedule whose financial condition was deplorable only on account of mismanagement but
not otherwise.38
By section 5 of the Displaced Persons (Claims) Supplementary Act, 1954, power is conferred on
the Chief Settlement Commissioner to revise any verified claim. The expression ‘verified claim’
is defined in section 2(f), to mean any claim registered under the Displaced Persons (Claim) Act,
1950 in respect of which a final order has been passed under that Act. The Supplementary Act
contains a preamble which recites that it was enacted to provide for the disposal of certain
proceedings pending under the 1950 Act and for matters connected therewith. It was argued on
the basis of the preamble that the power of revision under the Supplementary Act was limited to
pending proceedings and a verified claim which had become final after revision by the Chief
Claims Commissioner under the 1950 Act could not be reopened and revised by the Chief
Settlement Commissioner under the Supplementary Act. This contention was negatived having
regard to the clear words of section 5 read with the definition of verified claim in section 2(f) and
it was observed: “A preamble is a key to open the mind of the Legislature but it cannot be used to
control or qualify precise and unambiguous language of the enactment.”39
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A preamble retrospectively inserted into an earlier Act is not of much assistance for gathering the
intention of the original Act. The point was stressed by Gwyer, C.J. in the following words: “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 because their successors at the present day
think that they might or ought to have had it.”40
Similarly, it seems the repeal of a preamble simpliciter will not affect the construction of the
Statute.41
3. PREAMBLE OF THE
CONSTITUTION 42
The drafting committee of the Constituent Assembly formulated the Preamble in the light of the
Objectives Resolution but restricted it “to defining the essential features of the new state and its
basic socio-political objective”.43 The draft of the Preamble was considered by the Assembly last
after considering other parts of the Draft
Constitution —“to see that it was in conformity with the
Constitution ”44 and a motion was adopted by the Assembly that “the preamble
stands part of the
Constitution ”.45 The Preamble of the
Constitution like the Preamble of any statute furnishes the key to open the mind of
the makers of the
Constitution more so because the Constituent Assembly took great pains in
formulating it so that it may reflect the essential features and basic objectives of the
Constitution . The Preamble is a part of the
Constitution . The
Constitution , including the Preamble, must be read as a whole and in case of doubt
interpreted consistent with its basic structure to promote the great objectives stated in the
Preamble.46 But the preamble can neither be regarded as the source of any substantive power nor
as a source of any prohibition or limitation.47 The Preamble of a
Constitution Amendment Act can be used to understand the object of the
amendment. 48
The majority judgments in Keshavananda and Minerva Mills strongly relied upon the Preamble in
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reaching the conclusion that the power of amendment conferred by Article 368 was limited and
did not enable Parliament to alter the basic structure or framework of the
Constitution .49
By
section 2 of the Constitution (42nd Amendment) Act, 1976, two amendments were
made in the Preamble. First for the words ‘Sovereign Democratic Republic’ the words ‘Sovereign
Socialist Secular Democratic Republic’ were substituted and, secondly, for the words ‘Unity of
India’, the words ‘Unity and Integrity of the Nation’ were substituted. These amendments were
held to be valid in Minerva Mills.50 The addition of the word ‘Socialist’ enabled the Courts to lean
more in favour of nationalisation51 and economic equality.52 It was also used for rejection of a
classification based on notions of feudalistic society e.g. Kinship.53
4. HEADINGS
The view is now settled that the Headings or Titles prefixed to sections or group of sections can
be referred to in construing an Act of the Legislature.54 But conflicting opinions have been
expressed on the question as to what weight should be attached to the headings. “A Heading”,
according to one view, “is to be regarded as giving the key to the interpretation of the clauses
ranged under it, unless the wording is inconsistent with such interpretation;”55 and so the headings
might be treated “as preambles to the provisions following them”.56 But according to the other
view resort to the heading can only be taken when the enacting words are ambiguous. So Lord
Goddard, C.J., expressed himself as follows: “While, however, the court is entitled to look at the
headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the
law is clear that those headings cannot be used to give a different effect to clear words in the
section where there cannot be any doubt as to the ordinary meaning of the words”.57 Similarly, it
was said by Patanjali Shastri, J.: “Nor can the title of a Chapter be legitimately used to restrict the
plain terms of an enactment.”58
Recently the Supreme Court expressed itself as follows: “It is well settled that the headings
prefixed to sections or entries (of a Tariff Schedule) 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.”59
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After referring to the conflicting of opinions60 relating to the use of headings or titles prefixed to
sections or group of sections, Lahoti J. more recently expressed himself as follows: “It is
permissible to assign the heading or title of a section a limited role to play in the construction of
statutes. They may be taken as very broad and general indicators of the nature of the subject-
matter dealt with thereunder. The heading or title may also be taken as a condensed name
assigned to indicate collectively the characteristics of the subject matter dealt with by the
enactment underneath; though the name would always be brief having its own limitations. In case
of conflict between the plain language of the provision and the meaning of the heading or title, the
heading or title would not control the meaning which is clearly and plainly discernible from the
language of the provision thereunder”.61
The conflicting views on the utility of Headings were referred to and are reflected in the speeches
delivered in the House of Lords while construing
section 322(3) of the Companies Act 62
. Headings like side notes and punctuation are
inserted by the draftsman and it is seldom that any attention is paid to them in the Legislature.
According to the strict view, therefore, they should be disregarded. But, as stated by Lord Reid:
“It may be more realistic to accept the Act as printed as being the product of the whole legislative
process, and to give due weight to everything found in the printed Act, more realistic because in
very many cases the provision before the court was never even mentioned in debate in either
House, and it may be that its wording was never closely scrutinised by any member of either
House. In such a case it is not very meaningful to say that the words of the Act represent the
intention of Parliament but that punctuation, cross- headings and side notes do not—. I would not
object to taking all these matters into account provided that we realise that they cannot have equal
weight with the words of the Act—. A Cross-heading ought to indicate the scope of the sections
which follow it but there is always a possibility that the scope of one of these sections may have
been widened by amendment.”63 Lord Upjohn, in the same case, after referring to the conflict in
authorities observed: “In this somewhat conflicting state of authorities what role do cross-
headings play? In my opinion, it is wrong to confine their role to the resolution of ambiguities in
the body of the Act. When the court construing the Act is reading it through to understand it, it
must read the cross-headings as well as the body of the Act and that will always be a useful
pointer as to the intention of Parliament in enacting the immediately following sections. Whether
the cross-heading is no more than a pointer or label or is helpful in assisting to construe or even in
some cases to control the meaning or ambit of those sections must necessarily depend on the
circumstances of each case and I do not think it is possible to lay down any rules.”64 On the other
hand Lord Hodson said: “The construction of the relevant section ought not to be governed
ultimately by consideration of cross-headings, even though some attention may be paid to them—
. I am impressed by the consideration that they are not part of the enacted words in a piece of
legislation but are added by the officers of the House of Parliament before they reach the form
embodied in the king's Printer's copy. I would not therefore give them a controlling effect.”65
Similarly, Viscount Dilhorne observed: “While I would not suggest that, when one is considering
an Act of Parliament, one is not entitled to look at the title given to a part of the Act and to cross
headings, the weight to be attached to them is, in my opinion, very slight and less than that which
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should be given to a preamble—. In my view the title given to a part of an Act and the cross-
heading to a modern Act which are inserted by the draftsman and not subject to amendment by
the members of either House, are no more than guides to the contents of the part or sections which
follow. They are not meant to control the operation of the enacting words and it would be wrong
to permit them to do so.”66
In the case of Schildkamp, Lord Upjohn with whom Lord Reid agreed, used the headings of the
Part and Sub-Part and the cross-headings under which
section 323(2) of the Companies Act , 1948 occurred to restrict the prosecution for
the offence created by the said section when company went into liquidation and prosecution was
held to be not tenable while it was a going concern.67 In an earlier case,68 cross-heading was used
by Lord Reid and Lord Hodson to limit the natural meaning of the word ‘Property’ in section
56(1) of the Law of Property Act, 1925.
Under section 180 of the Uttar Pradesh Tenancy Act, 1939 a remedy was provided for ejectment
of a person who was retaining possession of land ‘otherwise than in accordance with the
provisions of the law for the time being in force’. The question before the Supreme Court69 was
whether a person having no title but retaining possession by virtue of an order passed under
section 145, Criminal Procedure Code , could be ejected under the aforesaid
provision. In reaching the conclusion that such a person could be ejected the Supreme Court
construed the words ‘possession in accordance with the law for the time being in force’ as
meaning possession with title. Support for arriving at this conclusion was taken from the heading
of the section which read ‘Ejectment of person occupying land without title’. Subbarao, J., quoted
with approval the following passage from Max-well:70 “The heading prefixed to sections or sets
of sections in some modern statutes are regarded as preambles to those sections. They cannot
control the plain words of the statute but they may explain ambiguous words.”71
The heading of
section 36(2) of the Protection of Human Rights Act , 1994—‘Matters not subject to
jurisdiction of commission’—was used in support of the conclusion that the period of one year
prescribed in that section was not merely a procedural provision but took away the jurisdiction of
the commission to enquire into a matter after expiry of that period.72 The court observed that “it is
a settled rule of interpretation that the section heading or marginal note can be relied upon to clear
any doubt or ambiguity in the interpretation of the provision and to discern the legislative
intent.”73 This was a case of ‘heading’ not merely of a marginal note which is not a heading. But
as already seen the headings do not have any controlling effect when other relevant considerations
and the language leave no doubt as to the meaning of the statutory provision. For example, the
heading of Chapter XXXVI of the
Code of Criminal Procedure, 1973 which reads ‘Limitations for taking cognizance
of certain offences’, was not held to be controlling and it was held that a cumulative reading of
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various provisions in the said chapter clearly indicated that the limitation prescribed therein was
only for the filing of the complaint or initiation of the prosecution and not for taking congizance.74
The headings contained in

Schedule 7 of the Companies Act , 1948 were used by the Court of Appeal for
purposes of construction of paras in the Schedule to which they were prefixed.75
5. MARGINAL NOTES
Although opinion is not uniform the weight of authority is in favour of the view that the marginal
note appended to a section cannot be used for construing the section.76 Lord Macnaghten
emphatically stated: “It is well settled that marginal notes to the sections of an Act of Parliament
cannot be referred to for the purpose 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”.77 Patanjali Shastri, J., after referring to the above case with approval observed:
“Marginal notes in an Indian statute, as in an Act of Parliament cannot be referred to for the
purpose of construing the statute.”78 At any rate, there can be no justification for restricting the
section by the marginal note,79 and the marginal note cannot certainly control the meaning of the
body of the section if the language employed therein is clear.80 Recently, the appellate committee
of the House of Lords, consisting of five Law Lords, in a joint opinion noticed that according to
the change in practice starting in 2001, the side notes now appear as headings and although
headings and side notes are not debated in Parliament and are, therefore, unamendable they
cannot be entirely ignored. Their Lordships said: “The question then is whether headings and
sidenotes, although unamendable, can be considered in construing a provision in an Act of
Parliament. Account must, of course, be taken of the fact that these components were included in
the Bill not for debate but for ease of reference. This indicates that less weight can be attached to
them than to the parts of the Act that are open for consideration and debate in Parliament. But it is
another matter to be required by a rule of law to disregard them altogether. One cannot ignore the
fact that the headings and sidenotes are included on the face of the Bill throughout its passage
through the legislature. They are there for guidance. They provide the context for an examination
of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are
unamendable, they ought to be open to consideration as part of the enactment when it reaches the
statute book.”81
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
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made use of in construing the Articles, e.g. Art. 286, as furnishing “prima facie”, “some clue as to
the meaning and purpose of the Article”.82
A note appended to a statutory provision or subordinate legislation is merely explanatory in nature

and does not dilute the rigour of the main provision.83
6. PUNCTUATION
In England, before 1850, there was no punctuation in the manuscript copy of any Act which
received the Royal assent, therefore, the Courts cannot have any regard to punctuation for
construing the older Acts. Even as regards more modern Acts, it is very doubtful if punctuation
can be looked at for purposes of construction.84 The opinion on Indian statutes is not very much
different. Dealing with Regulation VIII of 1819, Lord Hobhouse stated: “It is an error to rely on
punctuation in construing Acts of the Legislature.”85 Again, while construing Article 48 of the
Indian
Limitation Act , 1908, which read ‘for specific moveable property lost or acquired by
theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or
detaining the same’, Lord Warrington rejected the contention that the word ‘dishonest’ qualified
not only ‘misappropriation’ but also ‘conversion’ bringing only dishonest conversion within the
Article, and observed: “The truth is that, if the article is read without the commas inserted in the
print, as a court of law is bound to do, the meaning is reasonably clear.”86 B.K. Mukher-jea, J., in
Aswini Kumar Ghose v. Arabinda Bose, 87 expressed himself as follows:
“Punctuation is after all a minor element in the construction of a statute, and very little attention is
paid to it by English Courts—. It seems, however, that in the vellum copies printed since 1850,
there are some cases of punctuation, and when they occur they can be looked upon as a sort of
contemporanea expositio—. When a statute is carefully punctuated and there is doubt about its
meaning, a weight should undoubtedly be given to punctuation—. I need not deny that
punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling
element and cannot be allowed to control the plain meaning of a text.” In Gopalan's case,88 Kania,
C.J.I., in construing
Art. 22(7)(a) of the Constitution , referred to the punctuation and derived assistance
from it in reaching his conclusion that Parliament was not obliged to prescribe both the
circumstances under which, and the class or classes of cases, in which a person may be detained
for a period longer than three months, without obtaining the opinion of Advisory Board and that
Parliament on a true construction of the clause could prescribe either or both.89 The use of the
word ‘which’ twice, read with the comma put after each ‘which’ was relied upon as indicative of
this construction.90 This view was later overruled in the case of Sambhu Nath Sarkar v. State of
W.B. 91 But it would appear, at any rate, with respect to modern statutes, 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.92 An illustration of the aid derived from punctuation
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may be furnished from the case of Mohd. Shabbir v. State of Maharashtra, 93 where
section 27 of the Drugs and Cosmetics Act, 1940 came up for construction. By this
section whoever ‘manufactures for sale, sells, stocks or exhibits for sale or distributes' a drug
without a licence, is liable for punishment. In holding that mere stocking is not an offence within
the section, the Supreme Court pointed out the presence of comma after ‘manufactures for sale’
and ‘sells’ and absence of any comma after ‘stocks’. It was, therefore, held that only stocking for
sale could amount to offence and not mere stocking. For another example of the use of
punctuation, reference may be made to M.K. Salpekar (Dr.) v. Sunil Kumar Shamsunder
Chaudhari, 94 where the court construed clause 13(3)(v) of the C.P. and Berar
Letting of Houses and Rent Control Order. This provision permits ejectment of a tenant on the
ground that “the tenant has secured alternative accommodation, or has left the area for a
continuous period of four months and does not reasonably need the house”. In holding that 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. However, if a statute is revised and re-enacted but the
section under construction in the revised statute is brought in identical terms as in the old statute
except as to variation of some punctuation, that in itself will not be indicative of any intention on
the part of the Legislature to change the law as understood under the old section.95
7. ILLUSTRATIONS
Illustrations appended to a section form part of the statute and although forming no part of the
section, 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.96 But Illustrations cannot have the effect of
modifying the language of the section and they cannot either curtail or expand the ambit of the
section which alone forms the enactment.1
In Ariffin's case,2 the question involved was as to the admissibility of a diary maintained by a
deceased father containing the dates of births, deaths and marriages in his family in proof of age
of his son under section 32(5) of the Sraits Settlement Ordinance, 1893 which is in similar terms
as
section 32(5) of the Indian Evidence Act, 1872 .3 There is an Illustration (b) appended
to the section which runs: ‘The question is, what is the date of the birth of A? A letter from A's
deceased father—announcing the birth of A on a given day, is a relevant fact’. The Privy Council
held the diary to be admissible on the footing that a statement as to date of birth relates to the
commencement of one's relationship by blood and therefore relates to the existence of such
relationship as that referred to in section 32(5). Support for this view was taken from the
Illustration. Lord Shaw in delivering the opinion 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
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with ideas possibly derived from another system of jurisprudence as to the law with which they or
the sections deal. And it would require a very special case to warrant their rejection on the ground
of their assumed repugnancy to the section 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, been expressly furnished by the Legislature as helpful in the
working and application of the statute, should not be thus impaired.”4
Illustrations appended to
sections 39 ,
64 ,
65 and
75 of the
Indian Contract Act 5
were used by the Privy Council in construing these sections and
in deciding that a contract which may be ‘put an end to’ under section 39 is ‘voidable’ under
section 64; the resulting position being that when a party puts an end to a contract under section
39 on the other party refusing or disabling himself from performing his promise in entirety the
party rescinding the contract becomes liable to restore the benefit received under the contract to
the person from whom it was received (vide section 64), although he (the party rescinding) is
entitled to compensation for any damage which he has sustained through the non-fulfilment of the
contract (vide section 75). In reaching this conclusion Sir George Rankin said: “The presence of
Illustration (c) to section 65 cannot be made consistent with any other view. The effect of section
39 is explained by the example there given of a singer who wilfully absents himself from the
theatre. The same example serves also under section 65 as Illustration (c) and under section 75—.
Nor can the Illustration be ignored or brushed aside because it is not part of the body of the
section.”6
Similarly in interpreting
section 113 of the Indian Succession Act, 1925 and in deciding that ‘later’ bequest to
be valid must comprise of all the testator's remaining interest, if the legatee to the later bequest is
not in existence at the time of the testator's death, and that a conferment of a life estate under such
a bequest is not valid, the Privy Council took the aid of Illustrations appended to that section.
Viscount Maugham pointed out: “Illustrations 2 and 3 would seem to show—What is not clear
from the language of the section—that however complete may be the disposition of the 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 testator's death of something less than the remaining
interest of the testator.”7
The Supreme Court took the aid of Illustration appended to

section 43, Transfer of Property Act, 1882 for the conclusion that the said provision
applies to transfers of spes successionis and enables the transferee to claim the property, provided
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other conditions of the section are satisfied. Venkatarama Aiyar, J., quoted the judgment in
Ariffins' case8 and observed: “It is not to be readily assumed that an Illustration to a section is
repugnant to it and rejected.”9
Mention must also be made of Illustration (b) to

section 114, Indian Evidence Act , which reads: ‘The court may presume that an
accomplice is unworthy of credit unless he is corroborated in material particulars’. The impact of
this Illustration on the construction of
section 133 of the Evidence Act —‘An accomplice shall be a competent witness
against an accused person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice’—is too well known. The rule evolved on the basis of
the Illustration is that “it is almost always unsafe”, to convict an accused on the uncorroborated
testimony of an accomplice,10 and that the corroboration required to sustain a conviction must be
independent and must relate to the participation of the accused in the offence.11 The Supreme
Court has never felt any difficulty in setting aside a conviction based on uncorroborated or
insufficiently corroborated testimony of an accomplice.12 Thus the rule of law enacted in the later
part of section 133 has, from practical point of view, been reduced to a dead letter on the basis of
a rule of practice developed under a mere Illustration and that too appended to a different section.
Such a result, which is exceptional from the point of view of principles of construction, is the
outcome of the anxiety of courts to safeguard the liberty of the subject and to make sure that a
conviction is not obtained merely on tainted evidence.
The utility of Illustration in interpreting the section cannot, however, detract the prime importance
of the language of the section which is the enacting provision. Illustrations, therefore, cannot, as
already noticed,13 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.
In holding that
section 73 of the Indian Contract Act, 1872 does not permit the award of interest as
damages for mere detention of a debt, the Privy Council rejected the argument that Illustration (u)
to that section can be used for arriving at a contrary result. Sir Shadilal observed: “Nor can an
Illustration have the effect of modifying the language of the section which alone forms the
enactment.”14
Similarly, in deciding that

section 115 of the Indian Succession Act, 1925 is sufficiently wide and is not limited
in its application to members of a class who are in existence at the date of testator's death, Sir
Madhavan Nair with reference to Illustrations appended to that section pointed out: “The words of
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the section are not ambiguous. It is well settled that just as Illustrations should not be read as
extending the meaning of a section, they should also not be read as restricting its operation
especially so when the effect would be to curtail a right which the plain words of the section
would confer.”15
In a case before the Supreme Court which involved the interpretation of

section 106 of the Indian Evidence Act, 1872 , the 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 and had no application to those cases where the information was as
much within the knowledge of the prosecution as of the accused. Referring to the Illustration to
section 106, Bose, J., observed: “We recognise that an Illustration does not exhaust the full
content of the section which it illustrates but it can neither curtail nor expand its ambit.”16
8. DEFINITION SECTIONS OR INTERPRETATION CLAUSES
In spite of severe criticism as to utility of definition sections or interpretation clauses17, it is

common to find in a statute ‘Definitions’ of certain words and expressions used elsewhere in the
body of the statute. The object of such a definition is to avoid the necessity of frequent repetitions
in describing all the subject-matter to which the word or expression so defined is intended to
apply. A definition section may borrow definitions from an earlier Act and the definitions so
borrowed may not necessarily be in the definition section but may be in some other provision of
the earlier Act.18 A definition borrowed by incorporation or reference may be sometimes found in
the rules made under the referred statute. For example,
Article 366(1) of the Constitution defines ‘agricultural income’ to mean ‘agricultural
income as defined for the purpose of enactments relating to Indian Income-tax’. In construing this
definition the Supreme Court has consistently taken the view that its meaning has to be
considered not merely by looking to the
Income-tax Act, 1922 or the
Income-tax Act, 1961 but also with reference to the rules made under these Acts for
computation of income when the same is derived in part from agriculture and in part from
business and so only 60% of the income on sale of tea grown and manufactured by an assessee as
provided in the rules can be held to be agricultural income which the States can tax.19 But in the
absence of incorporation or reference it is hazardous to interpret a word in accordance with its
definition in another statute20 and more so when such statute is not dealing with any cognate
subject21 or the statutes are not in pari materia 22 On this principle the meaning given
to the word ‘industry’ in the

Industrial Disputes Act was not used for construing that word in an exemption
notification under
section 25 of the Customs Act 23
; and the definition of ‘currency note’ in the Indian
Paper Currency Act was not applied for interpreting that expression in
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section 489A of the Penal Code .24
(a) Restrictive and extensive definitions
The Legislature has power to define a word even artificially.25 So the definition of a word in the
definition section may either be restrictive of its ordinary meaning or it may be extensive of the
same. When a word is defined to ‘mean’ such and such, the definition is prima facie restrictive
and exhaustive;26 whereas, where the word defined is declared to ‘include’ such and such, the
definition is prima facie extensive.27 When by an
amending Act , the word ‘includes’ was substituted for the word ‘means’ in a
definition section, it was held that the intention was to make it more extensive.28 Further, a
definition may be in the form of ‘means and includes’ where again the definition is exhaustive;29
on the other hand, if a word is defined ‘to apply to and include’, the definition is understood as
extensive.30 The use of word ‘any’, e.g. any building also connotes extension for ‘any’ is a word
of very wide meaning and prima facie the use of it excludes limitation.31
A definition which defines a word to mean A and to include B and C cannot in its application be
construed to exclude A and to include only B and C. The definition of ‘owner’ in the Bihar
Taxation on Passengers and Goods (Carried by Public Service Motor Vehicles) Act, 1961 means
the owner and includes bailee of a public carrier vehicle or any manager acting on behalf of the
owner. It was held that the definition could not be applied to exclude the actual owner and to free
him from liability.32 Further, the natural meaning of the ‘means’ part of the definition is not
narrowed down by the ‘includes’ part.33 Thus the definition of ‘sale price’ in section 2(d) of the
West Bengal Sales Tax Act, 1954 to mean ‘money consideration for the sale’ and to include ‘any
sum charged for containers etc.’ was construed to include freight and delivery charges paid by the
seller as being within the ordinary meaning of the words ‘money consideration for the sale’
though not mentioned in the inclusive part of the definition.34
Referring to the definition of ‘charitable bequest’ in a New Zealand statute, the Privy Council
pointed out: “It is not said in terms that charitable bequest shall mean one or other of the things
which are enumerated, but that it shall include them. The word ‘include’ is very generally used in
interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of
the statute; and when it is so used those words or phrases must be construed as comprehending,
not only such things, as they signify according to their natural import, but also those things which
the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of
another construction, which may become imperative, if the context of the Act is sufficient to show
that it was not merely employed for the purpose of adding to the natural significance of the words
or expressions used. It may be equivalent to ‘mean and include’ and in that case it may afford an
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exhaustive explanation of the meaning which for the purposes of the Act must invariably be
attached to those words or expressions.”35 Thus the word include may in certain contexts be a
word of limitation.36
In section 201(1) of the Licensing Act, 1964, ‘bar’ is defined to include a place which is
exclusively or mainly used for the sale and consumption of intoxicating liquor. Referring to this
definition the House of Lords held that the use of the word ‘include’ showed that the definition
did not exclude what would ordinarily and in common parlance be spoken of as a bar, and
therefore counters used for serving liquor were held to be ‘bar’ within section 75(5) of the Act.37
The inclusive definition of ‘district judge’ in

Article 236(a) of the Constitution has been very widely construed to include
hierarchy of specialised Civil Courts viz. Labour Courts and Industrial Courts which are not
expressly included in the definition.38
Referring to the definition of the word ‘street’ in an English Statute, Cotton, L.J., said: “It does
not say that the word street shall be confined to any highway not being a turnpike road, but that it
shall ‘apply to and include any highway not being a turnpike road’ etc. That is enlarging, not
restricting the meaning of ‘street’.”39 In dealing with the definition of ‘Industry’ in the
Industrial Disputes Act, 1947 , Gajendragadkar, J., observed: “It is obvious that the
words used in an inclusive definition denote extension and cannot be treated as restricted in any
sense. Where we are dealing with an inclusive definition, it would be inappropriate to put a
restrictive interpretation upon terms of wider denotation.”40 In holding that sanitary and pipe line
fittings in a building which is run as a hotel fall within the word ‘Plant’ in section 10(2)(vi-b) of
the
Income-tax Act, 1922 , for grant of depreciation allowance Grover, J., referred to the
definition of ‘plant’ in section 10(5)41 of the Act and observed: “The very fact that even books
have been included shows that the meaning intended to be given to ‘plant’ is wide. The word
‘includes’ is often used in interpretation clauses in order to enlarge the meaning of the words or
phrases occurring in the body of the statute. When it is so used these words and phrases must be
construed as comprehending not only such things as they signify according to their nature and
import but also those things which the interpretation clause declares that they shall include.”42
The words ‘including the power to punish for contempt of itself’ in
Article 129 of the Constitution , which declares the Supreme Court to be a court of
record, were held not to limit the inherent power of the Supreme Court as a court of record to
punish for contempt of itself as also of subordinate courts.43 The word ‘income’, which is of
broadest connotation, is not restricted by the several clauses in
section 2(24) of the Income-tax Act, 1961 and even a receipt not falling in any of the
clauses may yet constitute income for to say otherwise would mean reading the several clauses as
exhaustive.44 It was, therefore, held that prize money received by a participant in a motor rally
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was ‘income’ and taxable even if did not fall in any of the clauses in section 2(24).45
Section 2(O) of the Consumer Protection Act, 1986 which is an inclusive definition
of ‘service’ was held to include ‘housing construction’ even before this service was included
expressly by amendment in 1993.46
But as stated earlier,47 the word ‘include’ may in exceptional cases be construed as equivalent to
‘mean and include’. Entry 22 added by the Gujarat Government to Part I of the Schedule to the
Minimum Wages Act, 1948 furnished an illustration of such use. The entry refers to
‘Employment in Potteries Industries’ and is followed by an explanation which reads: ‘For the
purpose of this entry potteries industry includes the manufacture of the following articles of
pottery namely—(a) Crockery, (b) Sanitary appliances, (c) Refractories, (d) Jars, (e) Electrical
accessories, (f) Hospital wares, (g) Textile accessories, (h) Toys, (i) Glazed tiles’. Construing the
explanation the Supreme Court held that the items included in it were plainly comprised in the
expression ‘potteries industry’ which showed that the word ‘includes’ was not used to extend the
normal meaning of this expression. For the same reason it was clear that the explanation was not
added to indicate by way of abundant caution that the items included in it were comprised in
‘potteries industry’. The conclusion was reached that the word ‘includes’ was used in the
explanation in the sense of ‘means’ and the definition provided by the explanation was
exhaustive. It was, therefore, held that Mangalore pattern roofing tiles manufactories were not
covered by entry 22 as they were not included in the explanation.48 Similarly in construing the
definition of ‘Prize Chit’ as contained in
section 2(e) of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978
the Supreme Court held that the inclusive definition was not intended to expand the meaning of
‘Prize Chit’ to cover all transactions or arrangements of the nature of prize chits by whatever
name called and that a recurring deposit scheme without any element of prize was not a prize chit
as defined in the Act.49 And in construing section 2(3) of the Rating Act, 1971 which defines
‘Livestock’ to include any mammal or bird kept for the production of food or wool or for the
purpose of its use in the farming of land, the word livestock was not given the wide meaning (in
contradiction to deadstock) to include any animal whatsoever and was held not to extend to
thorough bred horses not kept for use in the farming of land.50 In holding so Lord Keith observed:
“There can be no doubt that in some cases the language of an inclusive definition considered with
the general context, can have the effect that the ordinary general meaning of a word or expression
is to some extent cut down.”51 The word ‘includes’ in a particular context may only mean
‘comprises’ or ‘consists of’.52
As earlier seen53 a definition in the form ‘mean and include’ will be considered as exhaustive. In
other words the definition will embrace only what is comprised within the ordinary meaning of
the ‘means’ part together with what is mentioned in the ‘includes’ part of the definition.54 As an
example reference may be made to the definition of tobacco in item 4 of the first schedule to the
Central Excises and Salt Act, 1944. It reads: ‘Tobacco means any form of tobacco whether cured
or uncured and whether manufactured or not and includes the leaf stalks and stems of the tobacco
plant—’. Construing this definition the Supreme Court held that the definition is exhaustive and
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tobacco seeds, which are not mentioned in the inclusive part, do not fall within the definition.55
A definition section may also be worded in the form ‘is deemed to include’ which again is an
inclusive or extensive definition and such a form is used to bring in by a legal fiction something
within the word defined which according to its ordinary meaning is not included within it.56
A definition may be both inclusive and exclusive i.e. it may include certain things and exclude
others.57 Limited exclusion of a thing may suggest that other categories of that thing which are not
excluded fall within apparently wide or inclusive definition.58 But the exclusion clause may have
to be given a liberal construction if the purpose behind it so requires.59
(b) Ambiguous definitions
Although it is normally presumed that the Legislature will be specially precise and careful in its
choice of language in a definition section, at times the language used in such a section itself
requires interpretation.60 As pointed out by Sir George Rankin: “A phrase having been introduced
and then defined the definition prima facie must entirely determine the application of the phrase;
but the definition must itself be interpreted before it is applied, and interpreted, in case of doubt in
a sense appropriate to the phrase defined and to the general purpose of the enactment.”61 If literal
reading of a prima facie vide definition leads to absurdity, a restricted meaning may have to be
given to it to avoid the absurdity.62 The definition section may itself be ambiguous and may have
to be interpreted in the light of the other provisions of the Act and having regard to the ordinary
connotation of the word defined. A definition is not to be read in isolation. It must be read in the
context of the phrase which it defines, realising that the function of a definition is to give
precision and certainty to a word or phrase which would otherwise be vague and uncertain but not
to contradict it or supplant it altogether.63
In deciding that the word ‘retrenchment’ as defined in section 2(oo)64 of the

Industrial Disputes Act, 1947 and also as ordinarily understood does not include
discharge of the services of all workmen on a real and bona fide closure of whole business, or on
the business or undertaking being taken over by another employer, S.K. Das, J., observed: “What
is being defined is ‘retrenchment’, and that is the context of the definition. It is true that an
artificial definition may include a meaning different from or in excess of the ordinary acceptation
of the word which is the subject of definition; but there must then be compelling words to show
that such a meaning different from or in excess of the ordinary meaning is intended. Where within
the frame-work of the ordinary acceptation of the word, every single requirement of the definition
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clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of
the word defined.”65 Proceeding further S.K. Das, J., said: “There is another way of looking at the
problem. Let us assume that the definition clause is so worded that the requirements laid down
therein are fulfilled whether we give a restricted or a wider meaning. To that extent there is an
ambiguity and definition clause is readily capable of more than one interpretation. What then is
the position? We must see what light is thrown on the true view to be taken of the definition
clause by other provisions of the Act or even by the aim and provisions of subsequent statutes
amending the Act or dealing with the same subject-matter.”66 There are observations in this case
that retrenchment involves only termination of surplus staff; but this limited meaning was not
accepted in later cases and even automatic termination by expiry of period of employment or
resulting from absence of the employee was held to fall within the definition of retrenchment.67
This wide meaning of the words ‘for any reason whatsoever’, had been given to promote the
object of the Act to enable the workmen to get retrenchment benefits. But by Act 49 of 1984, the
definition of retrenchment was amended to exclude termination of the service as a result of the
non-renewal of the contract of employment on its expiry or of such contract being terminated
under a stipulation in that behalf contained therein. Termination of the service of a probationer in
accordance with the terms of his employment, therefore, now does not amount to retrenchment.68
Similarly termination of service of a seasonal worker after the work was over does not amount to
retrenchment.69
Section 2(o) of the Monopolies and Restrictive Trade Practices Act, 1969 defined
‘restrictive trade practice’ to be a trade practice which has, or may have, the effect of preventing,
distorting or restricting competition in any manner. Dealing with this definition, the Supreme
Court70 observed that the decision whether a trade practice is restrictive or not has to be arrived at
by applying the rule of reason and not on the doctrine that any restriction as to area or price will
per se be a restrictive trade practice. Every trade agreement restrains or binds persons or places or
prices but merely for that reason it cannot be held to be a restrictive trade practice. That is clearly
not the intention of the definition although couched in wide words. The question to be determined
in such cases is whether the restraint is such as regulates and thereby promotes competition or
whether it is such as may suppress or even destroy competition.
In dealing with the definition of ‘transfer of property’ in the

Gift-tax Act, 1958 , it was pointed out that the words ‘disposition’, ‘conveyance’,
‘assignment’, ‘settlement’, ‘delivery’, and ‘payment’ were used in the definition as signifying
different modes of transfer of property, and that the word ‘transaction’ occurring in it must also be
construed to mean a transaction which is a transfer of property in someway. It was therefore held
that a partition of Hindu Undivided Family did not fall within the definition. In construing the
definition, Hegde, J., observed: “An interpretation clause is not meant to prevent the word
receiving its ordinary, popular and natural sense whenever that would be properly applicable but
to enable the word as used in the Act when there is nothing in the context or the subject-matter to
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the contrary to be applied to some things to which it would not ordinarily be applicable.”71
Even when the definition clause uses words of very wide denotation a line may have to be drawn
so as to exclude categories obviously not intended to be included. In a case already noticed72
which construed the definition of ‘Industry’, as contained in
section 2(j) of the Industrial Disputes Act, 1947 , the Supreme Court stated: “though
section 2(j) uses words of very wide denotation, line would have to be drawn in a fair and just
manner so as to exclude some callings, services or undertakings. If all the words used are given
their widest meaning, all services and all callings would come within the purview of the
definition; even service rendered by a servant purely in a personal or domestic matter or even in a
casual way would fall within the definition. It is not and cannot be suggested that in its wide
sweep the word ‘service’ is intended to include service howsoever rendered in whatsoever
capacity and for whatsoever reason.”73 After reviewing earlier cases and overruling a number of
them74 the Supreme Court in a later case held that (i) where systematic activity, (ii) organised by
co-operation between employer and employee, (iii) for the production and or distribution of goods
and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive
of material things or services geared to celestial bliss e.g., making on a large scale prasad or food)
is carried on prima facie, there is an ‘industry’ in that enterprise.75 Absence of profit motive or
gainful objective is irrelevant, the decisive test being the nature of the activity with special
emphasis on employer-employee relations.76
Wide words used in an interpretation clause may thus be given a limited meaning having regard to
the context as a whole for a word in a statute whether it be in the body of the statute or in the
interpretation clause is not to be construed without reference to the context in which it appears.
However, it will not be correct to say that a wide word in an inclusive definition should be given a
limited scope by reference merely to the ordinary meaning of the word defined.77
(c) Definitions are subject to a contrary context
When a word has been defined in the interpretation clause, prima facie that definition governs
whenever that word is used in the body of the statute.78 As was observed by Lord Dunedin: “It is a
novel and unheard of idea that an interpretation clause which might easily have been so expressed
as to cover certain sections and not to cover others should be when expressed in general terms
divided up by a sort of theory of applicana singula singulis, so as not to apply to sections where
context suggests no difficulty of application.”79 And as recently stated by Lord Lowry: “If
Parliament in a statutory enactment defines its terms (whether by enlarging or by restricting the
ordinary meaning of a word or expression), it must intend that, in the absence of a clear indication
to the contrary, those terms as defined shall govern what is proposed, authorised or done under or
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by reference to that enactment.”80 But where the context makes the definition given in the
interpretation clause inapplicable, a defined word when used in the body of the statute may have
to be given a meaning different from that contained in the interpretation clause; all definitions
given in an interpretation clause are therefore normally enacted subject to the qualification—
‘unless there is anything repugnant in the subject or context’, or ‘unless the context otherwise
requires’.81 Even in the absence of an express qualification to that effect such a qualification is
always implied.82 However, it is incumbent on those who contend that the definition given in the
interpretation clause does not apply to a particular section to show that the context in fact so
requires.83 An argument based on contrary context which will make the inclusive definition
inapplicable to any provision in the Act cannot be accepted as it would make the definition
entirely useless.84 Repugnancy of a definition arises only when the definition does not agree with
the subject or context; any action not in conformity with the definition will not obviously make it
repugnant to subject or context of the provision containing the term defined under which such
action is purported to have been taken.85 When the application of the definition to a term in a
provision containing that term makes it unworkable and otiose, it can be said that the definition is
not applicable to that provision because of contrary context.86 Further, when after amendment of
the
Constitution and the Act a basic difference is brought about in the working of the
Act but the definition section remains unamended, the change so brought about will be contrary
context and the definition will not be a applicable.87
In the words of Wanchoo, J.: “It is well settled that all statutory definitions or abbreviations must
be read subject to the qualification 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 somewhat 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, similar to the words used in the present case,
namely ‘unless there is anything repugnant in the subject or context’. Therefore, in finding out the
meaning of the word ‘Insurer’ in various sections of the Act (
Insurance Act, 1938 ) the meaning to be ordinarily given to it is that given in the
definition clause. But this is not inflexible and 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 but also to look at the context, the collocation and the
object of such words relating to such matter and interpret the meaning intended to be conveyed by
the use of the words under the circumstances.”88 In this case89 the question before the Supreme
Court was as to construction of the word ‘Insurer’ as used in sections 33(1) and 2-D of the
Insurance Act, 1938 which read as follows: Section 33(1): ‘The Central Government
may at any time by order in writing direct the Controller or any other person specified in the order
to investigate the affairs of any insurer and to report to the Central Government on any
investigation made by him;’ Section 2-D: ‘Every insurer shall be subject to all the provisions of
this Act in relation to any class of insurance business so long as his liabilities in India in respect of
business of that class remain unsatisfied and not otherwise provided for’. The Act by section 2(9)
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defines an ‘Insurer’ as a person carrying on the business of ‘insurance’, and the contention before
the Supreme Court was that sections 33(1) and 2-D did not apply to an insurer who had closed his
business completely as the definition of the word insurer in section 2(9) postulates actual carrying
on of the business. Rejecting the above contention the Court pointed out that in the context of
sections 33(1) and 2-D and “taking into account the policy of the Act and the purposes for which
the control envisaged by the Act was imposed on insurers”, the word ‘Insurer’ in the said sections
also refers to insurers who were carrying on the business of insurance but have closed it.90
Section 13(2)(i) of the East Punjab Urban Rent Restriction Act, 1949 permits a
landlord to apply for eviction of a tenant on the ground of arrears of rent. A proviso enables the
tenant to avoid eviction on this ground by paying the arrears on the first date of hearing with
interest and cost. ‘Tenant’ is defined in section 2(h)(i) to mean a person by whom or on whose
account rent is payable but does not include a person placed in occupation by the tenant without
the consent in writing of the landlord. In construing these provisions the Supreme Court held that
the context of the proviso to section 13(2)(i) made the definition of tenant inapplicable to it and a
defendant who claimed to be a tenant but who was not admitted to be a tenant by the plaintiff
landlord and who was alleged to have been inducted by the tenant without the plaintiff's consent
could take the benefit of the proviso and make the deposit.1
Because of
Article 367 of the Constitution , the
General Clauses Act, 1897 , ‘unless the context otherwise requires’, applies for
construction of the
Constitution . The definition of ‘State’ in
section 3(58) of the General Clauses Act includes ‘Union Territories’ and, therefore,
the word ‘State’ in Article 3 and entry 803 of the Union List in the
2
Constitution includes Union Territories. But as the context otherwise requires the
word ‘State’ in Article 246 does not include Union Territories.4
In construing the word ‘court’ in

section 14(2) of the Arbitration Act , 1940 it was held that the word court as used
therein meant a court which appointed the arbitrator and the definition in section 2(c) of the Act
which defines ‘court’ as meaning a court which would entertain a suit on the subject-matter does
not govern section 14(2) as the context made that definition inapplicable.5
Similarly in construing the word ‘workman’ in

section 33-C(2) of the Industrial Disputes Act, 1947 , it was held that the word
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included a dismissed workman although in the definition of that word as given in section 2, a
dismissed workman is included only for the purpose of industrial disputes under section 10.6
When a word is defined to bear a number of inclusive meanings, the sense in which the word is
used in a particular provision must be ascertained from the context of the scheme of the Act, the
language of the provision and the object intended to be served thereby.7
9. PROVISO
(a) Its real nature
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.8 As stated by Lush, J.: “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.”9 In the words of Lord Macmillan: “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.”10 The proviso may, as Lord Macnaghten laid
down, be “a qualification of the preceding enactment which is expressed in terms too general to
be quite accurate”.11 The general rule has been stated by Hidayatullah, J., in the following words:
“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”.12 And 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 proviso to read it as providing something by way of an addendum or
dealing with a subject which is foreign to the main enactment.”13 Further, a proviso is not
normally construed as nullifying the enactment or as taking away completely a right conferred by
the enactment.14 As a consequence of the aforesaid function of a true proviso certain rules follow.
(b) Not construed as excluding or adding something by implication
Except as to cases dealt with by it, a proviso has no repercussion on the interpretation of the
enacting portion of the section so as to exclude something by implication which is embraced by
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clear words in the enactment.15 Further, as stated by Lord Watson in an oft-quoted passage: “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.”16 So when on a fair
construction the principle provision is clear, a proviso cannot expand or limit it.17
The Madras District Municipalities Act, 1920 empowered a municipality to levy property tax on
all lands and buildings at such percentage of the annual value as may be fixed by the municipal
council. The Act by section 82(2) defined annual value of lands and buildings in terms: ‘shall be
deemed to be the gross annual rent at which they may be reasonably expected to let from month to
month or year to year—’. A proviso appended to section 82(2) provided that in case of certain
classes of buildings the annual value of such premises was deemed to be 6 per cent of their capital
value. Certain vacant lands belonging to a Railway Company were assessed to property tax by the
Bezwada Municipality and the method adopted in order to arrive at the annual value was first to
ascertain their capital value and to fix 6 per cent of the same as annual value. The tax was levied
at a certain percentage of the annual value so calculated. The contention before the Privy Council
was that the proviso appended to section 82(2) indicated that capital value as basis for
ascertaining annual value could be used only in case of specified classes of buildings in the
proviso and that resort to this method was by necessary implication prohibited in every other case.
It was not disputed that but for the proviso, section 82(2) would have permitted resort to any of
the recognised methods of arriving at the rent which a hypothetical tenant might reasonably be
expected to pay for the lands in question, including the method of taking a percentage of capital
value. Rejecting the contention Lord Macmillan observed: “The proviso does not say that the
method of arriving at annual value by taking a percentage of capital value is to be utilised only in
the case of the classes of buildings to which the proviso applies. It leaves the generality of the
substantive enactment in the sub-section unqualified except insofar as concerns the particular
subject to which the proviso relates. Where, as in the present case, the language of the main
enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of
the main enactment so as to exclude from it by implication what clearly falls within its express
terms.”18
By
Article 240(1) of the Constitution power is conferred on the President “to make
regulations for the peace, progress and good Government” of the Union territories. There is a
proviso appended to Article 240(1) which directs that the President shall not make any regulation
after the
Constitution of a Legislature of a Union territory for that Union territory. It was
contended on the basis of the proviso that the power of the President is co-extensive with the
power of the Legislature which may be constituted for a Union territory and hence the President's
power to make regulations is limited to subjects falling within the Concurrent and State lists. This
argument was negatived on the reasoning that the enacting part of Article 240(1) in plain terms
confers plenary powers of making regulations which are not curtailed by the proviso.19
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Under
section 11(1)(b) of the Railways Act , 1890, a railway administration is bound to
make and maintain all necessary arches, tunnels, culverts, etc., ‘of such dimensions as will, in the
opinion of the Provincial Government, be sufficient at all times to convey water as freely from or
to the lands lying near or affected by the railway as before the making of the railway, or as nearly
so as may be’. By section 11(3)(b) the aforesaid duty is subject to a proviso that, ‘a railway
administration shall not, except on the requisition of the Provincial Government, be compelled to
defray the cost of executing any further or additional accommodation works for the use of the
owners or occupiers of the lands after the expiration of ten years from the date on which the
railway passing through the lands was first opened for public traffic’. A railway having been
opened in Madura in 1902, a culvert was constructed by the railway administration for conveying
water of a water-channel. With the growth of the town the culvert was found insufficient and in
1938, the Provincial Government ordered the Railway to widen the channel under section
11(3)(b) at its own cost. In holding that such an order was invalid, Lord Simonds quoted the
observations of Lord Watson20 and laid down that the proviso did not impose any new duty on the
railway apart from that imposed by the enacting provision.21 Interpreting the enacting provision
and the proviso, Lord Simonds said: “The obligation imposed upon the Railway is to make and
maintain a culvert which will in the opinion of the Provincial Government be sufficient at all
times to convey water as freely from or to the lands lying near or affected by the railway as before
the making of the Railway or as nearly so as may be. It is clear that the obligation under sub-
section (1) is to be measured by the conditions existing at the time of the making of the railway.
The status quo is to be preserved. It is the proviso in (b) [sub-section (3)(b)] that is immediately
relevant and it must first be observed that it is in form negative. It does not purport to vest any
new rights in any person or to impose any new duty upon the railway. It is by no means
impossible to give meaning and effect to proviso without doing violence to its language and to the
canon of construction to which reference has been made, for the ‘further or additional
accommodation works’ mentioned in the sub-section may be required not because those originally
constructed have become insufficient owing to change of conditions; but because the adjoining
landowner has miscalculated what the conditions originally existing would demand for the
commodious use of his land, and is given an opportunity within a limited time for making a fresh
demand. Nor would it be unreasonable in the circumstances which prevail in large parts of India
that unlimited time should be given to the Government to require that the same standard should be
established and maintained.”22
(c) Construed in relation to the section or sections to which it is appended
The language of a proviso even if general is normally to be construed in relation to the subject-
matter covered by the section to which the proviso is appended.23 In other words normally a
proviso does not travel beyond the provision to which it is a proviso.24 “It is a cardinal rule of
interpretation”, observed Bhagwati, J., “that a proviso to a particular provision of a statute only
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embraces the field which is covered by the main provision. It carves out an exception to the main
provision to which it has been enacted as a proviso and to no other.”25 It was, therefore, held that
the proviso appended to
Article 286(2) of the Constitution authorising the President to lift the ban imposed by
the said provision was not available to lift the ban imposed by Art. 286(1).26 As observed by Das,
C.J.I.: “It is a fundamental rule of construction that proviso must be considered in relation to the
principal matter to which it stands as a proviso.”27 On this principle, it was held that a proviso
enabling the Government to declare that it would not be in public interest to communicate the
grounds of detention to a detenu, should be construed along with the enacting portion which
required communication of grounds of detention ‘as soon as may be’ and therefore enjoining that
the necessary declaration dispensing with this communication in public interest must also be
made ‘as soon as may be’.28 On the same principle, proviso 1 to
section 24(1) of the Indian Income-tax Act, 1922 was construed as limited in its
application to set-off of profits and losses arising under different heads, a subject dealt with by
section 24(1) and was held inapplicable to set-off of profits and losses arising under the same
head, a subject dealt with under sections 7 to 12-B.29 Similarly the proviso and the explanation
appended to section 7 of the Hindu Adoption and Maintenance Act, 1956 were not permitted to be
read in section 8 of the Act in support of the argument that when there are two widows adoption
by one widow can be made only with the consent of her co-widow.30 And on the same reasoning a
proviso to rule 147 of the rules framed under the Bihar and Orissa
Excise Act , 1915 was held applicable merely to foreign liquor imported under bond
as the main part of the rule was limited to such foreign liquor.31 Another example is furnished by
R. 2.2 of the Punjab Civil Service Rules which reserves to the Government the right to withhold
or withdraw a pension or part of it or to order recovery from it if the pensioner is subsequently
found guilty of grave misconduct or negligence during the period of his service in a departmental
or judicial proceeding. There is a proviso to the rule which says: “No such judicial proceeding if
not instituted while the officer was in service—shall be instituted in respect of a cause of action
which arose or an event which took place more than four years before such institution.” The
Supreme Court held that the proviso had to be read as an exception to the main provision meaning
that if the judicial proceeding is not instituted within the period mentioned in the proviso, the
Government will not have the right to withhold or withdraw the pension and that the proviso does
not provide a general embargo on the prosecution of the officer after the expiry of that period.32
The application of this rule presents difficulty when a proviso in a statute does not form part of a
section but is itself enacted as a separate section. The drafting of a proviso in such a form makes it
necessary to determine as to which section or sections the section containing the proviso is
enacted as exception or qualification. The Newcastle-on-Tyne Improvement Act, 1865, in section
65 furnishes an illustration of such a proviso. Section 65 which is worded as a proviso reads:
‘Provided always that nothing in this Act shall authorise the Corporation or any lessee of the
Corporation to do or be party to any act or thing amounting to a nuisance.’ On a scrutiny of the
sections the Court of Appeal held that section 65 was a proviso to the group of sections dealing
with Sewers and Sanitary arrangement, i.e., sections 62 to 64 and not to section 22 which dealt
with Streets.33 The words in section 65 ‘nothing in this Act’, were therefore on construction
limited to the principal matter to which that section was a proviso, i.e., to the exercise of power in
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relation to Sewers and Sanitary arrangements under sections 62 to 64, and section 65 was thus
held as not applicable to section 22.34 Another illustration of such a proviso is furnished by
section 27 of the Indian Evidence Act, 1872 which has been construed as a proviso to
sections 24 to 26 and not only to section 26. 35
(d) Use as guide to construction of enactment
If the enacting portion of a section is not clear a proviso appended to it may give an indication as
to its true meaning. As stated by Lord Herschell: “Of course a proviso may be used to guide you
in the selection of one or other of two possible constructions of the words to be found in the
enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt
as to having this scope or that, which is the proper view to take of it.”36 And Lord Watson in the
same case said: “I perfectly admit that there may be and are many cases in which the terms of an
intelligible proviso may throw considerable light on the ambiguous import of the statutory
words.”37 Mudholkar, J., stated the rule thus: “There is no doubt that where the main provision is
clear its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which
cannot be presumed to be a surplusage can properly be looked into to ascertain the meaning and
scope of the main provision.”38
A striking illustration of the utility of a proviso in construing the main portion of the section is
furnished by section 9(c)39 of the Intoxicating Liquor Act (Northern Ireland), 1923. The question
arising out of this section before the House of Lords40 was as to the correct meaning of the words
‘an increase of not less than 25 per cent of the population according to last census’ as occurring in
the enacting clause. The problem was thus posed: Must there be a 25 per cent increase in the
population of the whole city or town, or will it suffice if there is a 25 per cent increase in the
population of some ward or electoral division of the city or town? In answering that it was
sufficient for the operation of the section, if there was an increase of 25 per cent in the population
of some ward or electoral division, the House of Lords derived assistance from the language of
the proviso. Lord Maugham after quoting a passage from Lord Herschell's opinion in West Derby
Union's case41 observed: “That is precisely the method of construction which, in my view, is
applicable to the present case—. It cannot I think, be disputed that, in construing a section of an
Act of Parliament, it is constantly necessary to explain the meaning of words by an examination
of purport and effect of other sections in the same Act. This principle is equally applicable in the
case of different parts of a single section, and nonetheless so because the latter part is introduced
by the words ‘provided that’ or like words.”42 Lord Russel expressed himself thus: “Although a
proviso may well be incapable of putting upon preceding words a construction which they cannot
possibly bear, it may without doubt operate to explain which of the two or more possible
meanings is the right one to attribute to them—. One must, however, read the whole clause before
attempting to construe any portion of it, and a perusal of the proviso fixes the meaning of the
words which precede it. It tells you where the increase of population has to take place—namely,
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in the ward or electoral division in which the premises proposed to be licensed are situate.”43 In
the same case Lord Wright laid down: “It is said that, where there is a proviso, the former part
which is described as the enacting part, must be construed without reference to the proviso. No
doubt, there may be cases in which first part is so clear or unambiguous as not to admit in regard
to the matters which are there clear any reference to any other part of the section. The proviso
may simply be an exception of what is clearly defined in the first part, or it may be some
qualification not inconsistent with what is expressed in the first part. In the present case not only
is the first part of the section deficient in express definition, but also the second part is
complementary and necessary in order to ascertain the full intention of the Legislature.”44
Since the natural presumption is that but for the proviso, the enacting part of the section would
have included the subject-matter of the proviso,45 the enacting part should be generally given such
a construction which would make the exceptions carved out by the proviso necessary and a
construction which would make the exceptions unnecessary and redundant should be avoided.46
This is so because, “the legislative device of exclusion is adopted only to exclude a part from the
whole, which but for the exclusion, continues to be a part of it” and words of exclusion are
presumed to have some meaning and are not readily recognised as mere surplusage.47
The principle was applied by the Privy Council in overruling a decision of the Bombay High
Court regarding the construction of
section 4(b) of the Bombay Revenue Jurisdiction Act, 1876 to which are appended
four exceptions by a proviso; Lord Thankerton observed: “It is a familiar principle of statutory
construction that where you find in the same section express exceptions from the operative part of
the section, it may be assumed, unless it otherwise appears from the language employed, that
these exceptions were necessary, as otherwise the subject-matter of the exceptions would have
come within the operative provisions of the section. There are four exceptions in the proviso to
section 4, which are clearly general exceptions to the operative provisions of the section. If the
construction adopted by Chandravarkar, J., in 21 Bombay 74, and adopted by the High Court in
the present case be correct, these exceptions were unnecessary.”48
The Supreme Court in construing rule 12 of the Life Insurance Corporation Rules which
prescribes a period of limitation within which a reference can be made, observed that the rule
considered without the proviso may well be construed as applying to a reference made by the
Corporation; but considering the rule along with the proviso, it was held that the rule was meant
to govern a reference by someone else and not the the Corporation.49
Further the proviso appended to section 9 of the Coal Bearing Area (Acquisition and
Development) Act, 1957, which reads ‘provided that, where the declaration relates to any land, or
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to any rights in or over land belonging to a State Government which has or have not been leased
out, no such declaration shall be made except after previous consultation with the State
Government’, was held to have an important bearing on the construction of the Act that the Union
has power to acquire the interest of a State in coal-bearing lands.50
(e) At times added to allay fears
The general rule in construing an enactment containing a proviso is to construe them together
without making either of them redundant or otiose. Even if the enacting part is clear effort is to be
made to give some meaning to the proviso and to justify its necessity. But a clause or a section
worded as a proviso, may not be a true proviso and may have been placed by way of abundant
caution. As was pointed out by Lord Herschell: “I am satisfied that many instances might be
given where provisos could be found in legislation that are meaningless because they have been
put in to allay fears when those fears were absolutely unfounded and no proviso at all was
necessary to protect the persons at whose instance they were inserted.”51 In such cases the proviso
has no effect whatsoever on the enactment and “cannot be relied on as controlling the operative
words.”52 But such a construction it appears, will be reached only when the operative words of the
enactment are abundantly clear.
The construction of
section 76 of the Companies Act, 1956 , illustrates the difficulty arising out of such
provisos.53 The argument before the Supreme Court was that the limit imposed by section
76(1)(ii) was inapplicable where the commission was claimed not out of capital but out of profits
and reliance was placed on the words, ‘capital moneys’54 as they occurred in section 76(2) as
giving the clue to the limitation imposed by section 76(1). The majority (Gajendragadkar and
Wanchoo, JJ.) rejected the contention holding that section 76(1) was unambiguous and section
76(2) was “inserted to allay fears or to remove misapprehensions.”55 Sarkar, J. (dissenting)
however, found section 76(1) not so clear and restricted its operation to payment of commission
out of capital, having regard to the provision made in section 76(2).56
The difficulty in construction arising out of inept provisos introduced to ‘remove any doubts’ is
further illustrated by section 15 of the Bankruptcy and Deeds of Arrangement Act, 1913. The
Court of Appeal, not without some difficulty, held that the proviso to section 15 could not be read
so as to contradict and render meaningless the operative words of the section giving protection to
the execution purchaser and that the proviso was inserted to remove any doubts as to the rights of
the true owner to sue the execution creditor for money he had received.57
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(f) At times a fresh enactment
The normal rule is that it is “a very dangerous and certainly unusual course to import legislation
from a proviso wholesale into the body of the statute,”58 as to do so will be to treat it “as if it were
an independent enacting clause instead of being dependent on the main enactment.”59 To read a
proviso as providing something by way of an addendum or as dealing with a subject not covered
by the main enactment or as stating a general rule as distinguished from an exception or
qualification is ordinarily foreign to the proper function of a proviso.60 However, this is only true
of a real proviso. The insertion of a proviso by the draftsman is not always strictly adhered to its
legitimate use and at times a section worded as a proviso may wholly or partly be in substance a
fresh enactment adding to and not merely excepting something out of or qualifying what goes
before.61 Referring to the rule of limitation enacted in section 20 of the Forfeiture Act, 1859,
which is introduced by way of a proviso, Sir Montague E. Smith said: “Looking at the various
parts of the Act and gathering the purpose and intention of the Legislature from the whole, this
was a substantive enactment; and that although it appears under the form of a proviso, it was a
limitation intended by the Legislature to apply to all suits brought by any person in respect of
forfeited property.”62 Similarly, it has been held by the Supreme Court that the period of
limitation contained in the proviso in sub-section (6) of section 12 of the Orissa Sales Tax Act,
1947, was an independent legislative provision and applied both to original assessments as well as
to assessments made in appeal or revision63 Same view has been taken of proviso (b) to
section 4(3)(i) of the Indian Income-tax Act, 1922 .64 In a recent Privy Council case,65
the question related to the construction of section 102(2)(a) of the Stamp Duties Act of New
South Wales. This section provided that for the purpose of death duty the estate of a deceased
person shall be deemed to include and consist of ‘all property which the deceased has disposed of
by a settlement containing any trust in respect of that property to take effect after his death’. A
proviso to the section said: ‘Provided that the property deemed to be included in the estate of the
deceased shall be the property which at the time of his death is subject to such trust.’ The Privy
Council read the proviso as a substantive provision stating that the words “provided that” were
inept and were merely used to mean “and” or “in which case”. It was, therefore, held that the
property falling within the proviso was not limited to that property which was initially the subject-
matter of disposition by the deceased but also included property which was acquired with the aid
of that property and which was subject to the trust at the time of the death of the deceased. As was
pointed out by the Supreme Court of United States : “It is a common practice in legislative
proceedings, on the consideration of bills, for parties desirous of securing amendments to them, to
precede their proposed amendments with the term ‘provided’ so as to declare that,
notwithstanding existing provisions, the one thus expressed is to prevail, thus having no greater
significance than would be attached to the conjunctive ‘but’ or ‘and’ in the same place, and
simply serving to separate or distinguish the different paragraphs or sentences.”66
A proviso will not be normally construed as reducing the purview of enactment to a nullity,67 or to
take away a right clearly conferred by the enactment68 but it has been held that if a proviso on its
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true construction “is directly repugnant to the purview, the proviso shall stand and be a repeal of
the purview, as it speaks the last intention of the makers”.69 And, on similar logic, it has also been
held that if out of two provisos the later is repugnant to the earlier one, the later prevails.70
(f1) Summary of purposes of a proviso
In Sundaram Pillai v. Pattabiraman,71 Fazal Ali J., observed that by and large a
proviso may serve the following four different purposes:
(1) qualifying or excepting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on
certain mandatory conditions to be fulfilled in order to make the enactment workable;
(3) it may be so embedded in the Act itself as to become an integral part of the enactment and
thus acquire the tenor and colour of the substantive enactment itself; and
(4) it may be used merely to act as an optional addenda to the enactment with the sole object
of explaining the real intendment of the statutory provision.
The above summary cannot however be taken as exhaustive and ultimately a proviso
like any other enactment ought to be construed upon its terms.72
(g) Distinction between proviso, exception and saving clause
A distinction is said to exist between provisions worded as ‘proviso’, ‘Exception’ or ‘Saving

Clause’. ‘Exception’ is intended to restrain the enacting clause to particular cases; ‘Proviso’, is
used to remove special cases from the general enactment and provide for them specially; and
‘Saving Clause’ is used to preserve from destruction certain rights, remedies or privileges already
existing.73 ‘Savings’ means that it saves all the rights the party previously had, not that it gives
him any new rights. Saving clauses are introduced into Acts which repeal others to safeguard
rights which, but for the savings, would be lost and these clauses are seldom used to construe the
Act.74 It has also been pointed out that a ‘saving’ repugnant to the enactment would be void for
contrariety;75 whereas as already seen a repugnant proviso is construed as repeal of the
enactment.76 A saving worded in the cloak of a proviso was, therefore, not used to determine
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whether a section in the enactment was on its own terms retrospective or not.77 This case was
followed in interpreting the saving clause (cl. 15) in the Export Control Order, 1988 to preserve
only the right which existed prior to the issuance of the order and not to confer any new or
additional right which did not then exist.78 A further distinction that used to be pointed out for
purposes of pleading was that it was for the party pleading the statute to negative the exceptions
but that it was for the defendant to raise a defence under a proviso. This distinction cannot be said
to exist in our country either in criminal79 or in civil proceedings.80
(h) Broad general rule of construction
The better rule appears to be not to give undue weight to the aforesaid distinctions which are
somewhat obscure, and to direct one's attention to the substance rather than to the form adopted
by the Legislature. Dealing with the effect of the use of the term ‘provided’ the Supreme Court of
United States pointed out: “But a proviso is not always limited in its effect to the part of the
enactment with which it is immediately associated; it may apply generally to all cases within the
meaning of the language used. Little, if any, significance is to be given to the use of the word
‘provided’. In Acts of Congress, that word is employed for many purposes. Sometimes, it is used
merely to safeguard against misinterpretation or to distinguish different paragraphs or sentences.
For the proper construction of the provision in question, consideration need not be limited to the
sub-division in which it is found; the general purpose of the section may be taken into account.”1
Referring to the proviso appended to section 3(1) of the Indian Press Act, 1910, Lord Phillimore,
differing from the construction placed on it by the majority of the Madras High Court, said: “It is
well settled that there is no magic in the words of a proviso, and that the plain meaning must be
given to the words of the Legislature.”2 Therefore, where the language used in a proviso is quite
clear and no alternative view is possible, it is futile to go into the question whether the proviso
operates as a substantive provision or only by way of exception and the plain meaning must be
adopted.3 Countering an argument against literal construction of the proviso in section 29 of the
Patents and
Designs Act , 1907-1939, based on the well-known principle that a proviso must be
construed in relation to the principal matter to which it stands as a proviso, Du Parcq, L.J.,
observed: “The object of the rule is to ensure that effect shall be given to the true intention of
Parliament, and not to prevent the Court from giving effect to that intention. Still less is the rule
designed for the purpose of defeating the intention of the Legislature.”4 Just as a proviso is
expected to except or qualify something in the enacting part and presumed to be necessary,5 so
also a saving clause may, in a proper case, negative an argument which results in making it
unnecessary.6 And just as a proviso may be redundant having been added to allay fears,7 so also a
saving clause may often be added by way of abundant caution.8 The thin distinction existing
between an ‘Exception’, a ‘Proviso’ and a ‘Saving Clause’ and use of such forms having often
been corrupted by Draftsmen, the more safe rule is stated in Kent's Commentaries on American
Law (12th Edition, Vol. 8, p. 463): “The true principle undoubtedly is, that the sound
interpretation and meaning of the statute, on a view of the enacting clause and proviso, taken and
construed together is to prevail.”9 The House of Lords has affirmed this principle;10 Viscount
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Maugham observing that there can be no doubt that the view expressed in the above quotation is
correct.11 In the same case, Lord Wright stated: “The proper course is to apply the broad general
rule of construction which is that a section or enactment must be construed as a whole, each
portion throwing light, if need be, on the rest. I do not think there is any other rule, even in the
case of a proviso in the strict and narrowest sense.”12 These views have been accepted and applied
also by the Privy Council13 and our Supreme Court.14 A sincere effort should be made to reconcile
the different provisions in case of apparent conflict bearing in mind that Parliament will not at the
same time give something by one hand and take back the same thing by another.15 In case,
however, of a real conflict, a question will arise as to which of the two conflicting provisions
should prevail. The answer to such a question should not be so much made to depend on the form
of the provisions or on their sequence in the statute as on their substance by determining which of
them is the leading provision and which the subordinate one.16
The best that can be said for preferring a construction which favours the form has been said by
Patanjali Shastri, C.J.I., while dealing with an ‘Explanation’ and the observations being general
can aptly apply to a provision bearing any other form such as ‘Proviso’, ‘Exception’, or ‘Saving
Clause’. The learned Chief Justice said: “It may be that the description of a provision cannot be
decisive of its true meaning or interpretation which must depend on the words used therein but,
when two interpretations are sought to be put upon a provision, that which fits the description
which the Legislature has chosen to apply to it, is, according to sound canons of constructions, to
be adopted, provided of course, it is consistent with the language employed in preference to the
one which attributes to the provision a different effect from what it should have according to its
description by the Legislature.”17
10. EXPLANATION
An Explanation is at times appended to a section to explain the meaning of words contained in the
section.18 It becomes a part and parcel of the enactment.19 The meaning to be given to an
‘Explanation’ must depend upon its terms, and “no theory of its purpose can be entertained unless
it is to be inferred from the language used”.20 But if the language of the Explanation shows a
purpose and a construction consistent with that purpose can be reasonably placed upon it, that
construction will be preferred as against any other construction which does not fit in with the
description or the avowed purpose.21 In the Bengal Immunity Co.'s case22 the Explanation
appended to Article 286(1) was restricted to its avowed purpose of explaining an outside sale for
purpose of clause (1) and was construed as not conferring any taxing power or as restricting the
ban imposed by clause (2) of the same Article. However, an identical Explanation contained in a
State legislation was construed differently and was held as conferring taxing power. The context
and setting of the two enactments, it was pointed out, made the entire difference although the
language was identical.23 Explanation VIII to
section 11 of the Code of Civil Procedure inserted by amendment in 1976 has been
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construed to promote the object for which it was inserted viz., that an issue once decided by a
competent court should not be litigated over again even though the court deciding it was a court
of ‘limited jurisdiction’ not competent to decide the subsequent suit. Consistent with this object
the words ‘a court of limited jurisdiction’ were construed as wide enough to include a court whose
jurisdiction is subject to pecuniary limitation.24
When the section deals with two categories of cases e.g. residential and non-residential
accommodations, an explanation to the section which is limited in scope to one category, namely
residential accommodations, can-not affect the scope of the section with reference to the second
category, namely non-residential accommodations.25 When a section contains a number of clauses
and there is an Explanation at the end of the section, it should be seen as to which clause it applies
and the clarification contained in it applied to that clause.26 But when the Explanation added
towards the end of the section opens, with the words ‘for the purpose of this section’ or ‘nothing
in this section’ it will prima facie indicate that the Explanation applies to all the clauses in the
section.27
An Explanation may be added to include something within or to exclude something from the
ambit of the main enactment or the connotation of some word occurring in it.28 Even a negative
Explanation which excludes certain types of a category from the ambit of the enactment may have
the effect of showing that the category leaving aside the excepted types is included within it.29 An
Explanation, normally, should be so read as to harmonise with and clear up any ambiguity in the
main section and should not be so construed as to widen the ambit of the section.30 It is also
possible that an Explanation may have been added in a declaratory form to retrospectively clarify
a doubtful point in law and to serve as a proviso to the main section31 or ex abundanti cautela to
allay groundless apprehensions.32
In Sundaram Pillai v. Pattabiraman, 33 Fazal Ali, J. culled out from earlier cases the
following as objects of an Explanation to a statutory provision:
(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 the 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
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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 an Act by becoming an hindrance in the
interpretation of the same.
But it would be wrong to always construe an Explanation limited to the aforesaid objects. As
earlier stated, the meaning to be given to an Explanation will really depend upon its terms and not
on any theory of its purpose.34
11. SCHEDULES
Schedules appended to statutes form part of the statute.35 They are added towards the end and
their use is made to avoid encumbering the sections in the statute with matters of excessive detail.
They often contain details and forms for working out the policy underlying the sections of the
statute,36 and at times they contain transitory provisions which remain in force till the main
provisions of the statute are brought into operation.37 Occasionally they contain such rules and
forms which can be suitably amended according to local or changing conditions by process
simpler than the normal one required for amending other parts of the statute.38 The division of a
statute into sections and Schedules is a mere matter of convenience and a Schedule therefore may
contain substantive enactment39 which may even go beyond the scope of a section to which the
Schedule may appear to be connected by its heading. In such a case a clear positive provision in a
Schedule may be held to prevail over the prima facie indication furnished by its heading and the
purpose of the Schedule contained in the Act.40 However, if the language is not so clear, the
provision in the Schedule may be construed as confined to the purpose indicated by its heading
and the section in the statute to which it appears connected.41 In case of conflict between the body
of the Act and the Schedule the former prevails.42 Much importance ordinarily is not given to the
forms in the Schedule,43 as they are intended “to suit the generality of cases rather than all
cases,”44 and they give way to clear provision of enactment.45 But in case of doubtful words in the
enactment a scheduled form may be utilised “for the purpose of throwing light” on their
meaning.46 At times, the prescribed form may contain some imperative requirement and may be
mandatory, e.g., a form of return of agricultural income, incorporated in rules to the Bengal
Agricultural
Income-tax Act , 1944, which contained a footnote requiring that the declaration of
the return of income ‘shall be signed in the case of an individual by the individual himself’ was
construed as mandatory; and it was held that it was not a sufficient compliance that the return was
signed by an illiterate person by the pen of his son.47 Whether a particular requirement prescribed
by a form is mandatory or directory may have to be decided in each case having regard to the
purpose or object of the requirement and its inter-relation with other enacting provisions of the
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statute, and it is difficult to lay down any uniform rule.48 Forms prescribed under rules become
part of rules and, therefore, if the Act confers an authority to prescribe by rules particulars of an
application, the authority may be exercised by prescribing a form of application which indicates
the particulars.49
12. TRANSITIONAL PROVISION
At times a statute contains a transitional provision which enacts as to how the statute will operate
on the facts and circumstances existing on the date it comes into operation.50 However, “it is not
possible to give a definitive description of what constitutes a transitional provision”.51 Therefore,
the construction of such a provision must depend upon its own terms.52 “One feature of a
transitional provision is that its operation is expected to be temporary, in that it becomes spent
when all the past circumstances with which it is designed to deal have been dealt with although it
may be envisaged that that could take a considerable period of time while the primary legislation
continues to deal indefinitely with the new circumstances which arise after its passage.”53Section
30 of the Land Acquisition (Amendment) Act, 1984 is one such provision which enacts as to what
extent the new provisions will apply to proceedings pending on the commencement of the
Amending Act or in other words as to how far the new provisions which amended
substantive provisions of the parent Act are retrospective.54 The statute may instead of itself
enacting a provision as to how the new provisions in the statute will apply to existing facts and
circumstances may leave this to be laid down by delegated legislation to be made under the
statute.55 A transitory provision may also be of the nature that it remains in force till the main
provisions of the statute come into operation.56
1 R. v. Secretary of State for Foreign and Commonwealth Affairs,

(1994) 1 All ER 457 , p. 465 :
1994 QB 552 :
(1994) 2 WLR 115 (QBD). (The days are long since past when courts declined to regard the
long title as an aid to construction).
2 Fielding v. Morley Corpn.,

(1899) 1 Ch 1 , pp. 3, 4, (lindley, M.R.) affd. sub-nom Fielden v. Morley
Corpn.,
(1900) AC 133 (HL); Vacher & Sons Ltd. v. London Society of Compositors,
(1913) AC 107 :
(1911-13) All ER Rep 241 , pp. 244, 252 (HL); Aswinikumar Ghose v. Arabinda Bose,
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 388 :
1953 SCR 1 [
LNIND 1952 SC 94 ]; Poppatlal Shah v. State of Madras,
AIR 1953 SC 274 [
LNIND 1953 SC 38 ], p. 276 :
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1953 SCR 677 [

LNIND 1953 SC 38 ]; Kedar Nath Bajoria v. State of West Bengal,
AIR 1953 SC 404 [
LNIND 1953 SC 67 ], pp. 406, 407 :
1954 SCR 30 [
LNIND 1953 SC 67 ]; Bishwambhar Singh v. State of Orissa,
AIR 1954 SC 139 [
LNIND 1953 SC 122 ], p. 144 :
1954 SCR 842 [
LNIND 1953 SC 122 ]; Kerala Education Bill, 1957, In re,
AIR 1958 SC 956 , p. 974 :
1959 SCR 995 .

(1911-13) All ER Rep 241 :
1913 AC 107 (HL); National Telephone Co. Ltd. v. Postmaster General,
(1913) AC 546 , p. 560 (HL); Boaler, Re,
(1915) 1 KB 21 , pp. 27, 35 (CA). But see Middle-sex Justices v. R,
(1884) 9 AC 757 , p. 772 (HL). See Union of India v. Elphinstone Spinning
& Weaving Co. Ltd.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], pp. 563, 564 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 740 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ], p. 140 (1st column last 7 lines p. 740 of AIR at one place it is observed:
“the preamble being only an abbreviation for purposes of reference is not a useful aid to construction.” Here by clerical mistake
‘short title’ is referred to as ‘preamble’.)
4 Vacher & Sons v. London Society of Compositors, supra, p. 252.
5 Aswinikumar Ghose v. Arabinda Bose,

AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 388 :
1953 SCR 1 [
LNIND 1952 SC 94 ].
6 Poppatlal Shah v. State of Madras,

AIR 1953 SC 274 [
LNIND 1953 SC 38 ]:
1953 SCR 677 [
LNIND 1953 SC 38 ].
7 Kedar Nath Bajoria v. State of Bengal,

AIR 1953 SC 404 [
LNIND 1953 SC 67 ]:
1954 SCR 30 [
LNIND 1953 SC 67 ].
8 Bishwambhar Singh v. State of Orissa,

AIR 1954 SC 139 [
LNIND 1953 SC 122 ]:
1954 SCR 842 [
LNIND 1953 SC 122 ]; Kerala Education Bill, In re,
AIR 1958 SC 956 : 1959 SCR 995.
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9 R. v. Bates and Russell,

(1952) 2 All ER 842 , p. 844; Re, Wykes' Will Trusts, Riddington v. Spencer,
(1961) 1 All ER 470 , p. 475; Ward v. Holman,
(1964) 2 All ER 729 , p. 731; Manoharlal v. State of Punjab,
AIR 1961 SC 418 [
LNIND 1960 SC 265 ], p. 419 :
(1961) 2 SCR 343 [
LNIND 1960 SC 265 ]; R. v. Galvin,
(1987) 2 All ER 851 , p. 855 (CA).
10 R. v. Bates and Russell,

(1952) 2 All ER 842 , p. 844.
11 Manoharlal v. State of Punjab,

AIR 1961 SC 418 [
LNIND 1960 SC 265 ], p. 419 :
1961 (2) SCR 343 [
LNIND 1960 SC 265 ].
12 It was pointed out by justice M. Hidayatullah in Constitutional Law of India, Vol. 1, p. 39 (published by the Bar
Council of India, Trust, 1984) that the importance of Preamble to statutes was expressed by Plato 2000 years back (Plato: ‘The
Laws’—Penguin classics, p. 185) who said that Preamble to enacted laws were essential and added in explanation: “The ‘dictatorial
prescription’....... is the law pure and simple; and the part that comes before it, which is essentially ‘persuasive’........ has an
additional function analogous to that of a preamble in a speech. It seems obvious to me that the reason why the legislator gave the
entire persuasive address was to make the persons to whom he promulgated his law accept his orders—the law—in a more
cooperative frame of mind and with a correspondingly greater readiness to learn. That is why, as I see it, the element ought properly
to be termed not the ‘text’ of the law, but the preamble.”
13 For example see Secretary, Regional Transport Authority v. D.P. Sharma,

AIR 1989 SC 509 [
LNIND 1988 SC 580 ], p. 511 :
1988 (4) JT 666 [
LNIND 1988 SC 581 ] : 1989 Supp (1) SCC 407 (Preamble of the Karnataka Contract Carriages
Acquisition Act, 1974).
14 Brett v. Brett,
(1826) 162 ER 456 , pp. 458, 459.
15 (1844) 11 Cl & F 85, p. 143.
16 See Stowel v. Lord Zouch, (1569) 1 Plowd 353, p. 369 : 75 ER 536.
17 Sussex Peerage case, (1844) 11 Cl & Fin 85 : 8 ER 1034 (HL), referred to in

(1891-94) All ER Rep 28 , p. 36 :
1891 AC 531 (HL) (lord halsbury, L.C.) Bhola Prasad v. Emperor,
AIR 1942 FC 17 , p. 21 (gwyer, C.J.); see further A. Thangal Kunju Musaliar
v. M. Venkatachala Potti,
AIR 1956 SC 246 [
LNIND 1955 SC 116 ], p. 264 :
(1955) 2 SCR 1196 [
LNIND 1955 SC 116 ] (bhagwati, J.) Arnit Das v. State of Bihar,
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JT 2000 (6) SC 320 [

LNIND 2000 SC 859 ], p. 333 :
AIR 2000 SC 2264 [
LNIND 2000 SC 859 ], p. 2271 :
(2000) 5 SCC 488 [
LNIND 2000 SC 859 ].
18 A.G. v. HRH Prince Ernest Augustus,

(1957) 1 All ER 49 :
1957 AC 436 (HL).
19 Ibid, pp. 55, 57, 61.
20 Ibid, pp. 55, 57, 62.
21 Ibid, pp. 54, 58, 60, 62.
22 Union of India v. Elphinstone Spinning & Weaving Co. Ltd.,

JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 564 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 740 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ] (
Constitution bench).
23 Lord Simonds is here referring to the rule laid down by lord davey in Powell v. Kemption Park Race-course Co. Ltd.,
(1899) AC 143 , to the effect: “You must not create or imagine an ambiguity in order to bring in
the aid of preamble”.
24 A.G. v. HRH Prince Ernest Augustus of Hanover,

(1957) 1 All ER 49 , pp. 54, 55 :
1957 AC 436 (HL).
25 Ibid, pp. 57, 58.
26 Ibid, p. 62.

(1957) 1 All ER 49 , p. 60 :
1957 AC 436 (HL).
28 Burakar Coal Co. Ltd. v. Union of India,

AIR 1961 SC 954 [
LNIND 1961 SC 55 ], pp. 956, 957 :
1962 (1) SCR 44 [
LNIND 1961 SC 55 ]. See further State of Rajasthan v. Leela Jain,
AIR 1965 SC 1296 [
LNIND 1964 SC 228 ], p. 1299 :
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1965 (1) SCR 276 [

LNIND 1964 SC 228 ]. (“The preamble may, no doubt, be used to solve any ambiguity or to fix
the meaning of words which may have more than one meaning, but it can, however, not be used to eliminate as redundant or
unintended, the operative provisions of a statute.”) Venkataswami R. Naidu v. Narasram Naraindas,
AIR 1966 SC 361 [
LNIND 1965 SC 152 ], p. 363 :
1966 (1) SCR 110 [
LNIND 1965 SC 152 ]; Tribhuvan Parkash Nayyar v. Union of India,
AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 543 :
1969 (3) SCC 99 [
LNIND 1969 SC 388 ]; Y.A. Mamarde v. Authority under the
Minimum Wages Act ,
AIR 1972 SC 1721 [
LNIND 1972 SC 220 ], p. 1726 :
(1972) 2 SCC 108 [
LNIND 1972 SC 220 ]; A.C. Sharma v. Delhi Administration,
AIR 1973 SC 913 [
LNIND 1973 SC 30 ], p. 917 :
1973 SCC (Cri) 608 ; Rashtriya Mill Mazdoor Sangh v. National Textile Corporation,
1995 (6) Scale 609 , p. 617 :
AIR 1997 SC 710 , p. 713; Munishwar Pandey v. Ramjeet Tiwari,
1996 (8) Scale 736 [
LNIND 1996 SC 2690 ], p. 750 :
AIR 1997 SC 1571 [
LNIND 1996 SC 2690 ], p. 1583; Arnit Das v, State of Bihar,
JT 2000 (6) SC 320 [
LNIND 2000 SC 859 ], p. 333 :
AIR 2000 SC 2264 [
LNIND 2000 SC 859 ], p. 2271 :
(2000) 5 SCC 488 [
LNIND 2000 SC 859 ]; Union of India v. Elphinstone Weaving and Spinning Co. Ltd.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 564 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 740 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ].

(1957) 1 All ER 49 :
1957 AC 436 (HL) text and note 19 supra. See further Chatper 1, title 3 “Statute must be read
as a whole in its context”. Also see Chapter 1, title 6 “Appraisal of the Principle of plain meaning”.
30 A.G. v. HRH Prince Ernest Augustus of Hanover, supra, p. 62 (lord somervell). This case was
recently discussed in Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd.,
(1999) 2 All ER 791 , pp. 805, 806 (CA).
31 Sardar Inder Singh v. State of Rajasthan,

AIR 1957 SC 510 [
LNIND 1957 SC 13 ], p. 516 :
1957 SCR 605 [
LNIND 1957 SC 13 ].
32 Ibid, pp. 516, 517.
33 Ibid; Bhatnagar & Co. Ltd. v. Union of India,

AIR 1957 SC 478 [
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LNIND 1957 SC 22 ], pp. 485, 486 :

1957 SCR 701 [
LNIND 1957 SC 22 ]. See further Bishwambhar Singh v. State of Orissa,
AIR 1954 SC 139 [
LNIND 1953 SC 122 ], p. 144 :
1954 SCR 842 [
LNIND 1953 SC 122 ]; Kerala Education Bill, In re,
AIR 1958 SC 956 , p. 974 :
1959 SCR 995 .(These cases relate to use of Long Title and Preamble and are noticed in title 1
‘Long Title’ text and note 8, p. 153).
34 Maharao Sahab Shri Bhimsinghji v. Union of India,

AIR 1981 SC 234 , p. 237 :
(1981) 1 SCC 166 .
35 Motipur Zamindary Company (Private) Ltd. v. State of Bihar,

AIR 1962 SC 660 [
36 Ibid., p. 662.
37 Burrakur Coal Co. v. Union of India,

AIR 1961 SC 954 [
LNIND 1961 SC 55 ], p. 957 :
1962 (1) SCR 44 [
LNIND 1961 SC 55 ].
38 Union of India v. Elphinstone Spinning & Weaving Co. Ltd.,

AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 741 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ].
39 Tribhuvan Parkash Nayyar v. Union of India,

AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 543 :
1969 (3) SCC 99 [
LNIND 1969 SC 388 ].
40 Bhola Prasad v. Emperor,

AIR 1942 FC 17 , p. 21 :
1942 FLR 17 : 43 Cri LJ 481. (The case refers to a preamble inserted by the Bihar Excise
(Amendment) Act, 1940 in the Bihar & Orissa
Excise Act , 1915).
41 Craies : Statute Law, 7th Edn., p. 206.
42 For further study see: ‘Preamble’ contributed by justice G.P. Singh in ‘Constitutional Law of India’, Vol. 1, pp. 13 to
44 published by the Bar Council of India Trust under the Chief Editorship of Justice M. Hidayatullah, (1984); and ‘Preamble’ by
Justice R.C. Lahoti, Anundoram Borooah Law Lecture, Published by Eastern Book Company, Lucknow (2004).
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43 Shiva Rao, The Framing of India's

Constitution , A Study, p. 128.
44 Ibid., p. 130.
45 Constituent Assembly Debates, Vol. X, pp. 429-56.
46 Kesavananda v. State of Kerala,

AIR 1973 SC 1461 [
LNIND 1973 SC 154 ]:
(1973) 4 SCC 225 [
LNIND 1973 SC 154 ]; Minerva Mills Ltd. v. Union of India,
AIR 1980 SC 1789 [
LNIND 1980 SC 257 ]:
1980 (3) SCC 625 [
LNIND 1980 SC 257 ]. See further Behram Khurshid Pesikaka v. State of
Bombay,
AIR 1955 SC 123 [
LNIND 1954 SC 116 ], p. 146 :
1955 (1) SCR 613 [
LNIND 1954 SC 116 ]; Kerala Education Bill, In re, 1957,
AIR 1958 SC 956 , p. 965 :
1959 SCR 995 ; Basheshar Nath v. Income-tax Commissioner,
AIR 1959 SC 149 [
LNIND 1958 SC 147 ], pp. 158, 160 : 1959 Supp (1) SCR 528. These cases are noticed by shelat
and grover, JJ. in Kesavananda, supra, at p. 1579. The contrary opinion expressed in the reference on the Agreement relating to
Berubari Union and Exchange of Enclaves,
AIR 1960 SC 845 , p. 856 :
(1960) 3 SCR 250 was overruled in Kesavananda, supra.
47 Indira Nehru Gandhi (Smt.) v. Raj Narain,

AIR 1975 SC 2299 (para 666) : 1975 Supp SCC 1; Raghunathrao Ganpatrao v. Union of India,
AIR 1993 SC 1267 [
LNIND 1993 SC 92 ]: 1994 Supp (1) SCC 191, pp. 1307, 1308 :
1993 (1) JT 374 [
LNIND 1992 SC 845 ].
48 Raghunathrao Ganpatrao v. Union of India, supra, p. 1308.

AIR 1973 SC 1461 [
LNIND 1973 SC 154 ]:
(1973) 4 SCC 225 [
LNIND 1973 SC 154 ]; Minerva Mills Ltd. v. Union of India,
AIR 1980 SC 1789 [
LNIND 1980 SC 257 ], pp. 1798, 1806 :
1980 (3) SCC 625 [
LNIND 1980 SC 257 ].
50 Minerva Mills Ltd. v. Union of India,

AIR 1980 SC 1789 [
LNIND 1980 SC 257 ], pp. 1798-99 :
1980 (3) SCC 625 [
LNIND 1980 SC 257 ].
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51 Excel Wear v. Union of India,

AIR 1979 SC 25 [
LNIND 1978 SC 270 ], p. 36 :
(1978) 4 SCC 224 [
LNIND 1978 SC 270 ] : 1978 SCC (L&S) 509; Sanjeev Coke Manufacturing Company v. Bharat
Coking Coal Ltd.,
AIR 1983 SC 239 [
LNIND 1982 SC 193 ], p. 251 :
(1983) 1 SCC 147 [
LNIND 1982 SC 193 ].
52 D.S. Nakara v. Union of India,

AIR 1983 SC 130 [
LNIND 1982 SC 208 ], p. 139 :
(1983) 1 SCC 305 [
LNIND 1982 SC 208 ]; Kerala Hotel and Restaurant Association v. State of Kerala,
AIR 1990 SC 913 [
LNIND 1990 SC 100 ], p. 916 :
(1990) 2 SCC 502 [
LNIND 1990 SC 100 ]; Dharwad Distt. P.W.D. Literate Daily Wages Employees Association v.
State of Karnataka,
AIR 1990 SC 883 [
LNIND 1990 SC 863 ], pp. 887, 888 :
1990 (2) SCC 396 [
LNIND 1990 SC 863 ].
53 Atam Prakash v. State of Haryana,

(1986) 2 SCC 249 [
LNIND 1986 SC 47 ] :
AIR 1986 SC 859 [
LNIND 1986 SC 47 ].
54 Hammer Smith & City Ry. v. Brand,

(1869) LR 4 HLC 171; Ingils v. Robertson,
(1898) AC 616 , pp. 624, 629 (HL); Toronto Corporation v. Toronto Ry.,
(1907) AC 315 , p. 324 (PC); Martins v. Fowler,
(1926) AC 746 , p. 750 (PC); Qualter Hall & Co. Ltd. v. Board of Trade,
(1961) 3 All ER 389 , pp. 392, 394 (CA); Bhinka v. Charan Singh,
AIR 1959 SC 960 [
LNIND 1959 SC 77 ], p. 966 : 1959 Supp (2) SCR 798; Director of Public Prosecutions v.
Schildkamp,
(1969) 3 All ER 1640 (HL).
55 Toronto Corporation v. Toronto Ry. Co.,

(1907) AC 315 , p. 324 (PC) (Lord Collins); referred to in Ralph George Cariton, Re,
(1945) 1 All ER 559 , p. 562; Qualter Hall & Co. v. Board of Trade, supra, p. 392.
56 Martins v. Fowler, supra p. 750; referred to in Qualter Hall & Co. v. Board of Trade, supra, p. 392.
57 R. v. Surrey (North Eastern, Area) Assessment Committee,

(1947) 2 All ER 276 , pp. 278, 279.
Mr.Srikanth -
Page 46 of 82
58 CIT v. Ahmedbhai Umarbhai,

AIR 1950 SC 134 [
LNIND 1950 SC 16 ], p. 141 :
1950 SCR 335 [
LNIND 1950 SC 16 ].
59 Frick India Ltd. v. Union of India,

AIR 1990 SC 689 [
LNIND 1989 SC 638 ], p. 693 :
(1990) 1 SCC 400 [
LNIND 1989 SC 638 ]. Forage & Co. v. Municipal Corporation of Greater Bombay,
JT 1999 (9) SC 57 , p. 61 :
AIR 2000 SC 378 [
LNIND 1999 SC 1374 ], p. 380 :
(1999) 8 SCC 577 [
LNIND 1999 SC 1374 ]. Applied in
60 Raichurmatham Prabhakar Rawatmal Dugar,

(2004) 4 SCC 766 [
LNIND 2004 SC 462 ], p. 775 :
AIR 2004 SC 3625 [
LNIND 2004 SC 462 ], p. 3631 (9th Edn., pp. 153-155 of this book is referred).
61 Ibid., p. 775 (SCC) : p. 3631 (AIR).
62 Director of Public Prosecutions v. Schildkamp,

(1969) 3 All ER 1640 :
1971 AC 1 (HL).

(1969) 3 All ER 1640 , p. 1641 :
(1970) 2 WLR 279 (HL).
64 Ibid., p. 1656.
65 Ibid., pp. 1643, 1644.
66 Ibid., p. 1650.

(1969) 3 All ER 1640 , pp. 1655, 1656, 1657 :
1971 AC 1 :
(1970) 2 WLR 279 .
68 Beswick v. Beswick,
(1967) 2 All ER 1197 , pp. 1204, 1207 :
(1967) 3 WLR 932 (HL).
Mr.Srikanth -
Page 47 of 82
69 Bhinka v. Charan Singh,

AIR 1959 SC 960 [
LNIND 1959 SC 77 ]: 1959 Supp (2) SCR 798.
70 Maxwell on Statutes, 11th Edition, pp. 48, 49.
71 Bhinka v. Charan Singh,

AIR 1959 SC 960 [
72 N.C. Dhondial v. Union of India,

AIR 2004 SC 1272 [
LNIND 2003 SC 1075 ]:
(2004) 2 SCC 579 [
LNIND 2003 SC 1075 ].
73 Ibid., p. 1278 (AIR) : p. 587 (SCC).
74 Bharat Damodar Kale v. State of A.P.,

AIR 2003 SC 4560 [
LNIND 2003 SC 856 ], p. 4563 :
(2003) 8 SCC 559 [
LNIND 2003 SC 856 ] See further Iqbal Singh Marwah v. Meenakshi Marwah,
AIR 2005 SC 2119 [
LNIND 2005 SC 261 ], p. 2125. (Heading of Chapter XXVI
Cr.P.C. relied upon for construing section 195).
75 Qualter Hall & Co. v. Board of Trade,

(1961) 3 All ER 389 , pp. 392, 393, 394 (CA).
76 Halsbury : Laws of England, Vol. 36 (3rd Edition), p. 373. In two cases, marginal notes were used by Court of Appeal
as an aid to construction: See Stephens v. Cuck-field Rural District Council,
(1960) 2 All ER 716 , p. 720 (CA); and Cohen (a Bankrupt), Re,
(1961) 1 All ER 646 , p. 656 (CA). But in Chandler v. Director of Public Prosecutions,
(1962) 3 All ER 142 , pp. 145, 146 :
(1962) 2 WLR 694 :
1964 AC 763 (HL), lord reid expressed the view that marginal notes cannot be used as an aid to
construction. In Director of Public Prosecution v. Schildkamp,
(1969) 3 All ER 1640 , p. 1641 :
1971 AC 1 :
(1970) 2 WLR 279 (HL), lord reid again stated that “a side-note is a poor guide to the scope of a
section for it can do no more than indicate the main subject with which the section deals”. In the same case lord upjohn said (p.
1657): “A side-note is a very brief precis of the section and therefore forms a most unsure guide to the construction of the enacting
section, but it is as much a part of the Bill as a cross-heading and I can conceive of cases where very rarely it might throw some
light on the intentions of Parliament just as a punctuation mark.” And lord dilhorne (p. 1650) also agreed with this view. See
further Karnatak Rare Earth v. Senior Geologist Department of Mines and Geology,
(2004) 2 SCC 783 [
LNIND 2004 SC 109 ], p. 793 (para 14) :
AIR 2004 SC 2915 [
LNIND 2004 SC 109 ], p. 2920, where reference is made to 8th Edn., p. 147 of this book and to
lord reid and lord upjohn's, opinions.
77 Balraj Kunwar v. Jagatpal Singh, ILR 26 All 393, p. 406 : 31 IA 132 : 1 All LJ 384 (PC).
Mr.Srikanth -
Page 48 of 82
78 C.I.T. v. Ahmedbhai Umarbhai & Co.,

AIR 1950 SC 134 [
LNIND 1950 SC 16 ], p. 141 :
1950 SCR 335 [
LNIND 1950 SC 16 ]; Board of Muslim Waqfs, Rajasthan v. Radhakishan,
AIR 1979 SC 289 [
LNIND 1978 SC 302 ], pp. 295, 296 :
(1979) 2 SCC 468 [
LNIND 1978 SC 302 ]; Kalawati Bai v. Soiryabai,
AIR 1991 SC 1581 [
LNIND 1991 SC 254 ], p. 1586 :
(1991) 3 SCC 410 [
LNIND 1991 SC 254 ]; Guntaiah v. Hambamma,
(2005) 6 SCC 228 [
LNIND 2005 SC 546 ], pp. 233, 234 (para 11). But see Uttam Das Chela
Sunderdas v. Shiromani Gurdwara Prabandhak Committee,
1996 (4) Scale 608 [
LNIND 1996 SC 996 ], pp. 613, 614 :
AIR 1996 SC 2133 [
LNIND 1996 SC 996 ], p. 2137 :
(1996) 5 SCC 71 [
LNIND 1996 SC 996 ] (para 16), where contrary view is expressed. But it appears that the court
in this case was dealing with ‘Heading’ and not ‘Marginal note’ and no final opinion was expressed.
79 Emperor v. Sadashiv,
AIR 1947 PC 82 , p. 84 : 74 IA 89 : 48 Cri LJ 791.
80 Nalinakhya Bysack v. Shyam Sundar Haddar,

AIR 1953 SC 148 [
LNIND 1953 SC 11 ], p. 150 :
1953 SCR 533 [
LNIND 1953 SC 11 ]; Western India Theatres Ltd. v. Municipal Corporation, Poona,
AIR 1959 SC 586 [
LNIND 1958 SC 204 ], p. 589 : 1959 Supp (2) SCR 71; Nandini Satpathy v. P.C. Dani,
AIR 1978 SC 1025 , p. 1039 :
1978 (2) SCC 424 .
81 R v. Montila,
(2005) 1 All ER 113 , p. 124 (HL).
82 Bengal Immunity Co. Ltd. v. State of Bihar,

AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 676 :
(1955) 2 SCR 603 [
LNIND 1955 SC 122 ]. For another example see Golaknath v. State of Punjab,
AIR 1967 SC 1643 [
LNIND 1967 SC 49 ], p. 1658 :
1967 (2) SCR 762 [
LNIND 1967 SC 49 ], where marginal note to Art. 368 was referred.
83 V.B. Prasad v. Manager P.M.D.U.P. School,

AIR 2007 SC 2053 [
LNIND 2007 SC 449 ](para 11) :
(2007) 5 JT 378 ; Punjab Electricity Board v. Zora Singh,
(2005) 6 SCC 776 [
LNIND 2005 SC 609 ] (paras 23, 24) :
Mr.Srikanth -
Page 49 of 82
AIR 2006 SC 182 [

LNIND 2005 SC 609 ].
84 IRC v. Hinchy,
(1960) 1 All ER 505 , p. 510 :
1960 AC 748 (HL) (Lord Reid). In Director of Public Prosecutions v. Schildkamp,
(1969) 3 All ER 1640 , p. 1641 :
1971 AC 1 :
(1970) 2 WLR 279 (HL), lord reid said: “Punctuation can be of some assistance in construction”.
In Hanlon v. Law Secretary,
(1980) 2 All ER 199 , p. 221 :
(1981) AC 124 :
(1980) 2 WLR 756 (HL). lord lowry observed: “I consider that not to take account of
punctuation disregards the reality that literate people such as parliamentary draftsman, punctuate when they write, if not identically
at least with grammatical principles. Why should not other literate people such as judges look at the punctuations in order to
interpret the meaning of the legislation as accepted by Parliament?”
85 Maharani of Burdwan v. Krishna Kamini Dasi, ILR 14 Cal 365, p. 372 (PC).
86 Lewis Pugh Evans Pugh v. Ashutosh Sen,

AIR 1929 PC 69 , p. 71 : 56 IA 93.
87
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 383 :
1953 SCR 1 [
LNIND 1952 SC 94 ].
88 A. K. Gopalan v. State of Madras,

AIR 1950 SC 27 [
LNIND 1950 SC 22 ], p. 45 :
1950 SCR 88 [
LNIND 1950 SC 22 ].
89 A.K. Gopalan v. State of Madras, supra.
90 Ibid, see further S. Krishnan v. State of Madras,

AIR 1951 SC 301 [
LNIND 1951 SC 35 ], p. 304 :
1951 SCR 621 [
LNIND 1951 SC 35 ].
91
AIR 1973 SC 1425 [
LNIND 1973 SC 138 ]:
1973 SCC (Cri) 618 [
LNIND 1973 SC 138 ] :
(1973) 1 SCC 856 [
LNIND 1973 SC 138 ].
Mr.Srikanth -
Page 50 of 82
93
AIR 1979 SC 564 [
LNIND 1979 SC 38 ], p. 565 :
(1979) 1 SCC 568 [
LNIND 1979 SC 38 ] :
1979 SCC (Cri) 356 .
94
AIR 1988 SC 1841 [
LNIND 1988 SC 380 ]:
1988 (4) SCC 21 [
LNIND 1988 SC 380 ]. See further Sama Alana Abdulla v. State of Gujarat,
1995 (6) Scale 407 , pp. 409, 410 :
AIR 1996 SC 569 [
LNIND 1995 SC 1134 ], p. 571. (Construing the words “any secret official code or password, or
any sketch, plan, model etc.”, it was held that the presence of comma after password showed that the adjective ‘secret’ only
qualified the expression “official code or password”).
95 Pope Appliance Corporation v. Spanish River Pulp & Paper Mills Ltd.,
AIR 1929 PC 38 , p. 45.
96 Mahomed Shydol Ariffin v. Yeah Oai Gark, 43 IA 256, p. 263 :

(1916) 2 AC 575 , p. 581 :
AIR 1916 PC 247 (PC); Muralidhar Chatterjee v. International Film Co.,
AIR 1943 PC 34 , p. 38 : 70 IA 35; Sopher v. Administrator General of Bengal,
AIR 1944 PC 67 , p. 69; Jumma Masjid v. Kodimaniandra Deviah,
AIR 1962 SC 847 [
LNIND 1962 SC 4 ], p. 851 : 1962 Supp (2) SCR 554. But see Mahesh Chandra
Sharma v. Raj Kumari Sharma (Smt.),
AIR 1996 SC 869 [
LNIND 1995 SC 1223 ], p. 877 :
(1996) 8 SCC 128 [
LNIND 1995 SC 1223 ], where it is said that “illustrations to the section are parts of the section
and help to elucidate the principle of the section”.
1 Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji,

AIR 1938 PC 67 [
LNIND 1937 PC 91 ], p. 70 : 65 IA 66; Aniruddha Mitra v. Administrator General of Bengal,
AIR 1949 PC 244 , p. 250; Shambhu Nath Mehra v. State of Ajmer,
AIR 1956 SC 404 [
LNIND 1956 SC 23 ], p. 406 :
1956 SCR 199 [
LNIND 1956 SC 23 ]; Lalit Mohan Pandey v. Pooran Singh,
AIR 2004 SC 2303 [
LNIND 2004 SC 569 ], p. 2315 :
(2004) 6 SCC 626 [
LNIND 2004 SC 569 ], p. 645.
2 Mahomed Syedol Ariffin v. Yeah Oai Gark, supra.
3 Section 32 : “Statements, written or verbal of relevant facts made by a person who is dead..... are themselves relevant
facts in the following cases: * * * * * * * * * (5) When the statement relates to the existence of any relationship by blood, marriage
or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special
means of knowledge, and when the statement was made before the question in dispute was raised.”
Mr.Srikanth -
Page 51 of 82
4 Mohomed Shydol Ariffin v. Yeah Oai Gark, 43 IA 256, p. 263 :

AIR 1916 PC 242 : referred to in referred to in Jumma Masjid v. Kodimaniandra Deviah,
AIR 1962 SC 847 [
5 Muralidhar Chatterjee v. International Film Co.,

AIR 1943 PC 34 : 70 IA 35.
6 Ibid., p. 38.
7 Sopher v. Administrator General of Bengal,

AIR 1944 PC 67 , p. 69.
8 43 IA 256, p. 263 :
AIR 1916 PC 242 .
9 Jumma Masjid v. Kodimaniandra Deviah,

AIR 1962 SC 847 [
10 Bhiva v. State of Maharashtra,

AIR 1963 SC 599 [
LNIND 1962 SC 283 ], p. 601 :
1963 (3) SCR 830 [
LNIND 1962 SC 283 ].
11 Ibid., p. 600; Jnanendra Nath Ghose v. State of

W.B.,
AIR 1959 SC 1199 [
LNIND 1959 SC 109 ], p. 1202 :
1960 (1) SCR 126 [
LNIND 1959 SC 109 ]; 1965 SCN 246 ; Hussain Umer Kochra v. K.S. Dalip Singhji,
AIR 1970 SC 45 [
LNIND 1969 SC 147 ]:
1969 (3) SCC 429 [
LNIND 1969 SC 147 ]; Balwant Kaur v. Union Territory of Chandigarh,
AIR 1988 SC 139 [
LNIND 1987 SC 738 ], p. 142 :
(1988) 1 SCC 1 [
LNIND 1987 SC 738 ]; Shanker v. State of Tamil Nadu,
JT 1994 (3) SC 54 [
LNIND 1994 SC 377 ]:
1994 (4) SCC 478 [
LNIND 1994 SC 377 ] :
1994 Cri LJ 3071 ; K. Hashim v. State of T.N.,
(2005) 1 SCC 237 [
LNIND 2004 SC 1142 ], pp. 248 to 251.
12 Sarwan Singh Rattan Singh v. State of Punjab,

AIR 1957 SC 637 [
LNIND 1957 SC 39 ]:
1957 SCR 953 [
Mr.Srikanth -
Page 52 of 82
LNIND 1957 SC 39 ]; R.R. Chari v. State of U.P.,

AIR 1962 SC 1573 [
LNIND 1962 SC 137 ]:
1963 (1) SCR 121 [
LNIND 1962 SC 137 ]; Bhiva v. State of Maharashtra, supra; Saravanabhavan and
Govindaswami v. State of Madras,
AIR 1966 SC 1273 [
LNIND 1965 SC 390 ]:
1966 Cr LJ 949 ; Balwant Kaur v. Union Territory of Chandigarh, supra.
14 Bengal & Nagpur Railway v. Ruttanji Ramji,

AIR 1938 PC 67 [
LNIND 1937 PC 91 ], p. 70 : 65 IA 66; referred to in Union of India v. Rallia Ram,
AIR 1963 SC 1685 [
LNIND 1963 SC 120 ], pp. 1694, 1695 :
1964 (3) SCR 164 [
LNIND 1963 SC 120 ].
15 Aniruddha v. Administrator General of Bengal,

AIR 1949 PC 244 , p. 250.
16 Shambhu Nath Mehra v. State of Ajmer,

AIR 1956 SC 404 [
LNIND 1956 SC 23 ], p. 406 :
1956 SCR 199 [
LNIND 1956 SC 23 ].
17 Knightsbridge Estates Trust Ltd. v. Byrne,

(1940) AC 613 :
(1940) 2 All ER 401 , p. 407 (HL); H.H. Prince Azam Jha Bahadur v. Expenditure Tax Officer,
Hyderabad,
AIR 1972 SC 2319 [
LNIND 1971 SC 423 ], p. 2324 :
1971 (3) SCC 621 . The following guidelines in Canada as to when to use definitions in Acts
appear to be fairly universal: “Definitions should be used sparingly and only for the following purposes: (a) to establish that a term
is not being used in a usual meaning or is being used in one of the several meanings; (b) to avoid excessive repetition; (c) to allow
the use of an abbreviation; (d) to signal the use of unusual or novel term.” Quoted from Bilika H. Simamba, ‘The Placing and Other
Handling of Definitions’, (2006) 27 Statute Law Review 73, pp. 75, 76.
18 Life Ins. Corporation of India v. Crown Life Insurance Co.,

AIR 1965 SC 1985 , p. 1986 :
1965 (3) SCR 474 .
19 Tata Tea Ltd. v. State of Bombay,

AIR 1988 SC 1435 [
LNIND 1988 SC 286 ]: 1988 Supp SCC 316.
20 Maheshwari Fish Seed Farm v. T.N. Electricity Board,

(2004) 4 SCC 705 [
LNIND 2004 SC 498 ], p. 713 (9th Edn., p. 163 of this book is referred).
Mr.Srikanth -
Page 53 of 82
21 See cases in footnotes 23 and 24, infra.
22 Jagatram Ahuja v. Commr. of Gift-tax,

AIR 2000 SC 3195 [
LNIND 2000 SC 1356 ], p. 3201 :
(2000) 8 SCC 249 [
LNIND 2000 SC 1356 ].
23 MSCO Pvt. Ltd. v. Union of India,

(1985) 1 SCC 51 [
LNIND 1984 SC 305 ], p. 54 :
AIR 1985 SC 76 [
LNIND 1984 SC 305 ].
24 State of Kerala v. Mathai Vergese,

(1986) 4 SCC 746 [
LNIND 1986 SC 461 ], p. 753 :
AIR 1987 SC 33 [
LNIND 1986 SC 461 ].
25 Kishanlal v. State of Rajasthan,

AIR 1990 SC 2269 , p. 2270 : 1990 Supp SCC 742; CIT v. Sundaram Spinning Mills,
IR 2000 SC 490 , p. 491 :
(2000) 1 SCC 466 [
LNIND 1999 SC 1224 ]; Feroze N. Dotivala v. P.M. Wadhwani,
(2003) 1 SCC 433 [
LNIND 2002 SC 760 ], p. 442.
26 Vanguard Fire & General Insurance Co. Ltd., Madras v. FraserRoss,&

AIR 1960 SC 971 [
LNIND 1960 SC 151 ], p. 975 :
(1960) 3 SCR 857 [
LNIND 1960 SC 151 ]; Inland Revenue Commissioner v. Joiner,
(1975) 3 All ER 1050 , pp. 1060, 1061 (HL); Kasilingam v. P.S.G. College of Technology,
1995 (2) Scale 387 [
LNIND 1995 SC 418 ], p. 394 :
AIR 1995 SC 1395 [
LNIND 1995 SC 418 ], p. 1400 : 1995 Supp (2) SCC 348; Feroze N. Dotivala v. P.M.
Wadhwani, supra; Commissioner of Trade Tax U.P. v. Kajaria Ceramics Ltd.,
AIR 2005 SC 2968 [
LNIND 2005 SC 521 ](paras 65, 66); Commercial Taxation Officer, Udaipur v. Rajasthan Tax
Chem. Ltd.,
(2007) 3 SCC 124 [
LNIND 2007 SC 41 ] (para 22) :
(2007) 2 SLT 13 :
(2007) 2 Scale 120 [
LNIND 2007 SC 41 ].
27 Dilworth v. Commissioner of Stamps,

(1899) AC 99 , p. 105 (PC); Reynolds v. John,
(1956) 1 All ER 306 , p. 309; State of Bombay v. Hospital Mazdoor Sabha,
AIR 1960 SC 610 [
LNIND 1960 SC 19 ], p. 614; Ardeshir H. Bhiwandiwala v. State of Bombay,
AIR 1962 SC 29 [
LNIND 1961 SC 32 ], p. 30; Sant Ram v. Labh Singh,
Mr.Srikanth -
Page 54 of 82
AIR 1965 SC 314 [

LNIND 1964 SC 137 ], p. 316; CIT, AP v. Taj Mahal Hotel, Secunderabad,
AIR 1972 SC 168 [
LNIND 1971 SC 375 ], p. 170 :
1971 (3) SCC 550 [
LNIND 1971 SC 375 ]; Inland Revenue Commissioner v. Joiner, supra; Doypack Systems Pvt.
Ltd. v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 803 :
1988 (2) SCC 299 [
LNIND 1988 SC 589 ]; Kishan Lal v. State of Rajasthan,
AIR 1990 SC 2269 , p. 2270 :
1990 (1) JT 550 : 1990 Supp SCC 742; Municipal Corporation of Greater Bombay v. Indian Oil
Corporation,
AIR 1991 SC 686 [
LNIND 1990 SC 821 ], p. 689 : 1991 Supp SCC 18; Regional Director Employees' State
Insurance Corporation v. High Land Coffee Works of PFX Saldanha & Sons,
AIR 1992 SC 129 [
LNIND 1991 SC 326 ], p. 131 :
1991 (3) SCC 617 [
LNIND 1991 SC 326 ]; Kasilingam v. P.S.G. College of Technology,
1995 (2) Scale 387 [
LNIND 1995 SC 418 ], p. 394 :
AIR 1995 SC 1395 [
LNIND 1995 SC 418 ], p. 1400 : 1995 Supp (2) SCC 348; Feroze N. Dotivala v. P.M.
Wadhwani, supra; Associated Indian Mechanical (P.) Ltd. v. W.B. Small Industries Development Corpn. Ltd.,
(2007) 3 SCC 607 [
LNIND 2007 SC 13 ] (para 13) :
AIR 2007 SC 788 [
LNIND 2007 SC 13 ].
28 Gollaleshwar Dev v. Gangavwa Kom Shantayya Math,

(1985) 4 SCC 393 [
LNIND 1985 SC 332 ], p. 401 :
AIR 1986 SC 231 [
LNIND 1985 SC 332 ].
29 Dilworth v. Commissioner of Stamps, supra, p. 105; Jagir Singh v. State of Bihar,

AIR 1976 SC 997 [
(1976) 2 SCC 942 [
LNIND 1975 SC 469 ]; Kasilingam v. P.S.G. College of Technology, supra; Bharat Coop. Bank
(Mumbai) Ltd. v. Coop. Bank Employees Union,
(2007) 4 SCC 685 [
LNIND 2007 SC 374 ] (para 23) :
(2007) 4 JT 573 :
(2007) 2 LLJ 825 [
LNIND 2007 SC 374 ] :
AIR 2007 SC 2320 [
LNIND 2007 SC 374 ].
30 Nutter v. Accrington Local Board,

(1879) 4 QBD 375 , pp. 384, 385 (CA).
31 Associated Indian Mechanical (P.) Ltd. v. W.B. Small Industries Development Corpn. Ltd.,
(2007) 3 SCC 607 [
LNIND 2007 SC 13 ] (para 13) :
AIR 2007 SC 788 [
LNIND 2007 SC 13 ].
Mr.Srikanth -
Page 55 of 82
32 Jagir Singh v. State of Bihar,

AIR 1976 SC 997 [
(1976) 2 SCC 942 [
LNIND 1975 SC 469 ].
33 Black Diamond Beverages v. Commercial Tax Officer,

JT 1997 (8) 128 , pp. 132, 133 :
AIR 1997 SC 3550 [
LNIND 1997 SC 1229 ], p. 3532 :
(1998) 1 SCC 458 [
LNIND 1997 SC 1229 ].
34 Ibid.
35 Dilworth v. Commissioner of Stamps,

(1899) AC 99 , pp. 105, 106 : 79 LT 473 : 15 TLR 61 (PC). See further
Municipal Council, Raipur v. State of M.P.,
AIR 1970 SC 1923 [
LNIND 1969 SC 274 ], p. 1925 :
1969 (2) SCC 582 [
LNIND 1969 SC 274 ]; Jenkins v. Cohen & Co., (1971) 1 WLR, pp. 1285, 1286 (CA); South
Gujarat Roofing Tiles Manufacturers Association v. State of Gujarat,
AIR 1977 SC 90 [
LNIND 1976 SC 381 ], p. 93 : 1977 SCC (L&S) 15; Dadaji v. Sukhdeobabu,
AIR 1980 SC 150 [
LNIND 1979 SC 442 ], p. 153 :
1980 (1) SCC 621 [
LNIND 1979 SC 442 ]; Reserve Bank of India v. Pearless General Finance and Investment Co.
Ltd.,
(1987) 1 SCC 424 [
LNIND 1987 SC 86 ], p. 449 :
AIR 1987 SC 1023 [
LNIND 1987 SC 86 ]; Hemens (Valuation Officer) v. Whitsbury Farm and Stud Ltd.,
(1988) 1 All ER 72 , pp. 77, 78 :
(1988) AC 601 (HL); Mahalakshmi Oil Mills v. State of Andhra Pradesh,
AIR 1989 SC 335 [
LNIND 1988 SC 452 ], p. 339 :
(1989) 1 SCC 164 [
LNIND 1988 SC 452 ]; N.D.P. Namboodaripad v. Union of India,
(2007) 4 SCC 502 [
LNIND 2007 SC 291 ] (para 19) :
AIR 2007 SC 1782 [
LNIND 2007 SC 291 ]; Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner,
(2007) 5 SCC 281 [
LNIND 2007 SC 562 ] (para 33) :
(2007) 6 Scale 423 :
(2007) 6 JT 329 (10th edition, pp. 173 and 175 of this book are referred).
36 Godfray Phillips India Ltd. v. State of U.P.,

(2005) 2 SCC 515 [
LNIND 2005 SC 65 ], pp. 548, 550 (paras 74 and 84).
37 Carter v. Bradbeer,
(1975) 3 All ER 158 , pp. 164, 168 (HL).
Mr.Srikanth -
Page 56 of 82
38 State of Maharashtra v. Labour Law Practitioners' Association,

AIR 1998 SC 1233 [
LNIND 1998 SC 189 ], p. 1237 :
1998 (2) SCC 688 [
LNIND 1998 SC 189 ].
39 Nutter v. Accrington Local Board,

(1879) 4 QBD 375 , pp. 384, 385(CA).

AIR 1960 SC 610 [
LNIND 1960 SC 19 ], p. 614 :
1960 (2) SCR 866 [
LNIND 1960 SC 19 ].
41 Definition of Plant in
section 10(5) of Income-tax Act, 1922 is as under: “‘Plant’ includes vehicles, books, scientific apparatus and
surgical equipment purchased for the purpose of the business, profession or vocation.”
42 CIT, A.P. v. Taj Mahal Hotel, Secunderabad,

AIR 1972 SC 168 [
LNIND 1971 SC 375 ], p. 170 :
(1971) 3 SCC 550 [
LNIND 1971 SC 375 ]. But a building used for the business of hotel or cinema is not a ‘plant’ for
there is a specific provision for granting depreciation allowance for a building; CIT Trivandrum v. Anand Theatres,
JT 2000 (6) SC 407 [
LNIND 2000 SC 905 ], pp. 434, 435 :
AIR 2000 SC 2356 [
LNIND 2000 SC 905 ], p. 2374 :
(2000) 5 SCC 393 [
LNIND 2000 SC 905 ]; Scientific Engineering House Pvt. Ltd. v. Commissioner of Income-tax,
AIR 1986 SC 338 [
LNIND 1985 SC 339 ]:
(1986) 1 SCC 11 [
LNIND 1985 SC 339 ] (Technical Knowhow in the shape of drawings, designs, plans, processing
data, etc. held to be plant). See further Narmada Bachao Andolan v. Union of India,
(2005) 4 SCC 32 [
LNIND 2005 SC 268 ], p. 50. (It is now well settled that when the interpretation clause used an
inclusive definition, it would be expansive in nature. 9th Edn., p. 166 of this book is referred.) Commercial Taxation Officer,
Udaipur v. Rajasthan Tax Chem. Ltd.,
(2007) 3 SCC 124 [
LNIND 2007 SC 41 ] (para 22) :
(2007) 2 SLT 13 :
(2007) 2 Scale 120 [
LNIND 2007 SC 41 ].
43 Delhi Judicial Service Association v. State of Gujarat,

AIR 1991 SC 2176 [
LNIND 1991 SC 446 ], p. 2190 :
1991 (4) SCC 406 [
LNIND 1991 SC 446 ].
44 Commissioner of Income-tax, Madras v. G.R. Karthikeyan,

AIR 1993 SC 1671 [
LNIND 1993 SC 385 ], p. 1675 : 1993 Supp (3) SCC 222 :
Mr.Srikanth -
Page 57 of 82
(1993) 201 ITR 866 [

LNIND 1993 SC 385 ].
45 Ibid.
46 Lucknow Development Authority v. M.K. Gupta,

AIR 1994 SC 787 [
LNIND 1993 SC 946 ], p. 791 :
1994 (1) SCC 243 [
LNIND 1993 SC 946 ].
48 South Gujarat Roofing Tile Manufacturers Association v. State of

Gujarat,
AIR 1977 SC 90 [
LNIND 1976 SC 381 ], pp. 93, 94 : 1977 SCC (L&S) 15. See further
Hindustan Aluminium Corporation v. State of U.P.,
AIR 1981 SC 1649 [
LNIND 1981 SC 314 ]:
1981 (3) SCC 578 [
LNIND 1981 SC 314 ].
49 Reserve Bank of India v. Pearless General Finance and Investment Co. Ltd.,
(1987) 1 SCC 424 [
LNIND 1987 SC 86 ] :
AIR 1987 SC 1023 [
LNIND 1987 SC 86 ].
50 Hemens (Valuation Officer) v. Whitsbury Farm and Stud Ltd.,

(1988) 1 All ER 72 :
(1988) 2 WLR 72 :
1988 AC 601 (HL).
51 Ibid., p. 78. See also Maheshwari Fish Seed Farm v. T.N. Electricity Board,
(2004) 4 SCC 705 [
LNIND 2004 SC 498 ] (‘Livestock’ will not normally cover ‘fish’).
52 N.D.P. Namboodripad v. Union of India,

(2007) 4 SCC 502 [
LNIND 2007 SC 291 ] (para 10) :
AIR 2007 SC 1782 [
LNIND 2007 SC 291 ]; Hamdard (Wakf) Laboratories v. Dy. Labour Commr.,
(2007) 5 SCC 281 [
LNIND 2007 SC 562 ] (para 34) :
(2007) 6 Scale 423 :
(2007) 6 JT 329 .
54 See text and notes 33, 34, pp. 176, 177.
Mr.Srikanth -
Page 58 of 82
55 Mahalakshmi Oil Mills v. State of Andhra Pradesh,

AIR 1989 SC 335 [
LNIND 1988 SC 452 ], pp. 339, 340 :
1989 (1) SCC 164 [
LNIND 1988 SC 452 ].
56 See Chapter 5, title 5 “Legal Fiction”, p. 364.
57 See section 2(vi) of the

Payment of Wages Act defining ‘wages’. Also see Purshottam H. Judye v. B. Potdar,
AIR 1966 SC 856 [
LNIND 1965 SC 274 ], p. 858 :
1966 (2) SCR 353 [
LNIND 1965 SC 274 ]. See definition of ‘dividend’ in section 2(6-A)(c)
Income-tax Act, 1922 . See further CIT, Gujarat v. Vadilal Lallubhai,
AIR 1973 SC 1016 [
LNIND 1972 SC 400 ]: 1973 SCC (Tax) 1 :
(1973) 3 SCC 17 [
LNIND 1972 SC 400 ].
58 Ibid; Narpatchand A. Bhandari v. Shantilal Moolshankar Jain,

AIR 1993 SC 1712 [
LNIND 1993 SC 235 ], p. 1717 :
(1993) 3 SCC 351 [
LNIND 1993 SC 235 ]. (Landlord defined in section 5(3) of the Bombay Rents Hotel and
Lodging Houses Rents Control Act to mean any person who is for the time being receiving or entitled to receive rent. Explanation
to section 13(1)(g) stating that ‘landlord’ as used therein will not include a rent-farmer or rent collector or estate manager. Held a
mortgagee in possession is not excluded.)
59 Pioneer Rubber Plantation Nilambur v. State of Kerala,

AIR 1993 SC 192 [
LNIND 1992 SC 539 ], p. 195 (para 12) :
1992 (4) SCC 175 .
60 Wyke's Will Trust, Re,

(1961) 1 All ER 470 , p. 477; Walker v. Leeds City Council,
(1976) 3 All ER 709 , p. 713 :
(1978) AC 403 :
(1976) 3 WLR 736 (HL). For example the definition of “Industry” in the
Industrial Disputes Act, 1947 is so ambiguous that it “had defied analysis.” Instead of promoting precision and
rounding of blurred edges, it has achieved the opposite: Bangalore Water Supply and Sewerage Board v. A. Rajappa,
AIR 1978 SC 548 [
LNIND 1978 SC 70 ], p. 561 :
1978 (2) SCC 213 [
LNIND 1978 SC 70 ].
61 ILM Cadija Umma v. S. Don Manis Appu,

AIR 1939 PC 63 , p. 65.
62 S.R. Batra v. Smt. Taruna Batra,

AIR 2007 SC 1118 [
LNIND 2006 SC 737 ](paras 21 to 26) :
(2007) 3 SCC 169 [
Mr.Srikanth -
Page 59 of 82
LNIND 2006 SC 737 ]. (Definition of ‘shared household‘ in

section 2(s) of the Protection of Women from Domestic Violence Act , 2006 restricted to house belonging to or
taken on rent by the husband or the house which belongs to a joint family of which the husband is a member where they lived.)
63 Hotel and Catering etc. Board v. Automobile Proprietary Ltd.,

(1968) 3 All ER 399 , p. 402 (CA) (a members' club is not engaged in an ‘industry’ or
commerce) Bangalore Water Supply and Sewerage Board v. A. Rajappa,
AIR 1978 SC 548 [
LNIND 1978 SC 70 ], p. 561 :
(1978) 2 SCC 213 [
LNIND 1978 SC 70 ]; Vice Chancellor, L.N. Mithila University v. Dayanand Jha,
(1986) 3 SCC 7 , p. 10 :
AIR 1986 SC 1200 ; Reserve Bank of India v. Pearless General Finance & Investment Co. Ltd.,
(1987) 1 SCC 424 [
LNIND 1987 SC 86 ], p. 450 :
AIR 1987 SC 1023 [
LNIND 1987 SC 86 ]. State of Maharashtra v. Shiv Datt & Sons,
AIR 1992 SC 692 , p. 695 : 1993 Supp (1) SCC 222 (wide definition of ‘manufacture’ in the
Bombay Sales Tax Act should be interpreted in a practical and workable manner and not to be interpreted so widely as to render it
practically meaningless) Ichchapur Industrial Co-operative Society Ltd. v. Competent Authority, Oil and Natural Gas Commission,
1996 (9) Scale 421 [
LNIND 1996 SC 2329 ], p. 427 :
1997 (2) SCC 42 [
LNIND 1996 SC 2329 ] (Having regard to the context, scheme and object of the Act ‘mineral’ as
defined in the
Mines Act, 1952 , which definition is incorporated by reference in the Petroleum & Minerals Pipelines (Acquisition
of Right of User in Land) Act, 1962, was held to include ‘water’);See further Mukesh K. Ambani v. Senior
Divisional Manager,
(2004) 8 SCC 387 , p. 400 :
AIR 2004 SC 4179 .
64 The definition runs “‘Retrenchment’ means the termination by the employer of the service of a workman for any
reason whatsoever otherwise than as punishment inflicted by way of disciplinary action, but does not include”.
65 Hariprasad Shivshanker Shukla v. A.D. Divekar,

AIR 1957 SC 121 [
LNIND 1956 SC 104 ], p. 127 :
1957 SCR 121 [
LNIND 1956 SC 104 ].
66 Ibid.
67 L. Robert D'Souza v. Executive Engineer, Southern Railway,

AIR 1982 SC 854 [
LNIND 1982 SC 47 ], pp. 857, 858 :
1982 (1) SCC 645 [
LNIND 1982 SC 47 ]. A punitive discharge may also amount to retrenchment: State Bank of
India v. Workmen of State Bank of India,
AIR 1990 SC 2034 [
LNIND 1990 SC 458 ]:
1991 (1) SCC 13 [
LNIND 1990 SC 458 ]. But voluntary retirement brought about by resignation does not amount
to retrenchment. J.K. Cotton Spg. & Wvg. Mills Company Ltd. v. State of U.P.,
AIR 1990 SC 1808 [
LNIND 1990 SC 383 ]:
1990 (4) SCC 27 [
LNIND 1990 SC 383 ].
Mr.Srikanth -
Page 60 of 82
68 M. Venugopal v. Divisional Manager. LIC,

JT 1994 (1) SC 284 , pp. 286, 287 :
AIR 1994 SC 1343 [
LNIND 1994 SC 135 ], p. 1346 :
(1994) 2 SCC 323 [
LNIND 1994 SC 135 ]; Life Insurance Corporation of India v. Raghvendra Sheshagiri Rao,
JT 1997 (8) SC 373 : (1997) 8 SCC 461.
69 Anil Bapurao Karase v. Krishna Sahkari Sakhar Karkhana,

AIR 1997 SC 2698 [
LNIND 1997 SC 818 ]:
1997 (10) SCC 599 [
LNIND 1997 SC 818 ]. See further Haryana State FCCW Store Ltd. v. Ram
Niwas,
AIR 2002 SC 2495 [
LNIND 2002 SC 409 ]:
(2002) 5 SCC 654 [
LNIND 2002 SC 409 ]. But the termination of employment of a daily wager engaged in a project
on completion of the project will amount to retrenchment if the worker had not been told when employed that his employment will
end on completion of the project. S.M. Nilajkar v. Telecom District Manager Karnataka,
(2003) 4 SCC 27 , p. 37 : 2003 SCC (L&S) 380.
70 Tata Engineering and Locomotive Co. Ltd., Bombay v. Registrar of the Restrictive Trade Agreement,
AIR 1977 SC 973 [
LNIND 1977 SC 43 ], p. 978 :
(1977) 2 SCC 55 [
LNIND 1977 SC 43 ]. Followed in Mahindra and Mahindra Ltd. v. Union of
India,
(1979) 2 SCC 529 [
LNIND 1979 SC 59 ] :
AIR 1979 SC 798 [
LNIND 1979 SC 59 ]; Rajasthan Housing Board v. Parvati Devi,
JT 2000 (6) SC 237 [
LNIND 2000 SC 794 ]:
2000 (6) SCC 104 [
LNIND 2000 SC 794 ] :
AIR 2000 SC 1940 [
LNIND 2000 SC 794 ]; Principal, Apeejay School v. M.R.T.P. Commission,
AIR 2001 SC 3858 [
LNIND 2001 SC 2281 ], p. 3860 :
(2001) 8 SCC 702 [
LNIND 2001 SC 2281 ]; State of Uttar Pradesh v. Gir Prasad,
AIR 2004 SC 1756 [
LNIND 2004 SC 258 ]. See further Peico Electronics & Electricals v. Union of
India,
(2004) 3 SCC 658 [
LNIND 2004 SC 296 ] :
(2003) 9 JT 178 .
71 Commissioner of Gift-tax, Madras v. N.S. Getty Chettiar,

AIR 1971 SC 2410 [
LNIND 1971 SC 469 ], p. 2413 :
1971 (2) SCC 741 [
LNIND 1971 SC 469 ].

AIR 1960 SC 610 [
LNIND 1960 SC 19 ]:
Mr.Srikanth -
Page 61 of 82
1960 (2) SCR 866 [

LNIND 1960 SC 19 ]; see text and note 40, p. 178.
73 Ibid., pp. 614, 615.
74 The following cases were overruled : Management of Safdarjung Hospital v. Kuldip Singh,
AIR 1970 SC 1407 [
LNIND 1970 SC 180 ]:
1970 (1) SCC 735 [
LNIND 1970 SC 180 ] (Hospital is not an industry); National Union of Commercial Employees
v. M.R. Mehar,
AIR 1962 SC 1080 [
LNIND 1962 SC 66 ]: 1962 Supp (3) SCR 157 (Solicitor's firm is not an industry); University of
Delh v. Ramnath,
AIR 1963 SC 1873 [
LNIND 1963 SC 89 ]:
1964 (2) SCR 703 (work of education is not an industry); Madras Gymkhana Club Employees
Union v. Management,
AIR 1968 SC 554 [
LNIND 1967 SC 291 ]:
1968 (1) SCR 742 [
LNIND 1967 SC 291 ] (non-proprietary Member's Club is not an industry). But now see Act No.
46 of 1982 which amends the definition. The amendment has not yet been brought into force.
75 Bangalore Water Supply and Sewerage Board v. A. Rajappa,

AIR 1978 SC 548 [
LNIND 1978 SC 70 ], p. 595 :
1978 (2) SCC 213 [
LNIND 1978 SC 70 ]. For a criticism of this case see Jain, Meaning of Industry,
(1986) 3 SCC (Journal) 1. The case has been followed in holding that Irrigation Department of Punjab is an Industry; Des Raj v.
State of Punjab,
AIR 1988 SC 1182 [
LNIND 1988 SC 680 ]:
1988 (2) SCC 537 [
LNIND 1988 SC 680 ]; that Telecommunications Department of Central Government is an
Industry: General Manager Telecom v. S. Srinivasan Rao,
JT 1997 (9) SC 234 [
LNIND 1997 SC 1448 ]:
AIR 1998 SC 656 [
LNIND 1997 SC 1448 ]:
(1997) 8 SCC 767 [
LNIND 1997 SC 1448 ]; and that All India Radio and Doordarshan are industries: All India
Radio v. Santosh Kumar,
AIR 1998 SC 941 : (1998) 3 SCC 237. A company engaged in real estate rendering various
services to its tenants through its employees has been held to be an industry: Karnani Properties Ltd. v. State of West Bengal,
AIR 1990 SC 2047 [
LNIND 1990 SC 449 ]:
1990 (4) SCC 472 [
LNIND 1990 SC 449 ]. Research Laboratory functioning under the Department of Space of the
Central Government and engaged in pure research work in space science (the knowledge acquired not meant for sale) held to be not
an industry: Physical Research Laboratoy v. K. G. Sharma,
JT 1997 (4) SC 527 [
LNIND 1997 SC 648 ], p. 534 :
AIR 1997 SC 1855 [
LNIND 1997 SC 648 ], p. 1860 :
(1997) 4 SCC 257 [
LNIND 1997 SC 648 ]. Agricultural Produce Market Committee constituted under Karnataka
Agricultural Produce Marketing (Regulation) Act, 1966 and performing welfare activities is an industry as welfare activities are not
sovereign functions of the State: Agriculture Produce Market Committee v. Ashok Harikuni,
AIR 2000 SC 3116 [
LNIND 2000 SC 1293 ], pp. 3125, 3126 :
Mr.Srikanth -
Page 62 of 82
(2000) 8 SCC 61 [
LNIND 2000 SC 1293 ].
76 Ibid. Bangalore Water Supply and Sewerage Board case has been criticised by a two judge bench
with a recommendation for constituting a larger bench to reconsider that decision: Coir Board Ernakulam Cochin v. Indira Devai
P.S.,
AIR 1998 SC 2801 [
LNIND 1998 SC 286 ]:
1998 (3) SCC 259 [
LNIND 1998 SC 286 ]. The Coir Board case was placed before a three judge bench which held
that the Bangalore Water Supply case was decided by a seven judge bench and does not need reconsideration:
(2000) 1 SCC 224 :
(1998) 6 Scale 288 (2). A
Constitution Bench has now recommended reconsideration of the Bangalore Water Supply case by a larger Bench;
State of U.P. v. Jaibir Singh,
(2005) 5 SCC 1 [
LNIND 2005 SC 472 ].
77 Hood-Barrs v. IRC,
(1946) 2 All ER 768 , p. 774 : 176 LT 283 (HL).
78 Indian Immigration Trust Board of Natal v. Govindaswamy,

AIR 1920 PC 114 , p. 116; Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser &
Ross,
AIR 1960 SC 971 [
LNIND 1960 SC 151 ], p. 975 :
1960 (3) SCR 857 [
LNIND 1960 SC 151 ].
79 Indian Immigration Trust Board of Natal v. Govindaswamy, supra, p. 116.
80 Wyre Forest District Council v. Secretary for State for the Environment,
(1990) 1 All ER 780 , p. 785 :
(1990) 2 AC 357 (HL).

(1940) AC 613 :
(1940) 2 All ER 401 ,p. 405 (HL); Vanguard Fire & General Insurance Co. Ltd., Madras v.
Fraser & Ross, supra, p. 975; Dhandhania Kedia & Co. v. CIT,
AIR 1959 SC 219 [
LNIND 1958 SC 133 ], pp. 221, 222 : 1959 Supp (1) SCR 204; Commissioner of Expenditure
Tax v. Darshan Surendra Parekh,
AIR 1968 SC 1125 [
LNIND 1967 SC 367 ], p. 1129 :
1968 (2) SCR 589 [
LNIND 1967 SC 367 ]; Bennett Coleman & Co. (Pvt.) Ltd. v. Punya Priya Das Gupta,
AIR 1970 SC 426 [
LNIND 1969 SC 150 ], pp. 432, 433 :
(1969) 2 SCC 1 [
LNIND 1969 SC 150 ]; State of M.P. v. Saith & Skelton (P.) Ltd.,
AIR 1972 SC 1507 [
LNIND 1972 SC 726 ], p. 1511 :
(1972) 1 SCC 702 [
LNIND 1972 SC 726 ]; National Buildings Construction Corporation Ltd. v. Pritam Singh Gill,
AIR 1972 SC 1579 [
LNIND 1972 SC 203 ], pp. 1584, 1585 :
(1972) 2 SCC 1 [
Mr.Srikanth -
Page 63 of 82
LNIND 1972 SC 203 ]; CIT, Gujarat v. Vadilal Lallubhai,

AIR 1973 SC 1016 [
LNIND 1972 SC 400 ]: 1973 SCC (Tax) 1 :
(1973) 3 SCC 17 [
LNIND 1972 SC 400 ]; Jagir Singh v. State of Bihar,
AIR 1976 SC 997 [
LNIND 1975 SC 469 ], p. 1001 : 1976 SCC (Tax) 204 :
(1976) 2 SCC 942 [
LNIND 1975 SC 469 ]; Shri Balganesan Metals v. Shanmugham Chetty,
(1987) 2 SCC 707 [
LNIND 1987 SC 420 ], p. 713 :
AIR 1987 SC 1668 [
LNIND 1987 SC 420 ]; Pushpa Devi v. Milkhi Ram,
AIR 1990 SC 808 [
LNIND 1990 SC 69 ], p. 812 :
(1990) 2 SCC 134 [
LNIND 1990 SC 69 ]; N.K. Jain v. C.K. Shah,
AIR 1991 SC 1289 [
LNIND 1991 SC 173 ], pp. 1303-05 :
(1991) 2 SCC 495 [
LNIND 1991 SC 173 ]; Printers (Mysore) Ltd. v. Asst. Commercial Tax Officer,
JT 1994 (1) SC 692 [
LNIND 1994 SC 164 ], pp. 702, 703:
1994 (2) SCC 434 [
LNIND 1994 SC 164 ]; K.V. Muthu v. Angamuthu Ammal,
AIR 1997 SC 628 [
LNIND 1996 SC 2164 ], p. 631 :
(1997) 2 SCC 53 [
LNIND 1996 SC 2164 ]; Special Officer and Competent Authority Urban Land Ceilings v. P.S.
Rao,
AIR 2000 SC 843 [
LNIND 2000 SC 110 ], p. 844 :
(2000) 2 SCC 451 [
LNIND 2000 SC 110 ]; State of Maharashtra v. Indian Medical Association,
AIR 2002 SC 302 [
LNIND 2001 SC 2784 ], p. 307 :
(2002) 1 SCC 589 [
LNIND 2001 SC 2784 ]; Mukesh K. Tripathi v. Sr. Divisional Manager LDC,
AIR 2004 SC 4179 , pp. 4186, 4187 :
(2004) 8 SCC 387 , p. 400.

(1940) AC 613 :
(1940) 2 All ER 401 , p. 405 (HL); Printers (Mysore) Ltd. v. Asst. Commercial Tax Officer,
supra; Indian City Properties Ltd. v. Municipal Commissioner of Greater Bombay,
(2005) 6 SCC 417 [
LNIND 2005 SC 590 ], pp. 420, 421.
83 Ibid.
84 Chowgule and Co. Pvt. Ltd. v. Union of India,

(1987) 1 SCC 730 [
LNIND 1987 SC 203 ], pp. 739, 740 :
AIR 1986 SC 1176 .
85 State Bank of India v. Yogendra Kumar Srivastava,

(1987) 3 SCC 10 [
LNIND 1987 SC 447 ], p. 21 :
AIR 1987 SC 1399 [
LNIND 1987 SC 447 ].
Mr.Srikanth -
Page 64 of 82
86 Special Officer and Competent Authority Urban Land Ceilings Hyderabad v. P.S. Rao,
AIR 2000 SC 843 [
LNIND 2000 SC 110 ], p. 844 :
(2000) 2 SCC 451 [
LNIND 2000 SC 110 ].
87 Ramesh Mehta v. Sanwal Chand Singhvi,

(2004) 5 SCC 409 [
LNIND 2004 SC 529 ], pp. 425, 428 :
AIR 2004 SC 2258 [
LNIND 2004 SC 529 ], pp. 2264, 2267 (After
Constitution 74th Amendment Act which makes nominated members ineligible to vote at a meeting of a
municipality the definition in section 3(36) of the Rajasthan Municipalities Act which defines ‘whole number’ or ‘total number’
with reference to the members of the Board to mean ‘total number of members holding office at the time’ has to be understood in
the context of a no confidence motion for removal of chairperson not to include nominated members.)
88 Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser &Ross,
AIR 1960 SC 971 [
LNIND 1960 SC 151 ], pp. 974, 975 :
1960 (3) SCR 857 [
LNIND 1960 SC 151 ]; Whirlpool Corporation v. Registrar of Trade Marks,
JT 1998 (7) SC 243 [
LNIND 1998 SC 970 ], p. 252 :
1998 (8) SCC 1 [
LNIND 1998 SC 970 ] :
AIR 1999 SC 22 .
89 Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser & Ross, supra. .
90 Vanguard Fire and General Insurance Co. Ltd., Madras v. Fraser &
Ross,
AIR 1960 SC 971 [
LNIND 1960 SC 151 ], pp. 974, 975, 976 :
1960 (3) SCR 857 [
LNIND 1960 SC 151 ].
1 Pushpa Devi (Smt.) v. Milkhi Ram,

AIR 1990 SC 808 [
LNIND 1990 SC 69 ]:
1990 (2) SCC 134 [
LNIND 1990 SC 69 ].
2 Ram Kishore Sen v. Union of India,

AIR 1966 SC 644 [
LNIND 1965 SC 187 ]:
1961 (1) SCR 643 .
3 Management of Advance Insurance Co. Ltd. v. Gurudasmal,

AIR 1970 SC 1126 [
LNIND 1970 SC 526 ]:
1970 (1) SCC 633 [
LNIND 1970 SC 526 ].
Mr.Srikanth -
Page 65 of 82
4 T.M. Kanniyan v. ITO, Pondicherry,

AIR 1968 SC 637 [
LNIND 1967 SC 310 ]:
1968 (2) SCR 103 [
LNIND 1967 SC 310 ].
5 State of M.P. v. Saith & Skelton (P) Ltd.,

AIR 1972 SC 1507 [
LNIND 1972 SC 726 ]:
(1972) 1 SCC 702 [
LNIND 1972 SC 726 ].
6 National Building Construction Corporation Ltd. v. Pritam Singh Gill,

AIR 1972 SC 1579 [
LNIND 1972 SC 203 ]:
1972 (2) SCC 1 [
LNIND 1972 SC 203 ].
7 Anand Nivas (P.) Ltd. v. Anandji Kalyanji's Pedhi,

AIR 1965 SC 414 [
LNIND 1963 SC 213 ], p. 424 (para 32) :
1964 (4) SCR 892 [
LNIND 1963 SC 213 ].
8 Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax

Officer,
AIR 1966 SC 12 [
LNIND 1961 CAL 142 ], p. 14 (para 8) :
1965 (3) SCR 626 [
LNIND 1965 SC 114 ]; Ishvarilal Thakorelal Almaula v. Motibhai Nagjibhai,
AIR 1966 SC 459 [
LNIND 1965 SC 186 ], p. 465 :
1966 (1) SCR 367 [
LNIND 1965 SC 186 ]; Nizam's Religious Endowment Trust, Hyderabad v. CIT, A.P.,
AIR 1966 SC 1007 [
LNIND 1965 SC 273 ], p. 1010 :
(1966) 2 SCR 384 [
LNIND 1965 SC 273 ]; Kush Sahgal v. M.C. Mitter,
AIR 2000 SC 1390 [
LNIND 2000 SC 528 ], p. 1398 :
(2000) 4 SCC 526 [
LNIND 2000 SC 528 ]; Haryana State Cooperative Land Development Bank Ltd. v. Haryana
State Cooperative Land Development Bank Employees Union,
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ], pp. 578, 579 :
(2003) 10 JT 383 ;
(2006) 6 SCC 510 [
LNIND 2006 SC 572 ] (para 12) :
(2006) 7 JT 209 :
(2006) 5 SLT 602 .
9 Mullins v. Treasurer of Survey,

(1880) 5 QBD 170 , p. 173; referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v.
Subhash Chandra Yograj Sinha,
AIR 1961 SC 1596 [
LNIND 1961 SC 194 ], p. 1600; Calcutta Tramways Co. Ltd. v. Corporation of Calcutta,
AIR 1965 SC 1728 [
LNIND 1965 SC 79 ], p. 1730 :
1965 (3) SCR 354 [
Mr.Srikanth -
Page 66 of 82
LNIND 1965 SC 79 ]; Maulvi Hussein Haji Abraham Umarji v. State of Gujarat,

(2004) 6 SCC 672 [
LNIND 2004 SC 1560 ], p. 679 :
AIR 2004 SC 3946 [
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ], pp. 578, 579 :
(2003) 10 JT 383 ; Romesh Kumar Sharma v. Union of India, Supra. .
10 Madras & Southern Maharatta Rly. Co. Ltd. v. Bezwada Municipality,

AIR 1944 PC 71 , p. 73 : 71 IA 113; referred to in CIT, Mysore etc. v. Indo Mercantile Bank
Ltd.,
AIR 1959 SC 713 [
LNIND 1959 SC 23 ], p. 719 : 1959 Supp (2) SCR 256; S. Sundaram Pillai v. P. Pattabiraman,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], p. 608 :
AIR 1985 SC 582 [
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ], pp. 578, 579 :
(2003) 10 JT 383 ; Romesh Kumar Sharma v. Union of India, Supra. .
11 Local Govt. Board v. South Stoneham Union,

(1909) AC 57 , p. 62 (HL).
12 Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha,
AIR 1961 SC 1596 [
LNIND 1961 SC 194 ], p. 1690 :
(1962) 2 SCR 159 [
LNIND 1961 SC 194 ]. See further S. Sundaram Pillai v. Pattabiraman,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], p. 608:
AIR 1985 SC 582 [
LNIND 1985 SC 20 ]; Motiram Ghelabhai v. Jagannagar,
(1985) 2 SCC 279 [
LNIND 1985 SC 70 ], p. 285 :
AIR 1985 SC 709 [
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ], pp. 578, 579 :
(2003) 10 JT 383 .
13 CIT, Mysore etc. v. Indo Mercantile Bank Ltd.,

AIR 1959 SC 713 [
LNIND 1959 SC 23 ], p. 717 : 1959 Supp (2) SCR 256. See further Kedarnath Manufacturing
Co. Ltd. v. Commercial Tax Officer,
AIR 1966 SC 12 [
LNIND 1961 CAL 142 ], p. 14 :
1965 (3) SCR 626 [
LNIND 1965 SC 114 ]; T.M. Kanniyan v. ITO, Pondicherry,
AIR 1968 SC 637 [
LNIND 1967 SC 310 ], p. 641 :
1968 (2) SCR 103 [
LNIND 1967 SC 310 ]; Dibya Singh Malana v. State of Orissa,
AIR 1989 SC 1737 [
LNIND 1989 SC 241 ], pp. 1739, 1740 : 1989 Supp (2) SCC 312; J.K. Industries v. Chief
Inspector of Factories,
Mr.Srikanth -
Page 67 of 82
1996 (7) Scale 247 [

LNIND 1996 SC 1547 ], p. 261:
1996 (6) SCC 665 [
LNIND 1996 SC 1547 ].
14 See text and notes 67, 68, p. 202.

AIR 1944 PC 71 , p. 73 : 71 IA 113; CIT, Mysore etc. v. Indo Mercantile Bank Ltd.,
AIR 1959 SC 713 [
LNIND 1959 SC 23 ],p. 718 : 1959 Supp (2) SCR 256.
16 West Derby Union v. Metropolitan Life Assurance Co.,

(1897) AC 647 , p. 652 (HL); referred to in Jennings v. Kelly,
(1939) 4 All ER 464 , p. 470 (HL); G.G. in Council v. Municipal Council, Madura,
AIR 1949 PC 39 , p. 42; Balchandra Anantrao Rakvi v. Ramchandra Tukaram,
AIR 2002 SC 3994 , p. 4002 :
(2001) 8 SCC 616 [
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ], pp. 578, 579 :
(2003) 10 JT 384 .
17 Dwarka Prasad v. Dwarka Das Saraf,

AIR 1975 SC 1758 [
LNIND 1975 SC 263 ], p. 1763 :
(1976) 1 SCC 128 [
LNIND 1975 SC 263 ]. See further A.N. Sehgal v. Rajeram Sheoram,
AIR 1991 SC 1406 [
LNIND 1991 SC 196 ], p. 1414 :
1991 (2) SCR 198 [
LNIND 1991 SC 196 ]; Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal,
AIR 1991 SC 1538 [
LNIND 1991 SC 282 ], p. 1541 :
(1991) 3 SCC 442 [
LNIND 1991 SC 282 ]; Kerala State Housing Board v. Rampriya Hotels (P.) Ltd.,
JT 1994 (5) SC 113 , p. 119:
1994 (5) SCC 672 :
(1994) 2 KLT 529 ; Maulvi Hussain Haji Abraham Umraji v. State of Gujarat,
(2004) 6 SCC 672 [
LNIND 2004 SC 1560 ], p. 679 :
AIR 2004 SC 3946 [
LNIND 2004 SC 1560 ].

AIR 1944 PC 71 , pp. 72, 73 : 71 IA 113; Kerala State Housing Board v. Rampriya Hotels (P.)
Ltd.,
JT 1994 (5) SC 113 , p. 119 :
1994 (5) SCC 672 :
(1994) 2 KLT 529 .
19 T.M. Kanniyan v. ITO, Pondicherry,

AIR 1968 SC 637 [
LNIND 1967 SC 310 ], p. 641 :
1968 (2) SCR 103 [
LNIND 1967 SC 310 ].
Mr.Srikanth -
Page 68 of 82
21 G.G. in Council v. Municipal Council, Madura,

AIR 1949 PC 39 .
22 G.G. in Council v. Municipal Council, Madura,

AIR 1949 PC 39 , pp. 42, 43.
23 Dwarka Prasad v. Dwarka Das Saraf,

AIR 1975 SC 1758 [
LNIND 1975 SC 263 ], p. 1764 :
(1976) 1 SCC 128 [
LNIND 1975 SC 263 ].
24 Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa,

(1987) 2 SCC 469 , p. 482 :
AIR 1987 SC 1281 .
25 Ram Narain Sons Ltd. v. Assistant Commissioner of

Tax, Sales
AIR 1955 SC 765 [
LNIND 1955 SC 60 ], p. 769 :
(1955) 2 SCR 483 [
LNIND 1955 SC 60 ]; referred to in CIT, Mysore etc. v. Indo Mercantile Bank Ltd.,
AIR 1959 SC 713 [
LNIND 1959 SC 23 ], p. 718 : 1959 Supp (2) SCR 256; State of Punjab v. Kailashnath,
AIR 1989 SC 558 , p. 553 :
1989 (1) SCC 321 . See further, A.N. Sehgal v. Rajeram Sheoran,
AIR 1991 SC 1406 [
LNIND 1991 SC 196 ], p. 1414 : 1992 Supp (1) SCC 304 :
1991 (2) JT 123 ; Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal,
AIR 1991 SC 1538 [
LNIND 1991 SC 282 ], p. 1541 :
1991 (3) SCC 442 [
LNIND 1991 SC 282 ]; Kerala State Housing Board v. Rampriya Hotels (P) Ltd.,
JT 1994 (5) SC 113 , p. 119 :
1994 (5) SCC 672 :
(1994) 2 KLT 529 ; Haryana State Cooperative Land Development Bank Ltd. v. Haryana State
Cooperative Land Development Bank Employees Union,
(2004) 1 SCC 574 [
LNIND 2003 SC 1127 ], pp. 578, 579 :
(2003) 10 JT 383 .
26 Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax, supra, [construction of Article 286 as
it stood prior to the
Constitution (Sixth Amendment) Act, 1956].
27 Abdul Jabbar Butt v. State of J &

K,
AIR 1957 SC 281 [
LNIND 1956 SC 96 ], p. 284 :
1957 SCR 51 [
LNIND 1956 SC 96 ]; referred to in CIT, Mysore etc. v. Indo Mercantile Bank Ltd.,
AIR 1959 SC 713 [
LNIND 1959 SC 23 ], p. 717 : 1959 Supp (2) SCR 256. Cf. similar language used by
Mr.Srikanth -
Page 69 of 82
FLETCHER MOULTON, L.J. in R. v. Dibdin, 1910 P 57, p. 125; referred to in Dormer v. Newcastle-on-Tyne Corporation,
(1940) 2 All ER 521 , p. 524 :
(1940) 2 KB 217 (CA).
28 Abdul Jabbar Butt v. State of J. & K.,

AIR 1957 SC 281 [
LNIND 1956 SC 96 ], p. 284 :
1957 SCR 51 [
LNIND 1956 SC 96 ].
29 CIT, Mysore etc. v. Indo Mercantile Bank, Ltd.,

AIR 1959 SC 713 [
LNIND 1959 SC 23 ]: 1959 Supp (2) SCR 256.
30 Vijayalakshmamma (Smt.) v. B.T. Shankar,

AIR 2001 SC 1424 [
LNIND 2001 SC 806 ], p. 1435 :
(2001) 4 SCC 558 [
LNIND 2001 SC 806 ].
31 Mohan Meakin Breweries Ltd. v. Commissioner of Excise, Bihar,

AIR 1970 SC 1171 [
LNIND 1968 SC 313 ], p. 1173 :
1969 (2) SCR 457 [
LNIND 1968 SC 313 ].
32 State of Punjab v. Kailash Nath,

AIR 1989 SC 558 : 1989 (1) SCC 321.
33 Dormer v. Newcastle-on-Tyne Corporation,

(1940) 2 All ER 521 :
(1940) 2 KB 217 (CA).
35 State of U.P. v. Deoman Upadhyaya,

AIR 1960 SC 1125 [
LNIND 1960 SC 161 ], p. 1145 :
1961 (1) SCR 14 [
LNIND 1960 SC 161 ]; Ramkishan Mithanlal Sharma v. State of Bombay,
AIR 1955 SC 104 [
LNIND 1954 SC 142 ], p. 115; Aghnoo Nagesia v. State of Bihar,
AIR 1966 SC 119 [
LNIND 1965 SC 155 ]:
1966 (1) SCR 134 [
LNIND 1965 SC 155 ]; Delhi Administration v. Balkrishan,
AIR 1972 SC 3 [
LNIND 1971 SC 537 ]:
1972 (4) SCC 659 [
LNIND 1971 SC 537 ].
36 West Derby Union v. Metropolitan Life Assurance Society,

(1897) AC 647 , p. 655 : 66 LJ Ch 726 : 77 LT 284 (HL), referred to in Jennings v. Kelly,
(1940) AC 206 :
(1939) 4 All ER 464 , p. 470 (HL).
Mr.Srikanth -
Page 70 of 82
37 West Derby Union v. Metropolitan Life Assurance Society, supra, p. 652, referred to in Hindustan
Ideal Insurance Co. v. Life Insurance Corporation,
AIR 1963 SC 1083 [
LNIND 1962 SC 164 ], p. 1087 :
1963 (2) SCR 56 [
LNIND 1962 SC 164 ].
38 Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation of India,

AIR 1963 SC 1083 [
LNIND 1962 SC 164 ], p. 1087 :
1963 (2) SCR 56 [
LNIND 1962 SC 164 ].
39 Section 9(c) : “Where owing to an increase of not less than 25 per cent of the population according to the last census,
there is growth or extension of any city or town, and the licensing authority is satisfied after hearing any evidence tendered to it by
any resident or owner of property in such city or town that the restrictions in this section on the granting of licences may be relaxed,
the licensing authority may grant a licence to any applicant notwithstanding that the same would be otherwise forbidden by this
section:
Provided that such licence shall be granted only for premises situated in the ward or district electoral division in which such increase of
population has taken place, and in substitution for at least two existing licences held in respect of premises situate within the city or town (as
the case may be) comprising such ward or district electoral division.”
40 Jennings v. Kelly,
(1939) 4 All ER 464 :
1940 AC 206 (HL); Referred to in S. Sundaram Pillai v. Pattabiramam,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], pp. 608, 609 :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ].
41 See text and note 37 supra.
(1939) 4 All ER 464 , p. 470 (HL).
(1939) 4 All ER 464 , pp. 471, 472 :
1940 AC 206 (HL).
44 Ibid., p. 477.
46 Govt. of the Province of Bombay v. Hormusji Manekji,

AIR 1947 PC 200 , pp. 205, 206; Durga Dutt Sharma v. Navaratna Pharmaceutical
Laboratories,
AIR 1965 SC 980 [
LNIND 1964 SC 270 ], p. 988 :
1965 (1) SCR 737 [
Mr.Srikanth -
Page 71 of 82
LNIND 1964 SC 270 ]; Kedarnath Jute Manufacturing Co. Ltd. v. Commercial Tax Officer,
AIR 1966 SC 12 [
LNIND 1961 CAL 142 ], p. 14; Kush Sahgal v. M.C. Mitter,
AIR 2000 SC 1390 [
LNIND 2000 SC 528 ], p. 1398 :
(2000) 4 SCC 526 [
LNIND 2000 SC 528 ], (7th edition p. 163 of this book is referred).
47 S. Gurmej Singh v. S. Pratap Singh

Kairon,
AIR 1960 SC 122 [
LNIND 1959 SC 384 ], p. 125 :
1960 (1) SCR 909 [
LNIND 1959 SC 384 ]. See further Durga Dutt Sharma v. Navaratna
Pharmaceutical Laboratories, supra, p. 988; Abboy Pada Saha v. Sudhir Kumar Mondal,
AIR 1967 SC 115 [
LNIND 1966 SC 133 ]: 1966 Supp SCR 387 ; Damodar Valley Corporation v. State of Bihar,
AIR 1976 SC 1956 [
LNIND 1976 SC 251 ], p. 1960 : 1976 SCC (Tax) 389 ; Indian Aluminium Co. Ltd. v. Asstt.
Commissioner of Commercial Taxes,
AIR 2001 SC 795 [
LNIND 2001 SC 171 ], p. 797 :
(2001) 2 SCC 201 :
(2001) 128 ELT 18 .
48 Govt. of the Province of Bombay v. Hormusji Manakji, supra, pp. 205, 206.
49 Hindustan Ideal Insurance Co. Ltd. v. Life Insurance Corporation of Inida,

AIR 1963 SC 1083 [
LNIND 1962 SC 164 ], p. 1087 :
1963 (2) SCR 56 [
LNIND 1962 SC 164 ].
50 State of West Bengal v. Union of India,

AIR 1963 SC 1241 [
LNIND 1962 SC 438 ], p. 1248 :
1964 (1) SCR 371 [
LNIND 1962 SC 438 ].
51 West Derby Union v. Metropolitan Life Assurance Society,

(1897) AC 647 , p. 656 : 66 LJ Ch 726 : 77 LT 284 (HL). See further Director
of Public Prosecutions v. Good Child,
(1978) 2 All ER 161 , p. 165 :
(1978) 1 WLR 578 (HL).
52 S.M.K.R. Meyappa Chetty v. S.N. Subramanian Chetty,

(1916) 43 IA 113 , p. 122 : 35 IC 323, p. 326 (PC).
53 Madanlal Fakirchand Dudhediya v. S. Changdeo Sugar Mills

Ltd.,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ]: 1962 Supp (3) SCR 973 (Construction of
section 76, Companies Act, 1956 , as it stood before
Amending Act 65 of 1960).
Mr.Srikanth -
Page 72 of 82
54 By
Amending Act 65 of 1960 the words ‘any of its moneys’ have been substituted for the words ‘any of its capital
moneys’ to make it clear that the restriction imposed by section 76(1) operated irrespective of whether commission is paid out of
profits or capital moneys. The majority decision in Madanlal's case (supra) is thus in accord with the intention of Parliament as
disclosed by the
amending Act .
55 Madanlal Fakirchand Dudhediya v. S. Changdeo Sugar Mills Ltd, supra, pp. 1551, 1552.
56 Ibid., pp. 1556, 1557.
57 Curtis v. Maloney,
(1950) 2 All ER 982 , pp. 985, 986 (CA). Section 15 of the Bankruptcy and Deeds of
Arrangement Act, 1913, is quoted below: “Where any goods in the possession of an execution debtor at the time of seizure by a
sheriff, high bailiff, or other officer charged with the enforcement of a writ, warrant, or other process of execution, are sold by such
sheriff, high bailiff, or other officer without any claim having been made to the same, the purchaser of the goods so sold, shall
acquire a good title in the goods so sold, and no person shall be entitled to recover against the sheriff, high bailiff, or other officer,
or any one lawfully acting under the authority of either of them, except as provided by the Bankruptcy Acts, 1883 and 1890, for any
sale of such goods or for paying over the proceeds thereof, prior to the receipt of a claim to the said goods unless it is proved that
the person from whom recovery is sought had notice, or might by making reasonable inquiry have ascertained that the goods were
not the property of the execution debtor: Provided that nothing in this section contained shall affect the right of any claimant who
may prove that at the time of sale he had a title to any goods so seized and sold to any remedy to which he may be entitled against
any person other than such sheriff, high bailiff, or other officer as aforesaid.”
58 West Derby v. Metropolitan Life Assurance Co.,

(1897) AC 647 , p. 653 : 66 LJ Ch 726 : 77 LT 284 (HL) (Lord Watson); S. Sundaram Pillai v.
Pattabiraman,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], p. 608 :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ].
59 R. v. Dibdin, (1910) P 57, p. 125 (Fletcher Moulton, L.J.).
60 CIT, Mysore, etc. v. Indo Mercantile Bank Ltd.,

AIR 1959 SC 713 [
LNIND 1959 SC 23 ], p. 717 : 1959 Supp (2) SCR 256; Shah Bhojraj Kuverji Oil Mills v.
Subhash Chandra Yograj Sinha,
AIR 1961 SC 1596 [
LNIND 1961 SC 194 ], p. 1600; Dwarka Prasad v. Dwarka Das Saraf,
AIR 1975 SC 1758 [
LNIND 1975 SC 263 ], p. 1764 :
(1976) 1 SCC 128 [
LNIND 1975 SC 263 ].
61 Rhondda Urban District Council v. Taff Vale Rly. Co.,

(1909) AC 253 , p. 258 (lord loreburn, L.C.); Mohumud Bahadoor Khan v. Collector of Bareilly,
(1874) 1 IA 167 , p. 175 (PC); Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj
Sinha,
AIR 1961 SC 1596 [
LNIND 1961 SC 194 ], p. 1600 :
(1962) 2 SCR 159 [
LNIND 1961 SC 194 ]; State of Orissa v. Debaki Debi,
AIR 1964 SC 1413 , pp. 1417, 1418 :
1964 (3) SCR 253 ; CIT, Kerala v. P. Krishna Warriar,
Mr.Srikanth -
Page 73 of 82
AIR 1965 SC 59 [
LNIND 1964 SC 164 ], p. 63 :
1964 (8) SCR 36 [
LNIND 1964 SC 164 ]; State of Rajasthan v. Leela Jain,
AIR 1965 SC 1296 [
LNIND 1964 SC 228 ], p. 1300 :
1965 (1) SCR 276 [
LNIND 1964 SC 228 ]; Commissioner of Commercial Taxes, Board of Revenue, Madras v.
Ramkishan Shrikishan Jhaver,
AIR 1968 SC 59 [
LNIND 1967 SC 224 ], p. 63 :
1968 (1) SCR 148 [
LNIND 1967 SC 224 ]; U.P. v. agannath Mahadeo Prasad,
AIR 1969 SC 209 [
LNIND 1968 SC 189 ], p. 211 :
1969 (1) SCR 537 [
LNIND 1968 SC 189 ]; Hiralal Ratan Lal v. Sales Tax Officer III, Kanpur,
AIR 1973 SC 1034 [
LNIND 1972 SC 476 ], p. 1039 : 1973 SCC (Tax) 307 :
(1973) 1 SCC 216 [
LNIND 1972 SC 476 ]; Commr. of Stamp Duties v. Atwill,
(1973) 1 All ER 576 , p. 581 (PC); Dattatraya Govind Mahajan v. State of Maharashtra,
AIR 1977 SC 915 [
LNIND 1977 SC 56 ], p. 927; S. Sundaram Pillai v. Pattabiraman,
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], pp. 608, 610 :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ]; Motiram Ghelabhai v. Jagannagar,
(1985) 2 SCC 279 [
LNIND 1985 SC 70 ], pp. 285, 289 :
AIR 1985 SC 709 [
LNIND 1985 SC 70 ].
62 Mohummud Bahadoor Khan v. Collector of Bareilly,

(1874) 1 IA 167 , p. 175 (PC).
63 State of Orissa v. Debaki Debi,

AIR 1964 SC 1413 , pp. 1417, 1418 :
1964 (5) SCR 253 .
64 CIT, Kerala v. P. Krishna Warrier,

AIR 1965 SC 59 [
LNIND 1964 SC 164 ], p. 63 :
1964 (8) SCR 36 [
LNIND 1964 SC 164 ].
65 Commr. of Stamp Duties v. Atwill,

(1973) 1 All ER 576 (PC).
66 Georgia Railroad & Banking Co. v. James M. Smith, 128 U.S. 174, p. 181 : 32 Law Ed 377, p. 380.
See further D.M. Mcdonald v. United States of America, 279 U.S. 12, pp. 21, 22: 73 Law Ed 582, p. 585; Commr.
of Stamp Duties v. Atwill,
(1973) 1 All ER 576 , p. 581 (PC). See also text and note 1, p. 205.
67 See Chapter 2, title 4(b) ‘Inconsistency and Repugnancy to be avoided; Harmonious Construction’,
notes 76 to 87, pp. 140-142. (A proviso is normally in the nature of a qualification or exception and therefore it does not wholly
nullify the enactment. “Exception cannot be allowed to swallow up the general rule”) Macbeth v. Ashley, (1874) 2 Sc-and Div 352
Mr.Srikanth -
Page 74 of 82
(HL) considered in Raghuthilakathirtha Sreepadangalavaru Swami (Sree) v. State of Mysore,

AIR 1966 SC 1172 [
LNIND 1962 SC 176 ]:
1963 (2) SCR 226 [
LNIND 1962 SC 176 ]. See further Director of Education (Secondary) v.
Pushpendra Kumar,
AIR 1998 SC 2230 [
LNIND 1998 SC 572 ], p. 2234 :
(1998) 5 SCC 192 [
LNIND 1998 SC 572 ] (A provision in the nature of an exception cannot be so construed as to
subsume the main provision and thereby nullify the right conferred by the main provision).
68 Madan Gopal v. VI Addl. District Judge,

AIR 1989 SC 155 [
LNIND 1988 SC 482 ], p. 157 :
(1988) 4 SCC 644 [
LNIND 1988 SC 482 ].
69 A.G. v. Chelsea Waterworks Co., 94 ER 716.
70 King v. Dominion Engineering Co. Ltd.,

AIR 1947 PC 94 , p. 95.
71
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ] (paras 43, 44) :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ]; Swadeshi Match AB v. Securities and Exchange Board of India,
(2004) 11 SCC 641 [
LNIND 2004 SC 854 ] (para 68) :
AIR 2004 SC 4219 [
LNIND 2004 SC 854 ]; Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector &
ETIO,
(2007) 5 SCC 447 [
LNIND 2007 SC 681 ] (para 98) :
AIR 2007 SC 1984 [
LNIND 2007 SC 681 ].
72 See title 9(h) Broad general rule of construction, p. 204.
73 Horack : Cases and Materials on Legislation, 2nd Edition, p. 572.
74 Arnold v. Mayor and Corporation of Gravesend, 2 K. & J. 574 :

(1856) 25 LJ Ch 776 , (page wood V.C.): Fitzgerald v. Champneys,
(1861) 30 LJ Ch 777 , p. 783 (page wood V.C.); Shah Bhojraj Kuverji Oil Mills v. Subhash
Chandra Yograj Sinha,
AIR 1961 SC 1596 [
LNIND 1961 SC 194 ], p. 1600 :
(1962) 2 SCR 159 [
LNIND 1961 SC 194 ]; Agricultural and Processed Food Products v. Union of India,
AIR 1996 SC 1947 [
LNIND 1996 SC 879 ], p. 1952 :
(1996) 4 SCC 297 [
LNIND 1996 SC 879 ].
Mr.Srikanth -
Page 75 of 82
75 Alton Wood case; Attorney-General v. Bushopp, (1600) 1 Co Rep 40 b, pp. 47a, 52b : 76 ER 89, pp.
107, 119. See further an interesting Australian case, Kropp v. Cobb & Co. Ltd., (1964) Queensland Reports 167, pp. 168, 169;
referred to in Western Transport Pty. Ltd. v. Kropp,
(1964) 3 All ER 722 , pp. 726, 727 (PC).
76 See text and notes 69-70, pp. 202, 203.
77 Shah Bhojraj Kuverji Oil Mills v. Subhash Chandra Yograj Sinha, supra, p. 1600.
78 Agricultural and Processed Food Products v. Union of India, supra.
79 See
section 105, Indian Evidence Act, 1872 .
80 See Order 6, rule 6; and Order 8, rule 2,

Code of Civil Procedure, 1908 .
1 D.M. Macdonald v. United States of America, 279 US 12, pp. 21, 22 : 73 Law Ed 582, p. 585.
2 Besant v. A.G. of Madras, ILR 43 Mad 146, p. 155 (PC).
3 CIT, U.P. v. Jagannath Mahadeo Prasad,

AIR 1969 SC 209 [
LNIND 1968 SC 189 ]:
1969 (1) SCR 537 [
LNIND 1968 SC 189 ].
4 No-Nail Cases Proprietary Ltd. v. No-Nail Boxes Ltd.,

(1944) 1 All ER 528 , pp. 529, 530 (CA); affirmed in Craddock v. Zevo Finance Co.,
(1946) 1 All ER 523 :
(1946) 27 TC 267 (HL).
6 Punjab Province v. Daulat Singh,

AIR 1942 PC 38 , p. 42.
8 Punjab Province v. Daulat Singh, supra p. 42; London Borough of Ealing v. Race Relations Board,
(1972) 1 All ER 105 , p. 115 (HL).
Mr.Srikanth -
Page 76 of 82
9 See maxwell : Interpretation of Statutes, 11th Edition, p. 155.
(1939) 4 All ER 464 (HL).
11 Ibid., p. 470.
12 Ibid., p. 477.
13 Commr. of Stamp Duties v. Atwill,

(1973) 1 All ER 576 , pp. 579, 580, 581 (PC).
14 Tahsildar Singh v. State of U.P.,

AIR 1959 SC 1012 [
LNIND 1959 SC 96 ], p. 1022 : 1959 Supp (2) SCR 875; Madanlal Fakirchand Dudhediya v. S.
Changdeo Sugar Mills Ltd.,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ], p. 1551 : 1962 Supp (3) SCR 973; CIT, Kerala v. P. Krishna Warriar,
AIR 1965 SC 59 [
LNIND 1964 SC 164 ], p. 63 :
(1964) 8 SCR 36 [
LNIND 1964 SC 164 ]; Commissioner of Commercial Taxes, Board of Revenue, Madras v.
Ramkishan Shrikishan Jhaver,
AIR 1968 SC 59 [
LNIND 1967 SC 224 ], p. 64 :
1968 (1) SCR 148 [
LNIND 1967 SC 224 ]. Hiralal Ratanlal v. Sales Tax Officer III, Kanpur,
AIR 1973 SC 1034 [
LNIND 1972 SC 476 ], p. 1039 : 1973 SCC (Tax) 307 :
(1973) 1 SCC 216 [
LNIND 1972 SC 476 ]; Dwarka Prasad v. Dwarka Das Saraf,
AIR 1975 SC 1758 [
LNIND 1975 SC 263 ], p. 1764 :
(1976) 1 SCC 128 [
LNIND 1975 SC 263 ]; Krishna Prasad Gupta v. Controller Printing and Stationery,
1995 (6) Scale 89 , pp. 93, 94. (Construction of saving clause in
section 28 of the Administrative Tribunals Act, 1985 ).
15 See Chapter 2, title 4(b) ‘Inconsistency and Repugnancy to be avoided; Harmonious Construction’
text and notes 74 to 88, pp. 140 to 142.
16 See Chapter 2, title 4(c) ‘When Reconciliation not possible’, text and notes 26, 27, p. 147.
17 State of Bombay v. United Motors (India) Ltd.,

AIR 1953 SC 252 [
LNIND 1953 SC 42 ], p. 258 :
1953 SCR 1069 [
LNIND 1953 SC 42 ]. See further Dattatraya Govind Mahajan v. State of
Maharashtra,
AIR 1977 SC 915 [
LNIND 1977 SC 56 ], p. 928 :
1977 (2) SCC 548 [
LNIND 1977 SC 56 ]; S. Sundaram Pillai v. Pattabiraman,
Mr.Srikanth -
Page 77 of 82
(1985) 1 SCC 591 [

LNIND 1985 SC 20 ], p. 612 :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ]; Aphali Pharmaceuticals Ltd. v. State of Maharashtra,
AIR 1989 SC 2227 [
LNIND 1989 SC 454 ], p. 2238 :
1989 (4) SCC 378 [
LNIND 1989 SC 454 ].
18 S. Sundaram Pillai v. Pattabhiraman,

(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], pp. 611, 613 :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ]; Dipak Chandra Ruhidas v. Chandan Kumar Sarkar,
(2003) 7 SCC 66 [
LNIND 2003 SC 614 ], p. 71 :
AIR 2003 SC 3701 [
LNIND 2003 SC 614 ].

AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 733 :
1955 (2) SCR 603 [
LNIND 1955 SC 122 ].
20 Krishna Ayyangar v. Nattaperumal Pillai, ILR 43 Mad 550, p. 564 (PC); Dattatraya Govind
Mahajan v. State of Maharashtra,
AIR 1977 SC 915 [
LNIND 1977 SC 56 ], p. 928 :
1977 (2) SCC 548 [
AIR 1989 SC 2227 [
LNIND 1989 SC 454 ], p. 2238 :
1989 (4) SCC 378 [
LNIND 1989 SC 454 ]; Keshavji Raoji and Co. v. Commissioner of Income-tax,
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ], p. 1818 :
1990 (2) SCC 231 [
LNIND 1990 SC 60 ].
21 See text and note 17, pp. 206-207.

AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 733 :
1955 (2) SCR 603 [
LNIND 1955 SC 122 ].
23 M.P.V. Sundararamier & Co. v. State of Andhra Pradesh,

AIR 1958 SC 468 [
LNIND 1958 SC 20 ], pp. 479, 480 :
1958 SCR 1422 [
LNIND 1958 SC 20 ]; Mohanlal Hargovinddas v. State of M.P.,
AIR 1967 SC 1022 [
LNIND 1966 SC 291 ]:
1967 (2) SCR 88 [
LNIND 1966 SC 291 ].
Mr.Srikanth -
Page 78 of 82
24 Sulochana Amma v. Narayanan Nair,

AIR 1994 SC 152 , p. 156 :
(1994) 2 SCC 14 . See for another illustration Amir Ahmad v. Ram Niwas Agarwala,
AIR 1994 SC 1145 , p. 1148 :
(1994) 2 SCC 50 .
25 M.K. Salpekar (Dr.) v. Sunil Kumar Shamsunder Chaudhari,

AIR 1988 SC 1841 [
LNIND 1988 SC 380 ], p. 1843 :
1988 (4) SCC 21 [
LNIND 1988 SC 380 ].
26 Patel Roadways Ltd. v. Prasad Trading Company,

AIR 1992 SC 1514 [
LNIND 1991 SC 347 ], p. 1518 :
1991 (4) SCC 270 [
LNIND 1991 SC 347 ] (Explanation to
section 20, CPC ).
27 CIT v. Plantation Corporation of Kerala Ltd.,

AIR 2000 SC 3714 [
LNIND 2000 SC 1690 ], p. 3717 :
(2001) 1 SCC 207 [
LNIND 2000 SC 1690 ] :
(2001) 247 ITR 155 [
LNIND 2000 SC 1690 ].
28 See Explanations 1 and 2 in

Article 3 of the Constitution of India added by the
Constitution Eighteenth Amendment Act, 1966. See further Explanation (2) of section 2(15) of the Estate Duty
Act, 1953 and the Controller of Estate Duty v. Kantilal Trikamlal,
AIR 1976 SC 1935 [
LNIND 1976 SC 233 ]: 1977 SCC (Tax) 90 :
(1976) 4 SCC 643 [
LNIND 1976 SC 233 ]; Keshavji Raoji and Co. v. Commissioner of Income-tax, supra. supra.
29 ITO (First), Salem v. Short Brothers (P) Ltd.,

AIR 1967 SC 81 [
LNIND 1965 SC 384 ], p. 83 :
1966 (3) SCR 84 [
LNIND 1965 SC 384 ].
30 Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar,
AIR 1967 SC 389 [
LNIND 1966 SC 253 ], p. 393;
(1967) 1 SCR 848 [
LNIND 1966 SC 253 ]; Oblum Electrical Industries Pvt. Ltd. v. Collector of Customs,
AIR 1997 SC 3467 [
LNIND 1997 SC 1900 ], p. 3471 :
(1997) 7 SCC 581 [
LNIND 1997 SC 1900 ]. But if on a true reading an Explanation widens the scope of the main
section, effect must be given to it : see Hiralal Ratan Lal v. Sales Tax Officer III, Kanpur,
AIR 1973 SC 1034 [
LNIND 1972 SC 476 ], p. 1040 : 1973 SCC (Tax) 307 :
(1973) 1 SCC 216 [
Mr.Srikanth -
Page 79 of 82
LNIND 1972 SC 476 ]; Aphali Pharmaceuticals Ltd. v. State of Maharshtra,

AIR 1989 SC 2227 [
LNIND 1989 SC 454 ], p. 2238 :
1989 (4) SCC 378 [
LNIND 1989 SC 454 ].
31 Y.P. Chawla v. M.P. Tiwari,

AIR 1992 SC 1360 [
LNIND 1992 SC 299 ], p. 1362 :
1992 (2) SCC 672 [
LNIND 1992 SC 299 ].
32 Abdul Latif Khan v. Abadi Begum (Mrs.),

AIR 1934 PC 188 , p. 191 : 61 IA 322; Keshavji Raoji and Co. v. Commissioner of Income-tax,
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ], p. 1818 :
1990 (2) SCC 231 [
LNIND 1990 SC 60 ].
33
(1985) 1 SCC 591 [
LNIND 1985 SC 20 ], p. 613 :
AIR 1985 SC 582 [
LNIND 1985 SC 20 ], referred in M.P. Cement Manufacturer's Association v. State of M.P.,
(2004) 2 SCC 249 , p. 261 :
(2003) 10 Scale 547 [
LNIND 2003 SC 1061 ]; Swedish Match AB v. Securities & Exchange Board of India,
(2004) 11 SCC 641 [
LNIND 2004 SC 854 ].
34 See text and note 20, p. 207 and text and note 17, pp. 206, 207.
35 A.G. v. Lamplough,
(1878) 3 Ex D 214 , p. 229 : 38 LT 87 : 47 LJ QB 555 (brett, L.J.); Ujagar Prints v. Union of
India,
AIR 1989 SC 516 [
LNIND 1988 SC 548 ], p. 531 :
1989 (3) SCC 488 [
LNIND 1988 SC 548 ]; Aphali Pharmaceuticals v. State of Maharashtra,
AIR 1989 SC 2227 [
LNIND 1989 SC 454 ], p. 2237 :
1989 (4) SCC 378 [
LNIND 1989 SC 454 ].
36 See the Schedules appended to the

Constitution of India , the
Companies Act, 1956 , the
Limitation Act, 1963 and the
Motor Vehicles Act , 1939.
37 See Ninth Schedule to the Government of India Act, 1935.
Mr.Srikanth -
Page 80 of 82
38 See 5th and 6th Schedules to the

Constitution of India ; 1st Schedule to the
Code of Civil Procedure, 1908 .
39 A.G. v. Lamplough,
(1878) 3 Ex D 214 , p. 229 : 38 LT 87 : 47 LJ QB 555 (brett, LJ); Ujagar Prints v. Union of
India,
AIR 1989 SC 516 [
LNIND 1988 SC 548 ], pp. 531, 532 :
1989 (3) SCC 488 [
AIR 1989 SC 2227 [
LNIND 1989 SC 454 ], pp. 2237, 2238 :
1989 (4) SCC 378 [
LNIND 1989 SC 454 ].
40 IRC v. Gittus,
(1920) 1 KB 563 , p. 576 (lord sterndale, M.R.); CIT, W.B. v. Calcutta National Bank Ltd.,
AIR 1959 SC 928 [
LNIND 1959 SC 58 ], pp. 941, 942 :
1960 SCJ 980 [
LNIND 1959 SC 58 ]. See further Ujagar Prints v. Union of India, supra;
Aphali Pharmaceuticals Ltd. v. State of Maharashtra, supra.
41 Ibid.
42 Aphali Pharmaceuticals Ltd. v. State of Maharashtra,

AIR 1989 SC 2227 [
LNIND 1989 SC 454 ], p. 2239 :
1989 (4) SCC 378 [
LNIND 1989 SC 454 ].
43 See Modi Spinning & Weaving Mills Co. Ltd. v. Commissioner of Sales Tax,
AIR 1965 SC 957 [
LNIND 1964 SC 256 ]:
1965 (1) SCR 592 [
LNIND 1964 SC 256 ] (Form of Certificate held impliedly modified by change in the Act and
Rules). A form cannot control the Act or the Rules, Life Insurance Corporation of India v. Escorts Ltd.,
(1986) 1 SCC 264 [
LNIND 1985 SC 362 ], p. 319 :
AIR 1986 SC 1370 [
LNIND 1985 SC 362 ].
44 R. v. Bains,
(1840) 112 ER 792 , p. 792 (Lord Denman, CJ).
45 See note 43, supra.
46 Halsbury's Laws of England, Vol. 44, pp. 536, 537 (4th edition). See further Anar Devi v. Nathuram,
JT 1994 (4) SC 164 [
LNIND 1994 SC 523 ], pp. 170, 171 :
(1994) 4 SCC 250 [
LNIND 1994 SC 523 ] (para 16). See further CIT v. Ajanta Electricals,
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1995 (3) Scale 337 : 1995 AIR SCW 3378 :

(1995) 4 SCC 182 [
LNIND 1995 SC 617 ] :
AIR 1995 SC 2172 [
LNIND 1995 SC 617 ]. (A Form prescribed by rules used for interpreting
section 139(2) of the Income-tax Act, 1961 ).
47 CIT (Agr.), W.B. v. Keshab Chandra Mandal,

AIR 1950 SC 265 [
LNIND 1950 SC 21 ]:
1950 SCR 435 [
LNIND 1950 SC 21 ].
48 See Banarsi Das v. Cane Commissioner, U.P.,

AIR 1963 SC 1417 [
LNIND 1962 SC 407 ], p. 1425: 1963 Supp (2) SCR 760 and other cases referred to therein. See
further Virji Ram Sutaria v. Nathalal Premji Bhanvadia
AIR 1970 SC 765 [
LNIND 1968 SC 331 ], pp. 767, 768 :
1969 (1) SCC 77 [
LNIND 1968 SC 331 ]; Maharashtra State Road Transport Corporation v. Babu Goverdhan
Regular Motor Service, Warora,
AIR 1970 SC 1926 [
LNIND 1969 SC 326 ], pp. 1932, 1933 :
1969 (2) SCC 746 [
LNIND 1969 SC 326 ]; Megna Mills Co. Ltd. v. Ashoka Marketing Ltd.,
AIR 1971 SC 166 [
LNIND 1970 SC 451 ], p. 170 :
1970 (3) SCC 168 [
LNIND 1970 SC 451 ]; Shere Punjab Silk Stores, Delhi v. CIT, Delhi,
AIR 1973 SC 2401 [
LNIND 1972 SC 797 ], p. 2405 (para 4) : 1973 SCC (Tax) 437 :
(1973) 4 SCC 206 [
LNIND 1972 SC 797 ].
49 Maharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service,
Warora,
AIR 1970 SC 1926 [
LNIND 1969 SC 326 ], p. 1932 :
1969 (2) SCC 746 [
LNIND 1969 SC 326 ].
50 Britnell v. Secretary of State for Social Security,

(1991) 2 All ER 726 , p. 730 (HL).
51 Ibid.
52 Milkfood Ltd. v. GMC Icecream (P.) Ltd.,

(2004) 7 SCC 288 [
LNIND 2004 SC 439 ], p. 327 (Reference is made to 8th Edn., p. 188 of this book).
53 Britnell v. Secretary of State for Social Security, supra.
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54 K.S. v. Paripoornan v. State of Kerala,

JT 1994 (6) SC 182 , p. 216 :
AIR 1995 SC 1012 , pp. 1035, 1036 :
(1994) 5 SCC 593 :
(1994) 2 KLT 763 .
55 It was such a provision with which the House of Lords was concerned in the case of Britnell v. Secretary of State for
Social Security, supra.
56 See Ninth Schedule to the Government of India Act, 1935.
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 4
External Aids to Construction
1. PARLIAMENTARY HISTORY
(a) English practice
(i) Traditional view.—According to the traditional English view “the ‘intent of the Parliament
which passed the Act’, is not to be gathered from the parliamentary history of the statute”.1 The
Bill in its original form,2 or the amendments considered during its progress in the Legislature,3 are
not admissible aids to construction. The language of a minister of the Crown in proposing in
Parliament a measure which eventually becomes law, is inadmissible;4 and the same rule applies
to the reports of the debates and to the resolutions passed by either House of Parliament.5
Recommendations contained in the report of a Royal Commission which may have led to the
introduction of the measure in Parliament cannot be used as evidence for the purpose of showing
the intention—that is the purpose or object of the Act.6
Since the Courts are entitled to consider such external or historical facts as may be necessary to
understand the subject-matter to which the statute relates,7 or to have regard to the mischief which
the statute is intended to remedy,8 the exclusionary rule was relaxed to admit the reports of the
commissions preceding a statutory measure as evidence of “surrounding circumstances”9 with
reference to which the words in the statute are used. Lord Halsbury, L.C., admitted the report of a
Commission that had been set to inquire into the working of an earlier Act, which had been
superseded by the Act construed by him, and observed: “No more accurate source of information
as to what was the evil or defect which the Act of Parliament now under construction was
intended to remedy could be imagined than the report of that Commission”.10 Lord Atkin in
delivering the opinion of the Privy Council in an appeal from Canada, referred to the report of a
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Royal Commission as “indicating the materials which the Government of the province (Ontario)
had before them before promoting in the Legislature the statute” in question.11 In an appeal from
Ceylon, Lord Oaksey observed: “It is in their Lordships' opinion the correct view, that judicial
notice ought to be taken of such matters as the reports of parliamentary commissions, and of such
other facts as must be assumed to have been within the contemplation of the Legislature when the
Acts in question were passed”.12 Similarly, it is legitimate to look at the report of a committee
leading to legislation so as to see what was the mischief at which the Act was directed.13 In
dealing with the Law of Property Act, 1925, Lord Upjohn considered the proceedings of the joint
committee of both Houses on consolidation bills not for construing the Act but to see whether the
weight of the presumption that a consolidation Act does not alter the existing law was weakened
by anything that took place in those proceedings.14 The House of Lords in Black-Clawsan
International Ltd. v. Papierwerke Waldhof-Aschaffenburg, A.G., 15 unanimously held
that the report of a committee presented to parliament preceding the legislation could be seen for
finding out the then state of the law and the mischief required to be remedied. The majority16
(Lord Reid, Lord Wilberforce and Lord Diplock), however, held that the report could not be
looked at for finding out the intention of Parliament, i.e., for a direct statement of what the
proposed enactment meant even though the report set out a draft bill which was enacted without
any alteration. The minority17 (Viscount Dilhorne and Lord Simon) were of the view that when
the draft bill was enacted without any alteration, it was Parliament's intention to do what the
committee recommended and to achieve the object the committee had in mind, and therefore, the
committee's observations on the draft bill would form the most valuable guide to the intention of
Parliament. Following the majority view it has been held that while considering an Act passed to
give effect to a scheme formulated at a commonwealth law ministers conference, the scheme
could be looked at to see the mischief in need of a remedy and the steps proposed to effectuate the
remedy18 and a white paper preceding a legislation can be used for the same purpose.19
Regulations made under the European Communities Act, 1972 to give effect to the directives of
the Council of European Communities have been construed consistent with the directives by
recousre to the legislative history and by giving to the regulations a purposive construction and if
necessary by reading or implying words which are not there.20 In Pickstone's case21 reference was
made to proceedings in Parliament and to speech of the minister as indicative of the intention of
Parliament in approving the regulations which were made under the European Communities Act,
1972 to give effect to the ruling by the Court of Justice of the European Communities that the
United Kingdom failed to fulfill obligations under the EEC treaty. This case thus made a clear
departure from the traditional rule that Hansard can never be relied on.22
(ii) Criticism of the traditional view.—The distinction drawn between the refusal to admit the
report of a committee or commission for purpose of finding out ‘the intention of Parliament’ and
its relevance as evidence of ‘surrounding circumstances’ or as aid to understand the subject-
matter to which the statute relates or as indicative of ‘the evil or defect which the Act was
intended to remedy’, is somewhat obscure. It has been referred to as “casuistical”23. But the
English practice continued to make this distinction. In R. v. Burke ,24 the House of Lord had
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occasion to construe section 3(1) of the Theft Act, 1978 which insofar as relevant provides: “A
person who knowing that payment on the spot for any goods supplied or services done is required
or expected from him dishonestly makes off without having paid as required or expected and with
intent to avoid payment of the amount due shall be guilty of an offence”. The question before the
House of Lords was whether ‘intent to avoid payment’ required by the section was intent to avoid
payment permanently or merely an intent to avoid payment on the spot. The Act was passed in
persuance of the Criminal Law Revision Committee's Thirteenth Report which indicated that the
mischief intended to be remedied was to rope in those customers who made off “without having
paid and intending never to pay”. The report was accompanied by a draft bill Cl. 3 of which was
in terms identical to section 3 of the Act. The House of Lords held that the words ‘intent to avoid
payment’ as used in the Act meant intent to avoid payment permanently. In holding so they
observed that they used the committee's report “for the purpose of defining the mischief to be
dealt with by the section”25 but that in accordance with the present practice they “did not use it as
an aid to construction”.26 Many less disciplined will say that this is nothing but quibbling in
words. If the key to opening of every law is the reason and the spirit of the law and if a statute is
best interpreted when we know why it was enacted27 then the steps taken for understanding or
defining the object of or the mischief intended to be dealt with by the statute are themselves a part
of the process for getting its meaning. When the court starts upon the task of interpreting a statute,
it is unrealistic and impractical to divide the exercise into different compartments viz. one leading
to discerning the object or mischief and the other leading to discerning the true meaning of the
statute. The exercise in its entirety is one process for discerning the true meaning of the Act or in
other words the intention of the Legislature. In a later case R. v. Burke 28 the House
of Lords construed section 1(3)(a) of the Protection from Eviction Act, 1977. The section enacts:
“If any person with intent to cause the residential occupier of any premises to give up the
premises or any part thereof—does acts calculated to interfere with the peace or comfort of the
residential occupier—he shall be guilty of an offence.” The question before the House of Lords
was whether the acts prohibited by the section must involve a civil wrong. The section was
reenactment of a provision creating criminal offence of harassment in an Act of 1965 which was
enacted in response to the Report of the Committee on Housing in Greater London. The report
revealed a shocking variety of abuses which could not be brought squarely within the purview
either of crime or civil wrong. Having regard essentially to the social evil set out in the Report,
the House of Lords concluded that Parliament deliberately chose the language not to confine the
acts of harassment prohibited by the Act to acts involving a civil wrong. The speech of Lord
Griffith which was agreed to by the other Law Lords does not expressly say whether the Report of
the Committee was used only to discern the mischief or also the intention of Parliament. It is more
realistic to say that it was used for both.29 Reports of Law Commissions preceding a legislation
constitute important material for understanding the legislation and it has been acknowledged that
a careful reading of such a report would have avoided an erroneous construction which was very
soon overruled.30 Another recent case showing the importance of Law Commission's Report in R
v. G 31 which overruled an earlier case of the House of Lords where due importance
was not given to the Law Commission's Report.
Complete exclusion of Hansard and speeches in Parliament was also not always adhered to.
Relevant passages were sometimes quoted in text-books and eminent judges referred to them in
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their judgments from the text book.32 As already seen, proceedings in Parliament and the speech
of the minister were admitted for construing a regulation made under the European Communities
Act, 1972.33
(iii) Modern trend.—The school of thought that limited but open use should be made of
parliamentary history in construing statutes has been gaining ground.34 Direct judicial approval of
this trend by the House of Lords came in Pepper v. Hart. 35 In that case Lord Browne
Wilkinson who delivered the leading speech which was agreed to by five other law Lords (Lord
Keeth, Lord Bridge, Lord Griffiths, Lord Ackner and Lord Oliver), laid down: “Reference to
parliamentary material should be permitted as an aid to the construction of legislation which is
ambiguous or obscure or the literal meaning of which leads to absurdity. Even in such cases
references in court to parliamentary material should only be permitted where such material clearly
discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure
words. In the case of statements made in Parliament, as at present advised, I cannot foresee that
any statement other than the statement of the minister or other promoter of the Bill is likely to
meet these criteria.”36 In reaching this conclusion Lord Browne Wilkinson reasoned that “the
Court cannot attach a meaning to words which they cannot bear, but if the words are capable of
bearing more than one meaning why should not Parliament's true intention be enforced.”37 It was
pointed out that white papers and official reports could be looked at for finding the mischief and
as a ministerial statement made in Parliament was an equally authoritative source of such
information there was no reason why the courts be cut off from this source. Stressing the same
point it was said: “Clear and unambiguous statements made by ministers in Parliament are as
much the background to the enactment of legislation as white papers and parliamentary reports.”38
It was also observed that “the distinction between looking at reports to identify the mischief
aimed at but not to find the intention of Parliament in enacting the legislation is highly
artificial.”39 It was further observed: “Given the purposive approach to construction now adopted
by courts in order to give effect to the true intention of the Legislature, the fine distinctions
between looking for the mischief and looking for the intention in using words to provide the
remedy are technical and inappropriate.”40 As regards the objection that parliamentary materials
are not readily available it was pointed out that the experience in New Zealand and Australia
(where the strict rule has been relaxed for some years) has not shown that the non-availability of
materials has raised any practical problems.41 There was also an objection that recourse to
parliamentary material will be questioning the freedom of speech and debates in Parliament.
Rejecting this objection, it was observed that “far from questioning the independence of
Parliament and its debates, the courts would be giving effect to what is said and done there.”42
The appeal in Pepper's case before the House of Lords was by tax-payers who were teachers in a
school. Under a scheme of the school the members of the staff were entitled to have their children
educated at the school on payment of only onefifth of the normal fee chargeable from members of
the public. “Cash equivalent of this benefit” was chargeable to income-tax under
section 61(1) of the Finance Act , 1976. The concessionary fees more than covered
the additional cost to the school of educating the tax-payers' children. By section 63(1) cash
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equivalent of the benefit meant “an amount equal to the cost of the benefit” and by section 63(2)
cost of the benefit meant “the amount of any expense incurred in or in connection with its
provision.” The crucial question in the case was the true meaning of section 63(2), i.e., whether
the words “the amount of any expense incurred in or in connection with its provision” referred to
the actual expense incurred by the school in providing the benefit or whether they referred to the
hypothetical expense incurred by the school arrived at by the formula of dividing the total cost of
running the school by the number of pupils attending it; or to put it more shortly did they refer to
the additional cost or the average cost of the provision of the benefit. The tax-payers contended
for acceptance of the former construction and the revenue for the latter. The tax-payers' case was
that all the cost of running the school generally would have had to be incurred in any event and
the small additional or marginal cost to the school caused by the presence of their children was
fully covered by the concessional fees that they paid, so the “cash equivalent of the benefit” was
nil as no extra expense was incurred in or in connection with its provision within the meaning of
section 63(2). The House of Lords found section 63(2) ambiguous. Reference was, therefore,
made to the parliamentary history and statements made by the Financial Secretary to the Treasury
during committee stage of the Bill which showed clearly that Parliament had passed the
legislation with the intention that the concessionary benefits for teacher's children would be
worked out on the additional or marginal cost to the employers and not on the average cost. The
construction contended for by the taxpayers was on this basis upheld.
The rule permitting admissibility of parliamentary material to resolve an ambiguity in

interpretation of a statute as laid down in Pepper's case was followed in quick succession as
decisive of statutory ambiguity in Warwickshire County Council v. Johnson 43 ;
Stubbings v. Webb 44 and Chief Adjudication Officer v. Foster 45.
Adverting to this fact in Foster's case Lord Bridge observed: “The significance of this—is to
illustrate how useful the relaxation of the former exclusionary rule may be in avoiding
unnecessary litigation. Certainly in this case, if it had been possible to take account of the
parliamentary material at the outset, it would have been clear that it refuted the appellant's
contention and there would probably never have been any appeal to the Commissioner, let alone
beyond him. I doubt if any of us who were party to the decision in Pepper v. Hart anticipated that
within so short a time after it Hansard would be found to provide the answer in three other cases
before the House. But this encourages the hope that as time passes, the effect of the new rule will
be to prevent or to curtail much litigation relating to ambiguous statutory provisions which would
otherwise be fought through the courts.”46 A word of caution has later been added by the House of
Lords that the new rule should not be misused and that under this rule “the only materials which
can properly be introduced are clear statements made by a minister or other promoters of the Bill
directed to the very point in question in the litigation.”47 It has again been emphasised that the
conditions mentioned in Pepper v. Hart must be strictly satisfied before reference can be made to
speeches in Parliament for interpretation or in other words reference to Parliamentary speeches
can be made only where the legislation is ambiguous obscure or its literal meaning leads to an
absurdity.48 Lord Nicholas in that case said that Parliamentary material admitted as an external aid
on the fulfilment of conditions laid down in Pepper v. Hart constitute “as part of the legislative
background but they are no more than this”; they “cannot control the meaning” and their “weight
will depend on all the circumstances.49 Further, Lord Bingham and Lord Hope in the same case
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observed that when ambiguity relates to the scope of a discretionary power a categorical
assurance by the Minister that the power would not be used in a particular situation may alone be
admissible.50 Lord Nicholas reiterated his views as quoted above in a later case which related to
question of compatibility.51 Lord Steyn, extra judicially,52 has been critical of Pepper v. Hart
According to him its application should be confined to its use against the executive when it
appeared to be going back on an assurance given in Parliament, i.e., to a type of estoppel.49 It is
also doubtful if Pepper v. Hart can be used to extend the ambit of a criminal statute which is
ambiguous for it is arguable that if a criminal statute is ambiguous the defendant should have the
benefit of the ambiguity.53
A minister's speech admissible under the rule laid down in Pepper v. Hart will not be ruled out of
consideration on the ground that it is expressed to be based on the advice of the Attorney-General
for ministers act on advice and “it cannot make any difference whether or not the source of the
advice is made explicit”.54
Relevant publicly available contextual material, e.g., reports of Law Commissions and Law
Revision Committees, are readily admitted in aid of the construction of statutes; but the court
cannot delve into the intention of individual members of the commission or committee and will
not admit their communications as aid to construction.55
Explanatory notes issued by the departments concerned before a Bill is introduced in Parliament,
though not forming part of the Bill, may also be admitted in so far as they cast light on the
objective setting or contextual scene of the statute, and the mischief at which it is aimed.56 A clear
assurance by the executive to Parliament contained in explanatory notes that a power will or will
not be used in certain circumstances may be used against the executive in proceedings where the
executive places a contrary contention before the court.57 Explanatory notes issued on the Act
following its receipt of the Royal assent have also been similarly admitted as aid to construction.58
A more flexible approach may be needed while construing a statute enacted to give effect to an
international convention.59
(b) American practice
In contrast to the traditional English practice, under the American practice the old rule of
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exclusion of parliamentary history has been very much relaxed. Although it is generally accepted
that “debates in Congress are not appropriate or even reliable guides to the meaning of the
language of an enactment”,60 it has been held that the said rule “is not violated by resorting to
debates as a means of ascertaining the environment at the time of enactment of particular law, that
is, the history of the period when it was adopted.”61 Further, it appears to have been well accepted
that “the reports of a committee, including the bill as introduced, changes made in the frame of
the bill in the course of its passage and the statement made by the committee chairman in charge
of it, stand upon a different footing, and may be resorted to under proper qualifications”.62
It is easy to find opponents and supporters of these views. Some critics even in America feel that
recourse to legislative history “is a badly overdone practice of dubious help to true
interpretation”.63 It has been characterised as “the custom of re-making statutes to fit their
histories”, and it has been pointed out that the practice “poses serious practical problems for a
large part of legal profession”. The formal Act “is no longer a safe basis on which a lawyer may
advise his client” and he “must consult all of the committee reports on the bill, and all its
antecedents, and all that its supporters and opponents said in debate, and then predict what part of
the conflicting views will likely appeal to a majority of the court”.64 Further, it is pointed out that
“the most unfortunate consequence of resort to legislative history is that it introduces the policy
controversies that generated the Act into the deliberations of the Court”.65 Prof. Reed Dickerson
after analysing the uses and abuses of legislative history concludes that “the more realistic
approach to legislative history would be to end or severely limit its judicial use”.66 On the other
hand, those who favour the liberal use of legislative materials for purposes of construction say
that “the meaning of the words of a statute be resolved in the light of their setting in the legislative
process rather than in the light of the intuition of the judge”.67 According to this view a liberal use
of legislative material is one of the modern efforts “so that judicial law-making under the guise of
interpretation may be reduced to its necessary minimum”.68
It will appear that a wholesale exclusion of parliamentary history as also a wholesale inclusion
thereof are both extremes equally open to objections, and the correct solution lies in finding out a
middle course as now adopted by the House of Lords.69
(c) Indian view
The Supreme Court, speaking generally, to begin with, enunciated the rule of exclusion of
Parliamentary history in the way it was traditionally enunciated by the English Courts, but on
many an occasion, the court used this aid in resolving questions of construction. The court has
now veered to the view that legislative history within circumspect limits may be consulted by
courts in resolving ambiguities.70 But the court still sometimes, like the English courts, makes a
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distinction between use of a material for finding the mischief dealt with by the Act and its use for
finding the meaning of the Act.71 As submitted earlier this distinction is unrealistic.72 and has now
been abandoned by the House of Lords.73
Indeed, the basis for the rigid view had already been laid by the Privy Council. Lord Watson, in
delivering the opinion of the Judicial Committee, in an appeal which related to the Administrator
General's Act, 1874, differing from the High Court, observed: “Their Lordships observe that the
two learned Judges who constituted the majority in the Appellate Court, although they do not base
their judgments upon them, refer to the proceedings of the Legislature which resulted in the
passing of the Act of 1874 as legitimate aids to the construction of section 31. Their Lordships
think it right to express their dissent from that proposition. The same reasons which exclude these
considerations when the clauses of an Act of the British Legislature are under construction, are
equally cogent in the case of an Indian statute.”74 So it was held that speeches made by the
members of the Constituent Assembly in the course of the debates on the draft
Constitution cannot be admitted as extrinsic aid to the construction of the
Constitution 75
, and similarly the debates in Parliament on a Bill are not admissible
for construction of the Act which is ultimately enacted.76 The reason of the rule was explained by
Patanjali Shastri, J. in Gopalan's case,77 which he subsequently affirmed as Chief Justice in
delivering the opinion of the court in State of Trav.-Co. v. Bombay Co. Ltd., 78 in the
following words: “A speech made in the course of the debate on a bill could at best be indicative
of the subjective intent of the speaker, but it could not reflect the inarticulate mental process lying
behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all
those legislators were in accord”. “A statute”, said Sinha, C.J.I., “is the expression of the
collective intention of the Legislature as a whole and any statement made by an individual, albeit
a minister, of the intention and object of the Act, cannot be used to cut down the generality of the
words used in the statute”.79 Fazl Ali, J. however in Chiranjitlal's case80 admitted parliamentary
history including the speech of the minister introducing the bill as evidence of “the circumstances
which necessitated” the passing of the Act, a course apparently approved in a later decision.81 In
Gopalan's case82 Kania, C.J.I., was of the view that the debates can be referred to, to show that
the use of a particular word was up for consideration at all or not.
The rigid view was slowly given up in subsequent cases. Reference to debates in the Constituent
Assembly was made to support a narrow construction of
Article 16(3) of the Constitution in A.V.S. Narasimha Rao v. State of Andhra
Pradesh, 83 and in Union of India v. Harbhajan Singh Dhillon,
1 extensive references were made to speeches in the Constituent Assembly to support

the construction that wealth-tax on net wealth including capital value of agricultural lands falls
within the residuary power of Parliament. Recently in Indira Sawhney v. Union of India,
2 while interpreting
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Article 16(4) of the Constitution the Supreme Court referred to Dr. Ambedkar's
speech in the Constituent Assembly and observed: “That the debates in the Constituent Assembly
can be relied upon as an aid to interpretation of a constitition provision is borne out by a series of
decisions of this court. Since the expression backward class of citizens' is not defined in the
Constitution , reference to such debates is permissible to ascertain at any rate the
context, background and objective behind them. Particularly where the court wants to ascertain
the ‘original intent’ such reference may be unavoidable.”3 The court, however, earlier clarified
that the debates or even the speech of Dr. Ambedkar could not be taken as conclusive or binding
on the court.4 More recently while interpreting
Article 28(1) of the Constitution , which prohibits ‘religious instructions’ in
educational institutions maintained wholly out of state funds, reference was made to the debates
in the constituent assembly which were said to be “illuminating and helpful” in giving a restricted
meaning to the expression ‘religious instructions’ and in holding that what the Article prohibits is
“teaching of customs, ways of worship practices and rituals” and not study of different religions
existing in India and outside India.5 It is now a settled view that debates in the constituent
Assembly may be relied upon to interpret a provision in the
Constitution .6 Debates in the House on a
Constitution Amendment Bill can also be referred to for the same purpose. Debates
were thus used to hold that para 7 of the Tenth Schedule to the
Constitution inserted by the
Constitution (52nd Amendment) Act, 1985 was enacted with the object to bar the
jurisdiction of the Supreme Court and High Courts under
Articles 136 ,
226 and
227 of the
Constitution and required ratification under the proviso to
Article 368(2) of the Constitution and was ineffective.7
In State of M.P. v. Dadabhoy's New Chirimiri Ponri Hill Colliery Co. (Pvt.) Ltd. 8
reference was made to the speech of the Minister introducing the Bill to find out the object
intended to be achieved and to support a narrow construction of section 30-A of the Mines and
Minerals (Regulation and Development) Act, 1957 as amended in 1958. Further, in Union of
India v. Steel Stock Holders Syndicate 9 reference was made to the speech of the
Deputy Minister introducing the Bill and the objects and reasons for supporting the view that the
object behind Act 39 of 1961 which amended the
Railways Act , 1890 was to extend the liability of the Railway Administration and the
provisions contained in the new sections 72 to 78 did not affect the liability of the Railway
administration to pay damages in accordance with the Contract Act for loss arising from money
being locked up as a result of delay in transit of the goods. Again in K.P. Verghese v. I.T. Officer
10 the speech of the Finance Minister introducing the amendment to amend
section 52 of the Income-tax Act, 1961 by adding sub-section (2) was admitted to
find out the object behind the amendment. Recently Verma J. in R.Y. Prabhoo (Dr.) v. P.K. Kunte
11 madeextensive reference to the speech of the Law Minister in Parliament for construing the
word ‘his’ in
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section 123(3) of the Representation of the People Act, 1951 .
The change brought about in England by the decision of the House of Lords in Pepper v. Hart
12 was noticed by the Supreme Court in P. V. Narsimha Rao v. State. 13 In that case,
in holding that a member of Parliament was a public servant as defined in section 2(c)(viii) of the
Prevention of Corruption Act, 1988 , the court declined to admit the minister's speech
in Parliament for finding the intention of Parliament in enacting the above provision under the
rule of Pepper v. Hart (supra) as according to the court that provision was unambiguous and the
minister's speech was also equivocal.14 The court observed that according to the earlier decisions
of the court, the statement of a minister who had moved the Bill can be looked at to ascertain the
mischief sought to be remedied and object and purpose for which the legislation is enacted, but it
is not taken into account for interpreting the provisions of the enactment.15 The court, however,
did not differ from the view taken in Pepper's case but only found the case to be inapplicable. It is
submitted that the distinction between using a material for finding the mischief to be remedied
and the object or purpose of a legislation and using it for finding the intention of Parliament is
artificial and inappropriate as pointed out is Pepper's case16 and the time has now come to
abandon it in India also. Pepper's case and criticism of the dis-tinction between using a material
for finding the mischief to be remedied and the object or purpose of a legislation and using it for
finding the intention of Parliament as also the submission made above to abandon the distinction
in India also were noticed by the Supreme Court in Surana Steels Ltd. v. Dy. Commissioner of
Income-tax. 17 In this case reference was made to the Finance Minister's speech in
Parliament introducing the Bill to incorporate section 115-J in the

Income-tax Act, 1961 as explaining “the rationale behind its introduction”.18
Reference to Pepper's case was also made in Theyssen Stahlunia GMBH v. Steel Authority of
India, 19 and Haldiram Bhujiawala v. Anand Kumar Deepak Kumar. 20
In none of the cases in which Pepper's case was noticed so far by the Supreme Court there are
observations dissenting from the view taken in that case.
The amendments considered during the progress of the Bill were also ruled out as inadmissible
for purposes of construction of the Act. Patanjali Shastri, C.J.I., speaking for majority of the court
in Ashwini Kumar's case21 observed: “It was urged that acceptance or rejection of amendments to
a bill in the course of parliamentary proceedings forms part of the pre-enactment history of a
statute and as such might throw valuable light on the intention of the Legislature when the
language used in the statute admitted of more than one construction. We are unable to assent to
this proposition. The reason why a particular amendment was proposed or accepted or rejected is
often a matter of controversy, as it happened to be in this case; and without the speeches bearing
upon the motion, it cannot be ascertained with any reasonable degree of certainty. And where the
Legislature happens to be bicameral, the second chamber may or may not have known of such
reason when it dealt with the measure”.22 This principle was again referred to by the Supreme
Court and substantially modified in Express Newspapers' case.23 Bhagwati, J., speaking for the
court observed that there is a consensus of opinion that the circumstances under which a particular
word came to be deleted from the original Bill as introduced in the Parliament and the fact of such
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deletion when the Act came to be passed in the final shape are not aids to the construction of the
terms of the statute.24 He, however, added a rider: “It is only when the terms of the statute are
ambiguous or vague that resort may be had to them for the purpose of arriving at the true intention
of the Legislature”,25 and although asserting that it was not necessary in that case to refer to the
circumstance of deletion of the word ‘minimum’ from the bill, he proceeded in the next paragraph
to consider that very circumstance and to hold that it had the effect of widening the enquiry before
the wage-Board.26 And in Har Sharan Verma v. Tribhuvan Narain Singh 27 while
construing
Article 164(4) of the Constitution that it did not require that a Minister should be a
member of the Legislature at the time of his being chosen as such, the Supreme Court referred to
an amendment which was rejected by the Constituent Assembly requiring that a Minister at the
time of his being chosen should be a member of the Legislature.
As regards the Statement of Objects and Reasons appended to a Bill, Patanjali Shastri, C.J.I., in
Ashwini Kumar's case,28 speaking for the majority of the court, emphatically ruled them out as an
aid to the construction of a statute. To quote his words: “As regards the propriety of the reference
to the Statement of Objects and Reasons, it must be remembered that it seeks only to explain what
reasons induced the mover to introduce the Bill in the House and what objects he sought to
achieve. But those objects and reasons may or may not correspond to the objective which the
majority of members had in view when they passed it into law. The Bill may have undergone
radical changes during its passage through the House or Houses, and there is no guarantee that the
reasons which led to its introduction and the objects thereby sought to be achieved have remained
the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do
not form part of the Bill and are not voted upon by members. We, therefore, consider that the
Statement of Objects and Reasons appended to the Bill should be ruled out as an aid to the
construction of the statute.”29 Similarly, S.K. Das, J. reiterated the principle: “The Statement of
Objects and Reasons is not admissible, however, for construing the section far less can it control
the actual words used”.30 More recently the rule was stated by Sinha, C.J.I., in the following
words: “It is well settled that the Statement of Objects and Reasons accompanying a Bill, when
introduced in Parliament cannot be used to determine the true meaning and effect of the
substantive provisions of the statute. They cannot be used except for the limited purpose of
understanding the background and the antecedent state of affairs leading up to the legislation.”31
In the last mentioned case32 a clear declaration in the Statement of Objects and Reasons that “the
Central Government does not intend to acquire the proprietary rights vested in the States” was
held to be ineffective to cut down the generality of the words used in the statute which was
construed as conferring power upon the Union to acquire the rights of States in Coal bearing
lands. And while considering the validity of Tamil Nadu Act 2 of 1971, the Supreme Court did
not accept the recital in the Objects and Reasons that there was need of opening the office of
priesthood to any person irrespective of cast, creed and race and held that in view of section 28 of
the Act, Archakas could be appointed in accordance with the usage of the institution and hence if
usage of an institution required that Archakas could only be from a particular denomination that
restriction continued in spite of recitals to the contrary in the Objects and Reasons.33
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Similarly in dealing with an Act which in 1954 amended section 89 of the Bombay Panchayat
Act, 1933 and substituted the word ‘building’ in place of ‘houses’, the Supreme Court did not
accept the recital in the Statement of Objects and Reasons that the amendment was made for the
reason that the Panchayats could not levy tax on buildings and held that the word ‘houses’ as
originally used was comprehensive enough to include all buildings including factory buildings
and that the amendment only made explicit what was implicit.34 Further, in holding that section
3(1) of the Customs Tariff Act, 1975 was not a charging section providing for countervailing duty
the Supreme Court did not take into account the recital in the Objects and Reasons which prima
facie indicated to the contrary as there was no ambiguity in the wording of the section.35
Reference to the Statement of Objects and Reasons is permissible for understanding the
background, the antecedent state of affairs, the surrounding circumstances in relation to the
statute, and the evil which the statute was sought to remedy.36 S.R. Das, J. in Subodh Gopal's case
, 37 after referring to Aswini Kumar's case38 and stating that it is well-settled that the
Statement of Objects and Reasons is not admissible as an aid to the construction of statute,
proceeded to add: “I am not therefore referring to it for the purpose of construing any part of the
Act or of ascertaining the meaning of any word used in the Act but I am referring to it only for the
limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of
the Bill to introduce the same and the extent and urgency of the evil which he sought to
remedy”.39 In this case, S.R. Das, J. was in fact using the Objects and Reasons for judging the
reasonableness of the restrictions imposed by the Act on the fundamental right guaranteed under
Art. 19(1)(f) of the Constitution . However, the passage quoted above from his
opinion has not been restricted to that use alone. In construing the words ‘any sale held without
leave of the court of any of the properties’ occurring in
section 232(1) of the Companies Act , 1913 (as amended by Act 22 of 1936),
Bhagwati, J., relying upon the dictum of S.R. Das, J., used the Objects and Reasons appended to
the Bill which became the
amending Act 22 of 1936 for restricting the words ‘any sale held’ to sales held
through the intervention of the Court and not applying to a sale effected by a secured creditor
outside the winding up and without the intervention of the court.40 In another case,41 Bhagwati, J.,
while dealing with
section 16(3) of the Indian Income-tax Act, 1922 , as introduced by the
amending Act IV of 1937, and in construing the words ‘any individual’ and ‘such
individual’ occurring therein restricted their meaning to ‘males’ on a consideration that the
Statement of Objects and Reasons appended to the Bill of the
amending Act made it clear that the evil which was sought to be remedied was the
one resulting from the widespread practice of husbands entering into nominal partnerships with
their wives and fathers admitting their minor children to the benefits of the partnerships of which
they were members and that the only intention of the Legislature was to include the income
derived by the wife or a minor child, in the computation of the total income of the male assessee,
the husband or the father, as the case may be. The Statement of Objects and Reasons was used for
holding that the Orissa Forest Produce (Control of Trade) Act, 1981 did not apply to forest
produce grown in Government forests and that the Act was restricted in its application to forest
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produce grown on private land.42 Recently the statement of Objects and Reasons appended to the
Bill which became the
Prevention of Corruption Act, 1988 was used for holding that “the legislative intent
is manifest” that abettors of all offences under the Act be dealt with along with the public servant
by the special judge appointed under the Act.43 And the Statement of Object and Reasons
appended to the Bill, which became the
Prevention of Corruption Act , 1947, that the changes in the law were being made to
ensure speedy trial of corruption cases, was used for holding that the requirement to furnish a list
of defence witnesses (section 7-A of the 1947 Act corresponding to section 22 of the 1988 Act)
before the accused is called upon to enter his defence enabled the court to shortlist the witnesses
whose examination was unnecessary to prove the defence plea or whose names were added to
delay the trial.44 In construing the proviso to
section 7(1) of the Provincial Small Cause Courts Act, 1887 as amended by Act 9 of
1935, the court relied upon the Statement of Objects and Reasons appended to the Bill for holding
that the requirement of a ‘previous application’ for seeking indulgence of the court to give such
security as the court may order in place of depositing the decretal amount at the time of making an
application for setting aside an exparte decree was mandatory and an application for security
made subsequent to the application for setting aside the exparte decree could not be entertained.45
In District Mining Officer v. Tata Iron & Steel Co., 46 the Statement of Objects and
Reasons, which occurred as a prefatory note after preamble in the Act, was used to limit the
validation by the
Cess and Other Taxes on Minerals (Validation) Act, 1992 to cess and taxes already
collected till 4th April, 1991. And in New India Assurance Co. Ltd. v. Asha Rani. 47
The Statement of Objects and Reasons was used to support the conclusion that section 46 of the
Motor Vehicles (Amendment) Act, 1994 is not clarificatory and retrospective.
Summarising the use of the Statement of Objects and Reasons in the process of construction
Lahoti, J., said: “Reference to the Statement of Objects and Reasons is permissible for
understanding the background, the antecedent state of affairs, the surrounding circumstances in
relation to the statute and the evil which the statute sought to remedy. The weight of judicial
authority leans in favour of the view that the Statement of Objects and Reasons cannot be utilized
for the purpose of restricting and controlling the plain meaning of the language employed by the
legislature in drafting a statute and excluding from its operation such transactions which it plainly
covers.”48 In this case the court declined to restrict the words ‘every person’ in section 170B(1) of
the Madhya Pradesh Land Revenue Code, 1959 to non-tribals by recource to the object stated in
the Statement of Objects and Reasons.
The Statement of Objects and Reasons appended to a Bill seeking the amendment of the
Constitution has similarly been utilised for “the purpose of ascertaining the
conditions prevailing at the time the Bill was introduced and the purpose for which the
amendment was made”.49 It has already been noticed that in Subodh Gopal's case50 S.R. Das, J.
purported to use the Statement of Objects and Reasons to the Bill for judging the reasonableness
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of the Act in the context of the fundamental right under

Article 19(1) of the Constitution .51 Similar use of the Statement of Objects and
Reasons has been made for judging the reasonableness of a classification under an Act to see if it
infringes the fundamental right guaranteed under
Article 14 of the Constitution .52
The Statement of Objects and Reasons has however been held not admissible for determining
whether a certain provision of the Act, which was ultra vires was or was not severable from other
provisions of the Act.53 A recital as to the source of the legislative power in the Statement of
Objects and Reasons is not conclusive.54 Further, when a provision is inserted after the Bill is
introduced and is under consideration before Parliament, the statement of Objects and Reasons of
the Bill cannot obviously throw any light on the circumstances in which the provision came to be
inserted and enacted.55
In Ajoy Kumar Bannerjee v. Union of India, 56 while construing
section 16 of the General Insurance Business (Nationalisation) Act, 1972 the

Supreme Court, relied on the memorandum regarding delegated legislation submitted to
Parliament to explain the object of clause 16 of the Bill which became section 16 of the Act. But
in Shashikant Laxman Kale v. Union of India, 57 it has been held that an explanatory
memorandum is usually not an accurate guide of the final Act. In Hyderabad Industries Ltd. v.
Union of India, 58 notes on clauses were relied upon by a
Constitution Bench for understanding the Legislative intent. The High Court of
Australia permits reference to explanatory memorandum to the Bill in order to ascertain the
mischief which the statute was intended to remedy.59
Reports of Commissions or Inquiry Committees preceding the introduction of a Bill have also
been referred to as evidence of historical facts or of surrounding circumstances or of mischief or
evil intended to be remedied and at times for interpreting the Act. For example, reference was
made to the Indian States Finance Enquiry Committee Reports (1948-49) in Musaliar's case,60 to
the Income-tax Enquiry Report (1936) in Sodra Devi's case,61 to the Press Commission's Reports
(1952-54) in Express Newspapers' case,62 and to the report of a Committee appointed to bring
about changes in Company Law resulting in the passing of
amending Act 63
No. 65 of 1960 in Madanlal's case. And, reference to the report of
the Expert Committee on Financial Provisions was made in Union of India v. Harbhajan Singh
Dhillon. 64 It was however held in CIT, A.P. v. Jayalakshmi Rice and Oil Mills
Contractor Co., 65 that the report of the special committee which had been appointed
by the Government of India to examine the provisions of the Bill which later became the
Partnership Act cannot be admitted for interpreting the provisions of the Act. But in CIT, Gujarat
v. Vadilal Lallubhai, 66 report of the Select Committee was referred to for finding out
the mischief which was intended to be remedied by introduction of section 44-A in the
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Income-tax Act, 1922 . And in R.S. Nayak v. A.R. Antulay 67 a
Constitution Bench of the Supreme Court differing from the view taken in
Jayalakshmi Rice and Oil Mills Contractor Co.'s case held that report of the committee which
preceded the enactment of a legislation, reports of joint parliamentary committee and report of a
commission set up for collecting information leading to the legislation are permissible external
aids to construction of the Act. Following the view in R.S. Nayak v. A.R. Antulay, 68
the Supreme Court in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar, 69 held
that the view taken in Jayalakshmi Rice and Oil Mills Co.'s case is no longer good law and
admitted the Report of the Special Committee which had not been admitted in that case for
construing
section 69(2) of the Partnership Act, 1932 . Further, in Mithilesh Kumari v. Prem
Bihari Khare, 70 the Supreme Court observed that “where a particular enactment or
amendment is the result of recommendation of the Law Commission of India, it may be
permissible to refer to the relevant report.” In that case the report of the Law Commission
preceding the enactment of the
Benami Transactions (Prohibition) Act, 1988 was referred to and relied upon in
holding section 4 thereof to be retrospective. Reference to Law Commission's 41st report was
made for interpreting
section 209 of the Code of Criminal Procedure, 1973 and in reaching the conclusion
that proceedings under that section are ministerial and do not amount to an inquiry as defined in
section 2(g) of the Code.71 It was pointed out that the court in an earlier case72 had taken a
contrary view as it had then not been referred to the Law Commission's report.
Reports of drafting committee and sub-committees of the Constituent Assembly, the draft
Constitution and the changes made thereafter in giving the
Constitution the final shape were referred in interpreting Para 5(2) of the 5th
Schedule, but the inferences derived from this material in majority and minority judgments were
different.73
White paper issued by the Government detailing the facts leading to enactment of a statute is also
admissible for understanding the background when the court is called upon to interpret and decide
the validity of the statute. Extensive reference was made by the Supreme Court to the white paper
for understanding the background of the Ramjanma Bhumi Babri Masjid dispute in deciding the
reference made under Article 143 and the constitutionality of the Acquisition of certain Areas of
Ayodhya Act, 1993.74
It must further be remembered that the Supreme Court and the High Courts in India have often
occasion to consider the reasonableness of a statutory measure in view of the fundamental rights
in the
Constitution , viz., Articles 19 and 14 which cannot be by-passed by the Legislature.
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This duty opens up a much wider enquiry than that could be undergone under the British
Constitution 75 and, therefore, the courts in India have reason to look
much beyond the Act for finding the circumstances and the mischief or evil necessitating the
statutory measure. In Chiranjitlal's case,76 Fazl Ali, J., made extensive reference to parliamentary
proceedings including the speech of the Minister to discern “the circumstances which
necessitated” the enactment of the Sholapur Spinning and Weaving Company (Emergency
Provisions) Act, 1950: and the information gained from this material was used to justify
Parliament in treating the Sholapur Mill as a class by itself. This course adopted by Fazl Ali, J.,
was apparently approved in Musaliar's case.77 In determining such issues even affidavit evidence
of “the circumstances which prevailed at the time when the law had been passed and which
necessitated the passing of that law”, has been admitted.78 In Mohd. Hanif Quareshi v. State of
Bihar, 79 where the Supreme Court considered the constitutionality of various State
Legislations banning slaughter of certain animals, references were made to religious books;
Reports of Gosamvardhan Enquiry Committee of U.P. (1953); Report on the Marketing of Cattle
in India; Report of Marketing of Hides in India; the First and Second Five-year Plans;
Memorandum on Human Nutrition vis-a-vis Animal Nutrition in India by Nutrition Advisory
Committee; Report of Cattle Preservation and Development Committee of the Government of
India, 1948, etc., and it was stated that “in order to sustain the presumption of constitutionality the
court may take into consideration matters of common knowledge; matters of common report; the
history of the times; and may assume every state of facts which can be conceived existing at the
time of legislation”.80 Reference may also be made to Bhikusa Yamasa Kshatriya (P) Ltd. v.
Union of India, 81 where Reports of Royal Commission on Labour in India, 1929;
and Labour Investigation Committee, 1942, were taken into account to uphold the
constitutionality of
section 85 of the Factories Act, 1948 . To take another example, in Shriram Chits &
Investments (P.) Ltd v. Union of India 82 reference was made to the report of the
Banking Committee prepared in the year 1972, the report of the study group on Non-banking
Financial Intermediaries constituted by the Banking Commission; Raj Committee report and the
report of the Select Committee of Parliament in upholding the reasonableness and validity of the
Chit Fund Act, 1982 . It is evident that for purposes of construction proper, such a
wide range of investigation will not be permitted even though the court is entitled to look into
surrounding circumstances or historical facts for purposes of discerning the mischief or evil
sought to be remedied.83
2. HISTORICAL FACTS AND SURROUNDING CIRCUMSTANCES
It has already been noticed that the court is entitled to take into account “such external or
historical facts as may be necessary to understand the subject-matter of the statute” or to have
regard to “the surrounding circumstances” which existed at the time of passing of the statute.84 As
stated by Lord Halsbury: “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 legitim ate
topics to consider in ascertaining what was the object and purpose of the Legislature in passing
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the Act”.85 In the words of Lord Atkinson: “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 the statute was passed and to the evils, which, as appears from the provisions, it was
designed to remedy”.86 The Supreme Court (S.K. Das, J.) has referred with approval the following
passage from an American decision: “We are not limited to the lifeless words of the statute and
formalistic canons of construction in our search for the intent of Congress (Parliament in our case)
and courts in construing a statute, may with propriety refer to the history of the times when it was
passed”.87 However, an argument based on history is not to be pushed too far as “the inferences to
be drawn therefrom are exceedingly slight”.88 Like any other external aid, the inferences from
historical facts and surrounding circumstances must give way to the clear language employed in
the enactment itself. The rule of admissibility of this external aid in case of ambiguous enactments
is of general application and a number of cases in this respect have already been discussed while
dealing with the rule in Heydon's case,89 and the admissibility of parliamentary History.90
The rule permits recourse to historical works, pictures, engravings and documents where it is
important to ascertain ancient facts of a public nature;91 and reference may be made to
contemporary treatises which may have influenced the law-makers in using a particular phrase in
the statute.92 An interesting example is furnished in the use made of Mill's Political Economy for
interpreting the phrase ‘direct taxation’ in the British North America Act, 1867. To quote the
words of Viscount Simon, L.C. “The guide to be followed is that provided by the distinction
between direct and indirect taxes which is to be found in the treatise of John Stuart Mill. The
question, of course, as Lord Herschell said, is not what is the distinction drawn by writers on
political economy but in what sense the words were employed in the British North America Act,
1867. Mill's Political Economy was first published in 1848 and appeared in a popular edition in
1865. Its author became a member of Parliament in this latter year and commanded much
attention in the British House of Commons. Having regard to his eminence as a political
economist in the epoch when the Quebec resolutions were being discussed and the 1867 Act was
being framed, the use of Mill's analysis and classification of taxes for the purpose of construing
the expression now under review is fully justified.”93
The policy followed in the working of an earlier Act can be presumed to be known to Parliament
while legislating subsequently on a related subject and will thus be admissible in construing the
later Act.94 Thus the policy followed by the local authorities in providing adequate
accommodation for gipsis (including those who are only seasonally nomadic) residing in or
resorting to their area under section 6 of the Caravan Sites Act, 1968 was held admissible as a
powerful pointer to the intention of the Legislature in excluding local authority sites ‘providing
accommodation for gipsies’ from the definition of protected site in seciton 5(1) of the Mobile
Homes Act, 1983.95
The function of the court being to find out the intention of the Law-makers, the court has to
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discover that particular meaning of a given word in an enactment which the law-maker intended it
to be given. In case of older statutes a knowledge of the historical facts relating to them helps in
understanding the meaning of ambiguous words and expressions used in them. “For the purpose
of appreciating the scope and object of an old statute and for explaining its language which may
be susceptible of different meanings”, observed Mukherjee, J., “It may be useful to remember the
well-known historical facts that led to the enactment.”96 Mukherjee, J., proceeded to say: “It is a
settled canon of construction that the interpreter should place himself, as far as possible, in the
position of those whose words he is interpreting and the meaning of certain words and terms used
in an ancient document or a statute can be properly explained only by reference to the
circumstances existing at the time when the statute was enacted or the document was written.”1
The court in deciding that production bonus was not included in the definition of ‘basic wages’ in
section 2(b) of the Employees'
Provident Funds Act , 1952, which expressly excluded ‘bonus’, observed that the
exclusion of bonus without any qualification must be referrable to every kind of bonus prevalent
in the industrial field before 1952 and in that connection the court noticed the circumstance that
production bonus was prevalent in industrial concerns long before 1952.2
Historical evolution of a provision in the statute is also sometimes a useful guide to its
construction.3
3. LATER SOCIAL, POLITICAL AND ECONOMIC DEVELOPMENTS AND

SCIENTIFIC INVENTIONS
(a) General
It is possible that in some special cases a statute may have to be historically interpreted “as if one
were interpreting it the day after it was passed.” But generally statutes are of the “always speaking
variety” and the court is free to apply the current meaning of the statute to present day
conditions.4 There are atleast two strands covered by this principle. The first is that courts must
apply a statute to the world as it exists today. The second strand is that the statute must be
interpreted in the light of the legal system as it exists today.5 Reference to the circumstances
existing at the time of the passing of the statute does not, therefore, 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 the passing of the statute.
“Legislative standards are generally couched in the terms which have considerable breadth.
Therefore a statute may be interpreted to include circumstances or situations which were
unknown or did not exist at the time of enactment of the statute.”6 The question again is as to
what was the intention of the law makers: Did they intend as originalists may argue, that the
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words of the statute be given the meaning they would have received immediately after the
statute's enactment or did they intend as dynamists may contend that it would be proper for the
court to adopt the current meaning of the words The courts have now generally leaned in favour
of dynamic construction.7 But the doctrine has also its limitations. For example it does not mean
that the language of an old statute can be construed to embrace something conceptually different.8
The guidance on the question as to when an old statute can apply to new state of affairs not in
contemplation when the statute was enacted was furnished by Lord Wilberforce in his dissenting
speech in Royal College of Nursing of the U.K. v. Dept. of Health and Social Security,
9 which is now treated as authoritative.10 Lord Wilberforce said: “In interpreting an Act of
Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and
known by Parliament to be existing, at the time. It is a fair presumption that Parliament's policy or
intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this
being not such a case when a new state of affairs, or a fresh set of facts bearing on policy, comes
into existence, the courts have to consider whether they fall within the parliamentary intention.
They may be held to do so, if they fall within the same genus of facts as those to which the
expressed policy has been formulated. They may also be held to do so if there can be detected a
clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally
these principles may be applied must depend on the nature of the enactment, and the strictness or
otherwise of the words in which it has been expressed. The courts should be less willing to extend
expressed meanings if it is clear that the Act in question was designed to be restrictive or
circumscribed in its operation rather than liberal or permissive. They will be much less willing to
do so where the new subject matter is different in kind or dimension from that for which the
legislation was passed. In any event there is one course which the courts cannot take under the
law of this country: they cannot fill gaps; they cannot by asking the question, ‘What would
Parliament have done in this current case, not being one in contemplation, if the facts had been
before it ’ attempt themselves to supply the answer, if the answer is not to be found in the terms of
the Act itself.”11
As stated by Lord Bridge: “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.”12 Thus, when in the changed circumstances the common law fiction that by marriage the
wife must be deemed to have irrevocably consented to sexual intercourse in all circumstances has
become anachronistic, the husband can be convicted of rape under the Sexual Offences
(Amendment) Act, 1976, if he has sexual intercourse with his wife without her consent.13
The effect of change in social attitude bringing about a change in interpretation is also reflected in
the construction of the word ‘person’. In bad old days when the common law incapacitated
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women from exercising political rights, the word ‘person’ in section 27 of the Representation of
the People (Scotland) Act, 1868 was held in 1909 not to include women thereby disentitling them
to vote.14 In contrast the word ‘person’ in section 24 of the British North America Act, 1867 was
held by the Privy Council in 1929, overruling the Supreme Court of Canada, to include women as
eligible to become members of the senate of Canada.15 And, in the light of importance of the
freedom of expression in the law as it now exists, qualified privilege granted to news paper
reports of any ‘public meeting’ by the Defamation Act (Northern Ireland), 1955 was construed to
cover the report referring to contents of a press release distributed at a press conference but not
read aloud and the press conference was held to be a ‘public meeting’.16
Further, with the change in social attitude towards homosexuals, two persons of the same sex
cohabiting and living together for a long time with mutual degree of interdependence have been
held as constituting a ‘family’;17 but till recently they were not regarded as husband and wife,18
though different sex partners living together without marriage were so regarded under a special
provision.19 Now after the enforcement of the Human Rights Act, 1998 in England from October
2000 for giving effect to the European Convention on Human Rights, Article 14 of which makes
sexual orientation as an impermissible ground of discrimination, the same statute has been
construed to regard even same sex partners living together as husband and wife to avoid
incompatibility with human rights.20 As cautioned by Lord Slynn “when considering social issues
in particular judges must not substitute their own views to fill gaps”.21 Thus though there is
considerable change in social attitudes towards transsexuals, the court of Appeal in Bellinger v.
Bellinger 22 held that a male-to-female transsexual who underwent irreversible
surgery for gender reassignment could not in the absence of legislation of Parliament, be treated
as ‘female’ for purposes of marriage under section 11(c) of the Matrimonial Causes Act, 1973 and
her marriage with a male was held to be void. But in Goowin v. U.K., 23 the
European court of Human Rights, expressed the view that in the twenty first century the right of
transsexuals to personal development and to physical and moral security in the full sense enjoyed
by others in society could not be regarded as a matter of controversy requiring the lapse of time to
cast clearer light on the issues involved.24 The court directed the Government of the United
Kingdom to implement such measures in due course as it considered appropriate “to fulfill its
obligations to secure the applicant's (a post operative male to female transsexual) and other
transsexual's right to respect for private life and right to marry in compliance with the
judgment.”25 Soon thereafter the Court of Appeal in A v. Chief Constable of Yorkshire
26 held that a post operative male to female transsexual was to be regarded as female for purposes
of complaint of sex discrimination and the House of Lords in appeal in the case of Bellinger v.
Bellinger 27 declared section 11(c)of the Matrimonial Causes Act, 1973 incompatible
with the Convention rights. The House of Lords later in appeal confirmed the decision of the
court of Appeal in A v. Chief Constable of Yorkshire 28 on the ground that a
transsexual had a right to be recognised his or her reassigned gender for the purposes of
discrimination between men and women in the fields covered by the Equal Treatment Directive of
the Community law and section 54(9) of the Police and Criminal
Evidence Act , 1984 which requires that intimate searches must be carried out by a
constable who ‘shall be of the same sex as the person searched’.
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On the same principles, general words are construed to include new inventions and technological
advances not known at the time when the Act was passed. It has, accordingly, been held that
telephone is ‘telegraph’ within the meaning of that word in the Telegraph Acts, 1863 and 1869
although telephone was not invented in 1869;29 that a photographic copy is ‘copy’ under the
Engraving
Copyright Act , 1734;30 and that an electric tram car is a stage carriage within the
meaning of the Stage Carriage Act, 1832.31 Similarly, ‘broadcasting’ has been held to be covered
by the word ‘telegraph’ as used in the phrase ‘Telegraph & other works and undertaking’ in
section 92(1)(a) of the British North America Act, 1867;32 and radio broadcasting has been held to
be included in the expression ‘postal, telegraphic, telephonic and other like services’ under
section 51(5)of the Australian
Constitution 33
. Following the same principle, it has been held by the Supreme Court
that the definition of ‘telegraph line’ in the
Indian Telegraph Act, 1885 , which is included by reference in the Indian
Electricity Act , 1910, is wide enough to take in electric lines used for the purpose of
wireless telegraph;34 the definition of ‘cinematograph’ contained in
section 2(e) of the Cinematograph Act, 1952 and in Cinema Regulation Acts enacted
by the States in 1952 will cover video cassette recorders/players (developed in 1970s) for
representation of motion pictures on a television screenthe35 word ‘handwriting’ in
section 45 of the Evidence Act, 1872 will embrace typewriting although it was only
in 1874 that the first practical typewriter was marketed36 and evidence taken of a witness in
America by video conferencing in India where the accused is being tried will satisfy the
requirement of evidence taken in presence of the accused under
section 273 of the Criminal Procedure Code enacted in 1973 when the technique of
37
video conferencing had not developed. Similarly the provision in section 14 of the Punjab
General Sales Tax, 1948 authorising the officers to seize account books and return the same after
putting their signature and seal was also held to apply when the account books were contained in
a hard disk. It was pointed out that the provision could be complied with by seizing the hard disk.
The officers could make out copies of the said hard disk or obtain a hard copy and fix their
signature and official seal in physical form thereupon and furnish a copy thereof to the dealer.38
When the new technological advances becoming known after the passing of the statute fall within
the same genus covered by it and when its purpose would be defeated unless extension were
made, the court may even be willing to strain the language a bit to cover the new advances. On
these considerations section 1(1) of the Human Fertilisation and Embryology Act, 1990 which
defines ‘embryo’$K to mean ‘a live human embryo where fertilisation is complete’ was construed
to cover even an embryo produced not by fertilisation but by cell nuclear replacement (CNR), a
method developed by scientists after 1990, by reading the definition of embryo to mean ‘a live
human embryo where if it is produced by fertilisation fertilisation is complete’.39
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Dealing with
section 123 of the Indian Evidence Act, 1872 , and the phrase ‘affairs of the State’,
Gajendragadkar, J. observed: “It may be that when the Act was passed, the concept of
Governmental functions and their extent was limited; and so was the concept of the words ‘affairs
of the State’ correspondingly limited; but as is often said, words are not static vehicles of ideas or
concepts. As the content of the ideas or concepts conveyed by respective words expand, so does
the content of the words keep pace with the said expanding content of the ideas or concepts and
naturally tend to widen the field of public interest which the section wants to protect.”40 Similarly
while considering the word ‘necessaries’ in section 5 of the Admirality Courts Act, 1861, Sinha J.
observed: “Global changes and outlook in trade and commerce could be a relevant factor.—What
was not considered a necessity a century back may be held to be so now.”41
In dealing with the word ‘textiles’ and in holding that cotton/woollen dry felts are textiles, the
Supreme Court said that it must be remembered that the concept of textiles is not a static concept
and it has, having regard to newly developing materials, methods, techniques and processes, a
continually expanding content and new kinds of fabrics may be invented which may legitimately,
without doing any violence to the language, be regarded as textiles.42
When a comparatively modern device and equipment was becoming in vogue at the time when
the Act was enacted, there can be no difficulty in holding that general words used in the Act will
cover such device and equipment. Thus ‘notice in writing’ required by section 138 of the
Negotiable Instrument Act, 1881, which was inserted in 1968 when Facsimile (Fax) had become
vogue was held to include notice transmitted by Fax.43
A domain name, the original role of which was only to provide an address for computers on the
internet now after it is being used as a business identifier and provides information/services on the
internet has been held to be a trade mark under section 2(zb) of the
Trade Marks Act ], 1999 and passing off action can be based on it.44
In yet another case relating to the

Indian Penal Code, 1860 , the Supreme Court pointed out that the Code should as far
as its language permits, be construed with reference to modern needs not with reference to notions
of criminal jurisdiction prevailing at the time when the Code was enacted.45
A distinction is said to exist in this respect between ancient statutes and statutes which are
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comparatively modern. The principle is thus explained by Subbarao, J.: “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 a 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
fast moving must be presumed to be aware of an enlarged meaning the same concept might attract
with the march of time and with the 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.”46
(b)
Constitution Acts47
Insofar as a
Constitution Act is concerned, there is greater reason in giving to its language a
liberal construction so as to include within its ambit the future developments in various fields of
human activity than in restricting the language to the state of things existing at the time of the
passing of the Act.48 A
Constitution unlike other Acts is intended to provide an enduring instrument to serve
through a long lapse of ages without frequent revision. It is not only designed to meet the needs of
the day when it is enacted but also the needs of the altering conditions of the future. It contains a
framework of Government, a mechanism for making laws and resolution of constitutional
disputes; and in a federation distribution of legislative fields between the centre and the units. It
very often refers to the ideals which it seeks to achieve and secures certain fundamental rights to
the citizens. The fields of legislation, the ideals and the rights are expressed in general terms
which are compressed sentences if not Chapters. “In the interpretation of a constitutional
document ‘words are but a framework of concepts and concepts may change more than words
themselves’. The significance of the change of the concepts themselves is vital and the
constitutional issues are not solved by a mere appeal to the meaning of the words without an
acceptance of the line of their growth. It is aptly said that ‘the intention of a
constitution is rather to outline principles than to engrave details’.”49 A
Constitutional court, like our Supreme Court, is a nice balance of jurisdictions. It declares the law
as contained in the
Constitution but in doing so it rightly reflects that a
Constitution is a living and organic thing which of all instruments has the greatest
claim to be construed broadly and liberally50 with an object oriented approach51 and the
experience gained in its working.52 The principle of broad and liberal construction does not,
however, mean that limitations based on its scheme and basic structure cannot be read into its
language when it becomes necessary to do so.53 The judicial function of the court in interpreting
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the
Constitution thus presents an “antinomy”. It calls both for building upon a continuity
of principles found in the instrument and for meeting the dominant needs and aspirations of the
present.54
A court has more freedom in the interpretation of a

Constitution than in the interpretation of other laws55 “The great generalities of the
Constitution have a content and a significance that vary from age to age”56 and so the
court is not bound to accept the meaning of a provision in a
Constitution according to the original understanding of its makers. 57
It cannot however be said that the rule of literal construction or the golden rule of construction has
no application to interpretation of the
constitution 58
. So when the language is plain and specific and the literal construction
produces no difficulty to the constitutional scheme, the same has to be resorted to.59 Similarly
where the
constitution has prescribed a method for doing a thing and has left no ‘abeyance’ or
gap, if the court by a strained construction prescribes another method for doing that thing, the
decision will become open to serious objection and criticism.60
The freedom and flexibility available to a court in dealing with a

Constitution can be illustrated by taking a few examples.
Paragraph (2) of the 10th schedule to the

constitution which provides for disqualification of a member of a House ‘if he has
voluntarily given up his membership of such political party’ from which he was elected has been
widely construed to promote the object of curbing the menace of unprincipled defection and
therefore to cover cases where the member has impliedly given up the membership.61 Similarly
the word ‘aggression’ in Article 355 has been given a wide meaning to include incessent flow of
illegal immigrants from Bangladesh into Assam.62
Article 21 of the Constitution provides: “No person shall be deprived of his life or
personal liberty except according to procedure established by law”. It was understood originally
to provide merely that no one can be deprived of life or liberty by executive action unsupported
by law.63 But later decisions have progressively deduced a whole lot of human rights from Art. 21
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which are not enumerated therein, e.g., the right not to be hounded out by the Police or CBI
merely to find out whether the person has committed any offence or is living as a law abiding
citizen;64 the right to legal aid and speedy trial; the right to means of livelihood; the right to
dignity and privacy; the right to health and pollution free environment; the right to education.65
This enumeration is not exhaustive and more and more rights are being spelled out of Art. 21. The
more recent additions are the right that a friend or relative of an arrested person be informed of
the arrest and of the place of detention;66 the right to a free, fair and impartial trial;67 the right to
bail68 and even of discharge or acquittal69 when the trial is delayed; the right of atleast one appeal
against conviction with the right to apply for suspension of sentence;70 the right of a worker to
medical aid;71 the right of an employee to receive subsistence allowance during suspension;72 the
right to residence and settlement to live with dignity;73 the right to regulation of traffic in busy
cities for ensuring public safety;74 the right to hygiene, clear and safe environment, freedom from
stray cattle and animals in urban areas;75 the right of children to protection against exploitation,76
the right of a woman for protection against sexual harassment at the place of workand77 the right
to sustained development, i.e., right to development coupled with protection of environment.78
Briefly stated the protection under Article 21 is to all those aspects of life which go to make a
man's life meaningful, complete and worth livingit79 will cover his tradition, culture, heritage and
health The80 protection of Article 21 is not restricted to citizens but covers even a foreigner when
he is in Indiaone81 may wonder as to what remains outside Article 2 except right not to live a
forced life which too was earlier conceded by a two judge bench82 but later that view was
overruled by a
Constitution 83
Bench. Right to life does not also include a right to enjoy all the
materialistic pleasures and to procreate as many children as possible, therefore, a provision
disqualifying a person having more than two children from contesting a Panchayat or Municipal
election has been held to be valid.84 The right to life does not also at present include right to
employment.85 The human rights enumerated above were so derived from Article 21 mainly by
reading the Directive Principles (more specifically Articles 39, 39A, 41, 42 and 45) in or with
Article 21 and thereby in effect making the Directive Principles in Part IV enforceable, even
though Article 37 provides that these Principles shall not be enforced by any court,86 and it is
accepted that these Principles by themselves do not confer any legislative power.87 The Supreme
Court has, thus, by interpretation brought in the ‘due process’ concept of the American
Constitution which the
Constitution 88
makers deliberately avoided to incorporate. A guarantee of right to
life has been construed broadly even in other jurisdictions89 but not as broadly as in India. Too
much reliance by the Supreme Court on Article 21 and its extensive extension by judicial
extrapolation has given rise to the criticism that all sorts of “goodness” so derived as rights from
Article 21 “are only euphoric—they simply cannot be enforced.”90 Another criticism of the way
Article 21 has been interpreted is that if that were correct “the entire scheme of Part III could have
been telescoped into only one provision namely Article 21.”91
Fundamental duties of citizens contained in Article 51A of Part IVA of the

Constitution , which by themselves are not enforceable for “it may be necessary to
enact suitable legislation whereever necessary to require obedience of obligations by the
citizens”,92 have also been used alongwith Directive Principles for interpretation of the
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constitution .93Article 48A added as a new directive principle and Article 51A
providing fundamental duties, both added by the
Constitution 42nd Amendment, read along with the directive principle in Article 48
were strongly relied upon in State of Gujarat v. Mirzapur Moti Kureshi Kassab jamat
94 by a
Constitution Bench of seven judges while upholding by a majority of six to one the
validity of the Gujarat Act 4 of 1994 which imposed total ban on the slaughter of progeny of cow.
This case overruled an earlier
Constitution Bench decision in Mohd. Hanif Quareshi v. State of Bihar
95 and cases following it which permitted slaughter of bullocks when they ceased to be serviceable
after the age of 16 years. Article 48 requires the State to take steps for ‘prohibiting the slaughter
of cows and calves and other milch and draught cattle.’ The provision was interpreted in Mohd.
Hanif Quareshi to be confined only for giving protection to cows and calves and those animals
which are presently or potentially capable of yielding milk or of doing work as draught cattle but
not to extend to cattle which at one time were milch or draught cattle but which had ceased to be
such. This view was not accepted in Kureshi Kassab Jamat and the words ‘milch and draught
cattle’ used in Article 48 were given expansive interpretation to include even cattle which had
become permanently incapacitated for milch and draught purposes.1 The court held that “the
expression ‘milch and draught cattle’ is a description of a classification or species as distinct from
cattle which by their nature are not milch or draught and the said words do not exclude milch or
draught cattle which on account of age or disability cease to be functional for that purpose.” This
meaning the court reached in the context of the preceding words “cows or calves”. It is submitted
that the specific mention of ‘cows’ showed that the intention was to give special protection to
cows irrespective of whether they were functional or not as milch cattle. If the intention was to
give the same protection to all milch and draught cattle there would not have been any specific
mention of ‘cows’ which on the interpretation which has found favour with the court becomes
redundant. The wording then would have been ‘milch and draught cattle and calves’. It was also
reasoned that cow progeny excreta is scientifically recognized as a source of rich organic manure
by the farmers which avoids the use of chemicals and inorganic manure and helps in improving
the quality of health and environment within the meaning of Article 48A. This factor was not
overlooked in Mohd. Hanif Quareshi, though Article 48A was then not in the
Constitution . As observed by A.K. Mathur, J. it was admitted that the output of urine
and cow dung of aged bulls and bullocks was considerably reduced. The little benefit on this
account has to be ignored having regard to the cost of maintenance of useless cattle which, as
pointed out in Mohd. Hanif Quareshi, involves a severe drain on the nation's cattle feed, deprives
the useful cattle of much needed nourishment and tends to deteriorate the breed. Further, Article
51A(g) of the Fundamental Duties which enjoins as a fundamental duty of every citizen “to have
compassion for living creatures” was strongly relied upon in Kureshi Kassab Jamat for protecting
the slaughter of aged bulls and bullocks and in upholding total ban on the slaughter of progeny of
cow. It was reasoned that as the State is “all citizens placed together”, the fundamental duty in
Article 51A(g) is collectively speaking duty of the State. It was also held that in “testing the
constitutional validity of any statutory provision or an executive act or for testing the
reasonableness of any restriction cast by law in the exercise of fundamental right by way of
regulation, control or prohibition, the directive principles of State policy and fundamental duties
as enshrined in
Article 51A of the Constitution 2
play a significant role.” It is submitted that reliance
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on the fundamental duty ‘to have compassion for living creatures’ for prohibiting slaughter of
even such animals, which have ceased to be useful as milch or drught cattle, for production of
meat is a bit far fetched. If this view be correct the State will be duty bound to pass legislation
banning not only slaughter of bullocks but also of buffalos, goats and sheep and killing of all
living creatures, compelling all those engaged in the businesses of production and sale of meat
and edible flesh to close their businesses and forcing Indian citizens to become total vegetarians.3
It has, however, been held that Articles 48 and 58A by themselves do not make a legislation
which imposes a total prohibition on slaughter of bovine cattle and make their slaughter
unconstitutional.4 It is submitted that the dissenting judgment of A.K. Mathur, J. in Kureshi
Kassab Jamat is more convincing and Mohd. Hanif Quareshi ought not to have been overruled.
Decline of the doctrine of Sovereign Immunity which originated from the interpretation by a
constitution bench5 of Article 300 on the basis of its historical origin6 and the
evolution of the concept of public law wrongs and strict liability of the State for such wrongs7 is
also an example how interpretation of the
Constitution is not static but progressive to absorb new ideas and meet new
situations. As the law now stands, a violation of fundamental rights by the State, or its
instrumentalities or their officers acting in the course of employment is a public law wrong to
which the doctrine of sovereign immunity has no application and the State is liable to compensate
the victim on the principle of strict liability.8 The cases of Nilbati Behra and D.K. Basu (f.n. 8)
related to violation of fundamental right under Articles 21 but the observations made in, Nilbati
Behra decided by a three Judge Bench, are general that violation of fundamental rights will be a
public law wrong redressable by award of compensation under Articles 226 and 32. But another
three judge Bench, however in Hindustan Papers Corporation v. Ananta Bhattacharjee
9 has held that the public law remedy for compensation can be resorted to only when the
fundamental right of a citizen under Article 21 is violated and not otherwise. The court further
said that “it is not every violation of the provisions of the
Constitution or a statute which would enable the court to direct grant of
compensation.” The
constitution bench decision in Kasturilal though not yet overruled by another
constitution bench has been bypassed, distinguished and criticised in so many later
decisions that as observed by a three judge bench “much of its efficacy as a binding precedent has
been eroded.”10 But with the widening of the area of fundamental rights under Article 21 by
liberal interpretation as discussed above11 it may become difficult even to hold that any breach of
any right under Article 21 will amount to a public law wrong and sound in damages otherwise the
blame for every misfortune will be laid at the doorstep of the State. The law on the point is in a
developing stage and the Supreme Court is yet to devise some control mechanism to limit the
cases where damages can be allowed against the State on the basis of strict liability. It is
submitted that the law in this area should be developed incrementally on the principles of analogy
and fairness. If in a new situation not covered by an authority of the Supreme Court a question of
this nature arises it may be seen as to how far the new situation resembles to those situations
where damages have been allowed and whether it would be fair just and reasonable to award
damages against the State in public law. This is the method which is followed in tort law in
deciding cases of negligence which are not covered by authority. A distinction may also have to
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be drawn between State's liability to pay damages in public law for violation of fundamental
rights and its duty as a welfare state to provide relief to needy citizens. Whatever may be said
about limiting the liability of other organs and instrumentalities of the State, the Supreme Court
and High Courts are safe for as held by a
constitution bench of the Supreme Court, superior courts of justice do not fall within
the definition of State in
Article 12 of the Constitution and, therefore, they cannot be accused of violation of
fundamental rights and the public law remedies under Articles 32 and 226 are not available
against their orders.12 It is, however, interesting to note that in the case of Maharaj v. Attorney
General of Trinidad and Tobago, 13 which was followed by the Supreme Court in
Nilbati Behra v. State of Orissa 14 and which evolved the doctrine of public law
wrongs, the violation of human rights was by a judge of the High Court acting in his judicial
capacity and the State was held liable in damages. And, in Omwati v. State of U.P.,
15 when a person remained in jail for a few days because of bailable warrants issued by the High
Court the orders for which were passed as a result of “total non-application of mind” the Supreme
Court allowed Rs. 10,000 as token compensation payable by the State.
Another illustration of the same nature is the interpretation of the requirement of consultation with
the Chief Justice of India in
Articles 124 ,
217 and
222 of the
Constitution .
A seven judge Bench of the Supreme Court16 by majority earlier held that the power of
appointment and transfer of judges is an executive function and the opinion of the Chief Justice of
India expressed in the process of consultation, though of great weight, has no primacy and is not
binding on the President but the order of appointment or transfer is open to judicial review. Later
a nine judge Bench17 by majority gave primacy to the opinion of the Chief Justice of India as
symbolising the judiciary and virtually equated consultation to ‘concurrence’ even though a
proposal for use of the word ‘concurrence’ was not accepted in the Constituent Assembly during
the making of the Constitutionthe18 executive interference in the appointment and transfer of
judges which was telling upon the independence of the judiciary19 led to this change in the
attitude of the court. Verma, J., who delivered the leading majority judgment considered the
question of construction “in the context of independence of the judiciary as a part of the basic
structure of the
Constitution , to secure the ‘rule of law’, essential for the preservation of the judicial
system and the broad scheme of separation of powers adopted in the
Constitution together with the directive principle of ‘separation of judiciary from
executive’ even at the lowest strata.”20 According to the minority view, the majority opinion
amounted to rewriting the
Constitution 21
. Further, the majority held that if the appointment or transfer was
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made on the recommendation of the Chief Justice of India it will not be open to judicial review.
By another nine judge bench judgment,22 the primacy in these matters of the Chief Justice of India
acting in consultation with two senior most judges of the Supreme Court now stands transferred to
a collegium consisting of the Chief Justice of India and four senior most judges of the Supreme
Court in the matter of appointments to the Supreme Court and transfer of High Court judges and
to a collegium consisting of the Chief Justice of India and two senior most judges of the Supreme
Court in the matter of appointments to High Courts. Details of various consultative steps, which
have to be undertaken before finalising the opinion of the collegium, have also been laid down.
Appointments and transfers have also been made justiciable if necessary consultative steps, as
indicated in the judgment, have not been taken. By these decisions, for all practical purposes, the
power of appointment and transfer of judges, which was prima facie vested in the executive, was
assumed by the judiciary and the executive was denuded of that power.23 It is also to be noted that
not only in S.P. Gupta's case but in all earlier cases it had been held that the advice expressed in
the process of consultation was not binding.24 As observed by Prof. Wade: “From the language of
Articles 124 and 217 the constitutional plan appears clearly. The initiative formally rests with the
President, but he must carry on consultations. The last word rests with him also, so that he may
reject chief justice's advice. The sanction then, as in so many cases of last resort rests with the
public opinion. When it becomes known that the chief justice's advice has been rejected, the
Government will be in political hot water.”25 The Supreme Court has also spelled out from these
Articles an inhouse procedure for disciplining judges26 of superior courts who could prima facie
be dealt with only by impeachment under Articles 124(4) and 218. This innovation by judicial
activism may, if applied to the Supreme Court, divide the judges weakening the authority of the
court and in case applied to the seniormost judge put a sort of veto in the hands of the retiring
Chief Justice of India in the matter of appointment of his successor for it is he who has to initiate
the proposal of appointing the seniormost judge considered fit to hold the office as his
successor.27
The assumption of absolute powers by the Supreme Court in the matter of appointments to itself
and the High Courts by highly controversial interpretation of Articles 124 and 217,28 can be said
to be one major ‘overreach’ by the Judiciary. It not only denuded the Executive of its powers in
these matters but also reduced the importance of the roles of the Chief Justice of India and the
Chief Justices of High Courts which now has to be shared with the collegium of judges. The
power of appointment, transfer, promotion and of directing an inhouse enquiry in respect of High
Court judges exercised by the Supreme Court has virtually made the High Courts administratively
subordinate to the Supreme Court which was never intended by the
Constitution . No system of appointment can probably ensure that all functionaries
involved in it will always act objectively or that there will be no scope for any case of conscious
or sub-conscious favouritism or that persons in the range of selection when not appointed will not
have any cause for grievance.29 It cannot also be said that the judges appointed under the new
procedure are on merits generally superior to those appointed earlier. Why then tinker with the
Constitution It cannot, however, be expected that the Supreme Court will review the
collegium decisions and restore the original procedure. The solution probably lies in the
appointment of National Judicial Commission as recommended by the
Constitution 30
Review Committee, which provides for the effective participation of
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both the executive and the judiciary in the matter of appointment of judges.
The Supreme Court is also quite sensitive in protecting the independence of and the High Courts
control over the District and subordinate courts and has construed Articles 233, 234 and 235 with
great emphasis on these aspects. Recently, the Supreme Court by a majority of three against two
held invalid an Act passed by the Bihar legislature in so far it fixed without reference to the High
Court, reservations to the posts in the higher and subordinate judicial services of the State on the
ground that the same violated the scheme of consultation with the High Court in the matter of
appointment to these posts as envisaged in Articles 233 and 234 and its control under Article 235
and impinged upon the independence of the judiciary and efficiency of judicial administration,
which according to the court, were within the exclusive jurisdiction of the High Court.31 It has to
be noticed that neither Article 16(4), which empowers the State to make provision for reservation
of posts in favour of backward class of citizens not adequately represented in the services, nor
Article 335, which makes the claims for reservation in services to be taken into account consistent
with the maintenance of efficiency of administration, provides for any consultation with the High
Court. Further, the Bihar Act was not challenged on the ground that the reservations made were
excessive or that the backward classes for whom reservations were made were adequately
represented in the judicial services.
Another example is found in the interpretation of

Article 368 of the Constitution which confers power on Parliament to amend the
Constitution and provides the procedure therefor. Apart from the procedural
restrictions, there is apparently no limitation as to the scope of the amending power and in two
earlier cases32 the Supreme Court conceded full amending power to Parliament. But later events
led to rethinking in the matter and it was finally held that written
Constitution like ours has certain undefined essential elements of its basic structure
which are sacrosant and cannot be amended.33 The basic structure doctrine has essentially
developed from the German
Constitution 34
. Its origin in India can be traced to Professor Dieter Conrad of
Germany from his lecture ‘Implied Limitations of the Amending Power’ delivered in 1965 to the
Law Faculty of the Banaras Hindu University.35 The learned professor in a recent article ‘Basic
Structure of the
Constitution 36
and Constitutional Principles points out that Khanna, J. in his
judgment in Kesavananda had quoted verbatim a sentence from his earlier article which reads:
“Any amending body organized within the statutory scheme, however verbally unlimited its
power, cannot by its very structure change the fundamental pillars supporting its constitutional
authority.”37 The doctrine of basic structure as a principle has now become an axiom and the
power to amend the
Constitution is subject to this axiom.38 The following have so far been spelled out as
the essential elements of the basic structure of our
Constitution : 39 (1) Supermacy of the
Constitution ; (2) Democratic form of Government; (3) Secular and federal character
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of the
Constitution ; (4) Unity and integrity of the country; (5) Demarcation of powers
between the Legislature, the executive and the judiciary; (6) Rule of law and judicial review; (7)
Liberty of thought expression, belief faith and worship; (8) Equality of status and opportu-nity;
(9) Mandate to build a welfare state; (10) Limitation on the amending power that it is not used to
alter or damage the essential elements of the basic structure of the
Constitution and (11) independence of the judiciary.40 It was earlier held that the
basic feature of judicial review is not violated if the High Courts are deprived to examine findings
of tribunals of like status.41 This view now stands overruled.42 The prevailing view now is that the
power of judicial review under
Articles 32 and
136 of the
Constitution constitute essential feature of the basic structure and the same applies to
the power of High Courts under
Articles 226 and
227 of the
Constitution to review decisions of all courts and tribunals within their respective
jurisdictionindeed43, it may not be possible to legislatively create tribunals of the same status as a
High Court whose independence is safeguarded by various provisions of the
Constitution .44 Negatively it may be stated that right to property,45 concept of
rulership with privy purses and privileges,46 and right to unprincipled47 defection are not essential
features of the basic structure. The Supreme Court in upholding the validity of Articles 16(4-A)
and 16(4-B) inserted by
Constitution Amendments held that in judging whether the principle of basic
structure has been violated, the court has to apply the twin tests namely the ‘width test’$K and the
test of ‘identity’.48 The concepts constituting the basic character are from their very nature neither
rigid nor static and have been interpreted to meet the needs of the changing times. For example,
reservation of a seat in favour of the Sanghas of Budhist Lamaic religious monasteries, with a
special electorate of its own in the State of Sikkim has been held as not violative of the basic
structure of the secular character of the
Constitution on the ground that historically the Sangh is not merely a religious
institution but also a political and social institution49 and similarly reservation on ethnic principle
of 12 seats to Sikkimese of Bhutia Lepcha origin in the same State has been held in the special
circumstances of the State to be not destructive of the basic features of equality and democracy.50
It has also been held that democratic concept is not violated by providing for removal of an
elected representative by a smaller and different body than the one that elected him.51 Similarly it
has been held that Federal Character of the
Constitution is not violated by not making it obligatory that a person elected by a
State legislature for the Council of State to represent the State should also be a resident of the
State and Democratic form of Government is not violated by providing for open ballot in cases
where secret ballot is not insisted in the
Constitution 52
. Another example is the ruling that national territory can be ceded by
amending the
Constitution without offending the basic character of the unity and integrity of the
53
country. To save certain laws from being declared void and to validate certain laws already
declared void on the ground of violation of fundamental rights, Article 31B and Ninth Schedule,
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containing the list of such laws, were added in the

Constitution by the
Constitution 1st Amendment, 1951. By subsequent
Constitution Amendments more and more laws were inserted in the Ninth Schedule.
The effect of the basic structure doctrine as propounded in Kesavananda decided on 24-4-1973 is
that laws inserted in the Ninth Schedule after this date are open to challenge on the ground that
they are violative of the basic structure doctrinethe54 ‘basic structure doctrine’ as formulated by
the Supreme Court or similar doctrine has also been imported in other constitutionsfor55 example
although the Australian
Constitution does not specify any fundamental or human right of freedom of speech
or communication, the High Court of Australia in Lange v. Australian Broadcasting Corporation
56 unanimously held that “freedom of communication in matters of government and politics is an
indispensable incident of that system of representative government which the

constitution creates”57 and a law infringing this freedom of communication will be
declared invalid.
Mention must also be made of

Article 142(1) of the Constitution 58 which empowers the Supreme Court
to ‘pass such decree or make such order as is necessary for doing complete justice in a cause or
matter pending before it’. The nature of this power came up for consideration before a
Constitution Bench in Prem Chand Garg v. Union of India 59 and it was
held that the power though wide did not enable the court to “make an order plainly inconsistent
with the express statutory provisions of substantive law, much less, inconsistent with any
constitutional provision”.60 The court also gave instances of cases where this power could be
exercised and it is to be noted that all instances given related to matters of procedure viz. addition
of parties, admission of additional evidence, remand of a case and permission to raise a new point
for the first time. After giving these instances the court observed that “in exercising these and
similar other powers, this court would not be bound by the relevant provisions of procedure if it is
satisfied that a departure from the said procedure is necessary to do complete justice between the
parties.”61 The views expressed in Prem Chand Garg's case, as noted above, relating to the court's
power under Article 142(1) were fully accepted in A.R. Antuley v. R.S. Nayak,
62 a case decided by a bench of seven judges. The court in the majority judgment emphasised that
“an order which the court could make in order to do complete justice between the parties, must
not only be consistent with the fundamental rights guaranteed by the
Constitution but it cannot even be inconsistent with the substantive provisions of the
63
relevant statutory laws.” The two judges who dissented in Antuley's case did not disagree on the
nature of the court's power under Article 142. Indeed one of them namely Ranganathan J.
observed: “However wide and plenary the language of the Article (142), the directions given by
the court should not be inconsistent with, repugnant to or in violation of the specific provisions of
any statute.”64 The nature of the power under Article 142(1) was again considered by a
Constitution Bench in Union Carbide Corporation v. Union of India 65
and it was laid down that “the proper way of expressing the idea is that in exercising powers
under Article 142 and in assessing the needs of ‘complete justice’ of a cause or matter, the apex
court will take note of the express prohibitions in any substantive statutory provision based on
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some fundamental principles of public policy and regulate the exercise of its power and discretion
accordingly. The proposition does not relate to the powers of the court under Art. 142, but only to
what is or is not ‘complete justice’ of a cause or matter and in the ultimate analysis of the
propriety of the exercise of the power. No question of lack of jurisdiction or nullity can arise.”66
Earlier the court observed that in both Garg's as well as Antuley's case, the point was one of
violation of constitutional rights and the observations in them relating to the effect of
inconsistency with statutory provisions were really unnecessary.67 The impression created by the
decision in Union Carbide's case was that the observations in Garg and Antuley cases, that Article
142 does not enable the court to make an order inconsistent with provisions of substantive law,
were no longer good law. Indeed it was so held in the case of Vinay Chandra Misra,68 a senior
Advocate and Chairman of the Bar Council, who was not only punished for contempt of court in
proceedings under Article 129 by award of a suspended sentence of imprisonment but whose
licence to practice was also suspended with the aid of Article 142, treating the conduct amounting
to contempt as professional misconduct, in complete disregard of the provisions of the
Advocates Act 1961 which vests this power exclusively in the State Bar Councils and
the Bar Council of India with only appellate jurisdiction in the Supreme Court. Aggrieved by the
order of suspension of the licence to practice as an Advocate, the Supreme Court Bar Association
filed a petition challenging the said order which was heard and decided by a
Constitution Bench.69 The court held that a practising advocate could not be debarred
from practising his profession in exercise of power under Article 129 read with Article 142. The
court reviewed the earlier cases dealing with Article 142 and the following propositions can be
culled out from this decision: (1) It is not correct to say that the law laid down in Prem Chand
Garg's case is no longer a good law;70 (2) The power under Article 142 can be exercised only in
respect of the ‘case, cause or matter’ before the court. (The case before the court was only
regarding contempt and not of professional misconduct, so the court could not pass any order
regarding suspension from practice even though in a given case the conduct amounting to
contempt may also amount to professional misconduct);71 (3) The power under Article 142 is
curative and cannot be construed authorising the court to ignore the substantive rights of a
litigant; (4) the power cannot be used to supplant substantive law applicable to the case; (5) The
power cannot be used to build a new edifice by ignoring express statutory provisions; (6) The
power is not meant to be exercised when its exercise may come directly in conflict with express
provisions of a statute dealing expressly with the subject;72 (7) It is not permissible for the court to
take over the role of the statutory bodies or other organs of the State and perform their functions.73
The decisions in Union Carbide, Misra and some other cases had given rise to the criticism that
the Supreme Court has assumed absolute powers to do whatever it wished to do.74 The decision of
the
Constitution Bench holding that Misra's suspension was bad in law and the
propositions flowing from that decision, which have been set out above, go a long way in
removing the cause of the above criticism.
What possibly now remains to be done is to regulate the practice of issuing general directions and
guidelines and also of declaring them in some cases to have the force of law under Article 141
and enjoining by virtue of Article 144 all authorities civil and criminal to act in aid of the
Supreme Court for implementation of the directions and guidelines. As an example, in Vishaka v.
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State of Rajasthan 75 the Supreme Court in effect imported in the domestic law the
provisions of the ‘Convention on the Elimination of All Forms of Discrimination against

Women’, without any legislation by Parliament under Article 253 to that effect, and gave various
directions to prevent sexual harassment of working women in work places. These directions are
directed to remain in force until suitably replaced by legislation. In addition to provisions in the
penal code for punishing offenders when the conduct complained of is a criminal
offence, e.g., outraging the modesty of a woman, there exist in Government and corporate bodies
conduct and discipline rules under which an employee can be suitably punished for unbecoming
conduct which, properly interpreted, will cover cases of accusations of sexual harassment of a co-
employee. But these probably were thought to be insufficient by the court and judicial legislation
in the shape of directions followed to improve the existing law. Another example of this nature is
the decision in Vineet Narain v. Union of India 76 in which a three judge bench of the
Supreme Court virtually took away the power of superintendence over the CBI vested in the
Central Government under section 3 of the Delhi Police Establishment Act, 1947, without holding
it ultra vires, and transferred it to the Central Vigilance Commission which was directed to be
given a statutory status. Numerous directions were also given for
constitution and functioning of the said Commission, Enforcement Directorate,
Nodal Agency and Prosecuting Agency. Do not the directions of this nature, however desirable,
have the tendency “to tilt the delicate constitutional balance”77 Propositions Nos. 5 and 6
extracted above from the
Constitution Bench decision in Misra's case have relevance in this context. Further
direction to give statutory status to an authority is in effect a direction to the legislature for
enacting a law which cannot be granted. As held by a three judge bench in an earlier case where
the point was directly in issue the court cannot even “indirectly require the executive to introduce
a particular legislation or the legislature to pass it or assume to itself a supervisory role over the
law making activities of the executive and the legislature.”78
The court cannot even ask an executive authority to make subordinate legislation which it has
been empowered to make under the delegated authority of the legislature.79
As an extension of Vineet Narayan in Prakash Singh v. Union of India, 80 the task of
extensive police reform was undertaken by the Supreme Court to insulate police machinery from
outside interference and detailed directions were issued to that end which indirectly require repeal
of the Indian
Police Act, 1861 , and rules and regulations made thereunder and enactment of new
Act and making of new rules. There can be no doubt that police reforms as recommended by
various commissions/committees were overdue but the question is whether the court has the right
to issue directions to bring about the reforms as recommended in view of the doctrine of
separation of powers which forms one of the basic features of the
Constitution 81
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The court in the final order passed in Seema v. Ashwani Kumar, 82 carried judicial
activism and judicial legislation to new heights. The court noticed that though India was a
signatory to the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) and had also ratified the Convention, it had done so with a reservation on the question
of compulsory registration of marriages provided in Article 16(2) on the ground that: ‘It is not
practical in a vast country like India with its variety of customs, religions and level of literacy’ to
make registration of marriage compulsory. The court also noticed that though all States and Union
Territories indicated their stand to the effect that registration of marriages is highly desirable,
except in four States namely Gujrat, Karnataka, Himachal Pradesh and Andhra Pradesh
registration of marriages is not compulsory in any of the other States. The court, however, came
to the conclusion tht it would be “in the interest of society”, if marriages are made compulsorily
registrable. The court also expressed the view that under
section 8 of the Hindu Marriage Act , which enables making of rules regarding
registration of marriages, registration can be made compulsory by the State Government and a
person in breach of such a rule will be liable to punishment with fine. The court also observed that
registration of marriage, though not determinative factor regarding existence or validity of
marriage will raise a rebuttable presumption. The court then concluded: “Accordingly, we are of
the view that marriages of all persons who are citizens of India belonging to various religions
should be made compulsorily registrable in their respective States, where the marriage is
solemnised.” And finally the court directed the States and the Central Government to take the
following steps:
“(i) The procedure for registration should be notified by respective States within three months
from today. This can be done by amending the existing rules, if any, or by framing new
rules. However, objections from members of the public shall be invited before bringing the
said rules into force. In this connection, due publicity shall be given by the States and the
matter shall be kept open for objections for a period of one month from the date of
advertisement inviting objections. On the expiry of the said period, the States shall issue
appropriate notification bringing the rules into force.
(ii) The officer appointed under the said rules of the States shall be duly authorised to register
the marriages. The age, marital status (unmarried, divorcee) shall be clearly stated. The
consequence of non-registration of marriages or for filing false declaration shall also be
provided for in the said rules. Needless to add that the object of the said rules shall be to
carry out the directions of this court.
(iii)As and when the Central Government enacts comprehensive statute, the same shall be
placed before this court for scrutiny.
(iv)Learned counsel for various States and Union Territories shall ensure that the directions
given herein are carried out immediately.”82a
It will be noticed that the court in this case did not itself issue direction for compulsory
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registration of marriages but directed the States and the Central Government to do so by making
new rules or by amending existing rules. Now it is well-settled that the court cannot direct the
legislature to make a law and similarly the court cannot direct the executive Government to make
rules or delegated legislation. The court cannot even adopt a supervisory role over the legislative
functions of the Legislature or of the Executive.83
The directions of the court can be carried out by the States only by making statutory rules for
example under
sec. 8 of the Hindu Marriage Act . And, in cases where there is no statute, a State will
have to first enact a statute enabling it to make the rules desired by the Supreme Court.
Directions, which have such a consequence, it is submitted, blatantly violate the doctrine of
separation of powers. Moreover, the direction that “As and when the Central Government enacts a
comprehensive statute, the same shall be placed before the court for scrutiny” is a naked
assumption of supervisory role over the law-making powers of Parliament which larger Benches
of the court had ruled beyond its jurisdiction.84 In all cases, where the Supreme Court finds that it
would be in the “interest of Society” to supplement the existing law with new law it should only
advise and not direct the State Government or the Central Government as the case may be to enact
a suitable law or make new rules. For example, in Naveen Kohli v. Neelu Kohli 85 the
Supreme Court was of the view that irretrievable breakdown of marriage should be made a
ground for divorce under the
Hindu Marriage Act, 1955 , but the court very rightly said that it was for the
Legislature to do so and the court only recommended the Union of India to seriously consider
bringing an amendment to that effect in the
Hindu Marriage Act and no directions were issued to supplement the Act till the
amendment was enacted.
The assumption by the court of the power to issue directions to supplement the existing law on the
ground that the court steps in because of the failure of the Legislature or the Executive to do their
duty has been a matter of criticism by other organs of the State.86
In Union of India v. Association for Democratic Reforms(1st case) 87 and Peoples
Union for Civil Liberties v. Union of India(2nd case), 88 both decided by three judge
benches, the Supreme Court held that although right to vote is not a fundamental right, a citizen
after he becomes a voter exercises the fundamental right of freedom of speech and expression
under
Article 19(1)(a) of the Constitution by casting his vote and further for exercising this
right effectively he gets the right under the same Article to have information about the
antecedents of a candidate from the candidate himself. Right of information of a citizen from
another citizen does not flow from Article 19 and no one is bound to disclose any information
about himself unless he is required to do so by a statute or a statutory rule. The court in these
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cases conferred on a voter right of information from the candidate himself without the backing of
any statute and gave a new dimension to Article 19. In the 1st case the court found that the
Representation of the People Act and the Rules made thereunder were silent in this
respect and though the court could not direct amendment of the Act or the Rules, it could issue
directions or orders on the subject on which the Act or Rules are silent “to fill the vacuum or void
till the suitable law is enacted.” The court on this reasoning directed the Election Commission to
call for information from each candidate seeking election as necessary part of his nomination
paper furnishing therein information on certain enumerated aspects in relation to himself which
briefly stated relate to (i) his record of involvement in criminal cases, (ii) his assets and liabilities
including those of his spouse and dependents; and (iii) his educational qualifications. After these
directions were implemented by the Election Commission the President promulgated the
Representation of the People (Amendment) Ordinance 2002 which was repealed and replaced by
an identically worded Act namely the Representation of the People (Third Amendment) Act,
2002. The Ordinance and the Act do not require a candidate to disclose (a) the cases in which he
is acquitted or discharged, (b) his assets and liabilities (which he is required to disclose only after
he gets elected) and (c) his educational qualifications. Further section 33B provides that no
candidate shall be liable to disclose or furnish any such information in respect of his election
which is not required to be disclosed or furnished under the Act or the Rules made thereunder.
The Ordinance and the Act thus did not fully adopt the directions issued in the 1st case. The 2nd
case related to the validity of the Ordinance and the Act because of these deficiencies. The
question in this case was as to what happens if the law enacted does not fully adopt the directions
given by the court to fill the gap till a suitable law is enacted. Do such directions only reflect the
perception and tentative thinking of the court at a point of time when the legislature did not
address itself to the question leaving the legislature some discretion in the matter or are they to be
taken as inflexible and immutable The answer given by the majority in the 2nd case is that the
directions become final and are not “protempore” and to the extent they are not covered by the
new legislation they remain operative and the provisions of the new law which go against the
directions will be ultra vires. Does not this answer amount to indirectly requiring the legislature to
pass a law covering the directions and assuming a supervisory role over the law making activities
of the legislature which was held to be impermissible in an earlier case.89 Further, it is not correct
to say that voters get no information about antecedents of a candidate unless it is disclosed by the
candidate himself. It is common experience that all good points about a candidate are propogated
by him or his supporters and all his bad points by the rival candidates during electioneering and a
sensible voter—the little man—is never in dark about the merits or demerits of a candidate. If
candidates with criminal back ground are getting elected90 the reasons for their election are
essentially different, one of them being the inability of the courts to decide their cases speedily,
and not the ignorance amongst the voters of their antecedents. The questions involved in the two
cases were constitutional questions of great importance and should have been decided by a
constitution bench at any rate when there was no unanimity on certain basic points in
the 2nd case91 and one of the judges was of the view that the 1st case itself should have been
referred to a
constitution bench as required by Article 145(3).92
In its effort to reform the election law by judicial legislation, a three judge Bench of the Supreme
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court delivered another controversial decision93 restricting fundamental right of freedom of

speech and imposing precensorship by election commission or its delegate of election
advertisements to be issued by political parties, candidates or other persons for being telecast on
electronic media by cable operators and television channels. The
Cable Television Networks (Regulation) Act, 1995 does not provide for
precensorship. It was also “clarified” in the nature of a declaratory penal enactment, and thus,
restricting the fundamental right of personal liberty, that
section 126 of the Representation of the People Act, 1951 , which provides for a
criminal offence shall apply to such advertisements. This is a case where judicial legislation under
Article 142 was used not for enforcing a fundamental right but for restricting the fundamental
rights of freedom of speech and personal liberty which could be done only by legislative
enactments.
An analysis of the cases, where the power of supplementing the existing law by directions of the
court has been exercised (e.g., cases relating to police reform,94 registration of marriages95 and
election reform96 ) will show that the power was used not to fill a gap or lacuna but because the
existing law was not to the liking of the court and needed to be reformed. The activism lay in not
merely recommending reform of the law by the Legislature or the competent authority (in case of
delegated legislation) but in supplementing and reforming it by directions of the court and making
them operative till the legislature or the competent authority amended the law on those lines. The
consitutional validity of this power is seriously in doubt. The assumption of the power of issuing
directions to supplement the existing law is another major ‘overreach’ made by the judiciary.
A seven judge bench of the Supreme Court speaking with near unanimity through Lahoti, J., in P.
Ramchandra Rao v. State of Karnataka 97 overruling a number of earlier cases, it is
submitted, rightly held that the court cannot prescribe periods of limitation at the end of which the
trial court would be obliged to discharge or acquit the accused for this will amount to legislation
outside the law making power available to constitutional courts howsoever liberally one may
interpret
Articles 32 ,
21 ,
141 and
142 of the
Constitution . The court observed: “The dividing line is fine but perceptible. Courts
can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps
but they cannot entrench upon in the field of legislation properly meant for the legislature.”98
Lahoti C.J.I. has also extrajudicially cautioned the courts in “assumption of pro-active role” and
advised them “to practice self restraint while innovating new tools. The court may assume an
activist role only for the public good and under circumstances when no other efficacious means is
available under the legal fraternity. Judicial creativity even when it takes the form of judicial
activism should not result in rewriting the
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Constitution or any legislative enactments”1
It is to be noticed that in Ramchandra Rao, the periods of limitation laid down in earlier cases for
termination of criminal cases were not supported on the ground that the directions of the court in
that respect had only filled a gap left by the legislature and were to be operative till a suitable law
is enacted. The case, therefore, establishes that there may be certain gaps in the existing law
which the court cannot cover even temporarily by issuing directions. The court in Ramchandra
Rao also noticed the criticism by reputed authors to its assumption of this new form of judicial
legislation to fill a gap in a legislation or to provide for matters not provided by any legislation.
Other organs of the State have, as earlier seen,2 also questioned the constitutional validity of this
power on the ground that it offends the doctrine of separation of powers which is one of the basic
features of the
Constitution .
The guidance available so far in judicial decisions and extra-judicial writing/speeches of judges
that this form of judicial activism can be used only “for the public good” when “no other method
is available in the legal framework”3 is too vague. There is also no indication regarding the nature
of ‘gap’ or ‘lacuna’ to which this doctrine applies. It is obviously not one which can be covered
by the known techniques of interpretation. Further confusion is created by the ruling that
directions issued under Article 142 may not be the ratio decidendi or law declared to be followed
in later cases.4 It is hoped that a
Constitution Bench or a larger bench will soon advert to this power to decide its
constitutional validity and in case it is declared valid to laydown its range and guidelines for its
exercise as also the scope, if any, left for the Legislature to enact a suitable law for replacing the
orders and directions of the court that were issued for the reason that there was a gap or lacuna in
the laws in force. This is necessary so that the law may become reasonably predictable in
application, like cases may be decided in like manner and judicial activism may not degenerate
into judicial adhocism as these are the ideals that we pursue because of our commitment to the
Rule of Law. Justice J.S. Verma, a former Chief Justice of India, who was a great exponent of this
form of judicial activism is critical of judicial adhocism which he apprehends can result in
“judicial tyranny.”5 On the question as what is the scope left for the Legislature to replace the
directions of the court, it is to be noted that when judicial decision is based on the common law or
on interpretation of a statute, subsequent legislation can always change the regulatory effect of the
adjudication. It is only the interpretation of the
Constitution by the court which remains immune from Legislative intervention and
can be replaced only by an amendment of the
Constitution 6 or by the court itself overruling its prior decision. Why
cannot these principles apply when the court does not interpret a provision in the
Constitution or declare a law invalid but steps in on the plea that there is a gap or
lacuna in the law and issues general directions to cover it. This is an area where the Legislature
has primacy and the court moves in because of the supposed inaction of the Legislature7 and its
directions are legislative in nature. Such a situation bears no analogy to cases where the court
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declares a law invalid for certain defects and the Legislature has to abide by the decision of the
court to remove the defects if it wants to replace the law declared invalid by new legislation. It is,
therefore, submitted that, contrary to what was decided by the majority in Peoples Union for Civil
Liberties v. Union of India, 8 (1) general directions of this nature, even if
constitutionally valid should be issued, if at all, in rarest of rare cases, not just for the asking by a
Bench consisting of at least three judges, (2), should be presumed to be of a temporary nature to
remain effective until replaced by a law enacted by the competent Legislature;9 and (3) in judging
the validity of a law replacing the general directions of the court, the court should pay more
respect to the wisdom of the Legislature and should not declare the law invalid simply on the
ground that it does not conform to the directions of the court. The Legislature may consider
modifying or even superceding directions of this nature which are neither interpretative of the
Constitution nor issued for enforcing a fundamental right. For instance, directions
issued for registering all marriages,10 even if issued with the consent of the Executive
Government, just to facilitate production of evidence of marriage in matrimonial proceedings may
be thought by Parliament to be unnecessary and impractical and therefore restricted to certain
specified marriages as the consent of the Executive Government to support such directions cannot
be equated with the consent of Parliament. For another example take the general direction issued
in U.P. Judicial Officers' Association v. Union of India, 11 that no FIR should be
registered without permission of the Chief Justice of the concerned High Court against a judicial
officer relating to allegations of having committed an offence in discharge or purported discharge
of his official duties. Why cannot Parliament enact a prospective provision in the
Criminal Procedure Code to the effect that permission of the Chief Justice of the
concerned High Court will be needed only in case of allegations against District Judges and so far
as other subordinate judicial officers are concerned permission of the District Judge concerned
will suffice for registration of FIR But in any case, in this respect the court may, at least, follow
the principle of ‘Democratic Dialogue’$K12 as applied by the Canadian Supreme Court. On this
principle when the Legislature replaces the directions of the court by an enacted law the court
may uphold the law even if it does not fully conform to the directions of the court. And, this
should be specially so when the directions of the court relate to matters of policy or matters in
which it has no expertise.13 As observed by Lord Cooke of Thorndon: “Reciprocal influence is an
ongoing process. Neither the Government nor Parliament nor the courts have a monopoly of
wisdom.”14
The following extracts from the judgments of great judges illuminate the wide power which a
constitutional court has in interpreting a
constitution . But they should not be taken to convey that this power is without
limitations for in a country governed by the rule of law no one, not even the highest court, has
unlimited power.15
In dealing with the construction of section 92 of the Commonwealth of Australia

Constitution Act, 1900, Lord Wright observed: “It is true that a
Constitution must not be construed in a narrow and pedantic sense. The words used
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are necessarily general and their full import and true meaning can often only be appreciated when
considered as the years go on, in relation to the vicissitudes of fact which from time to time
emerge. It is not, that meaning of the word changes, but the changing circumstances illustrate and
illuminate the full import of that meaning—Nor can any decisive help here be derived from
evidence of extraneous facts existing at the date of the Act of 1900; such evidence may in some
cases help to throw light on the intention of the framers of the statute, though that intention can in
truth be ascertained only from the language used. It may be that in 1900 the framers of the
Constitution were thinking of border tariffs and restrictions in the ordinary sense and
desired to exclude the difficulties of that nature and to establish what was and still is called ‘free
trade’ and to abolish the barrier of the State boundaries so as to make Australia one single
country. Thus they presumably did not anticipate those commercial and industrial difficulties
which have in recent years led to marketing schemes and price control, or traffic regulations such
as those for the co-ordination of rail and road services, to say nothing of new inventions such as
aviation or wireless. The problems, however of the
Constitution can only be solved as they emerge by giving effect to the language
used.” 16
Similarly, in construing the expression ‘Banking’ in head 15 of section 91 of the British North
America Act, 1867, Viscount Simon observed: “The question is not what was the extent and kind
of business actually carried on by Banks in Canada in 1867, but what is the meaning of the term
itself in the Act. To take what may seem a frivolous analogy if ‘skating’ was one of the matters to
which the exclusive legislative authority of the Parliament of Canada extended, it would be
nothing to the point to prove that only one style of skating was practised in Canada in 1867 and to
argue that the exclusive power to legislate in respect of subsequently developed styles of skating
was not expressly conferred on the Central Legislature. Other illustrations may be drawn from
section 91 as it stands—take for example, head 5 ‘Postal Services’. In 1867 postal services in
Canada were rendered by the help of land vehicles, but no body could contend that the modern
use of aeroplanes for carrying mail is, on that account, not within the phrase.”17
One may also recall here the language of Mr. Justic Holmes used with reference to the American
Constitution : “When we are dealing with words that also are a Constituent Act, like
the
Constitution of United States, we must realize that they have called into life a being,
the development of which could not have been foreseen completely by the most gifted of its
begetters. It was enough for them to realize or to hope that they had created an organism; it has
taken a century and cost their successors much sweat and blood to prove that they created a
nation. The case before us must be considered in the light of our whole experience and not merely
in that of what was said a hundred years ago.”18
And the words of Bose, J., with reference to the Indian
Mr.Srikanth -
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Constitution may here be referred: “They are not just dull lifeless words static and
hidebound as in some mummified manuscript, but living flames intended to give life to a great
nation and order its being, tongues of dynamic fire potent to mould the future as well as guide the
present. The
Constitution must, in my judgment, be left elastic enough to meet from time to time
the altering conditions of a changing world with its shifting emphasis and differing needs.”19
Reference may also be here usefully made to the attitude adopted by the Court of Justice of the
European Communities in construing the EEC Treaty and Community Legislation. The court
applies teleological rather than historical methods of interpretation. It seeks to give effect to what
it conceives to be the spirit rather than the letter. It views the Communities as living and
expanding organisms and the interpretation of the provisions of the treaties as changing to meet
their growth.20

(1957) 1 All ER 49 , p. 61 :
1957 AC 436 (HL) (Lord somervell of harrow); London Borough of Ealing v. Race Relations
Board,
(1972) 1 All ER 105 , p. 114 (HL) (Lord simon)
2 Herron v. Rathmines & Rathgar Improvment Commrs.,

(1892) AC 498 , p. 502 (HL).
3 Viscountess Rhondda's Claim,

(1922) 2 AC 339 , pp. 383, 390 (HL).
4 Assam Railways & Trading Co. Ltd. v. IRC,

(1935) AC 445 ;
(1934) All ER Rep 646 , p. 655 (HL) (Lord wright); referred to in Magor & St. Mellons R.D.C. v.
Newport Corporation,
(1951) 2 All ER 839 , p. 841 :
1952 AC 189 (HL), same rule applies to recommendations of a committee, see Letang v.
Cooper,
(1964) 2 All ER 929 , p. 933 :
(1965) 1 QB 232 (CA) (Lord denning, M.R.); Central Asbestos Co. Ltd. v. Dodd,
(1972) 2 All ER 1135 , pp. 1138, 1139 (HL) (Lord reid). In Lucy v. W.T. Henleys Telegraph
Works,
(1969) 3 All ER 456 , pp. 465, 466 (CA). Edmund davies, L.J., referred to the report of “the
committee on Limitation of Actions in cases of personal injury” of which he himself was the President and admitted that the
unfortunate result reached by him on the construction of the
Limitation Act, 1963 , was not contemplated by the Committee or possibly by the sponsors of the Bill during its
passage in Parliament, but he said that, that consideration was irrelevant as the law was to be found not in reports but in statutes.
5 Hollinshead v. Hazleton,
(1914-15) All ER Rep 1117 , p. 1121:
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(1916) 1 AC 428 (HL) (Lord atkinson). In Beswick v. Beswick,

(1967) 2 All ER 1197 , p. 1202 (HL) Lord reid said: “For purely practical reasons, we do not
permit debates in either House to be cited; it would add greatly to the time and expense involved in preparing cases involving the
construction of a statute if counsel were expected to read all the debates in Hansard, and it would often be impracticable for counsel
to get it”; Davis v. Johnson,
(1978) 1 All ER 1132 (HL), Hansard can never be relied on; Reaffirmed in Hadmore
Productions Ltd. v. Hamilton,
(1982) 1 All ER 1042 , p. 1053 :
(1983) 1 AC 191 (HL).
6 See note 4, supra.
7 Lord langdale's judgment of Privy Council in Gorham's case reported by EF Moore, (1852) ED, p. 462; referred to in
R. v. West Riding of Yorkshire County Council,
(1906) 2 KB 676 , p. 717 (Farwell, L.J.) and approved in Assam Railways v. Council,
(1934) All ER Rep 646 , p. 655 (HL).
8 See Chapter 2, title 3(b) “Rule in Heydon's case”, p. 121.
9 Assam Railways v. IRC,

(1934) All ER Rep 646 , p. 655 (HL).
10 Eastman Photographic Materials Co. v. Comptroller-General of Patents, Designs and Trade Marks,
(1898) AC 571 , p. 576 : 67 LJ Ch 628 (HL). Referred to in Assam Railways v. IRC,
(1934) All ER Rep 646 , p. 655 (HL).
11 Ladore v. Benett,
(1939) 3 All ER 98 , p. 101 :
1939 AC 468 (PC).
12 Govindan Pillai v. Punchi Banda Mudanayake,

(1939) 3 All ER 98 , p. 101 :
1939 AC 468 (PC).
13 Letang v. Cooper,
(1964) 2 All ER 929 , p. 933 :
(1965) 1 QB 232 (CA); Comdel Commodities Ltd. v. Siporex Trade, S.A.,
(1990) 2 All ER 552 , p. 557 (HL).
(1967) 2 All ER 1197 , p. 1223 :
(1968) AC 58 (HL).
15
(1975) 1 All ER 810 (HL).
16 Ibid., pp. 814, 815 (Lord reid); p. 828 (Lord wilberforce); p. 835 (Lord diplock). The objection to the
reading the report as direct evidence of intention of Parliament is based partly on the constitutional function of courts to interpret
the law. This function which is essential part of the rule of law—as distinct from the rule of the King (i.e. Executive) or the rule of
Mr.Srikanth -
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Parliament, would suffer degradation if the courts were merely a reflecting mirror of what some other interpretation agency might
say.
17 Ibid, p. 823 (Viscount dilhorne); p. 847 (Lord simon): “It is refusing to follow what is perhaps the
most important clue to meaning. It is perversely neglecting the reality, while chasing shadows.” The minority view has been
followed in India by the Supreme Court: R.S. Nayak v. A.R. Antulay,
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], pp. 214, 215 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ].
18 Government of Canada v. Aronson,

(1989) 2 All ER 1025 , p. 1039 (HL). See further Owens Bank Ltd. v. Bracco,
(1992) 2 All ER 193 , p. 202 (1) :
(1992) 2 AC 443 :
(1992) 2 WLR 621 (HL) [Report of a committee used for removing any doubt as to the
construction of section 9(2)(d) of the Administration of Justice Act, 1920].
19 Attorney-General's Reference (No. 1 of 1988),

(1989) 2 All ER 1 , p. 6 :
(1989) 2 WLR 729 (HL).
20 Pickstone v. Freemans Plc,

(1988) 2 All ER 803 (HL); Lister v. Forth Dry Dock and Engineering Co. Ltd.,
(1989) 1 All ER 1134 :
(1990) 1 AC 534 (HL).
21
(1988) 2 All ER 803 , p. 814 (HL).
23 Allen: Law in the Making, 7th Edition, p. 519.
24
(1985) 2 All ER 641 :
1985 AC 1029 (HL).
25 Ibid., p. 644.
26 Ibid. For another example, see Attorney-General's Reference (No. 1 of 1988),

(1989) 2 All ER 1 :
(1989) 2 WLR 729 (HL) (use of white paper for discerning the mischief but not for getting the
meaning of the Act.)
27 See Chapter 1, pp. 14 to 17.
Mr.Srikanth -
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28
(1990) 2 All ER 385 (HL).
29 Ibid., p. 389.
30 R. v. Shivpuri,
(1986) 2 All ER 334 , p. 343 (I) :
1987 AC 1 :
(1986) 2 WLR 988 (HL).
31
(2003) 4 All ER 765 , p. 784 (para 29), p. 788 (para 45) (HL).
32 R. v. Local Commissioner for Administration,

(1979) 2 All ER 881 , pp. 897, 898 :
(1979) QB 287 :
(1979) 2 WLR 1 (CA) (LORD DENNING).
34 English Law Commission and Scottish Law Commission Recommendations, (1970) 33 Modern Law
Review 197, pp. 198, 199.
“The rule against references to legislative history is no longer so much a ‘canon of construction’as ‘a counsel of
caution’. In other words, it is for courts to consider what weight to give to the materials that emerge from a scrutiny of legislative
history rather than automatically to exclude such materials from all considerations as an aid to interpretation.” Merrillat, ‘The
Sound Proof Room’: A matter of Interpretation, (1967) 9 Journal of the Indian Law Institute, pp. 521, 529, 530.
“No body, so far as I know, has advocated that an unlimited and undefined mass of travaux preparatoires be cast upon
the courts, but there are certain alternative sources of information which, it seems somewhat pedantic to withhold from the judicial
purview.” Allen, Law in the Making, p. 527 (7th Edition). See further title 1(a)(ii), Criticism of the traditional view.
35
(1993) 1 All ER 42 :
1993 AC 466 :
(1992) 3 WLR 1032 (HL).
36 Ibid., p. 64.
37 Ibid., p. 64.
38 Ibid., p. 65.
39 Ibid., p. 65.
40 Ibid., p. 65.
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41 Ibid., p. 66.
42 Ibid., p. 67.
43
(1993) 1 All ER 299 (HL).
44
(1993) 1 All ER 322 :
(1993) AC 498 (HL).
45
(1993) 1 All ER 705 :
1993 AC 54 (HL).
46 Ibid., p. 717. See further Dawn Oliver, ‘Statutory Interpretation and the Intention of Parliament 1
Law and Justice (Inaugural Journal of United Lawyers Association), p. 197; Director of Public Prosecutions v. Bull,
(1994) 4 All ER 411 , pp. 415, 416 (The Report which led to the enactment of the Street
Offences Act, 1959 was relied upon for limiting the words ‘common prostitute’ to females. It was also noted that reference to
debates on the authority of Pepper v. Hart ; would also have led to the same conclusion); R v. Secretary of State for the
Environment,
(2000) 1 All ER 884 , pp. 899, 900 (CA) (Speeches admitted for construing the Landlord and
Tenant Act, 1985). See also Practice Note,
(1995) 1 All ER 234 (Party intending to refer to Hansard has to serve copies of the relevant
extract on all other parties and the court together with a brief summary of the argument to be based upon such extract).
47 Melluish (Inspector of Taxes) v. BMI (No. 3) Ltd.,

(1995) 4 All ER 453 , p. 468 :
(1996) AC 454 :
(1995) 3 WLR 630 (HL). See further Secretary of State for Social Security v.
Remilien,
(1998) 1 All ER 129 , pp. 146, 147 (HL) (One of the conditions for admissibility is that the
statement must be clear).
48 R. v. Secretary of State for the Environment exparte Spath Holme,

(2001) 1 All ER 195 (HL). See further R. (National Grid Gas plc) v.
Environment Agency,
(2007) 3 All ER 877 , p. 885(e) (H.L.) ( Pepper v. Hart is no authority for recourse to Hansard in
order to alter plain and unambiguous statutory language).
49 Ibid., p. 218. But recently Lord Steyn in delivering the leading speech in Lesotho Highlands
Development Authority v. Impregilo, SPA
(2005) 3 All ER 789 (HL) paras (18, 19) made extensive reference to the speech of Lord
Wilberforce during second reading of the Bill in the House of Lords for interpreting the
Arbitration Act, 1996 .
50 Ibid., pp. 211, 212, 227.
Mr.Srikanth -
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51 Wilson v. First County Trust Ltd.,

(2003) 4 All ER 97 , pp. 116, 117.
52 ‘Pepper v. Hart, A Re-examination’, (2001) 2J OJ LS 59; Referred by Lord Steyn in R (on the
application of Westminister City Council v. National Asylum Support Service,
(2002) 4 All ER 654 , p. 657 (J) (HL). See further, LORD PHILLIPS, Keating Lecture (10-10-
2001); ‘Pepper v. Hart and Matters of Constitutional Principle’, (2005) 121 Law Quarterly, Review, p. 98.
53 Thet v. Director of Public Prosecutions,

(2007) 2 All ER 425 (QBD) para 15 (Lord Phillips CJ).
54 R. v. Secretary of State for Foreign and Commonwealth Affairs,

(1994) 1 All ER 457 , p. 466 :
1994 QB 552 :
(1994) 2 WLR 115 (QBD).
55 R v. Hinks,
(2000) 4 All ER 833 , p. 839 (HL). See further I v. Director of Public
(2001) 2 All ER 583 , p. 592 (HL) [Law Commission's report accepted in white Paper (Review
of Public Order Law) preceding enactment of the Public Order Act 1986 used for interpreting the definition of ‘affray’ in section
3(1)].
56 R (on the application of Westminister City Council) v. National Asylum Support Service,
(2002) 4 All ER 654 , p. 657 (HL); R (on the application of S) v. Chief Constable of South
Yorkshire,
(2004) 4 All ER 193 , p. 198 (HL). See further R. v. Montila,
(2005) 1 All ER 113 , p. 124 (para 35) (HL).
57 R (on the application of West Minister City Council) v. National Asylum Support Service, supra.
58 Attorney General's Reference (No. 5 of 2002) :

(2004) 4 All ER 901 , p. 913 (para 21) (HL).
59 Three Rivers District Council v. Bank of England (No. 2),

(1996) 2 All ER 363 . See further title 5(b2) ‘Acts passed to give effect to international
conventions’, Chapter 6.
60 United States v. St. Paul, M. & M. Rly. Co., 62 Law Ed 1130, p. 1134, where reference is made to
United States v. Trans-Missouri Freight Association, 41 Law Ed 1007, p. 1020.
61 Standard Oil Co. of New Jersey v. United States, 55 Law Ed 619, p. 641. See further
Federal Trade Commission v. Raladam Co., 75 Law Ed 1324 (Debates admissible to see the purpose of the Act and the evils sought
to be remedied).
62 United States v. St. Paul, M. & M. Rly. Co., 62 Law Ed 1130, p. 1134. See further
Duplex Printing Press Co. v. Emil J. Deering, 65 Law Ed 349 : 254 US 443, p. 474; Robert Page Wright v. Vinton Branch of
Mountain Trust Bank, 300 US 440, p. 463.
Mr.Srikanth -
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63 Jackson: ‘The Meaning of Statutes: What Congress says or what the court says’, (1948) 34 ABAJ 535, collected in
‘Cases and Materials on Legislation’ by Horrack, 2nd Edition, pp. 1029 and 1030.
64 Ibid.
65 Ibid.
66 Reed dickerson: The Interpretation and Application of Statutes, p. 195.
67 Legislative Materials to aid Statutory Constructions, 50 Harvard Law Review, 822.
68 Ibid.
69 See title 1(a)(iii) ‘Modern trend’.
70 State of Mysore v. R.V. Bidop,

AIR 1973 SC 2555 [
LNIND 1973 SC 260 ]:
(1973) 2 SCC 547 [
LNIND 1973 SC 443 ]; Fagu Shaw v. State of W.B.,
AIR 1974 SC 613 [
LNIND 1973 SC 414 ], p. 628, 629 :
(1974) 4 SCC (Cri) 316 :
1974 SCC 152 ; Union of India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2373 :
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ] : 1977 SCC (Lab) 435 ; R. S. Nayak v. A.R. Antulay,
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], pp. 214, 215 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ]; B. Prabhakar Rao v. State of Andhra Pradesh,
AIR 1986 SC 210 [
LNIND 1985 SC 257 ], p. 215 : 1985 Supp SCC 432; Sub-Committee of Judicial Accountability
v. Union of India,
AIR 1992 SC 320 [
LNIND 1991 SC 968 ], p. 366 :
(1991) 4 SCC 699 [
LNIND 1991 SC 968 ].
71 For example see Shashikant Laxman Kale v. Union of India,

AIR 1990 SC 2114 [
LNIND 1990 SC 362 ], pp. 2119, 2120 :
(1990) 4 SCC 366 [
LNIND 1990 SC 362 ] :
(1990) 4 SCC 366 [
LNIND 1990 SC 362 ].
72 See pp. 216 to 218.
Mr.Srikanth -
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74 Administrator General of Bengal v. Premlal Mullick, ILR 22 Cal 788, pp. 799, 800 (PC); see further
Krishna Ayyangar v. Nallaperumal Pillai, ILR 43 Mad 550, pp. 564, 565 (PC).
75 State of Trav.-Co. v. Bombay Co. Ltd.,

AIR 1952 SC 366 [
LNIND 1952 SC 52 ], pp. 368, 369 :
1952 SCR 1112 [
LNIND 1952 SC 52 ].

AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 378 :
1953 SCR 1 [
LNIND 1952 SC 94 ]; K.S. Paripoornan v. State of Kerala,
JT 1994 (6) SC 182 , p. 220 :
AIR 1995 SC 1012 : (1994) 5 SCC 593.
77 A.K. Gopalan v. State of Madras,

AIR 1950 SC 27 [
LNIND 1950 SC 22 ], p. 73 :
1950 SCR 88 [
LNIND 1950 SC 22 ].
78
AIR 1952 SC 365 , p. 369; also see Gopalan's case, supra.

AIR 1963 SC 1241 [
LNIND 1962 SC 438 ], p. 1247 :
1964 (1) SCR 371 [
LNIND 1962 SC 438 ].
80 Chiranjit Lal Chowdhury v. Union of India,

AIR 1951 SC 41 [
LNIND 1950 SC 55 ], pp. 45, 46 :
1950 SCR 869 [
LNIND 1950 SC 55 ].
81 A. Thangal Kunju Musaliar v. M. Venkatachalam

Potti,
AIR 1956 SC 246 [
LNIND 1955 SC 116 ], p. 265 :
1955 (2) SCR 1196 [
LNIND 1955 SC 116 ]. See further State of Gujarat v. Shyamlal Mohanlal,
AIR 1965 SC 1251 [
LNIND 1964 SC 352 ], p. 1255 :
1965 (2) Cr LJ 256 (Per shah, J., dissenting; use of speech in Legislature to ascertain the
‘historical setting’); Narendra Kumar Maheshwari v. Union of India,
AIR 1989 SC 2138 [
LNIND 1989 SC 301 ], p. 2163:
1989 (2) JT 338 (use of debates to ascertain the purpose of the Bill); Karnataka Small Scale
Industries Development Corporation Ltd. v. Commissioner of Income-Tax,
Mr.Srikanth -
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(2003) 7 SCC 224 , p. 231 (Reference to Finance Minister's Speech to ascertain the purpose of
section 115-J of the Income-Tax Act, 1961 ).
82
AIR 1950 SC 27 [
LNIND 1950 SC 22 ], p. 38 :
1950 SCR 88 [
LNIND 1950 SC 22 ].
83
AIR 1970 SC 422 [
LNIND 1969 SC 144 ], p. 425 :
1969 (1) SCC 839 [
LNIND 1969 SC 144 ]. See further Ajit Singh v. The State of Punjab,
JT 1999 (7) SC 153 [
LNIND 1999 SC 820 ], p. 172 :
(1999) 7 SCC 209 [
LNIND 1999 SC 820 ], where speech of DR. Ambedkar was referred for supporting a narrow
construction of Article 16(4) so that the affirmative discrimination does not lead to reverse discrimination and the reservation does
not destroy the equality of opportunity rule in Article 16(1).
1
AIR 1972 SC 1061 [
LNIND 1971 SC 544 ], pp. 1071 to 1074 :
(1971) 2 SCC 779 [
LNIND 1971 SC 544 ]. See further Fagu Shaw v. State of W.B.,
AIR 1974 SC 613 [
LNIND 1973 SC 414 ], pp. 628, 629 :
(1974) 4 SCC 152 [
LNIND 1973 SC 414 ] (use of debates by Bhagwati, J. for construing Article 22); Builders
Association of India v. Union of India,
AIR 1982 SC 1737 , p. 1736 (Dr. Ambedkar's speech referred to in the context of
Article 286 of the Constitution ); Sub-Committee of Judicial Accountability v. Union of India,
AIR 1992 SC 320 [
LNIND 1991 SC 968 ], pp. 340, 342 :
1991 (4) SCC 699 [
LNIND 1991 SC 968 ] (Use of constituent Assembly debates and speech of Alladi Krishnaswami
Ayyar for interpreting
Article 124 of the Constitution ); Marri Chandra Shekhar Rao v. Dean Seth G.S. Medical College,
1990 (3) SCC 13 (Use of Dr. Amedkar's speech for interpreting
Articles 341 and
342 of the
Constitution ); T.N. Seshan, Chief Election Commissioner v. Union of India,
1995 (4) Scale 285 :
1995 (4) SCC 611 [
LNIND 1995 SC 705 ] (speeches in Constituent Assembly used for interepreting Article 324);
Balaji Raghavan v. Union of India,
AIR 1996 SC 770 [
LNIND 1995 SC 1319 ], pp. 774 to 776 :
(1996) 1 SCC 361 [
LNIND 1995 SC 1319 ] (Extensive use of committee discussion and report and debates in the
Constituent Assembly in interpreting
Article 18 of the Constitution .) State of Maharashtra v. Milind,
AIR 2001 SC 303 , p. 401 :
(2001) 1 SCC 4 [
LNIND 2000 SC 1675 ] (Reference to the speech of Dr. Ambedkar in Constituent Assembly for
construing
Articles 341 and
342 of the
Constitution .
Mr.Srikanth -
Page 51 of 94
2
AIR 1993 SC 477 : 1992 (6) JT 273 : 1992 Supp (3) SCC 217.
3 Ibid., p. 551.
4 Ibid.
5 Aruna Roy v. Union of India,

AIR 2002 SC 3176 [
LNIND 2002 SC 571 ], p. 3199 :
(2002) 7 SCC 368 [
LNIND 2011 SC 265 ]. See further DAV College v. State of Punjab,
(1971) 2 SCC 269 [
LNIND 1971 SC 322 ] :
AIR 1971 SC 1737 [
LNIND 1971 SC 284 ](To provide for academic study of life and teaching or the philosophy and
culture of any great saint of India, Gurunanak in this case, in relation to its impact on the Indian and World Civilization cannot be
considered as making provision for religious instructions); Santosh Kumar v. Secretary Ministry of Human Resources,
(1994) 6 SCC 599 (teaching of Sanskrit alone as an elective subject can in no way be regarded
as against secularism); P.M. Bhargava v. University Grants Commission,
AIR 2004 SC 3478 [
LNIND 2004 SC 602 ](Prescription of ‘Jyotir Vigyan’, i.e., Astrology as a course of study does
not have the effect of saffronising education and does not militate against the concept of secularism).
6 S.R. Chaudhury v. State of Punjab,

AIR 2001 SC 2707 [
LNIND 2001 SC 1736 ], p. 2717 :
(2001) 7 SCC 118 (Construction of Article 164); Special Reference No. 1 of 2002 under
Article 143(1) of Constitution ,
AIR 2003 SC 87 [
LNIND 2002 SC 1378 ], p. 101 :
(2002) 8 SCC 237 [
LNIND 2002 SC 1378 ], p. 265 (construction of Article 174); TMA Pai Foundation v. State of
Karnataka,
(2002) 8 SCC 481 [
LNIND 2002 SC 681 ], p. 604 :
AIR 2003 SC 255 , pp. 415, 430 (Construction of Articles 29 and 30).
7 Kihota Hollohon (Shri) v. Zachilhu (Ms.),

AIR 1993 SC 412 [
LNIND 1992 SC 175 ], p. 437 :
1992 (1) JT 600 [
LNIND 1992 SC 175 ].
8
AIR 1972 SC 614 [
LNIND 1971 SC 606 ]:
(1972) 1 SCC 298 [
LNIND 1971 SC 606 ].
9
AIR 1976 SC 879 [
LNIND 1976 SC 67 ]:
Mr.Srikanth -
Page 52 of 94
(1976) 3 SCC 108 [

LNIND 1976 SC 67 ].
10
AIR 1981 SC 1922 [
LNIND 1981 SC 373 ], p. 1930 :
1981 (4) SCC 173 [
LNIND 1981 SC 373 ]. For further examples where speech of the Minister introducing the Bill
was relied upon, see— Sole Trustee Loka Shikshana Trust v. Commissioner of Income Tax,
AIR 1976 SC 10 [
LNIND 1975 SC 305 ], pp. 21-23 : 1976 SCC (Tax) 14 :
(1976) 1 SCC 254 [
LNIND 1975 SC 305 ]; Indian Chamber of Commerce v. CIT, West Bengal,
AIR 1976 SC 348 [
LNIND 1975 SC 346 ], p. 351 : 1976 SCC (Tax) 41 ; Diwan Brothers v. Central Bank,
AIR 1976 SC 1503 [
LNIND 1976 SC 224 ], pp. 1507, 1508 :
(1976) 3 SCC 800 [
LNIND 1976 SC 224 ]; Amarnath v. State of Haryana,
AIR 1977 SC 2185 [
LNIND 1977 SC 233 ], p. 2188 :
(1977) 4 SCC 137 [
LNIND 1977 SC 233 ]; Chern Taong Shong v. Commander S.D. Baijal,
AIR 1988 SC 603 [
LNIND 1988 SC 24 ], p. 608 :
(1988) 1 SCC 507 [
LNIND 1988 SC 24 ]; Doypack Systems Pvt. Ltd. v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 797 :
(1988) 2 SCC 299 [
LNIND 1988 SC 589 ]; Narendra Kumar Maheshwari v. Union of India,
AIR 1989 SC 2138 [
LNIND 1989 SC 301 ], pp. 2162-64 : 1990 Supp SCC 440; Union of India v. Deepchand
Pandey,
AIR 1993 SC 382 : (1992) 4 SCC 432 (use of minister's speech for construing
Administrative Tribunals Act, 1985 ).
11
1995 (7) Scale 1 , pp. 10, 11.
12
(1993) 1 All ER 42 (HL). See title 1(a)(iii) ‘Modern Trend’; pp. 218 to 223.
13
JT 1998 (3) SC 318 [
LNIND 1998 SC 1259 ]:
AIR 1998 SC 2120 [
LNIND 1998 SC 1259 ].
14 Ibid., p. 373 (JT); p. 2158 (AIR).
15 Ibid.
16 See p. 219 text and notes 38, 39; See further title 1(a)(ii) ‘Criticism of the traditional view’, pp. 216
to 218.
Mr.Srikanth -
Page 53 of 94
17
AIR 1999 SC 1455 [
LNIND 1999 SC 1473 ], p. 1458 (para 7) :
(1999) 4 SCC 306 [
LNIND 1999 SC 1473 ].
18 Ibid.
19
JT 1999 (8) SC 66 [
LNIND 1999 SC 906 ], p. 105 :
(1999) 9 SCC 334 [
LNIND 1999 SC 906 ] :
AIR 1999 SC 3923 [
LNIND 1999 SC 906 ].
20
AIR 2000 SC 1287 [
LNIND 2000 SC 2283 ], p. 1291 :
(2000) 3 SCC 250 [
LNIND 2000 SC 2283 ].

AIR 1952 SC 369 [
LNIND 1952 SC 94 ], pp. 378, 379 :
1953 SCR 1 [
LNIND 1952 SC 94 ].
22 Ibid., pp. 378, 379.
23 Express Newspapers (Pvt.) Ltd. v. Union of India,

AIR 1958 SC 578 [
LNIND 1958 SC 25 ]:
1959 SCR 12 [
LNIND 1958 SC 25 ].
24 Ibid., p. 622.
25 Ibid.
26 Ibid. See further S.P. Watel v. State of U.P.,

AIR 1973 SC 1293 [
LNIND 1973 SC 96 ], p. 1297 :
(1973) 2 SCC 238 [
LNIND 1973 SC 96 ]. (In this case the change made by the Secretary of the Legislative
Assembly in the Bill as originally passed by the Assembly and before it was sent up to the Legislative Council was noticed as an
aid to interpretation of section 2(1)(d) of the U.P. Urban Area Zamindari, Abolition and Land Reforms Act, 1957.) CIT, Ernakulam
v. P.K. Noorjahan,
AIR 1999 SC 1600 : (1997) 11 SCC 198 (‘May’ substituted in place of ‘shall’ during the
progress of the Bill in Parliament cannot be construed as ‘shall’) :
Mr.Srikanth -
Page 54 of 94
(1997) 11 SCC 198 :

AIR 1999 SC 1600 .
27
AIR 1971 SC 1331 [
LNIND 1971 SC 171 ], p. 1333 :
(1971) 1 SCC 616 [
LNIND 1971 SC 171 ]. See further S.P. Anand v. H.D. Deve Gowda,
AIR 1997 SC 272 [
LNIND 1996 SC 1845 ], p. 276 :
(1996) 6 SCC 734 [
LNIND 1996 SC 1845 ] (Construction of Articles 74 and 76 involving the same point).
28
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 378 :
1953 SCR 1 [
LNIND 1952 SC 94 ].
29 Ibid. See further S.S. Bola v. B.D. Sardana,

AIR 1997 SC 3127 [
LNIND 1997 SC 930 ], p. 3208 :
1997 (8) SCC 522 [
LNIND 1997 SC 930 ].
30 Central Bank of India v. Their Workmen,

AIR 1960 SC 12 [
LNIND 1959 SC 113 ], p. 21 :
1960 (1) SCR 200 [
LNIND 1959 SC 113 ]. See further S.S. Bola v. B.D. Sardana, supra;
Gurudevdatta V. KSSS Maryadit v. State of Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], p. 1988 :
(2001) 4 SCC 534 [
LNIND 2001 SC 761 ].

AIR 1963 SC 1241 [
LNIND 1962 SC 438 ] p. 1247, :
1964 (1) SCR 371 [
LNIND 1962 SC 438 ], see further Jailal v. Delhi Admininstration,
AIR 1962 SC 1781 [
LNIND 1962 SC 213 ], p. 1787 :
1963 (2) SCR 864 [
LNIND 1962 SC 213 ] (Venkatarama Aiyar, J.); Ranjit Singh v. State of Punjab,
AIR 1965 SC 632 [
LNIND 1964 SC 206 ], p. 637 :
1965 (1) SCR 82 [
LNIND 1964 SC 206 ] (Hidayatullah, J.); P. Vajravelu Mudaliar v. Special Deputy Collector for
Land Acquisition,
AIR 1965 SC 1017 [
LNIND 1964 SC 3 ], p. 1021 :
1965 (1) SCR 614 [
LNIND 1964 SC 3 ]; Narain Khamman v. Parduman Kumar Jain,
(1985) 1 SCC 1 [
LNIND 1984 SC 291 ], p. 8 :
AIR 1985 SC 4 [
LNIND 1984 SC 291 ]; K.S. Paripoornan v. State of Kerala,
Mr.Srikanth -
Page 55 of 94
JT 1994 (6) SC 182 , p. 219 :

AIR 1995 SC 1012 ; S.S. Bola v. B.D. Sardana,
AIR 1997 SC 3127 [
LNIND 1997 SC 930 ], p. 3208; Devadoss (dead) v. Veera Makali Amman Koil Athalur,
JT 1997 (10) SC 70 , pp. 79, 80 :
AIR 1998 SC 750 , p. 756; Subash Ramkumar Bind v. State of Maharashtra,
(2003) 1 SCC 506 [
LNIND 2002 SC 695 ], p. 520 :
AIR 2003 SC 269 [
LNIND 2002 SC 695 ], p. 270.
32 State of West Bengal v. Union of India, supra .
33 Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu,

AIR 1972 SC 1586 [
LNIND 1972 SC 166 ]:
(1972) 2 SCC 11 [
LNIND 1972 SC 166 ].
34 Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, Pimpri Waghere,
AIR 1976 SC 2463 [
LNIND 1976 SC 291 ], p. 2468 :
(1976) 4 SCC 177 [
LNIND 1976 SC 291 ].
35 Khandelwal Metal and Engineering Works,

(1985) 3 SCC 620 [
LNIND 1985 SC 203 ], p. 628 :
AIR 1985 SC 1211 [
LNIND 1985 SC 203 ].
36 Sanghvi Jeevraj Ghewar Chand v. Secretary, Madras Chillies, Grains and Kirana Merchants
Workers Union,
AIR 1969 SC 530 [
LNIND 1968 SC 164 ], p. 543 :
1969 (1) SCR 366 [
LNIND 1968 SC 164 ]; Virji Ram Sutaria v. Nathalal Premji Bhanvadia,
AIR 1970 SC 765 [
LNIND 1968 SC 331 ] p. 767, :
(1969) 1 SCC 77 [
LNIND 1968 SC 331 ]; Shiv Kirpal Singh v. V.V. Giri,
AIR 1970 SC 2097 [
LNIND 1970 SC 367 ], p. 2113 :
(1970) 2 SCC 567 [
LNIND 1970 SC 367 ]; Danthuluri Ramaraju v. State of A.P.,
AIR 1972 SC 828 [
LNIND 1971 SC 650 ], p. 829 :
(1972) 4 SCC 765 [
LNIND 1971 SC 653 ]; State of M.P. v. Dadabhoy's New Chirimiri Ponri Hill Colliery Co. (Pvt.)
Ltd.,
AIR 1972 SC 614 [
LNIND 1971 SC 606 ], p. 620 :
(1972) 1 SCC 298 [
LNIND 1971 SC 606 ]; A.C. Sharma v. Delhi Administration,
AIR 1973 SC 913 [
LNIND 1973 SC 30 ], p. 917 :
(1973) 1 SCC 726 [
LNIND 1973 SC 30 ]; Workmen of Firestone Tyre & Rubber Co. of India (P) Ltd. v.
Mr.Srikanth -
Page 56 of 94
Management,
AIR 1973 SC 1227 [
LNIND 1973 SC 430 ], p. 1239 :
(1973) 1 SCC 813 [
LNIND 1973 SC 430 ]; Hiralal Ratan Lal v. Sales Tax Officer III, Kanpur,
AIR 1973 SC 1034 [
LNIND 1972 SC 476 ], p. 1037 :
(1973) 1 SCC 216 [
LNIND 1972 SC 476 ]; Santa Singh v. State of Punjab,
AIR 1976 SC 2386 [
LNIND 1976 SC 268 ], p. 2393 :
(1976) SCC (Cri) 546 [
LNIND 1976 SC 268 ]; Amarnath v. State of Haryana,
AIR 1977 SC 2185 [
LNIND 1977 SC 233 ], p. 2188 :
(1977) 4 SCC 137 [
LNIND 1977 SC 233 ]; Udyan Chinubhai v. R.C. Bali,
AIR 1977 SC 2319 [
LNIND 1977 SC 271 ], p. 2326 :
(1977) 4 SCC 309 [
LNIND 1977 SC 271 ]; Organo Chemical Industries v. Union of India,
AIR 1979 SC 1803 [
LNIND 1979 SC 288 ], pp. 1816, 1817 :
(1979) 4 SCC 573 [
LNIND 1979 SC 288 ]; Winifred Ross (Mrs.) v. Ivy Fanseca (Mrs.),
(1984) 1 SCC 288 [
LNIND 1983 SC 367 ], pp. 291, 292 :
AIR 1984 SC 458 [
LNIND 1983 SC 367 ]; Narain Khamman v. Parduman Kumar Jain,
(1985) 1 SCC 1 [
LNIND 1984 SC 291 ], p. 8 :
AIR 1985 SC 4 [
LNIND 1984 SC 291 ]; Secretary, Regional Transport Authority v. D.P. Sharma,
AIR 1989 SC 509 [
LNIND 1988 SC 580 ], p. 511 : 1989 Supp (1) SCC 407; Committee for Protection of Rights of
ONGC Employees v. National Gas Commission,
AIR 1990 SC 1167 [
LNIND 1990 SC 183 ], p. 1172 :
(1990) 2 SCC 472 [
LNIND 1990 SC 183 ]; Shashikant Laxman Kale v. Union of India,
AIR 1990 SC 2114 [
LNIND 1990 SC 362 ], p. 2119 :
(1990) 4 SCC 366 [
LNIND 1990 SC 362 ]; State of Himachal Pradesh v. Kailash Chand Mahajan,
AIR 1992 SC 1277 [
LNIND 1992 SC 183 ], p. 1300 : 1992 Supp (2) 351; Rishya Shringa Jewellers Ltd. v. Stock
Exchange, Bombay,
1995 (6) Scale 177 [
LNIND 1995 SC 1029 ], p. 180 :
AIR 1996 SC 480 [
LNIND 1995 SC 1029 ], pp. 482, 483; Devadoss (dead) v. Veera Makali Amman Koil Athlur,
JT 1997 (10) SC 70 , pp. 79, 80 :
AIR 1998 SC 750 , p. 756; Gurudevdatta VKSSS Maryadit v. State of Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], p. 1989 :
(2001) 4 SCC 534 [
LNIND 2001 SC 761 ]; The Oriental Insurance Co. Ltd. v. Hansrajbhaivkodla,
AIR 2001 SC 1832 [
LNIND 2001 SC 637 ], pp. 1838, 1839 :
(2001) 5 SCC 175 [
LNIND 2001 SC 637 ]; British Airway Plc. v. Union of India,
AIR 2002 SC 391 [
LNIND 2001 SC 2534 ], p. 393 :
(2002) 2 SCC 95 [
LNIND 2001 SC 2534 ].
Mr.Srikanth -
Page 57 of 94
37 State of West Bengal v. Subodh Gopal Bose,

AIR 1954 SC 92 [
LNIND 1953 SC 118 ]:
1954 SCR 587 [
LNIND 1953 SC 118 ].
38 Aswini Kumar v. Arabinda Bose,

AIR 1952 SC 369 [
LNIND 1952 SC 94 ]:
1953 SCR 1 [
LNIND 1952 SC 94 ].
39 State of West Bengal v. Subodh Gopal Bose, supra.
40 M.R. Ranganathan v. Govt. of Madras,

AIR 1955 SC 604 [
LNIND 1955 SC 41 ], p. 608 :
1955 (2) SCR 374 [
LNIND 1955 SC 41 ].
41 CIT, M.P. v. Sodra Devi,

AIR 1957 SC 832 [
LNIND 1957 SC 59 ], p. 839 :
1958 SCR 1 [
LNIND 1957 SC 59 ].
42 Utkal Contractors and Joinery Pvt. Ltd. v. State of

Orissa,
(1987) 3 SCC 279 [
LNIND 1987 SC 466 ], pp. 290, 291 :
AIR 1987 SC 1454 [
LNIND 1987 SC 466 ]. See further Chern Taong Shang v. Commander S.D.
Baijal,
AIR 1988 SC 603 [
LNIND 1988 SC 24 ], pp. 607, 608 :
1988 (1) SCC 507 [
LNIND 1988 SC 24 ].
43 P. Nallammal v. State,
AIR 1999 SC 2556 [
LNIND 1999 SC 660 ], p. 2560 :
(1999) 6 SCC 559 [
LNIND 1999 SC 660 ].
44 Arivazhagan v. State,
AIR 2000 SC 1198 [
LNIND 2000 SC 452 ], pp. 1201, 1202 :
(2000) 3 SCC 328 [
LNIND 2000 SC 452 ].
45 Kedarnath v. Mohan Lal Kesarwar,

AIR 2002 SC 582 [
Mr.Srikanth -
Page 58 of 94
LNIND 2002 SC 23 ], p. 585 :

(2002) 2 SCC 16 [
LNIND 2002 SC 23 ].
46
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ]:
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ].
47
(2003) 2 SCC 223 [
LNIND 2002 SC 766 ], p. 232 :
AIR 2003 SC 607 [
LNIND 2002 SC 766 ].
48 Bhaiji v. Sub-divisional Officer Thandla,

(2003) 1 SCC 692 , p. 700 (Pages 206 to 209 of 8th Edition of this book are referred).
49 Kavalappara Kottarathil Kochuni v. States of Madras & Kerala,

AIR 1960 SC 1080 [
LNIND 1960 SC 436 ], pp. 1086, 1087 :
1960 (3) SCR 887 [
LNIND 1960 SC 436 ].
50 State of West Bengal v. Subodh Gopal Bose,

AIR 1954 SC 92 [
LNIND 1953 SC 118 ]:
1954 SCR 587 [
LNIND 1953 SC 118 ].
51 See p. 234.
52 A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,

AIR 1956 SC 246 [
LNIND 1955 SC 116 ], p. 265 :
1955 (2) SCR 1196 [
LNIND 1955 SC 116 ]; Shashikant Laxman Kale v. Union of India,
AIR 1990 SC 2114 [
LNIND 1990 SC 362 ]:
1990 (4) SCC 366 [
LNIND 1990 SC 362 ].
53 Jailal v. Delhi Administration,

AIR 1962 SC 1781 [
LNIND 1962 SC 213 ], p. 1787 :
1963 (2) SCR 864 [
LNIND 1962 SC 213 ].
54 Kerala State Electricity Board v. Indian Aluminium Co.,

AIR 1976 SC 1031 [
LNIND 1975 SC 313 ], p. 1040 :
Mr.Srikanth -
Page 59 of 94
(1976) 1 SCC 466 [

LNIND 1975 SC 313 ].
55 K.S. Paripoornan v. State of Kerala,

JT 1994 (6) SC 182 , p. 220 :
AIR 1995 SC 1012 : (1994) 5 SCC 593.
56
(1984) 3 SCC 126 , pp. 146, 149.
57
AIR 1990 SC 2114 [
LNIND 1990 SC 362 ], p. 2120 :
1990 (4) SCC 366 [
LNIND 1990 SC 362 ].
58
(1995) 5 SCC 338 [
LNIND 1999 SC 533 ] : 1995 AIR SCW 3367 (para 15).
59 CIC Insurance Ltd. v. Bankstown Footballclub Ltd.

(1997) 187 CLR 384 (Aust), p. 408; Newcastle City Council v. GIO General Ltd. (1998) 72
ALJR 97 (Aust). See further Gurudevdatt VKSSS Maryadit v. State of Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], p. 1990 (extracts from these Australian cases including section 15 of the
Australian Interpretation Act are quoted. For English law on this point see text and notes 55 to 58, pp. 222, 223, supra.
60 A. Thangal Kunju Musaliar v. Venkatachalam Potti,

AIR 1956 SC 246 [
LNIND 1955 SC 116 ], p. 256 :
1955 (2) SCR 1196 [
LNIND 1955 SC 116 ].
61 CIT, M.P. v. Sodra Devi,

AIR 1957 SC 832 [
LNIND 1957 SC 59 ], p. 838 :
1958 SCR 1 [
LNIND 1957 SC 59 ].
62 Express Newspapers (Pvt.) Ltd. v. Union of India,

AIR 1958 SC 578 [
LNIND 1958 SC 25 ], pp. 587, 589, 622, 623 :
1959 SCR 12 [
LNIND 1958 SC 25 ].
63 Madanlal Fakirchand Dudhediya v. S. Changdeo Sugar Mills Ltd.,

AIR 1962 SC 1543 [
Mr.Srikanth -
Page 60 of 94
64
AIR 1972 SC 1061 [
LNIND 1971 SC 544 ], p. 1070 :
1971 (2) SCC 779 [
LNIND 1971 SC 544 ].
65
AIR 1971 SC 1015 [
LNIND 1971 SC 30 ], p. 1016 (para 5) :
1971 (1) SCC 280 [
LNIND 1971 SC 30 ].
66
AIR 1973 SC 1016 [
LNIND 1972 SC 400 ]: 1973 SCC (Tax) 1. See further Sole Trustee Loka
Shikshan Trust v. Commissioner of Income-tax,
AIR 1976 SC 10 [
LNIND 1975 SC 305 ], p. 23 : 1976 SCC (Tax) 14 (reference made to Select Committee's
Report). State of Punjab v. Balwant Singh,
AIR 1991 SC 2301 [
LNIND 1991 SC 525 ], p. 2304 : 1992 Supp (3) SCC 108(Report of Joint Committee of both
houses of Parliament was relied upon for interpreting
section 15(2) of the Hindu Succession Act ).
67
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], pp. 214, 215 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ]. But departmental proposals and notings in the files by different officials
before the cabinet took the final decision are neither internal nor external aids for construction of the Act; Doypack Systems Pvt.
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 796 :
1988 (2) SCC 299 [
LNIND 1988 SC 589 ].
69
AIR 2000 SC 1287 [
LNIND 2000 SC 2283 ], p. 1291 :
(2000) 3 SCC 250 [
LNIND 2000 SC 2283 ] (pp. 196, 197 of 7th edition of this book are referred). See further,
Allahabad Bank v. Canera Bank,
JT 2000 (4) SC 411 [
LNIND 2000 SC 2274 ], pp. 425, 432, 433 :
(2000) 4 SCC 406 [
LNIND 2000 SC 2274 ] :
AIR 2000 SC 1535 [
LNIND 2000 SC 2274 ](Reports of committes preceeding the enactment of the recovery of Debts
due to banks and Financial Industries 1993 were referred.) Shrimant Shamrao Suryavanshi v. Prahlad Bhairoba Suryavanshi,
AIR 2002 SC 731 [
LNIND 2002 SC 53 ]:
(2002) 3 SCC 676 [
LNIND 2002 SC 55 ]. (Report preceeding the legislation adding section 53A in the
T.P. Act was held admissible for its construction.) Sarva Shramik Sangh v. Indian Smelting and Refining Co. Ltd.,
AIR 2004 SC 269 [
LNIND 2003 SC 907 ], p. 277. (The report of the committee on Unfair Labour Practices
preceding the enactment of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour practices Act, 1972 was
used for the Act's construction.) Expharsa v. Eupharma Laboratories,
(2004) 3 SCC 688 [
LNIND 2004 SC 243 ], p. 693 :
Mr.Srikanth -
Page 61 of 94
AIR 2004 SC 1682 [

LNIND 2004 SC 243 ](use of joint committee report for construction of
section 62 of the Copyright Act, 1957 ).
70
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ], p. 1252 :
(1989) 2 SCC 95 [
LNIND 1989 SC 96 ]. See further Waliram Waman Hiray (Dr.) v. Mr. Justice
B. Lentin,
AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2280 :
(1988) 4 SCC 419 [
LNIND 1988 SC 442 ] (Law Commission's report was referred to for interpreting
section 195(3) of the Code of Criminal Procedure, 1973 ) Santa Singh v. State of Punjab,
AIR 1976 SC 2386 [
LNIND 1976 SC 268 ], p. 2392 :
1976 SCC (Cri) 546 [
LNIND 1976 SC 268 ] :
(1976) 4 SCC 190 [
LNIND 1976 SC 268 ] (reference made to Law Commission's Report) Ravinder Kumar Sharma
v. State of Assam,
AIR 1999 SC 3571 [
LNIND 1999 SC 801 ], p. 3575 :
(1999) 7 SCC 435 [
LNIND 1999 SC 801 ]. (Law Commission's Report relating to 1976 amendment in O. 41, R. 22,
CPC referred.)
71 Rajkishore Prasad v. State of Bihar,

1996 (4) Scale 87 , pp. 89 to 91 :
AIR 1996 SC 1931 [
LNIND 1996 SC 900 ], pp. 1933, 1934.
72 State of U.P. v. Lakshmi Brahman,

AIR 1983 SC 439 [
LNIND 1983 SC 82 ], p. 445 :
1983 (2) SCC 372 [
LNIND 1983 SC 82 ].
73 Samatha v. State of Andhra Pradesh,

AIR 1997 SC 3297 : 1997 (8) SCC 191.
74 M. Ismail Faruqqui (Dr.) v. Union of India,

JT 1994 (6) SC 632 :
AIR 1995 SC 605 .
75 The enforcement of the Human Rights Act, 1998 and the introduction of the principle of proportionality in judicial
review (see p. 380) may now make the difference.
76 Chiranjit Lal Chowdhury v. Union of India,

AIR 1951 SC 41 [
LNIND 1950 SC 55 ], p. 45 :
1950 SCR 869 [
LNIND 1950 SC 55 ].
Mr.Srikanth -
Page 62 of 94
77 A. Thangal Kunju Musaliar v. M. Venkatachalam Potti,

AIR 1956 SC 246 [
LNIND 1955 SC 116 ], p. 265 :
1955 (2) SCR 1196 [
LNIND 1955 SC 116 ].
78 Ibid.
79
AIR 1958 SC 731 [
LNIND 1958 SC 58 ]:
1959 SCR 629 [
LNIND 1958 SC 58 ].
80 Ibid., p. 741. This case has been overruled on merits in State of Gujarat v. Mirzapur Moti Qureshi
Kassab Jamat,
(2005) 8 SCC 534 [
LNIND 2005 SC 856 ] :
AIR 2006 SC 212 [
LNIND 2005 SC 856 ], which is discussed elsewhere in the context of fundamental duties. In this
case differing from the earlier Quaresh i case total ban on the slaughter of progeny of cow was upheld.
81
AIR 1963 SC 1591 [
LNIND 1963 SC 29 ]:
1964 (1) SCR 860 [
LNIND 1963 SC 29 ].
82
AIR 1993 SC 2063 , pp. 2066, 2080.
83 See Shashikant Laxman Kale v. Union of India,

AIR 1990 SC 2114 [
LNIND 1990 SC 362 ], p. 2120 :
(1990) 4 SCC 366 [
LNIND 1990 SC 362 ] :
(1990) 185 ITR 104 [
LNIND 1990 SC 362 ].
84 See title 1 ‘Parliamentary History’, pages 214, 215 and 233, supra. See further R.L.
Arora v. State of U.P.,
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], p. 1237 :
(1964) 6 SCR 784 [
LNIND 1964 SC 31 ]; Sanghvi Jeevraj v. Secretary, Madras Chillies, Grains and Kirana
AIR 1969 SC 530 [
LNIND 1968 SC 164 ], p. 534 :
(1969) 1 SCR 366 [
LNIND 1968 SC 164 ].
Mr.Srikanth -
Page 63 of 94
85 Herron v. Rathmines and Rathgar Improvement Commissioners,

(1892) AC 498 , p. 502 (HL); referred to in Herrietta Muir Edwards v. A-G of Canada,
AIR 1930 PC 120 , p. 125.
86 Keates v. Lewis Merthyr Consolidated Collieries Ltd.,

(1911) AC 641 :
(1911-13) All ER 921 , p. 922 (HL); referred to in D.N. Banerjee v. P.R. Mukherjee,
AIR 1953 SC 58 [
LNIND 1952 SC 85 ], p. 60 :
1953 SCR 302 [
LNIND 1952 SC 85 ].
87 Great Northern Rly. Co. v. United States of America, (1942) 315 US 262, p. 273 : 86 Law Ed 836, p.
841, referred to in Hariprasad Shivshankar Shukla v. A.D. Divelkar,
AIR 1957 SC 121 [
LNIND 1956 SC 104 ], p. 131 :
1957 SCR 121 [
LNIND 1956 SC 104 ].
88 R. v. West Riding of Yorkshire County Council,

(1906) 2 KB 676 , pp. 716, 717 (CA) (Farwell, L.J.); referred to in Henrietta Muir Edwards v.
A.G. of Canada,
AIR 1930 PC 120 , p. 125.
89 See Chapter 2, under title 3(b) “Rule in Heydon's case”.
91 Read v. Bishop of Lincoln,

(1892) AC 644 :
(1891-94) All ER Rep 227 , pp. 228, 229 (PC) (Lord Halsbury, L.C.).
93 Atlantic Smoke Shops Ltd. v. Conlon,

(1943) 2 All ER 393 , p. 397 (PC).
94 Greenwich London Borough Council v. Powell,

(1989) 1 All ER 65 , p. 70 :
(1989) AC 995 :
(1989) 2 WLR 7 (HL).
95 Ibid.
96 Auckland Jute Co. Ltd. v. Tulsi Chandra Goswami,

AIR 1949 FC 153 , p. 169 :
1949 FCR 201 .
Mr.Srikanth -
Page 64 of 94
1 Ibid. See further Doypack Systems Pvt. Ltd. v. Union of India,

AIR 1988 SC 782 [
LNIND 1988 SC 589 ],p. 797 :
1988 (2) SCC 299 [
LNIND 1988 SC 589 ].
2 Bridge & Roofs Co. Ltd. v. Union of India,

AIR 1963 SC 1474 [
LNIND 1962 SC 296 ], p. 1478 :
1963 (3) SCR 978 [
LNIND 1962 SC 296 ]. For the nature of ‘production bonus’ see further The Daily Pratap v. The
Regional Provident Fund Commissioner,
AIR 1999 SC 2015 [
LNIND 1998 SC 981 ], p. 2027 :
(1998) 8 SCC 90 [
LNIND 1998 SC 981 ].
3 See pp. 300 to 302, infra.
4 R v. Ireland,
(1997) 4 All ER 225 , p. 233 :
(1997) 3 WLR 534 (HL)(Lord Steyn): “Bearing in mind that statutes are usually intended to
operate for many years it would be most inconvenient if courts could never rely in difficult cases on the current meaning of statutes.
Recognising the problem Lord Thring, the great victorian draftsman of the second half of the last century exhorted draftsmen to
draft so that ‘An Act of Parliament should be deemed to be always speaking’.—In cases where the problem arises it is a matter of
interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current
meaning of the statute to present day conditions. Statutes dealing with a particular
grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring
and his successors has brought about the situation that statutes will generally be found to be of the ‘always speaking’ variety.” (In
this case psychiatric injury resulting from persistent silent telephone calls was held to amount to bodily harm and ‘assault’ within
the ambit of sections 20 and 47 of the Offences against the Person Act of 1861. See also for this case text and note 70,p. 851). For
more information about Lord Thring see — ‘Editorial; Henry Thring — A hundred years on’ (2007) 28 Statute Law Review (No. 1)
p. iii to v. See further Fitzpatrick v. Sterling Housing Association Ltd.,
(1999) 4 All ER 705 ,p. 726 (HL); State v. S.J. Choudhary,
AIR 1996 SC 1491 [
LNIND 2003 GUJ 178 ]:
1996 (2) SCC 428 [
LNIND 1996 SC 358 ]; State of Maharashtra v. Dr. Praful B. Dasai, 2003 AIR SCW 1885, p.
1894 :
AIR 2003 SC 2053 [
LNIND 2003 SC 380 ]:
(2003) 4 SCC 601 [
LNIND 2003 SC 380 ]; Union of India v. Naveen Jindal,
(2004) 2 SCC 510 [
LNIND 2004 SC 107 ], p. 538.
5 Mccartan Turkington Breen (a firm) v. Times Newspapers Ltd.,

(2000) 4 All ER 913 , p. 926 (HL)(Lord Steyn).
6 Senior Electric Inspector v. Laxminarayan Chopra,

AIR 1962 SC 159 , p. 162 :
1962 (3) SCR 146 , citing with approval a passage from Sutherland: Statutory Construction,
Vol. 2, p. 508; Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer,
AIR 1978 SC 449 [
LNIND 1977 SC 352 ], p. 460 :
Mr.Srikanth -
Page 65 of 94
(1978) 1 SCC 520 [

LNIND 1977 SC 352 ]; J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India,
AIR 1988 SC 191 [
LNIND 1987 SC 728 ], p. 204 :
1987 (4) JT 421 : 1987 Supp SCC 350; Municipal Corporation of Greater Bombay v. Indian Oil
Corporation,
AIR 1991 SC 686 [
LNIND 1990 SC 821 ], p. 690 :
1990 (4) JT 533 [
LNIND 1990 SC 821 ] : 1991 Supp (2) SCC 18. (Effort should be made to harmonise the law
with changes in social, economic, political and technological fields.)
7 See text and notes 4 to 6, supra. It has been suggested that when an interpretative problem is the result of vague
language the court may invoke dynamic construction and where the interpretative problem arises as the result of an ambiguity the
court should adopt originalist construction: Randal N. Grahm, A Unified Theory of Statutory Interpretation, (2002) 23 Statute Law
Review 91, p. 134. But this suggestion seems to be too vague for being adopted in practice.
8 Birmingham City Council v. Oakley,

(2001) 1 All ER 385 , p. 396 (HL).
9
(1981) 1 All ER 545 , pp. 564, 565 :
(1982) AC 800 :
(1981) 2 WLR 279 (HL).
10 Fitzpatrick v. Sterling Housing Association Ltd.,

(1999) 4 All ER 705 , pp. 710, 721, 739-740, 744 (HL); R (on the application of Quintavalle) v.
Secretary of State for Health,
(2003) 2 All ER 113 , pp. 119, 125 (HL). But see R (on the application of Quintavalle) v. Human
Fertilisation and Embyology Authority,
(2005) 2 All ER 555 , p. 564 (para 33) where Lord Hoffman said: “But like all guidance on
construction, Lord Wilberforce's remarks are more appropriate to some cases than others”.
11 Note 9, supra.
12 Comdel Commodities Ltd v. Siporex Trade, SA,

(1990) 2 All ER 552 , p. 557 :
(1991) 1 AC 148 :
(1990) 3 WLR 1 (HL).
13 R v. R (rape: marital exemption),

(1991) 4 All ER 481 :
(1992) 1 AC 599 :
(1991) 3 WLR 767 (HL). A husband can be convicted for raping his wife after the decision in R
v. R, for a rape committed before the decision. This conviction will not amount to retrospective penalty offending Article 7 of the
European Convention on Civil and Political Rights : R v. C,
(2004) 1 All ER 1 (CA). Change in social outlook has also resulted in the view that a man
recklessly infecting a woman or his wife with HIV or any STD even during consensual intercourse, when the woman or the wife
did not know that the man was suffering from a disease which could be transmitted by sexual intercourse, would be guilty of
inflicting grievous bodily harm under section 20 of the offences against the Person Act, 1861 and R v. Clarence,
(1889) 22 QBD 22 holding to the contrary is no longer authoritative: R v. Dica,
(2004) 3 All ER 593 , pp. 598, 608 (CA). For comments see Matthew Watt, ‘Criminal Law and
the Sexual Transmission of HIV, ’, R v. Dica (2005) 68(1) Modern Law Review 121-34.
Mr.Srikanth -
Page 66 of 94
14 Nairn v. University of St Andrews,

(1909) AC 147 (HL).
15 Henreitta Muir Edwards v. Attorney General of Canada,

AIR 1930 PC 120 : 1930 AC 124.
16 Mccartan Turkington Breen (a firm) v. Times Newspapers Ltd.,

(2000) 4 All ER 913 ;, pp. 927, 928 (HL).

(1999) 4 All ER 705 (HL).
19 Ibid.
20 Before enforcement of the Human Rights Act, 1998 in U.K., discrimination on the ground of homosexuality was not
held to be discrimination on the ground of sex under the Sex Discrimination Act, 1975 unless it could be proved that male and
female homosexuals were treated differently: Macdonald v. Advocate General of Scotland,
(2004) 1 All ER 339 (HL); Ghaidan v. Mendoza,
(2002) 4 All ER 1162 (CA); Affirmed,
(2004) 3 All ER 315 (HL).

(1999) 4 All ER 705 , p. 710 (HL).
22
(2002) 1 All ER 311 (CA).
23
[2002] 2 FCR 577 .
24 Ibid., p. 602.
25 Ibid., p. 608.
26
(2003) 1 All ER 255 (CA), pp. 265, 267.
27
(2003) 2 All ER 593 (HL).
28
(2004) 3 All ER 145 (HL).
Mr.Srikanth -
Page 67 of 94
29 A.G. v. Edison Telephone Co. of London,

(1880) 6 QBD 244 ; referred to in Senior Electric Inspector v. Laxminarayan Chopra,
AIR 1962 SC 159 , p. 162 :
(1962) 3 SCR 146 , and Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer,
AIR 1978 SC 449 [
LNIND 1977 SC 352 ], p. 460 :
(1978) 1 SCC 520 [
LNIND 1977 SC 352 ].
30 Gambart v. Ball, (1863) 32 LJCP 166. See further R v. Fellows,

(1997) 2 All ER 548 :
1997 Crim LR 524 (CA) (The definition of ‘indecent photograph’ set out in sections 1 and 7 of
the Protection of Children Act, 1978, even before its amendment in 1994 was held to be wide enough to include ‘data stored on a
computer disc’, a technology not anticipated in 1978 when the Act was passed). See for this case also text and note 71, p. 851.
31 Chapman v. Kirke,
(1948) 2 All ER 556 .
32 Regulation and Control of Radio Communications in Canada, In re,

(1932) AC 304 (PC), referred to in Senior Electric Inspector v. Laxminarayan Chopra, supra;
State of Madras v. Gannon Dunkerley & Co.,
AIR 1958 SC 560 [
LNIND 1958 SC 39 ], pp. 573, 574 :
1959 SCR 379 [
LNIND 1958 SC 39 ]; Vishnu Agencies (Pvt.) Ltd. v. Commercial Tax Officer, supra.
33 R v. Brislan, Ex parte, Williams,

(1935) 54 CLR 262 . See further Telstra Corporation Ltd. v. Asian Performing
Right Association, (1997) 71 ALJR 1312, p. 1339. (“In certain circumstances, general language originally designed to apply to an
earlier technology may apply to supervening technology.” The new technology of music on hold, i.e., music played when the
telephone lines are engaged, by a telecommunications company was held to amount to ‘diffusion service’ and ‘broadcast’ within
the
Copyright Act , 1968).
34 Senior Electric Inspector v. Laxminarayan Chopra, supra. But see Bhagwandas

Goverdhandas Kedia v. Girdharilal Purshottamdas & Co.,
AIR 1966 SC 543 [
LNIND 1965 SC 210 ]:
1966 (1) SCR 656 [
LNIND 1965 SC 210 ], where a majority of the Supreme Court held that
section 4 of the Indian Contract Act, 1872 , which read with the Illustrations contains rules regarding acceptance of
proposal by post and telegraph does not apply when acceptance is made by telephone although the language of the section is quite
general. hidayatullah, J. took a contrary view and held that the language was wide enough to cover cases of new inventions.
35 Laxmi Video Theatres v. State of Haryana,

AIR 1993 SC 2328 : 1993 (3) SCC 715; Shanker Video v. State of Maharashtra,
AIR 1993 SC 2111 : 1993 (3) SCC 696.
36 State v. S.J. Choudhary,

1996 (2) Scale 37 , pp. 40, 41:
AIR 1996 SC 1491 [
LNIND 2003 GUJ 178 ], p. 1496 :
(1996) 2 SCC 428 [
LNIND 1996 SC 358 ] (para 16).
Mr.Srikanth -
Page 68 of 94
37 State of Maharashtra v. Dr. Praful B. Desai, 2003 AIR SCW 1885 :

(2003) 4 SCC 601 [
LNIND 2003 SC 380 ] :
AIR 2003 SC 2053 [
LNIND 2003 SC 380 ]. See further Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav,
(2005) 3 SCC 284 , pp. 297, 298 (trial of accused by video conferencing when he cannot be
safely brought to court from jail); Polanski v. Conde Nast Publications Ltd.,
(2005) 1 All ER 945 (HL). (A non-resident claimant who has good reason for not coming to
United Kingdom for fear of being extradited to USA can be allowed to give evidence by a video conference link.) R (on the
application of D) v. Camberwell Green Youth Court,
(2005) 1 All ER 999 (HL). (A child witness needing protection can be examined by a video
conference link).
The question whether polygraph test (lie detection test) can be used in evidence against the accused during trial was
left open in Singh v. Sonia,
(2007) 3 SCC 1 [
LNIND 2007 SC 174 ] (para 29) :
AIR 2007 SC 1218 [
LNIND 2007 SC 174 ].
38 Kamal Kumar Dutta v. Ruby General Hospital,

(2006) 7 SCC 613 [
LNIND 2006 SC 607 ] :
(2006) 7 JT 333 :
(2006) 9 SLT 281 .
39 R (On the application of Quintavalle) v. Secretary of State for Health,

(2002) 2 All ER 625 , pp. 633, 637 (CA) (lord phillips) : affirmed,
(2003) 2 All ER 113 (H.L.). See further R (on the application of Quintavalle)
v. Human Fertilisation and Embryology Authority (HFEA),
(2003) 3 All ER 257 (CA) (HFEA can grant a licence to permit tissue typing to test an embryo
for tissue compatibility with a sibling affected by a particular disease to provide a source of stem cells for him, a technique not
known when the Act was passed). Affirmed,
(2005) 2 All ER 555 (HL).
40 State of Punjab v. Sodhi Sukhdev Singh,

AIR 1961 SC 493 [
LNIND 1960 SC 270 ], p. 502 :
1961 (2) SCR 371 [
LNIND 1960 SC 270 ]; See further observations of subbarao, J. in this case at p. 527 (AIR).
41 Liverpool and London SP&I Association v. M.V. Sea Success & Asso. Ltd.,
(2004) 9 SCC 512 (para 65) : (2003) Supp (5) SCR 851 :
(2003) 9 JT 218 [
LNIND 2003 SC 1014 ] (claim for unpaid insurance premium of P&I club will fall under section
5 for under the present changed context getting the ship insured with P&I club will fall under the expression necessaries).
42 Porritts and Spencer (Asia) Ltd. v. State of Haryana,

AIR 1979 SC 300 [
LNIND 1978 SC 226 ], p. 303 :
1979 (1) SCC 82 [
LNIND 1978 SC 226 ].
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Page 69 of 94
43 SIL Import USA v. Exim Aides Silk Exporters,

AIR 1999 SC 1609 [
LNIND 1999 SC 477 ], p. 1612 :
(1999) 4 SCC 567 [
LNIND 1999 SC 477 ].
44 Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd.,

AIR 2004 SC 3540 [
LNIND 2004 SC 1364 ]:
(2004) 6 SCC 145 [
LNIND 2004 SC 1364 ].
45 Mobarik Ali Ahmad v. State of Bombay,

AIR 1957 SC 857 [
LNIND 1957 SC 81 ], p. 871 :
1958 SCR 328 [
LNIND 1957 SC 81 ]. Cf. the following dicta of lord jowitt, L.C. in Joyce v. Director of Public
Prosecutions,
(1946) 1 All ER 186 , p. 189 (HL). “It is not an extension of a penal law to apply its principle to
circumstances unforeseen at the time of its enactment, as long as the case is fairly brought within its language.”

AIR 1962 SC 159 , p. 163 :
1962 (3) SCR 146 . See further Rajaram Jaiswal v. State of Bihar,
AIR 1964 SC 828 [
LNIND 1963 SC 94 ], p. 836 :
1964 (2) SCR 752 [
LNIND 1963 SC 94 ].
47 For rules relating to construction of the

Constitution , see generally: Karnataka State v. Union of India,
AIR 1978 SC 68 [
LNIND 1977 SC 312 ], pp. 107-15 :
(1977) 4 SCC 608 [
LNIND 1977 SC 312 ]; India Cement Ltd. v. State of Tamil Nadu,
AIR 1990 SC 85 [
LNIND 1989 SC 686 ], pp. 90, 91 :
(1990) 1 SCC 12 [
LNIND 1989 SC 686 ]; Goodyear India Ltd. v. State of Haryana,
AIR 1990 SC 781 [
LNIND 1989 SC 725 ], p. 791; Federation of Hotel and Restaurant v. Union of India,
AIR 1990 SC 1637 [
LNIND 1989 SC 299 ]:
1989 (3) SCC 634 [
LNIND 1989 SC 299 ]; Elel Hotels and Investments Ltd. v. Union of India,
AIR 1990 SC 1664 [
LNIND 1989 SC 293 ]:
(1989) 3 SCC 698 [
LNIND 1989 SC 293 ]; Synthetics and Chemicals Ltd. v. State of U.P.,
AIR 1990 SC 1927 [
LNIND 1989 SC 672 ], pp. 1950, 1951; Life Insurance Corporation of India v. Prof. Manubhai
D. Shah,
AIR 1993 SC 171 [
LNIND 1992 SC 445 ], pp. 176-179 :
(1992) 3 SCC 637 [
LNIND 1992 SC 445 ]; Kihota Hollohan (Shri) v. Zachilhu (Mr.),
AIR 1993 SC 412 [
LNIND 1992 SC 175 ], p. 428 : 1992 Supp (2) SCC 651 (Construction of 10th Schedule).
seervai, Constitutional Law of India, 4th Edition, Vol. 1, pp. 172-259. Justice D.M. dharmadhikari, ‘The Principle of Constitutional
Interpretation: Some Reflections’, AIR 2004 Journal, pp. 65 to 76; Fali S. Nariman, ‘Silences in Our Constitutional Law’ (2006)
Mr.Srikanth -
Page 70 of 94
SCC (J) 15 (The First Durga Das Basu Endowment Lecture.) See further A.G.of Gambia v. Momodon,
(1984) AC 689 , p. 700 (PC) (generous and purposive construction to be adopted); Societe
United Docks v. Govt. of Mauritius,
(1985) 1 All ER 864 , p. 873 (PC); Attorney- General of Trinidad and Tobago v. Waye
Whiteman,
(1992) 2 All ER 924 , p. 927 (PC) (broadly and purposively so as to give effect to its spirit);
Attorney-General of Hong Kong v. Lee Kwong Kut,
(1993) 3 All ER 939 , p. 947 :
1993 AC 951 (PC). See also cases in note 57, pp. 254, 255.
48 Union of India v. Naveen Jindal,

(2004) 2 SCC 510 [
LNIND 2004 SC 107 ], p. 539 (para 39) :
AIR 2004 SC 1559 [
LNIND 2004 SC 107 ]; Pratap Singh v. State of Jharkhand,
(2005) 3 SCC 551 [
LNIND 2005 SC 100 ], p. 580. (“Political social and economic development can throw light on
the meaning of the
Constitution ”). See further on this point the dissenting opinion of sinha J. in State of Punjab v. Dewans Modern
Breweries Ltd.,
(2004) 11 SCC 26 [
LNIND 2003 SC 1015 ], pp. 145-56 (paras 289 to 333).
49 R.C. Poudyal v. Union of India,

AIR 1993 SC 1804 , p. 1850 : 1994 Supp (1) SCC 324; Special Reference No. 1 of 2002 (under
Article 143(1) of the Constitution ),
AIR 2003 SC 87 [
LNIND 2002 SC 1378 ], p. 138 :
(2002) 8 SCC 237 [
LNIND 2002 SC 1378 ], p. 319; Ashok Tanwar v. State of H.P.,
(2005) 2 SCC 104 [
LNIND 2004 SC 1264 ], p. 114. Speaking in the context of fundamental rights reddy, J. said:
“Fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its
content in the light of its experience”. Peoples Union for Civil Liberties v. Union of India,
(2003) 4 SCC 399 [
LNIND 2003 SC 342 ], p. 453 :
AIR 2003 SC 2363 [
LNIND 2003 SC 342 ].
50 Goodyear India Ltd. v. State of Haryana,

AIR 1990 SC 781 [
LNIND 1989 SC 725 ], p. 791 :
1990 (2) SCC 71 [
LNIND 1989 SC 725 ]; Synthetics Chemicals Ltd. v. State of U.P.,
AIR 1990 SC 1927 [
LNIND 1989 SC 672 ], p. 1951 :
1990 (1) SCC 109 [
LNIND 1989 SC 672 ]; Special Reference No. 1 of 2002 (under
Article 143(1) of the Constitution ), supra.
51 S.R. Chaudhuri v. State of Punjab,

AIR 2001 SC 2707 [
LNIND 2001 SC 1736 ], pp. 2717, 2719 :
(2001) 7 SCC 126 [
LNIND 2001 SC 1736 ]. (Article 164(4) construed to further the principle of a representative and
responsible government by holding that a person who is not a member of the legislature and does not get elected within six months
of becoming a minister cannot be reappointed a minister during the same term of the legislature without getting elected as a
member); T.M.A. Pai Foundation v. State of Karnataka,
AIR 2003 SC 355 [
LNIND 2002 SC 681 ], p. 415;
Mr.Srikanth -
Page 71 of 94
AIR 2005 SC 800 [

LNIND 2005 SC 87 ](Having regard to the object behind grant of reservation to scheduled castes
and scheduled tribes in Articles 15(4), 16(4)330 and 332 of the
constitution , the benefit of reservation cannot be allowed to a woman of a higher caste who claims by marriage to
have acquired the status of a scheduled caste or scheduled tribe.) M. Nagraj v. Union of India,
(2006) 8 SCC 212 [
LNIND 2006 SC 857 ] (paras 122, 123) :
AIR 2007 SC 71 [
LNIND 2006 SC 857 ](Even provisions for affirmative action in Articles 15(4), 15(5) and 16(4)
are considered as restricted by the ceiling limit of 50 per cent, the concepts of creamy layer and the compelling reasons, namely,
backwardness, inadequacy of representation and overall administrative efficiency); on the question of concept of creamy layers, see
further, Nair Service Society v. State of Kerala,
(2007) 4 SCC 1 [
LNIND 2007 SC 226 ] :
(2007) 4 Scale 106 [
LNIND 2007 SC 226 ] :
(2007) 3 SLT 730 ; Indira Sawhney v. Union of India, 1992 Supp (3) SCC 217 :
AIR 1993 SC 477 .
52 Aruna Roy v. Union of India,

AIR 2002 SC 3176 [
LNIND 2002 SC 571 ], p. 3200 :
(2002) 7 SCC 368 [
LNIND 2011 SC 265 ].
53 B.K. Kapur v. State of Tamil Nadu,

AIR 2001 SC 3435 [
LNIND 2001 SC 2120 ], pp. 3448, 3449 :
(2001) 7 SCC 231 [
LNIND 2001 SC 2120 ]. (Article 164(1) construed with limitations implied from Article 164(4)
that a non-member cannot be appointed Chief Minister or Minister unless he is eligible on the date of appointment to contest the
election to become a member inspite of the resolution of the majority party in the assembly to make him Chief Minister or
Minister).
54 Archibald: cox, Court and the

Constitution , pp. 70, 378. “It (the
constitution ) is rather to be likened to a floating dock which, while firmly attached to its moorings, and not
therefore at the caprice of the waves, yet rises and falls with the tide of the time and circumstances”. J.M. Beck,
Constitution of the United States, Yesterday, Today and Tomorrow,’ quoted in Ajit Singh v. State of Punjab,
JT 1999 (7) SC 153 [
LNIND 1999 SC 820 ], p. 165 :
AIR 1999 SC 3471 [
LNIND 1999 SC 820 ], p. 3479 :
(1999) 7 SCC 209 [
LNIND 1999 SC 820 ]; Special Reference No. 1 of 2002 (under
Article 143(1) of the Constitution ) supra.
In the words of Justice Ahron Barak, President of the Supreme Court of Israel: “Purposive interpretation of the
Constitution is based on the status of the judge as an interpreter of the
constitution . A judge who interprets the
constitution is a partner to the authors of the
constitution . The authors establish the text, the judge determines its meanings. The authors formulate a will that
they wish to realise; the judge locates this will within the larger picture of the
constitution 's role in modern life. He or she must strike a balance between the will of the authors of the
constitution and the fundamental values of those living under it”; Ahron Barak, ‘A judge on Judging”: The Role of
a Supreme Court in a Democracy’, 116 (2002-03) Harvard Law Review, pp. 73, 74.
55 Hidayatullah, ‘Judicial Methods’, Miscellanea, p. 236.
Mr.Srikanth -
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56 Cardozo, The Nature of Judicial Process, p. 17.
57 Bhagwati, ‘Judicial Interpretation in Constitutional Law,’ Dimensions of Law, p. 30; Supreme Court Advocate-on-
Record Association v. Union of India,
AIR 1994 SC 268 , pp. 363, 397, 398; Kapila Hingorani v. State of Bihar,
(2003) 6 SCC 1 [
LNIND 2003 SC 521 ], p. 30 :
(2003) 3 LLJ 31 [
LNIND 2002 SC 702 ]. In the context of the Australian
Constitution , Kirby J. said: “we are not bound to the imaginings of the men who, in the last decade of a past
century, wrote the
constitution . It is governmental charter of today's Australians:” ABEBE v. Commonwealth, (1999) 73 ALJR 584,
pp. 624, 625 (Aust). The Supreme Court of the United Sates, in Lawrence Et Al v. Texas, (2003) 539 US 558 overruling its earlier
decision of 1986, by a 6:3 vote held invalid laws banning homosexual sex as infringement of privacy and said the framers of the
constitution “knew times can blind us to certain truths and later generations can see that laws once thought
necessary and proper in fact serve only to oppress”. Judge Roberts the newly appointed Chief Justice of the Supreme Court of the
United States during his confirmation hearing is reported to have said (The New York Times, September 26, 2005): “I think the
framers, when they used broad language like ‘liberty’, like ‘due process’, like ‘unreasonable’ with respect to search and seizures,
they were crafting a document that they intended to apply in a meaningful way down the ages”—and “how they apply to evolving
societal conditions”. As expressed by Justice brennan : “We current justices read the
constitution in the only way we can: as the Twentieth Century Americans. We look to the history of the time of
framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in
our time”; William J. Brennan Jr., ‘Construing the
Constitution ’, 19 U.C. DAVIS L. REV. 2, 7 (1985) quoted in 116 (2002-03) Harvard Law Review by Ahron
Barak at p. 70. In the context of the
Constitution of Barbados, Lord Hoffman speaking for the majority in Boyce v. The Queen,
(2004) 3 WLR 786 , p. 795 (PC), expressed the principles applicable in construing a
constitution as follows:
“‘Parts of the
Constitution , and in particular the fundamental rights provisions of Chapter III, are expressed in general and
abstract terms which invite the participation of the judiciary in giving them sufficient flesh to answer concrete questions. The
framers of the
Constitution would have been aware that they were invoking concepts of liberty such as free speech, fair trials and
freedom from cruel punishments which went back to the Enlightenment and beyond. And they would have been aware that
sometimes the practical expression of these concepts—what limits on free speech are acceptable, what counts as a fair trial, what is
a cruel punishment—had been different in the past and might again be different in future. But whether they entertained these
thoughts or not, the terms in which these provisions of the
Constitution are expressed necessarily co-opts future generations of judges to the enterprise of giving life to the
abstract statements of fundamental rights. The judges are the mediators between the high generalities of the constitutional text and
the messy detail of their application to concrete problems. And the judges, in giving body and substance to fundamental rights, will
naturally be guided by what are thought to be the requirements of a just society in their own time. In so doing, they are not
performing a legislative function. They are not doing work of repair by bringing an obsolete text up to date. On the contrary, they
are applying the language of these provisions of the
Constitution according to their true meaning. The text is a “living instrument” when the terms in which it is
expressed, in their constitutional context, invite and require periodic re-examination of its application to contemporary life.
All this is trite constitutional doctrine. But equally trite is the proposition that not all parts of a
constitution allow themselves to be judicially adapted to changes in attitudes and society in the same way. Some
provisions of the
Constitution are not expressed in general or abstract terms which invite judicial participation in giving them
practical content. They are concrete and specific.”’
58 M.T. Khan v. Govt. of A.P.,

(2004) 2 SCC 267 [
LNIND 2004 SC 16 ], pp. 271, 272 :
AIR 2004 SC 2934 [
LNIND 2004 SC 16 ], p. 2937.
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59 Ibid (Construction of Art. 165. Only one Advocate General can be appointed); Kuldip Nayar v. Union
of India,
(2006) 7 SCC 1 [
LNIND 2006 SC 635 ] (paras 201 to 204) :
AIR 2006 SC 3127 [
LNIND 2006 SC 635 ](construction of the expression ‘representative of the State’ in
Article 80 of the Constitution . The expression only means a person elected by the State legislature and does not
necessarily require that the person elected to represent the State should be having domicile in that state.
60 See text and notes, 17 to 23, pp. 264 to 266.
61 Ravi S. Naik v. Union of India, 1994 (Supp) 2 SCC 641 :

AIR 1994 SC 1558 (A member going with leader of another political party to meet the
Governor to show that that party had the requisite majority); Dr. Manchandra Prasad Singh v. Chairman Bihar Legislative
Council,
(2004) 8 SCC 747 [
LNIND 2004 SC 1100 ] :
AIR 2005 SC 69 [
LNIND 2004 SC 1100 ](A member of Bihar Legislative Council contesting Parliamentary
election from the ticket of another political party); Rajendra Singh Rana v. Swami Prasad Maurya,
(2007) 4 SCC 270 [
LNIND 2007 SC 160 ] (paras 48, 49) :
AIR 2007 SC 1305 [
LNIND 2007 SC 160 ]. (The act of giving a letter by some members requesting the Governor to
call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up the membership
of the party on whose ticket the said members had got elected.)
62 Sarbananda Sonowal v. Union of India,

(2005) 5 SCC 665 [
LNIND 2005 SC 523 ] (paras 51 to 61); Sarbananda Sonowal v. Union of India,
(2007) 1 SCC 174 [
LNIND 2006 SC 1082 ] :
(2007) 1 SLT 648 .

AIR 1950 SC 27 [
LNIND 1950 SC 22 ]:
1950 SCR 88 [
LNIND 1950 SC 22 ].
64 Common Cause a Registered Society v. Union of

India,
AIR 1999 SC 2979 [
LNIND 1999 SC 637 ], pp. 3024, 3025 :
(1999) 6 SCC 667 [
LNIND 1999 SC 637 ]; CSECRETARY Minor Irrigation and Rural Engineering Service U.P. v.
Sahngoo Ram Arya,
AIR 2002 SC 2225 [
LNIND 2002 SC 384 ], p. 2227 :
(2002) 5 SCC 521 [
LNIND 2002 SC 384 ] :
2002 Cri LJ 2942 [
LNIND 2002 SC 384 ].
65 Unnikrishnan (J.P.) v. State of Andhra Pradesh,

AIR 1993 SC 2178 [
Mr.Srikanth -
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LNIND 1993 SC 1110 ], p. 2226 :

1993 (1) SCC 645 [
LNIND 1993 SC 1110 ] (See also the earlier cases mentioned therein), p. 2190 (mentions more
rights and some additional cases). The decision in Unnikrishnan regarding interpretation of Articles 29 and 30 has been modified to
some extent in T.M.A. Pai Foundation v. State of Karnataka,
AIR 2003 SC 355 [
LNIND 2002 SC 681 ]:
(2002) 8 SCC 481 [
LNIND 2002 SC 681 ]. TMA Foundation case (11 Judge Bench case) further explained in P.A.
Inamdar v. State of Maharashtra,
(2005) 6 SCC 537 [
LNIND 2005 SC 614 ] (7 Judge Bench) [State cannot appropriate quota for enforcement of its
reservation policy in professional unaided (minority and non-minority) educational institutions. It would amount to nationalization
of seats.On the question of right to privacy and therefrom right to freedom from unreasonable search and seizure derived from Art.
21. See Dist. Registrar and Collector Hyderabad v. Canara Bank,
AIR 2005 SC 136 : (2005) 1 SCC 496.
66 Joginder Kumar v. State of U.P.,

JT 1994 (3) SC 423 [
LNINDORD 1994 SC 51 ], p. 430 :
AIR 1994 SC 1349 [
LNINDORD 1994 SC 51 ]:
(1994) 4 SCC 260 [
LNINDORD 1994 SC 51 ]; Followed in D.K. Basu v. State of West Bengal,
AIR 1997 SC 610 [
LNIND 1996 SC 2177 ] and additional safeguards laid down.
67 K. Anbazhogan v. Superintendent of Police,

(2004) 3 SCC 767 [
LNIND 2003 SC 991 ], p. 739 (para 30) :
AIR 2004 SC 524 [
LNIND 2003 SC 991 ]; Zahira Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158 [
LNIND 2004 SC 471 ], p. 184 (para 36) :
AIR 2004 SC 3114 [
LNIND 2004 SC 471 ].
68 Supreme Court Legal Aid Committee representing under trial prisoners v. Union of India,
JT 1994 (6) SC 544 [
LNIND 1989 SC 165 ], p. 559 :
1994 (6) SCC 731 [
LNIND 1994 SC 955 ]; Akhtari Bai v. State of M.P.,
AIR 2001 SC 1528 [
LNIND 2001 SC 773 ]:
(2001) 4 SCC 355 [
LNIND 2001 SC 773 ].
69 P. Ramchandra v. State of Karnataka,

AIR 2002 SC 1856 [
LNIND 2002 SC 296 ]; Compare Dyer (Procurator, Fiscal Linlithgow) v. Watson,
(2002) 4 All ER 1 , p. 21 (PC). [Article 6(1) of the European Convention for the Protection of
Human Rights and Fundamental Freedoms enforced in England by the Human Rights Act, 1998 contains a guarantee that criminal
trial be over within ‘a reasonable time’. The factors to be considered on the question of violation of this right as explained by the
European Court of Human Rights are: complexity of the case, conduct of the accused and the manner in which the case has been
dealt with by the administrative and judicial authorities. It is pertinent to note that in this context it has been observed that the State
cannot blame unaccountable delays “on a general want of prosecutors or judges or court houses or on chronic under funding of
the legal system”] Attorney General's Reference; (No. 1 of 2001),
(2004) 1 All ER 1049 (HL). (On the question of the effect of breach of reasonable time
requirement under Art. 6(1) of the European Convention, it has been held that in very exceptional cases alone where it could be
said for compelling reasons that it would be unfair to try the defendant or a fair hearing was not possible that a trial could be
Mr.Srikanth -
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stayed or a conviction could be quashed. Normally when such a breach is established before the hearing is over, all efforts should
be made to expedite the hearing to the greatest extent practicable and if the defendant is in custody to release him on bail. In cases
where the breach is established after the hearing, the appropriate remedy may be a reduction in the penalty imposed if the
defendant is convicted or payment of compensation where the defendant is acquitted). The counterpart of Art. 6(1) of European
Convention in the International covenant on civil and Political Rights, 1966 which is enforced in India by the
Protection of Human Rights Act, 1993 is Art. 14 which in clause 3(c) guarantees to an accused the right to be
tried without undue delay.
70 Dadu v. State of Maharashtra,

AIR 2000 SC 3203 [
LNIND 2000 SC 1340 ], pp. 3209, 3210 :
(2000) 8 SCC 437 [
LNIND 2000 SC 1340 ]. See further Dilip Dahanukar v. Kotak Mahindra Co.
Ltd.,
(2007) 6 SCC 528 [
LNIND 2007 SC 451 ], paras 12, 72 (The appellant can be put to terms while suspending the
sentence but no such term can be put as a condition precedent for entertaining the appeal which is a constitutional and statutory
right).
71 Consumer Education and Research Centre v. Union of India,

1995 (1) Scale 354 , p. 375 :
AIR 1995 SC 922 [
LNIND 1995 SC 166 ]:
(1995) 3 SCC 42 [
LNIND 1995 SC 166 ]; State of Punjab v. Mohinder Singh Chawla,
AIR 1997 SC 1225 [
LNIND 1996 SC 2161 ], p. 1227 :
1997 (2) SCC 83 [
LNIND 1996 SC 2161 ].
72 Capt. M. Paul Anthony v. Bharat Gold Mines Ltd.,

AIR 1999 SC 1416 , p. 1424 :
(1999) 3 SCC 679 .
73 J.P. Ravidas v. Navyuvak Harijan Uthapan Multi Unit Industrial Co-operative Society,
1996 (4) Scale 594 [
LNIND 1996 SC 774 ], p. 596:
AIR 1996 SC 2151 [
LNIND 1996 SC 774 ], p. 2152 :
(1996) 9 SCC 300 [
LNIND 1996 SC 774 ].
74 M.C. Mehta v. Union of India,

AIR 1998 SC 186 [
LNIND 1997 SC 1461 ], p. 190 :
1997 (8) SCC 770 [
LNIND 2004 SC 367 ].
75 Milkmen Colony Vikas Samiti v. State of Rajasthan,

(2007) 2 SCC 413 [
LNIND 2007 SC 57 ] (paras 22 to 24) :
AIR 2007 SC 1046 [
LNIND 2007 SC 57 ].
Mr.Srikanth -
Page 76 of 94
76 Bandhua Mukti Morcha v. Union of India,

AIR 1997 SC 2218 [
LNIND 1997 SC 327 ], p. 2222 :
1997 (10) SCC 549 [
LNIND 1997 SC 327 ].
77 Apparel Export Promotion Council v. A.K. Chopra,

AIR 1999 SC 625 [
LNIND 1999 SC 33 ], p. 634 :
(1999) 1 SCC 759 [
LNIND 1999 SC 33 ].
78 N.D. Jayal v. Union of India,

AIR 2004 SC 867 [
LNIND 2003 SC 1171 ], p. 878 (paras 23, 24) :
(2004) 9 SCC 362 [
LNIND 2003 SC 1171 ]; M.C. Mehta v. Union of India,
AIR 2004 SC 4016 [
LNIND 2004 SC 367 ], p. 4044 :
(2004) 4 JT 181 .
79 Ashok (Dr.) v. Union of India,

AIR 1997 SC 2298 [
LNIND 1997 SC 780 ], pp. 2304, 2305 :
1997 (5) SCC 10 [
LNIND 1997 SC 780 ].
80 Kapila Hingorani v. State of Bihar,

(2003) 6 SCC 1 [
LNIND 2003 SC 521 ], pp. 28, 29.
81 National Human Rights Commission v. State of Arunachal Pradesh,

AIR 1996 SC 1234 [
LNIND 1996 SC 58 ]:
(1996) 1 SCC 742 [
LNIND 1996 SC 58 ]; Chairman Railway Board v. Chandrima Das,
AIR 2000 SC 988 [
LNIND 2000 SC 182 ], pp. 997, 998 :
(2000) 2 SCC 465 [
LNIND 2000 SC 182 ]. See further Sarbananda Sonowal v. Union of India,
(2005) 5 SCC 665 [
LNIND 2005 SC 523 ] (paras 73 to 79) (The protection to illegal immigrants like Bangladeshis
in Assam is of life and liberty only and not of just, fair and reasonable procedure in the matter of their expulsion and the power of
the Government of India for expelling an illegal immigrant is absolute) affirmed in
(2007) 1 SCC 174 [
LNIND 2006 SC 1082 ]. In contrast, when a foreigner who is lawfully in India can be expelled,
as provided in Art. 13 of the International Covenant on Civil and Political Rights to which India is a party, only pursuant to a
decision reached by law of a competent court after he is given opportunity to state his reasons against expulsion except where
compelling reasons of national security otherwise require: Sarbananda Sonowal,
(2007) 1 SCC 174 [
LNIND 2006 SC 1082 ] :
(2007) 1 SLT 648 ; Hasan Ali v. Union of India,
(2006) 3 SCC 705 [
LNIND 2006 SC 178 ] (para 8) :
AIR 2006 SC 1714 [
LNIND 2006 SC 178 ]. Wages of seamen of a foreign ship which is confiscated will constitute an
integral part of their right to life and can be recovered from the sale proceeds of the vessel: O Konavalov v. Commander Coast
Guard Region,
Mr.Srikanth -
Page 77 of 94
(2006) 4 SCC 620 [

LNIND 2006 SC 203 ] (para 45) :
(2006) 3 JT 567 .
82 P. Rathinam Nagbhusan Patnaik v. Union of India,

AIR 1994 SC 1844 [
LNIND 1994 SC 1533 ]:
1994 (3) SCC 394 [
LNIND 1994 SC 1533 ].
83 Gian Kaur (Smt.) v. State,

AIR 1996 SC 946 [
LNIND 1996 SC 653 ]:
1996 (2) SCC 648 [
LNIND 1996 SC 653 ]. See further NHS Trust v. M,
(2001) 2 All ER 801 (Withdrawal of nutrition and hydration on expert medical opinion, though
hastening death, from insensate patients in permanent vegetative state does not infringe their right to life.). R (on the application of
Pretty) v. Director of Public Prosecutions,
(2002) 1 All ER 1 (HL). (Convention's rights enforced by the Human Rights Act 1998 do not
oblige the state to legalise assisted suicide).
84 Javed v. State of Haryana,

AIR 2003 SC 3057 [
LNIND 2003 SC 596 ], pp. 3067, 3068 :
(2003) 8 SCC 369 [
LNIND 2003 SC 596 ]; Zile Singh v. State of Haryana,
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ], p. 8 :
AIR 2004 SC 5100 [
LNIND 2004 SC 1050 ].
85 Secretary, State of Karnataka v. Umadevi,

(2006) 4 SCC 1 (para 51) :
AIR 2006 SC 1806 .
86 Unnikrishnan (J.P.) v. Union of India, supra; Ashok (Dr.) v. Union of India, supra.
See further Rajeeva Mankotia v. Secretary to President of India,
AIR 1997 SC 2766 [
LNIND 1997 SC 559 ]:
(1997) 10 SCC 441 [
LNIND 1997 SC 559 ]. (The Supreme Court directed protection and maintenance of Viceregal
Lodge at Shimla and other national monuments and thereby enforced Article 49 of the Directive Principles.) State of Punjab v. Ram
Lubhaya Bagga,
JT 1998 (2) SC 136 [
LNIND 1998 SC 245 ], p. 140 :
AIR 1998 SC 1703 [
LNIND 1998 SC 247 ]:
(1998) 4 SCC 117 [
LNIND 1998 SC 247 ] (Duty to improve public health in Article 47 relied for inferring right to
health from Article 21) A.I.I.M.S. Students Union v. A.I.I.M.S.,
AIR 2001 SC 3262 [
LNIND 2001 SC 1804 ], pp. 3280, 3281 :
(2002) 1 SCC 428 [
LNIND 2001 SC 1804 ] (Directive principles in Articles 41 and 47 were taken into account in
striking down excessive institutional reservation at post graduate level in A.I.I.M.S.). See further Jayna Kothari, ‘Social Rights and
the
Constitution ’, (2004) 6 SCC (J) 31. (The article shows how ‘social rights’ that protect the basic necessities of life,
Mr.Srikanth -
Page 78 of 94
e.g., right to food have been derived from Art. 21 by recourse to Part II of the
constitution ).
87 Koluthara Exports Ltd. v. State of Kerala,

AIR 2002 SC 973 [
LNIND 2002 SC 92 ], p. 977 :
(2002) 2 SCC 459 [
LNIND 2002 SC 92 ] : 2002 SCC (L&S) 304.
88 Granville Austin, The Indian

Constitution , Corner Stone of a Nation, pp. 101 to 106; Bhagwati, Judicial Interpretation in Constitutional Law,
Dimensions of Law, p. 30. “The true author of this interpretational innovation was Justice V.M. Tarkunde” of the Bombay High
Court in a Judgment rendered in 1965 : Y.V. Chandrachud, ‘A Peep into the Past. A Gaze into the Future’, Constitutionalism
Human Rights and the Rule of Law, Essays in the honour of Soli J. Sorabjee, p. 9 (Universal Law Publishing Co.).
89 Article 2 of the European Convention for the protection of Human Rights and Fundamental Freedoms (set out in Sch. I
to the (U.K.) Human Rights Act, 1998) provi-des: “Everyones right to life shall be protected by law.” As summarised by Lord
Bingham in R (on the application of Middletown) v. West Somerset Coroner,
(2004) 2 All ER 465 , p. 470 (HL) the European court of Human Rights has repeatedly
interpreted Art. 2 as imposing on member states substantive obligations not to take life without justification and also to establish a
framework of laws, precautions, procedures and means of enforcement which will to the greatest extent reasonably practicable
protect life. Further, the European Court has also interpreted Art. 2 as imposing on member states a procedural obligation to initiate
an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that
one or other of the foregoing substantive obligations has been or may have been, violated and it appears that agents of the state are,
or may be, in some way implicated. See further pp. 466-67 for the width of a coroner's inquest after the enforcement of the Human
Rights Act, 1998.
90 Fali S Nariman ‘50 Years of the Supreme Court—a balance sheet of performance (R.B. Datar Memorial Lecture),
‘Lawyers’ Update July-December, 1999. DR. Anand C.J.I. also voiced “the danager of the judiciary creating a multiplicity of rights
without possibility of adequate enforcement” (Inaugural speech delivered on August 29, 1999 at the Golden Jubilee Celebrations of
the Rajasthan High Court).
91 ‘Skinning a cat’ Justice B. N. Srikrishna (2005) 8 SCC J3, p. J12.
92 Recommendations of Justice Verma Committee quoted in Rangnath Misra v. Union

India, of
(2003) 7 SCC 133 [
LNIND 2003 SC 617 ] :
(2003) 3 JT 206 ; Union of India v. Naveen Jindal, (2004) 2 SCC, pp. 549, 550 :
AIR 2004 SC 1559 [
LNIND 2004 SC 107 ].
93 Union of India v. Naveen Jindal, supra, pp. 548 to 556 (SCC) [Right to fly National flag derived
from Art. 19(1)(a) read with Art. 51A(a) and (c)], Om Prakash v. State of U.P.,
(2004) 3 SCC 402 [
LNIND 2004 SC 1328 ], p. 414 :
AIR 2004 SC 1896 [
LNIND 2004 SC 1328 ][Reasonableness of ban of trade in non-vegetarion articles in Rishikesh,
Haradwar and Muniki Reti supported under Act. 51-A(e) and (f).] See further Intellectual Forum v. State of A.P.,
(2006) 3 SCC 549 [
LNIND 2006 SC 119 ] :
AIR 2006 SC 1350 [
LNIND 2006 SC 119 ](Articles 48A and 51A can be used to understand the scope of
fundamental rights).
Mr.Srikanth -
Page 79 of 94
94
(2005) 8 SCC 534 [
LNIND 2005 SC 856 ] :
AIR 2006 SC 212 [
LNIND 2005 SC 856 ].
95
AIR 1958 SC 731 [
LNIND 1958 SC 58 ]:
1959 SCR 629 [
LNIND 1958 SC 58 ].
1
(2005) 8 SCC 534 [
LNIND 2005 SC 856 ], p. 571 (para 68) :
AIR 2006 SC 212 [
LNIND 2005 SC 856 ].
2
(2005) 8 SCC 534 [
LNIND 2005 SC 856 ], p. 569 (para 58) :
AIR 2006 SC 212 [
LNIND 2005 SC 856 ].
3 Similar views have been expressed in

Constitution of India by Arvind P. Datar (2nd Edition) Vol. 1, pp. 614-15.
4 Akhil Bharat Goseva Sangh v. State of A.P.,

(2006) 4 SCC 162 [
LNIND 2006 SC 225 ], p. 204 (paras 99, 100) :
(2006) 4 JT 482 :
(2006) 4 SLT 255 .
5 Kasturilal Ralia Ram Jain v. State of U.P.,

AIR 1965 SC 1039 [
LNIND 1964 SC 245 ]:
(1965) 1 SCR 375 [
LNIND 1964 SC 245 ].
6 Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, (1868-1869) 5 Bom
HCR App 1, p. 1.
7 For a discussion as to how evolution has taken place, see Ratanlal And Dhirajlal, Law of Torts (24th edition by G.P.
Singh), pp. 44 to 62.
8 Nilbati Behra v. State of Orissa,

AIR 1993 SC 1960 [
LNIND 1993 SC 1167 ], pp. 1968, 1969 :
(1993) 2 SCC 746 [
LNIND 1993 SC 1167 ]; D.K. Basu v. State of West Bengal,
AIR 1997 SC 610 [
LNIND 1996 SC 2177 ]:
Mr.Srikanth -
Page 80 of 94
(1997) 1 SCC 416 [

LNIND 1996 SC 2177 ].
9
(2004) 6 SCC 213 , p. 216 :
(2004) 9 Scale 46 .
10 Common Cause a registered society v. Union of India,

AIR 1999 SC 2979 [
LNIND 1999 SC 637 ], p. 3002 :
(1999) 6 SCC 667 [
LNIND 1999 SC 637 ].
11 pp. 256-260.
12 Rupa Ashok Hurra v. Ashok Hurra,

AIR 2002 SC 1771 [
LNIND 2002 SC 273 ], pp. 1776, 1777 :
(2002) 4 SCC 388 [
LNIND 2002 SC 273 ].
13
(1978) 2 All ER 670 , pp. 679, 680:
(1978) 2 WLR 902 (PC).
14
AIR 1993 SC 1960 [
LNIND 1993 SC 1167 ]:
(1993) 2 SCC 746 [
LNIND 1993 SC 1167 ]. For fuller discussion of these cases see ratanlal and dhirajlal, law of
torts, (24th Edition by G.P. Singh), pp. 50, 51.
15
(2004) 4 SCC 425 , p. 426 : 2004 (Supp 1) JT 603.
16 S.P. Gupta v. Union of India,

AIR 1982 SC 149 : 1981 Supp SCC 87.
17 Supreme Court Advocates-on-Record Association v. Union of India,

AIR 1994 SC 268 , p. 442 :
1993 (4) SCC 441 .
18 Ibid., p. 384.
19 But the chief justices were not wholly blameless, see G.P. Singh, ‘My Days in the High Court’
1996 MPLJ 24 , p. 29 where in the context of appointments to ‘High Courts’ it is said:
“Experience shows that a person, whom the chief justices (Chief Justice of India and the Chief Justice of the High Court concerned)
feel is not fit, is not appointed unless atleast one of them gives in. And there is no reason why any chief justice should give in unless
Mr.Srikanth -
Page 81 of 94
in a weak moment he, consciously or unconsciously, allows himself to go astray on latent considerations of his own promotional or
post-retirement benefits or similar advantages.” (The article was written in 1986 but was published in 1996).
20
AIR 1994 SC 268 , p. 421 :
1993 (4) SCC 441 .
21 Ibid., pp. 383, 454 (AIR).
22 Special Reference No. 1 of 1998 under

Article 143(1) of the Constitution JT
1998 (7) SC 304 :
AIR 1999 SC 1 [
LNIND 1998 SC 1278 ]:
(1998) 7 SCC 739 [
LNIND 1998 SC 1278 ] :
AIR 1999 SC 1 [
LNIND 1998 SC 1278 ]. The collegium principle spelled out from the provisions of Articles 217
and 222 from the requirement of consultation with the Chief Justice of the Supreme Court or the Chief Justice of a High Court
cannot be applied to a statutory provision requiring consultation with the Chief Justice, e.g., consultation with the Chief Justice of
the High Court required for appointment of President of the State Commission under
section 16 of the Consumer Protection Act, 1986 . [ Ashok Tanwar v. State of H.P.,
(2005) 2 SCC 104 [
LNIND 2004 SC 1264 ] :
AIR 2005 SC 614 [
LNIND 2004 SC 1264 ] overruling Ashish Handa v. Honble C.J. of Punj & Har. H.C.,
AIR 1996 SC 1308 .] But initiation of the proposal for appointment of a retired judge or sitting
judge as President of the Commission has still to be by the Chief Justice whose opinion will have primacy. [ State of Haryana v.
National Consumer Awareness Group,
AIR 2005 SC 2356 [
LNIND 2005 SC 463 ], pp. 2360, 2361 ]. It has also been held that consultation with the District
Judge cannot be interpreted to mean consultation with a collegium consisting of District Judge, Addl. District Judges and C.J.M.,
overruling a contrary decision of the Allahabad High Court. [ State of U.P. v. Johrimal,
(2004) 4 SCC 714 , pp. 737, 738 :
(2004) 3 SLR 734 ].
23 These decisions have invited the criticism that “the judiciary has rewritten the
Constitution for its self-serving ends”, (S. Sahay, ‘Judicial Accountability: Issues’) and that “judicial activism here
amounted to judicial expansionism because the court expanded its own powers” (S.P. Sathe, Judicial Activism in India, p. 126). See
for further Criticism: T.R. Andhyarujina, ‘Judicial Accountability: Indian Methods and Experience’, Judges and Judicial
Accountability (First Indian Reprint by Universal, 2004), pp. 111 to 124; Lord Cooke of Thorndon, ‘Where Angles Fearto Tread’,
Supreme But not Infallible Essays in the Honour of Supreme Court’ (Oxford University Press, 2000), p. 97. In the words of Justice
Krishna Iyer: “The nine judges Bench wrested authority to appoint judges, from the top executive to themselves by stroke of
adjudicatory self enthroanment”. He also said that the in house process of appointment “has often been dilatory, arbitrary and
smeared by favourites” [cited from C.S. Vaidyanathan, Appointment of Judges to the Higher Judiciary’ Constitutionalism Human
Rights and the Rule of Law(Essays in honour of Soli J. Sorabjee) (Universal Law Publishing Co.), p. 196]. Similar criticism has
been levelled by senior Advocate Fali S. Nariman in his Krishna Iyer Foundation lecture, 2005: Dainik Bhaskar, Jabalpur, 14-6-
2005.
The working of the collegium model judicially enacted by the Supreme Court for ap-pointment of judges has also not
satisfied a parliamentary committee headed by a very senior leader of the congress party, Shri Pranab Mukerjee (now a senior
minister) and the committee is reported to have said :“The situation is alarming collegium members are prone to field candidates of
their choice. The give and take in the collegiate consultation has the potential of undermining merit.” The Committee attributed
delay in the justice delivery system due to “politics of the judiciary”. The
Constitution Review Committee (CRC) headed by formar Supreme Court Chief Justice, M.V. Venkatchaliah
recommended
constitution of National Judicial Commission (NJC) for appointment of judges: Rakesh Bhatnagar, ‘Is Judicial
Panel need of the hour’, The Times of India 25-5-2004.
Mr.Srikanth -
Page 82 of 94
24 See text and note 70, p. 401. See further Shamsher Singh v. State of Punjab,
AIR 1994 SC 2192 : 1994 Supp (1) SCC 512; Union of India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ]:
1977 (4) SCC 193 [
LNIND 1977 SC 268 ].
25 Public Law in Britain and India (Nambiyar Lectures), p. 104.
26 C. Ravichandran Iyer v. Justice M.B. Bhattacharjee,

1995 (5) SCC 457 [
LNIND 1995 SC 876 ] :
1995 (6) JT 339 . For the nature of inhouse procedure see Indira Jaising v.
Registrar General Supreme Court of India,
(2003) 5 SCC 494 [
LNIND 2003 SC 523 ] :
(2003) 3 KLT 198 (Report of inquiry held under this procedure is confidential and the Supreme
Court cannot be approached under Article 32 for its publication.)
27 See Fali S. Nariman ‘Caesar’s wife: A judge should be above suspicion’. The Times of India,
November, 1997.
28 See note 23 supra.
29 Justice S.S. Sodhi, ‘The Other Side of Justice’, Chief Injustice, pp. 293 to 298 (Hay House India, 2007).
30 Venkatachaliah Committee Recommendations, (Chapter 7), Arvind P. Datar,

Constitution of India , 2nd Edition, Vol. 3, p. 2368. See further note 23, p. 266.
31 State of Bihar v. Bal Mukund Sah,

AIR 2000 SC 1296 [
LNIND 2000 SC 481 ]:
JT 2000 (3) SC 221 [
LNIND 2000 SC 481 ]: (2000) 4 SCC 640. See further A.C. Thalwal v. High
Court of Himachal Pradesh,
AIR 2000 SC 2732 [
LNIND 2000 SC 1118 ]:
(2000) 7 SCC 1 [
LNIND 2000 SC 1118 ]; Gauhati High Court v. Kuladhar Thukan,
AIR 2002 SC 1589 [
LNIND 2002 SC 246 ]:
(2002) 4 SCC 524 [
LNIND 2002 SC 246 ] : (2002) SCC (L&S) 555. (See also cases referred therein); Chandra
Singh v. State of Rajasthan,
AIR 2003 SC 2889 [
LNIND 2003 SC 567 ], p. 2901 :
(2003) 6 SCC 545 [
LNIND 2003 SC 567 ]. (The power of ‘control’ enables the High Court to assess the
performance of a judicial officer at any time with a view to discipline the blacksheep or weed out the dead wood which cannot be
circumscribed by any rule or order).
Mr.Srikanth -
Page 83 of 94
32 Shankar Prasad Singh v. Union of India,

AIR 1951 SC 458 [
LNIND 1951 SC 56 ]:
1952 SCR 89 [
LNIND 1951 SC 56 ]; Sajjan Singh v. State of Rajasthan,
AIR 1965 SC 845 [
LNIND 1964 SC 291 ]:
(1965) 1 SCR 933 [
LNIND 1964 SC 291 ].

AIR 1973 SC 1461 [
LNIND 1973 SC 154 ]:
(1973) 4 SCC 225 [
LNIND 1973 SC 154 ](case decided by 13 judges). For criticism see: Raju Ramchandran, ‘The
Supreme Court and the Basic Structure Doctrine’, Supreme But Not Infallible, Essays in the Honour of Supreme Court, (Oxford
University Press, 2000), p. 107; Justice Krishna Iyer calls it “a judicial riddle, a hidden agenda of the robed bretheren”, The Hindu,
28-6-2005, p. 10.
34 M. Nagaraj v. Union of India,

(2006) 8 SCC 212 [
LNIND 2006 SC 857 ] (para 22) :
AIR 2007 SC 71 [
LNIND 2006 SC 857 ].
35 A.P. Datar,
Constitution of India (Second Edition) Vol. 2, p. 2022.
36 Law and Justice, An Anthology, (2003), edited by Soli J. Sorabji, p. 186.
37 Ibid., p. 190;
AIR 1973 SC 1861 .
See further an article by T.R. Andhyarujina ‘Basic Structure of the
Constitution revisited’ (The Hindu, 21-5-2007) which shows how Justice Khanna's judgment that “Parliament did
not have the power to amend the basic structure or framework of the
Constitution ” became the majority view.
38 I.R. Coelho v. State of T.N.,

(2007) 2 SCC 1 [
LNIND 2007 SC 35 ] (paras 147, 148) :
AIR 2007 SC 861 [
LNIND 2007 SC 35 ](nine judge bench).
39 supra, pp. 1535 (Sikri, C.J.), 1663 (Shelat and Grover, JJ.), 1628 (Hegde and Mukerjee, JJ.), 1753 (J.
Reddy, J.), 1860, 1900 (Khanna, J.); Indira Nehru Gandhi (Smt.) v. Raj Narain,
AIR 1975 SC 2299 , pp. 2355 (Khanna, J.), 2383 (Mathew, J.), 2468, 2469 (CHANDRACHUD,
J.) 1975 Supp SCC 1; Minerva Mills v. Union of India,
(1980) 3 SCC 625 [
LNIND 1980 SC 257 ]; Sampat Kumar v. Union of India,
(1987) 1 SCC 124 [
LNIND 1986 SC 500 ]; P. Sambamurthy v. State of Andhra Pradesh,
(1987) 1 SCC 362 [
LNIND 1986 SC 538 ] :
AIR 1987 SC 663 [
Mr.Srikanth -
Page 84 of 94
LNIND 1986 SC 538 ]; S.R. Bommai v. Union of India,

JT 1994 (2) SC 218 :
AIR 1994 SC 1918 : (1994) 3 SCC 1; State of Karnataka v. Dr. Pravin Bhai Togadia,
(2004) 4 SCC 684 [
LNIND 2004 SC 416 ], p. 694 (Secularism) :
AIR 2004 SC 2081 [
LNIND 2004 SC 416 ]; Indira Sawhney v. Union of India,
AIR 2000 SC 498 , p. 517 :
(2000) 1 SCC 168 (Parliament and Legislatures cannot transgress the basic features of the
Constitution , e.g., the principle of equality of which Article 16(1) is a facet); I.R. Coelho v. State of T.N.,
(2007) 2 SCC 1 [
LNIND 2007 SC 35 ] (para 141) :
AIR 2007 SC 861 [
LNIND 2007 SC 35 ]. (Basic structure contemplates those parts which contain the core values,
e.g. Articles 15, 21, 14 and 19 which if allowed to be abrogated would change the nature of the
Constitution ). ‘Basic Structure Theory’ is said to be one of the silences in the
Constitution : Fali S. Nariman, ‘The Silences in our Constitutional Law, (2006) SCC (J) 15 (J19 to J26)’.

AIR 1994 SC 268 , p. 421 :
(1993) 4 SCC 441 , see p. 264 ante.
41 S.P. Sampat Kumar v. Union of India,

(1987) 1 SCC 124 [
LNIND 1986 SC 500 ] :
AIR 1987 SC 386 [
LNIND 1986 SC 500 ].
42 L. Chandra Kumar v. Union of India,

AIR 1997 SC 1125 [
LNIND 1997 SC 488 ]:
(1997) 3 SCC 261 [
LNIND 1997 SC 488 ].
43 Ibid., p. 1150 (paras 78, 79) (AIR).
44 Ibid, p. 1149 (para 78). See further Duryodhan Sahu v. Jitendra Kumar Sahu,
AIR 1999 SC 114 [
LNIND 1998 SC 788 ]:
(1998) 7 SCC 273 [
LNIND 1998 SC 788 ](Administrative Tribunals unlike High Courts cannot entertain public
interest litigation). See also T. Sudhakar Prasad v. Govt. of A.P.,
JT 2001 (3) SC 204 : (2001) 1 SCC 516 :
(2001) 1 LLN 829 , regarding ambit of jurisdiction of Administrative Tribunals including power
to punish for contempt; Union of India v. R. Gandhi,
(2007) 4 SCC 341 [
LNIND 2007 SC 737 ] :
(2007) 8 JT 653 (Validity of the Companies (Amendment) Act, 2002, which transfers all
jurisdictions exercised by the High Courts in company matters to tribunals constituted under the Act, has been referred to a
45 Raghunathrao Ganpatrao v. Union of India,

AIR 1993 SC 1267 [
LNIND 1993 SC 92 ], p. 1288 :
1993 (1) JT 374 [
LNIND 1992 SC 845 ]; Jitubhai Nijbhai Kachar (Shri) v. State,
Mr.Srikanth -
Page 85 of 94
JT 1994 (4) SC 473 :

AIR 1995 SC 142 : 1995 Supp (1) SCC 596.
46 Ibid. Right to property is now considered to be not only a constitutional or statutory right but also a
human right: P.T. Munichikkanna Reddy v. Revamma,
(2007) 6 SCC 59 [
LNIND 2007 SC 524 ] (paras 40 to 43) :
AIR 2007 SC 1753 [
LNIND 2007 SC 524 ] Reference in this context is made to Article 17 of the Universal
Declaration of Human Rights, 1948, in para 42.
47 Kihota Hollohan (Shri) v. Zachirha (Mr.),

AIR 1993 SC 412 [
LNIND 1992 SC 175 ]: 1992 Supp (2) SCC 651.

(2006) 8 SCC 212 [
LNIND 2006 SC 857 ] (para 102) :
AIR 2007 SC 71 [
LNIND 2006 SC 857 ](
49 R.C. Poudyal v. Union of India,

AIR 1993 SC 1804 , p. 1853 : 1994 Supp (1) SCC 324.
50 Ibid.
51 Mohanlal Tripathi v. District Magistrate, Rae Bareilly,

AIR 1993 SC 2042 [
LNIND 1992 SC 420 ]:
(1994) 4 SCC 80 ; Ram Beti v. District Panchayat Rajadhikari,
JT 1997 (10) SC 235 , p. 240 :
AIR 1998 SC 1222 [
LNIND 1997 SC 952 ], pp. 1224, 1225 :
(1998) 1 SCC 680 [
LNIND 1997 SC 952 ].
52 Kuldip Nayar v. Union of India,

(2006) 7 SCC 1 [
LNIND 2006 SC 635 ] :
AIR 2006 SC 3127 [
LNIND 2006 SC 635 ]. It was also held in this case that the basic structure doctrine does not
apply to ordinary legislation and applies only to constitutional amendments (paras 96, 106 and 107) (
53 Reference by the President of India under

Article 143(1) of the Constitution of India on the implementation of the Indo Pakistan Agreement relating to
Berubari Union and exchange of enclaves,
AIR 1960 SC 845 .
54 I.R. Coelho v. State of T.N.,

(2007) 2 SCC 1 [
Mr.Srikanth -
Page 86 of 94
LNIND 2007 SC 35 ] (para 151) :

AIR 2007 SC 861 [
LNIND 2007 SC 35 ](case decided by a Bench of nine Judges).
55 Dieter Conrad, ‘Basic structure of the

Constitution and constitutional principles’, collected in Law and Justice, An Anthology, (2003), edited by Soli J.
Sorabjee, p. 186.
56
(1997) 189 CLR 520 .
57 Ibid., p. 559. See further Coleman v. Power, (2004) 78 ALJR 1166, p. 1201.
58 Two cases decided by three judge benches hold that Article 142(1) forms part of the basic structure of the
Constitution : Delhi Judicial Service Association v. State of Gujarat,
AIR 1991 SC 2176 [
LNIND 1991 SC 446 ], p. 2204 :
(1991) 4 SCC 406 [
LNIND 1991 SC 446 ]; Ashok Kumar Gupta v. State of U.P.,
1997 (5) SCC 201 [
LNIND 1997 SC 523 ], p. 252 :
1997 (4) JT 251 .
59
AIR 1963 SC 996 [
LNIND 1962 SC 356 ]: 1963 Supp (1) SCR 885.
60 Ibid, p. 1003.
61 Ibid.
62
AIR 1988 SC 1531 [
LNIND 1988 SC 264 ]: 1989 Supp (2) SCC 223.
63 Ibid, p. 1550.
64 Ibid, p. 1595.
65
AIR 1992 SC 248 : 1991 (4) SCC 584.
66 Ibid, p. 279.
67 Ibid, p. 278.
Mr.Srikanth -
Page 87 of 94
68 Vinay Chandra Misra, In re,

AIR 1995 SC 2348 , p. 2370 :
1995 (2) SCC 584 . Instead of suspending the licence to practice for professional misconduct,
the court could have prevented the Advocate concerned from appearing in court till he had purged himself of the contempt : Pravin
K. Shah v. K.A. Mohd Ali,
AIR 2001 SC 3041 [
LNIND 2001 SC 2283 ]:
(2001) 8 SCC 650 [
LNIND 2001 SC 2283 ].
69 Supreme Court Bar Association v. Union of India,

JT 1998 (3) SC 184 [
LNIND 1998 SC 455 ]:
AIR 1998 SC 1895 [
LNIND 1998 SC 455 ]:
(1998) 4 SCC 409 [
LNIND 1998 SC 455 ].
70 Ibid, p. 207 (JT); pp. 1912, 1913 (AIR).
71 Ibid, p. 199 (JT); pp. 1906, 1907 (AIR).
72 Ibid, p. 202 (JT); pp. 1908, 1909 (AIR).
73 Ibid, p. 216 (JT); p. 1919 (AIR). See other

constitution Bench decisions : ESP Rajaram v. Union of India,
JT 2001 (1) SC 573 [
LNIND 2001 SC 106 ], p. 580 :
AIR 2001 SC 581 [
LNIND 2001 SC 106 ], p. 585 :
(2001) 2 SCC 186 [
LNIND 2001 SC 106 ], (has reiterated that the power under Article 142 cannot be exercised to
override any express provision or to build up a case for which there is no basis in law); Secretary State of Karnataka v. Umadevi,
(2006) 4 SCC 1 (para 44) :
AIR 2006 SC 1806 (Article 142 cannot be used to regularise or make permanent employees
appointed an ad hoc basis without any prior selection). See further Textile Labour Association v. Official
Liquidator,
(2004) 9 SCC 741 [
LNIND 2004 SC 461 ] (para 7) :
AIR 2004 SC 2336 [
LNIND 2004 SC 461 ]; Union of India v. Shardindu,
(2007) 6 SCC 276 [
LNIND 2007 SC 695 ] (para 33) :
(2007) 7 JT 439 .
74 Indira Jaising, ‘Judiciary's Absolute Powers’, Indian Express, September 12, 1996.
75
AIR 1997 SC 3011 [
LNIND 1997 SC 1081 ]:
(1997) 6 SCC 241 [
LNIND 1997 SC 1081 ], see further for this case text and note 35, p. 596.
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76
AIR 1998 SC 889 [
LNIND 1997 SC 1657 ], pp. 917 to 920 :
(1998) 1 SCC 226 [
LNIND 1997 SC 1657 ].
For a recent criticism of the case see Shubhankar Dam, (2005) Public Law 239.
77 See SOLI J. Sorabjee, President's page, 3 Law and Justice (1996), p. VIII: “There can be no doubt
that the dangers of judicial populism, judicial adventurism and judicial authoritarianism, particularly by recourse to Article 142,
have to be safeguarded lest they tilt the delicate constitutional balance.” See further directions regarding uniform civil code in
Sarla Mudgal (Smt.) v. Union of India,
AIR 1995 SC 1531 [
LNIND 1995 SC 661 ], p. 1539 (paras 37, 38) :
(1995) 3 SCC 635 [
LNIND 1995 SC 661 ] and soli J. sorabji ‘Obiter Dicta on Uniform Civil Code’, Indian Express,
August 14, 1995. Later the Supreme Court had to clarify that there were no directions to enact a uniform civil code: Lily Thomas v.
Union of India,
AIR 2000 SC 1650 [
LNIND 2000 SC 827 ]:
(2000) 6 SCC 224 [
LNIND 2000 SC 827 ]. See also directions given in Sampat Kumar v. Union of India,
AIR 1987 SC 386 [
LNIND 1986 SC 500 ]:
(1987) 1 SCC 124 [
LNIND 1986 SC 500 ], regarding mode of appointment to Administrative tribunals which were
reiterated in review petitions (1987 Supp SCC 734, 735 :
1988 Cr LR (SS) 299 ) but were held to be advisory and directory in Sarwan Singh Lamba v.
Union of India,
AIR 1995 SC 1739 [
LNIND 1995 SC 592 ]:
(1995) 4 SCC 584 [
LNIND 1995 SC 592 ]. In Sarwan Singh Lamba v. Union of India,
AIR 1997 SC 3021 [
LNIND 1997 SC 917 ]:
(1997) 8 SCC 114 [
LNIND 1997 SC 917 ] a learned judge claimed that a single member of a two judge bench of the
court could issue directions under Article 142 for rehabilitation of prostitutes though the other judge expressly dissented for,
according to him, that question was not in issue. This patently erroneous interpretation of Article 142 would have given rise to utter
confusion but for the prompt action of the Supreme Court Bar Association in filing a review petition. As expected the review
petition was allowed by a bench of three judges overruling the above view of Article 142 and setting aside the directions given: rav
Jain and Supreme Court Bar Association v. Union of India,
JT 1998 (2) SC 700 [
LNIND 1998 SC 376 ]:
AIR 1998 SC 2849 : (1998) 4 SCC 270. In one case the Supreme Court exercised original
criminal jurisdiction of convicting a petitioner for perjury by recourse to Article 142 which also was set aside in a writ petition
clarifying that Article 142 could not confer any such jurisdiction: M.S. Ahlawat v. State of Haryana,
AIR 2000 SC 168 [
LNIND 1999 SC 1395 ]:
2000 (1) SCC 278 [
LNIND 1999 SC 1395 ]. Ashok Hurra v. Rupa Bipin Zaveri,
AIR 1997 SC 1266 [
LNIND 1997 SC 414 ]:
(1997) 4 SCC 226 [
LNIND 1997 SC 414 ] is another controversial decision by a two judge bench in which divorce
was granted under
section 13B of the Hindu Marriage Act with the aid of
Article 142 of the Constitution , although consent of the wife had been withdrawn before conclusion of proceedings
in the trial court, on the condition of the husband paying to the wife Rs. 10 lakhs for her maintenance. Further, directions were
given that all pending proceedings between the parties including one taken by the wife against the husband, who had remarried, for
his prosecution for bigamy will stand terminated. The wife did not accept this decision and filed a petition under Article 32
challenging the said decision, which ultimately failed not on merits but on the ground that the remedy under Article 32 is not
available against orders of the Supreme Court: Rupa Ashok Hurra V. Ashok Hurra,
Mr.Srikanth -
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AIR 2002 SC 1771 [

LNIND 2002 SC 273 ]:
(2002) 4 SCC 388 [
LNIND 2002 SC 273 ]. Mention may also be made of Commissioner of Police v. Registrar Delhi
High Court,
(1996) 6 SCC 323 [
LNIND 1996 SC 1687 ] :
AIR 1997 SC 95 [
LNIND 1996 SC 1687 ] which gives the impression that Article 142 confers a new jurisdiction to
entertain a petition which may not be entertainable under any other provision of the
Constitution . R. Prakash in
AIR 1999 (J) 119 , p. 120 effectively demonstrates that this view is erroneous. Normally the law
declared by the Supreme Court operates from the beginning of the law itself: Sarwan Kumar v. Madan Lal Aggarwal,
(2003) 4 SCC 147 [
LNIND 2003 SC 169 ]. But the power to do complete justice in Article 142 has been used as a
source of the doctrine of prospective over ruling [ Somaiya Organics (India) Ltd. V. State of Uttar Pradesh,
AIR 2001 SC 1723 [
LNIND 2001 SC 990 ], pp. 1734, 1735 :
(2001) 5 SCC 519 [
LNIND 2015 SC 635 ] ], for making its order applicable to similar other matters without hearing
the persons affected in those cases [ E.S.P. Rajaram v. Union of India,
AIR 2001 SC 581 [
LNIND 2001 SC 106 ]:
(2001) 2 SCC 186 [
LNIND 2001 SC 106 ] (
constitution bench) ]; for transferring a politically influential sitting MP in judicial custody as an undertrial
prisoner from a Jail in Bihar to Tiher Jail, Delhi though there is no provision for transfer of an undertrial prisoner from one state to
another in the
Transfer of Prisoners Act, 1950 [ Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav,
(2005) 3 SCC 284 , pp. 297, 298]; and for directing the State Government to issue executive
orders for recording/registering marriages to be operative until a suitable legislation is made [ Sema v. Ashwini Kumar,
(2005) SCC 443 ].
78 State of Himachal Pradesh v. Parents of a Student of Medical College,

AIR 1985 SC 910 [
LNIND 1985 SC 123 ]:
1985 (3) SCC 169 [
LNIND 1985 SC 123 ], pp. 174, 175; see further Asif Hameed v. State of
Jammu and Kashmir,
AIR 1989 SC 1899 [
LNIND 1989 SC 303 ], (paras 17, 18, 19 and 29) : 1989 Supp (2) SCC 364; Municipal
Committee Patiala v. Model Town Residents Association decided on 1-8-2007 (see separate judgment of B. Sudarshan Reddy J.);
Balram Bali v. Union of India,
(2007) 6 SCC 805 [
LNIND 2007 SC 995 ]. For this reason the non-compliance of the direction in Vineet Narain to
give CVC a statutory status could not entail contempt of the order of the Supreme Court: Union of India v. Prakash Hinduja,
(2003) 6 SCC 195 [
LNIND 2003 SC 540 ], pp. 216, 217 :
AIR 2003 SC 2612 [
LNIND 2003 SC 540 ].
79 Supreme Court Employees Welfare Association v. Union of India,

AIR 1990 SC 334 [
LNIND 1989 SC 351 ], p. 353 (para 51) :
(1989) 4 SCC 187 [
LNIND 1989 SC 351 ]; Union of India v. Prakash P. Hinduja, supra, (para 29), p. 2626 (AIR).
80
(2006) 8 SCC 1 [
LNIND 2006 SC 760 ] :
(2006) 12 JT 225 .
Mr.Srikanth -
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81 In a conference of Chief Ministers and Chief Justices held on 8-4-2007, the Prime Minister Shri Man Mohan Singh
cautioned: “The dividing line between judicial activism and judicial overreach is a thin one. All organs, including the judiciary
must ensure that the dividing line between them is not breached. This makes for a harmonious functioning”: (2007) 4 SCC (J) 12.
In an article ‘Democracy and Judiciary’ Shri Somnath Chatterjee, Speaker of the Lok Sabha, said: “The doctrine of
judicial independence is not to enable the judiciary to function as a kind of ‘Super Legislature’ or ‘Super Executive’. The
supermacy of the judiciary is in its assigned sphere. The principle of separation of powers is not an optional feature to be selectively
recognized by each organs of the State, but it is one of the basic features of our
Constitution which has to pervade every aspect of administration in the country.” (High Court of Madhya Pradesh
Golden Jubilee 1956-2006—A Remembrance by Advocate General, pp. 7, 8).
See further editorial in Hindustan Times of September 26, 2006 to the following effect: “It is a little
difficult to suppress a sense of disquiet over the Supreme Court's directions on police reforms—But perhaps a greater reform is
needed to make our democratic system work the way it should—The courts are meant to interpret laws and rules and not make
them.”
In a national conference of bar leaders Soli J. Sorabjee, a former Attorney General, is said to have warned that
“Judicial activism should not degenerate into judicial authoritarianism”. In the same conference T.R. Andyarujna, a former Solicitor
General is reported to have said: “If Parliament or the executive overreaches its sphere of activity, the judiciary points out that it is
unconstitutional. Is it not then unconstitutional, if judiciary does the same to the legislature and the executive”: The Hindu, March
26, 2007.
82
(2006) 2 SCC 578 :
AIR 2006 SC 1158 .
82a Ibid, para 18. These directions were given on 24-2-2006 by the order which is reported (f.n. 82). By
another order passed on 23-7-2007 it was clarified that “the marriages are to be made compulsorily registrable in respect of persons
who are citizens of India even if they belonged to various religions.” Further, on 25-10-2007 the court again directed that “the
States and Union Territories who have not acted in line with the directions given on 14-2-2006 shall forthwith do it and in no case
later than three months from today.”
83 See cases in note 78 and 79.
84 See cases in note 78.
85
(2006) 4 SCC 558 [
AIR 2006 SC 1675 [
LNIND 2006 SC 192 ].
86 In a Lecture on Separation of Powers the Speaker is reported to have criticized “the tendency of justifying judicial
activism on the ground that courts step in because of the supposed failure of the legislature or the executive to do their duty.” Since
courts themselves are unable to cope with arrears, Chhatterjee asked rhetorically, if any other organ of the State can “take upon
itself the right to exercise judicial powers on the plea that judiciary has not adequately been able to do so?” (Times of India, April
29, 2007). See further footnote 81.
87
AIR 2002 SC 2112 [
LNIND 2002 SC 362 ]:
Mr.Srikanth -
Page 91 of 94
(2002) 5 SCC 294 [

LNIND 2002 SC 362 ].
88
(2003) 4 SCC 399 [
LNIND 2003 SC 342 ].
89 See note 78.
90 Even an undertrial prisoner facing serious criminal charges whose bail applications were rejected by the Supreme
Court got elected as member of Parliament: Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav,
(2005) 3 SCC 284 :
(2005) 3 SCC 307 .
91
(2003) 4 SCC 399 [
LNIND 2003 SC 342 ], pp. 456, 457, 465.
92 Ibid, p. 457.
93 Secretary Ministry of Information and Broad Casting v. Gemini TV (P.) Ltd.,

(2004) 5 SCC 714 . For critism of the case see A.G. Noorani, ‘Matters of Policy: courts cannot
use interpretation of the law above it. Tipping the balance’ The Hindustan Times, 20-10-2004. On the question of precensorship
and freedom of the media see Soli J. Sorabjee, ‘
Constitution Courts, and Freedom of the Press and the Media’, Supreme but not Infallible, Essays in the Honour of
the Supreme Court' (Oxford University Press), pp. 334, 342 to 356.
94 Cases in f.n. 77 and 80, supra.
95 Case in f.n. 82, supra.
96 Cases in f.n. 87, 88 and 93, supra.
97
AIR 2002 SC 1856 [
LNIND 2002 SC 296 ], p. 1871 :
(2002) 4 SCC 578 [
LNIND 2002 SC 296 ].
98 Ibid.
1 ‘Judicial Activism Constitutional Obligation of the Courts’, (B.M. Patnaik Memorial Lecture delivered at Cuttack on
Jan. 22, 2005)
AIR 2005 Journal 177 , pp. 188, 189.
Mr.Srikanth -
Page 92 of 94
2 See footnotes 81 and 86, supra.
3 J.S. Verma (former Chief Justice of India) ‘The New Universe of Human Rights’ p. 69 (Universal Law Publishing
Co., 2004).
4 Indian Bank v. ABS Marine Products (P) Ltd.,

(2006) 5 SCC 72 [
LNIND 2006 SC 279 ] (para 26) :
AIR 2006 SC 1899 [
LNIND 2006 SC 279 ].
5 Note 3, supra.

(2006) 6 SCC 212 (para 102) :
AIR 2007 SC 71 [
LNIND 2006 SC 857 ](A
Constitution Amendment which does not offend the basic structure doctrine can alter Supreme Court's
interpretation of a provision of the
Constitution .)
7 While continuing the two committees one for regulating admission procedure and the other for regulating fee structure
relating to professional unaided (minority and non-minority) educational institutions constituted under Article 142 in Islamic
Society of Education v. State of Karnataka,
(2003) 6 SCC 69 (5 judge bench) by P.A. Inamdar v. State of Maharashtra (7 judge bench)
(2005) 6 SCC 537 [
LNIND 2005 SC 614 ] (paras 148 and 155) as a temporary measure and as an inevitable passing
phase until the Central Government or the State Governments are able to devise a suitable mechanism for the same purpose by
suitable legislation or regulation, the court observed: “The judicial wing of the State is called upon to act when the two other wings,
the legislative and the executive, do not act.” (para 155)
8 Discussed at pp. 280, 281.
9 The nature of this power as explained in Vineet Narain v. Union of India,

(1998) 1 SCC 226 [
LNIND 1997 SC 1657 ], p. 264, para 49 :
AIR 1998 SC 1 [
LNIND 1997 SC 1309 ] is : “There are ample powers conferred by Article 32 read with Article
142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the
orders of this court as provided in
Article 144 of the Constitution . In a catena of decisions of this court, this power has been recognized and exercised
if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive
discharges its role”. The same view was expressed in Prakash Singh Badal v. Union of India,
(2006) 8 SCC 1 [
LNIND 2006 SC 760 ] (para 30) :
(2006) 12 JT 225 :
(2006) 7 SLT 198 .
10 Seema v. Ashwini Kumar,

(2005) 4 SCC 443 :
(2006) 2 SCC 578 .
Mr.Srikanth -
Page 93 of 94
11
JT 2002 (8) SC 133 , p. 134.
12 (2004) Public Law, pp. 43 to 45; R. v. Mill,

(1999) 3 SCR 668 (Canada); (2005) Public Law, pp. 329, 330.
13 See Dawn Oliver, Constitutional Reform in U.K. (The Courts and Theories of Democracy, Citizenship, and Good
Governance) page 205 quoted in Modern School v. Union of India,
AIR 2004 SC 2236 [
LNIND 2004 SC 564 ] by sinha, J. at p. 2255 :
(2004) 5 SCC 583 [
LNIND 2004 SC 564 ].
14 ‘How Like an Angel’, Constitutionalism Human Rights and the Rule of Law, p. 37 (Essays in the honour of Soli J.
Sorabjee; Universal Law Publishing Co.)
15 See pp. 27, 28, ante.
16 James v. Commonwealth of Australia,

(1936) 2 All ER 1449 , pp. 1464, 1465 (PC).
17 A.G. of Alberta v. A.G. of Canada,

AIR 1948 PC 194 , p. 198 :
1947 AC 503 .
18 State of Missouri v. Rly. P. Holland, 252 U.S. 416, p. 433; 64 Law Ed 641, p. 648. See further
Kapila Hingorani v. State of Bihar,
(2003) 6 SCC 1 [
LNIND 2003 SC 521 ], p. 23; Saurabh Chaudri v. Union of India,
AIR 2004 SC 361 [
LNIND 2003 SC 950 ], p. 374 :
(2003) 11 SCC 146 [
LNIND 2003 SC 950 ].
19 State of West Bengal v. Anwarali Sarkar,

AIR 1952 SC 75 [
LNIND 1952 SC 1 ], p. 103 :
1951 SCR 603 [
LNIND 1951 SC 36 ]. See further Jagdish Saran v. Union of India,
(1980) 2 SCC 768 [
LNIND 1980 SC 35 ] :
AIR 1980 SC 820 [
LNIND 1980 SC 35 ](para 7) and Saurabh Chaudri v. Union of India,
AIR 2004 SC 361 [
LNIND 2003 SC 950 ], p. 374 :
(2003) 11 SCC 146 [
LNIND 2003 SC 950 ].
20 R. v. Henn,
(1980) 2 All ER 166 , p. 196 (HL).
Mr.Srikanth -
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End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 4
External Aids to Construction
4. REFERENCE TO OTHER STATUTES
(a) Statutes in pari materia
It has already been seen that a statute must be read as a whole as words are to be understood in
their context.21 Extension of this rule of context permits reference to other statutes in pari
materia, i.e. statutes dealing with the same subject-matter or forming part of the same system.
Viscount Simonds in a passage already noticed conceived it to be a right and duty to construe
every word of a statute in its context and he used the word context in its widest sense including
“other statutes in pari materia”.22 As stated by Lord Mansfield: “Where there are different
statutes in pari materia though made at different times, or even expired, and not referring to each
other, they shall be taken and construed together, as one system and as explanatory of each
other.”23 In a case, the Court of Appeal, while holding that smuggled gold coins constituted
‘goods’ within the meaning of Customs &
Excise Act , 1952, referred to a whole series of Customs Acts starting in 1833, going
on to 1876, 1893, 1932 and 1939 and observed that reading through them it was plain that in the
Customs Acts ‘goods’ does include gold and silver coins and bullion for when they are to be
excluded they are excluded expressly by the words of the Acts.24
The meaning of the phrase pari materia has been explained in an American case in the following
words: “Statutes are in pari materia 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 word simlis. It is used in
opposition to it—intimating not likeness merely but identity. It is a phrase applicable to public
statutes or general laws made at different times and in reference to the same subject.”25 When the
two pieces of legislation are of differing scopes, it cannot be said that they are in pari materia.26
Mr.Srikanth -
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Thus the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947; and the Bombay
Land Requisition Act, 1948, were not held to be Acts in pari materia as they do not relate to the
same person or thing or to the same class of persons or things.27
However, it is not necessary that the entire subject-matter in the two statutes should be identical
before any provision in one may be held to be in pari materia with some provision in the other.28
Thus
section 4 of the Prevention of Corruption Act , 1947, which directs that on proof that
the accused has accepted any gratification other than legal remuneration, it shall be presumed
unless the contrary is established by the accused that the gratification was accepted as a bribe, has
been held to be in pari materia with the subject-matter dealt with by the
Indian Evidence Act, 1872 ; and the definition of the expression ‘shall presume’ in
the
Evidence Act has been utilised to construe the words ‘it shall be presumed’ in
section 4 of the Prevention of Corruption Act , 1947.29 Similarly, section 19 of the
Assam Agricultural
Income-tax Act , 1939, has been held to be in pari materia with
section 22 of the Indian Income-tax Act, 1922 , and decisions construing it have been
used for construing the former.30
Section 20(c) of the Code of Civil Procedure and
Article 226(2) of the Constitution have been held to be in pari materia and decisions
interpreting the former have been held to apply in interpreting the latter for deciding the place or
places where ‘the cause of action wholly or in part arises’ for entertainment of a writ petition in
the High Court for challenging the vires of a Central Act.31The
Industries (Development and Regulation) Act, 1951 in so far as it deals with textiles
industry has been held to be in pari materia with the
Textiles Committee Act, 1963 .32 And, the Indian Tariff Act, 1934 and the Imports
and Exports (Control) Act, 1947, have been held to throw light on the construction of each other
as they form part of the Import Control Scheme of the Government.33
The rule that related provisions in different Acts but having bearing on the same subject have to
be read together can be illustrated from the case of Comman Cause, A Registered Society v. Union
of India 34 which interpreted Explantion 1 to
section 77(1)of the Representation of the People Act, 1950 . The Explanation
provides that ‘any expenditure incurred or authorised in connection with the election of a
candidate by a political party—shall not be deemed to be—expenditure in connection with the
election incurred or aurhorised by the candidate’. In construing this provision, the court read
sections 13A and 139(4B)of the
Income-tax Act, 1961 which though exempting the income of political parties from
house property, other sources or voluntary contributions require them to maintain audited
accounts and to file income-tax return for each assessment year. The court held that if a political
party is not maintaining audited and authentic accounts and is not filing return of income, it
Mr.Srikanth -
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cannot justifiably plead that it has incurred or authorised any expenditure in connection with the
election of a party candidate within the meaning of Explanation (1) to section 77(1) and that the
said provision does not give protection to the expenditure which comes from an unknown or black
source. In the same context the court noticed that the main income of a political party comes from
contributions from companies which are permitted to make these contributions under the
conditions laid down in
section 293A of the Companies Act and are required to disclose them in their profit
and loss account. Another example of the same principle is the case of State of Madhya Pradesh
v. Swaroop Chand 35 which relates to the construction of section 22 of the MP Van
Upaj (Vyapar Viniyaman) Adhiniyam, 1969. The Adhiniyam applies to certain specified forest
produce and provides for their seizure alongwith receptacle or vehicle used for transportation in
contravention of the provisions of the Act and Rules. The Adhiniyam provides for release of
receptacle or vehicle on payment of its value but not for confiscation in case the value is not paid.
Section 22 further provides that nothing contained in the
Indian Forest Act, 1927 shall apply to specified forest produce in matters for which
provision is made in the Adhiniyam. The Supreme Court held that the provision for confiscation
made in the Forest Act would apply to seizures made under the Adhiniyam as this was a matter for
which no provision was made in it. It is submitted that another way of looking at the problem was
that the Act and the Adhiniyam dealt with allied subjects forming part of the same system and had
to be read as complimentary to each other. It was, therefore, rightly held that on matters not
provided in the Adhiniyam but provided in the Act, the provisions of the Act could be applied to
the specified forest produce. And in Board of Trustees of the Port of Bombay v. Sriyanesh
Knitters, 36 the Supreme Court read the
Major Port Trusts Act, 1963 along with the

Indian Contract Act, 1872 and held that in so far as the Board of Trustees functioned
as wharfingers under sections 42 to 48 of the MPT Act, it was entitled to the right of general lien
contained in section 171 of the Contract Act which was not provided for in the MPT Act but
which was also not expressly or impliedly excluded by its provisions.
Acts dealing with various socio-economic plans have to be read in a complementary manner so
that they do not create contradictions while operating in the same field.37 For example, a tenancy
Act which is enacted to ameliorate the condition of tenants and which confers exclusive
jurisdiction on revenue courts to decide whether tenancy right was acquired by a person has to be
read complimentary to a ceiling Act which is passed with the object of so distributing the
agricultural resources of the community as to subserve the common good and which confers
jurisdiction on an authority functioning under that Act to decide whether a tenancy right was
created bona fide or to defeat the provisions of the Act.38 A determination by revenue courts
under the Tenancy Act about the existence of tenancy right does not exclude the jurisdiction of
the ceiling authorities to go into the question whether the tenancy right was created to defeat the
provisions of the Ceiling Act.39
Similarly it has been held that the Maharashtra Recognition of Trade Unions and Prevention of
Mr.Srikanth -
Page 4 of 76
Unfair Labour Practices Act, 1972 has to be read and construed along with the other Labour Laws
then in force such as the
Industrial Disputes Act, 1947 and the
Contract Labour (Regulation and Abolition) Act, 1970 40
. It was held in this case that
workmen claiming to be employed by a company ostensibly through a contractor alleging this to
be a camouflage to conceal the real relationship cannot directly complain against the company
under the Maharashtra Act and they have first to raise an industrial dispute to have their status as
directly employed by the company determined under the
Industrial Disputes Act On41 the same principle, the definition of employee in
section 2(e) of the Payment of Gratuity Act, 1972 was construed in the light of the
definition of employee in other labour legislations and authoritative pronouncements construing
the definition of employee in them and it was held that teachers cannot be said to be employed in
any skilled, semi-skilled, or unskilled manual, supervisory, technical or clerical work and,
therefore, they do not fall under the definition of employee.42
The application of this rule of construction has the merit of avoiding any apparent contradiction
between a series of statutes dealing with the same subject;43 it allows the use of an earlier statute
to throw light on the meaning of a phrase used in a later statute in the same context;44 it permits
the raising of a presumption, in the absence of any context indicating a contrary intention, that the
same meaning attaches to the same words in a later statute as in an earlier statute if the words are
used in similar connection in the two statutes;45 and it enables the use of a later statute as
parliamentary exposition of the meaning of ambiguous expressions in an earlier statute.46
(b) Assistance of earlier statutes
As already noticed, use of same words in similar connection in a later statute gives rise to a
presumption that they are intended to convey the same meaning as in the earlier statute.47 On the
same logic when words in an earlier statute have received an authoritative exposition by a
superior court, use of same words in similar context in a later Act will give rise to a presumption
that Parliament intends that the same interpretation should also be followed for construction of
those words in the later statute.48 The rule as stated by Griffith, C.J. and approved by the Privy
Council (Lord Halsbury) is: “When a particular form of legislative enactment, which has received
authoritative interpretation whether by judicial decision or by a long course of practice, is adopted
in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted
were intended by the Legislature to bear the meaning which has been so put upon them.”49 The
rule in the form stated by James, L.J. and approved by Lord Buckmaster is as follows: “When
once certain words in an Act of Parliament have received a judicial construction in one of the
superior courts, and the Legislature has repeated them without alteration in a subsequent statute, I
conceive that the Legislature must be taken to have used them according to the meaning which a
court of competent jurisdiction has given to them”.50 James, L.J. himself reiterated the rule in
Mr.Srikanth -
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slightly different words and according to Lord Macmillan in a better form, in a later case thus: “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 well-known decisions uses those words in the sense which the
decisions have attached to them”.51 It will be seen that Lord Buckmaster treated the rule as one of
‘absolute obligation’ whereas Lord Macmillan treated the same ‘as a canon of construction’, i.e.,
as a presumption in the circumstances where judicial interpretation was well settled and well
recognised and even then he thought that the rule must yield to the fundamental rule that in
construing statutes grammatical and ordinary sense of the words is to be adhered to, unless it
leads to some absurdity, repugnance or inconsistency. The House of Lords52 (Lord Scarman, Lord
Brandan and Lord Templeman) recently observed that the view of Lord Macmillan accords with
modern principles and should be preferred to that of Lord Buckmaster. The rule obviously will
have no application when the decisions on the earlier Act are not consistent;53 or when they are in
fact shown to be erroneous.54 The rule has also no application to a purely consolidation Act which
affords no opportunity to Parliament of reconsidering the previous Acts which are
consolidatedagain55 it is not to be presumed that Parliament in any subsequent Act dealing with a
related but identical subject-matter has taken account of and adopted as correct all judicial
pronouncements as to the meaning of ordinary English words appearing in a statutory instrument
made under an earlier Act.56 Further, the presumption arising under the rule is not conclusive and
will be weak when the interpretation of the former Act was given by only one of the High Courts
and the matter was not taken to the highest court in appeal.57 “The true view”, said Lord Denning:
“is that the court will be slow to overrule a previous decision on the interpretation of a statute
when it has long been acted on, and it will be more than usually slow to do so when Parliament
has, since the decision, re-enacted the statute in the same terms, but if the decision is in fact
shown to be erroneous, there is no rule of law which prevents it being overruled”.58 In the words
of Lord Simon: “To pre-empt a court of construction from performing independently its own
constitutional duty of examining the validity of a previous interpretation, the intention of
Parliament to endorse the previous judicial decision would have to be expressed or clearly
implied. Mere repetition of language which has been the subject of previous judicial interpretation
is entirely neutral in this respect—or at most implies merely the truism that the language has been
the subject of interpretation for whatever (and it may be much or little) that is worth”.59 But the
legislature may though rarely use words in a later statute “to discourage the courts from taking a
fresh look at the statutory language” which has been borrowed from an earlier Act and to re-
examine and depart from the principles settled by courts on a construction of the language used
“whatever their logic or merit.”60
In dealing with Articles 245(1) and 246 of the

Constitution which are in pari materia with sections 99(1) and 100 of the
Government of India Act, 1935, Venkatarama Aiyar, J., observed: “It is a well-settled rule of
construction that when a statute is repealed and re-enacted and words in the repealed statute are
reproduced in the new statute, they should be interpreted in the sense which had been judicially
put on them under the repealed Act, because the Legislature is presumed to be acquainted with the
construction which the courts have put upon the words, and when they repeat the same words,
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they must be taken to have accepted the interpretation put on them by the court as correctly
reflecting the legislative mind.”61 Thus the Supreme Court while construing the words ‘the court
by which the person is found guilty’ as they occur in
section 6(1) of the Probation of Offenders Act, 1958 , referred to decisions construing
similar words in
section 562 of the Code of Criminal Procedure , 1898, an enactment in pari materia
and held in the light of those decisions that the words in question were wide enough to include an
appellate court.62 Similarly, it has been held that
section 17(b) of the Wealth-tax Act, 1957 , is in pari materia with
section 34(b) of the Income-tax Act, 1922 , and in interpreting the former, decisions
interpreting the latter can be relied upon. 63
However, it is not a sound principle of construction to interpret expressions used in one Act with
reference to their use in another Act, and decisions rendered with reference to construction of one
Act cannot be applied with reference to the provisions of another Act, when the two Acts are not
in pari materia.64 There is also no presumption that the Legislature while repealing
one statute and substituting another in different terms intends to make the minimum changes in
the previous law that it is possible to reconcile with the actual wording of the new statute
particularly where the new statute is passed with a new object e.g. to give effect to a new
international convention.65 When the new legislation, although re-enacting many provisions from
earlier statutes, contains a good deal of fresh material and deals with a subject on which social
views have drastically changed, it may not be proper to rely on the earlier authorities for
construing the new legislationfurther66, when there is no ambiguity in the statute, it may not be
permissible to refer to, for purposes of its construction, any previous legislation or decisions
rendered thereunder.67 Decisions relating to constitutional validity of one statute, on the same
principles are not taken as a safe guide for pronouncing on the validity of another statute which
may not be in pari materia.68
Again, instructive though it may be, an effort to construe a legislation of one State with the help
of legislations on the same subject of other States has not been commended because similarity or
variation of language in the laws of different States is not necessarily indicative of a kindred or a
changed intention, but earlier legislations of the same State on the same subject may be referred to
as indicative of the practice of the particular State and for deriving whatever assistance may be
possible.69 A decision interpreting a Central Act has been used for interpreting corresponding
provisions of a State Act holding that they were in pari materia.70 Similarly a decision
interpreting a State Act has been used for interpreting corresponding provisions of a Central
Act.71 Before utilising decisions rendered under a Central Act or a State Act, for construing an
Act of another State on the same subject, attention must be drawn to the variance in language. For
example, a statutory tenant under the Bombay Rents, Hotel and Lodging House Rates Control
Act, 1947 has no heritable or transferableinterest whereas a statutory tenant under the
corresponding Act of Madhya Pradesh has a heritable interest like a tenant because of the special
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definition of tenant in the Madhya Pradesh Act.72
The principle under discussion is not applicable when an enactment is not re-enacted but is left
unamended by the Legislaturehowever73, in case of an ill-penned enactment if judicial decisions
have consistently adopted one construction, inaction of the Legislature in not amending the
enactment may lend support to the view that the construction so adopted is in accord with the
intention of the Legislature.74 Referring to section 7 of the Bihar Money-lenders (Regulation of
Transaction) Act, 1939, and after indicating that the section was obscure and ill-drawn and that
the Patna High Court had been placing a consistent construction upon the language of the section
from the very next year of its enactment, Chandrashekhar Aiyar, J., observed: “If the
interpretation does not carry out the intentions of the Act by reason of unhappy or ambiguous
phrasing, it is for the Legislature to intervene. But so far from doing so, it has acquiesced, during
all these years, in the construction, which the Patna High Court has been placing upon the section
from the very next year after the enactment of the statute. Having regard to the great obscurity in
the language employed in the relevant provisions and the inaction of the Legislature, it is, in our
opinion, legitimate to infer that the view expressed by the Patna High Court is in accord with the
intention of the Legislature.”75 It must in this connection be kept in view that “the approval of the
Legislature of a particular construction put on the provision of an Act on account of its making no
alteration in those provisions is presumed only when there had been a consistent series of cases
putting a certain construction on certain provisions”,76 and which is acquiesced in for a
sufficiently long time.77 But when after a provision in an Act has been construed by the Supreme
Court the Act is amended leaving the provision intact and without affecting the construction
placed by the Supreme Court, it may be inferred that the decision of the Supreme Court correctly
brings out the legislative intention.78
Apart from any question of acquiescence of the legislature, a long standing decision adopting a
particular construction which may have been acted upon by persons in the general conduct of
affairs may not be departed from on the doctrine of stare decisis.79 Law should be certain and
parties should know where they stand. Therefore, consistent view taken by the High Court on the
question of interpretation of a State Act, which held the field for a number of years would not be
readily overruled by the Supreme Court even if a different view were possible.80 But there is
nothing in law to prevent the Supreme Court in overruling along standing interpretation of a State
Act if it is plainly wrong and is contrary to the object of the Statute.81 Further, the doctrine does
not prevent the Supreme Court from overruling the High Court's or its own decisions which are
contrary to the
Constitution 82
as properly interpreted. The law declared by a court has retrospective
effect, if not otherwise stated to be so.83 The Supreme Court may in rare cases resort to
prospective overruling to avoid injustice in cases, where the earlier view had been acted upon.84
The High Courts have no power of prospective overruling but they may without applying this
doctrine grant limited relief in exercise of equity jurisdiction.85
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Just as use of same language in a later statute as was used in an earlier one in pari materia is
suggestive of the intention of the Legislature that the language so used in the later statute is used
in the same sense as in the earlier one, change of language in a later statute in pari materia is
suggestive that change of interpretation is intended.1 As was observed by BRETT, J.: “Where two
statutes dealing with the same subject-matter use different language, it is an acknowledged rule of
construction that one may be looked at as a guide to the construction of the other. If one uses
distinct language, imposing a penalty under certain circumstances and other does not, it is always
an argument that the Legislature did not intend to impose a penalty in the later, for where they did
so intend they plainly said so.”2 Similarly, it was stated by COCKBURN, C.J.: “When the
Legislature, in legislating in pari materia and substituting certain provisions in that Act for those
which existed in the earlier statute, has entirely changed the language of the enactment, it must be
taken to have done so with some intention and motive.”3 To the same effect are the observations
of LORD MACMILLAN: “When an
amending Act alters the language of the principal statute, the alteration must be taken
to have been made deliberately.”4 The dropping of the word ‘reduce’ and substitution of the word
‘modify’ in its place was on this principle construed to give to the word ‘modify’ a wider
connotation so as to include not only reduction but also other kinds of alteration including
enhancement.5 Similarly when the New Zealand Dairy Board Act, 1953, section 11 of which gave
the Dairy Board power to appoint committees and to delegate to a committee with the consent of
the minister any of its powers and functions was repealed and replaced by the New Zealand Dairy
Production and Marketing Board Act, 1961, section 13 of which gave the Board power to appoint
committees to advice it, it was held that the change in language was not accidental and gave rise
to the inference that the Parliament deliberately refrained from giving the Board power to delegate
any of its powers and functions to a committee with the consent of the minister.6 An argument
that change in law by an
amending Act was not intended will be readily negatived if adherence to the law as it
was before the amendment would make the words added by the
amending Act 7
otiose. It was thus held that after amendment of
section 17(4) of the Land Acquisition Act, 1894 by the Amendment Act of 1984, a
notification under section 6 of the Act cannot be issued simultaneously with the notification under
section 4, even in cases of emergency to which section 17 is applied, for that will make the words
‘after the publication of the notification under section 4(1)’ as added in section 17(4) redundant.8
Numerous illustrations can be found where the Legislature not happy with a particular
construction placed upon an enactment has changed the same by an amending statute and that is
specially true of tax and welfare legislations. The alteration of the law by the Legislature,
however, does not give rise to any inference that the previous decisions were wrong or even that
those who proposed the alteration were of that opinion.9 But when judicial decisions have taken
two different views of a statutory provision which is re-enacted with certain modifications, the
change in language may be suggestive of acceptance of one view by the Legislature and a
meaning consistent with that view should be placed on the provisions re-enacted.10 When the
Legislature makes suitable amendments to give effect to a prior judicial decision, it should be
inferred that the decision correctly interpreted the law before the amendment.11
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It is no doubt true that after a statute is amended, the statute thereafter is to be read and construed
with reference to the new provisions and not with reference to provisions that originally existed.12
Further the wisdom of the warning given by LORD WATSON cannot be doubted that it is an
“extremely hazardous proceeding to refer to provisions which have been absolutely repealed in
order to ascertain what the Legislature meant to enact in their room and stead”.13 However, “when
it is contended that the Legislature intended by an y particular amendment to make substantial
changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what
the law was previously to the particular enactment and to see whether the words used in the
statute can be taken to effect the change that is suggested as intended”,14 and similarly, when the
terms of the enactment in the new shape are sufficiently difficult and ambiguous, the
consideration of its evolution in the statute book is justified as a proper and logical course.15 It is
an example of the application of this principle that the Supreme Court “on historical evolution of
section 21 (
Penal Code ), adopted as an external aid to construction ” held that an M.L.A. was
not and is not a public servant as defined in that section.16 Legislative history of separate and
distinct provisions giving benefit of total or partial exemption from income-tax to those who were
engaged in running poultry business was taken into account in holding that the provisions which
provided incentive to industrial undertakings engaged in the business of manufacturing or
producing articles or things did not apply to those engaged in the business of hatcheries which in
this context could neither be termed industrial undertaking nor engaged in the business of
producing articles or things.17 And in dealing with the expression ‘injury to health’ in section 79
of the Environmental Protection Act, 1990 used in the context of statutory nuisance the abatement
of which can be directed by a local authority, the Court of Appeal traced its legislative history
beginning from the Public Health Act, 1875 and referred to the decisions under the earlier Acts
and came to the conclusion that it had been always understood in the sense of risk of disease or
illness, and so it could not be interpreted in section 79 to include risk of physical injury from the
state of residential premises.18
An
amending Act is construed in a way which does not result in its misfiring or in
19
denying its efficacy but without straining its language or re-writing or adopting it to cover cases
other than those to which it clearly applies.20 Change in language is not, however, always
indicative of a change in construction.21 The alteration in language in or by a later statute may be
the result of many other factors. For instance, words may be omitted in a later statute when they
were mere surplusage22 and the natural and ordinary meaning of the existing words indicates no
intention of alteration of meaning.23 Similarly addition of words may be to make clear a meaning
which was already implied.24 Further, the change in wording may be because the draftsman
wanted to improve the style.25 As aptly stated by LORD UTHWATT, no alteration in meaning by
alteration in language can result “unless, (1) the requirements of the English language demand it,
(2) those requirements permit it and sense of the section demands it”.26 It must also be
remembered that for bringing about fundamental changes such as departure from the general
system of the law or imposition of new burdens, a clear intention to that effect is necessary and
the courts will not infer such fundamental changes unless the language used expresses a clear
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intention to the contrary.27
(c) Assistance of later statutes
It is within the authority of the Legislature to amend an earlier Act or to declare its meaning by
enacting a new Act and the Legislature is even competent to so declare a meaning that the
“declaration offended the plain language of the earlier Act”.28 In such cases, the later statute
operates directly by its own force and not merely as an aid to construction of the earlier statute.29
But a legislation proceeding upon an erroneous assumption of the existing law without directly
amending or declaring the law is ineffective to change the law. “The beliefs or assumptions of
those who frame Acts of Parliament cannot make the law” and a mere erroneous assumption
exhibited in a statute as to the state of the existing law is in effective to express an “intention” to
change the law;30 If by such a statute the idea is to change the law, it will be said that “the
Legislature has plainly missed fire.”31 As has been observed by S.K. Das, J.: “Legislation founded
on a mistaken or erroneous assumption has not the effect of making that the law which the
Legislature had erroneously assumed to be so.”32 The court will disregard such a belief or
assumption and also the provision inserted in that belief or assumption.33 Even a legislation
proceeding on the basis of a common law rule which then had the approval of the highest court
may be ineffective to prevent the court in departing from its earlier decision and changing the
law.34 A later statute, therefore, is normally not used as an aid to construction of an earlier one.35
These principles were referred to (from 5th Edition, pp. 186, 187 of this book) and approved in
P.V. Murali v. Andhra Pradesh. 36 In this case, Explanation II added to section 2(22)
of the Andhra Pradesh Charitable and Hindu Religious Institution and Endowments Act, 1987
was held to be ineffective as it proceeded on the wrong assumption of the legal position that even
after grant of pattas of land of a religious institution under the Andhra Pradesh Inams (Abolition
and Conversion into Ryotwari) Act, 1956, the property so granted did not become the personal
property of the grantees but continued to be a religious endowment. Further, a legislation
declaring certain non-existent facts as existing and proceeding on that basis may also be held to be
ineffective.37
But when an earlier Act is truly ambiguous a later Act may in certain circumstances serve as a
parliamentary exposition of the former.38 The rule of construction applicable in such cases can be
best stated in the words of Lord Sterndale: “I think, it is clearly established—that subsequent
legislation on the same subject may be looked to in order to see what is the proper construction to
be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent
legislation, if it proceeds upon an erroneous construction of previous legislation, cannot alter that
previous legislation, but if there be any ambiguity in the earlier legislation then the subsequent
legislation may fix the proper interpretation which is to be put upon the earlier.”39 Referring to
this passage Lord Buckmaster said: “This is in his opinion an accurate expression of the law.”40
But as expressed in the passage of Lord Sterndale41 and as explained authoritatively by the House
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of Lords this rule of construction applies only when the earlier enactment is ambiguous, i.e.,
“fairly and equally open to diverse meanings”42 and the same rule applies even though the later
Act contains a provision that it is to be read as one with the earlier Act.43 It has further been said
that it is clearly wrong to construe an unamended section of the earlier Act in the light of the
amendment made by the later Act in other parts of the earlier Act unless the unamended section is
ambiguous, i.e., “fairly and equally open to diverse meanings”.44
The Coal Mines Provident Fund and Bonus Schemes Act, 1948, before its amendment by Act 45
of 1965, defined Coal Mine as including all works, machinery, tramways and sidings, whether
above or below ground, in or adjacent to or belonging to a coal mine. In interpreting this
definition and in holding that the conjunction ‘or’ preceding the expression ‘be-longing to the coal
mine’ should be read as ‘and’ the court derived assistance from the definition of ‘Coal Mine’ as
introducted by the
amending Act 45 of 1965, so as to fix proper interpretation of the Act before its
amendment. Ramaswami, J. said: “It is a well recognised principle that subsequent legislation
may be looked at in order to see what is the proper interpretation to be put upon the earlier Act
where the earlier Act is obscure or ambiguous or readily capable of more than one
interpretation.”45
section 8(1) of the West Bengal (Requisition and Acquisition) Act, 1948 provides for a reference
to the court against the award of the Collector. section 8(2) of the same Act as originally enacted
provided that the provisions of the
Land Acquisition Act, 1894 shall mutatis mutandis apply in respect of any reference
made under section 8(1). In holding that the words ‘in respect of any reference’ include the step of
making an application for reference and are not confined to the stage of proceedings after
reference is made and that the period of limitation prescribed by
section 18(2) of the Land Acquisition Act applies to applications for reference made
under section 8(2) of the West Bengal (Requisition) Act, the Supreme Court relied upon West
Bengal Act, 8 of 1954 which amended sec-tion 8(2) by specifically providing that
section 18(2) of the Land Acquisition Act shall apply in respect of any reference
made under section 8(1). It was pointed out that the amended provision retained the words “in
respect of any reference” which supported the view that these words even in the unamended
section included the stage of making of an application for reference under
section 18(2) of the Land Acquisition Act . In the opinion of the Court the amendment
was unnecessary and it only made specific what was already implicit in the section46section 4A of
the Mines and Minerals (Regulation and Development) Act, 1951 did not, before amendment in
1986, specifically provide for notice to the lessee before directing premature termination of his
lease. Even so it was held that notice was impliedly necessary and the amendment supported this
construction.47
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section 15(b) of the Central Sales Tax Act, 1956 before amendment by Act No. 61 of
1972 did not specifically indicate as to whom the State Sales Tax paid on declared goods would
be refunded in the event the goods are later sold in the course of inter-State trade or commerce.
The amendment Act which was not retrospective enacted that refund of tax was to be made to the
person making the sale in the course of inter-State trade or commerce. The amendment was used
as an exposition by Parliament itself of its intent contained in the section before its amendment
and it was held that it was the person making the sale in the course of inter-State trade and
commerce who was entitled to refund even when the unamended section was in force.48
In deciding that the word ‘retrenchment’ in section 2(oo) and

section 25-F of the Industrial Disputes Act, 1947 , has no application where the
services of all workmen have been terminated by the employer on a real and bona fide closure of
business or on the business or undertaking being taken over by another employer, the Supreme
Court rejected the argument that section 25-FF inserted by the Industrial Disputes (Amendment)
Act (41 of 1956) which proceeded on the assumption that such termination may come within the
expression ‘retrenchment’ is a parliamentary exposition of the meaning of the said expression.49 It
was pointed out that the said section 25-FF was inserted to supersede the effect of certain judicial
decisions which according to the Supreme Court were erroneous and the intention in enacting that
section was not to give a parliamentary exposition of the existing law.50 In the same case, the
Supreme Court referred to the Industrial Disputes (Amendment and Miscellaneous Provisions)
Act (No. 36 of 1956); and after pointing out that the said Act clearly proceeded on a distinction
between closure of business and retrenchment, used it as a parliamentary exposition of the
meaning of ‘retrenchment’ in preference to the
Amending Act 41 of 1958 which inserted section 25-FF.51 However, it is interesting
to see that the Parliament in its turn did not abide by this decision of the Supreme Court and
enacted Act 18 of 1957 by which the then existing section 25-FF was replaced by new provisions
in S. 25-FF and 25-FFF expressly providing for compensation to workmen in case of transfer and
closing down of undertakings.52
section 293(4) Criminal Procedure Code , before its amendment used the expression
‘Director’ only. After amendment Deputy Director and Assistant Director were expressly
included with the Director. The Supreme Court after referring to this change held that ‘Joint
Director’ who was higher in rank to Deputy Director and Assistant Director must be deemed to be
included in ‘Director’ otherwise he would also have been expressly included by the amendment
and that this construction was also applicable to the word ‘Director’ before the section was
amended.53
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(d) Incorporation of earlier Act into later; Reference of earlier Act into later
Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of
convenience in order to avoid verbatim reproduction of the provisions of the earlier Act into the
later.54 When an earlier Act or certain of its provisions are incorporated by reference into a later
Act, the provisions so incorporated become part and parcel of the later Act as if they had been
“bodily transposed into it”.55 The effect of incorporation is admirably stated by Lord Esher, M.R.:
“If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal
effect of that, as has often been held, is to write those sections into the new Act as if they had
been actually written in it with the pen, or printed in it.”56 The result is to constitute the later Act
along with the incorporated provisions of the earlier Act, an independent legislation which is not
modified or repealed by a modification or repeal of the earlier Act.57 As observed by Brett, J.:
“Where a statute is incorporated, by reference, into a second statute, the repeal of the first statute
by a third does not affect the second.”58 To the same effect is the statement by Sir George
Lowndes: “It seems to be no less logical to hold that where certain provisions from an existing
Act have been incorporated into subsequent Act, no addition to the former Act, which is not
expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all
events if it is possible for the subsequent Act to function, effectually without the addition.”59
Ordinarily if an Act is incorporated in a later Act, the intention is to incorporate the earlier Act,
with all the amendments made in it up to the date of incorporation.60 The rule that the repeal or
amendment of the Act which is incorporated by reference in a later Act is not applicable for
purposes of the later Act is subject to qualifications and exceptions.61 A distinction is in this
context drawn between incorporation and mere reference of an earlier Act into a later Act.62
Further, a distinction is also drawn when what is referred to is not an earlier Act or any provision
from it but law on a subject in general.63 There is, however, no controversy on the point that when
any Act or rules are adopted in any later Act or rules, such adoption normally whether by
incorporation or mere reference takes in all the amendments in the earlier Act or rules till the date
of adoption.64
In the Calcutta Improvement Act, 1911 (Bengal Act 5 of 1911) the provisions of the
Land Acquisition Act (Central Act 1 of 1894) with certain modifications were
incorporated by reference for purposes of acquisitions under the Bengal Act. By Central Act 19 of
1921 the
Land Acquisition Act was amended and provision was made in that Act for an appeal
to the Privy Council. In these circumstances it was held by the Judicial Committee that this
amendment had not the effect of modifying the incorporated provision of the
Land Acquisition Act in the Bengal Act and that it did not confer a right of appeal in
relation to an award of compensation under the Bengal Act.65
The Calcutta Municipal Act, 1923, which applied to the Corporation of Calcutta, empowered the
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Provincial Government by sections 540 and 541 to extend all or any provisions of the said Act,
subject to such modifications or restriction as may be specified, to the Municipality of Howrah.
The Provincial Government acting under the said provisions extended the Act in 1932 to the
Municipality of Howrah and one of the sections so extended was section 386 with a modification
that in place of the words ‘Corporation of Calcutta’ the word ‘Commissioners’ $Kwas substituted.
By the West Bengal Fire Services Act, 1950, section 386 of the Calcutta Municipal Act, was
repealed and a question arose whether this repeal affected the application of section 386 to the
Municipality of Howrah to which it was extended with certain modification by the Provincial
Government. In holding that the repeal was not effective in so far as the Municipality of Howrah
was concerned, the Supreme Court observed that what was applied to Howrah Municipality was
not section 386 but its modified form and thus a different section, and therefore, when the West
Bengal Act of 1950, repealed only section 386, it had not the effect of repealing section 386 as
modified and applied to the Municipality of Howrah.66 This decision is open to one criticism:
When by virtue of powers flowing from the Calcutta Municipal Act itself, its provisions were
extended with modifications to Howrah Municipality, the extension and the modifications in
relation to Howrah Municipality became part and parcel of the Calcutta Municipal Act, so that the
modification of section 386 could be read as part of section 386 in its application to Howrah, and
therefore, when the West Bengal Act of 1950, which extended to the whole of Bengal repealed
section 386, the repeal was effective to wipe out section 386 not only in its original form applying
to the Corporation of Calcutta but also, in its modified form applying to the Howrah Municipality.
This was not a case of two different statutes where the later incorporates the provisions of the
earlier and the reliance placed by the Supreme Court on the Privy Council decision in Secy. of
State v. Hindustan Co-operative Insurance Society 67 was hardly in
point.
The Punjab Pre-emption Act (Punjab Act 1 of 1913) defined ‘Agricultural land’ by reference to
the definition of this expression contained in the Punjab Alienation of Land Act, 1900, which Act
was repealed by the Adaptation of Laws (Third Amendment) Order, 1951, but the Supreme Court
held that the repeal of the Punjab Alienation of Land Act, 1900 had no effect on the continued
operation of the Punjab Pre-emption Act and the definition of ‘Agricultural land’ incorporated in
it.68section 2(c) as substituted in 1943 in the Bihar and Orissa Motor Vehicles Taxation Act, 1930
defines ‘motor vehicle’ to have the same meaning as in the
Motor Vehicles Act , 1939. Construing section 2(c) of the Taxation Act it was held
that the definition of ‘Motor Vehicle’ in the
Motor Vehicles Act as existing in 1943 got incorporated in the Taxation Act and the
amendment of the definition of ‘Motor Vehicle’ in the
Motor Vehicles Act in 1956 was not applicable for purposes of the Taxation Act. 69
section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 provides for
an appeal to the Supreme Court against the orders of the Monopolies and Restrictive Trade
Practices Commission on ‘one or more of the grounds specified in
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section 100 of the Code of Civil Procedure, 1908 .’

section 100 of the Code of Civil Procedure was substituted by a new section in 1976
which narrowed the grounds of appeal under that section. In construing
section 55 of the Monopolies and Restrictive Trade Practices Act the Supreme Court
held that section 100 of the Code as it existed in 1969 was incorporated in section 55 and the
substitution of new section 100 in the Code abridging the grounds of appeal had no effect on the
appeal under section 55.70
The
Industrial Disputes Act, 1947 came into force from 1-4-1947. By the Amendment
Act 54 of 1949, section 2(bb) was inserted in the
I.D. Act defining ‘banking company’ to mean a banking company as defined in
section 5 of the Banking
Companies Act , 1949 having branches or other establishments in more than one State
and to include certain enumerated banks. By the same Amendment Act the definition of
‘appropriate government’ was amended whereby in relation to any industrial dispute concerning a
banking company the Central Government was declared to be the appropriate government. The
definition of ‘banking company’ was then limited to companies registered under the
Companies Act and did not include co-operative banks. However, by Act 23 of 1965
the provisions of the
Banking Regulation Act were made applicable to co-operative banks. The question
before the Supreme Court was whether after 1965 the definition of banking company in the
I.D. Act should be read as inclusive of cooperative banks. It was held that the
definition of banking company as inserted in the
I.D. Act from Banking
Companies Act was incorporated therein and any further amendments to include co-
operative banks in the definition could not be read in the
I.D. Act and the appropriate government for the co-operative banks was the State
Government and not the Central Government.71
In case of legislation by incorporation as the incorporated provisions become part and parcel of a
fresh statute, the constitutional validity of such a statute including the provisions so incorporated
is judged with reference to the powers of the Legislature enacting the fresh statute and not with
reference to the powers of the Legislature enacting the original legislation. The two statutes
remain different and distinct and each is to be judged with reference to its own source. This
proposition, which is a necessary consequence of incorporation, is illustrated in the decisions of
the Supreme Court72 dealing with Sales Tax legislations in force in Part A States and extended to
Part C States by the Part C
States Laws Act , 1950. In case of Part A States, the State Legislature had power to
tax a transaction of ‘sale of goods’, but it had no power to tax a transaction, not in reality a sale,
by legislating an artificial definition of ‘sale’. In case, however, of Part C States, Parliament's
powers of legislation were uncontrolled by any legislative entry. A parliamentary legislation,
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therefore, could levy sales tax on any transaction by defining the same artificially as ‘sale’. The
Part C
States Laws Act , 1950, a parliamentary statute, by section 2 conferred power on the
Central Government to extend to Part C States laws in force in Part A States with or without
modification. In exercise of this power, the Central Government extended to Part C States
legislations in respect of sales tax in force in Part A States. But these legislations which were
enacted by State Legislatures of Part A States, contained artificial definitions of ‘sale’ and later on
were held to be partly invalid in their application to the respective Part A States in so far as ‘sale’
was artificially defined. A question, therefore, arose whether these legislations as extended to Part
C States under Part C
States Laws Act , 1950 suffered from the same infirmity in their application to Part C
States? The Supreme Court answered the question in the negative and held that on issue of a
notification by the Central Government under section 2 of the Part C
States Laws Act extending to a Part C State a Sales Tax law in force in a Part A State
“the provision of the law which is extended becomes incorporated by reference in the Act (Part C
States Laws Act ) itself, and therefore, a tax imposed thereunder is a tax imposed by
Parliament and that Parliament's power of legislation in relation to Part C States being plenary and
absolute, the law so extended in the application to Part C States concerned remains wholly
valid”.73 The principles stated above were affirmed by a nine judge bench in New Delhi Municipal
Committee v. State of Punjab 74 in which it was held that the Punjab Municipal Act
extended to the Part C State of Delhi by a notification issued under the Part C State (Laws) Act,
1950 was a Parliamentary enactment and taxes levied under it amounted to union taxation. On the
same principle a State Act which is void for want of legislative competence of the State
Legislature can be incorporated in a later Central Act if Parliament has legislative competence
over the subject-matter. In such a case the incorporated Act though void as a State Act becomes
part and parcel of the incorporating Central Act and gains validity and effect as a Central Act.75
On the same reasoning administrative rules which were extensively amended by rules made under
Article 309 of the Constitution were held to have attained statutory status by implied
incorporation in the rules made under Article 309.76
As a corollary of the above principle a limited construction adopted of the provisions of an Act by
restricting general words to save it from becoming unconstitutional will not apply when the same
Act is adopted by incorporation by another legislature having wider legislative competence on the
subject. Thus though the word ‘property’ in the Hindu Womens Right to Property Act, 1937
which was passed by the Central Legislature was construed not to include agricultural land as the
Central Legislature had then no legislative competence to legislate on the subject of succession to
agricultural lands;77 but when the same Act was adopted by incorporation by the Hyderabad
Legislature by the Hyderabad (Application of Central Acts) Act, 1952, the word ‘property’ was
construed to include agricultural lands as the Hyderabad Legislature had legislative power to
legislate in respect of agricultural lands.78 An
amending Act passed in 1954 which expressly applied the Hyderabad Act to
agricultural lands was held to have no effect on the construction of the Act before its amendment
as it proceeded upon its wrong construction.79
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It must, however, be remembered that when a later Act extends the area of operation of an earlier
Act by making suitable amendments in the earlier Act itself, there is “neither precedent nor
warrant for the assumption” that the earlier Act gets incorporated in the later, rather the
amendments introduced by the later Act get incorporated in the earlier Act and any further
amendment of the earlier Act is operative both in respect of its original area of operation as also in
respect of its extended operation to new area brought about by the later Act.80
Again, a statute may instead of referring to a particular previous statute or to any specific
provision therein refer to the law on the subject generally. In such cases, the reference is
construed to mean that the law is as it reads therafter including amendments subsequent to the
time of adoption.81 This principle was applied in construing section 151 of the Madhya Pradesh
Land Revenue Code, 1954 which provides that ‘subject to his personal law, the interest of a
tenure holder shall on his death pass by inheritance, survivorship or bequest, as the case may be’.
It was held that this was a case where the statute incorporated by reference the law on the subject
generally and therefore, the expression ‘personal law’ will not be limited to the personal law as it
stood when the Code was enacted in 1954 but will also embrace all subsequent statutes, e.g. the
Hindu Succession Act, 1956 , which, from time to time, have amended the personal
82
law. By section 2(2) of the Colonial Court of Admirality Act, 1890, a British statute applicable
to India, it was enacted that “the jurisdiction of a Colonial Court of Admirality shall be over the
like places, persons, matters and things as the Admirality jurisdiction of the High Court in
England whether existing by virtue of any statute or otherwise.” The High Courts of Bombay,
Madras and Calcutta were declared to be Colonial Courts of Admirality. At the time when the
Colonial Courts of Admirality Act was enacted the High Court in England exercised jurisdiction
under the Admirality Court Acts of 1840 and 1861. These Acts were later repealed and the
Admirality jurisdiction of the High Court in England was extended by subsequent enactments.
The Privy Council83 in interpreting section 2(2) of the Colonial Courts of Admirality Act, 1890 in
an appeal from Canada held that the effect of that provision was to limit the jurisdiction of a
Colonial Court of Admirality to the Admirality jurisdiction of the High Court in England as it
existed at the passing of the Act and the subsequently extended Admirality jurisdiction of the
High Court in England did not apply to a Colonial Court of Admirality. The above interpretation
was also followed by the High Courts in India. But the Supreme Court of India84 rightly did not
accept that interpretation and held that what the Act of 1890 did was not to incorporate any
English statute in Indian law but to equate the Admirality jurisdiction of the Indian High Courts
over places, matters and things to that of the English High Court and as the Admirality
jurisdiction of the English High Court expanded with the progress of legislation and with the
repeal of the earlier statutes there was a corresponding growth and expansion of Admirality
jurisdiction of the Indian High Courts. It will be seen that in section 2(2) of the 1890 Act there
was no incorporation of any English statute but a reference to the Admirality jurisdiction of the
High Court in England whether existing by virtue of any statute or otherwise or in other words to
the English law of Admirality jurisdiction as exercised by the High Court of England. Therefore,
there was no reason to infer that the Admirality jurisdiction of the Indian High Courts stood
frozen and atrophied as on the date of the passing of the 1890 Act and subsequent expansion of
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that jurisdiction in England did not apply to India.
A distinction has also been drawn between a mere reference or citation of one statute into another
and incorporation. In the former case a modification, repeal or re-enactment of the statute that is
referred will also have effect for the statute in which it is referred; but in the latter case any
change in the incorporated statute by way of amendment or repeal has no repercussion on the
incorporating statute.85 It is a question of construction whether a particular former statute is
merely referred to or cited in a later statute or is wholly or partially incorporated therein.86 “The
distinction between incorporation by reference and adoption of provisions by mere reference or
citation is not too easy to highlight. The distinction is one of difference in degree and is often
blurred. The fact that no clear-cut guidelines or distinguishing features have been spelt out to
ascertain whether it belongs to one or the other category makes the task of identification difficult.
The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a
matter of probe into legislative intention and/or taking an insight into the working of the
enactment if one or the other view is adopted. The doctrinaire approach to ascertain whether the
legislation is by incorporation or reference is, on ultimate analysis, directed towards that end. The
distinction often pales into insignificance with the exceptions enveloping the main rule.”87
Section 69(d) of the Madhya Pradesh Gram, Nagar Tatha Gram Nivesh Adhiniyam, 1973, enacted
that the Special Area Development Authority shall for the purpose of taxation have the powers
which a Municipal Corporation or Council has as the case may be under the M.P. Municipal
Corporation Act, 1956, or the M.P. Municipalities Act, 1961. This was held to be not a case of
incorporation but of mere reference and hence additional power of taxation conferred on the
Municipal Corporations or Municipalities by amending the Corporation Act and the
Municipalities Act became available to the Special Area Development Authority.88section 23 of
the Mysore Improvement Act, 1903 provided that the acquisition under the Act ‘shall be regulated
by the provisions, so far as they are applicable, of the
Land Acquisition Act, 1894 ’.
section 23 of the Land Acquisition Act sets out the matters to be considered in
determining compensation. One of the matters so set out is the market value of the land. Till 1923,
the market value required to be taken into account was the value at the date of publication of the
declaration under section 6. By Act 38 of 1923,
section 23 of the Land Acquisition Act was amended and the market value became
relatable to the date of the notification under section 4. In a case before the Supreme Court,89 the
question was whether
section 23 of the Land Acquisition Act as amended in 1923 will apply to the
acquisitions under the Mysore Act or whether such acquisition even after 1923 will be governed
by
section 23 of the Land Acquisition Act as it originally stood. In holding that the
Land Acquisition Act as amended would apply, the Supreme Court held that a fair
interpretation of section 23 of the Mysore Act was that it applied whatever procedure may be for
the time being in force regarding matters regulating compensation under the
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Land Acquisition Act . In reaching this conclusion the Court said that
section 23 of the Land Acquisition Act lays down the procedure for award of
compensation and it has to be followed as it exists on the date of acquisition for no one has a
vested right in a particular procedure. This reasoning is open to serious objection. Whether the
market value, on the basis of which compensation is determined, should be related to the date of
the notification under section 4 or to the date of the declaration under section 6 is not a mere
matter of procedure. Right to compensation and the basis of its calculation are matters falling
within the area of substantive rights. The Court also did not consider the effect of incorporation of
the provisions of an Act into a later Act and the rule that an amendment of the incorporated Act
does not affect the incorporating Act and the provisions incorporated therein. The conclusion
reached by the court, can, however, be supported on the ground that the
Land Acquisition Act was not incorporated in the Mysore Act, but was only referred
to or cited in it, and therefore, any amendment made in the
Land Acquisition Act was also applicable for acquisitions under the Mysore Act.90
This reasoning finds support from a later case91 relating to
section 37(2) of the Foreign Exchange Regulation Act, 1973 which provides that ‘the
provisions of the Code (
Cr. P.C. ) relating to searches shall so far as may be apply to searches under section
37(1) ’. It was held that the expression ‘so far as may be’ meant that those provisions may be
generally followed to the extent possible and so the argument that the provisions of
Cr. P.C. were incorporated by pen and ink in section 37(1) could not be accepted as
correct. 92
Indeed, the question whether an earlier Act is referred to in a later Act or whether it is
incorporated in the later Act is at times a difficult question of construction. section 55(1) of the
U.P. Avas Evam Vikas Parishad Adhiniyam, 1966 provides that “any land or any interest therein
required by the Board for any of the purposes of this Act, may be acquired under the provisions of
the
Land Acquisition Act, 1894 as amended in its application to Uttar Pradesh, which for
this purpose shall be subject to the modifications specified in the schedule to this Act”.
section 6 of the Land Acquisition Act, 1894 was amended in 1967 by adding a
proviso that no declaration in respect of any land covered by a notification under section 4 shall
be made after expiry of three years from the date of the publication of the notification. The
question before the Supreme Court in a number of appeals decided by a common judgment93
related to the applicability of the proviso so added in section 6 to the acquisitions under the U.P.
Avas Adhiniyam. The answer to this question depended upon true construction of section 55(1) of
the U.P. Avas Adhiniyam whether it merely referred to the
Land Acquisition Act , in which case the proviso would apply, or incorporated the
same in which case the proviso would not apply. The learned Judges hearing the matter in the
Supreme Court came to differing conclusions on the question of construction. K. Ramaswamy J.
held that the
Land Acquisition Act with modifications specified in the schedule formed a complete
code and was incorporated in the U.P. Act whereas Sahai J. took the view that it was merely
referred to in the U.P. Act. Both the Judges, however, agreed that the acquisition was not to be
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quashed and the compensation in equity should be awarded at the market rate prevailing at the
time of section 6 notification. The difference of opinion on the question of construction thus
remained unresolved in this case. The principle involved was culled out from earlier cases by
Sahai J. as follows: “The determination if a legislation was by way of incorporation or reference
is more a matter of construction by the courts keeping in view the language employed by the Act,
the purpose of referring or incorporating provision of an existing Act and the effect of it on the
day-to-day working. Reason for it is the courts' prime duty to assume that any law made by the
Legislature is enacted to serve public interest”.94 Later cases have, however, taken the view on the
question of construction as taken by Ramaswamy J.95 which now stands approved by a three
judge bench in U.P. Avas Evam Vikas Parishad v. Jainul Islam 96 subject to the right
to get compensation under the L. A. Act as amended in 1984 to avoid discrimination.97 The
question in Jainul Islam's case was whether the provisions of sections 23(1-A), 23(2) and 28 of
the
Land Acquisition Act, 1894 as amended in 1984, which entitled a person whose land
was acquired to get higher compensation, were applicable to acquisitions under the U.P. Act. The
court relying upon the privy council decision in Secretary of State v. Hindustan Co-operative
Insurance Society Ltd., 1 which related to analogous provisions of the Calcutta
Improvement Trust Act, 1911 held agreeing with the view of Ramaswami, J., in Gaurishankers
case ,2 that the provisions of the
Land Acquisition Act were incorporated in the U.P. Act and were not merely referred
to.3 On this view the 1984 amendments in the
Land Acquisition Act could not be directly applied as part of the U.P. Act. The court,
however, held that to avoid discrimination between persons whose lands were acquired under the
U.P. Act and the persons whose lands were acquired under the
Land Acquisition Act , which may make section 55 of the U.P. Act offend
Article 14 of the Constitution , as a matter of construction, section 55 must be so
interpreted that while incorporating the provisions of the
Land Acquisition Act the intention of the Legislature was that later amendments in
the
Land Acquisition Act relating to determination and payment of compensation would
also be applicable to acquisitions under the U.P. Act. The decisions in Jainul Islam's case was
followed in Nagpur Improvement Trust v. Vasantrao, 4
which related to similar questions arising also under the Nagpur Improvement Trust Act 1936,
and the Punjab Town Improvement Act, 1922 in addition to the U.P. Act. The result of these
decisions5 that only beneficial provisions in the
Land Acquisition Act brought in by amendment subsequent to its incorporation in the
State Acts, but not other amendments, e.g., amendment of section 6 in 1967 which provides for a
time limit of three years for taking action after a notification under section 4, would apply to
acquisitions under the States Acts.
section 11A of the Land Acquisition Act, 1894 also introduced by amendment in
1984, which fixes a time limit of 2 years for making the award from the date of declaration under
section 6, has also not been applied to the State Acts in view of the decision in
State of Maharashtra v. Sant Joginder Singh .6 But the correctness of the decision in
Sant Joginder Singh's case on this point has been doubted and has been referred for decision to a
larger Bench.7
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It has further been observed that the rule that the repeal or amendment of an Act which is
incorporated in a later Act has no effect on the later Act or on the provisions incorporated therein
is subject to four exceptions: (a) where the later Act and the earlier Act are supplemental to each
other, (b) where the two Acts are in pari materia, (c) where the amendment of the earlier Act if
not imported in the later Act would render it wholly unworkable, and (d) where the amendment of
the earlier Act either expressly or by necessary intendment also applies to the later Act.8
The Supreme Court laid down these exceptions while considering the question whether the
amendment of
section 21 of the Penal Code by the
Criminal Law (Amendment) Act , 1958 was also applicable for purposes of the
Prevention of Corruption Act , 1947 which by section 2 incorporates the definition of
‘Public Servant’ as contained in
section 21 of the Penal Code . It was held that the two Acts were supplemental to
each other, and therefore, the amendment Act was applicable to amend the definition of ‘Public
Servant’ incorporated in the
Prevention of Corruption Act . The exceptions mentioned above to the general rule
were reiterated while dealing with the construction of item 7 of the third Schedule to the Kerala
Sales Tax Act, 1963.9section 9 of the Act granted exemption from Sales Tax to the goods
specified in the third Schedule. Item 7 of the Schedule exempted “cotton fabrics—as defined in
item no. 19—of the first Schedule to the Central Excises and Salt Act, 1944.” The definition of
cotton fabrics in item 19 of the first Schedule to the Central Act was amended by the
Finance Act , 1969 to include “fabrics impregnated or ‘coated with preparations of
cellulose derivatives or of other artificial plastic materials.” The question before the Supreme
Court was whether this amendment also applied for the Kerala Act. In answering that the
amendment applied, the court held that the definition of cotton fabrics was really referred to and
not incorporated in the Kerala Act. It was further held that even on the hypothesis10 that the
definition was incorporated, the amendment would apply for the aforesaid Kerala and Central
Acts read further with the
Central Sales Tax Act and the Additional Duties of Excise (Goods of Special
Importance) Act, 1957 formed part of an integrated scheme to give special treatment to certain
goods including cotton fabrics and the Acts were supplemental to each other and it would be
unrealistic or impractical not to read the amendment for the purposes of the Kerala Act.11 The
exceptions stated in M. V. Narsimhan's case12 were again affirmed in considering the question
whether
section 11A of the Land Acquisition Act, 1894 , introduced in it later by amendment,
applied to acquisitions under the Karnataka Acquisition of Land for House Sites Act, 1972 section
5 of which reads: “The provisions of the
Land Acquisition Act, 1894 as amended by the Land Aquisition (Karnataka
Extension and Amendment) Act, 1961 shall, mutatis mutandis apply in respect of enquiry and
award by the Deputy Commissioner, the reference to the court, the apportionment of amount and
the payment in respect of Land Acquisition under this Act.” section 11A of the Central Act,
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introduced later, requires that the award be made within two years from the issue of the
notification under section 6 and in case it is not so made the entire acquisition proceedings lapse.
The Supreme Court held that section 11A of the Central Act applied to the acquisitions under the
Karnataka Act for the exceptions pointed out in Narsimhan's case applied. Three reasons were
given in support of this view. Firstly, that the Karnataka Act could not be treated as a self
contained or complete code. Secondly, that the Karnataka Act Central Act are supplemental to
each other for without the latter the former cannot function. And, thirdly that the two Acts are in
pari materia.13 But this case was distinguished and the case of U.P. Avas Evam
Vikas Parishad v. Jainul Islam ,14 was followed in construing the Bangalore
Development Authority Act, 1976 and in holding that the said Act was a self contained code and a
special statute to which section 11A subsequently added in the
Land Acquisition Act, 1894 did not apply. 15
Even though only particular sections of an earlier Act are incorporated into later, in construing the
incorporated sections it may be at times necessary and permissible to refer to other parts of the
earlier statute which are not incorporated. As was stated by Lord Blackburn: “When a single
section of an Act of Parliament is introduced into another Act, I think, it must be read in the sense
it bore in the original Act from which it was taken, and that consequently it is perfectly legitimate
to refer to all the rest of that Act in order to ascertain what the section meant, though those other
sections are not incorporated in the new Act”16 The above statement of the law and the extract
from the speech of Lord Blackburn were approvingly quoted (from 7th edition p. 244 of this
book) in Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income-tax.
17 In this case, in interpreting cl. (iv) of the Explanation to
section 115-J of the Income-tax Act, 1961 which incorporates only clause (b) of the
first proviso to sub-section (1) of
section 205 of the Companies Act, 1956 , the incorporated provision was given the
same meaning as in the
Companies Act and the entire section 205 of that Act was referred to. The view taken
by the High Court that for interpreting the incorporated provision there was no occasion to refer to
the
Companies Act at all was not accepted by the Supreme Court.18 This does not mean
that a provision in the nature of a proviso or exception in the earlier Act which is not brought in
by incorporation can be read so as to limit the meaning of the provision incorporated, as reference
to other provisions of the earlier Act is only permissible to get to the meaning of the provision
incorporated. Lord Blackburn in continuation of the passage quoted above proceeded to point out:
“I do not mean that if there was in the original Act a section not incorporated, which comes by
way of a proviso or exception on that which was incorporated, that should be referred to; but all
others, including the interpretation clause, if there be one, may be referred to”.19 Therefore, when
only sub-section (2) of a section of an earlier Act was incorporated in a later Act, sub-section (1)
which had a restrictive effect on the operation of sub-section (2) was not allowed to be read for
purpose of construing sub-section (2) as incorporated in the later Act.20 The later Act may often
contain modifications or alteration of the incorporated provisions or the incorporation may be
subject to other provisions in the later Act. It seems that in all cases when the later Act for its
purpose indicates a clear intention of the scope and meaning of the provisions incorporated,
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reference to other sections of the earlier Act from which these provisions are brought in may be
altogether unnecessary. At any rate, the clear intention of the incorporating Act cannot be
defeated by resort to such provisions of the earlier Act which have not been incorporated. The
Banking Regulation Act, 1949 (BR Act) defines ‘banking company’ in section 5(c),
‘co-operative bank’ in section 5(cci) and ‘primary co-operative bank’ in section 5(ccv). In the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 , (
RDB Act ) section 2(e) defines ‘banking company’ to have the same meaning as in
section 5(c) of the BR Act. As the intention of the
RDB Act was clear not to apply its provisions to co-operative banks, the meaning of
‘banking company’ in section 2(e) was limited to a banking company as defined in section 5(c) of
the BR Act and its meaning was not extended to cover co-operative banks by referring to sections
5(cci) and 5(ccv)of the BR Act which are not incorporated in the definition of banking company
in the
RDB Act . 21
In the interpretation of an incorporated provision the court is sometimes left to formulate

variations of details in the context of the incorporating Act. A good illustration of such a task is
furnished by the Assam Land (Requisition and Acquisition) Act, 1948 which applied the
provisions of
Land Acquisition Act, 1894 mutatis mutandis for determination of
compensation in respect of requisitions and acquisitions under the Assam Act. The
Land Acquisition Act, 1894 , does not prescribe any principle for compensation in the
matter of requisition as it only deals with acquisition as distinguished from requisition. The
Supreme Court held that for purposes of requisition under the Assam Act the provisions relating
to compensation in the
Land Acquisition Act should be read “with due alteration of details” and it was
pointed out that in place of the word ‘acquisition’ the word ‘requisition’ can be read and similarly
in place of the words ‘market value of the land’ the words ‘market value of the interest in land of
which the owner has been deprived’ should be read.22 On the same lines is the case23 which dealt
with section 27 of the Bangalore Improvement Act, 1945 which provides that the acquisition of
land under this Act shall be regulated by the provisions of the Mysore
Land Acquisition Act , 1897 ‘so far as they are applicable’. In construing these words
the Supreme Court held that they make applicable all general provisions of the
Land Acquisition Act and exclude only those provisions which become inapplicable
because of some special procedure prescribed by the Improvement Act.
The merit of legislation by incorporation is “brevity”24 which is largely counterbalanced by

“difficulties and obscurities” which it is likely to create.25 Critisising this mode of legislation,
Mathew, J., said: “Sometimes whole Acts of Parliament, sometimes groups of clauses of Acts of
Parliament, entirely or partially, sometimes portions of clauses are incorporated into later Act, so
that the interpreter has to keep under his eye, or, if he can, bear in his mind, large masses of
bygone and not always consistent legislation in order to gather the meaning of recent legislation.
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There is very often the further provision that these earlier statutes are incorporated only so far as
they are not inconsistent with the statute into which they are incorporated; so that you have first to
ascertain the meaning of a statute by reference to other statute, and then to ascertain whether the
earlier Acts qualify only or absolutely contradict the later ones, a task sometimes of great
difficulty, always of great labour, a difficulty and labour generally speaking wholly
unnecessary.”26 The House of Lords later deprecated “the regrettable modern tendencies to
overdo legislation by reference and to attempt brevity at the expense of lucidity”.27 Similar
criticisms have been repeated from time to time.28
(e) Codifying and consolidating statutes
(i) Codifying 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 statute law or common law.29 The indication that the Act is a Code will generally be
found in the preamble, if any or in the long title.30 It has been said that a codifying Act is
presumed not to alter the law unless a contrary intention appears.31 But the presumption will be of
help only after the language of the statute is first construed according to normal canons of
construction and is found to be of doubtful import.32 The principles applicable to the construction
of such a statute are well stated in an oft-quoted passage of Lord Herschell: “I think the proper
course is, in the first instance, to examine the language of the statute and to ask what is its natural
meaning, uninfluenced by any considerations derived from the previous state of the law, and not
to start with inquiring how the law previously stood, and then, assuming that it was probably
intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in
conformity with this view. If a statute intended to embody in a Code a particular branch of the law
is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed and
the very object with which it was enacted will be frustrated. The purpose of such a statute surely
was that on any point specifically dealt with by it, the law should be ascertained by interpreting
the language used, instead of, as before, by roaming over a vast number of authorities in order to
discover what the law was, extracting it by a minute critical examination of the prior decisions—.
I am of course, far from asserting that recourse may never be had to the previous state of the law
for the purpose of aiding in the construction of provisions of the Code. If, for example, a
provision be of doubtful import, such resort would be perfectly legitimate. Or, again if in a
Code—words be found which have previously acquired a technical meaning, or been used in a
sense other than their ordinary one—the same interpretation might well be put upon them in the
Code. I give these as examples merely. They, of course, do not exhaust the category. What,
however, I am venturing to insist upon is, that the first step taken should be to interpret the
language of the statute, and that an appeal to earlier decisions can only be justified on some
special ground.”33
The essence of a codifying statute “is to be exhaustive on the matters in respect of which it
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declares the law and it is not the province of a Judge to disregard or go outside the letter of the
enactment according to its true construction”.34 Thus a question of res judicata in relation to a suit
has to be decided solely on terms of
section 11 of the Civil Procedure Code and not on general principles of res
judicata.35 A matter concerning the admission and disposal of criminal appeals has to be dealt
with in terms of
Code of Criminal Procedure 36
and not outside those provisions; and a court has no
power to grant exemption from the bar of limitation except in accordance with the provisions
contained in the Indian
Limitation Act .37 Similarly in construing the
Hindu Succession Act, 1956 , which is an Act to amend and codify the law relating to
intestate succession among Hindus, it is not permissible to apply the principles of Hindu Law on
matters covered by the Act; for example a son inheriting his father's separate property under
section 8 of the Act takes it as his exclusive property and the property does not become
coparcenary property with his sons.38 But a codifying statute may be a Code only with respect to a
particular branch of a subject in which case it will be permissible to look at other laws.39 So it has
been held that the
Payment of Bonus Act, 1965 does not cover all categories of bonus and is restricted
to the subject of profit bonus. The result is that the Act speaks as a complete Code on the subject
of profit bonus and does not annihilate by implication other different and distinct kinds of bonus
such as customary bonus40
(ii) Consolidating statutes.—The purpose of a consolidating statute is to present the whole body
of statutory law on a subject in complete form, repealing the former statute.41 In case of purely
consolidating statutes the presumption is that such a statute is not intended to alter the law,42 but
this prima facie view has to yield to plain words to the contrary.43 Consistent with the initial
presumption, that alteration of law is not intended, certain principles logically follow. It is thus
relevant to refer to the previous state of the law44 or to judicial decisions interpreting the repealed
Acts for purposes of construction of corresponding provisions in the consolidating Act.45 Indeed
the question of construction of a section in a consolidating Act may for this reason be really a
question of construction of an earlier Act in which that section first appeared,46 and it may be
necessary to refer to the various Acts in the series as also to the common law existing at the time
when the earliest Act was enacted.47 Further, as provisions in a consolidating Act may have their
origin in different legislations, in case of inconsistency between two such provisions, it may be
legitimate to refer to respective dates of their first enactment for resolving the inconsistency.48
Similarly, the presumption that same word when used at different places in the same Act has the
same meaning, has hardly any application to consolidating Act when once it is shown that the
different provisions where the same word occurs had their origin in different legislations.49 And,
statutes not expressly repealed or modified will be assumed not to have been affected by a
consolidating Act by mere use of some general words in certain of its provisions.50 On the same
principle any well established principle of general law will not be taken to be abrogated without
clear words by a consolidation Act.51
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A consolidating statute is often not a mere compilation of earlier enactments. “The very object of
consolidation”, said Lord Watson, “is to collect the statutory law bearing upon a particular
subject, and to bring it down to date, in order that it may form a useful Code applicable to the
circumstances existing at the time when the consolidating Act is passed”.52 The process of
consolidation involves co-ordination and simiplification of former enactments resulting in
modernisation of language with a view to make it applicable to changed circumstances.53 It is not
permissible to construe a section in a consolidating Act in such cases with reference to
circumstances existing at the time when it was first enacted in a former Act54 A consolidating Act
may further be an
amending Act . This additional purpose is usually indicated in the preamble or in the
long title by use of the words ‘An Act to consolidate and amend’. It is not a sound canon of
construction to refer to the provisions in repealed statutes when the consolidating statute contains
enactment dealing with the same subject in different terms.55 Even when a section from an earlier
Act is repeated in a consolidation Act in identical terms the framework in which it is placed may
be different. Referring to such a situation Lord Wrenbury said: “I derive little, if any, assistance
from the knowledge that, for instance, a particular section is in terms identical with a section
which as the law previously stood was found in a framework different from that in which it is now
found. To ascertain the present law it is necessary to consider such a section in the framework in
which it now stands. In other words, I have to consider the statute law as it is.”56 For the purpose
of construing a statute which is a consolidating as well as an
amending Act , the proper course is to have a “reasonable interpretation of its
provisions”57 and to apply the normal rule of construction “so as to give each word the meaning
proper to it in its context”.58 The rule enunciated by Lord Herschell59 with reference to codifying
statutes can be usefully applied to a consolidating and Amending statute.60 The Supreme Court
has applied the said rule for construing the
Indian Income-tax Act, 1922 , which was an Act to consolidate and amend the law
relating to income-tax and super-tax.61 The rule has also been applied for construing the
Indian Contract Act, 1872 which defines and amends certain parts of the law relating
to contracts;62 and for construing the
Arbitration Act , 1940, which is an Act to consolidate and amend the law relating to
arbitration.63 It may here be mentioned that observation of Chitty, J., that Lord Herschell's rule
has no application to any consolidating statute64 is incorrect. The statute with which Chitty, J. was
concerned was a consolidating as well as amending statute and the distinction drawn by him has
been rightly criticised as obscure.65
The distinction between consolidating statutes and other statutes for purposes of interpretation is
being obliterated. Recent decisions have emphasised that a consolidation Act should be
interpreted according to normal canons of construction and recourse to repealed enactments can
be taken only to solve any ambiguity, for the process of consolidation would lose much of its
point if, whenever a question as to construction of a consolidating Act arose, reference had to be
made to the statutes which it has consolidated and repealed. The primary rule of construction of a
consolidation Act is to examine the language used in the Act itself without any reference to the
repealed statutes. It is only when the consolidation Act gives no guidance as to its proper
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interpretation that it is permissible to refer to the repealed enactments for guidance and it is never
legitimate to have recourse to repealed enactments to make obscure or ambiguous that which is
clear in the consolidation Act.66 It is only when there is a real or substantial difficulty or
ambiguity that the court is to attempt to resolve the difficulty or ambiguity by reference to the
legislation which has been repealed and re-enacted in the consolidation Act.67 This rule applies to
all types of consolidation Acts which are now three: (1) Pure consolidation. i.e., re-enactment, (2)
Consolidation with correction and minor improvement, and (3) Consolidation with Law
Commission amendments.68 But when “the provisions of the Act itself invited reference to the
earlier law and in some cases were unintelligible without them” recourse to the earlier law for
construing the Act becomes inevitable.69
The above paragraph was recently quoted with approval by the Supreme Court in holding that
“the distinction between consolidating statute and other statutes is no longer valid. It is only in
certain exceptional circumstances that the language used in the earlier Act can be resorted to.”70
5. EFFECT OF USAGE AND PRACTICE; CONTEMPORANEA EXPOSITIO
Usage or practice developed under a statute is indicative of the meaning ascribed to its words by
contemporary opinion and in case of an ancient statute is an admissible external aid to its
construction.71 Referring to Magna Carta, Lord Coke said: “This and the like were the forms of
ancient Acts and graunts, and the ancient Act and graunts must be construed and taken as the law
was holden at that time when they were made”.72 A uniform notorious practice continued under
an old statute and inaction of the Legislature to amend the same are important factors to show that
the practice so followed was based on correct understanding of the law. “Communis opinio”, Lord
Ellenborough said: “is evidence of what the law is”.73 “There would be no safety for property or
liberty”, said Lord Campbell: “If it could be successfully contended that all lawyers and statesmen
have been mistaken for centuries as to the true meaning of an old Act of Parliament”.74 When the
practice receives judicial or legislative approval it gains additional weight and is to be more
respected. As stated by Martin, B.: “In construing old statutes it has been usual to pay great regard
to the construction put upon them by the judges who lived at or soon after the time when they
were made, because they were best able to judge of the intention of the makers at the time”.75 The
doctrine of stare decisis may also be applied when the law is settled in a State for over 100 years
by considered view of the High Court of that State.76 As to legislative approval to a departmental
practice Lord Machnaghten said: “When you find legislation following a continuous practice
repeating the very words on which that practice was founded, it may perhaps fairly be inferred
that the Legislature in re-enacting the statute intended those words to be understood in their
received meaning. And perhaps it might be argued that the inference grows stronger with each
successive re-enactment.”77
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Subject to use made of contemporary official statements and statutory instruments78 the principle
of contemporanea expositio is not applicable to a modern statute.79 Even if the persons who dealt
with the Act understood it in a particular manner, that does not prevent the court in giving to the
Act its true construction.80 The doctrine “is confined to the construction of ambiguous language
used in very old statutes where indeed the language itself have had a rather different meaning in
those days”.81 Lord Watson stated the rule in the following words: “In my opinion such usage as
has been termed contemporanea expositio is of no value in construing a British statute of the year
1858. When there are ambiguous statements in an Act passed one or two centuries ago it may be
legitimate to refer to the construction put upon their expression throughout a long course of years
by the unanimous consent of all parties interested as exercising what must presumably have been
the intention of the Legislature at the remote period. But I feel bound to construe a recent statute
according to its own terms.”82 The Supreme Court has refused to apply the principle of
contemporanea expositio to the Telegraph Act, 188583 and the
Evidence Act, 1872 84
. But the principle was applied in construing the Bombay
Municipal Corporation Act, 188885 and reliance in that connection was placed on the observations
of Lord Blackburn in Clyde Navigation Trustees v. Laird ,86
apparently ignoring the observations of Lord Watson which have been quoted above. The
principle was also referred to in construing
section 21 of the Penal Code , 1860 and in holding that an M.L.A. is not a public
servant as defined therein.87 The Supreme Court also referred to the actual practice in the matter
of appointment of judges of Supreme Court and High Courts in the context of interpreting
Articles 74 and
124 of the
Constitution and observed that the practice being in confirmity with the
constitutional scheme should be accorded legal sanction by permissible constitutional
interpretation.88
A question as to the application of the rule of contemporanea expositio arose in a recent case of
the House of Lords.89 The Governors of a fee-paying public school claimed that the school was
exempted from rates being ‘used for charitable purposes’ within section 2 of the Valuation
(Ireland) Amendment Act, 1854. It was accepted that if the test in Pemsel's case90 applied, the
school would be entitled to exemption, for educational purposes were in law charitable purposes.
It was, however, contended that under a long-standing practice supported by Alexandra College's
case91 the exemption had been confined to those educational charities whose purposes were
concerned with the education of the poor. The House of Lords held that the decision in Alexandra
College's case92 was unsupportable and the school was entitled to the exemption. Viscount
Radcliffe pointed out that the decision rendered in 1914 relating to the Act of 1854 was not
contemporanea expositio.1 Lord Upjohn in the same2 said: “For my part, I am quite unable to
apply that principle to a statute although it was passed a hundred years ago, whose language is
plain and unambiguous and was not misconstrued until the decision in Alexandra College's case,3
sixty years later”.
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Even a longstanding practice sanctioned by judicial decisions as also recognised in text books and
in legislation may be overruled if there was no legal basis for it and if in the changed
circumstances its continuance led to great hardship. So the House of Lords in 1969 overruled a
century old practice of assessing compensation by reference to values prevailing at the date of
notice to quit and held that the same should be assessed with reference to the values prevailing
when possession is taken or when assessment is made.4 And similarly, in 1980 the House of Lords
overruled a longstanding judicial acceptance of the meaning of the word ‘wilfully’ as that had
operated to the prejudice of the accused.5
But a uniform and consistent departmental practice arising out of construction placed upon an
ambiguous statute by the highest executive officers at or near the time of its enactment and
continuing for a long period of time is an admissible aid to the proper construction of the statute
by the court and would not be disregarded except for cogent reasons. The controlling effect of this
aid which is known as ‘executive construction’ would depend upon various factors such as the
length of time for which it is followed, the nature of rights and property affected by it, the
injustice resulting from its departure and the approval that it has received in judicial decisions or
in legislation.6
Relying upon this principle, the Supreme Court in Ajay Gandhi v. B. Singh
7
, having regard to the fact that the President of the Income Tax Appellate Tribunal had been from
its inception in 1941 exercising the power of transfer of the members of the Tribunal to the places
where Benches of the Tribunal were functioning, held construing
sections 251 (1) and
255 (5) of the
Income Tax Act that the President under these provisions has the requisite power of
transfer and posting of its members. The court observed : “For construction of a statute, it is trite,
the actual practice may be taken into consideration.”8
Contemporary official statements throwing light on the construction of a statute and statutory
instruments made under it have been used as contemporanea expositio to interpret not only
ancient but even recent statutes both in England9 and India.10
The principles stated above relating to use of contemporaneous official statements as ‘executive
construction’ were reiterated and approved in S.B. Bhattacharjee v. S.D.
Majumdar. 11
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The principles of contemporanea expositio and executive construction though relevant for solving
a case of an ambiguity cannot be used for bringing about an implied repeal or quasi repeal.12
Although acquiescence even for a long period does not make a void rule valid, but when rules are
made by the Government under earlier enactments on the basis of a particular construction of the
enabling section which is followed by omission of all concerned to dispute that construction for a
long time by challenging the validity of the rules and the enabling section is re-enacted without
any material change, an inference arises that the construction on which the rules proceeded
correctly represents the intention of Parliament and has its approval.13 This principle was applied
in construing the expression ‘capital employed’ in
section 80J of the Income-tax Act , 1962 and in upholding the validity of Rule 19A of
the Income-tax Rules which requires exclusion of borrowed moneys including long-term
borrowings from computation of ‘capital employed’.
In a case14 relating to the construction of a service rule which enabled section officers possessing
a recognised Degree in Civil Engineering or equivalent to claim eligibility for promotion if they
had put in ‘three years service in the grade’ whereas six years’ service was required to make a
Diploma holder eligible for promotion, the question was as to the point of time from which the
period of three years was to be counted in a case, where the section officer obtained the degree
during service. The practice over a long period was to count the period of three years from the
date the officer obtained the degree and this practice was relied upon in construing the rule.
Indeed it was observed: “If the past practice is based on one of the possible constructions which
can be made of the rules then upsetting the same now would not be appropriate.”15
The Scheduled Districts Act, 1874 authorised the Local Government to appoint officers to
administer civil and criminal justice and to regulate the procedure of officers so appointed. In
negativing the contention that the authority conferred was merely to make administrative rules
and not subordinate legislation pertaining to the procedure to be followed in deciding cases, the
Supreme Court referred to the rules of 1872, 1874, 1906 and 1937 containing comprehensive
rules of procedure and said: “It is clear that a succession of officers saw the necessity of rules
controlling not only the administrative side but also the judicial side of administration of
justice.”16 This practice was relied upon as throwing light on the construction of section 6 of the
Act.17 Similarly in construing section 146(2) of the Bombay Municipal Corporation Act, 1888,
which provides that property taxes ‘shall be primarily leviable, if the premises are let, from the
lessor’, the Supreme Court relied upon the long practice followed by the Corporation of treating
the land and building constructed upon it as a single unit and of charging the property tax upon
the owner of the land and held that in case where the land was let for a period of less than a year
and thus did not fall under sub-section (3) which made special provision for cases where the lease
was for a year or more, the primary liability to pay property tax treating the land and building as
one unit was on the owner of the land, although the building was constructed and was owned by
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the lessee.18 And in construing the word ‘houses’ in section 89 of the Bombay Village Panchayats
Act, 1933, the Supreme Court relied upon the rules made in 1934 which used the word ‘building’
in place of ‘houses’ as one of the aids for holding that the word ‘houses’ as used in the Act was
not limited to dwelling houses but included all buildings whether used for residence or
commercial purposes.19 Documents issued by the Government simultaneously with the
notification under
section 16(1) of the Securities Contracts (Regulation) Act, 1956 were used as
20
contemporanea expositio of the notification. But instructions and directions issued by the
Revenue Department for enforcement of taxing Acts have not been used as admissible aids.21
However, circulars issued under statutory power by the Central Board of Revenue, the Central
Board of Direct Taxes and the Central Board of Excise and Customs have been held to be
admissible and even binding on the Revenue.22 Decisions of the Government of India construing
an exemption notification under the Central Excises and Salt Act, 1944 have been used as
contemporanea expositio.23 Clarifications issued at the earliest point of time by the Ministry of
Commerce regarding the meaning of the expression ‘hides and skins in dressed state’ as used in
section 14 of the Central Sales Tax Act, 1956 was also used as contemporanea
expositio.24 It has been observed that such opinions should be accepted as true interpretation
unless shown to be clearly wrong.25 Drastic powers conferred on army authorities under
sections 4 and
5 of the
Armed Forces (Special Powers) Act, 1958 in respect of a ‘disturbed area’ have been
construed in the light of instructions (Do's and Dont's) issued by the Central Government to
prevent misuse or abuse of the powers and the instructions have been held to be binding.26
6. DICTIONARIES
When a word is not defined in the Act itself,27 it is permissible to refer to dictionaries to find out
the general sense in which that word is understood in common parlance.28 However, in selecting
one out of the various meanings of a word, regard must always be had to the context as it is a
fundamental rule that “the meanings of words and expressions used in an Act must take their
colour from the context in which they appear”.29 Therefore, “when the context makes the meaning
of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of
the diverse meanings a word is capable of, according to lexicographers”.30 As stated by Krishna
Aiyar, J.: “Dictionaries are not dictators of statutory construction where the benignant mood of a
law, and more emphatically, the definition clause furnish a different denotation”.31 In the words of
Jeevan Reddy, J.: “A statute cannot always be construed with the dictionary in one hand and the
statute in the other. Regard must also be had to the scheme, context and to the legislative
history.”32 Judge Learned Hand cautioned “not to make a fortress out of the dictionary” but to pay
more attention to “the sympathetic and imaginative discovery” of the purpose or object of the
statute as a guide to its meaning.33 A dictionary meaning cannot be adopted if it will make some
existing words redundant or will require reading of some additional words.34 Further, words and
expressions at times have a ‘technical’ or a ‘legal meaning’ and in that case they are understood in
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that sense.35 Again, judicial decisions expounding the meaning of words in construing statutes in
pari materia will have more weight than the meaning furnished by dictionaries.36
7. USE OF FOREIGN DECISIONS
On a question of construction of Indian Statutes sobered use of foreign decisions of countries

following the same system of jurisprudence as ours and rendered on statutes in pari materia has
been permitted by practice in Indian Courts.37 The assistance of such decisions is subject to the
qualification that prime importance is always to be given to the language of the relevant Indian
Statute, the circumstances and the setting in which it is enacted and the Indian conditions where it
is to be applied and that it is not to be forgotten that there is always an element of risk in taking
ready and hasty assistance from such decisions.38 In other words, “statutory construction must be
home-spun even if hospitable to alien thinking”.39 And when guidance is available from binding
Indian decisions, reference to foreign decisions may become unnecessary.40
Reference to English decisions was a common practice in the pre-

constitution period because of historical reasons. The practice was not given up in
spite of severe warning and caution administered by the Privy Council.41 It cannot, however, be
doubted that knowledge of English law and precedents when the language of an Indian Act was
not clear or express, has often been of valuable assistance. Speaking about the Indian Codes, Shri
M.C. Setalvad has stated: “Where the language of the Code was clear and applicable no question
of relying on English authority would arise. But very often the general rule in the Indian Code
was based on an English principle and in such cases the Indian courts frequently sought the
assistance of English decisions to support the conclusions they reached. They could not do
otherwise for not only the general rules contained in the Codes but some of the illustrations given
to clarify the general rules were based on English decisions.42 In the context of the
Criminal Procedure Code of Malaysia the Privy Council recently said: “It is quite
clear that the law of Malaysia has to be taken from the Code and not from cases on the common
law. But when, as here, the Code is embodying common law principles, decisions of the courts of
England and other Commonwealth countries in which the common law has been expounded can
be helpful in the understanding and application of the Code.”43 The suggested limited application
of foreign decisions is undoubtedly useful in understanding an Indian statute which embodies a
common law principle.
With the enforcement of the Government of India Act, 1935, decisions rendered in interpreting
Australian and Canadian Constitutions began to be listened with respect but caution was again
administered in applying them without proper qualifications.44
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The same attitude of respect with caution has been followed by the Supreme Court after advent of
the
Constitution 45 which because of incorporation of fundamental rights,
has given more access to American precedents. It cannot be denied that our courts have gained
considerable assistance from foreign decisions in interpreting certain provisions of our
Constitution .46
When an Indian Act is modelled on a prior English Act, decisions construing the provisions of the
English Act are referred to as helpful guide for construing corresponding provisions of the Indian
Act.47
Apart from the link of English Common Law and Jurisprudence and similarity of political
thought, the use of English language as authoritative text of Indian Statutes48 is another factor
which obliges the Indian courts in taking recourse to foreign precedents of English speaking
countries. Just to take an example, even in construing a common place word ‘Vegetable’ in a
taxing statute, reference was made to a Canadian decision interpreting that word in a similar
statute.49
How different conditions prevailing in India may give rise to non-acceptance by Indian courts of
an interpretation given by English courts of same or similar words can be illustrated by the case of
M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd. 50 In this
case the Supreme Court differing from English decisions interpreted the words ‘damage caused
by a ship’ in
section 443 of the Merchant Shipping Act, 1958 as not limited to physical damage
done by a ship by reason of its coming into contact with something and to include damage to
cargo carried in a ship. The important consideration for giving to the words a wide interpretation
is that there is no other Act in India covering claims for damage to cargo carried in a ship but in
England this subject is covered expressly by a different Act. Moreover, in certain areas the
Supreme Court of India may strive to be more progressive. For example, a statutory tenant (a
tenant whose tenancy has determined and who continues in possession because of statutory
protection in Rent Acts) is not recognised under English law to hold a heritable interest unless it is
conferred by statute but in India such a tenant has been recognised to hold a heritable interest
unless there be a contrary provision in the statute.51 As observed by Bhagwati, J., the contrary
view (English law) proceeds because of reluctance to reconcile “to the idea
that the law is moving forward from contract to status.”52 Another example of the same nature is
that the English common law rule, that the crown is not bound by statute unless named
specifically or by necessary implication, is not applicable in India. The rule applied in India is that
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the State is bound by statute unless excluded specifically or by necessary implication.53
Further in cases concerning an international convention “it is obviously desirable that decisions in
different jurisdictions should, so far possible, be kept in line with each other”. Therefore, in such
cases foreign decisions are more readily used for guiding the court.54
21 See Chapter 1, title 3, “Statute must be read as a whole in its context”.

(1957) 1 All ER 49 , p. 53 :
1957 AC 436 (HL). See further text and note 56, p. 37.
23 R. v. Loxdale,
(1758) 97 ER 394 , p. 395. See further J.K. Steel Ltd. v. Union of India,
AIR 1970 SC 1173 [
LNIND 1968 SC 316 ], p. 1183 (para 29); Board of Trustees of the Port of Bombay v. Sriyanesh
Knitters,
AIR 1999 SC 2947 [
LNIND 1999 SC 1590 ], p. 2952 (para 12) :
(1999) 7 SCC 359 [
LNIND 1999 SC 1590 ]; Oliver Ashworth (Holdings) Ltd. v. Ballard (Kent) Ltd.,
(1999) 2 All ER 791 , p. 808 (CA); Ahmedabad Pvt. Primary Teachers Association v.
Administrative Officers,
AIR 2004 SC 1426 , pp. 1429, 1430 :
(2004) 1 SCC 755 (8th Edn., of this book, pp. 235, 239 referred).
24 Allgemeine Gold-Und Silberscheideanstalt v. Customs & Excise Commissioners,

(1980) 2 All ER 138 , p. 141 :
1980 QB 390 :
(1980) 2 WLR 555 (CA).
25 United Society v. Eagle Bank, (1829) 7 Connecticut 457, p. 470, as cited in craies, Statute Law, p.
134 (7th Edition). See further Shah & Co., Bombay v. State of Maharashtra,
AIR 1967 SC 1877 [
LNIND 1967 SC 122 ], pp. 1883, 1884 :
1967 (3) SCR 466 [
LNIND 1967 SC 122 ]; Sirsilk Ltd. v. Textiles Committee,
AIR 1989 SC 317 [
26 State of Punjab v. Okara Grain Buyers Syndicate Ltd.,

Okara,
AIR 1964 SC 669 [
LNIND 1963 SC 256 ], pp. 684, 685 :
1964 (5) SCR 387 [
LNIND 1963 SC 256 ].
27 Shah & Co., Bombay v. State of Maharashtra, supra, p. 1884.
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28 R. v. Harrod, ex parte, Leads City Districts Council,

(1976) 1 All ER 273 (CA); Definition of ‘pleasure fair’ in section 75 of the Public Health Act,
1961, applied for construing para 4(2) of Sch. 6 to the Betting and Gaming Act, 1963.
29 State of Madras v. A. Vaidyanath Ayer,

AIR 1958 SC 61 [
LNIND 1957 SC 98 ], p. 65 :
1958 SCR 580 [
LNIND 1957 SC 98 ].
30 State of Assam v. Deva Prasad Barua,

AIR 1969 SC 831 [
LNIND 1968 SC 213 ], p. 834 :
1969 (1) SCR 698 [
LNIND 1968 SC 213 ].
31 Kusum Ingots & Alloys Ltd. v. Union of India,

(2004) 6 SCC 254 [
LNIND 2004 SC 573 ], p. 259 (para 9) :
AIR 2004 SC 3411 [
LNIND 2004 SC 656 ].
32 Sirsilk Ltd. v. Textiles Committee,

AIR 1989 SC 317 [
33 Dy. Chief Controller of Imports and Exports, New Delhi v. K.T. Kosalram,
AIR 1971 SC 1283 [
LNIND 1970 SC 399 ], p. 1289 :
(1970) 3 SCC 82 [
LNIND 1970 SC 399 ].
34
1996 (3) Scale 258 [
LNIND 1996 SC 739 ], p. 266 :
AIR 1996 SC 3081 [
LNIND 1996 SC 739 ], p. 3087.
35
AIR 1997 SC 301 [
LNIND 1996 SC 1535 ]:
1996 (11) SCC 175 .
36
AIR 1999 SC 2947 [
LNIND 1999 SC 1590 ], pp. 2952, 2953 :
(1999) 7 SCC 359 [
LNIND 1999 SC 1590 ].
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37 Jugal Kishore v. State of Maharashtra,

AIR 1989 SC 159 [
LNIND 1988 SC 484 ], p. 162 : 1989 Supp (1) 589.
38 Ibid.
39 Ibid.
40 Sarva Shramik Sangh v. Indian Smelting and Refining Co. Ltd.,

AIR 2004 SC 269 [
LNIND 2003 SC 907 ], p. 277.
41 Ibid.
42 Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer,

AIR 2004 SC 1426 , p. 1431 :
(2004) 1 SCC 755 .
43 R. v. Oastler & Mews, 43 LJ 403 : (1880) 50 LJMC 4 : 42 Digest, p. 661 (Brett, L.J.); R. v.
Townbridge Overseers,
(1884) 13 QBD 339 , p. 342 (Brett, M.R.); See further Chapter 7, title 5 ‘Implied repeal’.
44 See p. 292.
45 Lenhon v. Gobson & Howes Ltd.,

(1919) AC 709 , pp. 711, 712 (PC) (LORD SHAW). See further title 4(b) ‘Assistance of Earlier
Statutes’ infra. For Example see Lily Isabel Thomas, In re,
AIR 1964 SC 855 [
LNIND 1964 SC 596 ]; ‘The words ‘rule as to persons practicing before the court’ as they occur
in
Article 145(1)(a) of the Constitution of India were understood in the same sense in which these words were used in
section 241(1), of the Government of India Act, 1935”.
46 See title 4(c) ‘Assistance of later Statutes’, infra; Ahmedabad Pvt. Primary Teachers
Association v. Administrative Officer,
AIR 2004 SC 1426 , p. 1430 :
(2004) 1 SCC 755 (Passage from 8th Edn., of this book, p. 239 is referred).
48 Kathama Natchiar v. Dorasinga Tever,

(1875) 2 IA 169 , p. 187 (PC); Bugga v. Emperor,
(1920) 47 IA 128 , pp. 138, 139 (PC); Kalyandappa v. Chanbasappa,
AIR 1924 PC 137 , p. 142; P. Vajaravelu Mudaliar v. Special Deputy Collector for Land
Acquisition, West Madras,
AIR 1965 SC 1017 [
LNIND 1964 SC 3 ], p. 1023 :
1965 (1) SCR 614 [
LNIND 1964 SC 3 ]. See further text and notes 50, 51, 52, 61 and 62, infra; F.S. Gandhi v.
Commissioner of Wealth Tax,
Mr.Srikanth -
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AIR 1991 SC 1866 [

LNIND 1990 SC 291 ], p. 1871 (para 16) :
(1990) 3 SCC 627 ; Hughes v. Doncaster Metropolitan Borough Council,
(1991) 1 All ER 295 , p. 301 :
(1991) 1 AC 382 :
(1991) 2 WLR 16 (h and i) (HL).
49 Webb v. Outrim,
(1907) AC 81 , p. 89 (PC); referred to in Barras v. Aberdeen Steam Trawling and Fishing Co.
Ltd.,
(1933) AC 402 :
(1933) All ER Rep 52 , pp. 55, 66, 68, 72 (HL).
50 Cathcart, Ex parte, Campbell, In re, (1870) 5 Ch App 703, p. 709; approved by Lord buckmaster in
supra, Barras v. Aberdeen Steam Trawling & Fishing Co. Ltd., p. 55 (All ER Rep). See further
Banarsi Debi v. ITO, District IV, Calcutta,
AIR 1964 SC 1742 [
LNIND 1964 SC 112 ], p. 1745 :
(1976) 3 SCC 800 [
LNIND 1976 SC 224 ] and Diwan Brothers v. Central Bank,
AIR 1976 SC 1503 [
LNIND 1976 SC 224 ], p. 1515 :
(1964) 7 SCR 539 [
LNIND 1964 SC 112 ] :
(1976) 3 SCC 800 [
LNIND 1976 SC 224 ], where the rule as stated by Lord buckmaster in Barras’ case, supra, p. 55
(All ER Rep.) is quoted.
51 Greaves v. Tofield,
(1880) 14 Ch 563 , p. 571, referred to in supra, Barras v. Aberdeen Steam
Trawling & Fishing Co., p. 72 (All ER Rep).
52 R. v. Chard,
(1983) 3 All ER 637 , p. 644 :
(1984) AC 279 :
(1983) 3 WLR 835 (HL). See also to the same effect Commissioner of Income-tax v. Bansidhar,
(1986) 1 SCC 523 [
LNIND 1985 SC 364 ], p. 538 :
AIR 1986 SC 421 [
LNIND 1985 SC 364 ].
53 Robinson Bros. (Brewers) Ltd. v. Durham Country Assessment Committee,

(1938) 2 All ER 79 , pp. 87, 88 (HL) (Lord macmillan).
54 Royal Crown Derby Porcelain Co. Ltd. v. Russel,

(1949) 1 All ER 749 , p. 755 (Denning, L.J.); Dun v. Dun,
(1959) 2 All ER 134 , p. 143 (PC); Yeovil Glove Co. Ltd., Re,
(1964) 2 All ER 849 , pp. 859, 860 (CA); Farrel v. Alexander,
(1976) 2 All ER 721 :
(1977) AC 59 :
(1976) 3 WLR 145 (HL), p. 727 (Lord willberforce), pp. 740, 741 (Lord simon), p. 746 (Lord
edmund davies).
55 Haigh v. Charles W. Ireland Ltd.,

(1973) 3 All ER 113 , pp. 1149, 1150 (HL).
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56 Ibid.
57 Diamond Sugar Mills Ltd. v. State ofU.P.,

AIR 1961 SC 652 [
LNIND 1960 SC 339 ], p. 658 :
1961 (3) SCR 242 [
LNIND 1960 SC 339 ]; Kumara Nund v. Brijmohan Lal Sharma,
AIR 1967 SC 808 [
LNIND 1966 SC 296 ], p. 812 :
1967 (2) SCR 127 [
LNIND 1966 SC 296 ]; CIT v. Bansidhar,
(1986) 1 SCC 523 [
LNIND 1985 SC 364 ], p. 538 :
AIR 1986 SC 421 [
LNIND 1985 SC 364 ].
58 Royal Crown Derby Porcelain Co. Ltd. v. Russel,

(1949) 1 All ER 749 , p. 755; referred to in Dun v. Dun,
(1959) 2 All ER 134 , p. 143 (PC).
59 Farrel v. Alexander,
(1976) 2 All ER 721 , pp. 740, 741 :
1977 AC 59 :
(1976) 3 WLR 145 (HL). In R. v. Sheppard,
(1980) 3 All ER 899 :
(1981) AC 394 :
(1980) 3 WLR 960 (HL)the House of Lords overruled a long standing decision on the meaning
of the word ‘wilfully’ as it operated to the disadvantage of the accused.
60 Wildfree Hotels Ltd. v. Harrow Land on Borough Council,

(2000) 3 All ER 289 pp. 293, 294 (HL). This case relates to construction of section 10 of the
Compulsory Purchase Act, 1965 which corresponds to section 68 of the Lands Clauses Consolidation Act 1845. Section 10(2) of
the 1965 Act reads: ‘This section shall be construed as affording in all cases a right to compensation for injurious affection to land
which is the same as the right which section 68 of the Land Clauses Consolidation Act, 1845 has been construed as affording.’.

AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 749 :
1955 (2) SCR 603 [
LNIND 1955 SC 122 ]. See further Sakal Deep Sahai Srivastava v. Union of
India,
AIR 1974 SC 338 [
LNIND 1973 SC 363 ], pp. 341, 342 :
(1974) 1 SCC 338 [
LNIND 1973 SC 363 ] : 1974 SCC (L&S) 158.
62 Ramji Missar v. State of Bihar,

AIR 1963 SC 1088 [
63 Commissioner of Wealth Tax, W.B. v. Imperial Tabacco Co. of India Ltd.,

AIR 1967 SC 230 [
LNIND 1966 SC 118 ]: 1966 Supp SCR 174.
Mr.Srikanth -
Page 39 of 76
64 Nippon Yusen Kaisha v. Ramjiban Serowgee,

AIR 1938 PC 152 , p. 158; Ram Narian v. State of U.P.,
AIR 1957 SC 18 [
LNIND 1956 SC 65 ], p. 23 :
1956 SCR 664 [
LNIND 1956 SC 65 ]; Lila Vati Bai v. State of Bombay,
AIR 1957 SC 521 [
LNIND 1957 SC 25 ], p. 527 :
1957 SCR 721 [
LNIND 1957 SC 25 ]; Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. S.G. Mehta,
AIR 1963 SC 1436 [
LNIND 1962 SC 498 ], p. 1443 : 1963 Supp (2) SCR 92; State of Maharashtra v. Mishrilal
Tarachand,
AIR 1964 SC 457 [
LNIND 1963 SC 255 ], p. 459 :
(1964) 5 SCR 230 [
LNIND 1963 SC 255 ]; State of Punjab v. Okara Grain Buyers Syndicate Ltd., Okara,
AIR 1964 SC 669 [
LNIND 1963 SC 256 ], pp. 684, 685 :
(1964) 5 SCR 387 [
LNIND 1963 SC 256 ]; Board of Muslim Wakfs, Rajasthan v. Radha Kishan,
AIR 1979 SC 289 [
LNIND 1978 SC 302 ], p. 295 :
(1979) 2 SCC 468 [
LNIND 1978 SC 302 ]; Mohanlal v. R. Kondiah,
AIR 1979 SC 1132 [
LNIND 1979 SC 87 ], p. 1134 :
1979 (2) SCC 616 [
LNIND 1979 SC 87 ]; Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests,
AIR 1990 SC 1747 [
LNIND 1990 SC 902 ], p. 1751 :
1990 (2) JT 130 : 1990 Supp SCC 785. See further Shri Kumar Padma Prasad
v. Union of India,
AIR 1992 SC 1213 [
LNIND 1992 SC 225 ], p. 1226 :
1992 (2) SCC 428 [
LNIND 1992 SC 225 ] [Meaning of ‘judicial office’ with reference to
section 7(3) of the Industrial Disputes Act as construed in Statesman (Private) Ltd. v. H.R. Deb,
AIR 1968 SC 1495 [
LNIND 1968 SC 94 ], p. 1499 :
(1968) 3 SCR 614 [
LNIND 1968 SC 94 ] cannot be used for construing that expression in
Article 217(2)(a) of the Constitution for the two are not in pari materia].
65 Rio Tinto Zinc Corporation v. Westinghouse Electric Corporation,

(1978) 1 All ER 434 , p. 461 :
1978 AC 547 :
(1978) 2 WLR 81 (HL)(Lord Diplock).
66 Smith v. Braintree District Council,

(1989) 3 All ER 897 , p. 907 (HL).
67 State of Punjab v. Okara Grain Buyers Syndicate Ltd., Okara, supra, p. 684; Board
of Muslim Wakfs, Rajasthan v. Radhakishan, supra supra.
68 Hari Khemu Gawali v. Dy. Commissioner of Police,

AIR 1956 SC 559 [
LNIND 1956 SC 42 ], p. 568 :
Mr.Srikanth -
Page 40 of 76
1956 SCR 506 [

LNIND 1956 SC 42 ].
69 Nathia Agarwalla v. Jahanara Begum,

AIR 1967 SC 92 [
LNIND 1966 SC 88 ], p. 94 :
1966 (3) SCR 926 [
LNIND 1966 SC 88 ]. See further M.K. Salpekar (Dr.) v. Sunil Kumar
Shamsunder Chaudhari,
AIR 1988 SC 1841 [
LNIND 1988 SC 380 ], p. 1844 :
1988 (4) SCC 21 [
LNIND 1988 SC 380 ]; Babu Ram Gopal (M/s.) v. Mathra Das,
AIR 1990 SC 879 [
LNIND 1990 SC 118 ], p. 881 :
1990 (2) SCC 279 [
LNIND 1990 SC 118 ].
70 Desh Raj Gupta v. Industrial Tribunal IV, Lucknow,

AIR 1990 SC 2174 [
LNIND 1990 SC 526 ], p. 2175 :
(1991) 1 SCC 249 [
LNIND 1990 SC 526 ] See further Union of India v. Dhanwanti Devi,
1996 (6) Scale 431 [
LNIND 1996 SC 1298 ] :
1996 (6) SCC 44 [
LNIND 1996 SC 1298 ].
71 Agencia E. Sequeira v. Labour Commissioner,

JT 1997 (2) SC 171 , p. 181 (para 20).
72 S.J. Pande v. P.K. Balkrishnan,

AIR 1993 SC 2132 [
LNIND 1993 SC 409 ], p. 2134 :
(1993) 3 SCC 297 [
LNIND 1993 SC 409 ] distinguishing Damadilal v. Parashram,
AIR 1976 SC 2229 [
LNIND 1976 SC 225 ]:
1976 (4) SCC 855 [
LNIND 1976 SC 225 ].
73 Dun v. Dun,
(1959) 2 All ER 134 , p. 143 (PC).
74 Union of India v. G.M. Kokil, 1984 (Supp.) SCC 196, p. 203 (para
: 12)
AIR 1984 SC 1022 [
LNIND 1984 SC 87 ]. See further Darshan Singh v. Rampal Singh,
AIR 1991 SC 1654 [
LNIND 1990 SC 725 ], p. 1664 : 1992 Supp (1) SCC 191(The principle of stare decisis will also
apply in such cases).
75 Ram Nandan Prasad Narayan Singh v. Kapildeo Ramjee,

AIR 1951 SC 155 [
LNIND 1951 SC 2 ], p. 157 :
1951 SCR 138 . See further Gajanan v. Seth Brindaban,
AIR 1970 SC 2007 [
Mr.Srikanth -
Page 41 of 76
LNIND 1970 SC 282 ], p. 2015 :

(1970) 2 SCC 360 [
LNIND 1970 SC 282 ] (the inference is presumptive and not conclusive); State of Karnataka v.
G. Seenappa,
AIR 1992 SC 1531 , p. 1532 : 1993 Supp (1) SCC 648.
76 Purushottamdas Dalmia v. State of W.B.,

AIR 1961 SC 1589 [
LNIND 1961 SC 188 ], p. 1595 :
1962 (2) SCR 101 [
LNIND 1961 SC 188 ]. See further Roop Chand v. tate of Punjab,
AIR 1963 SC 1503 [
77 Empress Mills, Nagpur v. Municipal Committee, Wardha,

AIR 1958 SC 341 [
LNIND 1957 SC 139 ], p. 346 :
1958 SCR 1102 [
LNIND 1957 SC 139 ].
78 Indian Oxygen Ltd. v. Their Workmen,

AIR 1972 SC 471 [
LNIND 1971 SC 633 ], p. 479 :
(1972) 4 SCC 578 [
LNIND 1971 SC 633 ].
79 Mishri Lal v. Dhirendra Nath,

JT 1999 (2) SC 586 [
LNIND 1999 SC 349 ], pp. 591 to 594 :
AIR 1999 SC 2286 [
LNIND 1999 SC 349 ], pp. 2289, 2290 :
(1999) 4 SCC 11 [
LNIND 1999 SC 349 ] (see also cases referred to therein); Janba v. Gopikabai,
JT 2000 (4) SC 280 [
LNIND 2000 SC 612 ], p. 290 :
(2000) 4 SCC 1 [
LNIND 2000 SC 612 ] :
AIR 2000 SC 1771 [
LNIND 2000 SC 612 ]; Saurashtra Cement and Chemical Industries v. Union of India,
AIR 2001 SC 8 [
LNIND 1993 SC 978 ],p. 23; Iridium India Telecom Ltd. v. Motorola Inc,
(2005) 2 SCC 145 [
LNIND 2005 SC 15 ], p. 160 (paras 40, 41). See further Darshan Singh v.
Rampal Singh,
AIR 1991 SC 1654 [
LNIND 1990 SC 725 ], p. 1664 : 1992 Supp (1) SCC 191; see text and note 76, p. 331.
80 Rohini Prasad v. Kasturchand,

AIR 2000 SC 1283 [
LNIND 2000 SC 421 ], p. 1286 :
(2000) 3 SCC 668 [
LNIND 2000 SC 421 ]; Janba v. Gopikabai,
AIR 2000 SC 1771 [
LNIND 2000 SC 612 ], p. 1777 :
(2000) 4 SCC 1 [
LNIND 2000 SC 612 ]; Pyarelal v. Mani Ram,
AIR 2000 SC 2802 [
LNIND 2000 SC 1137 ], p. 2806 (prospective overruling) :
Mr.Srikanth -
Page 42 of 76
(2000) 7 SCC 175 [

LNIND 2000 SC 1137 ].
81 Molar Mal v. Kay Iron Works (P.) Ltd.,

AIR 2000 SC 1261 [
LNIND 2000 SC 476 ], p. 1267 :
(2000) 4 SCC 285 [
LNIND 2000 SC 476 ].
82 State of Maharashtra v.
Millind,
AIR 2001 SC 393 [
LNIND 2000 SC 1675 ], pp. 406, 407 :
(2001) 1 SCC 4 [
LNIND 2000 SC 1675 ]. The High Courts have no power of prospective overruling.
83 P.V. George v. State of Kerala,

(2007) 3 SCC 557 [
LNIND 2007 SC 83 ] (para 29) :
AIR 2007 SC 1034 [
LNIND 2007 SC 83 ].
84 Raymond Ltd. v. Madhya Pradesh Electricity

Board,
AIR 2001 SC 238 [
LNIND 2000 SC 1563 ], p. 239; Somaiya Organics (India) Ltd. v. State of Uttar Pradesh,
AIR 2001 SC 1723 [
LNIND 2001 SC 990 ], pp. 1734, 1735 :
(2001) 5 SCC 519 [
LNIND 2015 SC 635 ]; Gangaram Moolchandani v. State of Rajasthan,
AIR 2001 SC 2616 [
LNIND 2001 SC 1353 ], pp. 2624, 2625 :
(2001) 6 SCC 89 [
LNIND 2001 SC 1353 ]; P.V. George v. State of Kerala, supra, para 14.
85 State of H.P. v. Nurpur Private Bus Operators,

AIR 1999 SC 3880 [
LNIND 1999 SC 897 ]:
(1999) 9 SCC 559 [
LNIND 1999 SC 897 ]. P.V. George v. State of Kerala, supra, para 14.
1 State of Madhya Pradesh v. G.S. Dall and Mills,Flour

AIR 1991 SC 772 [
LNIND 1990 SC 563 ], p. 783 : 1992 Supp (1) SCC 150 [4th Edition of this book (pp. 167-168)
is referred].
2 Dickerson v. Fletcher,
(1873) LR 9 CP 1, pp. 7, 8.
3 R. v. Price,
(1871) LR 6 QB 411, pp. 416, 417.
4 D.R. Fraser & Co. Ltd. v. Minister of National Revenue,

AIR 1949 PC 120 , p. 123.
Mr.Srikanth -
Page 43 of 76
5 Western India Theatres Ltd. v. Municipal Corporation,

Poona,
AIR 1959 SC 586 [
LNIND 1958 SC 204 ], p. 589 : 1959 Supp (2) SCR 71. See further State of
U.P. v. Malik Zarid Khalid,
AIR 1988 SC 132 [
LNIND 1987 SC 751 ], p. 138 :
(1988) 1 SCC 145 [
LNIND 1987 SC 751 ] (
Amending Act substituting a provision using wider language cannot be given a narrow construction so as to hold it
a mere re-enactment of the old provision); State of Madhya Pradesh v. G.S. Dall and Flour Mills,
AIR 1991 SC 772 [
LNIND 1990 SC 563 ], pp. 783, 784 : 1992 Supp (1) SCC 150.
6 Jeffs v. New Zealand Dairy Production etc.,

(1966) 3 All ER 863 , p. 870 :
(1967) 1 AC 551 (PC).
7 State of U.P. v. Radhey Shyam,

AIR 1989 SC 682 [
LNIND 1989 SC 14 ], pp. 689, 690 :
1989 (1) SCC 591 [
LNIND 1989 SC 14 ].
8 Ibid. See further V.M. Salgaokar & Bros. Pvt. Ltd. v. Commissioner of Income-tax,
JT 2000 (4) SC 473 [
LNIND 2000 SC 638 ], pp. 493, 494 :
(2000) 5 SCC 373 [
LNIND 2000 SC 638 ].
9 Bharat Ins. Co. Ltd. v. CIT, Punjab,

AIR 1934 PC 45 , p. 49. But alteration immediately following a decision cannot be overlooked
as of no import: Union of India v. V.M. Salgaonkar and Bros. (P.) Ltd.,
AIR 1998 SC 1367 [
LNIND 1998 SC 1218 ], p. 1371 :
1998 (4) SCC 263 [
LNIND 1998 SC 1218 ].
10 Felix v. Thomas,
(1966) 3 All ER 21 , p. 27 (PC).
11 Bhimaji Shankar v. Dundappa Vithappa,

AIR 1966 SC 166 [
LNIND 1965 SC 160 ], p. 169 :
1966 (1) SCR 145 [
LNIND 1965 SC 160 ].
12 Venkata Subamma v. Ramayya,

AIR 1932 PC 92 ; Shamrao V. Parulekar v. District Magistrate, Thana,
AIR 1952 SC 324 [
LNIND 1952 SC 38 ], p. 326 :
1952 SCR 683 [
LNIND 1952 SC 38 ]; Ramnarain v. Simla Banking & Industrial Co. Ltd.,
AIR 1956 SC 614 [
LNIND 1956 SC 48 ], p. 621 :
Mr.Srikanth -
Page 44 of 76
1956 SCR 630 ; Laxmi Devi v. Mukund Kanwar,

AIR 1965 SC 834 [
LNIND 1964 SC 366 ], p. 837 (para 14) :
1965 (1) SCR 726 [
LNIND 1964 SC 366 ]; Onkarlal Nandlal v. State of Rajasthan,
(1985) 4 SCC 404 [
LNIND 1985 SC 292 ], p. 415 :
AIR 1986 SC 2164 ; Orient Paper Industries Ltd. v. State of Orissa,
AIR 1991 SC 672 [
LNIND 1990 SC 643 ], p. 682 : 1991 Supp (1) SCC 81; Yadiapati Venkateswarlu v. State of
Andhra Pradesh,
AIR 1991 SC 704 [
LNIND 1990 SC 517 ], p. 709 : 1992 Supp (1) SCC 74; State of Maharashtra v. Vithalrao
Ganpatro Warhade,
JT (1998) 7 SC 177 , p. 187 :
1998 (5) Scale 603 :
(1998) 8 SCC 284 .
13 Bradlaugh v. Clarke,
(1883) 8 AC 354 , p. 380. See further Mohanlal Tripathi v. District
Magistrate, Rai Bareilly,
AIR 1993 SC 2042 [
LNIND 1992 SC 420 ], p. 2049 :
(1992) 4 SCC 80 [
LNIND 1992 SC 420 ].
14 Abdur Rahim v. Syed Abu Mahomed Barkat Ali Shah,

AIR 1928 PC 16 , p. 18 : 55 IA 96.
15 Tumahole Bereng v. King,

AIR 1949 PC 172 , p. 176 : 50 Cri LJ 642; ITO, Sitapur v. Muralidhar Bhagwandas,
AIR 1965 SC 342 [
LNIND 1964 SC 21 ], p. 346 :
1964 (6) SCR 411 [
LNIND 1964 SC 21 ]; ITO, I, Salem v. Short Brothers,
AIR 1967 SC 81 [
LNIND 1965 SC 384 ], p. 84 :
(1966) 3 SCR 84 [
LNIND 1965 SC 384 ]; Pacific Motor etc. v. Motor Credits,
(1965) 2 All ER 105 , p. 113 (PC) (Heredity of a section as useful guide); Armah v. Government
of Ghana,
(1966) 3 All ER 177 , pp. 181, 203 (HL) (use of statutory antecedents of the Act); Beswick v.
Beswick,
(1967) 2 All ER 1197 , p. 1202 (HL) (Antecedents of a section); Owen Thomas Mangin v. IRC,
(1971) 2 WLR 39 , p. 42 (PC); General Electric Co. v. General Electric Co. Ltd.,
(1972) 2 All ER 507 , p. 518 (Legislative history of the
Trade Marks Act , 1938 over the previous 63 years and the state of the Common Law as it existed before the first
Act to alter it was passed nearly 100 years ago were considered); Mohanlal Tripathi v. District Magistrate, Rai Bareilly,
AIR 1993 SC 2042 [
LNIND 1992 SC 420 ], p. 2049 :
(1992) 4 SCC 80 [
LNIND 1992 SC 420 ].
16 R. S. Nayak v. A. R. Antuley,
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], p. 223 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ].
Mr.Srikanth -
Page 45 of 76
17 Commissioner of Income-tax Bangalore v. Venkateshwara Hatcheries (P.)Ltd.,

JT 1999 (2) SC 338 [
LNIND 1999 SC 299 ], pp. 343, 344 :
AIR 1999 SC 1225 [
LNIND 1999 SC 299 ], pp. 1228, 1229.
18 R v. Bristol City Council exparte Everett,

(1999) 2 All ER 193 (CA). See the following cases where similar method was applied by the
House of Lords: Cadogan Estates Ltd. v. Mcmohan,
(2000) 4 All ER 897 (HL) (construction of the word ‘obligation’ in the Rent Act 1979);
Birmingham City Council v. Oakley,
(2001) 1 All ER 385 , pp. 392, 394, 395 (HL) (Construction of the expression ‘prejudicial to
health’ in the Environmental Protection Act, 1990.
19 Green Cab Service v. Whitfield,

(1965) 3 All ER 695 , p. 700 (PC).
20 Wijesuriya v. Amit,
(1965) 3 All ER 701 , p. 703 (PC).
21 Hadley v. Perks,
(1866) LR 1 QB 444, p. 457; Lawless v. Sullivan,
(1881) 6 AC 373 , p. 383 (PC); Hopes v. Hopes,
(1948) 2 All ER 920 , p. 925; Redrow Homes Ltd. v. Bett Bros. Plc.,
(1998) 1 All ER 385 , p. 390 (g, h) (HL).
22 Madanlal Fakirchand Dudhediya v. S. Changdeo Sugar

Mills,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ], p. 1553: 1962 Supp (3) SCR 973; Bhanupratap Singh (Raja) v. Asstt.
Custodian, Evacuee Property, Bahraich,
AIR 1966 SC 245 [
LNIND 1965 SC 178 ], p. 248 :
(1966) 1 SCR 304 [
LNIND 1965 SC 178 ].
23 Redrow Homes Ltd. v. Bett Bros. Plc., supra.
24 Chandrika Prasad Tripathi v. Shiv Prasad

Chanpuria,
AIR 1959 SC 827 [
LNIND 1959 SC 45 ], p. 830 : 1959 Supp (2) SCR 527; Mohamed Quasim Larry v. Mohomed
Samsuddin,
AIR 1964 SC 1699 [
LNIND 1964 SC 99 ]:
(1964) 7 SCR 419 [
LNIND 1964 SC 99 ]; Kajari Lal Agarwala v. Union of India,
AIR 1966 SC 1538 [
LNIND 1965 SC 395 ], p. 1541 :
1966 (3) SCR 141 [
LNIND 1965 SC 395 ]; Bhagat Ram v. State of Punjab,
AIR 1967 SC 927 [
LNIND 1966 SC 298 ]:
1967 (2) SCR 165 [
LNIND 1966 SC 298 ].
Mr.Srikanth -
Page 46 of 76
25 Hopes v. Hopes,
(1948) 2 All ER 920 , p. 925. Referred in State of U.P. v. Radhey Shyam,
AIR 1989 SC 682 [
LNIND 1989 SC 14 ], p. 690 :
1989 (1) SCC 591 [
LNIND 1989 SC 14 ].
26 Lord Howard de Walden v. IRC,

(1948) 2 All ER 825 , p. 830 (HL). Referred in State of U.P. v. Radhey Shyam, supra.
27 M.K. Ranganathan v. Govt. of

Madras,
AIR 1955 SC 604 [
LNIND 1955 SC 41 ], p. 609 :
1955 (2) SCR 374 [
LNIND 1955 SC 41 ]; Empress Mills, Nagpur v. Municipal Committee, Wardha,
AIR 1958 SC 341 [
LNIND 1957 SC 139 ], p. 348 :
1958 SCR 1102 [
LNIND 1957 SC 139 ]; Byram Pestonji Gariwala v. Union Bank of India,
AIR 1991 SC 2234 [
LNIND 1991 SC 485 ], p. 2242 :
1992 (1) SCC 31 [
LNIND 1991 SC 485 ] (Implied authority of counsel to compromise not altered by
CPC Amendment Act, 1976.) See further Murugiah v. Jainuddeen,
(1954) 3 WLR 682 , p. 687 (PC); National Assistance Board v. Wilkinson,
(1952) 2 All ER 255 , p. 259; Minet v. Leman, (1855) 20 Beav 269, p. 278 : 52 ER 606, p. 610;
Beswick v. Beswick,
(1967) 2 All ER 1197 (HL).
28 Ormond Investment Co. v. Betts,

(1928) AC 143 :
(1928) All ER Rep 709 , p. 715 (HL).

(1955) 2 All ER 345 , p. 366 :
1955 AC 696 :
(1955) 1 WLR 1135 (HL).
30 IRC V. Dowdall O'Mahoney &

Co.,
(1952) 1 All ER 531 , p. 544 :
1952 AC 401 (HL); Kirkness v. John Hudson & Co., supra, p. 352;
Birmingham City Corporation v. West Midland Baptist,
(1969) 3 All ER 172 , pp. 179, 188, 190 (HL); ITO II, Kanpur v. Mani Ram,
AIR 1969 SC 543 [
LNIND 1968 SC 222 ], p. 548; Reference under section 48A of the Criminal Appeal (Northern
Ireland) Act, 1968,
(1976) 2 All ER 937 , p. 951 (HL).
31 IRC v. Ayrshire Assn. Ltd.,

(1946) 1 All ER 637 , p. 641 : 27 TC 331 (HL).
32 Hariprasad Shivshankar Shukla v. A.D. Divelkar,

AIR 1957 SC 121 [
LNIND 1956 SC 104 ], p. 131 :
1957 SCR 121 [
LNIND 1956 SC 104 ]. See further Nalinikant Ambalal Mody v. CIT, Bombay,
Mr.Srikanth -
Page 47 of 76
AIR 1967 SC 193 [

LNIND 1966 SC 131 ], p. 203 : 1966 Supp SCR 295.
33 Dharangdhara Chemical Works v. Dharangdhara Municipality,

(1985) 4 SCC 92 [
LNIND 1985 SC 273 ], p. 101 :
AIR 1985 SC 1729 [
LNIND 1985 SC 273 ].
34 Arthur J.S. Hall v. Simmons,

(2000) 3 All ER 673 , p. 684 (HL) (The immunity of Barristers from being sued for professional
negligence which had the approval of the House of Lords was extended to Solicitor Advocates by section 62 of the Courts and
Legal Services Act, 1990. But this did not prevent the House of Lords in departing from its earlier decision and thereby making
Barristers and Solicitor Advocates liable for professional negligence).
35 Gopee Mohun Thakoor v. Rajah Radhakant, (1834) 5 SWR 72, p. 75 (PC); Mungniram Marwari v.
Mohunt Gursahai Nund,
(1889) 16 IA 195 , pp. 200, 201 : 17 Cal 347, p. 357 (PC); Nalinikant Ambalal Mody v. CIT,
Bombay, supra, pp. 202, 203; ITO II, Kanpur v. Mani Ram, supra, p. 548; Vaijnath v. Guramma,
AIR 1999 SC 555 [
LNIND 1998 SC 1489 ], p. 557.
36
1996 (1) Scale 298 [
LNIND 1996 SC 95 ], p. 304.
37 Indira Sawhney v. Union of India,

JT 1999 (9) SC 557 , pp. 579, 582 :
AIR 2000 SC 498 .
38 Ram Kishana Ram Nath v. Janpad Sabha,

AIR 1962 SC 1073 [
LNIND 1962 SC 59 ], p. 1079 : 1962 Supp (3) SCR 70; ITO, Kanpur v. Maniram,
AIR 1969 SC 543 [
LNIND 1968 SC 222 ], p. 548 :
(1969) 1 SCR 724 [
LNIND 1968 SC 222 ]; Jogendranath Naskar v. Commissioner of Income-tax,
AIR 1969 SC 1089 [
LNIND 1969 SC 75 ], p. 1094 :
1969 (1) SCC 555 [
LNIND 1969 SC 75 ]; Sone Valley Portland Cement Co. Ltd. v. General Mining Syndicate Pvt.
Ltd.,
AIR 1976 SC 2520 [
LNIND 1976 SC 298 ], p. 2528 :
(1976) 3 SCC 852 [
LNIND 1976 SC 298 ]; Thiru Manickam & Co. v. State of Tamil Nadu,
AIR 1977 SC 518 [
LNIND 1976 SC 392 ], pp. 522, 523 : 1977 SCC (Tax) 165 ; U.P. Co-operative Cane Union
Federation Ltd. v. Liladhar,
AIR 1981 SC 152 [
LNIND 1980 SC 353 ], p. 158 : 1980 Supp SCC 437; Ghanshyam Dass V. Dominion of India,
(1984) 3 SCC 46 [
LNIND 1984 SC 82 ], p. 58 :
AIR 1984 SC 1004 [
LNIND 1984 SC 82 ].
Mr.Srikanth -
Page 48 of 76
39 Cape Brandy Syndicate v. IRC,

(1921) 2 KB 403 , p. 414 (CA); Jogendranath Naskar v. Commissioner of Income-tax,
AIR 1969 SC 1089 [
LNIND 1969 SC 75 ], p. 1094 :
(1969) 1 SCC 555 [
LNIND 1969 SC 75 ]; Pappu Sweets & Biscuits v. Commissioner of Trade Tax (U.P. LKW.),
AIR 1998 SC 3247 [
LNIND 1998 SC 1212 ], p. 3252 :
(1998) 7 SCC 228 [
LNIND 1998 SC 1212 ]; Gem Granites v. Commissioner of Income Tax,
(2005) 1 SCC 289 [
LNIND 2004 SC 1175 ], p. 296.
40 Ormand Investment Co. v. Betts,

(1928) All ER Rep 709 , p. 716 (HL) :
(1928) AC 143 , p. 156 (lord buckmaster). Reaffirmed: Kirkness v. John
Hudson & Co.,
(1955) 2 All ER 345 , pp. 350, 351 :
1955 AC 696 (HL) (viscount simonds); A.G. v. HRH Prince Ernest Augustus of Hanover,
(1957) 1 All ER 49 , p. 61 :
1957 AC 436 ; State of Bihar v. S.K. Roy,
AIR 1966 SC 1995 [
LNIND 1966 SC 127 ], p. 1998 : 1966 Supp SCR 259 ; Nalinikant Ambalal Mody v. CIT,
Bombay,
AIR 1967 SC 193 [
LNIND 1966 SC 131 ], pp. 202, 203 : 1966 Supp SCR 295.
41 Cape Brandy Syndicate v. IRC, supra .
42 Ormond Investment Co. v. Betts, supra, p. 156; Kirkness v. John Hudson & Co., supra, pp. 350, 351.
See further, Commissioner of Sales Tax v. Industrial Coal Enterprises,
AIR 1999 SC 1324 [
LNIND 1999 SC 194 ], p. 1330 :
1999 (2) SCC 607 [
LNIND 1999 SC 194 ].
43 Kirkness v. John Hudson & Co., supra, pp. 352, 355, 366.
44 London Borough of Lewisham v. Lewisham Juvenile Court Justices,

(1979) 2 All ER 297 , p. 299 (HL) (viscount dilhorne). See further Pearson v.
Inland Revenue Commissioners,
(1980) 2 All ER 479 , pp. 483, 484 :
1981 AC 753 :
(1980) 2 WLR 872 (HL) (viscount dilhorne).
45 State of Bihar v. S.K. Roy,

AIR 1966 SC 1995 [
46 Kajari Lal Agarwala v. Union of India,

AIR 1966 SC 1538 [
LNIND 1965 SC 395 ], p. 1541 :
1966 (3) SCR 141 [
LNIND 1965 SC 395 ].
Mr.Srikanth -
Page 49 of 76
47 Assam Sillimanite Ltd. v. Union of India,

AIR 1990 SC 1417 [
LNIND 1990 SC 161 ], p. 1422 :
1990 (3) SCC 182 [
LNIND 1990 SC 161 ].
48 Thiru Manickam and Co. v. State of Tamil

Nadu,
AIR 1977 SC 518 [
LNIND 1976 SC 392 ], p. 522 : 1977 SCC (Tax) 165 :
(1977) 1 SCC 199 [
LNIND 1976 SC 392 ].

AIR 1957 SC 121 [
LNIND 1956 SC 104 ], pp. 130, 131 :
1957 SCR 121 [
LNIND 1956 SC 104 ].

AIR 1957 SC 121 [
LNIND 1956 SC 104 ], pp. 130, 131 :
1957 SCR 121 [
LNIND 1956 SC 104 ].
51 Ibid.
52 Anakapalli Co-operative Agricultural & Industrial Society

Workmen, v.
AIR 1963 SC 1489 [
LNIND 1962 SC 345 ], pp. 1494, 1495 : 1963 Supp (1) SCR 730; S.M. Nilajkar v. Telecom
District Manager Karnataka,
(2003) 4 SCC 27 , p. 39 : 2003 SCC (L&S) 380 :
(2003) 3 Mah LJ 9 . See further Maruti Udyog Ltd. v. Ramlal,
(2005) 2 SCC 638 [
LNIND 2005 SC 81 ], p. 652.
53 Ammini v. State of Kerala,

AIR 1998 SC 260 , p. 265 :
1998 (2) SCC 301 .
54 Mary Roy v. State of Kerala,

(1986) 2 SCC 209 [
LNIND 1986 SC 44 ], p. 216 :
AIR 1986 SC 1011 [
LNIND 1986 SC 44 ]; Nagpur Improvement Trust v. Amrik Singh,
AIR 2002 SC 3499 [
LNIND 2002 SC 608 ], p. 3512 :
(2002) 7 SCC 657 [
LNIND 2002 SC 608 ].
55 Ramsarup v. Munshi,
AIR 1963 SC 553 [
LNIND 1962 SC 286 ], p. 558 :
1963 (3) SCR 858 [
LNIND 1962 SC 286 ]; Nagpur Improvement Trus v. Amrik Singh,
Mr.Srikanth -
Page 50 of 76
AIR 2002 SC 3499 [

LNIND 2002 SC 608 ], p. 3512 :
(2002) 7 SCC 657 [
LNIND 2002 SC 608 ].
56 Wood's Estate, Ex parte, Works and Buildings Commrs., Re,

(1886) 31 Ch D 607 , p. 615; Ram Kripal Bhagat v. State of Bihar,
AIR 1970 SC 951 [
LNIND 1969 SC 453 ], p. 957 :
(1969) 3 SCC 471 [
LNIND 1969 SC 453 ]; Bolani Ores Ltd. v. State of Orissa,
AIR 1975 SC 17 [
LNIND 1974 SC 286 ], p. 29 :
1975 (2) SCR 138 [
LNIND 1974 SC 286 ] :
(1974) 2 SCC 777 [
LNIND 1974 SC 286 ]; Mahindra and Mahindra Ltd. v. Union of India,
AIR 1979 SC 798 [
LNIND 1979 SC 59 ], pp. 810, 811 :
(1979) 2 SCC 529 [
LNIND 1979 SC 59 ]; Onkarlal Nandlal v. State of Rajasthan,
(1985) 4 SCC 404 [
LNIND 1985 SC 292 ], p. 415 :
AIR 1986 SC 2146 [
LNIND 1985 SC 292 ]; Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income-tax,
AIR 1999 SC 1455 [
LNIND 1999 SC 1473 ], p. 1459 :
(1999) 4 SCC 306 [
LNIND 1999 SC 1473 ] (p. 233 of 7th edition of this book is approvingly quoted).
57 Narottamdas v. State of M.P.,

AIR 1964 SC 1667 [
LNIND 1964 SC 148 ], p. 1670 :
(1964) 7 SCR 820 [
LNIND 1964 SC 148 ]; Bolani Ores Ltd. v. State of Orissa, supra;
(1964) 7 SCR 820 [
LNIND 1964 SC 148 ]; Bolani Ores Ltd. v. State of Orissa, supra; Mahindra
and Mahindra Ltd. v. Union of India, supra; Nagpur Improvement Trust v. Amrik Singh, supra;
Sneh Enterprises v. Commr. of Customs,
(2006) 7 SCC 714 [
LNIND 2006 SC 699 ] (para 13) :
(2006) 8 JT 587 :
(2006) 7 SLT 615 (passage from 10th edition of this book is approvingly quoted).
58 Clarke v. Bradlaugh,
(1881) 8 QBD 63 , p. 69; referred to in Ramsarup v. Munshi,
AIR 1963 SC 553 [
LNIND 1962 SC 286 ], p. 558 :
(1963) 3 SCR 858 [
LNIND 1962 SC 286 ]; Collector of Customs, Madras v. Nathelal Sampathu Chetty,
AIR 1962 SC 316 [
LNIND 1961 SC 312 ], p. 334 :
(1962) 3 SCR 786 [
LNIND 1961 SC 312 ]. See further Jethanand Betab v. State of Delhi,
AIR 1960 SC 89 [
LNIND 1959 SC 163 ], pp. 91, 92 :
(1960) 1 SCR 755 [
LNIND 1959 SC 163 ]; Bolani Ores Ltd. v. State of Orissa, supra; Mahindra
and Mahindra Ltd. v. Union of India, supra; Nagpur Improvement Trust v. Amrik Singh, supra .
Mr.Srikanth -
Page 51 of 76
59 Secretary of State v. Hindustan Co-operative Insurance Society Ltd.,

AIR 1931 PC 149 , p. 152. Referred to in Chairman of the Municipal Commrs. of Howrah v.
Shalimar Wood Products (Private) Ltd.,
AIR 1962 SC 1691 [
LNIND 1962 SC 129 ], p. 1694 :
1963 (1) SCR 47 [
AIR 1975 SC 17 [
LNIND 1974 SC 286 ], p. 29 :
1974 (2) SCC 777 [
LNIND 1974 SC 286 ]; Mahindra and Mahindra Ltd. v. Union of India,
AIR 1979 SC 798 [
LNIND 1979 SC 59 ], pp. 810, 811 :
(1979) 2 SCC 529 [
LNIND 1979 SC 59 ].
60 State of Maharashtra v. Madhavrao Damodar Patil,

AIR 1968 SC 1395 [
LNIND 1968 SC 103 ], p. 1400 :
1968 (3) SCR 712 [
LNIND 1968 SC 103 ].
61 See text and notes 80-97, 1-15, pp. 313-321.
62 See text and notes 85-92, pp. 315-317.
63 See text and notes 81-84, pp. 314, 315.
64 Rajasthan State Road Transport Corporation Jaipur v. Poonam Pahwa,

AIR 1997 SC 2951 [
LNIND 1997 SC 2030 ], p. 2957 :
1997 (6) SCC 100 [
LNIND 1997 SC 2030 ]. Also see text and note 60, supra.
65 Secretary of State v. Hindustan Co-operative Insurance Society Ltd., supra.
66 Chairman of the Municipal Commissioners of Howrah v. Shalimar Wood Products, (Private) Ltd.,
AIR 1962 SC 1691 [
LNIND 1962 SC 129 ], p. 1694 :
1963 (1) SCR 47 [
LNIND 1962 SC 129 ].
67
AIR 1931 PC 149 . See also text and notes 59 (p. 308) and 65 (p. 309).
68 Ramsarup v. Munshi,
AIR 1963 SC 553 [
LNIND 1962 SC 286 ], p. 558 :
1963 (3) SCR 858 [
LNIND 1962 SC 286 ]. See further Narottamdas v. State of M.P.,
AIR 1964 SC 1667 [
LNIND 1964 SC 148 ], p. 1670 (para 6) :
Mr.Srikanth -
Page 52 of 76
1964 (7) SCR 820 [

LNIND 1964 SC 148 ].
69 Bolani Ores Ltd. v. State of Orissa,

AIR 1975 SC 17 [
LNIND 1974 SC 286 ]:
(1974) 2 SCC 777 [
LNIND 1974 SC 286 ].
70 Mahindra and Mahindra Ltd. v. Union of India,

AIR 1979 SC 798 [
LNIND 1979 SC 59 ], p. 811 :
(1979) 2 SCC 529 [
LNIND 1979 SC 59 ].
71 Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union,

(2007) 4 SCC 685 [
LNIND 2007 SC 374 ] :
(2007) 4 JT 573 :
(2007) 2 LLJ 825 [
LNIND 2007 SC 374 ] :
AIR 2007 SC 2320 [
LNIND 2007 SC 374 ].
72 Mithanlal v. State of Delhi,

AIR 1958 SC 682 [
LNIND 1958 SC 45 ], pp. 885, 886 :
1959 SCR 445 [
LNIND 1958 SC 45 ]; Bhaiyalal Shukla v. State of Madhya Pradesh,
AIR 1962 SC 981 [
LNIND 1961 SC 401 ], p. 985 : 1962 Supp (2) SCR 257. See further Vaijnath
v. Guramma,
JT 1998 (8) SC 125 , p. 127 :
1998 (6) Scale 248 [
LNIND 1998 SC 1489 ] :
(1999) 1 SCC 272 :
AIR 1999 SC 555 [
LNIND 1998 SC 1489 ].
73 Ibid.
74
AIR 1997 SC 2847 [
LNIND 1996 SC 2181 ], p. 2896 :
(1997) 7 SCC 339 [
LNIND 1996 SC 2181 ].
75 Krishnachandra Gangopadhyaya v. Union of India,

AIR 1975 SC 1389 [
LNIND 1975 SC 161 ]:
(1975) 2 SCC 302 [
LNIND 1975 SC 161 ]. For another case of the same nature, see District Mining
Officer v. Tata Iron & Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ]:
Mr.Srikanth -
Page 53 of 76
(2001) 7 SCC 358 [

LNIND 2001 SC 1542 ].
76 Bachan Singh v. Union of India,

AIR 1973 SC 441 , p. 443 :
(1972) 3 SCC 489 ; S.B. Patwardhana v. State of Maharashtra,
AIR 1977 SC 2051 [
LNIND 1977 SC 208 ], p. 2067 :
(1977) 3 SCC 399 [
LNIND 1977 SC 208 ] : 1977 SCC (L&S) 391.
77 Hindu Women's Right to Property Act, In re

AIR 1941 FC 72 : 1941 FCR 12. See for this case page 539 infra.
78 Vaijnath v. Guramma,
AIR 1999 SC 555 [
LNIND 1998 SC 1489 ]:
(1999) 1 SCC 292 [
LNIND 1998 SC 1489 ].
79 Ibid.
80 Rajputana Mining Agencies v. Union of India,

AIR 1961 SC 56 [
LNIND 1960 SC 187 ]:
1961 (1) SCR 453 [
LNIND 1960 SC 187 ].
81 Sutherland: Statutory Construction, Vol. 2 (3rd Edition), p. 550 and Supplement (1956), p. 119; Bajya v. Gopikabai
(Smt.),
AIR 1978 SC 793 [
LNIND 1978 SC 120 ], p. 797 :
(1978) 2 SCC 542 [
LNIND 1978 SC 120 ].
82 Bajya v. Gopikabai (Smt.),

AIR 1978 SC 793 [
LNIND 1978 SC 120 ], p. 797 :
(1978) 2 SCC 542 [
LNIND 1978 SC 120 ]. Compare and contrast Hira v. Kasturibai,
1996 (6) Scale 699 [
LNIND 1996 SC 1388 ] :
1996 (6) SCC 82 [
LNIND 1996 SC 1388 ] (A case under section 83 of the Madhya Bharat Land Revenue and
Tenancy Act which makes no reference to personal law and, therefore, remained unaffected by the
Hindu Succession Act, 1956 ). Bajya's case was followed in construing
Article 366(1) of the Constitution which defines ‘agricultural income’ to mean ‘agricultural income as defined for
the purposes of the enactments relating to Indian income-tax’. It was held that here the reference was not to any particular
income-tax Act and, therefore, the definition in Article 366(1) will mean agricultural income as it is defined at the
relevant time in the statute then current relating to income-tax: Singhai Rakesh Kumar v. Union of India,
AIR 2001 SC 390 [
LNIND 2000 SC 1672 ], p. 392 :
(2001) 1 SCC 364 [
LNIND 2000 SC 1672 ].
Mr.Srikanth -
Page 54 of 76
83 Yuri Maru v. Waron,

1927 AC 906 (PC).
84 M.V. Elisabeth v. Harwan Investment and Trading Pvt.

Ltd.,
AIR 1993 SC 1014 [
LNIND 1992 SC 194 ]: 1993 Supp (2) SCC 433, pp. 1024, 1034 :
1992 (2) JT 65 [
LNIND 1992 SC 194 ]. See further Epoch Enterrepots v. M.V. Wonfu,
AIR 2003 SC 24 [
LNIND 2002 SC 671 ], p. 27 :
(2003) 1 SCC 305 [
LNIND 2002 SC 671 ], p. 310.
85 Collector of Customs, Madras v. Nathelal Sampathu Chetty,

AIR 1962 SC 316 [
LNIND 1961 SC 312 ], p. 336 :
1962 (3) SCR 786 [
LNIND 1961 SC 312 ] (In this case it was held that there was no incorporation of the Sea
Customs Act , 1878 in
section 23-A of the Foreign Exchange Regulation Act , 1947); Ram Kripal Bhagat v. State of Bihar,
AIR 1970 SC 951 [
LNIND 1969 SC 453 ], p. 955 :
1969 (3) SCC 471 [
LNIND 1969 SC 453 ] (Section 19 of the Sea
Customs Act , 1878, is not incorporated in section 3(2) of the Imports and Exports Control Act, 1947); New Central
Jute Mills Co. Ltd. v. Assistant Collector of Central Excise,
AIR 1971 SC 451 , p. 457 :
1970 (2) SCC 820 [
LNIND 1970 SC 352 ]. (Section 12 of the Central Excises and Salt Act, 1944, does not
incorporate the provisions of the Sea
Customs Act , 1878, but only refers to them, and therefore, after its repeal, the provisions of
Customs Act, 1962 can be read in their place); Western Coal Fields Ltd. v. Spl. Area Development Authority,
AIR 1982 SC 697 [
LNIND 1981 SC 446 ], p. 703 :
(1982) 1 SCC 125 [
LNIND 1981 SC 446 ]; State of Kerala v. Attessee (AIT Corpn.),
AIR 1989 SC 222 [
LNIND 1988 SC 915 ], pp. 226, 228 : 1989 Supp (1) SCC 733; Ujagar Prints v. Union of India,
AIR 1989 SC 516 [
LNIND 1988 SC 548 ], pp. 540, 541 :
(1989) 3 SCC 488 [
LNIND 1988 SC 548 ]; Bhatinda Improvement Trust v. Balwant Singh,
AIR 1992 SC 2214 [
LNIND 1991 SC 449 ], p. 2217 :
(1991) 4 SCC 368 [
LNIND 1991 SC 449 ] (
Land Acquisition Act 1894 is not incorporated in Punjab Town Improvement Act, 1922 but is only referred with
certain amendments); U.P. Avas Evam Vikas Parishad v. Jainul Islam,
JT 1998 (1) SC 231 [
LNIND 1998 SC 89 ], p. 243 :
AIR 1998 SC 1028 [
LNIND 1998 SC 89 ], p. 1035 :
(1998) 2 SCC 467 [
LNIND 1998 SC 89 ] (Distinction between mere reference and incorporation); Nagpur
Improvement Trust v. Vasantrao,
AIR 2002 SC 3499 [
LNIND 2002 SC 608 ], pp. 3511, 3512 :
(2002) 7 SCC 657 [
LNIND 2002 SC 608 ]; Sneh Enterprises v. Commr.of Customs,
(2006) 7 SCC 714 [
LNIND 2006 SC 699 ] (para 14) :
(2006) 8 JT 587 . In Agarwal Trading Corporation v. Assistant Collector of Customs,
AIR 1972 SC 648 [
Mr.Srikanth -
Page 55 of 76
LNIND 1972 SC 26 ], p. 653 :

(1972) 1 SCC 553 [
LNIND 1972 SC 26 ], there are observations that
section 23-A of the Foreign Exchange Regulation Act , 1947 incorporates the provisions of the Sea
Customs Act without noticing the contrary decision in Collector of Customs, Madras v. Nathelal Sampathu Chetty,
AIR 1962 SC 316 [
LNIND 1961 SC 312 ], p. 336 :
1962 (3) SCR 786 [
LNIND 1961 SC 312 ]; P.C. Agarwala v. Payment of Wages Inspector MP,
(2005) 8 SCC 104 , pp. 117, 118. See further
section 8 of the General Clauses Act, 1897 .
86 Ibid.
87 Maharashtra State Road Transport Corporation v. State of Maharashtra, 2003 AIR SCW 1388, p.
1394 :
(2003) 4 SCC 200 [
LNIND 2003 SC 278 ], p. 208 :
AIR 2003 SC 1909 [
LNIND 2003 SC 278 ]; Bharat Coop Bank (Mumbai) Ltd. v. Coop. Bank Employees Union,
(2007) 4 SCC 685 [
LNIND 2007 SC 374 ] (para 21) :
(2007) 4 JT 553 :
(2007) 2 LLJ 825 [
LNIND 2007 SC 374 ].
88 Western Coal Fields Ltd. v. Special Area Development Authority,

AIR 1982 SC 697 [
LNIND 1981 SC 446 ]:
(1982) 1 SCC 125 [
LNIND 1981 SC 446 ].
89 Special Land Acquisition Officer, City Improvement Trust, Mysore v. P. Govindan,

AIR 1976 SC 2517 [
LNIND 1976 SC 322 ]:
(1976) 4 SCC 697 [
LNIND 1976 SC 322 ].
91 Pratap Singh (Dr.) v. Director of Enforcement,

(1985) 3 SCC 72 [
LNIND 1985 SC 153 ] :
AIR 1985 SC 989 [
LNIND 1985 SC 153 ].
92 Ibid, p. 80. See for a similar provision Prints v. Union of India,

AIR 1989 SC 516 [
LNIND 1988 SC 548 ], p. 541 :
(1989) 3 SCC 488 [
LNIND 1988 SC 548 ].
93 Gauri Shanker Gaur v. State of U.P.,

AIR 1994 SC 169 : 1994 (1) SCC 92.
Mr.Srikanth -
Page 56 of 76
94 Ibid, p. 188 (AIR). The judgment of K. Ramaswamy J. in this case is relied upon in State of
Maharashtra v. Sant Joginder Singh,
1995(2) Scale 121 , p. 125 :
AIR 1995 SC 2181 [
LNIND 1995 SC 273 ], p. 2184 : 1995 Supp (2) SCC 475 without referring to the judgment of
Sahai J.
95 U.P. Avas Evam Vikas Parishad Lucknow v. Pushpa Lata Awasthi,

(1995) 3 SCC 573 [
LNIND 1995 SC 326 ]; Ramesh Chandra Tiwari v. U. P. Awas Evam Vikas Parishad, Lucknow,
1996 1997 AIR SCW 2312 ; Satya Pal v. State of U. P.,
AIR 1997 SC 2235 [
1997 (9) SCC 117 [
LNINDORD 1996 SC 176 ].
96
JT 1998 (1) SC 231 [
LNIND 1998 SC 89 ], p. 245 :
AIR 1998 SC 1028 [
LNIND 1998 SC 89 ], p. 1037 :
(1998) 2 SCC 467 [
LNIND 1998 SC 89 ].
97 Ibid, p. 1041 (AIR).
1
AIR 1931 PC 149 .
3
AIR 1998 SC 1028 [
LNIND 1998 SC 89 ], p. 1041 :
(1998) 2 SCC 467 [
LNIND 1998 SC 89 ].
4
AIR 2002 SC 3499 [
LNIND 2002 SC 608 ]:
(2002) 7 SCC 7657 . Followed in Maharashtra State Road Transport Corporation v. State of
Maharashtra, 2003 AIR SCW 1388 :
AIR 2003 SC 1909 [
LNIND 2003 SC 278 ];
Savitri Cairae v. U.P. Avas Evam Vikas Parishad,
(2003) 6 SCC 255 [
LNIND 2003 SC 497 ]. But not applied to acquisitions under the Defence of India Act 1971 :
Union of India v. Chajju Ram,
(2003) 5 SCC 568 [
LNIND 2003 SC 441 ] :
AIR 2003 SC 2339 [
LNIND 2003 SC 441 ] or to acquisitions under the W.B. Land (Requisition and Acquisition) Act,
Mr.Srikanth -
Page 57 of 76
1948: State of W.B. v. Kedarnath Rajgarhia Charit Trust Estate,

(2004) 12 SCC 425 .
5 Cases in notes 96, 3 and 4. See further Maharashtra State Road Transport Corporation v. State of
Maharashtra (case related to Maharashtra Regional Town Planning Act, 1966):
(2003) 4 SCC 200 [
LNIND 2003 SC 278 ] :
AIR 2003 SC 1909 [
LNIND 2003 SC 278 ].
6
(1995) 2 Scale 121 :
AIR 1995 SC 2181 [
LNIND 1995 SC 273 ].
7 Girnar Traders v. State of Maharashtra,

(2004) 8 SCC 505 [
LNIND 2004 SC 1072 ] : (2004) 8 scale 764.
8 State of Madhya Pradesh v. M.V. Narsimhan,

AIR 1975 SC 1835 [
LNIND 1975 SC 212 ], p. 1841:
1976 SCC (Cri) 589 :
(1975) 2 SCC 377 [
LNIND 1975 SC 212 ].
9 State of Kerala v. Attesee (AIT Corpn.),

AIR 1989 SC 222 [
10 Ibid, p. 228.
11 Ibid, p. 230. The exceptions pointed out in State of M.P. v. M. Narsimham, were again referred to in
Ujagar Prints v. Union of India,
AIR 1989 SC 516 [
LNIND 1988 SC 548 ], p. 541 :
1989 (3) SCC 488 [
LNIND 1988 SC 548 ]; U.P. U.P. Avas Evam Vikas Parishad v. Jainul Islam,
AIR 1998 SC 1028 [
LNIND 1998 SC 89 ], pp. 1035, 1036 :
1998 (2) SCC 467 [
LNIND 1998 SC 89 ].
13 Mariyappa v. State of Karnataka,

JT 1998 (1) SC 734 [
LNIND 1998 SC 222 ], p. 748 :
AIR 1998 SC 1334 [
LNIND 1998 SC 222 ], p. 1343 :
(1998) 3 SCC 276 [
LNIND 1998 SC 222 ].
Mr.Srikanth -
Page 58 of 76
14
AIR 1998 SC 1028 [
LNIND 1998 SC 89 ] discussed at pp. 318-19, supra.
15 Munithimmaiah v. State of Karnataka,

AIR 2002 SC 1574 [
LNIND 2002 SC 244 ], p. 1581 :
(2002) 4 SCC 326 [
LNIND 2002 SC 244 ].
16 Portsmouth Corporation v. Smith,

(1885) 10 AC 364 , p. 371 (HL).
17
AIR 1999 SC 1455 [
LNIND 1999 SC 1473 ], p. 1459 :
1999 (4) SCC 306 [
LNIND 1999 SC 1473 ].
18 Ibid, p. 1460. See further Sneh Enterprises v. Commr. of Customs,

(2006) 7 SCC 714 [
LNIND 2006 SC 699 ] (para 18) :
(2006) 8 JT 587 .
19 Case in Note 16, supra.
20 Onkarlal Nandlal v. State of Rajasthan,

(1985) 4 SCC 404 [
LNIND 1985 SC 292 ], pp. 415, 416 : 1986 AIR SC 2146.
21 Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd.,
(2007) 6 SCC 236 [
LNIND 2007 SC 420 ] :
AIR 2007 SC 1584 [
LNIND 2007 SC 420 ].
22 Paresh Chandra Chatterjee v. State of

Assam,
AIR 1962 SC 167 [
LNIND 1961 SC 268 ], pp. 170, 171 :
(1962) 3 SCR 88 [
LNIND 1961 SC 268 ]. For meaning of the expression mutatis mutandis. See
further Ashok Service Centre v. State of Orissa,
1983 (2) SCC 82 [
LNIND 1983 SC 62 ] :
AIR 1983 SC 394 [
LNIND 1983 SC 62 ]; Mariyappa v. State of Karnataka,
JT 1998 (1) SC 734 [
LNIND 1998 SC 222 ], p. 741 :
AIR 1998 SC 1334 [
LNIND 1998 SC 222 ]:
1998 (3) SCC 276 [
LNIND 1998 SC 222 ]; Prahlad Sharma v. State of U.P.,
(2004) 4 SCC 113 [
Mr.Srikanth -
Page 59 of 76
LNIND 2004 SC 253 ], p. 120 :

AIR 2004 SC 2705 [
LNIND 2004 SC 253 ].
23 Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H.N. Narayanaiah,
AIR 1976 SC 2403 [
LNIND 1976 SC 264 ], p. 2412 :
(1976) 4 SCC 9 [
LNIND 1976 SC 264 ].
24 Narottamdas v. State of M.P.,

AIR 1964 SC 1667 [
LNIND 1964 SC 148 ], p. 1670 (para 6) :
1964 (7) SCR 820 [
LNIND 1964 SC 148 ].
25 Willingale v. Norris,
(1909) 1 KB 57 , p. 66; referred to in Phillips v. Parnaby,
(1934) 2 KB 299 , p. 304. See further R. v. Eaton,
(1881) 8 QBD 158 , p. 160; Livingstone v. Westminster Corporation,
(1904) 2 KB 109 , p. 117; Minister of Housing and Local Government v. Hartnell,
(1965) 1 All ER 490 , p. 494 (HL); Farid Ahmad Abdul Samad v. Municipal Corporation of the
City of Ahmedabad,
AIR 1976 SC 2095 [
LNIND 1976 SC 240 ], p. 2101 :
1976 (3) SCC 719 [
LNIND 1976 SC 240 ], p. 726. (Beneficial laws have to be simple and self-contained. To
introduce provisions of another Act referentially in vital matters creates avoidable difficulties and litigation highlighted by the case
in hand).
26 Knill v. Towse,
(1890) 24 QBD 186 , pp. 195, 196 (MAthew, J., for the Court, Lord Coleridge, C.J., and
himself).
27 Minister of Housing and Local Govt. v. Hartnell, supra, p. 494 (letters F, G).
28 Lord Brightman, Drafting Quagmires, (2002) 23 Statute Law Review 1.
29 Halsbury: Laws of England (4th Edition), Vol. 44, p. 489 (para 809). Codification “Systematizes Case-Law as well as
Statutes”; paton: Jurisprudence, 3rd Edition, p. 215.
30 Board of Trustees of the Port of Bombay v. Sriyanesh Knitters,

AIR 1999 SC 2947 [
LNIND 1999 SC 1590 ], p. 2952 :
(1999) 7 SCC 114 [
LNIND 1999 SC 653 ].
31 Ibid.
Mr.Srikanth -
Page 60 of 76
33 Bank of England v. Vagliano Brothers,

(1891) AC 107 , pp. 144, 145 : 7 TLR 333 (HL); referred to in Norendra Nath Sarcar v.
Kamalbasini Dasi, ILR 23 Cal 563, pp. 571, 572 (PC); Ravulu Subbarao v. CIT, Madras,
AIR 1956 SC 604 [
LNIND 1956 SC 49 ], p. 610 :
1956 SCR 199 [
LNIND 1956 SC 23 ]; Sales Tax Officer, Banaras v. Kanhaiya Lal Mukund Lal Saraf,
AIR 1959 SC 135 [
LNIND 1958 SC 107 ], pp. 139, 140 :
1959 SCR 1350 [
LNIND 1958 SC 107 ]; Union of India v. Mohendra Supply Co.,
AIR 1962 SC 256 [
LNIND 1961 SC 295 ], p. 260 :
(1962) 3 SCR 497 [
LNIND 1961 SC 295 ]; R. v. Fulling,
(1987) 2 All ER 65 , p. 69 (CA).
34 Gokul Mandar v. Pudmanund Singh, ILR 29 Cal 707, p. 715 (PC); Joseph Peter v. State of Goa,
Daman and Diu,
AIR 1977 SC 1812 [
LNIND 1977 SC 209 ], p. 1814 :
1977 SCC (Cri) 486 :
(1977) 3 SCC 280 [
LNIND 1977 SC 209 ]. (A Code is self contained and complete and that marks the distinction
between a Code and an ordinary enactment); Pioneer Aggregates (U.K.) Ltd. v. Secretary of State for the Environment,
(1984) 2 All ER 358 , p. 363 :
1985 AC 132 :
(1984) 3 WLR 302 (HL) (“Where the code is silent or ambiguous resort to the principles of
private law may be necessary so that the courts may resolve difficulties by application of common law or equitable principles. But
such cases will be exceptional. And, if the statute law covers the situation it will be an impermissible exercise of the judicial
function to go beyond the statutory provision by applying such principles merely because they may appear to achieve a fairer
solution to the problem being considered.”)
35 L. Janakirama Iyer v. P.P.M. Nilkanto Iyer,

AIR 1962 SC 633 [
LNIND 1961 SC 338 ], p. 641 : 1962 Supp (1) SCR 206. See also Gulabchand
v. State of Gujarat,
AIR 1965 SC 1153 [
LNIND 1964 SC 351 ], p. 1163 :
1965 (2) SCR 547 [
LNIND 1964 SC 351 ].
36 King Emperor v. Dahu Raut,

AIR 1935 PC 89 .
37 Macqbul Ahmed v. Onkar Pratap Narain Singh,

AIR 1935 PC 85 .
38 CWT v. Chander Sen,

(1986) 3 SCC 567 [
LNIND 1986 SC 214 ], p. 577 :
AIR 1986 SC 1753 [
LNIND 1986 SC 214 ].
39 Board of Trustees of the Port of Bombay v. Sriyanesh Knitters,

AIR 1999 SC 2947 [
LNIND 1999 SC 1590 ], p. 2952 :
Mr.Srikanth -
Page 61 of 76
1999 (7) SCC 114 [

LNIND 1999 SC 653 ]. See further the observations of House of Lords quoted in f.n. 34, supra.
40 Mumbai Kamgar Sabha, Bombay v. Abdullbhai Faizullabhai,

AIR 1976 SC 1455 [
LNIND 1976 SC 84 ]:
1976 (3) SCC 832 [
LNIND 1976 SC 84 ].
41 Halsbury: Laws of England, (4th Edition), Vol. 44, p. 489 (para 809).
42 IRC v. Hinchy,
(1960) 1 All ER 505 , p. 512 :
1960 AC 748 (HL); Beswick v. Beswick,
(1967) 2 All ER 1197 , pp. 1202, 1206, 1209, 1223 (HL); Director of Public Prosecutions v.
Schildkamp,
(1969) 3 All ER 1640 , pp. 1641, 1642, 1645, 1647, 1652 :
1971 AC 1 (HL); Maunsell v. Olins,
(1975) 1 All ER 16 , pp. 17, 19, 20 (HL).
43 Grey v. IRC,
(1959) 3 All ER 603 , p. 606 (HL); Beswick v. Beswick,
(1967) 2 All ER 1197 , pp. 1202, 1206, 1209, 1223 (HL).
44 IRC v. Hinchy,
(1960) 1 All ER 505 :
1960 AC 748 (HL);
(1975) 1 All ER 16 (HL).
45 Mitchel v. Simpson,
(1890) 25 QBD 183 , pp. 185, 186, 189, 190 (CA); O'Toole v. Scott,
(1965) 2 All ER 240 , pp. 246, 247 (PC).

(1969) 3 All ER 1640 , pp. 1641, 1642, 1645, 1647, 1652 :
1971 AC 1 (HL). In this case the question related to the construction of
section 332(3) of the Companies Act , 1948 which had its origin in
section 75(3) of the Companies Act , 1928 and, therefore, the question was considered as if it were a question of
construction of the 1928 Act and was answered in the light of the provisions of that Act.
47 General Electric Co. v. General Electric Co. Ltd.,

(1972) 2 All ER 507 , p. 518 (HL). In this case in construing certain provisions of the
Trade Marks Act , 1938 all the previous Acts beginning from 1875 and the common law then existing were
considered.
48 Higgs & Hill Ltd. v. Stepney Borough Council,

(1914) 1 KB 505 , p. 510.
49 R. v. Butt,
(1960) 1 All ER 424 , p. 427 (DC); IRC v. Hinchy, supra, p. 511.
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50 Irrawady Flotilla Co. v. Bugwandas,

(1891) ILR 18 Cal 620, pp. 627 to 629 (PC). It was held that the Indian
Carriers Act, 1865 , and liability of common carriers were not affected by
sections 151 and
152 of
Indian Contract Act .
(1967) 2 All ER 1197 :
1968 AC 58 (HL). The rule that a person who is not a party to a contract cannot sue on it, even
if it purports to be made for his benefit, has not been abrogated by section 56 of the Law of Property Act, 1925.
52 Administrator General of Bengal v. Premlal Mullick, ILR 22 Cal 788, p. 798 (PC).
53 Williams v. Permanent Trustee Co. of New South Wales,

(1906) AC 248 , p. 253 (PC).
54 Administrator General of Bengal v. Premlal Mullick, supra, p. 798.
55 Sydney Municipal Council v. Bourke,

(1895) AC 433 , pp. 438, 439 (PC).
56 Food Controller v. Cork,

(1923) All ER Rep 463 , p. 471 (HL).
57 Ramdas Vithaldas Durbar v. Amerchand & Co.,

(1916) ILR 40 Bom 630, p. 636 (PC).
58 Grey v. IRC,
(1959) 3 All ER 603 , p. 607 (HL). See further Thakur Amar Singhji v. State of
Rajasthan,
AIR 1955 SC 504 [
LNIND 1955 SC 36 ], p. 526 :
(1955) 2 SCR 303 [
LNIND 1955 SC 36 ].
60 Conservators of the River Thames v. Smeed, Dean & Co.,

(1897) 2 QB 334 , p. 346 (CA); Conservators of the River Thames v. Smeed, Dean & Co.,
(1916) 2 Ch 57 , p. 63.
61 Ravulu Subbarao v. CIT, Madras,

AIR 1956 SC 604 [
LNIND 1956 SC 49 ], p. 660 :
1956 SCR 577 [
LNIND 1956 SC 49 ].
Mr.Srikanth -
Page 63 of 76
62 Sales Tax Officer, Banaras v. Kanhaiya Lal Mukund Lal Saraf,

AIR 1959 SC 135 [
LNIND 1958 SC 107 ], pp. 139, 140 :
1959 SCR 1350 [
LNIND 1958 SC 107 ].
63 Union of India v. Mohendra Supply Co.,

AIR 1962 SC 256 [
LNIND 1961 SC 295 ], p. 260 :
1962 (3) SCR 497 [
LNIND 1961 SC 295 ].
64 Re, Budgett, Cooper v. Adams,

(1894) 2 Ch 557 , pp. 561, 562.
65 Maxwell on Statutes, 11th Edition, p. 24.
66 Inland Revenue Commissioner v. Joiner,

(1975) 3 All ER 1050 , pp. 1057, 1059, 1060 :
(1975) 1 WLR 1701 (HL); Metropolitan Police Commissioner v. Curran,
(1976) 1 All ER 162 , p. 168 (HL).
67 Maunsell v. Olins,
(1975) 1 All ER 16 (HL); Farrel v. Alexander,
(1976) 2 All ER 721 , pp. 725, 726, 733, 735, 746 :
(1995) 2 WLR 570 (HL); Sheldon v. RHM Outhwaite Ltd.,
(1995) 2 All ER 558 , p. 567 (HL); Lowsley v. Forbes,
(1998) 3 All ER 897 , p. 899 (HL); R. v. Secretary of State for the Environment, exparte Spath
Holme,
(2001) 1 All ER 196 , p. 208 (HL) (Reference to statutory predecessor may also be made if it be
helpful to see the social and factual context in which it was first enacted).
68 R. v. Heron,
(1982) 1 All ER 993 , p. 999 (HL).
69 Goods v. East Sussex County Council,

(2000) 3 All ER 603 , pp. 606, 607 :
(1982) 1 WLR 451 (HL) (construction of the Highways Act, 1959 the long title of which was
‘An Act to consolidate with amendments certain enactments relating to highways’).
70 Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO,

(2007) 5 SCC 447 [
LNIND 2007 SC 681 ] (para 82) :
AIR 2007 SC 1984 [
LNIND 2007 SC 681 ].
71 Optimus legum interpres est consuetudo; Contemporanea expositio est Optima et fortissima in lege.

AIR 1962 SC 159 , p. 162 :
1962 (3) SCR 146 .
Mr.Srikanth -
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73 Isherwood v. Oldknow, (1815) 3 M & S 382, p. 396; referred to in Bastin v. Davies,

(1950) 1 All ER 1095 , p. 1098 (Lord Goddard, C.J.).
74 Gorham v. Exeter (BP),

(1850) 15 QB 52 , p. 74 : 117 ER 377, p. 385.
75 Morgan v. Crawshay,
(1871) LR 5 HL 304, p. 315; referred to in Governors of Campbell College, etc. v. Commr. of
Valuation,
(1964) 2 All ER 705 , p. 727 (HL).
76 Ram Adhar Singh v. Bansi,

(1987) 2 SCC 482 [
LNIND 1987 SC 906 ], p. 485 :
AIR 1987 SC 987 [
LNIND 1987 SC 906 ].
77 Commr. for Special Purposes of Income-tax v. Pemsel,

(1891) AC 531 , pp. 590, 591 (HL).
79 Clyde Navigation Trustees VLAIRD, Laird,

(1883) 8 AC 658 , p. 673 (HL); Assheton Smith v. Owen,
(1906) 1 Ch 179 , p. 213; Goldsmiths' Co. v. Wyatt,
(1907) 1 KB 95 , p. 107 (CA); Senior Electric Inspector v. Laxminarayan Chopra,
AIR 1962 SC 159 , pp. 162 163 :
1962 (3) SCR 146 ; Raja Ram Jaiswal v. State of Bihar,
AIR 1964 SC 828 [
LNIND 1963 SC 94 ], p. 836 :
(1964) 2 SCR 528 ; J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India,
AIR 1988 SC 191 [
LNIND 1987 SC 728 ], p. 204 :
1987 (4) JT 421 ; Doypack Systems Pvt. Ltd. v. Union of India,
AIR 1988 SC 782 [
LNIND 1988 SC 589 ], p. 802 :
1988 (2) SCC 299 [
LNIND 1988 SC 589 ] [Reference is made to 3rd Edition of this book (pages 238 and 239)].
80 Punjab Traders v. State of Punjab,

AIR 1990 SC 2300 [
LNIND 1990 SC 553 ], p. 2304 :
1991 (1) SCC 86 [
LNIND 1990 SC 553 ].
81 Governors of Campbell College etc. v. Commr. of Valuation,

(1964) 1 All ER 705 , p. 727 (HL) (lord upjohn); Doypack Systems Pvt. Ltd. v. Union of India,
supra, p. 802.
82 Clyde Navigation Trustees v. Laird,

(1883) 8 AC 658 , p. 673 (HL), referred to in Goldsmiths' Co. v. Wyatt,
Mr.Srikanth -
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(1907) 1 KB 95 , p. 107 (CA) Doypack Systems Pvt. Ltd. v. Union of India,

supra, p. 802.

AIR 1962 SC 159 , pp. 162, 163 :
1962 (3) SCR 146 .
84 Raja Ram Jaiswal v. State of Bihar,

AIR 1964 SC 828 [
LNIND 1963 SC 94 ], p. 836 :
1964 (2) SCR 752 [
LNIND 1963 SC 94 ].
85 National & Grindlays Bank v. Municipal Corporation for Greater Bombay,

AIR 1969 SC 1048 [
LNIND 1969 SC 42 ]:
(1969) 1 SCC 541 [
LNIND 1969 SC 42 ].
86 Supra, p. 670.
87 R.S. Nayak v. A. R. Antuley,

(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], p. 216 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ].

AIR 1994 SC 268 , p. 431 :
1993 (4) SCC 441 (para 479). See further Naga Peoples Movement of Human
Rights v. Union of India,
AIR 1998 SC 431 [
LNIND 1997 SC 1511 ], p. 460 :
1998 (2) SCC 109 [
LNIND 1997 SC 1511 ].

(1964) 2 All ER 705 , p. 727 :
(1964) 1 WLR 912 (HL).
90
(1891) AC 531 (HL).
91 (1914) 2 Ir R 447 ; Sub-nom, O'Neill v. Commr. of Valuation.
92 Ibid.

(1964) 2 All ER 705 , p. 717 (HL).
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2 Ibid, p. 727.
3 Supra, note 91.
4 Birmingham City Corporation v. West Midland Baptist,

(1969) 3 All ER 172 (HL).
5 R. v. Sheppard,
(1980) 3 All ER 899 , p. 906 :
1981 AC 394 :
(1980) 3 WLR 960 (HL). See further Hemens (Valuation Officer) v. Whitsbury
Farm and Stud Ltd.,
(1987) 1 All ER 430 , p. 438 :
1988 AC 601 (CA) (The courts will be duty bound to disturb even a long standing practice
which originated in a misunderstanding of a judicial decision).
6 Corpus Juris Secundum, Vol. 82, pp. 761 to 774. In Commissioner of Income-tax M.P. v. Anand Bahari Steel and Wire
Products,
1984 MPLJ 301 , p. 307 (G.P. Singh C.J.) relying upon Sutherland Statutory Construction, 3rd
Edn., pp. 520, 521, 523, 524 the same rule was stated as follows: “Where contemporaneous and practical interpretation has stood
unchallenged for a considerable length of time, it is regarded as of great importance in arriving at the proper construction of a
statute. Further such an interpretation gains greater weight when the statute as interpreted is re-enacted and is regarded
presumptively the correct interpretation of the law. This rule is based upon the theory that the legislature is acquainted with the
contemporaneous interpretation of a statute, especially when made by an administrative body or executive officers charged with the
duty of administering or enforcing the law, and, therefore, impliedly adops the interpretation upon re-enactment.”
7
(2004) 2 SCC 120 [
LNIND 2004 SC 11 ], p. 127 :
AIR 2004 SC 1391 [
LNIND 2004 SC 11 ], p. 1394.
8 Ibid.
9 Cross: Statutory Interpretation, 3rd Edition, p. 148. See further R. v. Wandsworth London Borough
Council, Ex parte, Beckwith,
(1996) 1 All ER 129 , p. 132 (J) :
(1996) 1 WLR 60 (HL) (The opinion of the Department concerned expressed in a circular is
entitled to respect but if it is wrong, it has to be ignored.)
10 See text and notes 12 to 26, pp. 335-38. See further Indian Metals and Ferro Alloys
Ltd. v, Collector of Central Excise,
AIR 1991 SC 1028 [
LNIND 1990 SC 734 ], p. 1034 : 1991 Supp (1) SCC 125 (contemporaneous exposition by
administrative authorities is a very useful and relevant guide); Keshavji Ravji and Co. v. Commissioner of Income Tax,
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ], p. 1817 :
(1990) 2 SCC 231 [
LNIND 1990 SC 60 ]; Raymand Synthetics Ltd. v. Union of India,
AIR 1992 SC 847 [
LNIND 1992 SC 936 ], p. 859 :
(1992) 2 SCC 255 [
LNIND 1992 SC 936 ] (The contemporaneous Construction placed upon an ambiguous section
Mr.Srikanth -
Page 67 of 76
by the administrators entrusted with the task of executing the statute is extremely significant); P. Kasilingam v. P.S.G. College of
Technology,
1995(2) Scale 387 [
LNIND 1995 SC 418 ], p. 397 :
AIR 1995 SC 1395 [
LNIND 1995 SC 418 ], p. 1400 : 1995 Supp (2) SCC 348 (Rules made under a statute can be
used as contemporanea ex-positio); Union of India v. Azadi Bachao Andolan,
AIR 2004 SC 1107 [
LNIND 2003 SC 853 ], p. 1124 : 2003 Supp (2) JT 205; Go dawat Pan Masala Products I.P.
(2004) 7 SCC 68 [
LNIND 2004 SC 737 ], p. 89; State of Karnataka v. Balaji Computers,
(2007) 2 SCC 743 [
LNIND 2006 SC 1167 ] (paras 3864) :
(2007) 1 JT 250 [
LNIND 2006 SC 1100 ] :
(2007) 1 SLT 393 . See further pp. 1002, 1003, for use of rules for construction of a statute.
11
AIR 2007 SC 2102 [
LNIND 2007 SC 679 ](para 24) :
(2007) 7 JT 381 (10th edition p. 319 of this book is referred).
12 Municipal Corporation for the City of Pune v. Bharat forge Col. Ltd.,
1995 (2) Scale 245 , p. 251:
AIR 1996 SC 2856 [
LNIND 1995 SC 369 ], p. 2861 :
(1993) 3 SCC 434 .
For quasi repeal by desuetude see title 8, Chapter 7.
13 Lohia Machines Ltd. v. Union of India,

(1985) 2 SCC 197 [
LNIND 1985 SC 572 ], pp. 223 to 226 :
AIR 1985 SC 421 [
LNIND 1985 SC 572 ].
14 N. Suresh Nathan v. Union of India,

AIR 1992 SC 564 [
LNIND 1991 SC 619 ]: 1992 Supp (1) SCC 584.
15 Ibid, p. 565.
16 State of Nagaland v. Ratan Singh,

AIR 1967 SC 212 [
LNIND 1966 SC 77 ], p. 222 :
1966 (3) SCR 830 [
LNIND 1966 SC 77 ].
17 Ibid.
18 National & Grindlays Bank v. Municipal Corporation, Greater Bombay,

AIR 1969 SC 1048 [
LNIND 1969 SC 42 ], pp. 1052, 1053 :
Mr.Srikanth -
Page 68 of 76
(1969) 1 SCC 541 [

LNIND 1969 SC 42 ]. See also text and note 85, p. 332.
19 Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, Pimpri,Waghere,

AIR 1976 SC 2463 [
LNIND 1976 SC 291 ], p. 2467 : 1976 SCC (Tax) 457 :
(1976) 4 SCC 177 [
LNIND 1976 SC 291 ]. On the question of use of delegated legislation for construction of the
Act, See further pp. 1001 to 1003.
20 Desh Bandhu Gupta & Co. v. Delhi Stock Exchange Association Ltd.,
AIR 1979 SC 1049 [
LNIND 1979 SC 151 ], p. 1054 :
(1979) 4 SCC 565 [
LNIND 1979 SC 151 ].
21 CIT, Madras v. K. Srinivasan,

AIR 1953 SC 113 [
LNIND 1952 SC 98 ], 118 :
1953 SCR 486 ; J.K. Steel Ltd. v. Union of India,
AIR 1970 SC 1173 [
LNIND 1968 SC 316 ], p. 1184 :
(1969) 2 SCR 481 [
LNIND 1968 SC 316 ]. As an instance of use of Government circular for construing a service
rule framed under the
Constitution see State of Mysore v. M.H. Bellary,
AIR 1965 SC 868 [
LNIND 1964 SC 105 ], p. 871 (para 5) :
1964 (7) SCR 471 [
LNIND 1964 SC 105 ].
22 Navnitlal C. Jhaveri v. R.K. Sen,

AIR 1965 SC 1375 [
LNIND 1964 SC 287 ]:
(1965) 1 SCR 909 [
LNIND 1964 SC 287 ]; Ellerman Lines Ltd. v. Commr. of Income-tax,
AIR 1972 SC 524 [
LNIND 1971 SC 548 ]:
(1972) 4 SCC 474 [
LNIND 1971 SC 548 ]; K.P. Verghese v. Income-tax Officer,
AIR 1981 SC 1922 [
LNIND 1981 SC 373 ], pp. 1932, 1933 :
(1981) 4 SCC 173 [
LNIND 1981 SC 373 ]. Keshavji Raoji & Co. v. Commr. of Income Tax,
(1990) 2 SCC 231 [
LNIND 1990 SC 60 ] : 1991 AIR SCW 1845 :
AIR 1991 SC 1806 [
LNIND 1990 SC 60 ]; Wilh Wilhelmsen v. Commissioner of Income Tax,
1996 (5) Scale 41 , p. 50 :
AIR 1996 SC 3364 [
LNIND 1996 SC 1026 ], p. 3369; Ranadey Micronutrients v. Collector of Central Excise,
1996 (6) Scale 702 , pp. 706, 707 :
AIR 1997 SC 69 [
LNIND 1996 SC 1432 ], pp. 72, 73; J.B. Doda & Co. Pvt. Ltd. v. Central Board of Direct Taxes,
AIR 1997 SC 1543 [
LNIND 1996 SC 2931 ], pp. 1548, 1549 :
(1997) 1 SCC 719 [
LNIND 1996 SC 2931 ]; Central Board of Direct Taxes v. Oberoi Hotels (India) Pvt. Ltd.,
AIR 1998 SC 1666 [
LNIND 1998 SC 378 ], pp. 1675, 1676 :
Mr.Srikanth -
Page 69 of 76
(1998) 4 SCC 552 [

LNIND 1998 SC 378 ]; UCO Bank, Calcutta v. Commissioner of Income-tax, West Bengal,
AIR 1999 SC 2082 [
LNIND 1999 SC 548 ], pp. 2085, 2089 :
(1999) 4 SCC 599 [
LNIND 1999 SC 548 ] (Circulars can seek to mitigate the rigour of a provision for the benefit of
the assessee but cannot detract from the Act to the prejudice of the assessee); Paper Products Ltd. v. Commissioner of Central
Excise,
1999 SC 3341 (Department cannot challenge the binding nature of the Circular); Karnataka
Small Scale Industries Development Corporation Ltd. v. Commissioner of Income-tax,
(2003) 7 SCC 224 , p. 231 (circular issued by Central Board of Direct Taxes relied upon as
contemporaneous exposition of
section 115-J of the Income-tax Act, 1961 ); Commissioner of Central Excise Calcutta v. Sharma Chemical Works,
AIR 2003 SC 2448 [
LNIND 2003 SC 492 ], p. 2454 (para 13) :
(2003) 5 SCC 60 [
LNIND 2003 SC 492 ]; Simplex Castings Ltd. v. Commissioner of Customs, Vishakhapatnam,
(2003) 5 SCC 528 , p. 538 :
(2003) 155 ELT 5 ; Tega India Ltd. v. Commissioner of Central Excise Calcutta,
(2004) 2 SCC 727 , p. 738 :
AIR 2004 SC 2785 (circulars issued by Central Board of Excise and Customs are binding);
Union of India v. Azadi Bachao Andolan,
AIR 2004 SC 1107 [
LNIND 2003 SC 853 ], pp. 1125, 1126 (The circulars of CBDT under
section 119 of the Income-tax Act pertain to proper administration of the Act and are valid); Pahwa Chemicals (P.)
Ltd. v. Commissioner of Central Excise, New Delhi,
(2005) 2 SCC 720 [
LNIND 2005 SC 193 ], pp. 727, 728 (circulars by Central Board of Excise and Customs under
s. 37B of the Central Excise Act, 1944 cannot be contrary to the provisions of the Act and take away the
jurisdiction vested under the Act in a Central Excise officer); Tanna & Modi v. C.I.T. Mumbai,
(2007) 7 SCC 434 [
LNIND 2007 SC 715 ], para 18. But see Hindustan Aeronautics Ltd. v.
AIR 2000 SC 2178 [
LNIND 2000 SC 882 ], p. 2180 :
(2000) 5 SCC 365 [
LNIND 2000 SC 882 ] (circulars contrary to law laid down by the High Court or Supreme Court
cannot be given effect to). In Collector of Central Excise, Vadodra v. Dhiren Chemical Industries,
AIR 2002 SC 453 [
LNIND 2001 SC 2838 ], p. 455 a
constitution bench of the Supreme Court while giving an interpretation of an exemption notification made it clear
that if there are circulars which have been issued by the Board of Excise and Customs which place a different interpretation, that
interpretation will be binding on the Revenue. The same view was reiterated by a three judge Bench in Commissioner Central
Excise v. Dhiren Chemical Industries Ltd.,
(2002) 10 SCC 64 :
(2002) 143 ELT 19 [
LNIND 2001 SC 2838 ]. In Commissioner of Customs Calcutta v. Indian Oil Corpn. Ltd.,
(2004) 3 SCC 488 [
LNIND 2004 SC 235 ] :
AIR 2004 SC 2799 [
LNIND 2004 SC 235 ], the
Constitution Bench decision in Dhiren Chemical Industries Ltd., supra was followed by a two judge Bench but
doubt was expressed by reddy J. about the correctness of the decision hoping that some day another
Constitution Bench will review the whole matter. In P.R. Prabhakar v. Commr. of Income-tax Coimbatore,
(2006) 6 SCC 86 [
(2006) 6 SLT 72 :
(2006) 284 ITR 548 circular of CBDT, that a particular amendment was prospective, was held
to be binding. See further CIT v. Anjum M.H. Gharwala,
AIR 2001 SC 3868 [
LNIND 2001 SC 2389 ], p. 3877 (Press release clarificatory note is not a circular and is not
binding).
Mr.Srikanth -
Page 70 of 76
23 Collector of Central Excises, Guntur v. Andhra Sugar Ltd.,

AIR 1989 SC 625 [
LNIND 1988 SC 521 ], p. 627 : 1989 Supp (1) SCC 144 : 1988 (4) ST 410.
24 State of Tamil Nadu v. Mahi Traders,

AIR 1989 SC 1167 [
LNIND 1989 SC 71 ], p. 1170 :
1989 (1) SCC 724 [
LNIND 1989 SC 71 ].
25 Ibid. See also State of Madhya Pradesh v. G.S. Dall and Flour Mills,
AIR 1991 SC 772 [
LNIND 1990 SC 563 ], pp. 786, 787 : 1992 Supp (1) SCC 150 (Instructions cannot run contrary
to statutory language).
26 Naga People's Movement of Human Rights v. Union of India,

AIR 1998 SC 431 [
LNIND 1997 SC 1511 ], pp. 460, 461 :
1998 (2) SCC 109 [
LNIND 1997 SC 1511 ].
27 Nagulapati Lakshmamma v. Mupparaju Subbaiah,

1998 (2) Scale 705 , p. 708 :
(1998) 5 SCC 285 .
28 R. v. Peters,
(1886) 16 QBD 636 , p. 641 (Lord Coleridge): Marquis Camden v. IRC,
(1914) 1 KB 641 , p. 647, (Cozen Hardy, M.R.); CIT, West Bengal v. Benoy Kumar Sahas Roy,
AIR 1957 SC 768 [
LNIND 1957 SC 68 ], p. 772 :
1958 SCR 101 [
LNIND 1957 SC 68 ] (Bhagwati, J.); Bhogilal Chunilal Pandya v. State of Bombay,
AIR 1959 SC 356 [
LNIND 1958 SC 137 ], p. 357 : 1959 Supp (1) SCR 310; India Carbon Ltd. v. Superintendent of
Taxes, Gauhati,
AIR 1972 SC 154 [
LNIND 1971 SC 392 ], p. 156 :
(1971) 3 SCC 612 [
LNIND 1971 SC 392 ]; CIT, A.P. v. Taj Mahal Hotel, Secunderabad,
AIR 1972 SC 168 [
LNIND 1971 SC 375 ], p. 171 :
(1971) 3 SCC 550 [
LNIND 1971 SC 375 ]; Commissioner of Wealth Tax, Andhra Pradesh v. Officer in Charge,
AIR 1977 SC 113 [
LNIND 1976 SC 256 ], p. 117 : 1976 SCC (Tax) 411 :
(1976) 3 SCC 864 [
AIR 1975 SC 17 [
LNIND 1974 SC 286 ], pp. 25, 26 :
(1974) 2 SCC 777 [
LNIND 1974 SC 286 ]; Mohinder Singh v. State of Haryana,
AIR 1989 SC 1367 [
LNIND 1989 SC 223 ], p. 1368 :
1989 (3) SCC 93 [
LNIND 1989 SC 223 ]; Star Paper Mills Ltd. v. Collector of Central Excise, Meerut,
AIR 1989 SC 2066 [
LNIND 1989 SC 409 ]:
1989 (4) SCC 724 [
LNIND 1989 SC 409 ], p. 2068; New Delhi Municipal Committee v. Allied Motor Pvt. Ltd.,
Mr.Srikanth -
Page 71 of 76
1995 (6) Scale 37 [

LNIND 1995 SC 998 ], p. 40.
29 Ram Narain v. State of U.P.,

AIR 1957 SC 18 [
LNIND 1956 SC 65 ], p. 23 :
1956 SCR 664 [
LNIND 1956 SC 65 ]; Mangoo Singh v. Election Tribunal, Bareilly,
AIR 1957 SC 871 [
LNIND 1957 SC 89 ], p. 874 :
1958 SCR 418 [
LNIND 1957 SC 89 ]; Gramophone Co. of India Ltd. v. Bir Bahadur Pandey,
(1984) 2 SCC 534 [
LNIND 1984 SC 51 ], p. 553 :
AIR 1984 SC 667 [
LNIND 1984 SC 51 ]; CIT v. J.H. Gotla Yadgiri,
(1985) 4 SCC 343 [
LNIND 1985 SC 270 ], p. 359 :
AIR 1985 SC 1698 [
LNIND 1985 SC 270 ]; R.S. Nayak v. A.R. Antuley,
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], pp. 226, 227 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ]; S. Samuel M.D. Harrison's Malayalam v. Union of India,
AIR 2004 SC 218 , p. 223 :
(2004) 1 SCC 256 (8th Edn., p. 279 of this book is referred) ‘foodstuff’ was held not to include
‘tea’.
See further Chapter 1, title (3) ‘Statute must be read as a whole’ and Chapter 2, title 2(b)
‘Explanation of the rule’, and see Kanwar Singh v. Delhi Administration,
AIR 1965 SC 871 [
LNIND 1964 SC 194 ], p. 874, (para 10).
30 Mangoo Singh v. Election Tribunal, Bareilly,

AIR 1957 SC 871 [
LNIND 1957 SC 89 ], p. 875 :
1958 SCR 418 [
LNIND 1957 SC 89 ]; Dy. Chief Controller of Imports & Exports v. K.T. Kosalram,
AIR 1971 SC 1283 [
LNIND 1970 SC 399 ], p. 1289 :
(1970) 3 SCC 82 [
LNIND 1970 SC 399 ]; R.S. Nayak v. A.R. Antuley, supra; Commissioner of
Income-tax, Bangalore v. Venkateshwara Hatcheries (P.) Ltd.,
JT 1999 (2) SC 338 [
LNIND 1999 SC 299 ], p. 341 :
AIR 1999 SC 1225 [
LNIND 1999 SC 299 ], p. 1228 :
(2001) 10 SCC 569 ; C.I. Trivandrum v. Anand Theatres,
JT 2000 (6) SC 407 [
LNIND 2000 SC 905 ], p. 436 :
(2000) 5 SCC 393 [
LNIND 2000 SC 905 ]; Tarachand Deosharma v. State of Punjab,
AIR 2001 SC 2524 [
LNIND 2001 SC 1455 ], p. 2529; Karnataka State Road Transport Corporation v. Ashrafulla
Khan,
AIR 2002 SC 629 [
LNIND 2002 SC 29 ], p. 635 :
(2002) 2 SCC 560 [
LNIND 2002 SC 29 ]; Amarendra Pratap Singh v. Tej Bahadur Prajapati,
AIR 2004 SC 3782 [
LNIND 2003 SC 1020 ], pp. 3789, 3790 (8th Edn., pp. 279, 280 of this book referred), P.
Prabhakaran v. P. Jayarajan,
Mr.Srikanth -
Page 72 of 76
(2005) 1 SCC 754 [

LNIND 2005 SC 30 ], p. 779 (ninth edition p. 302 of this book is referred).
31 State Bank of India v. N. Sundara Money,

AIR 1976 SC 1111 [
LNIND 1976 SC 13 ], p. 1114 : 1976 SCC (L&S) 132 :
(1976) 1 SCC 822 [
LNIND 1976 SC 13 ]; R.S. Nayak v. A.R. Antuley, supra.
32 Commissioner of Income-tax Orissa v. N.C. Budhraja and Co.,

AIR 1993 SC 2529 , p. 2540 :
1993 (5) JT 346 : 1994 Supp (1) SCC 280.
33 Cabell v. Markham, 148 F 2d 737, p. 739 (2nd cr cir 1945); Union of India v. Harjeet Singh Sandhu,
AIR 2001 SC 1772 [
LNIND 2001 SC 947 ], p. 1785 :
(2001) 5 SCC 593 [
LNIND 2001 SC 947 ] (7th Edition of this book pp. 258, 259 referred); Tarachand Deosharma v.
State of Punjab,
AIR 2001 SC 2524 [
LNIND 2001 SC 1455 ], pp. 2529, 2530 (7th edition of this book pp. 258, 259 referred. See
further K.P. Verghese v. Income-tax Officer, Ernakulam,
(1981) 4 SCC 173 [
LNIND 1981 SC 373 ], p. 180 :
AIR 1981 SC 1922 [
LNIND 1981 SC 373 ]; DLF Universals Ltd. v. Appropriate Authority,
AIR 2000 SC 1985 [
LNIND 2000 SC 821 ], p. 1992 :
(2000) 5 SCC 552 [
LNIND 2000 SC 821 ].
34 Dental Council of India v. Hari Prakash,

AIR 2001 SC 3303 [
LNIND 2001 SC 1862 ], p. 3309 : 2001 AIR SCW 3353.
35 See Chapter 2, title 2(d) ‘Technical words in Technical sense’.
36 See title 4(b) ‘Assistance of Earlier Statutes’.
37 See for instance Indian Molasses Co. (Private) Ltd. v. CIT,

Bengal,West
AIR 1959 SC 1049 [
LNIND 1959 SC 90 ]: 1959 Supp (2) SCR 964, CIT, Kerala v. Malayalam Plantation Ltd.,
Quilon,
AIR 1964 SC 1722 [
LNIND 1964 SC 133 ], p. 1727 (para 8); Ranjit D. Udeshi v. State of Maharashtra,
AIR 1965 SC 881 [
LNIND 1964 SC 205 ], p. 887 (para 14) :
1965 (1) SCR 65 [
LNIND 1964 SC 205 ].
38 Sales Tax Officer, Banaras v. Kanhaiya Lal Mukund Lal Saraf,

AIR 1959 SC 135 [
LNIND 1958 SC 107 ], pp. 139, 140 :
1959 SCR 1350 [
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LNIND 1958 SC 107 ]; State of West Bengal v. B.K. Mondal and Sons,
AIR 1962 SC 779 [
LNIND 1961 SC 377 ], pp. 785, 786 : 1962 Supp (1) SCR 876; Madanlal Fakirchand Dudhediya
v. S. Changdeo Sugar Mills Ltd.,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ], p. 1549 (para 15) : 1962 Supp (3) SCR 973; CIT, Madras v. Gajapathy
Naidu,
AIR 1964 SC 1653 [
LNIND 1964 SC 142 ], pp. 1655 (para 6), 1656, 1657 (para 9) :
(1964) 7 SCR 767 [
LNIND 1964 SC 142 ]; Sterling General Insurance Co. Ltd. v. Planters Airways Pvt. Ltd.,
AIR 1975 SC 415 [
LNIND 1974 SC 420 ]:
(1975) 1 SCC 603 [
LNIND 1974 SC 420 ]; American Home Products Corporation v. Mac Laboratories Pvt. Ltd.,
(1986) 1 SCC 465 [
LNIND 1985 SC 317 ], pp. 505, 506 :
AIR 1986 SC 137 [
LNIND 1985 SC 317 ]; Kilpest Pvt. v. Shekhar Mehra,
1996 (7) Scale 444 [
LNIND 1996 SC 1636 ], p. 447 :
1996 (9) JT 152 :
(1996) 10 SCC 696 [
LNIND 1996 SC 1636 ].
39 Bangalore Water Supply and Sewerage Board v. A. Rajappa,

AIR 1978 SC 548 [
LNIND 1978 SC 70 ], p. 559 :
1978 (2) SCC 213 [
LNIND 1978 SC 70 ].
40 General Electric Co. v. Renusagar Power Co.,

(1987) 4 SCC 137 [
LNIND 1987 SC 568 ], p. 150 :
1987 (3) JT 277 :
(1987) 4 SCC 137 [
LNIND 1987 SC 568 ].
41 Raghunath Prasad Sahu v. Sarjuprasad Sahu,

AIR 1924 PC 60 , pp. 61, 62; Ramanandi Kuer (Mt.) v. Kalawati Kuer (Mt.),
AIR 1928 PC 2 , p. 4 : 55 IA 18; Hansraj v. Bejoy Lal Seal,
AIR 1930 PC 59 , pp. 59, 60; Lasa Din v. Gulab Kunwar (Mt.),
AIR 1932 PC 207 , p. 211; Thiagaraja Bhagavather v. Emperor,
AIR 1947 PC 113 , p. 116; G-G-in-Council v. Municipal Council, Madura,
AIR 1949 PC 39 , p. 43 (para 13). See further Gajanan v. Seth Brindaban,
AIR 1970 SC 2007 [
LNIND 1970 SC 282 ], p. 2012 :
1970 (2) SCC 360 [
LNIND 1970 SC 282 ].
42 M.C. Setalvad: “The Common Law in India”, p. 61.
43 Shaaban Bin Hussein v. Chang Fook Kam,

(1969) 3 All ER 1626 , p. 1632 (PC). (This case deals with
section 23 of the Code of Criminal Procedure of Malayasia which empowers any police officer to arrest any
person against whom there exists a reasonable suspicion of his having been concerned in any seizable offence. The section
corresponds to section 54 of the Indian
Criminal Procedure Code and is helpful in interpreting the expression “reasonable suspicion”). See further
Luc Thiet Thuan v. R.
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(1996) 2 All ER 1033 :

(1997) AC 131 :
(1996) 3 WLR 45 (PC) (In this case for interpreting section 3 of the Hongkong Homicide Act,
1957, which provides for a defence of ‘provocation’ to a charge of murder, apart from English cases, cases of other commonwealth
countries were also referred).
44 C.P. & Berar Sales of Motor Spirit & Lubricants Taxation Act, In re,
AIR 1939 FC 1 , p. 5 :
1939 FCR 18 .

AIR 1950 SC 27 [
LNIND 1950 SC 22 ], p. 102 :
1950 SCR 88 [
LNIND 1950 SC 22 ]; Charanjit Lal Chowdhury v. Union of India,
AIR 1951 SC 41 [
LNIND 1950 SC 55 ], pp. 44, 57, 58 :
1950 SCR 869 [
LNIND 1950 SC 55 ]; M.P.V. Sundararamier & Co. v. State of Andhra Pradesh,
AIR 1958 SC 468 [
LNIND 1958 SC 20 ], p. 495 (para 58) :
1958 SCR 1422 [
LNIND 1958 SC 20 ]; Atiabari Tea Co. Ltd. v. State of Assam,
AIR 1961 SC 232 [
LNIND 1960 SC 175 ], p. 250 :
1961 (1) SCR 809 [
LNIND 1960 SC 175 ]; Automobile Transport, Rajasthan Ltd. v. State of Rajasthan,
AIR 1962 SC 1406 [
LNIND 1962 SC 152 ], p. 1415 :
1963 (1) SCR 491 [
LNIND 1962 SC 152 ]; Tika Ramji v. State of U.P.,
AIR 1956 SC 676 [
LNIND 1956 SC 37 ], pp. 698, 699 :
1956 SCR 393 [
LNIND 1956 SC 37 ]; State of West Bengal v. Union of India,
AIR 1963 SC 1241 [
LNIND 1962 SC 438 ], pp. 1258, 1259 :
(1964) 1 SCR 371 [
LNIND 1962 SC 438 ]; State Trading Corporation of India v. Commercial Tax Officer,
AIR 1963 SC 1811 [
LNIND 1963 SC 334 ], p. 1820 :
(1964) 4 SCR 99 [
LNIND 1963 SC 334 ]; In the matter of
Article 143 of the Constitution of India , Special Reference No. 1 of 1964,
AIR 1965 SC 745 : (1965) 1 SCR 413.
46 For example see cases in note 45 above. For a recent example of the use of decisions of the American Supreme Court
see Union of India v. The Motion Pictures Associates,
JT 1999 (4) SC 520 [
LNIND 1999 SC 1251 ]:
AIR 1999 SC 2334 [
LNIND 1999 SC 1251 ]:
(1996) 6 SCC 150 , where following Neat R. Wooby v. George Maynard, (1977) 430 US 705
and Turner Broadcasting System Inc. v. Federal Communications, (1997) 512 US 622, it was held that a statutory provision
compelling speech as a ‘must carry provision’ is not violative of freedom of speech guaranteed under Article 19(1) if it furthers
informed decision making which is the essence to the right to free speech and expression.
47 Assistant Collector of Customs, Calcutta v. Sitaram Agarwala,

AIR 1966 SC 955 [
LNIND 1965 SC 237 ], p. 965 :
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1966 (2) SCR 1 [

LNIND 1965 SC 237 ]; Godhara Borough Municipality v. Godhara Electricity Co. Ltd.,
AIR 1968 SC 1504 [
LNIND 1968 SC 77 ], p. 1508 :
1968 (3) SCR 481 [
LNIND 1968 SC 77 ]; Nawn Estates (P.) Ltd. v. CIT, West Bengal,
AIR 1977 SC 153 [
LNIND 1976 SC 369 ], p. 156 : 1977 SCC (Tax) 119 :
(1977) 1 SCC 7 [
LNIND 1976 SC 369 ]. Nearly the same view has been taken in Australia: Owners of the Motor
Vessel ‘IRAN AMANAT’ v. KMP Coastal Oil PTE Ltd., (1999) 73 ALJR 559, p. 563 (para 20) (Aust).
48 See
Article 348, Constitution of India . See further Nityanand Sharma v. State of Bihar,
1996 (1) Scale 743 [
LNIND 1996 SC 250 ], p. 749 :
AIR 1996 SC 2306 [
LNIND 1996 SC 250 ], p. 2311 :
(1996) 3 SCC 576 [
LNIND 1996 SC 250 ]; Park Leather Industry (P.) Ltd. v. State of U.P.,
JT 2001 (2) SC 577 [
LNIND 2001 SC 413 ], p. 588 (Hindi text can be used to explain an ambiguity in the authorised
English text).
49 See Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola,

AIR 1961 SC 1325 [
LNIND 1961 SC 107 ], p. 1326 :
(1962) 1 SCR 279 [
LNIND 1961 SC 107 ], where reference is made to Planters Nut Chocolate Co. Ltd. v. King,
(1952) 1 Dom LR 385, p. 389.
50
AIR 1993 SC 1014 [
LNIND 1992 SC 194 ], p. 1038 :
1992 (2) JT 65 [
LNIND 1992 SC 194 ] : 1993 Supp (2) SCC 433.
51 Gian Devi Anand v. Jeevan Kumar,

(1985) 2 SCC 683 [
LNIND 1985 SC 162 ] :
AIR 1985 SC 796 [
LNIND 1985 SC 162 ]; Gantusa H. Baddi v. Meerabai G. Pai,
AIR 2000 SC 1724 [
LNIND 2000 SC 701 ], p. 1728 :
(2000) 4 SCC 586 [
LNIND 2000 SC 701 ].
52 Gian Devi Anand v. Jeevan Kumar, supra, p. 687 (SCC). For a discussion as to how the law first
moved from status to contract and has now again been moving from contract to status see Freidman, Legal Theory,
(5th ed.) pp. 215-220.
53 See Chapter 8.
54 T. v. Secretary of State for the Home Department,

(1996) 2 All ER 865 , p. 891 :
(1996) AC 742 :
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(1996) 2 WLR 766 (HL). See further Chapter 6, title 5 (b2) ‘Acts passed to give effect to
international conventions’.
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 5
SUBSIDIARY RULES
1. 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.1 The presumption is, however, a
weak one and is readily displaced by the context.2 It has been said that the more correct statement
of the rule is that “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”.3
In construing the word ’statement’ in

section 157 of the Indian Evidence Act, 1872 , the Supreme Court referred to the use
of the same word in sections 17 to 21, 32, 39 and 145, and came to the conclusion that the word in
all these sections meant ’something that is stated’ and communication was not necessary in order
that it may be a statement; and the same meaning was attributed to the word as occurring in
section 157 of the Act. It was, therefore, held that notes prepared by a prosecution witness
recording the conversation that took place between him and other witnesses, was a statement
which could be used for corroboration under section 157. Observed Wanchoo, J.: “Words are
generally used in the same sense throughout in a statute, unless there is something repugnant in
the context”.4
In interpreting the words ’the grounds on which the order has been made’ as they occur in section
3(3) and 7(1) of the Preventive Detention Act, 1950, the Supreme Court held that the words do
not bear the same meaning in these two provisions for in communicating to the detenu, the
grounds of detention under section 7(1), the authority can withhold facts which it considers
against the public interest to disclose, [ vide section 7(2)]; whereas in reporting to the State
Government the grounds of detention under section 3(3), these facts are likely to figure more
prominently. Venkatarama Ayyar, J., referring to the rule that the same meaning is implied by the
use of the same expression in every part of an Act, stated: “The rule of construction contended for
is well settled but that is only one element in deciding what the true import of enactment is to
ascertain which it is necessary to have regard to the purpose behind the particular provision and
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its setting in the scheme of the statute”.5
As pointed out by Lord Macdermott: “The presumption that the same word is used in the same
sense throughout the same enactment acknowledges the virtues of an orderly and consistent use of
language, but it must yield to the requirements of the context and it is, perhaps, at its weakest
when the word in question is of the kind that readily draws its precise import, its range of
meaning, from its immediate setting or the nature of the subject with regard to which it is
employed.”6 And in dealing with the meaning of the word ’publish’ in the
Copyright Act , 1956, Lord Scarman observed: “When construing words and phrases
in an Act dealing with a subject as complex and varied as Copyright, it is perilous in the absence
of clear indication in the Act to assume that in respect of every element or aspect of the subject
ordinary English words of many applications, are used consistently to express only one particular
application”.7
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.8section 117(1) of
the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951, authorises the State
Government to declare that hats, bazars and melas which had ’vested’ in the State shall ’vest’ in
the Gaon Sabhas. Interpreting this section, it was held by the Supreme Court that although the
vesting in the State was absolute, the vesting in the Sabha was limited to possession and
management subject to divestiture by Government.9 The case illustrates that a word which is used
more than once in the same sub-section of a section may connote and denote divergent things
depending upon the context.
2. USE OF DIFFERENT WORDS
When in relation to the same subject-matter, different words are used in the same statute, there is
a presumption that they are not used in the same sense.10
In construing the words ’distinct matters' occurring in section 5 of the Stamp Act, 1899, and in
concluding that these words have not the same meaning as the words ’two or more of the
descriptions in Schedule 1’ occurring in section 6, Venkatarama Aiyar, J. observed: “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”.11
A further example of the application of the rule may be seen in a more recent decision of the
Supreme Court where the phrase ’rendered illegal’ occurring in section 42 of the C.P. and Berar
Industrial Disputes Settlement Act was construed to bear a different meaning from the phrase
’held illegal’ used in sections 43, 44 and 45 of the same statute.12 On the same principle the words
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’test’ and ’analysis’ used in rules 40 of the Central Rules made under the
Drugs Act, 1940 , were given different meanings and the requirement of stating ’full
protocol of the tests applied’ was held to be not applicable to ’analysis’.13 Similarly the
expressions ’at the end of the previous year’ and ’in the course of such previous year’ occurring in
the Explanation to
section 23A of the Income-tax Act, 1922 were construed differently; the former
expression meaning the last day of the previous year and the latter expression meaning throughout
the previous year.14
But much weight to the presumption arising out of use of different words in different parts of a
statute cannot be given when dealing with a long complicated statute,15 for instance, a
consolidating Act containing incongruous provisions lumped together.16 Even otherwise, the rule
is subordinate to context as a less careful draftsman may use different words to convey the same
meaning.17 A construction deriving support from differing phraseology in different sections of a
statute may be negatived on considerations that it will lead to unreasonable or irrational results.18
3. RULE OF LAST ANTECEDENT
As a corollary to the rule that phrases and sentences in a statute are interpreted according to the
grammatical meaning,19 relative and qualifying words, phrases and clauses are applied to the
antecedent immediately preceding.20 The rule is, however, subordinate to context and may be
better stated by saying that a qualifying phrase ought to be referred to the next antecedent which
will make sense with the context and to which the context appears properly to relate it.21
The rule was applied in construction of section I of the

Indian Contract Act, 1872 , which reads: ’Nothing herein contained shall affect the
provisions of any statute, Act or Regulation, not hereby expressly repealed, nor any usage or
custom of trade, nor any incident of any contract not inconsistent with the provisions of this Act’.
Interpreting this section, Lord Macnaghten observed: “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.”22
In a case relating to the interpretation of the proviso to section 1, subsection (2) of the Calcutta
Thika (Amendment) Act, 1953, which reads, ’provided that the provisions of the Calcutta Thika
Tenancy Act, 1949, as amended by this Act, shall subject to the provisions of section 9, also apply
and be deemed to have been always applied to all suits, appeals and proceedings pending’, the
argument was that the words ’as amended by this Act’ qualify the word ’provisions'. Countering
the argument, Das Gupta, J. stated: “we are unable to see how it is possible, unless rules of
grammar are totally disregarded to read the words ’as amended by this Act’ to qualify the word
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’provisions'. If ordinary grammatical rules are applied, there is no escape from the conclusion that
the adjectival phrase ’as amended by this Act’ qualifies the proximate substantive, viz., the
Calcutta Thika Tenancy Act, 1949.”23
In another case where the question for construction involved was of section 2 of the Supreme
Court Advocates (Practice in High Courts) Acts 1951, which reads ’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 practise 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 advocate of that High Court’, Patanjali Shastri,
C.J. said: “Having regard to the words ’anything contained’ and the preposition ’in’ used after
disjunctive ’or’, the qualifying clause cannot reach back to the words ’Bar Council Act’.” It was
held that the adjectival clause ’regulating the conditions etc.’, qualified the word ’law’ and not the
words ’Bar Council Act’.24
And, while construing the definition of ’premises’ in the Bombay Land Requisition Act, 1948,
which reads ’any building or part of a building let or intended to be let separately’, it was held that
the words ’let or intended to be let separately’ did not qualify the word ’building’ but only the
words ’part of a building’.25
The principle was also applied by the Federal Court in interpreting section 226(1) of the
Government of India Act, 1935, which read: ’until otherwise provided by Act of the appropriate
legislature, no High Court shall have any original jurisdiction in any matter concerning the
revenue, or concerning any act ordered or done in the collection thereof according to the usage
and practice of the country or the law for the time being in force’. It was held that the words
’according to usage and practice of the country or the law for the time being in force’ qualified the
words immediately preceding, viz. ’concerning any act ordered or done in the collection thereof’,
and not the words ’original jurisdiction in any matter concerning the revenue’.26
In construing Item 72(3) of schedule 1 to the Tariff Act, 1934 which reads ’Component parts of
machinery as defined in Items Nos. 72, 72(1) and 72(2) and not otherwise specified’ it was held
that the qualifying words ’not otherwise specified’ related to ’machinery’ and not to ’compo-nent
parts'.27
The jurisdiction of the Special Court in the

Special Court (Trial of Offences relating to Transactions in Securities) Act , 1972 of
Offences relating to Transactions in Securities) Act, 1972 is limited to offences referred to in
section 3(2) of the Act which in so far as relevant provides: ’Any offence relating to transactions
in securities after 1st day of April 1991 and on and before 6th June 1992’. In interpreting section
3(2) it was held that the period specified qualified the word ’transactions’ and not the word
’offence’ and therefore the Special Court had jurisdiction if the transaction in securities took place
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within the specified period irrespective of the date of the offence.28
But as already stated, the rule is subordinate to context. This principle may be illustrated by a
decision of the Supreme Court relating to the construction of section 1(3)(a) of the Employees'
Provident Funds Act , 1952 which reads: ’subject to the provisions contained in
section 16, it (the Act) applies to every establishment which is a factory 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 workmen employed should be fifty or more governed
the word ’industry’ and not the word ’factory’; and 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’. 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’. In overruling the
contention Gajendragadkar, J. observed: “If the context definitely suggests that the relevant rule
of grammar is inapplicable then the requirement of the context must prevail over the rule of
grammar”.29
Reference may also be made to section 2(1)(d) of the Bombay Lotteries and Prize Competitions
Control and Tax Act, 1948, which reads: ’prize competition includes: (1) Crossword Prize
Competition, (2) Missing Word Prize Competition, (3) Picture Prize Competition, (4) Number
Prize Competition, or (5) any other prize competition, for which solution is or is not prepared
beforehand by the promoters or for which the solution is determined by lot or chance’. The
qualifying clause in the 5th item beginning with ’for which the solution’ was construed by the
Supreme Court to apply to all the five items and it was observed: “There is grammatically no
difficulty in reading the qualifying clause as lending colour to each of those items”.30
Further, in interpreting artcile 194(1) of the

Constitution , which reads ’subject to the provisions of this
Constitution and to the rules and standing orders regulating the procedure of the
Legislature, there shall be freedom of speech in the Legislature of every State’, the Supreme
Court has held that the adjectival clause ’regulating the procedure of the legislature’ governs both
the preceding clauses viz., ’the provisions of this
Constitution ’ and ’the rules and standing orders’. 31
Some more examples may here be noticed. In construing the words ’no tax shall be levied on any
advertisement which is exhibited within any railway station or upon any wall or other property of
railway except any portion of the surface of such wall or property fronting any street’, the
Supreme Court held that the words ’fronting any street’, qualified the noun ’advertisement’ and
not the words ’wall or property’.32 It is submitted that on a proper construction the words in
question qualified the word ’surface’ and not ’advertisement’.
section 4(2) of the East Punjab Rent Restriction Act, 1949 requires the Controller to
fix basic rent of an accommodation after taking into consideration the ’prevailing rates of rent in
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the locality for the same or similar accommodation in similar circumstances during the twelve
months prior to the 1st January 1939’. In construing this section, it was held that the phrase ’in
similar circumstances’, qualified and governed both the expressions namely ’the same’ and
’similar accommodation.’33
section 259 of the Cantonments Act, 1924 , reads: ’Arrears of any tax, rent on land
and buildings and any other money recoverable by a Board or a Military Estates Officer under this
Act or the rules made thereunder may be recovered on application to a Magistrate having
jurisdiction in the Cantonment’. The qualifying words ’recoverable by a Board or a Military
Estates Officer under this Act or the rules made thereunder’ were construed to qualify not only the
words ’any other money’ but also the words ’arrears of any tax, rent on land and buildings.’ As a
result it was held that rent of land payable under a lease was not recoverable under the special
procedure prescribed by section 259.34
And, “where several words are followed by a general expression which is as much applicable to
the first and other words as to the last, that expression is not limited to the last, but applies to all.
For instance, in ’horses, oxen, pigs and sheep, from whatever country they may come’—the later
words would apply to horses as much as to sheep.”35
4. NON OBSTANTECLAUSE
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
sometimes 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.36 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 provisions
embraced in the non obstante clause will not be an impediment for the operation of the
enactment.37 Thus a non obstante clause may be used as a legislative device to modify the ambit
of the provision or law mentioned in the non obstante clause38 or to override it in specified
circumstances.39 The phrase ’notwith-standing anything in’ is used in contradistinction to the
phrase ’subject to’,40 the latter conveying the idea of a provision yielding place to another
provision or other provisions to which it is made subject.41 A non obstante clause must also be
distinguished from the phrase ’without prejudice’. A provision enacted ’without prejudice’ to
another provision has not the effect of affecting the operation of the other provision and any
action taken under it must not be inconsistent with such other provision.42 Ordinarily, there is a
close approximation between the non obstante clause and the enacting part of the section and the
non obstante clause may throw some light as to the scope and ambit of the enacting part in case of
its ambiguity,43 but when the enacting part is clear its scope cannot be cut down44 or enlarged45 by
resort to non obstante clause. Further, the wide amplitude of a non obstante clause must be kept
confined to the legislative policy and it can be given effect to, to the extent Parliament intended
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and not beyond the same.46
The expression ’notwithstanding anything in any other law’ occuring in a section of an Act cannot
be construed to take away the effect of any provision of the Act in which that section appears.47 In
other words ’any other law’ will refer to any law other than the Act in which that section occurs.48
In contrast the expression ’notwithstanding anything contained in this Act’ may be construed to
take away the effect of any provision of the Act in which the section occurs but it cannot take
away the effect of any other law.49 The expression ’notwithstanding anything to the contrary in
any enactment’ cannot take away the effect of any provision in a law which is not an enactment.50
A provision beginning with the words, ’Notwithstanding anything in this

Constitution ’ added in the
Constitution by a
Constitution Amendment Act cannot be construed as taking away the provision
outside the limitations on the amending power and it has to be harmoniously construed consistent
with the foundational principles and basic features of the
Constitution .51 But subject to this limitation existing laws continued under such a
provision cannot be held void on the ground that they infringe anything in the
constitution including Article 13 for the non obstante clause will preclude any such
attack. 52
By Ordinance No. 19 of 1946 (promulgated under section 72 of the Government of India Act,
1935 ) section 3 of which provided; ’notwith-standing the expiration of the Defence of India Act,
1939, and the rules made thereunder, all requisitioned lands shall continue to be subject to
requisition until the expiry of this Ordinance,’ all requisitions made under the Defence of India
Rules were continued. It was however, contended before the Supreme Court that section 3
continued only such requisitions which would have come to an end because of the expiry of the
Defence of India Act and rules and not those, which, by their own language as to the limitation of
the period, expired ipso facto on the date of expiration of the Act and rules; and support for this
contention was sought in the non obstante clause. Rejecting the contention Bhagwati, J. observed:
“The non obstante 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 an enactment. If the words of the
enactment are clear and are 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. In such cases the non obstante clause has to be read as
clarifying the whole position and must be understood to have been incorporated in the enactment
by the Legislature by way of abundant caution and not by way of limiting the ambit and scope of
the operative part of the enactment.”53
The proper approach when the enacting part is not ambiguous has been indicated by the Supreme
Court in Aswini Kumar's case,54 where the question arose as to the true construction of section 2
of the Supreme Court Advocates (Practice in High Courts) Act, 1951, which contained a non
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obstante clause in the following form: ’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 practise in that High Court’.
The Calcutta High Court in construing section 2 of the Act held that an advocate of the Supreme
Court was not entitled to act on the original side of that High Court. This result was reached by
limiting the enacting part of the section by the non obstante clause. In overruling the High Court,
Patanjali Shastri, C.J. observed: “This is not, in our judgment, a correct approach to the
construction of section 2. It should first be ascertained what the enacting part of the section
provides on a fair construction of the words used according to their natural and ordinary meaning,
and the non obstante clause is to be understood as operating to set aside as no longer valid
anything contained in relevant existing laws which is inconsistent with the new enactment.”55
Proceeding further, the Chief Justice said: “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”.56
The above mode of approach in construing a non obstante clause was followed in construing
section 26 of the Travancore Cochin General Sales Tax Act (11 of 1125 M.E.). The section which
was added by an amendment in 1951 provided that ’Notwithstanding anything contained in this
Act—a tax on the sale or purchase of goods shall not be imposed under this Act’, in cases within
the categories specified under artcile 286 of the
Constitution . It was held that sales falling within the categories specified under
Article 286 were taken out of the purview of the Act and the value thereof could not be included
in the turnover of the dealer either for assessment or for levy of tax.57
section 16 of the Hindu Marriage Act , 1956, which legitimatises children born of
void marriages, opens with a non obstante clause ’notwith-standing that a marriage is null and
void under section 11’, but having regard to the language and beneficient purpose of the enacting
clause it was held to be not restricted to marriages that were void under section 11 and children
born of all void marriages were held to be legitimatised.58
A special enactment or rule cannot be held to be overridden by a later general enactment or

simply because the latter opens up with a non obstante clause. There should be a clear
inconsistency between the two before giving an overriding effect to the non obstante clause.59
Even though the notwithstanding clause is very widely worded, its scope may be restricted by
construction having regard to the intention of the Legislature gathered from the enacting clause or
other related provisions in the Act. This may be particularly so when the notwithstanding clause
“does not refer to any particular provision which it intends to override but refers to the provisions
of the statute generally.”60 Thus the notwithstanding clause in section 21A of the Tamil Nadu
Land Reforms (Fixation of Ceiling on Land) Act, 1961 which reads ’notwithstanding anything
contained in section 22 or in any other provision of this Act and in any other law for the time
being in force’ was construed not to override the definition of ’stridhana land’ in section 3(42)
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even if the case fell within the enacting part of section 21-A which validated a partition effected
by a registered instrument between 15-2-1970 and 2-10-1970.61 The partition in that case was
executed on 24-9-1970 giving certain lands in favour of the mother in lieu of her right of
maintainance. But as the definition of stridhana in 3(42) required that the female should have held
the land on 2-10-1970 as owner, the land given to the mother in the said partition was held not to
have become her stridhana land. Similarly, section 6 of the Government Savings Certificate Act,
1959 by which a nominee of the certificate on the death of the holder becomes entitled to the
certificate and to be paid the sum due thereon ’notwithstanding anything contained in any law for
the time being in force, or in any disposing testamentary or otherwise in respect of any saving
certificate, does not make the nominee owner of the sum so received to the exclusion of the legal
heirs as is clear from section 8 and other provisions of the Act, the object of permitting
nomination being essentially to prevent delay in collection of the money due under the certificate
after the death of the holder.62
But the wide meaning of the non obsante clause and the enacting words following it cannot be
curtailed when the use of wide language accords with the object of the Act. Thus section 2(ii) of
the
Forest (Conservation) Act, 1980 which provides that ’Notwithstanding anything
contained in any other law for the time being in force in any State, no State Government or other
authority shall make, except with the prior approval of the Central Government any order
directing that any forest land or any portion thereof may be used for any non-forest purpose’, was
construed to prevent not only grant of mining lease in a forest but also renewal of a lease which
was at the option of the lessee under the Mineral Concession Rules made under the regulation
1957, without prior approval of the Central Government.63
After referring to the principles and some of the cases mentioned above and the historical
circumstances in which the precursor of section 12964 of the
Civil Procedure Code was introduced, the Supreme Court declined to construe the
non-obstante clause in that section in a limited sense and held that it was indicative of
Parliament's intention to prevent the application of
CPC in respect of Civil Proceedings on the original side of the High Courts which
are to be governed by the rules made by the High Court which will prevail over the rules
contained in the
CPC .65
The influence of a non obstante clause on a question of construction is illustrated by the ruling in
Municipal Corporation, Indore v. Ratnaprabha (Smt.). Municipal Corporation,
Indore v. Ratnaprabha (Smt.). 66 In this case the Supreme Court considered section
138(b) of the Madhya Pradesh Municipal Corporation Act, 1956 which enacts 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 be let from year to year’. In view of the non obstante clause the
Supreme Court held that the annual letting value determined under section 138(b) need not in
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every case be limited to the standard rent which might be fixed for the building under the Rent
Control Act. The court distinguished its earlier cases67 on the ground that in the enactments dealt
with in those cases there was no non obstante clause as contained in section 138(b) of the Madhya
Pradesh Municipal Corporation Act. The reasoning in those cases is that a landlord commits an
offence if he collects rent above the standard rent determinable under the relevant Rent Control
Act, and therefore, it can legitimately be said that a landlord cannot be expected to let a building
for a rent higher than the standard rent. In one of these cases68 the standard rent under the Rent
Control Act had not been fixed but it was observed that the authorities concerned ought to take
into account the principles applicable for determining standard rent in fixing the annual letting
value. This reasoning could also be applied to section 138(b) of the Madhya Pradesh Corporation
Act, but it was observed that the significance of the non obstante clause was that in cases where
standard rent was not determined under the Rent Control Act, the authorities under the
Corporation Act were not obliged to adopt the principles contained in the Rent Control Act as the
basis for determining the annual letting value.
The notwithstanding clause was also used in construing the enacting part of
section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (
NDPS Act ). This section reads: ’Notwithstanding anything contained in the 1973 of
Criminal Procedure, 1973 or any other law for the time being in force—no sentence awarded
under this Act—shall be suspended or remitted or commuted.’ section 36 provides for appeals and
revision to the High Court and says that it ’may exercise, so far as may be applicable, all the
powers conferred by Chapters XXIX and XXX of the
Code of Criminal Procedure, 1973 .’ The question before the Supreme Court was
whether, the High Court could exercise its power of suspending the sentence under section 389
which occurs in Chapter XXIX of the
Cr.P.C. , pending an appeal. Having regard to the width of the notwithstanding clause
in section 36A, which refers to the entire
Cr.P.C. and any other law for the time being in force, as also to the qualifying words
’so far as may be applicable’ in section 36B, it was held that the High Court has no such power
and cannot suspend the sentence awarded under the
NDPS Act pending an appeal before it. 69
Sometimes one finds two or more enactments operating in the same field and each containing a
non obstante clause stating that its provisions will have effect ’notwithstanding anything
inconsistent therewith contained in any other law for the time being in force’. The conflict in such
cases is resolved on consideration of purpose and policy underlying the enactments and the
language used in them.70 Another test that is applied is that the later enactment normally prevails
over the earlier one.71 It is also relevant to consider as to whether any of the two enactments can
be described a special one; in that case the special one may prevail over the more general one
notwithstanding that the general one is later in time.72
section 19 of the Slum Areas (Improvement and Clearance) Act, 1956 as amended by
Act 43 of 1964, provides that proceedings for eviction of tenants cannot be taken without
permission of the competent Authority notwithstanding anything contained in any other law for
the time being in force. section 39 of the Act further provides that the provisions of the Act shall
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take effect notwithstanding anything inconsistent therewith contained in any other law. By Act 18
of 1976, the
Delhi Rent Control Act, 1958 was amended and sections 14-A, 25-A, 25-B and 25-C
confers a right on a landlord to recover immediately possession of any premises let out by him in
case he is required to vacate any residential premises allotted to him by the Central Government
or any local Authority. The conferral of the right is ’notwithstanding anything contained
elsewhere in this Act or in any other law for the time being in force or in any contract (whether
express or implied), custom or usage to the contrary’. section 25-B provides the special procedure
for enforcement of the right conferred by section 14-A. section 25-A makes the provisions in
section 25-B to have effect ’notwithstanding anything inconsistent therewith contained elsewhere
in this Act or in any other law for the time being in force’.
section 54 of the Delhi Rent Act provides that nothing in this Act shall affect the
provisions of the Slum Areas Act. After considering these provisions the Supreme Court73 held
that the right to immediate possession conferred by
section 14-A of the Delhi Rent Act was not controlled by the Slum Clearance Act
and this right could be enforced in the manner provided in section 25-B without obtaining the
permission of the competent Authority under the Slum Clearance Act. In reaching this conclusion,
the court considered the object and policy of the relevant provisions. The court also took into
account the fact that sections 14-A, 25-A, 25-B and 25-C were introduced in the
Delhi Rent Act by an
Amending Act which was later in time to the Slum Clearance Act. As regards
section 54 of the Delhi Rent Act , the court held that it was overridden by the
notwithstanding clauses in sections 14-A and 25-A. Applying the same principles it was held that
the provisions of the
Public Premises (Eviction of Unauthorised Occupants) Act, 1971 , were a special and
later law as against the
Delhi Rent Control Act, 1958 , and so the Premises Act prevailed in case of a conflict
over the Rent Control Act although both the Acts contained non obstante clauses.74 A conflict
between provisions of two special statutes namely the Financial Corporation Act, 1951 and the
Sick Industries Companies (Special Provisions) Act, 1985, both containing non obstante clauses
(section 46-B of the 1951 Act and section 32 of the 1985 Act) was resolved by giving overriding
effect to the 1985 Act on the ground that the 1985 Act being a subsequent enactment, the non-
obstante clause therein would prevail over the non-obstante clause in the 1951 Act unless it is
found that 1985 Act is a general statute and the 1951 statute is a special one.75 The aforesaid
principles were also applied in resolving the conflict between section 28 of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947 and section 91 of the Maharashtra
Co-operative Societies Act , 1960.76section 28 of the Rent Act, which opens with the
words ’Notwithstanding anything contained in any law’, confers jurisdiction on the court of small
causes Bombay to entertain and try suits for recovery of rent and possession between a landlord
and tenant.
section 91 of the Cooperative Societies Act , which also opens with a similar non
obstante clause, provides that any dispute touching thebusiness of a society shall be referred to the
Registrar if both the parties thereto are one or other of the following namely, a society, a present
or past member, or a person claiming through a member. Construing the provisions of the two
Acts, it has been held that even in respect of a tenant co-partnership type housing society whose
business includes acquiring and letting out building to its members, a claim by the society to eject
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a deemed tenant who was let in by a member would be entertainable by the court of small causes
under the Rent Act and not by the Registrar under the
Co-operative Societies Act . It was pointed out that although the
Co-operative Societies Act was the later Act, the Rent Act was a special law relating
to protection and eviction of tenants and so must prevail over the provisions of the
Co-operative Societies Act .77
If the Acts containing wide notwithstanding clauses covering ’any other law for the time being in
force’ operate in different fields, harmonious construction has to be applied and when in a given
case the application of the earlier Act is attracted, the question of its giving way to the later Act
would not arise.78 On this basis it was held that where
section 22 of the Sick Industrial Companies (Special Provisions) Act 1985 , which
bars execution against any of the properties of the company without the consent of the Board for
Industrial and Financial Reconstruction, applies an award made by the Industry Facilitation
Council under
section 6(2) of the Interest on Delayed Payments to Small Scale and Ancillary Industrial
Undertakings Act, 1993 , which is deemed to be made under the
Arbitration and Conciliation Act , 1993, cannot be executed without the consent of
the Board as required by section 22 of the 1985 Act.79 Both section 22 of the 1985 Act and section
10 of the 1993 Act contain wide notwithstanding clauses but as both the Acts operate in different
fields harmonious construction was applied and operation of section 22 of the 1985 Act in the
case could not be negatived by the notwithstanding clause in section 10 of the 1993 Act.
5. LEGAL FICTION
The legislature is quite competent to create a legal fiction, in other words, to enact a deeming
provision for the purpose of assuming existence of a fact which does not really exist80 provided
the declaration of non-existent facts as existing does not offend the
constitution .81 Although the word ’deemed’ is usually used, a legal fiction may be
enacted without using that word.82
In interpreting a provision creating a legal fiction, the court is to ascertain for what purpose the
fiction is created,83 and after ascertaining this, the Court is to assume all those facts and
consequences which are incidental or inevitable corollaries to the giving effect to the fiction.84
But in so construing the fiction it is not to be extended beyond the purpose for which it is
created,85 or beyond the language of the section by which it is created.86 It cannot also be
extended by importing another fiction.87 The principles stated above are “well settled”.88 A legal
fiction may also be interpreted narrowly to make the statute workable.89 A legal fiction in terms
enacted ’for purposes of this Act’ will cover the entire Act90 but is normally restricted to that Act
and cannot be extended to cover another Act.91 Legal fictions may not be created only by the
Legislature and delegated legislation may also create such fictions.92 But it must be remembered
that what can be deemed to exist under a legal fiction are facts and not legal consequences which
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do not flow from the law as it stands.93 A legal fiction created by the Legislature in an Act, it
appears, cannot be widened by rules made under the Act.94 Further, a legal fiction created in a
State Act by borrowing a definition from a Central Act in the concurrent field will be restricted
for purposes of the State Act and will not have the effect of widening the definition in the Central
Act unless that definition is properly amended with due compliance with artcile 254 of the
Constitution .95 Thus section 161 of the Maharashtra
Co-operative Societies Act 1961, by which officers under the Act are deemed to be
public servants within the meaning of
section 21 of the Penal Code , was held to be ineffective to widen the definition of
public servant in
section 21 of the Penal Code for purposes of offences under the
Penal Code or the
Prevention of Corruption Act , 1947.96
As was observed by James, L.J.: “When a statute enacts that something shall be deemed to have
been done, which in fact and in truth was not done, the court is entitled and bound to ascertain for
what purposes and between what person the statutory fiction is to be resorted to”.1 “When a legal
fiction is created”, stated S.R. Das, J. “for what purpose, one is led to ask at once, is it so
created?”2
After ascertaining the purpose, “full effect must be given to the statutory fiction and it should be
carried to its logical conclusion”3 and to that end “it would be proper and even necessary to
assume all those facts on which alone the fiction can operate”.4 In an oft-quoted passage, Lord
Asquith stated: “If you are bidden to treat an imaginary state of affairs as real, you must surely,
unless prohibited from doing so, also imagine as real the consequence and incidents which, if the
putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it—
. The statute says that you must imagine a certain state of affairs; it does not say that having done
so, you must cause or permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs.”5 Thus if A is deemed to be B, compliance with A is in law
compliance with B and contravention of A is in law contravention of B.6
artcile 341(1) empowers the President to specify with respect to any state by notification ’the
castes, races or tribes or parts of or groups within castes, races or tribes which shall for the
purposes of this
constitution be deemed to be scheduled castes in relation to that state’. artcile 342(2)
provides that the notification so issued shall not be varied except by Parliament. In interpreting
this provision, it has been held that because of the legal fiction resulting from the deeming
provision, the conglomeration of castes in the Presidential Order shall be considered as
representing a class as a whole and the state concerned has no authority by legislation or
otherwise to further subdivide the castes in the notification so as to give more preference in the
matter of reservation to a minuscule proportion thereof in preference to other members of the
same class.7
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In interpreting a fiction created by the

Indian Income-tax Act, 1922 , which by section 43 provided that under certain
circumstances an agent shall for all the purposes of this Act, be deemed to be such agent’ of a
non-resident person and which by section 42 further provided that such agent ’shall be deemed to
be, for all the purposes of this Act, the assessee,’ the Privy Council held that such agent was an
assessee for all the purposes of the Act and hence chargeable to income-tax, assessee being
defined by section 2(2) as the person by whom income-tax is payable.8 Viscount Dunedin in that
connection observed : “Now when a person is ’deemed to be’ something the only meaning
possible is that whereas he is not in reality that something the Act of Parliament requires him to
be treated as if he were”.9
In Pandurang's case10 the facts were that the Bombay Building (Control on Erection) Ordinance,
1948, although applicable to certain areas mentioned in the Schedule to it, was extended by a
notification under sub-section (4)? of section I to all the areas in the province in respect of
buildings intended to be used for the purposes of cinemas. The Ordinance was repealed and
replaced by Act 31 of 1948, which again extended to areas mentioned in the Schedule with power
under sub-section (3) of section I conferred on the Provincial Government to extend its operation
to other areas. The Act, however, by section 15(1) applied section 7 and 25 of the Bombay
General Clauses Act , 1904, to the Ordinance as if ’that Ordinance were an
enactment’.
section 25 of the General Clauses Act provides for continuance of a notification
issued under a repealed enactment which is to ’be deemed to have been issued under the
provisions re-enacted’. The notification issued under the Ordinance applying the same to other
areas was thus deemed to have been issued under the Act but the High Court of Bombay held that
the notification extended the ’Ordinance’ and although it was to be deemed to be made under the
Act the word ’Act’ could not be read instead of ’Ordinance’ in the notification so as to extend the
Act to those areas. The Supreme Court overruled the High Court and held that the purpose of the
legal fiction created by section 15 and the corollary of declaring
section 25 of the General Clauses Act applicable necessitated that wherever the word
’Ordinance’ occurred in the notification that word was to be read as ’enactment’.11
In another case12 dealing with the

Indian Income-tax Act, 1922 , which by section 18-A(3) required any person not
hitherto assessed to send in certain circumstances an estimate of his income to the I.T.O. for
purposes of advance payment of tax and which by clause (9) provided that if during the course of
regular assessment the I.T.O. was satisfied that such person had without reasonable cause faild to
comply with clause (3) the assessee ’shall be deemed to have failed to furnish the return of his
total income and the provisions of section 28, so far as may be, shall apply accordingly’, the
question was whether a penalty could be levied under section 28 which provided for the levy of
penalty when a person without reasonable cause failed to furnish a return of his total income after
notices under section 22(2) or section 34 had been issued to him. The Supreme Court answered
the question in the affirmative and held that the failure to send the estimate under clause (3) of
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section 18-A was by the fiction created by clause (9) of the same section deemed to be a failure to
send a return and consequently “all those facts on which alone there could be failure to send the
return must be deemed to exist and it must accordingly be taken that by reason of this fiction
notices required to be given under section 22 must be deemed to have been given”; making
section 28 applicable.13
Explanation 2 of section 2(15) of the Estate Duty Act, 1953 furnishes example of a
legal fiction which extends the normal meaning of a word. The explanation provides: “The
extinguishment at the expense of the deceased of a debt or other rights shall be deemed to have
been a disposition made by the deceased in favour of the person for whose benefit the debt or
right was extinguished and in relation to such a disposition the expression ’property’ shall include
the benefit conferred by the extinguishment of a debt or right”. In view of this explanation it has
been held that when the deceased, who was a coparcener in a Hindu Joint Family, entered into a
partition within two years before his death in which he received as his share an allotment
substantially lower in value than he could have legally got, there was a disposition by the
deceased of his interest in the family property in favour of other members of the family to the
extent of the difference between the value of the deceased's share which he could have received
and what was actually received by him and that the value of this interest was includible in the
principal value of estate of the deceased liable to estate duty.14
In a case15 arising out of the Ajmer Merwara Municipalities regulation 1925, which by section 93
provided for appeals against the levy of any tax and by sub-section (4) of section 222 provided
that any money recoverable by the Committee under sub-section (1) of the same section ’shall be
recovered as if it were a tax levied by the Committee’, the question was whether an appeal could
be filed under section 93 against the claim of money by the municipal committee under section
222(1). The Supreme Court held that such an appeal could be filed and observed: “If by the
fiction introduced by section 222(4) the amount in question is to be deemed as if it were a tax, it is
obvious that full effect must be given to this legal fiction; and in consequence, just as a result of
the said fiction the recovery procedure prescribed by section 234 (for taxes) becomes available to
the committee so would the right of making an appeal prescribed by section 93(1) be available to
the appellant”.16
section 33(1) of the Monopolies and Restrictive Trade Practices Act, 1969 as
amended declares that any agreement falling within clauses (a) to (l) shall be deemed to be an
agreement relating to restrictive trade practices and shall be subject to registration. Construing this
provision it was held that an agreement falling within any of the clauses (a) to (l) will be held to
be an agreement relating to restrictive trade practice because of the legal fiction and it will be
immaterial to consider whether it falls within the definition of restrictive trade practice in section
2(o).17 No exception can be taken to this view. It was, however, further held that if a person gets
an agreement registered it is not open to him to contend that the agreement does not relate to
restrictive trade practice as it does not fall under any of the clauses (a) to (l) or within the
definition in section 2(o).18 It is submitted that this view is open to the objection that it is not the
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registration of an agreement which makes the legal fiction operate but the fact that the agreement
falls under any of the clauses (a) to (l). Therefore, if a person by way of abundant caution gets an
agreement registered to avoid possibility of prosecution it should be open to him to contend that
the agreement does not fall under any of the clauses and is not a restrictive trade agreement when
proceedings are taken before the commission under section 37.
But although full effect must be given to the legal fiction, as already noticed it should not be
extended beyond the purpose for which it is created.19 S.R. Das, J. referred to this principle in his
opinion in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory State
of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory 20
and as acting Chief Justice re-affirmed the same in his leading judgment in Bengal Immunity Co.
Ltd. v. State of Bihar. Bengal Immunity Co. Ltd. v. State of Bihar. 21 In
the latter case the learned Chief Justice stated that “legal fictions are created only for some
definite purpose”, and he proceeded to add that “a legal fiction is to be limited to the purpose for
which it was created and should not be extended beyond that legitimate field”.22
It was, therefore, held in modification to the view expressed in United Motor's case23 that the
Explanation to artcile 286(1)(a) of the
Constitution (as it stood before the
Constitution Sixth Amendment Act) could not be extended to artcile 286(2) either as
an exception or as a proviso thereto so as to convert inter-State transactions into intra-State
transactions qua the delivery State. The Explanation on its true construction was for the purpose
of explaining an outside sale referred to in sub-clause (a) of artcile 286(1) and the fiction created
by it could not be extended beyond that purpose.24
In construing section 19(3) of the Bengal Public Demands Recovery Act, 1913, which provided
that ’the Certificate holder shall be deemed to be the representative of the holder of the attached
decree, and to be entitled to execute such attached decree in any manner lawful for the holder
thereof,’ the Privy Council pointed out that the legal fiction created thereby was for a limited
purpose of enabling the certificate holder to execute the decree and to satisfy his own claim out of
proceeds of such execution but he was not in the position of an assignee of the decree, so as to
acquire all the rights of the original decree-holder in the decree.25
Mention may also be made of cases relating to interpretation of

section 24-B of the Income-tax Act, 1922 . According to the scheme of the Act, the
individual assessee had to be a living person and the assessment had to be in respect of the income
of previous year. By section 24-B, legal representatives were by fiction made assessees for the
purposes of the income received in the previous year, during which the assessee died. It was held
that the fiction could not be extended to bring within its ambit sums received by the legal
representatives subsequent to the previous year.26
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Similarly the fiction enacted in

section 7(3) of the Hindu Succession Act, 1956 by the words ’as if the sthanam
property had been divided per capita immediately before the death of sthanamdar among himself
and all the members of his family’ was held to be introduced for the purpose of determining the
shares of the members of the family and heirs of the sthanamdar and not for limiting the
devolution of the sthanam property to the extent of the share which on such hypothetical division
was held by the sthanamdar. The opening words of the section made it clear that on the death of
the sthanamdar, the entire sthanam property devolved on the members and heirs, and, therefore,
the entire property was held liable to payment of estate duty on the death of sthanamdar.27
Another illustration of restriction of the effect of the fiction to its avowed object is furnished by
the decision of the Supreme Court which construed
section 9(2) of the Central Sales Tax Act, 1956 before its amendment by Act 103 of
1976. This section enabled the assessing authorities under the general sales tax law of the
appropriate State to assess, reassess, collect and enforce payment of tax including any penalty
payable by a dealer under the
Central Sales Tax Act as if the tax or penalty payable by such a dealer under this Act
(the
Central Sales Tax Act ) is a tax or penalty payable under the general Sales Tax Law
of the State; and the section ’for this purpose’ authorised the authorities to exercise all or any of
the powers under the general Sales Tax Law of the State. It was held by the Supreme Court that
the deeming provision contained in the section could not mean that the penalty imposed under the
State Act would be deemed to be exigible under the Central Act and that the section did not
authorise assessment or collection of any tax or penalty not imposed by the Central Act.28
Again the fiction enacted in

section 2A of the Industrial Disputes Act, 1947 by which a dispute relating to
termination of services of an individual workman is deemed to be an industrial dispute has been
given a restricted construction and it has been held that pendency of such a dispute before the
Industrial Tribunal does not bring into effect the suspension of the workers' right to strike under
section 23 of the Act.29
A more recent example where a fiction has not been extended beyond its purpose is furnished by
the case30 construing clause 5(3)(ii) of the Imports (Control) Order which provides: “It shall be
deemed to be a condition of every such licence (Import's licence) that the goods for the import of
which a licence is granted shall be the property of the licensee at the time of import and thereafter
upto the clearance through customs”. It was held that the fiction created by this clause was for the
proper implementation of the Imports (Control) Order and the Imports and Exports (Control) Act,
1947 and to hold 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, that
is, in a situation where he does not pay and receive the documents of title. In a more recent case
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the fiction enacted in

section 36 of the Arbitration and Conciliation Act, 1996 that the award shall be
enforced under the
Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court
was not extended to make an award a ’decree’ for purposes of section 9(2) of the Presidency
Insolvency Act 1909.31 In another recent case, the fiction enacted in section 32 of the Stamp Act
that when a document is stamped in accordance with the order of the Collector passed under
section 31 and contains a certificate of the Collector that it “shall be deemed to be duly stamped”
was not extended to negative the revisional power of the Board of Revenue, against the order of
Collector under section 31, arising under section 56(4) as amended in Madhya Pradesh.32
section 14 of the Customs Act, 1962 which provides for valuation of goods for
assessment of Customs duty enacts a fiction that the value shall be deemed to be the price at
which such goods are ordinarily sold in international market ’at the time and place of
importation’. As the import of goods is completed when the goods reach the customs barrier and
the bill of entry for home consumption is filed, it was held that the value will include the landing
charges which have to be paid before the goods are cleared for home consumption and that by its
inclusion the fiction is not extended beyond its purpose.33
section 73 of the Mumbai Municipal Corporation Act, 1949 empowers the commissioner to
execute contracts on behalf of the corporation but clause (c) of the section restricts the power in
case of contracts which invoke an expenditure of more than a lakh with the requirement of
’previous approval’ of the standing committee. Clause (c), further provides that ’the standing
committee shall consider and dispose of the proposal made by the commissioner in that behalf
within fifteen days from the date on which the item is first included in the agenda of any meeting
of that committee and failing which the approval to such contract shall be deemed to have been
given by the committee’. Construing this provision, it has been held that if the standing committee
in its meeting requires the commissioner to place before the committee relevant materials for
deciding whether or not to grant approval, the fiction will not operate otherwise the provision
requiring approval will not be workable and the object of providing for approval will be
defeated.34
The Legislature may sometimes create a chain of fictions by the same Act or by succeeding
Acts.35 If A is deemed to be B, and B is deemed to be C, the inevitable consequence may be that A
is deemed to be C. By section 8 of the Abolition of Privy Council Jurisdiction Act, 1949, any
order made by His Majesty in Council on an Indian Appeal was to have effect as if it were an
order or decree made by the Federal Court and by artcile 374(2) of the
Constitution , judgments and orders of the Federal Court are to have the same effect
as if they had been delivered or made by the Supreme Court. The legal effect of these two fictions
is, that an order in an Indian Appeal made by the Privy Council before its jurisdiction was
abolished, is to have effect as if it were an order made by the Supreme Court.36
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The administration of Evacuee Property Ordinance (Central Ordinance 12 of 1949), was repealed
and replaced by Ordinance 27 of 1949 with a deeming provision that anything done or action
taken under the repealed Ordinance was deemed to have been done or taken under the repealing
Ordinance as if it were in force when the thing was done or action was taken.Ordinance 27 of
1949, was replaced and repealed by Act 31 of 1950, which also contained a similar deeming
clause that anything done or action taken under Ordinance No. 27 of 1949 was to be deemed to
have been done or taken under the Act as if it were in force when the thing was done or the action
taken. As a result of these fictions it was held that an order passed by the Deputy Custodian under
Ordinance 12 of 1949, was to be deemed to be an order made under Act 31 of 1950, and was thus
revisable under section 27 of that Act.37
In 1955, the Central Government acting under section 3 of the Imports and Exports (Control) Act,
1947, issued Imports (Control) Order, 1955, which consolidated all orders in one place and
repealed all previous orders on the subject. It provided that all licences issued under the repealed
orders were to be deemed to be issued under the new order. It further provided for certain deemed
conditions of every licence. It was held that the deemed conditions of a licence under the new
order became also the conditions of a licence issued under the repealed orders but deemed to be
issued under the new order.38
Outside the bounds of the legal fiction the difference between the reality and the fiction may still
persist in the provisions of the same Act which creates the fiction and the difference may be
ascertained by referring to the subject and context of those provisions.39
It must, also, be noticed that the word ’deemed’ which is normally used to create a statutory
fiction may also be used to put beyond doubt a meaning which may otherwise be uncertain or to
give to the statutory language a comprehensive description that it includes what is obvious, what
is uncertain and what is in ordinary sense impossible.40
The principle stated and discussed above relating to the interpretation and application of a
statutory fiction has also been applied to a non-statutory legal fiction that acquittal in appeal takes
effect retrospectively and wipes out the sentence awarded by the lower court. This retrospective
operation of acquittal only means that the stigma attached to the conviction and the rigour of the
sentence are completely obliterated but that does not mean that the fact of conviction and sentence
is wiped out and if a person was disqualified for being chosen to fill the seat for which an election
is held on the date of scrutiny of his nomination paper by the returning officer because of his
conviction, he will become qualified if later on his conviction is set aside in appeal.41
6. MANDATORY AND DIRECTORY PROVISIONS
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(a) General
The study of numerous cases on this topic does not lead to formulation of any universal rule
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 mandatory or directory. In an oft-quoted passage Lord Campbell said: “No universal rule can be
laid down as to whether mandatory enactments shall be considered directory only or obligatory
with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the
real intention of the Legislature by carefully attending to the whole scope of the statute to be
considered”.42 As approved by the Supreme Court: “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 follow from construing it the one way or the
other.”43 “For ascertaining the real intention of the Legislature”, points out Subbarao, J. “the court
may consider inter alia, the nature and design of the statute, and the consequences which would
follow from construing it the one way or the other; the impact of other provisions whereby the
necessity of complying with the provisions in question is avoided; the circumstances, namely, that
the statute provides for a contingency of the non-compliance with the provisions; the fact that the
non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial
consequences, that flow therefrom; and above all, whether the object of the legislation will be
defeated or furthered”.44 If object of the enactment will be defeated by holding the same directory,
it will be construed as mandatory,45 whereas if by holding it mandatory serious general
inconvenience will be created to innocent persons without very much furthering the object of
enactment, the same will be construed as directory.46 But all this does not mean that the language
used is to be ignored but only that the prima facie inference of the intention of the Legislature
arising from the words used may be displaced by considering the nature of the enactment, its
design and the consequences flowing from alternative constructions. Thus, the use of the words
’as nearly as may be’ in contrast to the words ’at least’ will prima facie indicate a directory
requirement,47 negative words a mandatory requirement,48 ’may’ a directory requirement49 and
’shall’ a mandatory requirement.50
If a provision is mandatory an act done in breach thereof will be invalid, but if it is directory the
act will be valid although the non-compliance may give rise to some other penalty if provided by
the statute.51
It has often been said that a mandatory enactment must be obeyed or fulfilled exactly, but it is
sufficient if a directory enactment be obeyed or fulfilled substantially.52 The latter half of this
proposition is, however, not quite accurate as even a complete non-compliance of a directory
provision has been held in many cases as not affecting the validity of the act done in breach
thereof.53 It has been suggested that directory requirements fall under two heads: (1) Those which
should be substantially complied with to make the act valid; (2) those which even if not at all
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complied with have no effect on the act.54 The correct position appears to be that substantial
compliance of an enactment is insisted, where mandatory and directory requirements are lumped
together, for in such a 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.55 The point may be explained by taking an example of a set of service
rules which provide that adverse remarks shall be communicated to the civil servant concerned
ordinarily within seven months.56 The object of communicating the adverse remarks is to give an
opportunity to the civil servant to improve his performance to make up the deficiency noticed in
his work and to give him an opportunity to represent against the remarks, in case he disputes
them, to the reviewing authority. In the light of this object and having regard to the part adverse
remarks play in the service career, the rules on a proper construction will require: (i)
communication of the remarks to the civil servant concerned; (ii) communication within a
reasonable time; and (iii) communication ordinarily within seven months. The first two
requirements will be construed as mandatory and non-compliance of either of them will make the
remarks as also any adverse action on their basis invalid. The third requirement will be treated as
directory and its non-compliance alone will not make the remarks invalid if the first two
requirements are satisfied. To take another example,
section 117 of the Representation of the People Act, 1951 provides: ’At the time of
presenting an election petition, the petitioner shall deposit in the High Court in accordance with
the Rules of the High Court a sum of two thousand rupees as security for costs of the petition’.
Construing this section it has been held that the requirement of making the deposit of two
thousand rupees as security is mandatory and the same has to be made while presenting an
election petition, but the mode of deposit as well as the person who could make the deposit is
directory. Therefore, if the deposit of two thousand rupees as security for costs has been made at
the time of presentation of the petition although not by the petitioner, it would be said that section
117 has been substantially complied with and there is no non-compliance with its provisions to
bring about the petition's dismissal.57section 149(1) of the Patna Municipal Corporation Act, 1951
requires that the Executive Officer shall sign the assessment list and ’shall give public notice by
beat of drum and by displaying placards posted in conspicuous places'. Interpreting the section it
was held that requirement of public notice was mandatory but the requirement of manner of
publication was directory, therefore, public notice in the newspapers was substantial compliance
though there was no publication by beat of drum or by posting placards.58sections 13(3) and 13(4)
of the Medical Council Act, 1956 as amended by Act 34 of 2001 require every Indian Citizen,
obtaining medical qualification from any institution outside India, to qualify in a screening test in
India for being enrolled in a medical register in India, after ’such date as the Central Government
may by notification specify in the Official Gazette’. The Central Government specified 15-3-2002
as the date for bringing into effect the Screening Test Regulations. But the date and the
Regulations were published in the Official Gazette by a notification of the Medical Council of
India and not by a notification of the Central Government which was held to be substantial
compliance obviously for the reason that requirement of specification of date by the Central
Government was construed as mandatory and the requirement of the Central Government
notifying it in the Official Gazette directory.59 These examples illustrate the lumping of
mandatory and directory requirements at one place and substantial compliance with them if
mandatory part is complied with even if the directory part is not complied with.
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A directory provision may be distinguished from a discretionary power. The former gives no
discretion and is intended to be obeyed, but a failure to obey it does not render a thing duly done
in disobedience of it a nullity. The latter, i.e., a discretionary power leaves the donee of the power
free to use or not to use it at his discretion.60
The problem of interpretation is not always solved by labelling a requirement either mandatory or
directory and it may become much more important to focus on the consequences of non-
compliance.61 For example in interpreting the words ’could be tried together with the accused’ in
section 319(1) of the Criminal Procedure Code , 1974 which enables the arrest or
summoning of a person not an accused in a pending trial, the Supreme Court did not stop merely
by saying that the provision is directory and held that having regard to consequences, the
provision could not be construed to mean ’must be tried’ together with the accused for otherwise
such a person will escape the trial for the offence if the trial of the accused is over before he is
brought before the court.62
The general rule, that non-compliance of mandatory requirements results in nullification of the act
is subject at least to two exceptions. One exception is when performance of the requirement is
impossible; performance is then excused.63 Another exception is of waiver. 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 interests are
involved, and in such a case the act done will be valid even if the requirement or condition has not
been performed.64 It was, therefore, held that the requirement of notice under
section 80 of the Code of Civil Procedure although mandatory could be waived by
the defendant as the provision was enacted merely for the protection of the defendant State or
Authority.65 On the same principle, compliance of section 35 of the Bengal Money-lenders Act
which requires certain matters to be specified in a sale proclamation for the benefit of the
judgment-debtor, although mandatory, can be waived by him.66 It must, however, be remembered
that the principle of waiver applies when the requirements of the statute do not involve any
question of public interests or public policy for when the conditions are prescribed for protection
of the public or on grounds of public policy, the performance of the conditions cannot be
waived.67 But it is possible that when conditions are prescribed for the protection of the public the
resultant act done in violation of the conditions though invalid against persons generally may be
valid between particular persons. This can be illustrated from a case from Kenya where the Privy
Council held on a construction of an Ordinance that the non-compliance with the requirement of
attestation prescribed by the Ordinance did not make the document invalid between parties thereto
although it became invalid against other persons.68 Similarly, if some requirement is prescribed
for protection of the Government as in artcile 299 of the
Constitution which has not been observed in execution of a contract of lease, but if
there is no other illegality in the transaction, the lease is not void against other persons even if not
enforceable against the Government.69
While considering the non-compliance with a procedural requirement, it has to be kept in view
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that such a requirement is designed to facilitate justice and further its ends and therefore, if the
consequence of non-compliance is not provided, the requirement may be held to be directory.70
Thus the requirement in
section 13(2) of the Consumer Protection Act, 1986 that the opposite party is to file
its reply within thirty days or such extended period not exceeding fifteen days as may be granted
by the District Forum has been held to be directory and the Forum cannot be said to be debarred
from taking on record a reply filed beyond fortyfive days.71 Approving this case, similar view has
been taken by a three judge Bench of order 8,
sec. 1 of the Code of Civil Procedure which requires a defendant to present a written
statement within thirty days from the date of service of summons or within such extended period
granted by the court but which shall not be later than ninety day from the date of service of
summons.72 The rules of procedure are to be construed not to frustrate or obstruct the holding of
enquiry under the substantive provision. The requirement of rules 6(6) of the Bihar Legislative
Council Members (Disqualification on Ground of Defection) Rules, 1994 made under 10th
Schedule of the
Constitution requiring a petition to the chairman to be signed and verified in the
manner laid down in the
Code of Civil Procedure for the verification of pleadings was not held to be
mandatory so as to make any non-compliance with it to frustrate enquiry by the chairman for
there is no provision in the 10th Schedule to the effect that until a petition which is signed and
verified as required by
CPC is presented to the chairman he will not have jurisdiction to give his decision on
the question of defection of a member under the Schedule.73
In the context of procedural requirements and their non-compliance, the approach suggested by
Lord Woolf M.R. is to regard the question whether a requirement is directory or mandatory as
only atmost a first step. The other questions to be considered in this context, according to Lord
Woolf are: “Is the statutory requirement fulfilled if there has been substantial compliance with the
requirement and, if so, has their been substantial compliance in the case in issue even though there
has not been strict compliance? (The substantial compliance question). Is the non-compliance
capable of being waived, and if so, has it or can it and should it be waived in this particular case?
(The discretionary question). If it is not capable of being waived or is not waived then what is the
consequence of non-compliance? (The consequence question).”74 In this case the question related
to the non-compliance with rules 13(3) of the Asylum Appeal (Procedure) Rules, 1993 which
requires that if the secretary of State seeks to challenge the decision of the Immigration Appeal
Tribunal ’an application for leave shall be made by serving upon the Tribunal, the Form
prescribed in the schedule’. rule 38 of the Rules provides that any irregularity resulting from
failure to comply with the Rules shall not by itself render the proceedings void and if the appellate
authority finds that any person may have been prejudiced, it may before reaching the decision
take such steps as it thinks fit to cure the irregularity. In this case although the prescribed form
was not used, the only procedural omission was the absence of a declaration of truth as required in
the Form. It was held that though this omission was a substantial non-compliance, the irregularity
was cured by Rule 38 and the requirement to use the form was not to be regarded as a strict
requirement.75 It will be seen that the Rules considered in this case by rule 38 conferred a power
on the Appellate Authority to waive or cure any irregularity resulting from failure to comply with
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the Rules. It is submitted that in cases where no such power is conferred on the court, failure to
comply with a procedural requirement, which is held to be mandatory, and is not capable of being
waived by the party concerned or if capable of being waived by him, has not been waived, may be
fatal. For example, a provision requiring the tenant in a proceeding for eviction under the
Maharashtra Rent Control Act, 1999 to apply to the Competent Authority within 30 days of the
service of summons for leave to defend by an affidavit stating the grounds of defence and
providing further that in default the statement filed by the landlord shall be deemed to be admitted
and he would be entitled to obtain an order for eviction has been held to be mandatory. It was held
that the Authority not being a court has no discretion to extend the time for filing defence by the
tenant and it was bound to pass the order of eviction on the default of the tenant to apply within
30 days for leave to defend.76 But as further stated by Lord Woolf provisions intended to have that
effect “will be few and far between” and in majority of cases the court's task “will be to seek to do
what is just in all the circumstances” of the case.77 Further, sometimes a question of prejudice
may also have to be considered while considering the effect of non-compliance with a procedural
requirement.78
(b) When consequences provided by statute
When consequence of nullification on failure to comply with a prescribed requirement is provided

by the statute itself, there can be no manner of doubt that such statutory requirement must be
interpreted as mandatory.79
The provisions of Ceylon Ordinance No. 7 of 1840, which by clauses 2 and 21 provided certain
formalities for transfers and contracts and further provided that no transfer or contract ’shall be of
force or avail in law’ unless it was made in conformity with those requirements, were held by the
Privy Council to be mandatory.80
The periods prescribed in the Schedule to the Indian

Limitation Act , 1908, for bringing a legal proceeding are mandatory as the
consequence of the expiry of the period of limitation is provided by section 3 of the Act in that the
court is enjoined to dismiss a legal proceeding instituted after expiry of the prescribed period.81
The requirement as to registration of certain documents prescribed by

section 17 of the Registration Act, 1908 , or by any provision of the
Transfer of Property Act, 1882 , is mandatory since the consequence of non-
registration is provided by
section 49 of the Registration Act in that such documents if not registered do not
affect the property comprised therein.82
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section 82 of the Representation of the People Act, 1951 , which requires certain
candidates to be joined as respondents to an election petition was held to be directory before
amendment of the Act by Act 27 of 1956, as no consequence of non-joinder was till then provided
by the Act.83 But after introduction of section 90(3) by the
Amending Act which requires the Election Tribunal to dismiss an election petition
for non-compliance of section 82, the said provision has been held to be mandatory.84section
33(5) of the same Act which requires a candidate who is an elector of different constituency to
produce a certified copy of his relevant entry in the Electoral Roll at the time of scrutiny has been
interpreted as mandatory as the consequence of such non-compliance is provided by section 36(2)
of the same Act which empowers the Returning Officer to reject a nomination paper for non-
compliance of section 33.85 Gajendragadkar, J. delivering the judgment of Supreme Court in this
case observed: “Whenever a statute requires a particular act to be done in a particular manner and
also lays down that failure to comply with the said requirement leads to a specific consequence, it
would be difficult to accept the argument that the failure to comply with the said requirement
should lead to any other consequence.”86
It is an application of the same principle that the provisions of Order 21, Rule
s 84 and
85 of the
Code of Civil Procedure requiring an auction-purchaser to deposit twentyfive per
cent of the purchase money forthwith and the balance on the fifteenth day from the sale, have
been held to be mandatory, as on failure, in making either of these deposits within the time
prescribed, the property has to be re-sold as provided in Order 21, rule 84 and 86.87
In a case relating to interpretation of section 47 of the Punjab Municipal Act, 1911, which in sub-
sections (1) and (2) lays down certain formalities for contracts or transfers made by a municipal
committee and by sub-section (3) provides that ’no contract or transfer of the description
mentioned in this section executed otherwise than in conformity with the provisions of this
section shall be binding on the committee’, Sinha, C.J. observed that: “it is settled law that
provisions of a statute in those peremptory terms could not but be construed as mandatory”.88
In some cases the consequence provided for breach of an imperative duty may itself require
construction in the light of other provisions of the Act. Thus section 64 of the Police and Criminal
Evidence Act , 1984 prohibiting use of a sample, which should have been destroyed,
as evidence or for investigation was construed not to affect admissibility of other evidence in
court collected in an investigation which was prohibited provided it did not affect fairness of the
trial under section 78 of the same Act.89
When the statute does not expressly provide for nullification as a consequence of the non-
compliance of the statutory injunction but imposes expressly some other penalty, it is a question
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of construction in each given case whether the Legislature intended to lay down an absolute
prohibition or merely to make the offending person liable for the penalty. A large number of cases
involving such a question have arisen in relation to enforcement of agreements made in
contravention of some statutory requirements and principles that emerge out of them have been
admirably summed up in Halsbury's Laws of England which may be usefully quoted: “If the
penalty is recurrent, that is to say, if it is imposed not merely once for all but as often as the act is
done, this amounts to a prohibition. Where the object of the Legislature in imposing the penalty is
merely the protection of the revenue, the statute will not be construed as prohibiting the act in
respect of which the penalty is imposed; but where the penalty is imposed with the object of
protecting the public though it may also be for protection of the revenue, the act must be taken to
be prohibited, and no action can be maintained by the offending party on a contract which is made
in contravention of the statute.”90 If the statute, having regard to its object, purpose and scope “is
found to be directory, penalty may be incurred for non-compliance but the act or thing done is
regarded as good.”91 Thus violation of certain confidential unpublished directions, issued by the
Reserve Bank of India under sections 36(1)(a) and 36(1)(b) of the Banking
Companies Act , which were known to the Banks but not to others, prohibiting Banks
from entering into certain transactions was held not to affect the validity of the transactions but
only to make the Banks liable for penalty under section 46 of the Act.92 Further, even in cases&
where the agreement is illegal, any property transferred to achieve the illegal purpose will vest in
the transferee and the court will not assist the transferor in recovering the property but may assist
the transferee in protecting the property if he has not to rely on the illegal agreement.1
Further a provision expressly nullifying an agreement prima facie absolutely may as a proper
construction be creating merely a temporaneous or transient nullity.2 artcile 85(1) of the EC
Treaty (enforced in U.K. by the European Communities Act, 1972 ) prohibits as incompatible all
agreements which affect trade between member States and which have their object or effect the
prevention, restriction or distortion of competition within the common market; and artcile 85(2)
declares that any agreements prohibited pursuant to this Article shall be automatically void. On a
proper construction of artcile 85 it has been held that agreements are prohibited when and while
they are incompatible with competition in the common market and not otherwise and that nullity
imposed by artcile 85(2) has a temporaneous or transient effect.3 So if as a result of a change of
circumstances the prohibition no longer applies as between the parties to the agreement, then the
agreement between them ceases to be void.4
(c) Use of negative words
Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing
the command in a negative form. As stated by Crawford: “Prohibitive or negative words can
rarely, if ever, be directory. And this is so even though the statute provides no penalty for
disobedience.”5 As observed by Subbarao, J.: “Negative words are clearly prohibitory and are
ordinarily used as a legislative device to make a statute imperative”.6section 807 and section 87-B8
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of the
Code of Civil Procedure, 1908 ; section 779 of the
Railways Act , 1890 ; section 1510 of the Bombay Rent Act, 1947 ; section 21311 of
the Succession Act, 1925 ; section 5-A12 of the
Prevention of Corruption Act 13
, 1947 ; section 7 of the Stamp Act, 1899 ;
section 108 of the Companies Act, 1956 ;14
section 20(1) of the Prevention of Food Adulteration Act, 1954 ;15
section 55 of the Wild Life Protection Act, 1972 ;16 the proviso to
section 33(2)(b) of the Industrial Disputes Act, 1947 (as amended in 1956);17section
10A of Medical Council Act, 1956 (as amended in 1993),18 and similar other provisions have
therefore, been construed as mandatory. A provision requiring ’not less than three months’ notice’
is also for the same reason mandatory.19
But the principle is not without exception. section 256 of the Government of India Act, 1935, was
construed by the Federal Court as directory though worded in the negative form.20 Directions
relating to solemnization of marriages though using negative words have been construed as
directory in cases where the enactments in question did not provide for the consequence that the
marriage in breach of those directions shall be invalid.21 Considerations of general inconvenience,
which would have resulted in holding these enactments mandatory, appear to have outweighed the
effect of the negative words in reaching the conclusion that they were in their true meaning
merely directory. An interesting example, where negative words have been held to be directory, is
furnished in the construction of section 25-F22 of the
Industrial Disputes Act, 1947 , where compliance of clause (c) has been held to be
23
directory; although compliance of clauses (a) and (b) which are connected by the same negative
words is understood as mandatory.24 These cases25 illustrate that the rule, that negative words are
usually mandatory, is like any other rule subordinate to the context, and the object intended to be
achieved by the particular requirement.
(d) Affirmative words may imply a negative
Affirmative words stand at a weaker footing than negative words for reading the provision as
mandatory;26 but affirmative words may also be so limiting as to imply a negative. In an appeal
from West Africa, the Privy Council approved of a passage from the judgment of the President of
West African Court of appeal (Sir Henley Coussey) in which referring to the relevant sections of
the Ordinance in question, the President stated: “It is true that there are no negative words in the
section referred to but the affirmative words are absolute, explicit, and peremptory; and when you
find in an Ordinance only one particular mode of effecting the object, one train of formalities to
be observed, the regulative provisions which the section prescribes, are essential and
imperative.”27 The rule stated by Viner is to the same effect: “Every statute limiting anything to
be in one form, although it be spoken in the affirmative, yet it includes in itself a negative”.28 As
an example of an Indian statute of this description, the provisions of
sections 54 ,
59 ,
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107 and
123 of the
Transfer of Property Act, 1882 , prescribing modes of transfer by sale, mortgage,
lease or gift may be mentioned. 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.29
(e) Use of ’shall’ or ’shall and may’; ’must’ and ’should’
The use of word ’shall’ raises a presumption that the particular provision is imperative;30 but this
prima facie inference may be rebutted by other considerations such as object and scope of the
enactment and the consequences flowing from such construction. There are numerous cases
where the word ’shall’ has, therefore, been construed as merely directory.31 “The word ’shall’”,
observes Hidayatullah, J. “is ordinarily mandatory but it is sometimes not so interpreted if the
context or the intention otherwise demands”,32 and points out Subbarao, J.: “When a statute uses
the word ’shall’, prima facie it is mandatory, but the court may ascertain the real intention of the
Legislature by carefully attending to the whole scope of the statute”.33 If different provisions are
connected with the same word ’shall’, and if with respect to some of them the intention of the
Legislature is clear that the word ’shall’ in relation to them must be given an obligatory or a
directory meaning, it may indicate that with respect to other provisions also, the same
construction should be placed.34 If the word ’shall’ has been substituted for the word ’may’ by an
amendment, it will be a very strong indication that use of ’shall’ makes the provision
imperative.35 Similar will be the position when the Bill as introduced used the word ’may’ and the
Parliament substituted the word ’shall’ in its place while passing the Act.36 The use of word ’may’
at one place and ’shall’ at another place in the same section may strengthen the inference that
these words have been used in their primary sense and that ’shall’ should be construed as
mandatory.37 When the expressions ’shall’ and ’may’ are defined in the Act (for example ’shall
presume’ and ’may presume’ in
section 4 of the Evidence Act ) the expressions have to be given the meaning as
defined.38
The words ’shall and may’ are construed imperatively.39 As pointed out by Lord Brougham: “If
the words are it ’shall and may’ be so and so done, by such and such officer and body then the
word ’may’ is held in all soundness of construction to confer, a power but the word ’shall’ is held
to make that power, or the exercise of that power compulsory”.40 Similarly, the words ’shall and
lawfully may’, are in their ordinary import obligatory.41 The use of the word ’shall’ with respect
to one matter and use of word ’may’ with respect to another matter in the same section of a
statute, will normally lead to the conclusion that the word ’shall’ imposes an obligation, whereas
the word ’may’ confers a discretionary power.42 But that by itself is not decisive and the court
may having regard to the context and consequences come to the conclusion that the part using
’shall’ is directory.43
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The use of the word ’must’ in place of ’shall’ will itself be sufficient to hold the provision to be
mandatory and it will not be necessary to pursue the enquiry any further.44 The use of the word
’should’ instead of ’must’ may not justify the inference that the provision is directory if the
context shows otherwise.45
(f) Considerations of general inconvenience in statutes imposing public duty;

provisions as to time; provisions for consultation
Where a statute imposes a public duty and 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 prescriptions may be a relevant factor in holding such prescriptions only directory.
In considering whether a statute is imperative, Denman, J. stated: “a balance may be struck

between the inconvenience of sometimes rigidly adhering to, and the convenience of sometimes
departing from its terms”.46 It was held in that case that where a public officer is directed by a
statute to perform a duty within a specified time the cases establish that provisions as to time are
only directory.47 Similarly, it has been held while construing
section 17(1) of the Industrial Disputes Act, 1947 , that it is obligatory on the
Government to publish an award, but the provision, that it should be published within thirty days,
is not mandatory and an award published beyond thirty days is not invalid.48 A provision fixing a
time, within which a public officer or authority has to act in performance of a duty, generally
means that the statute considers it reasonable for the officer or authority to act within the said
period. The expiry of the period without more confers no right unless the statute by a legal fiction
or otherwise confers a right. Thus a provision in a Municipal Act that an application for layout
should be disposed of within a particular time does not mean that the application must be deemed
to have been granted after expiry of the said period unless there is a provision to that effect made
in the Act.49 If performance of a public duty is required to be done within a specified time, which
is also related to a right given to a person, the provision as to time will still be held as directory
unless it is shown that the person on whom the related right is conferred is prejudiced because of
the non-performance of the duty within the specified time. Thus time prescribed by rule 7(3) of
the Food Adulteration Rules, which requires that the Public Analyst ’shall within a period of forty
five days' deliver to the Local (Health) Authority a report of the result of his analysis has been
held to be directory unless the delay has prejudiced the right of the accused to have the samples of
food analysed by the Central Food Laboratory for example when the samples become unfit for
analysis because of the delay.50 It may be relevant to see whether the requirement of time is
addressed to a party or an officer, for in the former case it may be mandatory.51 Further, if the
statutory provision as to time is a condition for exercise of a statutory power as distinguished from
a duty, the prescription as to time will be construed as mandatory.52 But whether it be a case of
statutory duty or statutory power, the statute may expressly or impliedly make the authority
functus officio on expiry of the prescribed period.53 Further though when a public authority is
required to do a certain thing within a specified period, the same is ordinarily directory, it is
equally well settled that when consequence for inaction on the part of the statutory authority
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within the specified time is expressly provided, it must be held to be imperative.54
But periods fixed for holding election to a Legislative Assembly and a municipality by artcile
174(1) and artcile 243-U of the
Constitution have been held to be mandatory by
Constitution Benches and elections have to be held in time even though revision of
electoral rolls is not possible within that time.55
The principle was stated by the Privy Council in the following words: “When the provisions of a
statute relate to the performance of a public duty and the case is such that to hold null and void
acts in neglect of this duty would work serious general inconvenience, or injustice to persons who
have no control over those who are entrusted with the duty, and at the same time would not
promote the main object of the legislature, it has been the practice to hold such provisions to be
directory only”.56 In that case the question involved was whether the omission to revise the jury
lists, as directed by statute, had the effect of invalidating the verdict of jury, and their Lordships
held that the irregularities in the due revision of the jury lists did not in itself avoid the verdict of
the jury.57 This principle was followed by the Federal Court in construing section 256 of the
Government of India Act, 1935, requiring consultation between public authorities before the
conferment of magisterial powers and it was held that the provision was directory.58 Similarly, the
provision in artcile 320(3)(c) of the
Constitution requiring that the Public Service Commission shall be consulted on all
disciplinary matters affecting a Civil Servant, has been interpreted as directory and its non-
compliance was held as not vitiating the disciplinary action taken.59 On the same principle the
provision of section 5(5) of the Patiala
Income-tax Act requiring the Commissioner of Income-tax to consult the minister in
charge before investing the Income-tax Officers with their functions was held to be directory.60
Hidayatullah, J., after referring to the previous cases observed: “The essence of the rule is that
where consultation has to be made during the performance of a public duty and an omission to do
so occurs, the action cannot be regarded as altogether void, and the direction for consultation may
be treated as directory and its neglect, as of no consequence to the result.61
These cases62 must, however, be distinguished from other decisions of the Supreme Court63 where
provisions as to consultation were held mandatory.
In K.S. Srinivasan's case,64 requirement of consultation with the Public Service Commission
imposed by rule 4(b) of the Central Civil Service (Temporary Service) Rules, 1949, before
declaration as to quasi-permanent status of a Civil Servant under rule 3, was held to be mandatory
on the ground that the Civil Servant “cannot claim the benefit of rule 3 and ignore, at the same
time the conditions laid down in rule 4(b), In other words, he cannot claim the benefit of a part of
the rules and refuse to be bound by the conditions of the other part”.65
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Having regard to the gravity of a dispute as to the age of a High Court Judge provision for
consultation with the Chief Justice of India in artcile 217(3) of the
Constitution has been held to be mandatory.66 Similarly 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 artcile 233 of the
Constitution , has been held to be mandatory. It was held in this case that
appointments of candidates recommended by the High Court on the basis of a list prepared by a
selection committee were invalid. It was said in that context that if A is empowered to appoint B
in consultation with C, he will not be exercising the power in the manner prescribed if he appoints
B in consultation with C and D.67 In another case, it was said in the same context that consultation
is not complete or effective before parties thereto make their respective points of view known to
the other or others and discuss and examine the relative merits of their views. If one party makes a
proposal and the other party has a counter proposal in his mind which is not communicated to the
proposer, an order issued to give effect to the counter proposal cannot be said to have been made
after consultation.68 But if a meeting of all the persons required to be consulted is called in which
all of them have opportunity to be present and deliberate, a decision taken in the meeting cannot
be challenged on the ground that some of the persons required to be consulted were absent in the
meeting.69 It is, however, accepted that if A is to act after consulting B, the advice of B is not
binding on A.70 The nature of consultation and 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 transfers of judges of High Courts as required by artcile
s 124 ,
217 and
222 of the
Constitution 71
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 confirmity 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 transfers of High Court judges.72
In Hardwar Singh v. Bagun Sumbrui, Hardwar Singh v. Bagun Sumbrui,

73 the Supreme Court construed a rule made under artcile 166(3) of the
Constitution which provided that no department shall without previous consultation
with the Finance Department authorise any orders affecting the finances of the State. In holding
the rule mandatory the Court pointed out that it was in a negative form and related to exercise of a
power rather than to performance of a public duty.
section 3 of the Orissa

Lokpal and Lokayuktas Act , 1995 provides for appointment of Lokpal for conducting
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investigations into actions which are taken by or with the general or special approval of the Chief
Minister or a Minister or Secretary in a case where a grievance or allegation is made or could be
made. Only a person who is or has been a judge of the Supreme Court or a High Court is qualified
for appointment as Lokpal. The appointment is to be made by the Governor ’after consultation
with the Chief Justice of Orissa and the Leader of the Opposition’. Construing this provision it
was held that having regard to the nature of functions to be discharged by the Lokpal and the
nature of his qualification, consultation with the Chief Justice was not only mandatory but his
opinion had primacy whereas the opinion of the Leader of the Opposition was not binding and he
had no power to recommend some one else for the appointment.74
It is difficult to lay down any precise general formula for finding whether a particular provision
requiring consultation is mandatory or directory and whether the opinion expressed by the person
consulted would be binding or not and as to what would be the manner and extent of consultation
required by the provision except to state that the answers to these questions will depend upon the
right construction of the Act having regard to its scheme and object. The Supreme Court,
however, in Indian Administrative Service (SCS) Ass. U.P. v. Union of India, Indian
Administrative Service (SCS) Ass. U.P. v. Union of India, 75 has in this context culled
out the following six propositions:
(1) Consultation is a process which requires meeting of minds between the parties involved in
the process of consultation on the material facts and points involved to evolve a correct or
at least satisfactory solution. There should be meeting of minds between the proposer and
the persons to be consulted on the subject of consultation. There must be definite facts
which constitute the foundation and source for final decision. The object of the
consultation is to render consultation meaningful to serve the intended purpose. Prior
consultation in that behalf is mandatory.
(2) When the offending action affects fundamental rights or to effectuate built-in insulation, as
fair procedure, consultation is mandatory and non-consultation renders the action ultra
vires or invalid or void.
(3) When the opinion or advice binds the proposer, consulation is mandatory and its infraction
renders the action or order illegal.
(4) When the opinion or advice or view does not bind the person or authority, any action or
decision taken contrary to the advice is not illegal, nor becomes void.
(5) When the object of the consultation is only to apprise of the proposed action and when the
opinion or advice is not binding on the authorities or person and is not bound to be
accepted, the prior consultation is only directory. The authority proposing to take action
should make known the general scheme or outlines of the actions proposed to be taken be
put to notice of the authority or the persons to be consulted; have the views or objections,
take them into consideration, and thereafter, the authority or person would be entitled or
has/have authority to pass appropriate orders or take decision thereon. In such
circumstances it amounts to an action ’after consultation’.
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(6) No hard-and-fast rule could be laid, no useful purpose would be served by formulating
words or definitions nor would it be appropriate to lay down the manner in which
consultation must take place. It is for the court to determine in each case in the light of its
facts and circumstances whether the action is ’after consultation’; ’was in fact consultated’
or was it a ’sufficient consultation’.76
(g) Formalities prescribed for making contracts or transfers
Formalities and requirements for making contracts or transfers have generally been held to be
imperative. Provisions of the
Constitution 77 78
Acts and Municipal Acts providing the manner in which contracts
and transfers shall be executed have been held to be mandatory. Similarly, the mode of making
sale, mortgage, lease or gift prescribed by the
Transfer of Property Act 79
, and the formalities prescribed for transfer of shares under
80
the Company Law, have been held to be imperative. The language in these cases is held
mandatory either on the view that by holding it directory the very object of the provisions will be
defeated or on the view that the same implies a negative prohibiting any mode of transfer other
than permitted by the statute.
If an agreement is required to be ’in writing’, it does not necessarily follow that the statute in
addition to the formality of a writing also requires that both parties should sign the writing.81 Thus
an arbitration agreement although required by the
Arbitration Act , 1940, to be in writing need not be signed by parties for making it
82
valid. If an agreement is required to be ’in a prescribed form’ a literal compliance is not
essential if the material terms and conditions are reduced into writing,83 and if the form indicates
the place where the parties have to sign, absence of signatures of the parties does not vitiate the
agreement.84 The requirement of form may be mandatory if the statute provides for the
consequence of nullification of agreement unless made in accordance with the form.85
If the Act confers power on the State Government to exempt any land from a restriction or
prohibition on transfer contained in the Act, exemption granted after the transfer will be
ineffective if the Act automatically invalidates the transfer made in violation of the restriction or
prohibition but if a declaration under the Act is a pre-requisite for such an invalidity the transfer
will be effective if the exemption is granted before such a declaration.86
(h) Statutes conferring power; Express and Implied conditions; Judicial Review
(i) General
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In a country governed by the rule of law no authority exercises any absolute discretion or power.87
A statutory functionary must act in a manner laid down in the statute. Thus issuance of an oral
order or direction is not contemplated under the administrative law and statutory functionaries are
enjoined with duty to pass written orders.88 A power conferred by a statute often contains express
conditions for its exercise and in the absence of or in addition to the express conditions there are
also implied conditions for exercise of the power.1 An express condition relating to the exercise of
a statutory power may imply a prohibition. But this may not take away incidental powers flowing
from the grant of power. An exercise of a statutory power in breach of express or implied
conditions will be illegal if the condition breached is mandatory. An illegal exercise of power can
be challenged by the public law remedy of judicial review2 or by a private law remedy of civil
suit.3 The distinction between public law and private law in this respect is too thin and has been
almost obliterated.4
(ii) Express conditions; Implied prohibition; Incidental powers
In statutes conferring a power to be exercised on certain conditions, the conditions prescribed are
normally held to be mandatory;5 and a power inconsistent with those conditions is impliedly
negatived. So, if a corporation is authorised to do an act, e.g. to borrow at interest, subject to
certain conditions, it must be deemed to have been prohibited to do the said act except in
accordance with the provisions of the Act which confers the authority on it.6 Even an affirmative
Act prescribing the conditions for exercise of a power conferred by it, is construed as mandatory.
The rule stated in Bacon's Abr.7 is: “If an affirmative statute which is introductive of a new law
directs a thing to be done in a certain way, that thing shall not, even if there be no negative words,
be done in any other way”. It is an application of the principle of implied prohibition that a
Nationalisation Act permitting transfer of assets vested in the government to a government
company impliedly prohibits privatisation of the government company to which the assets are
transferred.8 The rule of implied prohibition is, however, subservient to the basic principle that the
court must, as far as possible, adopt a construction which effectuates the legislative intent and
purpose.9 Further, the rule of implied prohibition does not negative the principle that an express
grant of statutory power carries with it by necessary implication the authority to use all reasonable
means to make such grant effective.10 For example when an Act of Parliament gives a justice
Jurisdiction over an offence, it impliedly gives him a power to make out a warrant and bring
before him any person charged with that offence.11 Similarly, power conferred on a Magistrate to
grant maintenance to a wife, child or parent under
section 125, Criminal Procedure Code, 1973 to prevent vagrancy implies a power to
allow interim maintenance, for the person seeking maintenance may not have means to subsist
until the final order is passed.12 Indeed, it has been said to be well settled that a statutory tribunal
which has been conferred the power to adjudicate a dispute has implied power to implement and
execute its order.13 On this basis it was held that a District Forum under the
Consumer Protection Act, 1986 has power to execute its orders and it is only in case
of its inability to execute its order that it has to send the order for execution to the civil court
under section 25 of the Act.14 On the same principle, when a corporation is conferred a power it
impliedly authorises everything which could be fairly and reasonably regarded incidental or
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consequential to the power conferred.15 Thus power conferred on a local authority to issue
licences for holding ’hats' or fairs will imply an incidental power to fix days therefore16 and power
conferred on Cane Commissioner to compel cane growers to supply cane to sugar factories will
imply an incidental power to ensure payment of price of cane by the factories to the cane
growers.17 But a power which is said to be incidental cannot be inferred from an express power
unless the power sought to be inferred is absolutely essential and not merley convenient for
exercise of the power expressly conferred.18 For instance from an express power to prescribe
syllabii or courses of instruction in languages an implied power to prescribe text books cannot be
inferred.19 “It is not sufficient” that a power to be impliedly derived “be sensible or desirable”.
The implication has to be that it is “necessary in order to make the statutory power effective to
achieve its purpose”.20 So a statutory power to issue a warrant for removal of a person suffering
from mental disorder does not imply a power to direct named professionals to accompany the
constable at the time of execution of warrant.21
The principles set out above were restated and applied by Lahoti, J., in Jamaluddin Ahmad v.
Abusaleh Najmuddin. Jamaluddin Ahmad v. Abusaleh Najmuddin. 22
The question in the case was whether presentation of an election petition to the Stamp Reporter of
the High Court of Assam in accordance with the Rules of the High Court was valid presentation.
Section 80A of the Representation of the People Act, 1951 confers jurisdiction on the
High Court for trial of election petition and section 86 provides for presentation of the petition to
the High Court. Section 169 of the Act confers power on the Central Government to make rules
for carrying out the purpose of the Act. Neither the Act nor any rule made by the Central
Govenrment indicates the officer or authority of the High Court to whom the election petition is to
be presented. In such a situation the court held that the High Court had implied power to devise
the procedure on the incidental and ancillary matter relating to the ministerial act of receiving the
petition in the High Court and it could either continue with the existing practice of receiving
petitions and documents just in other civil jurisdictions or make other convenient and workable
procedure for receiving election petitions. In this view of the matter the presentation of the
petition to the Stamp Reporter of the High Court was held to be valid.
In deciding that a confession must be recorded in the manner prescribed by

section 164, Criminal Procedure Code , 1898, or not at all, Lord Roche stated the
rule in these words: “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.”23 Lord
Roche observed that this is a “well recognised rule” and that this doctrine has often been applied
to courts.24 He referred to Taylor's case25 where it is pointed out that “where a statutory power is
conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that
no other mode is to be adopted”. There is stronger reason to apply this rule when a confession
recorded by a police officer is made admissible and so a confession recorded by a Superintendent
of Police under section 15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 was
held to be inadmissible unless recorded in the manner provided by the Act and Rule 15 of the
Rules made under the Act.26 A settlement agreement in a conciliation proceeding can be recorded
and authenticated by the conciliator only in the manner provided in
section 73 of the Arbitration and Conciliation Act, 1996 and a court cannot confirm a
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settlement agreement which is not so recorded.27 The same rule has been applied to purely
administrative power, e.g., of disconnecting a telephone in the event of any emergency which is
drastic in nature and dispenses with the requirement of natural justice,28 and the power of the Bar
Council of India of taking urgent action by circulation of a resolution to its members.29 A
statutory condition that while passing an order a public authority should intimate by the order
itself that the person concerned has a right of appeal against the order has been held to be
mandatory.30 The principle does not, however, mean that the power, the mode of exercise of
which is laid down by a statute, must be exercised and the authority on whom the power is
conferred has no discretion not to exercise it,31 unless the circumstances are such that the power
gets coupled with a duty to exercise it.32
When the statute provides a method of suspending a High Court judge pending investigation of
charges against him for his removal, that method alone can be adopted for suspending him and the
Chief Justice has no administrative power to so fix the court roster as to virtually deprive him
from functioning as a judge.33
A power to be exercised after ’prior approval’ of a named authority cannot be validly exercised
without such approval. For example restriction placed on police by section 20A of the Terrorists
and Disruptive Activities (Prevention) Act, 1987 not to take cognizance of any offence ’without
the prior approval of the District Superintendent of police’ has been held to be mandatory.34 When
the requirement is only of ’approval’ and not of ’prior approval’ the action holds good; only if it is
disapproved it loses its force.35
When a statute prescribes the condition of ’permission’ of some authority for acquisition of some
property, it does not necessarily mean ’prior permission’ and permission ex post facto may
validate the acquisition; such a construction may be readily drawn when the statute at other places
uses the words ’prior permission’ whereas in the section in question it uses the word ’permission’
without any qualification.36 But generally action taken without complying with the requirement of
’permission’, will not become effective till permission is obtained.37
Similarly a power to be exercised on recommendation of a named authority cannot be exercised

without the recommendation of that authority. Recommendation in this context means ’giving of a
favourable report’ for exercise of the power.38
A requirement to obtain the ’views' of the Government before certain action is taken is not a
requirement to obtain ’approval’ of the Government.39
If a power is conferred on a particular body or person to institute legal proceedings for

enforcement of the Act which confers such power, legal proceeding can only be instituted in the
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manner prescribed by the Act and not otherwise. It was, therefore, held that a person not
authorised under section 537 of the Calcutta Municipal Act, 1923, to institute legal proceedings
could not file a complaint for initiating criminal prosecution for an offence under the Act.40
On the same principle it has been held that a person can challenge the election of the President of
India only in accordance with the provisions of the
Presidential and Vice-Presidential Elections Act, 1952 and a person who neither is
nor can claim to be a candidate cannot challenge the election for, under section 14A(1) only any
candidate or 20 or more electors joined together can present an election petition.41 And, it has
been held that when the Patna High Court Rules (Rule 6 of Chapter XXI-E) provided that an
election petition be presented to the designated election Judge in the open court and if the Judge
be not available to the Bench hearing civil applications and motions, no other mode of
presentation could be valid.42
In statutes conferring power to deprive the liberty of citizens, the conditions prescribed for the
exercise of the power, including implied conditions and procedural requirements, must be strictly
followed. Numerous cases dealing with arrest and preventive detention emphasise this principle.43
The requirement implied under
section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 , that the
authorised officer should inform the person to be searched of his right that if he so requires he
would be produced before a Gazetted Officer or Magistrate for search being conducted before
him, has been held to be obligatory vitiating the conviction for possession of a contraband drug
alleged to be found on search without informing the accused of the aforesaid right.44 In holding
so, Dr. Anand CJI for a
constitution bench observed: “After Maneka Gandhi v. Union of India,
Maneka Gandhi v. Union of India,
(1978) 1 SCC 248 [
LNIND 1978 SC 25 ] :
AIR 1978 SC 597 [
LNIND 1978 SC 25 ], it is no longer permissible to contend that the
right to personal liberty can be curtailed even temporarily, by a procedure which is not
’reasonable, fair and just’ and when a statute itself provides for a just procedure it must be
honoured.”45 But the question whether violation of a procedural step will make the detention ab
initio void or make only continued detention invalid would depend upon the facts of each case
and the nature of step which is violated. For example, it has been held that if an order of detention
is validly made under section 3(1) of the Conservation of Foreign Exchange and Prevention of
Smuggling Act, 1974 [COFEPOSA] but the detenue is not intimated of his right to make
representation to the Advisory Board which is an implied obligation when by a declaration under
section 9(1) of the Act the period of detention without obtaining the opinion of the Advisory
Board is extended, the detention will not become void from the very beginning but will become
invalid from the date of declaration under section 9(1) when he ought to have been intimated of
his right to make representation resulting in denial of his right under
Article 22(5) of the Constitution .46 Further, though the provisions of the Act
affecting personal liberty are to be strictly complied, the court cannot distort the meaning of plain
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words and give them a strained construction. For example, the requirement in
section 3(5) of the National Security Act, 1980 that when the order of detention is
made or approved by the State Government, it shall within seven days report the fact to the
Central Government’ could not be construed to mean that the report itself should reach the
Central Government within seven days.47
Conditions prescribed for exercise of a power affecting private property must also be strictly
followed.48 So it has been held that the preliminary notification under
section 4 of the Land Acquisition Act, 1894 , must be published in the manner
required by that section containing particulars of the land proposed to be acquired,50 and
49
particulars of the public purpose for which it is needed,51 provision made in section 5A for
objecting to the proposed acquisition cannot be lightly dispensed with52 and urgency provisions in
section 17 of the Act cannot be readily invoked to forego the normal procedure.53 Power
conferred on a State Government to divest proprietary rights by publication of a notification in
Official Gazette and in ’at least two issues of two newspapers' was held to be not effectively
exercised when the notification was published in Official Gazette but not in two issues of two
newspapers.54 And similarly, power conferred on a State Electricity Board under
section 6 of the Electricity (Supply) Act, 1948 , to purchase the undertaking of a
licensee by giving a notice ’requiring the licensee to sell the undertaking’ was held not to have
been effectively exercised by serving a notice intimating that the Board has decided to ’exercise
the option of purchasing the undertaking’.55 Requirement of notice to a person interested, before a
town planning scheme is finalised has also been held to be mandatory for the provision for notice
ensures fair procedure under
Articles 14 and
21 of the
Constitution before a person is made to lose his property as a result of the scheme.56
Similarly a provision that designation/ reservation of certain land for a particular purpose in a
town planning scheme will lapse if the land is not acquired within ten years and thereafter within
six months after notice by the owner has been held to be mandatory and steps for acquisition for
the designated purpose under the scheme taken subsequently will be ineffective.57
A statutory power must be exercised only by the person on whom it is conferred unless the
statute, by express words or necessary implication, permits delegation in which case it may also
be exercised by the delegate, if delegation is made in terms of the statute.58 For example, if a
University Act confers the power to dismiss an officer on the executive council and to delegate
that power on approval of the Chancellor, the Vice-Chancellor cannot exercise the power if
delegation to him is made without obtaining the approval of the Chancellor and, further, the Vice-
Chancellor's act of dismissing an officer without valid delegation cannot also be ratified by the
Executive Council.59
And when a power is conferred to take action on being satisfied as to certain conditions ’for
reasons to be recorded’, action cannot be taken simply on being satisfied without recording the
reasons of satisfaction even though the satisfaction required is only subjective and the exercise of
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the power administrative. In such a case mere recording of satisfaction as to the existence of those
conditions is not enough but the reasons which led to that satisfaction must be recorded, otherwise
the exercise of the power will be in excess of jurisdiction; the same result will follow if the
reasons recorded are totally irrelevant and not germane to the content and the scope of the power
conferred by the statute.60 Power to take action conferred on the Government after ’stating the
grounds of its opinions’ has similarly been construed; and it has been held that grounds of
opinion, i.e., the conclusions of facts on which the opinion is based must be stated otherwise the
exercise of power will be invalid.61 But if the statute does not require either the recording of
satisfaction or the reasons therefor, an order made without recording the satisfaction as to
fulfilment of the conditions on which the exercise of the power depends, does not make the order
invalid. In such cases it is the fact of satisfaction of the authority which gives rise to jurisdiction
and not the recording of the satisfaction. The difference only is this, that if the satisfaction has
been recorded, a presumption will arise that the authority was really satisfied and the person who
disputes the existence of such satisfaction will have to establish the non-existence thereof;
whereas if the satisfaction has not been recorded and a person challenges the existence of
satisfaction, the authority will have to establish that it was in fact satisfied before passing the
order. This principle will apply whether the order in question is executive or in the nature of
subordinate legislation.62
The requirement to ’record the grounds of his belief’, before an excise officer conducts a search
under section 54 of the Mysore
Excise Act , has been held to be mandatory and its violation rendering invalid the
entire search and the conviction based on it.63 Similarly, the requirement of ’recording the
grounds of his belief’ under the proviso to section 42(1) of the Narcotic Drugs and Psycotropic
Substances Act, 1985, when an authorised officer conducts a search between sunset and sunrise,
has been held to be mandotory and failure thereof invalidating the search and vitiating the trial.64
Section 6(1) of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act,
1976 , empowers the Competent Authority to issue notice for forfeiture of property if
he has reason to believe that the property could not have been acquired from known sources of
income, earnings or assets. But the section requires that the reasons for such belief be recorded in
writing. This condition has been held to be mandatory and a notice of forfeiture issued without
recording the reasons would be invalid.65
The power of the Central Government under the Proviso to

section 3(3) of the Unlawful Activities (Prevention) Act, 1967 to declare an
association to be unlawful with immediate effect for reasons to be stated in writing cannot be said
to be validly exercised unless the reasons are recorded and communicated to the affected party by
incorporating the same in the notification or otherwise by a communication simultaneously
issued.66 It has been held that ’to state’ has a wider connotation than the words ’to record’ and
contemplates information to the party affected.67 The same thing will follow if the statutory
provision casts an obligation to serve a copy of the order to be passed ’for reasons to be recorded
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in writing’; it will imply that the copy served must contain the reasons.68
A power to make an order ’without assigning any cause’ or ’without assigning any reasons' does
not confer any power to act arbitrarily. It only means that reasons for making the order need not
be communicated to the person affected by the order; but reasons must exist for making the
order.69 As every state action must satisfy the rule of non-arbitrariness, the duty to record reasons
may be impliedly inferred.70
Another principle which may be noticed in the context of statutory powers is that a public
authority cannot fetter the future exercise of the power by a private contract but when the contract
itself is entered into in the exericse of the statutory power the position is different and the
stipulations in the contract are binding and the authority cannot disregard them and exercise the
statutory power uninhibited or unfettered by them.71 The latter statement must however be read as
qualified to this extent that if the statute confers authority to disregard a contract entered into in
exercise of the statutory power in specified circumstances the authority will have the power to
disregard the contract in those circumstances.72 Further, when the contract entered into in exercise
of the statutory power itself enables or contemplates its variation by further exercise of the
statutory power, the future exercise of the statutory power by the public authority remains
unfettered.73
Conferral of power, however, does not take away an existing power which is different from that
power which is conferred and regulated by the statute;74 and when a statute deals with two powers
the conditions and restrictions as to one do not affect the other.75
When a power is to be exercised in accordance with the rules or subject to rules, the power may
still be exercisable even though no rules have been made.76
1 Bhogilal Chunnilal Pandya v. State of Bombay, Bhogilal Chunnilal Pandya v. State

of Bombay,
AIR 1959 SC 356 [
LNIND 1958 SC 137 ], p. 357: 1959 Supp (1) SCR 310; K.N. Guruswamy v. State of Mysore,
K.N. Guruswamy v. State of Mysore,
AIR 1954 SC 592 [
LNIND 1954 SC 104 ]:
(1955) 1 SCR 305 [
LNIND 1954 SC 104 ]; Raghubans Narain Singh v. Uttar Pradesh Government,
Raghubans Narain Singh v. Uttar Pradesh Government,
AIR 1967 SC 465 [
LNIND 1966 SC 207 ], p. 469 :
1967 (1) SCR 423 [
LNIND 1966 SC 196 ]; Mohd. Shafi v. VII Additional District and Sessions Judge, Allahabad,
Mohd. Shafi v. VII Additional District and Sessions Judge, Allahabad,
AIR 1977 SC 836 , p. 840 :
1977 (2) SCR 464 :
Mr.Srikanth -
Page 41 of 108
(1977) 2 SCC 226 ; Suresh Chand v. Gulam Chisti, Suresh Chand v. Gulam
Chisti,
AIR 1990 SC 897 [
LNIND 1990 SC 54 ], p. 907 :
1990 (1) SCC 593 [
LNIND 1990 SC 54 ].
2 Shamrao Vishnu Parulekar v. District Magistrate, Thana, Shamrao Vishnu

Parulekar v. District Magistrate, Thana,
AIR 1957 SC 23 [
LNIND 1956 SC 60 ], pp. 26, 27 :
1956 SCR 644 [
LNIND 1956 SC 60 ]; Aswini Kumar Ghose v. Arabinda Bose, Aswini Kumar
Ghose v. Arabinda Bose,
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 392 :
1953 SCR 1 [
LNIND 1952 SC 94 ]; Payne (Inspector of Taxes) v. Barratt Developments (Luton) Ltd.,
Payne (Inspector of Taxes) v. Barratt Developments (Luton) Ltd.,
(1985) 1 All ER 257 , p. 260 (HL); CIT v. Venkateshwara Hatcheries (P.) Ltd.,
CIT v. Venkateshwara Hatcheries (P.) Ltd.,
JT 1999 (2) SC 338 [
LNIND 1999 SC 299 ], pp. 345, 346:
AIR 1999 SC 1225 [
LNIND 1999 SC 299 ], p. 1231:
(2001) 10 SCC 569 .
3 Farrell v. Alexander, Farrell v. Alexander,

(1976) 2 All ER 721 , p. 736 (HL); Central Bank of India v. Ravindra, Central
Bank of India v. Ravindra,
AIR 2001 SC 3095 , p. 3114:
(2002) 1 SCC 367 (7th Edition of this book p. 263 is referred).
4 Bhogilal Chunnilal v. State of Bombay, supra, Bhogilal Chunnilal v. State of

Bombay, supra, p. 357.
5 Shamrao Vishnu Parulekar v. District Magistrate, Thana, Shamrao Vishnu

Parulekar v. District Magistrate, Thana,
AIR 1957 SC 23 [
LNIND 1956 SC 60 ], pp. 26, 27:
1956 SCR 644 [
LNIND 1956 SC 60 ].
6 Madras Electric Supply Corporation Ltd. v. Boarland, (Inspector of Taxes), Madras

Electric Supply Corporation Ltd. v. Boarland, (Inspector of Taxes),
(1955) 1 All ER 753 , pp. 759, 760 (HL).
7 Infabrics Ltd. v. Jaytex Ltd., Infabrics Ltd. v. Jaytex Ltd.,

(1981) 1 All ER 1067 , p. 1066:
(1982) AC 1 :
(1982) 1 WLR 646 (HL).
8 Ramnarayan Mor v. State of Maharashtra, Ramnarayan Mor v. State of

Maharashtra,
AIR 1964 SC 949 [
LNIND 1963 SC 300 ], p. 953 :
(1964) 5 SCR 1064 [
Mr.Srikanth -
Page 42 of 108
LNIND 1963 SC 300 ]. See further Anand Nivas (P.) Ltd. v. Anandji Kalyanji's Pedhi,
Anand Nivas (P.) Ltd. v. Anandji Kalyanji's Pedhi,
AIR 1965 SC 414 [
LNIND 1963 SC 213 ], p. 428:
(1964) 4 SCR 892 [
LNIND 1963 SC 213 ]. (Word ‘tenant’ in different sections and different clauses construed
differently.) Samatha v. State of Andhra Pradesh, Samatha v. State of Andhra Pradesh,
AIR 1997 SC 3297 : 1997 (8) SCC 191. (The word ‘person’ in clause (a) of Regulation 3(1) of
the Andhra Pradesh Scheduled Area Land Transfer Regulation 1959 was construed to include ‘State’ whereas the same word in,
clauses (b) and (e) did not obviously include ‘State’.)
9 Maharaj Singh v. State of U.P., Maharaj Singh v. State of U.P.,

AIR 1976 SC 2602 [
LNIND 1976 SC 414 ], p. 2608:
1977 (1) SCC 155 [
LNIND 1976 SC 414 ]. The word ‘vest’ even when used once in a section may mean merely
vesting of management in the context of one property and vesting of ownership in the context of another property; M. Ismail (Dr.)
v. Union of India, M. Ismail (Dr.) v. Union of India,
JT 1994(6) SC 632 , p. 673:
AIR 1995 SC 605 , p. 636.
10 Brighton Parish Guardians v. Strand Union Guardians, Brighton Parish Guardians

v. Strand Union Guardians,
(1891) 2 QB 156 , p. 167(CA); Member, Board of Revenue v. Arthur Paul Benthall,
Member, Board of Revenue v. Arthur Paul Benthall,
AIR 1956 SC 35 [
LNIND 1955 SC 72 ], p. 38 :
1955 (2) SCR 842 [
LNIND 1955 SC 72 ]; CIT v. East West Import&Export (P.) Ltd., Jaipur, CIT v.
East West Import&Export (P.) Ltd., Jaipur,
AIR 1989 SC 836 [
LNIND 1989 SC 713 ], p. 838 :
(1989) 1 SCC 760 [
LNIND 1989 SC 713 ]; B.R. Enterprises v. State of U.P., B.R. Enterprises v.
State of U.P.,
AIR 1999 SC 1867 [
LNIND 1999 SC 517 ], p. 1902 :
(1999) 9 SCC 700 [
LNIND 1999 SC 517 ] (‘trade and business’ in Article 298 have different meaning from ‘trade
and commerce’ in Article 301); Shri Ishal Alloy Steels Ltd. v. Jayaswalas Neco Ltd., Shri Ishal Alloy Steels Ltd. v.
Jayaswalas Neco Ltd.,
JT 2001 (3) SC 114 [
LNIND 2001 SC 510 ], p. 119 :
(2001) 3 SCC 609 [
LNIND 2001 SC 510 ] :
AIR 2001 SC 1161 [
LNIND 2001 SC 510 ](The words ‘a bank’ and ‘the bank’ in section 138 N.I. Act do not have the
same meaning); The Oriental Insurance Co. Ltd. v. The Oriental Insurance Co. Ltd. v.
AIR 2001 SC 1832 [
LNIND 2001 SC 637 ], p. 1842 :
(2001) 5 SCC 175 [
LNIND 2001 SC 637 ]; Kailash Nath Agarwal v. Pradeshiya Indust and Inv. Corp. of U.P.,
Kailash Nath Agarwal v. Pradeshiya Indust and Inv. Corp. of U.P., 2003 AIR SCW 1358, p. 1365 :
(2003) 4 SCC 305 [
LNIND 2003 SC 202 ], p. 313. (The words ‘proceeding’ and ‘suit’ used in the same section
construed differently); D.L.F. Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, D.L.F.
Qutab Enclave Complex Educational Charitable Trust v. State of Haryana, 2003 AIR SCW 1046, p. 1057 :
AIR 2003 SC 1648 [
LNIND 2003 SC 213 ]:
(2003) 5 SCC 622 [
LNIND 2003 SC 213 ] (The expressions ‘at his own cost’ and ‘at its cost’, used in one section
given different meanings).
Mr.Srikanth -
Page 43 of 108
11 Member, Board of Revenue v. Arthur Paul Benthall, Member, Board of Revenue v.

Arthur Paul Benthall,
AIR 1956 SC 35 [
LNIND 1955 SC 72 ], p. 38 :
1955 (2) SCR 842 [
LNIND 1955 SC 72 ].
12 Labour Commissioner, M.P. v. Burhanpur Tapti Mills Ltd., Labour Commissioner,

M.P. v. Burhanpur Tapti Mills Ltd.,
AIR 1964 SC 1687 [
LNIND 1964 SC 102 ], pp. 1688, 1689 :
1964 (7) SCR 484 [
LNIND 1964 SC 102 ].
13 T.A. Krishnaswamy v. State of Madras, T.A. Krishnaswamy v. State of Madras,

AIR 1966 SC 1022 [
LNIND 1965 SC 367 ]:
1966 (3) SCR 31 [
LNIND 1965 SC 367 ].
14 CIT, v. East West Import&Export (P.) Ltd., Jaipur, CIT, v. East West
Import&Export (P.) Ltd., Jaipur,
AIR 1989 SC 836 [
LNIND 1989 SC 713 ], p. 838 :
1989 (1) SCC 760 [
LNIND 1989 SC 713 ].
15 Qualter Hall & Co. v. Board of Trade, Qualter Hall & Co. v. Board of Trade,
(1961) 1 All ER 210 , p. 215.
16 IRC v. Hinchy, IRC v. Hinchy,

(1960) 1 All ER 505 , p. 511 :
1960 AC 748 (HL).
17 Ramdas Vithaldas Durbar v. Amerchand & Co., Ramdas Vithaldas Durbar v.

Amerchand & Co.,
(1916) ILR 40 Bom 630, p. 638 (PC); Kanhayalal Vishindas Gidwani v. Arun Dattatraya
Mehta, Kanhayalal Vishindas Gidwani v. Arun Dattatraya Mehta,
AIR 2000 SC 3681 [
LNIND 2000 SC 1564 ], p. 3687 :
(2001) 1 SCC 78 [
LNIND 2000 SC 1564 ].
18 Cramas Properties Ltd. v. Connaught Fur Trimmings Ltd., Cramas Properties Ltd.
v. Connaught Fur Trimmings Ltd.,
(1965) 2 All ER 382 , pp. 385, 387 (HL).
19 See Chapter 2, title 2(a) ‘Natural and Grammatical Meaning’, text and note 9, pp. 82-83.
20 Mahadeolal Kanodia v. Administrator General of W.B., Mahadeolal Kanodia v.

Administrator General of W.B.,
AIR 1960 SC 936 [
LNIND 1960 SC 128 ], p. 939 :
1960 (3) SCR 590 [
LNIND 1960 SC 129 ]; Aswini Kumar Ghose v. Arabinda Bose, Aswini Kumar
Mr.Srikanth -
Page 44 of 108
Ghose v. Arabinda Bose,

AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 376 :
1953 SCR 1 [
LNIND 1952 SC 94 ]; G.G. in Council v. Shiromani Sugar Mills Ltd., G.G. in
Council v. Shiromani Sugar Mills Ltd.,
AIR 1946 FC 16 , p. 23 :
(1946) 19 ITR 248 ; Irrawaddy Flotilla Company v. Bugwandas, Irrawaddy
Flotilla Company v. Bugwandas,
(1891) ILR 18 Cal 620, p. 627 : 18 IA 121 (PC).
21 Eastern Counties and London and Blackwall Railway Companies v. Marriage,

Eastern Counties and London and Blackwall Railway Companies v. Marriage, 31 LJ Ex 73 (HL), p. 88 (LORD
WENSLEYDALE), p. 90 (LORD CHELMSFORD); Regional Provident Fund Commr., Bombay v. Shree Krishna Metal
Manufacturing Co., Bhandara, Regional Provident Fund Commr., Bombay v. Shree Krishna Metal Manufacturing
Co., Bhandara,
AIR 1962 SC 1536 [
LNIND 1962 SC 113 ], pp. 1540, 1541 : 1962 Supp (3) SCR 815. See further cases cited in
notes 30, 31 (pp. 352-53) and 35, p. 354).
22 Irrawaddy Flotilla Company v. Bhagwandas, supra, Irrawaddy Flotilla Company v.

Bhagwandas, supra, p. 627.
23 Mahadeolal Kanodia v. Administrator General of W.B., Mahadeolal Kanodia v.

Administrator General of W.B.,
AIR 1960 SC 936 [
LNIND 1960 SC 128 ], p. 939 :
1960 (3) SCR 578 [
LNIND 1960 SC 128 ].
24 Aswini Kumar Ghose v. Arbinda Bose, Aswini Kumar Ghose v. Arbinda Bose,
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 376 :
1953 SCR 1 [
LNIND 1952 SC 94 ].
25 Mongibai Hariram v. State of Maharashtra, Mongibai Hariram v. State of

Maharashtra,
AIR 1966 SC 882 [
LNIND 1965 SC 268 ]:
1966 (2) SCR 322 [
LNIND 1965 SC 268 ].
26 G.G. in Council v. Shiromani Sugar Mills Ltd., G.G. in Council v. Shiromani Sugar
Mills Ltd.,
AIR 1946 FC 16 , p. 23 :
(1946) 14 ITR 248 .
27 Siemens Engineering and Manufacturing Co. v. Union of India, Siemens

Engineering and Manufacturing Co. v. Union of India,
AIR 1976 SC 1785 [
LNIND 1976 SC 202 ]:
1976 (2) SCC 981 [
LNIND 1976 SC 202 ].
Mr.Srikanth -
Page 45 of 108
28 Hiten P. Dalal v. Bratindranath Banerjee, Hiten P. Dalal v. Bratindranath

Banerjee,
AIR 2001 SC 3897 [
LNIND 2001 SC 1311 ], pp. 3899, 3900 :
(2001) 6 SCC 16 [
LNIND 2001 SC 1311 ].
29 Regional Provident Fund Commr., Bombay v. Shree Krishna Metal Manufacturing Co., Bhandara,
Regional Provident Fund Commr., Bombay v. Shree Krishna Metal Manufacturing Co., Bhandara,
AIR 1962 SC 1536 [
30 State of Bombay v. R.M.D. Chamarbaugwala, State of Bombay v. R.M.D.

Chamarbaugwala,
AIR 1957 SC 699 [
LNIND 1957 SC 38 ], p. 708 :
1957 SCR 874 [
LNIND 1957 SC 37 ].
31
Article 143 of the Constitution of India . In the matter of,
AIR 1965 SC 745 , p. 760 :
1965 (1) SCR 413 (GAJENDRAGADKAR, C.J.).
32 Links Advertisers and Business Promoters v. Commr., Links Advertisers and

Business Promoters v. Commr., Corporation of the City of Bangalore,
AIR 1977 SC 1646 [
LNIND 1977 SC 194 ]: 1977 SCC (Tax) 431 :
(1977) 3 SCC 204 [
LNIND 1977 SC 194 ].
33 Miran Devi v. Birbal Dass, Miran Devi v. Birbal Dass,

AIR 1977 SC 2191 [
LNIND 1977 SC 227 ]:
1977 (3) SCC 496 [
LNIND 1977 SC 227 ].
34 Cantonment Board, Ambala v. Pyare Lal, Cantonment Board, Ambala v. Pyare Lal,
AIR 1966 SC 108 [
LNIND 1965 SC 78 ]:
(1965) 3 SCR 341 [
LNIND 1965 SC 78 ], For further illustration, see Board of Revenue, U.P. v. Rai Saheb Sidhnath
Mehrotra, Board of Revenue, U.P. v. Rai Saheb Sidhnath Mehrotra,
AIR 1965 SC 1092 [
LNIND 1964 SC 333 ]:
1965 (2) SCR 269 [
LNIND 1964 SC 333 ] (Construction of Explanation 1 to section 24 of the Stamp Act, 1889. In
the phrase ’sale of property subject to mortgage’, the words ’subject to mortgage’ were construed as qualifying ’sale’ and not
’property’.)
35 Great Western Rly. Co. v. Swindon and Cheltenham Extension Rly. Co., Great
Western Rly. Co. v. Swindon and Cheltenham Extension Rly. Co.,
(1884) 9 AC 787 , p. 808 (HL) (LORD BRAMVELL).
36 Union of India v. G.M. Kokil, Union of India v. G.M. Kokil, 1984 (Supp) SCC 196 :
AIR 1984 SC 1022 [
Mr.Srikanth -
Page 46 of 108
LNIND 1984 SC 87 ]; Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,

Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,
(1986) 4 SCC 447 , pp. 477, 478 :
AIR 1987 SC 117 ; Narcotics Control Bureau v. Kishan Lal, Narcotics Control
Bureau v. Kishan Lal,
AIR 1991 SC 558 , p. 561 :
(1991) 1 SCC 705 ; Orient Paper and Industries Ltd. v. State of Orissa, Orient
Paper and Industries Ltd. v. State of Orissa,
AIR 1991 SC 672 [
37 South India Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum, South
India Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum,
AIR 1964 SC 207 [
LNIND 1963 SC 182 ], p. 215; Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, supra
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, supra ; M. Venugopal v. Divisional Manager, Life Insurance Corporation,
M. Venugopal v. Divisional Manager, Life Insurance Corporation,
JT 1994 (1) SC 281 [
LNIND 1994 SC 135 ], p. 289 :
AIR 1994 SC 1343 [
LNIND 1994 SC 135 ], p. 1348; P.E.K. Kalliani Amma (Smt.) v. K. Devi, P.E.K.
Kalliani Amma (Smt.) v. K. Devi,
1996 (4) Scale 131 , p. 149 :
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ], pp. 1975, 1976 :
(1996) 4 SCC 76 [
LNIND 1996 SC 869 ] (This book is referred); Moreshwar Balkrishna Pandare v. Vithal Vyanku
Chavan, Moreshwar Balkrishna Pandare v. Vithal Vyanku Chavan,
AIR 2001 SC 2211 [
LNIND 2001 SC 1248 ], p. 2213 (Para 7) :
(2001) 5 SCC 551 [
LNIND 2001 SC 1248 ]; Iridium India Telecom Ltd. v. Motorola Inc, Iridium
India Telecom Ltd. v. Motorola Inc,
(2005) 2 SCC 145 [
LNIND 2005 SC 15 ], pp. 158, 159.
38 Pannalal Bansilal Patil v. State of Andhra Pradesh, Pannalal Bansilal Patil v. State
of Andhra Pradesh,
1996 (1) Scale 405 [
LNIND 1996 SC 119 ], p. 415 :
AIR 1996 SC 1023 [
LNIND 1996 SC 119 ], p. 1032 :
(1996) 2 SCC 498 [
LNIND 1996 SC 119 ].
39 T.R. Thandur v. v. T.R. Thandur v. v.

1996 SC 1643 , p. 1651 (para 8) :
1996 (3) SCC 690 [
LNIND 1996 SC 749 ].
40 Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur,
Punjab Sikh Regular Motor Service, Moudhapara, Raipur v. Regional Transport Authority, Raipur,
AIR 1966 SC 1318 [
LNIND 1965 SC 261 ]:
1966 (2) SCR 221 [
LNIND 1965 SC 261 ] (when provision A is subject to the provision B a case falling under
provision B is taken out of the provision A). Clark Ltd. v. IRC, Clark Ltd. v. IRC,
(1973) 2 All ER 513 , p. 520 (The phrase ’subject to’ is a simple provision which merely subjects
the provisions of the subject-sub-sections tothe provisions of the master-sub-sections. Where there is no clash, the phrase does
nothing; if there is collision, the phrase shows what is to prevail. The phrase provides no warranty of universal collision);
Commissioner of Wealth Tax v. Trustees of HEH Nizam's Family, Commissioner of Wealth Tax v. Trustees of HEH
Mr.Srikanth -
Page 47 of 108
Nizam's Family,
AIR 1977 SC 2103 [
LNIND 1977 SC 206 ]: 1977 SCC (Tax) 457 :
(1977) 3 SCC 362 [
LNIND 1977 SC 206 ] (construction of sections 3 and 21 of the Wealth Tax Act. Section 3 is
subject to other provisions of the Act; hence the case of a trustee which falls under section 21 is outside section 3); See further for
construction of the expression ’subject to’: Onkarlal Nandlal v. State of Rajasthan, Onkarlal Nandlal v. State of
Rajasthan,
(1985) 4 SCC 404 [
LNIND 1985 SC 292 ], p. 414 :
AIR 1986 SC 2146 [
LNIND 1985 SC 292 ]; Printers (Mysore) Ltd. v. M.A. Rasheed, Printers
(Mysore) Ltd. v. M.A. Rasheed,
(2004) 4 SCC 460 [
LNIND 2004 SC 438 ], p. 467; Union of India v. Azadi Bachao Andolan, Union
of India v. Azadi Bachao Andolan,
AIR 2004 SC 1107 [
LNIND 2003 SC 853 ], pp. 1120 (para 21), 1122 (para 28); Ashok Leyland v. State of Tamil
Nadu, Ashok Leyland v. State of Tamil Nadu,
AIR 2004 SC 2836 [
LNIND 2004 SC 1556 ], p. 2858. See also cases in f.n. 41.
41 South India Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum, South
India Corporation (P) Ltd. v. Secy., Board of Revenue, Trivandrum,
AIR 1964 SC 207 [
LNIND 1963 SC 182 ], p. 215 :
1964 (4) SCR 280 [
LNIND 1963 SC 182 ]; Kerala State Electricity Board v. Indian Aluminium Co.
Kerala State Electricity Board v. Indian Aluminium Co.
AIR 1976 SC 1031 [
LNIND 1975 SC 313 ], p. 1036 :
(1976) 1 SCC 466 [
LNIND 1975 SC 313 ] (Construction of
Article 246 of the Constitution which uses both the phrases ’Nothwithstanding anything in’ and ’subject to’);
Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, Chandavarkar Sita Ratna Rao v. Ashalata S. Guram,
(1986) 4 SCC 447 , p. 478.
42 ITO v. Gwalior Rayon Silk Manufacturing (Weaving) Co. Ltd. ITO v. Gwalior
Rayon Silk Manufacturing (Weaving) Co. Ltd.
AIR 1976 SC 43 [
LNIND 1975 SC 351 ], p. 47 : 1975 SCC (Tax) 457 :
(1975) 2 SCC 721 [
LNIND 1975 SC 351 ]. (The clause beginning with ’without prejudice’ is wrongly referred to as
a non obstante clause.) See further Andhra Pradesh State Financial Corporation v. Gar Re-Rolling Mills Andhra
Pradesh State Financial Corporation v. Gar Re-Rolling Mills
JT 1994(1) SC 586 :
AIR 1994 SC 2151 : (1994) 2 SCC 647. (When one remedy is without prejudice to another
remedy, the recourse to one remedy does not bar the taking of the other remedy after abandaning the one which is earlier resorted
to. The case relates to
sections 29 and
31 of the
State Financial Corporation Act .) Standard Chartered Bank v. Director of Enforcement,
Standard Chartered Bank v. Director of Enforcement,
(2006) 4 SCC 278 [
LNIND 2006 SC 145 ] (paras 21, 22) :
AIR 2006 SC 1301 [
LNIND 2006 SC 145 ](Construction of
s. 56 of FERA which commences with the words ’without prejudice’).
43 Aswini Kumar Ghose v. Arabinda Bose, Aswini Kumar Ghose v. Arabinda Bose,
AIR 1952 SC 369 [
LNIND 1952 SC 94 ], p. 390 :
1953 SCR 1 [
Mr.Srikanth -
Page 48 of 108
LNIND 1952 SC 94 ]; Dominion of India v. Shrinbai A. Irani, Dominion of

India v. Shrinbai A. Irani,
AIR 1954 SC 596 [
LNIND 1954 SC 92 ], p. 599 :
1955 (1) SCR 206 [
LNIND 1954 SC 92 ].
44 Aswini Kumar Ghose v. Arabinda Bose, supra, Aswini Kumar Ghose v. Arabinda
Bose, supra, pp. 376, 377; Dominion of India v. Shrinbai A. Irani, supra, Dominion of India v. Shrinbai A. Irani,
supra, p. 600.
45 R.S. Raghunath v. State of Karnataka, R.S. Raghunath v. State of Karnataka,

AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 89 :
1992 (1) SCC 335 [
LNIND 1991 SC 516 ].
46 ICICI Bank Ltd. v. SIDCO Ltd., ICICI Bank Ltd. v. SIDCO Ltd.,
(2006) 10 SCC 452 [
LNIND 2006 SC 328 ] :
AIR 2006 SC 2088 [
LNIND 2006 SC 328 ]; Ramdev Food Products (P.) Ltd. v. Arvindbhai Rambhai Patel,
Ramdev Food Products (P.) Ltd. v. Arvindbhai Rambhai Patel,
(2006) 8 SCC 726 [
LNIND 2006 SC 670 ] (para 66) :
AIR 2006 SC 3304 [
LNIND 2006 SC 670 ].
47 P. Virudhachalam v. Management of Lotus Mills, P. Virudhachalam v. Management

of Lotus Mills,
AIR 1998 SC 554 , pp. 561, 562 :
1998 (1) SCC 650 .
48 Ibid.
49 Satyanarayan Sharma v. State of Rajasthan, Satyanarayan Sharma v. State of

Rajasthan,
AIR 2001 SC 2856 [
LNIND 2001 SC 2145 ], pp. 2860, 2861 :
(2001) 8 SCC 607 [
LNIND 2001 SC 2145 ] (’Notwithstanding anything contained in this code’ in
section 482 Cr. P.C. cannot take away the effect of
section 19 of the PC Act which prevents grant of stay).
50 Sharda Devi v. State of Bihar, Sharda Devi v. State of Bihar,

AIR 2002 SC 1357 [
LNIND 2002 SC 199 ], p. 1360 :
(2002) 3 SCC 705 [
LNIND 2002 SC 199 ]. (In
section 54 of the Land Acquisition Act, 1894 the expression ’notwithstanding anything contained in any enactment’
does not exclude a Letters Patent appeal as Letters Patent is not an enactment.)
51 R.C. Pocdyal v. Union of India, R.C. Pocdyal v. Union of India,

AIR 1993 SC 1804 , p. 1845 :
1993 (2) JT 1 : 1994 Supp (1) SCC 324.
Mr.Srikanth -
Page 49 of 108
52 State of Sikkim v. Surendra Prasad Sharma, State of Sikkim v. Surendra Prasad

Sharma,
JT 1994 (3) SC 372 :
AIR 1994 SC 2342 : (1994) 5 SCC 282.
53 Dominion of India v. Shrinbai A. Irani, Dominion of India v. Shrinbai A. Irani,

AIR 1954 SC 596 [
LNIND 1954 SC 92 ], pp. 599, 600 :
1955 (1) SCR 206 [
LNIND 1954 SC 92 ].
54 Aswini Kumar Ghosh v. Arabinda Bose, Aswini Kumar Ghosh v. Arabinda Bose,
AIR 1952 SC 369 [
LNIND 1952 SC 94 ]:
1953 SCR 1 [
LNIND 1952 SC 94 ].
55 Ibid, p. 376.
56 Ibid, p. 377. Thus the Notwithstanding Clause ’Notwithstanding anything contained in the
Code of Criminal Procedure ’ in
section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which severaly restricts grant of bail by
the court washeld not to cover the provision for automatic bail in proviso to section 167(2) of the Code : Union of India v.
Thamisharasi, Union of India v. Thamisharasi,
1995 (3) Scale 72 : 1995 AIR SCW 2543 :
(1995) 4 SCC 190 .
57 A.V. Fernandez v. State of Kerala, A.V. Fernandez v. State of Kerala,

AIR 1957 SC 657 [
LNIND 1957 SC 34 ], pp. 662, 663 :
1957 SCR 837 [
LNIND 1957 SC 34 ]. See further Waman Shrinivas Kini v. Ratilal Bhagwandas&Co.,
Waman Shrinivas Kini v. Ratilal Bhagwandas&Co.,
AIR 1959 SC 689 [
58 PEK Kalliani Amma v. K. Devi, PEK Kalliani Amma v. K. Devi,

1996 (4) Scale 131 , pp 147, 148:
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ], p. 1976, :
(1996) 4 SCC 76 [
LNIND 1996 SC 869 ].
59 R.S. Raghunath v. State of Karnatak, R.S. Raghunath v. State of Karnatak,

AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 89 :
1992 (1) SCC 335 [
LNIND 1991 SC 516 ].
60 A.G. Varadarajulu v. State of Tamil Nadu, A.G. Varadarajulu v. State of Tamil

Nadu,
AIR 1998 SC 1388 [
LNIND 1998 SC 345 ], p. 1392 :
Mr.Srikanth -
Page 50 of 108
1998 (4) SCC 231 [

LNIND 1998 SC 345 ].
61 Ibid.
62 Vishin N. Khanchandani v. Vidya Lachmandas Khanchandani, Vishin N.

Khanchandani v. Vidya Lachmandas Khanchandani,
AIR 2000 SC 2747 [
LNIND 2000 SC 1113 ],p. 2753 :
(2000) 6 SCC 724 [
LNIND 2000 SC 1113 ].
63 Rural Litigation and Entitlement Kendra v. State of U.P., Rural Litigation and
Entitlement Kendra v. State of U.P.,
AIR 1988 SC 2187 [
LNIND 1988 SC 677 ],p. 2200, 2201 : 1989 Supp (1) SCC 504; T.N. Godavarman v. Union of
India, T.N. Godavarman v. Union of India,
AIR 2003 SC 724 [
LNIND 2002 SC 676 ], p. 738, 739 :
(2002) 10 SCC 606 [
LNIND 2002 SC 676 ].
64 Section 129 reads as under:“129. Power of High Courts to make rules as to their Original Civil Procedure—
Notwithstanding anything in this code, any High Court,—may make such rules not inconsistent with the letters Patent or order or
other law establishing it to regulate itsown procedure in the exercise of its original civil jurisdiction as it shall think fit and nothing
herein contained shall affect the validity of any such rules in force at the commencement of this code.”
65 Iridium India Telecom Ltd. v. Motorola Inc., Iridium India Telecom Ltd. v. Motorola
Inc.,
(2005) 2 SCC 145 [
LNIND 2005 SC 15 ], pp. 158-60.
66
AIR 1977 SC 308 [
LNIND 1976 SC 403 ]. Reaffirmed in Indian Oil Corporation Ltd. v. Municipal Corpo-ration,
Reaffirmed in Indian Oil Corporation Ltd. v. Municipal Corpo-ration,
1995(2) Scale 744 :
AIR 1995 SC 1480 [
LNIND 1995 SC 499 ]; Assistant General Manager v. Commr., Municipal Corporation,
Assistant General Manager v. Commr., Municipal Corporation,
1995 (3) Scale 561 :
1995(4) SCC 696 ; The Commissioner v. Grihayajamanula Samkhya, The
Commissioner v. Grihayajamanula Samkhya,
AIR 2001 SC 2046 [
LNIND 2001 SC 1154 ], pp. 2052, 2053 :
(2001) 5 SCC 561 . See further India Automobiles (1960) Ltd. v. Calcutta Municipal Cor-
poration, See further India Automobiles (1960) Ltd. v. Calcutta Municipal Cor-poration,
AIR 2002 SC 1089 [
LNIND 2002 SC 117 ], pp. 1102, 1103 :
(2002) 3 SCC 388 [
LNIND 2002 SC 117 ].
67 Corporation of Calcutta v. Padma Devi, Corporation of Calcutta v. Padma Devi,

AIR 1962 SC 151 [
LNIND 1961 SC 266 ]:
(1962) 3 SCR 49 [
LNIND 1961 SC 266 ]; Corporation of Calcutta v. Life Insurance Corporation,
Mr.Srikanth -
Page 51 of 108
Corporation of Calcutta v. Life Insurance Corporation,

AIR 1970 SC 1417 [
LNIND 1970 SC 197 ]:
1970 (2) SCC 44 [
LNIND 1970 SC 197 ]; Guntur Municipal Council v. Guntur Town Rate Payers' Association,
Guntur Municipal Council v. Guntur Town Rate Payers' Association,
AIR 1971 SC 353 [
LNIND 1970 SC 529 ]:
1970 (2) SCC 803 [
LNIND 1970 SC 529 ]; New Delhi Municipal Committee v. M.N. Soni, New
Delhi Municipal Committee v. M.N. Soni,
AIR 1977 SC 302 [
LNIND 1976 SC 358 ]:
1977 (1) SCR 731 [
LNIND 1976 SC 358 ] :
1976 (4) SCC 535 [
LNIND 1976 SC 358 ].
68 Guntur Municipal Council v. Guntur Town Rate Payers' Association, Guntur

Municipal Council v. Guntur Town Rate Payers' Association,
AIR 1971 SC 353 [
LNIND 1970 SC 529 ]:
(1970) 2 SCC 803 [
LNIND 1970 SC 529 ]. See further Diwan Daulat Rai Kapoor v. New Delhi Municipality,
See further Diwan Daulat Rai Kapoor v. New Delhi Municipality,
AIR 1980 SC 541 [
LNIND 1979 SC 497 ]:
(1980) 1 SCC 685 [
LNIND 1979 SC 497 ]; Balbir Singh (Dr.) v. M.C.D., Balbir Singh (Dr.) v.
M.C.D.,
(1985) 1 SCC 167 [
LNIND 1984 SC 339 ] :
AIR 1985 SC 339 [
LNIND 1984 SC 339 ]; Morvi Municipality v. State of Gujarat, Morvi
Municipality v. State of Gujarat,
AIR 1993 SC 1508 [
LNIND 1993 SC 314 ], pp. 1511, 1512 :
(1993) 2 SCC 520 [
LNIND 1993 SC 314 ]; East India Commercial Co. Pvt. Ltd. v. Corporation of Calcutta,
East India Commercial Co. Pvt. Ltd. v. Corporation of Calcutta,
AIR 1998 SC 1789 [
LNIND 1998 SC 374 ], p. 1794 :
1998 (4) SCC 368 [
LNIND 1998 SC 374 ]; Municipal Corporation of Greater Mumbai v. Kamala Mills Ltd.,
Municipal Corporation of Greater Mumbai v. Kamala Mills Ltd.,
AIR 2003 SC 2998 [
LNIND 2003 SC 549 ]:
(2003) 6 SCC 315 [
LNIND 2003 SC 549 ].
69 Maktool Singh v. State of Punjab, Maktool Singh v. State of Punjab,

JT 1999 (2) SC 176 [
LNIND 1999 SC 256 ], p. 179 :
AIR 1999 SC 1131 [
LNIND 1999 SC 256 ], p. 1133 :
(1999) 3 SCC 321 [
LNIND 1999 SC 256 ].
70 Sarwan Singh v. Kasturilal, Sarwan Singh v. Kasturilal,

AIR 1977 SC 265 [
LNIND 1976 SC 490 ], pp. 274, 275 :
(1977) 1 SCC 750 [
LNIND 1976 SC 490 ]; Kumaon Motor Owner’s Union v. State of Uttar Pradesh,
Mr.Srikanth -
Page 52 of 108
Kumaon Motor Owner’s Union v. State of Uttar Pradesh,

AIR 1966 SC 785 [
LNIND 1965 SC 252 ]:
(1966) 2 SCR 121 [
LNIND 1965 SC 252 ]; Adarsha Krishi Sewa Sangh v. Government of M.P.,
Adarsha Krishi Sewa Sangh v. Government of M.P.,
1980 MPLJ 810 , pp. 816, 817; Ashoka Marketing Ltd. v. Punjab National Bank,
Ashoka Marketing Ltd. v. Punjab National Bank,
AIR 1991 SC 855 [
LNIND 1990 SC 407 ], pp. 878, 879 :
1990 (4) SCC 406 .
71 Ibid; A.P. State Financial Corporation v. Official Liquidator, A.P. State Financial Corporation v.
Official Liquidator,
AIR 2000 SC 2642 [
LNIND 2000 SC 1089 ],p. 2644 :
(2000) 7 SCC 291 [
LNIND 2000 SC 1089 ]. This is specially so when the earlier enactment is a State Act and the
later enactment a Central Act both referable to list III and operating in the same field: G. Sridharamurti v. Hindustan Petroleum
Corporation Ltd., G. Sridharamurti v. Hindustan Petroleum Corporation Ltd.,
1995 (5) Scale 612 :
(1995) 6 SCC 605 [
LNIND 1995 SC 1733 ].
72 Sanwarmal Kajriwal v. Vishwa Co-operative Housing Society Ltd., Sanwarmal

Kajriwal v. Vishwa Co-operative Housing Society Ltd.,
AIR 1990 SC 1563 [
LNIND 1990 SC 144 ], p. 1575 :
1990 (2) SCC 288 [
LNIND 1990 SC 144 ].
73 Sarwan Singh v. Kasturilal, supra. Sarwan Singh v. Kasturilal, supra.

See further Ravi Dutt Sharma v. Ratan Lal Bhargava, See further Ravi Dutt Sharma v. Ratan Lal Bhargava,
(1984) 2 SCC 75 [
LNIND 1984 SC 47 ] :
AIR 1984 SC 967 [
LNIND 1984 SC 47 ].
74 Jain Ink Manufacturing Company v. Life Insurance Corporation, Jain Ink

Manufacturing Company v. Life Insurance Corporation,
AIR 1981 SC 670 [
LNIND 1980 SC 342 ]:
(1980) 4 SCC 435 [
LNIND 1980 SC 342 ]. Upheld in Ashoka Marketing Ltd. v. Punjab National Bank,
Upheld in Ashoka Marketing Ltd. v. Punjab National Bank,
AIR 1991 SC 855 [
LNIND 1990 SC 407 ], pp. 877-880 :
(1990) 4 SCC 286 [
LNIND 1990 SC 959 ] (Public Premises Act was held to pre-vail on considerations of object and
policy).
75 Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of India,

Maharashtra Tubes Ltd. v. State Industrial and Investment Corporation of India,
JT 1993 (1) SC 310 [
LNIND 1993 SC 74 ]:
1993 (2) SCC 144 [
LNIND 1993 SC 74 ]. Followed in Allahabad Bank v. Canara Bank, Followed
in Allahabad Bank v. Canara Bank,
AIR 2000 SC 1535 [
LNIND 2000 SC 2274 ], p. 1549 :
Mr.Srikanth -
Page 53 of 108
(2000) 4 SCC 406 [

LNIND 2000 SC 2274 ]. See further Solidaire India Ltd. v. Fairgrowth Financial Services Ltd.,
See further Solidaire India Ltd. v. Fairgrowth Financial Services Ltd.,
JT 2001 (2) SC 639 [
LNIND 2001 SC 345 ], p. 642 :
(2001) 3 SCC 71 [
LNIND 2001 SC 345 ] :
AIR 2001 SC 958 [
LNIND 2001 SC 345 ](conflict between non obstante clauses of two Special Acts, namely
section 32 of the Sick Industrial
Companies Act , 1985 and section 13 of the Special Court Act 1992, was resolved by holding that the 1992 Act
being the later Act will prevail); West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd., West Bengal
Electricity Regulatory Commission v. C.E.S.C. Ltd.,
AIR 2002 SC 3588 [
LNIND 2002 SC 632 ], p. 3606 :
(2002) 8 SCC 715 [
LNIND 2002 SC 632 ]; Maruti Udyog Ltd. v. Ramlal, Maruti Udyog Ltd. v.
Ramlal,
(2005) 2 SCC 639 , p. 653 “Maruti Limited (Acquisition and Transfer of Undertakings) Act,
1980, being a later Special Act was held to prevail over an earlier Special Act, namely, the
Industrial Disputes Act, 1947 ”; Tax Recovery Officer v. Custodian, Tax Recovery Officer v.
Custodian,
(2007) 7 SCC 461 [
LNIND 2007 SC 966 ], para 14 (Special Courts Act 1992 will prevail over the
Income Tax Act, 1961 ).
76 Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd., Sanwarmal

Kejriwal v. Vishwa Co-operative Housing Society Ltd.,
AIR 1990 SC 1563 [
LNIND 1990 SC 144 ], p. 1575 :
1990 (2) SCC 288 [
LNIND 1990 SC 144 ].
77 Ibid. See further O.N. Bhatnagar v. Rukibai Narsindas (Smt.), See further O.N. Bhatnagar v. Rukibai
Narsindas (Smt.),
AIR 1982 SC 1097 [
LNIND 1982 SC 87 ]:
(1982) 2 SCC 244 [
LNIND 1982 SC 87 ].
78 Jay Engineering Works Ltd. v. Industry Facilitation Council, Jay Engineering

Works Ltd. v. Industry Facilitation Council,
(2006) 8 SCC 677 [
AIR 2006 SC 3252 [
LNIND 2006 SC 732 ].
79 Ibid.
80 J.K. Cotton Spinning & Weaving Mills Ltd. v. Union of India, J.K. Cotton Spinning
& Weaving Mills Ltd. v. Union of India,
AIR 1988 SC 191 [
LNIND 1987 SC 728 ],p. 202 : 1987 Supp SCC 350.
81 Indira Sawhney v. Union of India, Indira Sawhney v. Union of India,

JT 1999 (9) SC 557 , p. 582 :
(2000) 1 SCC 168 :
AIR 2000 SC 498 (statutory declaration by Kerala legislature of non-existence of ‘creamy layer’
which was unrelated to existing facts was held to be violative of Arti-cle
Mr.Srikanth -
Page 54 of 108
s 14 and
16 of the
Constitution ).
82 CIT v. Urmila Ramesh, CIT v. Urmila Ramesh,

AIR 1998 SC 2640 [
LNIND 1998 SC 105 ], pp. 2645, 2646 :
1998 (3) SCC 6 [
LNIND 1998 SC 105 ]. For meaning of the word (deemed) see Smt. Sudha Rani Garg v. Jagdish
Kumar, Smt. Sudha Rani Garg v. Jagdish Kumar,
AIR 2004 SC 5120 [
LNIND 2004 SC 901 ], pp. 5121, 5122 :
(2004) 8 SCC 329 [
LNIND 2004 SC 901 ].
83 Ex Parte, Walton, In re, Levy, Ex Parte, Walton, In re, Levy,

(1881) 17 Ch D 746 , p. 756, State of Trav-Co. v. Shan mugha Vilas Cashewnut Factory, Quilon,
State of Trav-Co. v. Shan mugha Vilas Cashewnut Factory, Quilon,
AIR 1953 SC 333 [
LNIND 1953 SC 58 ], pp. 342, 343 :
1954 SCR 53 [
LNIND 1953 SC 58 ]; State of Bombay v. Pandurang Vinayak, State of Bombay
v. Pandurang Vinayak,
AIR 1953 SC 244 [
LNIND 1953 SC 33 ], p. 246 :
1953 SCR 733 .
84 East End Dwelling Co. Ltd. v. Finsbury Borough Council, East End Dwelling Co.
Ltd. v. Finsbury Borough Council,
(1951) 2 All ER 587 , p. 599 :
1952 AC 109 (HL); State of Bombay v. Pandurang Vinayak, State of Bombay v.
Pandurang Vinayak, supra, p. 246; CIT, Delhi v. S. Teja Singh, CIT, Delhi v. S. Teja Singh,
AIR 1959 SC 352 [
LNIND 1958 SC 138 ], p. 355 : 1959 Supp (1) SCR 394; Chief Inspector of Mines v. Karam
Chand Thapar, Chief Inspector of Mines v. Karam Chand Thapar,
AIR 1961 SC 838 [
LNIND 1961 SC 57 ], p. 845 :
1962 (1) SCR 9 [
LNIND 1961 SC 57 ].
85 Coal Economising Gas Company, In re, Coal Economising Gas Company, In re,
(1875) 1 Ch D 182 , pp. 188, 189; Hill v. East and West India Dock Co., Hill v.
East and West India Dock Co.,
(1884) 9 AC 448 , p. 458 (HL); Bengal Immunity Co. Ltd. v. State of Bihar,
Bengal Immunity Co. Ltd. v. State of Bihar,
AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 680 :
(1955) 2 SCR 603 [
LNIND 1955 SC 122 ]; CIT, Bombay v. Amarchand N. Shroff, CIT, Bombay v.
Amarchand N. Shroff,
AIR 1963 SC 1448 [
LNIND 1962 SC 468 ], p. 1452 : 1963 Supp (1) SCR 699; Mandalasa Devi v. M. Ramnarain
Private Ltd., Mandalasa Devi v. M. Ramnarain Private Ltd.,
AIR 1965 SC 1718 [
LNIND 1965 SC 91 ], p. 1720 :
(1965) 3 SCR 421 [
LNIND 1965 SC 91 ]; M.K. Balakrishna Menon v. Asstt. Controller of Estate Duty, Ernakulam,
M.K. Balakrishna Menon v. Asstt. Controller of Estate Duty, Ernakulam,
AIR 1971 SC 2392 [
LNIND 1971 SC 511 ]:
(1971) 2 SCC 909 [
Mr.Srikanth -
Page 55 of 108
LNIND 1971 SC 511 ]; C.I.T., Gujarat v. Vadilal Lallubhai, C.I.T., Gujarat v.

Vadilal Lallubhai,
AIR 1973 SC 1016 [
LNIND 1972 SC 400 ], p. 1019 : 1973 SCC (Tax) 1 ; State of Maharashtra v. Narayanrao Sham
Rao Deshmukh, State of Maharashtra v. Narayanrao Sham Rao Deshmukh,
(1985) 2 SCC 321 [
LNIND 1985 SC 96 ], p. 330 :
AIR 1985 SC 716 [
LNIND 1985 SC 96 ]; C.I.T., Kanpur v. Mother India Refrigeration Industries (P) Ltd.,
C.I.T., Kanpur v. Mother India Refrigeration Industries (P) Ltd.,
(1985) 4 SCC 1 [
LNIND 1985 SC 252 ], p. 9 :
AIR 1985 SC 1720 [
Waliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,
AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2283 :
(1988) 4 SCC 419 [
LNIND 1988 SC 442 ]; Union of India v. Sampat Raj Dugar, Union of India v.
Sampat Raj Dugar,
AIR 1992 SC 1417 [
LNIND 1992 SC 66 ], p. 1421 :
(1992) 2 SCC 66 [
LNIND 1992 SC 66 ], M. Venugopal v. Divisional Manager Life Insurance Corporation,
M. Venugopal v. Divisional Manager Life Insurance Corporation,
AIR 1994 SC 1343 [
LNIND 1994 SC 135 ], p. 1347 :
(1994) 2 SCC 323 [
LNIND 1994 SC 135 ]; K. Prabhakaran v. P. Jayarajan, K. Prabhakaran v. P.
Jayarajan,
(2005) 1 SCC 754 [
LNIND 2005 SC 30 ], p. 775 (para 39) : AIR 2005 688; Maruti Udyog Ltd. v. Ramlal,
Maruti Udyog Ltd. v. Ramlal,
(2005) 2 SCC 638 [
LNIND 2005 SC 81 ], p. 652; Raymond Ltd. v. State of Chhattisgarh, Raymond
Ltd. v. State of Chhattisgarh,
(2007) 3 SCC 79 [
LNIND 2007 SC 200 ] (paras 28, 29) :
(2007) 3 JT 582 . See further Complete Insulations (P) Ltd. v. New India Assurance Company
Ltd., See further Complete Insulations (P) Ltd. v. New India Assurance Company Ltd.,
1995 (6) Scale 629 :
(1996) 1 SCC 221 [
LNIND 1995 SC 1161 ] (Legal fiction of deemed transfer of policy of insurance with transfer of
vehicle under section 157 in Chapter XI, M.V. Act, 1988, though without any apparent limitation, is limited to third party risk
which is the object behind Chapter XI of the Act); UCO Bank v. Rajinder Lal Capoor, UCO Bank v. Rajinder Lal
Capoor,
AIR 2007 SC 2129 [
LNIND 2007 SC 727 ], para 20 (Legal fiction must be construed having regard to the purpose of
the statute).
86 C.I.T., Bombay City II v. Shakuntala, C.I.T., Bombay City II v. Shakuntala,

AIR 1966 SC 719 [
LNIND 1961 SC 251 ], p. 722 :
(1962) 2 SCR 871 [
LNIND 1961 SC 251 ]; Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver,
Mancheri Puthusseri Ahmed v. Kuthiravattam Estate Receiver,
1996 (6) Scale 452 , pp. 458, 459 :
AIR 1997 SC 208 , p. 214 :
(1996) 8 SCC 185 ; State of Maharashtra v. Laljit Rajshishah, State of
Maharashtra v. Laljit Rajshishah,
AIR 2000 SC 937 [
LNIND 2000 SC 387 ], p. 940 :
(2000) 2 SCC 699 [
LNIND 2000 SC 387 ]. See further Prakash Jain v. Marie Fernandas, See
further Prakash Jain v. Marie Fernandas,
Mr.Srikanth -
Page 56 of 108
(2003) 8 SCC 431 [

LNIND 2003 SC 826 ], p. 438 :
AIR 2003 SC 3331 [
LNIND 2003 SC 827 ](competent authority under the Maharashtra Rent Control Act, 1999
deemed to be a civil court for purposes of
sections 345 and
346
CrPC cannot be deemed to be court for other purposes).
87 C.I.T., (Central) Calcutta v. Moon Mills Ltd., C.I.T., (Central) Calcutta v. Moon
Mills Ltd.,
AIR 1966 SC 870 [
LNIND 1965 SC 271 ], p. 873 :
1966 (2) SCR 393 [
LNIND 1965 SC 271 ] (‘received’ cannot be read as ‘receivable’); Mancheri Puthusseri Ahmed
v. Kuthiravattam, supra.
88 State of West Bengal v. Sadam K. Bormal, State of West Bengal v. Sadam K.

Bormal,
AIR 2004 SC 3666 [
LNIND 2004 SC 585 ], p. 3673 :
(2004) 6 SCC 59 [
LNIND 2004 SC 585 ].
89 Nandkishore Ganesh Joshi v. Commr. Municipal Corporation Kalyan, Nandkishore

Ganesh Joshi v. Commr. Municipal Corporation Kalyan,
AIR 2005 SC 34 [
LNIND 2004 SC 1086 ], p. 37 (para 19).
90 Ashok Leyland Ltd. v. State of Tamil Nadu, Ashok Leyland Ltd. v. State of Tamil
Nadu,
AIR 2004 SC 2836 [
LNIND 2004 SC 1556 ], p. 2857 (paras 84, 86) :
(2004) 3 SCC 1 [
LNIND 2004 SC 1556 ].
91 State of Karnataka v. K. Gopalkrishna Shenoy, State of Karnataka v. K.

Gopalkrishna Shenoy,
(1987) 3 SCC 655 [
LNIND 1987 SC 490 ], p. 666 :
AIR 1987 SC 861 .
92 Union of India v. Jalyan Udyog, Union of India v. Jalyan Udyog,

AIR 1994 SC 88 , p. 98 :
1994 (1) SCC 318 .
93 Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan, Delhi Cloth and
General Mills Co. Ltd. v. State of Rajasthan,
1996 (1) Scale 332 [
LNIND 1996 SC 2966 ], pp. 336 to 338 :
AIR 1996 SC 2930 [
LNIND 1996 SC 2966 ], pp. 2934, 2935 :
(1996) 2 SCC 449 [
LNIND 1996 SC 2966 ]. See further text and note 18, p. 49.
Mr.Srikanth -
Page 57 of 108
94 Agricultural Market Committee v. Shalimar Chemical Works Ltd., Agricultural

Market Committee v. Shalimar Chemical Works Ltd.,
AIR 1997 SC 2502 [
LNIND 1997 SC 1759 ], p. 2508 :
(1997) 5 SCC 516 [
LNIND 1997 SC 1759 ]. See further for this case, p. 954.
95 State of Maharashtra v. Laljit Rajshi Shah, State of Maharashtra v. Laljit Rajshi

Shah,
AIR 2000 SC 937 [
LNIND 2000 SC 387 ], p. 940 :
(2000) 2 SCC 699 [
LNIND 2000 SC 387 ].
96 Ibid. For another similar case, see Ramesh Balkrishnan Kulkarni v. State of Maharashtra, see Ramesh
Balkrishnan Kulkarni v. State of Maharashtra,
AIR 1985 SC 1655 [
LNIND 1985 SC 235 ]:
(1985) 3 SCC 606 [
LNIND 1985 SC 235 ].
1 Ex parte, Walton, In re, Levy, Ex parte, Walton, In re, Levy,

(1881) 17 Ch D 746 ; p. 756; referred to in Hill v. East and West India Dock Co.,
Hill v. East and West India Dock Co.,
(1884) 9 AC 448 , pp. 456, 458 (HL); State of Trav-Co. v. Shanmugha Vilas Cashewnut
Factory, State of Trav-Co. v. Shanmugha Vilas Cashewnut Factory,
AIR 1953 SC 333 [
LNIND 1953 SC 58 ], p. 343 :
1954 SCR 53 [
LNIND 1953 SC 58 ].
2 State of Trav-Co. v. Shanmugha Vilas Cashewnut Factory, supra, State of Trav-Co.

v. Shanmugha Vilas Cashewnut Factory, supra, .
3 State of Bombay v. Pandurang Vinayak, State of Bombay v. Pandurang Vinayak,

AIR 1953 SC 244 [
LNIND 1953 SC 33 ], p. 246 :
1953 SCR 773 [
LNIND 1953 SC 33 ]; American Home Products Corporation v. Mac Laboratories,
American Home Products Corporation v. Mac Laboratories,
(1986) 1 SCC 465 [
LNIND 1985 SC 317 ], p. 501 :
AIR 1986 SC 137 [
LNIND 1985 SC 317 ]; Union of India v. Jalyan Udyog, supra, Union of India
v. Jalyan Udyog, supra, pp. 96, 97; P.E.K. Kalliani Amma v. K. Devi, P.E.K. Kalliani Amma v. K. Devi,
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ], p. 1976 :
(1996) 4 SCC 33 [
LNIND 1996 SC 897 ].
4 C.I.T., Delhi v. S. Teja Singh, C.I.T., Delhi v. S. Teja Singh,

AIR 1959 SC 352 [
5 East End Dwelling Co. Ltd. v. Finsbury Borough Council, East End Dwelling Co.
Ltd. v. Finsbury Borough Council,
(1951) 2 All ER 587 , p. 589 :
Mr.Srikanth -
Page 58 of 108
1952 AC 109 (HL); referred to in State of Bombay v. Pandurang Vinayak, supra,

State of Bombay v. Pandurang Vinayak, supra, p. 246; C.I.T., Delhi v. S. Teja Singh, supra, C.I.T., Delhi v. S. Teja
Singh, supra, p. 355; Rajendraswami v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad,
Rajendraswami v. Commissioner of Hindu Religious and Charitable Endowments, Hyderabad,
AIR 1965 SC 502 [
LNIND 1964 SC 179 ], p. 505 :
1964 (8) SCR 252 [
LNIND 1964 SC 179 ], Shatrunjit (Raja) v. Mohammad Azmat Azim Khan,
Shatrunjit (Raja) v. Mohammad Azmat Azim Khan,
AIR 1971 SC 1474 [
LNIND 1971 SC 246 ], p. 1476 :
1971 (2) SCC 200 [
LNIND 1971 SC 246 ]; Daya Singh v. Dhan Kaur, Daya Singh v. Dhan Kaur,
AIR 1974 SC 665 [
LNIND 1974 SC 90 ], p. 668 :
(1974) 1 SCC 700 [
LNIND 1974 SC 90 ]; Boucher Pierre Andre v. Superintendent, Central Jail, Tihar,
Boucher Pierre Andre v. Superintendent, Central Jail, Tihar,
AIR 1975 SC 164 [
LNIND 1974 SC 382 ], p. 166 :
(1975) 1 SCC 192 [
LNIND 1974 SC 382 ] :
(1975) SCC (Cri) 70 ; Sundar Dass v. Ram Parkash, Sundar Dass v. Ram
Parkash,
AIR 1977 SC 1201 [
LNIND 1977 SC 101 ], p. 1205 :
(1977) 2 SCC 662 [
LNIND 1977 SC 101 ]; Gurupad Khandappa Magdum v. Hirabai Khandappa,
Gurupad Khandappa Magdum v. Hirabai Khandappa,
AIR 1978 SC 1239 [
LNIND 1978 SC 142 ], p. 1243 :
(1978) 3 SCC 383 [
LNIND 1978 SC 142 ]; State of Andhra Pradesh v. Vallabhapuram Ravi, State
of Andhra Pradesh v. Vallabhapuram Ravi,
(1984) 4 SCC 410 [
LNIND 1984 SC 251 ], p. 420 :
AIR 1985 SC 870 [
(1986) 1 SCC 465 [
LNIND 1985 SC 317 ], p. 501 :
AIR 1986 SC 137 [
AIR 1988 SC 587 [
LNIND 1988 SC 19 ], p. 592 :
(1988) 2 SCC 372 [
LNIND 1988 SC 19 ]; Maganlal v. Jaiswal Industries, Maganlal v. Jaiswal
Industries,
AIR 1989 SC 2113 [
LNIND 1989 SC 381 ], p. 2122 :
(1989) 4 SCC 344 [
LNIND 1989 SC 381 ]; Orient Paper and Industries Ltd. v. State of Orissa,
Orient Paper and Industries Ltd. v. State of Orissa,
AIR 1991 SC 672 [
LNIND 1990 SC 643 ], p. 681 : 1991 Supp (1) SCC 81; H.C. Suman v. Rehabilitation Ministry
Employment Co-operative House Building Society Ltd. H.C. Suman v. Rehabilitation Ministry Employment Co-
operative House Building Society Ltd.
AIR 1991 SC 2160 [
LNIND 1991 SC 421 ], p. 2169 :
(1991) 4 SCC 485 [
LNIND 1991 SC 421 ]; Voltas Limited, Bombay v. Union of India, Voltas
Limited, Bombay v. Union of India,
1995(1) Scale 455 , p. 460 : 1995 AIR SCW 2928 : 1995 Supp (2) SCC 498 :
AIR 1995 SC 1881 [
LNIND 1995 SC 211 ]; G. Vishwanathan v. Hon'ble Speaker, Tamil Nadu Legislative Assembly,
G. Vishwanathan v. Hon'ble Speaker, Tamil Nadu Legislative Assembly,
Mr.Srikanth -
Page 59 of 108
1996 (1) Scale 531 , p. 537 :

AIR 1996 SC 1060 [
LNIND 1996 SC 192 ], p. 1064; P.E.K. Kalliani Amma v. K. Devi, P.E.K.
Kalliani Amma v. K. Devi,
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ], p. 1976 : :
(1996) 4 SCC 76 [
LNIND 1996 SC 869 ]; State of Tamil Nadu v. Arooran Sugars Ltd., State of
Tamil Nadu v. Arooran Sugars Ltd.,
AIR 1997 SC 1815 , p. 1822; Bhavnagar University v. Palitana Sugar Mill (P.) Ltd.,
Bhavnagar University v. Palitana Sugar Mill (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ], p. 123 :
AIR 2003 SC 511 [
LNIND 2002 SC 669 ], p. 518; Commissioner of Wealth Tax v. Trustees of H.E.H.,
Commissioner of Wealth Tax v. Trustees of H.E.H.,
(2003) 5 SCC 122 [
LNIND 2003 SC 442 ], pp. 131, 132; Dipak Chandra Rutidas c. Vchandra Kumar Sarkar,
Dipak Chandra Rutidas c. Vchandra Kumar Sarkar,
(2003) 7 SCC 66 [
LNIND 2003 SC 614 ], p. 72; Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd.,
Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd.,
AIR 2003 SC 511 [
LNIND 2002 SC 669 ]; Prafulla Kumar Das v. State of Orissa, Prafulla Kumar
Das v. State of Orissa,
AIR 2003 SC 4506 [
LNIND 2003 SC 1287 ], p. 4517 :
(2003) 9 JT 477 ; Ashok Leyland Ltd. v. State of Tamil Nadu, Ashok Leyland
Ltd. v. State of Tamil Nadu,
(2004) 3 SCC 1 [
LNIND 2004 SC 1556 ] :
AIR 2004 SC 2836 [
LNIND 2004 SC 1556 ], p. 2855; State of West Bengal v. Sadam K. Bormal,
State of West Bengal v. Sadam K. Bormal,
AIR 2004 SC 3666 [
LNIND 2004 SC 585 ], p. 3673:
(2004) 6 SCC 59 [
LNIND 2004 SC 585 ]; Clariant International Ltd. v. Securities & Exchange Board,
Clariant International Ltd. v. Securities & Exchange Board,
(2004) 8 SCC 524 [
LNIND 2004 SC 852 ], p. 545 :
AIR 2004 SC 4236 [
LNIND 2004 SC 852 ]. See further Mohammed Iqbal Madar Sheikh v. State of
Maharashtra, Mohammed Iqbal Madar Sheikh v. State of Maharashtra,
(1996) 1 SCC 722 , p. 727 :
JT 1996 (1) SC 114 : 1996 SCC (Cri) 202; A.S. Glittre D/5 I/S Garonne Co. v. Commissioner of
Income-tax, A.S. Glittre D/5 I/S Garonne Co. v. Commissioner of Income-tax,
AIR 1997 SC 2361 [
LNIND 1997 SC 1962 ], p. 2163 :
1997 (4) JT 445 [
LNIND 1997 SC 1962 ] :
(1997) 9 SCC 546 [
LNIND 1997 SC 1962 ]; Manorey Alias Manohar v. Board of Revenue (U.P.),
Manorey Alias Manohar v. Board of Revenue (U.P.),
(2003) 5 SCC 521 [
LNIND 2003 SC 388 ], pp. 526, 527 (deeming provision to be given full effect).
6 Chief Inspector of Mines v. Karam Chand Thapar, Chief Inspector of Mines v.

Karam Chand Thapar,
AIR 1961 SC 838 [
LNIND 1961 SC 57 ], p. 845 :
1962 (1) SCR 9 [
LNIND 1961 SC 57 ]. (Contravention of regulations deemed to be made under the Act is
contravention of regulation made under the Act). Cf. Avtar Singh v. State of Punjab, Avtar Singh v. State of
Punjab,
Mr.Srikanth -
Page 60 of 108
1965 SC 666 :
1965 (1) SCR 103 [
LNIND 1964 SC 373 ]. (Theft of electricity is an offence under the
Electricity Act , 1910 and not under the
Penal Code .)
7 V. Chinnaiah v. State of Andhra Pradesh, V. Chinnaiah v. State of Andhra Pradesh,

AIR 2005 SC 162 [
LNIND 2004 SC 1137 ], p. 174 (para 43) :
(2005) 1 SCC 394 [
LNIND 2004 SC 1137 ].
8 C.I.T., Bombay v. Bombay Corporation, C.I.T., Bombay v. Bombay Corporation,

AIR 1930 PC 54 .
9 Ibid, p. 56.
10 State of Bombay v. Pandurang Vinayak, State of Bombay v. Pandurang Vinayak,

AIR 1953 SC 244 [
LNIND 1953 SC 33 ]:
1953 SCR 773 [
LNIND 1953 SC 33 ].
11 Ibid.

AIR 1959 SC 352 [
LNIND 1958 SC 138 ], p. 355 : 1959 Supp (1) SCR 394. for another illustration of legal fiction
from the
Income-tax Act, 1922 , see Rajputana Trading Co. Ltd. v. C.I.T., West Bengal, Rajputana
Trading Co. Ltd. v. C.I.T., West Bengal,
AIR 1969 SC 572 : 1969 (1) SCR 1013.

AIR 1959 SC 352 [
14 Controller of Estate Duty v. Kantilal Trikamlal, Controller of Estate Duty v.

Kantilal Trikamlal,
AIR 1976 SC 1935 [
LNIND 1976 SC 233 ]: 1977 SCC (Tax) 90 :
(1976) 4 SCC 643 [
LNIND 1976 SC 233 ]; Contrast Controller of Estate Duty v. Kancharla Kesavrao,
Controller of Estate Duty v. Kancharla Kesavrao,
AIR 1973 SC 2484 [
LNIND 1973 SC 114 ]: 1973 SCC (Tax) 549 :
(1973) 2 SCC 384 [
LNIND 1973 SC 114 ].
15 Dargah Committee, Ajmer v. State of Rajasthan, Dargah Committee, Ajmer v. State

of Rajasthan,
AIR 1962 SC 574 [
LNIND 1961 SC 199 ], p. 577 :
1962 (2) SCR 265 [
LNIND 1961 SC 199 ]. For further illustrations of a legal fiction, see Delhi Cloth and General
Mr.Srikanth -
Page 61 of 108
Mills Co. Ltd. v. Their Workmen, Delhi Cloth and General Mills Co. Ltd. v. Their Workmen,
AIR 1972 SC 299 [
LNIND 1971 SC 442 ], p. 305 :
1971 (2) SCC 695 [
LNIND 1971 SC 442 ]; C.I.T., B.&O. v. Maharaj Kumar Kamal Singh, C.I.T.,
B.&O. v. Maharaj Kumar Kamal Singh,
AIR 1973 SC 1056 [
LNIND 1973 SC 460 ], p. 1059 : 1973 SCC (Tax) 333 :
(1973) 3 SCC 819 [
LNIND 1973 SC 460 ]; State of Andhra Pradesh v. Vallabhapuram Ravi, State
of Andhra Pradesh v. Vallabhapuram Ravi,
(1984) 4 SCC 410 [
LNIND 1984 SC 251 ], p. 420 :
AIR 1985 SC 870 [
LNIND 1984 SC 251 ]..
16 Dargah Committee, Ajmer v. State of Rajasthan, supra, Dargah Committee, Ajmer

v. State of Rajasthan, supra, p. 577.
17 Voltas Limited, Bombay v. Union of India, Voltas Limited, Bombay v. Union of

India,
1995 (1) Scale 455 , p. 462: 1995 AIR SCW 2928 : 1995 Supp (2) SCC 498 :
AIR 1995 SC 1881 [
LNIND 1995 SC 211 ].
18 Ibid, p. 464
20
AIR 1953 SC 333 [
LNIND 1953 SC 58 ], pp. 342, 343 :
1954 SCR 53 [
LNIND 1953 SC 58 ].
21
AIR 1955 SC 661 [
LNIND 1955 SC 122 ], p. 680 :
(1955) 2 SCR 603 [
LNIND 1955 SC 122 ]; referred to in C.I.T., Bombay v. Amarchand N. Shroff,
C.I.T., Bombay v. Amarchand N. Shroff,
AIR 1963 SC 1448 [
LNIND 1962 SC 468 ], p. 1452 : 1963 Supp (1) SCR 699; C.I.T., Gujarat v. Vadilal Lallubhai,
C.I.T., Gujarat v. Vadilal Lallubhai,
AIR 1973 SC 1016 [
LNIND 1972 SC 400 ], p. 1019; 1973 SCC (Tax) 1 :
(1973) 3 SCC 17 [
LNIND 1972 SC 400 ]; C.I.T., Kanpur v. Mother India Refrigeration Industries (P.) Ltd.,
C.I.T., Kanpur v. Mother India Refrigeration Industries (P.) Ltd.,
(1985) 4 SCC 1 [
LNIND 1985 SC 252 ], p. 9 :
AIR 1985 SC 1720 [
LNIND 1985 SC 252 ]; Maganlal v. Jaiswal Industries, Maganlal v. Jaiswal
Industries,
AIR 1989 SC 2113 [
LNIND 1989 SC 381 ], p. 2122 :
1989 (4) SCC 344 [
LNIND 1989 SC 381 ].
Mr.Srikanth -
Page 62 of 108
22 Bengal Immunity Co. Ltd. v. State of Bihar, Bengal Immunity Co. Ltd. v. State of
Bihar,
AIR 1955 SC 661 [
LNIND 1955 SC 122 ]:
1955 (2) SCR 603 [
LNIND 1955 SC 122 ].
23 State of Bombay v. United Motors (India) Ltd., State of Bombay v. United Motors
(India) Ltd.,
AIR 1953 SC 252 [
LNIND 1953 SC 42 ]:
1953 SCR 1069 [
LNIND 1953 SC 42 ].
24 Bengal Immunity Co. Ltd. v. State of Bihar, supra. Bengal Immunity Co. Ltd. v.
State of Bihar, supra.
25 Radhakissen Chamaria v. Durga Prasad Chamaria, Radhakissen Chamaria v.

Durga Prasad Chamaria,
AIR 1940 PC 167 , p. 170.
26 C.I.T., Bombay v. Amarchand N. Shorff, C.I.T., Bombay v. Amarchand N. Shorff,

AIR 1963 SC 1448 [
LNIND 1962 SC 468 ], p. 1452 : 1963 Supp (1) SCR 699; C.I.T., Bombay v. James Anderson,
C.I.T., Bombay v. James Anderson,
AIR 1964 SC 1761 [
LNIND 1963 SC 275 ]:
1964 (5) SCR 590 [
LNIND 1963 SC 275 ]. For another Income-tax case, see C.I.T., Gujarat v. Vadilal Lallubhai,
C.I.T., Gujarat v. Vadilal Lallubhai,
AIR 1973 SC 1016 [
LNIND 1972 SC 400 ], p. 1019 : 1973 SCC (Tax) 1 :
(1973) 3 SCC 17 [
LNIND 1972 SC 400 ].
27 M.K. Balakrishna Menon v. Assistant Controller of Estate Duty, Ernakulam, M.K.

Balakrishna Menon v. Assistant Controller of Estate Duty, Ernakulam,
AIR 1971 SC 2392 [
LNIND 1971 SC 511 ], p. 2395 :
1971 (2) SCC 909 [
LNIND 1971 SC 511 ].
28 Khemka and Co. (Agencies) Pvt. Ltd. v. State of Maharashtra, Khemka and Co.
(Agencies) Pvt. Ltd. v. State of Maharashtra,
AIR 1975 SC 1549 [
LNIND 1975 SC 85 ]:
1975 (2) SCC 22 [
LNIND 1975 SC 85 ]. For construction of the section after amendment, see Pannalal Kankariya
& Sons v. Additional Assistant Commissioner of Sales Tax, Pannalal Kankariya & Sons v. Additional Assistant
Commissioner of Sales Tax,
1981 MPLJ 580 . The case of Khemka and Co. followed in Collector of Central Excise v.
Fabrics (P.) Ltd., Khemka and Co. followed in Collector of Central Excise v. Fabrics (P.) Ltd.,
(2004) 1 SCC 597 :
(2003) 10 JT 282 and was distinguished in Mahim Patram (P) Ltd. v. Union of India,
Mahim Patram (P) Ltd. v. Union of India,
(2007) 3 SCC 668 [
Mr.Srikanth -
Page 63 of 108
LNIND 2007 SC 218 ] (paras 36, 37) :

(2007) 4 JT 50 .
29 Chemicals and Fibres of India Ltd. v. State of Maharashtra, Chemicals and Fibres
of India Ltd. v. State of Maharashtra,
AIR 1975 SC 1660 [
LNIND 1975 SC 203 ]:
(1975) 4 SCC 332 [
LNIND 1975 SC 203 ] : 1975 SCC (L&S) 168.
30 Union of India v. Sampat Raj Dugar, Union of India v. Sampat Raj Dugar,
AIR 1992 SC 1417 [
LNIND 1992 SC 66 ], p. 1423 :
1992 (2) SCC 66 [
LNIND 1992 SC 66 ].
31 Paramjeet Singh Patheja v. ICDS Ltd., Paramjeet Singh Patheja v. ICDS Ltd.,
AIR 2007 SC 168 [
LNIND 2006 SC 897 ](para 60) :
(2006) 10 JT 41 :
(2006) 8 SLT 295 .
32 Raymond Ltd. v. State of Chhattisgarh, Raymond Ltd. v. State of Chhattisgarh,

(2007) 3 SCC 79 [
LNIND 2007 SC 200 ] (paras 23, 24) :
(2007) 3 SLT 483 .
33 Garden Silk Mills Ltd. v. Union of India, Garden Silk Mills Ltd. v. Union of India,
JT 1999 (7) SC 552 :
AIR 2000 SC 33 [
LNIND 1999 SC 878 ],p. 39 :
(1999) 8 SCC 744 [
LNIND 1999 SC 878 ].
34 Nandkishore Ganesh Joshi v. Commissioner Municipal Corporation, Kalyan,

Nandkishore Ganesh Joshi v. Commissioner Municipal Corporation, Kalyan,
AIR 2005 SC 34 [
LNIND 2004 SC 1086 ], pp. 37, 38.
35 State of West Bengal v. Sadam K. Bormal, State of West Bengal v. Sadam K.

Bormal,
AIR 2004 SC 3666 [
LNIND 2004 SC 585 ], p. 3673 :
(2004) 6 SCC 59 [
LNIND 2004 SC 585 ].
36 Yellappagouda Shankargouda Patil v. Basangouda Shiddangouda Patil,

Yellappagouda Shankargouda Patil v. Basangouda Shiddangouda Patil,
AIR 1960 SC 808 [
LNIND 1960 SC 70 ], pp. 809, 810 :
1960 (3) SCR 221 [
LNIND 1960 SC 70 ].
37 Bishambhar Nath Kohli v. State of U.P., Bishambhar Nath Kohli v. State of U.P.,
AIR 1966 SC 573 [
Mr.Srikanth -
Page 64 of 108
LNIND 1965 SC 256 ]:

1966 (2) SCR 158 [
LNIND 1965 SC 256 ].
38 State of West Bengal v. Motilal Kanoria, State of West Bengal v. Motilal Kanoria,
AIR 1966 SC 1586 [
LNIND 1966 SC 87 ]:
1966 (3) SCR 933 [
LNIND 1966 SC 87 ].
39 M. Pentiah v. Muddala Veeramallappa, M. Pentiah v. Muddala Veeramallappa,

AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 1110 :
(1961) 2 SCR 295 [
LNIND 1960 SC 260 ]. For this case, see Chapter 1, title 4 ’Statute to be construed to make it
effective and workable’, text and notes, 10 to 12, pp. 46, 47.
40 St. Aubyn (LM) v. A.G. (No. 2), St. Aubyn (LM) v. A.G. (No. 2),
(1951) 2 All ER 473 , p. 498 :
1952 AC 15 (HL); referred to in Hira H. Advani v. State of Maharashtra, Hira
H. Advani v. State of Maharashtra,
AIR 1971 SC 44 [
LNIND 1969 SC 266 ], p. 54 :
1969 (2) SCC 662 [
Waliram Waman Hiray (Dr.) v. Mr. Justice B. Lentin,
AIR 1988 SC 2267 [
LNIND 1988 SC 442 ], p. 2282 :
1988 (4) SCC 419 [
LNIND 1988 SC 442 ]; Premier Breweries v. State of Kerala, Premier
Breweries v. State of Kerala,
JT 1997 (10) SC 226 , p. 231 :
(1998) 1 SCC 641 [
LNIND 1997 SC 1560 ] :
(1998) 1 KLT 186 [
LNIND 1997 SC 1560 ].
41 K. Prabhakaran v. P. Jayarajan, K. Prabhakaran v. P. Jayarajan,

(2005) 1 SCC 754 [
LNIND 2005 SC 30 ], p. 772 :
AIR 2005 SC 688 [
LNIND 2005 SC 30 ](
Constitution Bench) overruling Mannilal v. Parmai Lal, Mannilal v. Parmai Lal,
(1970) 2 SCC 462 [
LNIND 1970 SC 308 ] :
AIR 1971 SC 2333 [
LNIND 1970 SC 330 ] and Vidyacharan Shukla v. Purshottam Lal Kaushik,
Vidyacharan Shukla v. Purshottam Lal Kaushik,
(1981) 2 SCC 84 [
LNIND 1981 SC 32 ] :
AIR 1981 SC 547 [
LNIND 1981 SC 32 ].
42 Liverpool Borough Bank v. Turner, Liverpool Borough Bank v. Turner,

(1861) 30 LJ Ch 379 , pp. 380, 381; referred to in Howard v. Bodington,
Howard v. Bodington,
(1877) 2 PD 203 , p. 211 (LORD PENZANCE); Vita Food Products Inc. v. Unus Shipping Co.,
Vita Food Products Inc. v. Unus Shipping Co.,
(1939) 1 All ER 513 , p. 523 (PC); H.N. Rishbud v. State of Delhi, H.N. Rishbud
v. State of Delhi,
Mr.Srikanth -
Page 65 of 108
AIR 1955 SC 196 [

LNIND 1954 SC 177 ], p. 200 :
(1955) 1 SCR 1150 [
LNIND 1954 SC 177 ]; State of U.P. v. Baburam Upadhya, State of U.P. v.
Baburam Upadhya,
AIR 1961 SC 751 [
LNIND 1960 SC 292 ], p. 765 :
(1961) 2 SCR 679 [
LNIND 1960 SC 292 ]; Bhikraj Jaipuria v. Union of India, Bhikraj Jaipuria v.
Union of India,
AIR 1962 SC 113 [
LNIND 1961 SC 253 ], p. 119 :
(1962) 2 SCR 880 [
LNIND 1961 SC 253 ]; Banarasi Das v. Cane Commissioner, U.P., Banarasi
Das v. Cane Commissioner, U.P.,
AIR 1963 SC 1417 [
LNIND 1962 SC 407 ], p. 1424 : 1963 Supp (2) SCR 760; Kailash v. Nanhku,
Kailash v. Nanhku,
(2005) 4 SCC 480 [
LNIND 2005 SC 344 ], pp. 496, 497 (9th Edn. of this book, p. 338 is referred). See further Raza
Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, Raza Buland Sugar Co. Ltd., Rampur v.
Municipal Board, Rampur,
AIR 1965 SC 895 [
LNIND 1964 SC 294 ], p. 899 :
(1965) 1 SCR 413 ; Article 143of the
Constitution of India , In the matter of,
AIR 1965 SC 745 , p. 769 :
(1965) 1 SCR 970 [
LNIND 1964 SC 294 ]; Montreal Street Rly. v. Normandin, Montreal Street Rly.
v. Normandin,
(1917) AC 170 :
AIR 1917 PC 142 , p. 144; Hiralal Agrawal v. Rampadarath Singh, Hiralal
Agrawal v. Rampadarath Singh,
AIR 1969 SC 244 [
LNIND 1968 SC 162 ], p. 251 :
(1969) 1 SCR 328 [
LNIND 1968 SC 162 ]; Ramchandra v. Govind, Ramchandra v. Govind,
AIR 1975 SC 915 [
LNIND 1975 SC 93 ], p. 917 :
(1975) 1 SCC 559 [
LNIND 1975 SC 93 ]; K.K. Srinivasan v. State of Karnataka, K.K. Srinivasan v.
State of Karnataka,
(1987) 1 SCC 658 [
LNIND 1987 SC 62 ], p. 675 :
AIR 1987 SC 1059 [
LNIND 1987 SC 62 ]; Rubber House v. Excellsior Needle Industries Pvt. Ltd.,
Rubber House v. Excellsior Needle Industries Pvt. Ltd.,
AIR 1989 SC 1160 [
LNIND 1989 SC 148 ], p. 1165 :
(1989) 2 SCC 413 [
LNIND 1989 SC 148 ];
(1996) 3 All ER 72 , p. 79 (HL);
Shashikant Singh v. Tarkeshwar Singh, Shashikant Singh v. Tarkeshwar Singh,

AIR 2002 SC 2031 [
LNIND 2002 SC 320 ], p. 2034 :
(2002) 5 SCC 738 [
LNIND 2002 SC 320 ]. In the matter of Special Reference No. 1 of 2002 [ Gujarat Assembly
Election matter,
(2002) 8 SCC 237 [
LNIND 2002 SC 1378 ], p. 322; Bhavnagar University v. Palitana Sugar Mill (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ], p. 126 :
AIR 2003 SC 511 [
Mr.Srikanth -
Page 66 of 108
LNIND 2002 SC 669 ], p. 520; Chandrika Prasad Yadav v. State of Bihar,

Chandrika Prasad Yadav v. State of Bihar,
AIR 2004 SC 2036 [
LNIND 2004 SC 437 ], p. 2042 :
(2004) 6 SCC 331 [
LNIND 2004 SC 437 ] ].
43 Passage from CRAWFORD: Statutory Construction, p. 516; approved in State of U.P. v. Manbodhan Lal
Shrivastava, State of U.P. v. Manbodhan Lal Shrivastava,
AIR 1957 SC 912 [
LNIND 1957 SC 93 ], p. 918 :
1958 SCR 533 [
LNIND 1957 SC 93 ]; State of U.P. v. Baburam, Upadhya, State of U.P. v.
Baburam, Upadhya,
AIR 1961 SC 751 [
LNIND 1960 SC 292 ], p. 765 :
(1961) 2 SCR 679 [
LNIND 1960 SC 292 ]; Article 143 of the
Constitution of India , In the matter of, supra, p. 769; State of Mysore v. V.K. Kangan,
Mysore v. V.K. Kangan,
AIR 1975 SC 2190 [
LNIND 1975 SC 287 ], p. 2192 :
(1976) 2 SCC 895 [
LNIND 1975 SC 287 ]; Govindlal Chhaganlal Patel v. Agriculture Produce Market Committee,
Govindlal Chhaganlal Patel v. Agriculture Produce Market Committee,
AIR 1976 SC 263 [
LNIND 1975 SC 300 ], p. 267 :
(1976) 1 SCC 369 [
LNIND 1975 SC 458 ]; Ganesh Prasad Sah Kesari v. Lakshmi Narayan,
Ganesh Prasad Sah Kesari v. Lakshmi Narayan,
(1985) 3 SCC 53 [
LNIND 1985 SC 134 ], pp. 59, 60 :
AIR 1985 SC 964 [
LNIND 1985 SC 134 ]; B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmik,
B.P. Khemka Pvt. Ltd. v. Birendra Kumar Bhowmik,
(1987) 2 SCC 407 [
LNIND 1987 SC 921 ], p. 415 :
AIR 1987 SC 1010 [
LNIND 1987 SC 921 ]; Owners and Parties interested in M.V. “Vali Pero” v. Fernandes Lopez,
Owners and Parties interested in M.V. “Vali Pero” v. Fernandes Lopez,
AIR 1989 SC 2206 [
LNIND 1989 SC 453 ], p. 2213 :
(1989) 4 SCC 671 [
LNIND 1989 SC 453 ]; State of M.P. v. Pradeep Kumar, State of M.P. v.
Pradeep Kumar,
(2000) 7 SCC 372 [
LNIND 2000 SC 1214 ], p. 377 :
(2000) 10 JT 349 .
44 State of U.P. v. Babu Ram Upadhya, supra, State of U.P. v. Babu Ram Upadhya,
supra, p. 765, See further Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, supra, Raza
Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, supra, p. 899 (para 7), where it is said that the “object of the statute
is determining factor”. Narsimhiah (K.) v. H.C. Narsimhiah (K.) v. H.C.
AIR 1966 SC 330 [
LNIND 1964 SC 117 ], p. 332 :
(1964) 7 SCR 618 [
LNIND 1964 SC 117 ]; Remington Rand ofindia Ltd. v. Workmen, Remington
Rand ofindia Ltd. v. Workmen,
AIR 1968 SC 224 [
LNIND 1967 SC 425 ], p. 226 :
(1968) 1 SCR 164 [
LNIND 1967 SC 225 ]; Hiralal Agrawal v. Rampadarath Singh, Hiralal
Agrawal v. Rampadarath Singh,
Mr.Srikanth -
Page 67 of 108
AIR 1969 SC 244 [

LNIND 1968 SC 162 ], p. 252 :
(1969) 1 SCR 328 [
LNIND 1968 SC 162 ]; Virji Ram Sutaria v. Nathalal Premji Bhanvadia, Virji
Ram Sutaria v. Nathalal Premji Bhanvadia,
AIR 1970 SC 765 [
LNIND 1968 SC 331 ], p. 768 :
(1969) 1 SCC 77 [
LNIND 1968 SC 331 ];
AIR 1973 SC 883 [
LNIND 1973 SC 13 ], p. 891 : 1973 SCC (L&S) 177; Satya Narain v. Dhuja Ram,
Satya Narain v. Dhuja Ram,
AIR 1974 SC 1185 [
LNIND 1973 SC 419 ], p. 1190 :
(1974) 4 SCC 237 [
LNIND 1973 SC 419 ]; Presidential Election, In re, Presidential Election, In re,
1974,
AIR 1974 SC 1682 [
LNIND 2002 SC 665 ], p. 1686 :
(1974) 2 SCC 33 [
LNIND 1974 SC 688 ]; Ajit Singh v. State of Punjab, Ajit Singh v. State of
Punjab,
AIR 1983 SC 494 [
LNIND 1983 SC 81 ], p. 499 :
(1983) 2 SCC 217 [
LNIND 1983 SC 81 ]; Dalchand v. Municipal Corporation, Bhopal, Dalchand
v. Municipal Corporation, Bhopal,
(1984) 2 SCC 486 :
AIR 1983 SC 303 [
LNIND 1982 SC 105 ]; Rubber House v. Excellsior Needle Industries Pvt. Ltd.,
AIR 1989 SC 1160 [
LNIND 1989 SC 148 ], pp. 1165, 1166 :
(1989) 2 SCC 413 [
LNIND 1989 SC 148 ]; Karnal Leather
Karamchari Sanghatan v. Liberty Footwear Co., Karamchari Sanghatan v. Liberty
Footwear Co.,
AIR 1990 SC 247 [
LNIND 1989 SC 425 ], p. 254 :
(1989) 4 SCC 448 [
LNIND 1989 SC 425 ]; Mohan Singh v. International Air Port Authority,
Mohan Singh v. International Air Port Authority,
1996 (8) Scale 251 , p. 260 :
1996 (10) JT 311 :
(1997) 9 SCC 132 .
45 Bhikraj Jaipuria v. Union of India, Bhikraj Jaipuria v. Union of India,

AIR 1962 SC 113 [
LNIND 1961 SC 253 ], p. 119 :
1962 (2) SCR 880 [
LNIND 1961 SC 253 ]; Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur,
Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur,
AIR 1965 SC 895 [
LNIND 1964 SC 294 ], p. 900 (para 9) :
(1965) 1 SCR 970 [
LNIND 1964 SC 294 ].
46 Montreal Street Railway v. Normandin, Montreal Street Railway v. Normandin,

AIR 1917 PC 142 , p. 144, referred to in Bishwanath Khemka v. Emperor
Bishwanath Khemka v. Emperor
AIR 1945 FC 67 , p. 68; State of U.P. v. Manbodhan Lal Shrivastava, State of
U.P. v. Manbodhan Lal Shrivastava,
Mr.Srikanth -
Page 68 of 108
AIR 1957 SC 912 [

LNIND 1957 SC 93 ], p. 917 :
1958 SCR 533 [
LNIND 1957 SC 93 ]; L. Hazari Mal Kuthiala v. I.T.O., Special Circle, Ambala Cantt,
L. Hazari Mal Kuthiala v. I.T.O., Special Circle, Ambala Cantt,
AIR 1961 SC 200 [
LNIND 1961 SC 481 ], p. 202 :
1961 (1) SCR 892 ; State of U.P. v. Babu Ram Upadhya, State of U.P. v. Babu
Ram Upadhya,
AIR 1961 SC 751 [
LNIND 1960 SC 292 ], p. 765 :
1961 (2) SCR 679 [
LNIND 1960 SC 292 ]; Banwarilal Agarwalla v. State of Bihar, Banwarilal
Agarwalla v. State of Bihar,
AIR 1961 SC 849 [
LNIND 1961 SC 56 ], p. 853 :
1962 (1) SCR 33 [
AIR 1965 SC 895 [
LNIND 1964 SC 294 ], p. 899 :
1965 (1) SCR 970 [
LNIND 1964 SC 294 ]; Kailash v. Nanhku, Kailash v. Nanhku,
(2005) 4 SCC 480 [
LNIND 2005 SC 344 ], p. 497 :
AIR 2005 SC 2441 [
LNIND 2005 SC 344 ](passage from 9th Edn. of this book pp. 339, 340 is approved).
47 Jaishankar Prasad v. State of Bihar, Jaishankar Prasad v. State of Bihar,

AIR 1993 SC 1906 [
LNIND 1993 SC 244 ], p. 1911 :
1993 (2) SCC 597 [
LNIND 1993 SC 244 ] [construction of proviso to
article 316(1) of the Constitution ]; Kailash v. Nanhku Kailash v. Nanhku
(2005) 4 SCC 480 [
LNIND 2005 SC 344 ], p. 493 :
AIR 2005 SC 2441 [
s. 87 of the Representation of the People Act 1951 ). The expressions ’as far as it can be made applicable’ or ’as far
as applicable’ will also be prima facie construed as directory : Tarlok Singh v. Municipal Corpn. of Amritsar,
Tarlok Singh v. Municipal Corpn. of Amritsar,
(1986) 4 SCC 27 [
LNIND 1986 SC 273 ] :
AIR 1986 SC 1957 [
LNIND 1986 SC 273 ]; Direct Recruit Class II Engg. Officers’ Asson. v. State of Maharashtra,
Direct Recruit Class II Engg. Officers’ Asson. v. State of Maharashtra,
(1990) 2 SCC 715 [
LNIND 1990 SC 293 ] :
AIR 1990 SC 1607 [
LNIND 1990 SC 293 ].
48 See title 6(c) p. 390.
49 See title 6(k) p. 445.
50 See title 6(e) p. 393.
51 Drigraj Kuer (Rani) v. Amar Krishna Narain Singh (Raja), Drigraj Kuer (Rani) v.
Amar Krishna Narain Singh (Raja),
AIR 1960 SC 444 [
Mr.Srikanth -
Page 69 of 108
LNIND 1959 SC 222 ], pp. 449, 451 :

1960 (2) SCR 431 [
LNIND 1959 SC 222 ]; L. Hazari Mal Kuthiala v. I.T.O., Ambala Cantt., L.
Hazari Mal Kuthiala v. I.T.O., Ambala Cantt.,
AIR 1961 SC 200 [
LNIND 1961 SC 481 ], p. 202 :
1961 (1) SCR 892 ; Banwarilal Agarwalla v. State of Bihar, supra, Banwarilal
Agarwalla v. State of Bihar, supra, p. 851; Bhikraj Jaipuria v. Union of India, Bhikraj Jaipuria v. Union of India,
AIR 1962 SC 113 [
LNIND 1961 SC 253 ], p. 119 :
1962(2) SCR 880 [
LNIND 1961 SC 253 ]; Union of India v. Tulsiram Patel, Union of India v.
Tulsiram Patel,
(1985) 3 SCC 398 [
LNIND 1985 SC 219 ], p. 484 :
AIR 1985 SC 1416 [
LNIND 1985 SC 219 ]; (Breach of a directory provision does not entail any invalidity.) Rubber
House v. Excellsior Industries Pvt. Ltd., Rubber House v. Excellsior Industries Pvt. Ltd.,
AIR 1989 SC 1160 [
LNIND 1989 SC 148 ], p. 1165 :
(1989) 2 SCC 413 [
LNIND 1989 SC 148 ].
52 Woodward v. Sarsons, Woodward v. Sarsons,

(1875) LR 10 CP 733, p. 746 :
(1874-80) All ER Rep 262 ,p 268; Punjab Co-operative Bank Ltd. v. C.I.T., Lahore,
Punjab Co-operative Bank Ltd. v. C.I.T., Lahore,
AIR 1940 PC 230 , p. 233; Pratap Singh v. Srikrishna Gupta, Pratap Singh v.
Srikrishna Gupta,
AIR 1956 SC 140 [
LNIND 1952 SC 76 ], p. 141 :
1955 (2) SCR 1029 [
LNIND 1952 SC 76 ]; Banarasi Das v. Cane Commr. U.P., Banarasi Das v.
Cane Commr. U.P.,
AIR 1963 SC 1417 [
LNIND 1962 SC 407 ], p. 1424 : 1963 Supp (2) SCR 760; Hiralal Agarwal v. Rampadarath
Singh, Hiralal Agarwal v. Rampadarath Singh,
AIR 1969 SC 244 [
LNIND 1968 SC 162 ], p. 253 :
1969 (1) SCR 328 [
LNIND 1968 SC 162 ]; Ram Autar Singh Bhadoria v. Ram Gopal Singh, Ram
Autar Singh Bhadoria v. Ram Gopal Singh,
AIR 1975 SC 2182 [
LNIND 1975 SC 241 ], p. 2189 :
(1976) 1 SCC 43 [
LNIND 1975 SC 241 ]; Dove Investment (P.) Ltd. v. Gujarat Industrial Investment Corpn.,
Dove Investment (P.) Ltd. v. Gujarat Industrial Investment Corpn.,
(2006) 2 SCC 619 [
LNIND 2006 SC 75 ] (para 47) :
AIR 2006 SC 1454 [
LNIND 2006 SC 75 ].
53 See for example State of U.P. v. Manbodhan Lal Shrivastava, State of U.P. v. Manbodhan Lal
Shrivastava,
AIR 1957 SC 912 [
LNIND 1957 SC 93 ],p. 917 :
1958 SCR 533 [
LNIND 1957 SC 93 ]; Drigraj Kuer (Rani) v. Amar Krishna Narain Singh (Raja),
Drigraj Kuer (Rani) v. Amar Krishna Narain Singh (Raja),
AIR 1960 SC 444 [
LNIND 1959 SC 222 ], pp. 449, 451 :
(1960) 2 SCR 431 [
LNIND 1959 SC 222 ]; L. Hazari Mal Kuthiala v. I.T.O., Ambala Cantt., L.
Hazari Mal Kuthiala v. I.T.O., Ambala Cantt.,
Mr.Srikanth -
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AIR 1961 SC 200 [

LNIND 1961 SC 481 ], p. 202 :
1961 (1) SCR 892 . See also cases in note 51, supra.
54 London and Clydeside Estates Ltd. v. Aberdeen District Council, London and
Clydeside Estates Ltd. v. Aberdeen District Council,
(1979) 3 All ER 876 , p. 882 (HL).
55 See HALSBURY'S: Laws of England, 4th Edition, Volume 44, page 584 (f.n. 1). For example, see Pope v. Clarke,
Pope v. Clarke,
(1953) 2 All ER 704 ; K. Kamaraja Nadar v. Kunju Thevar, K. Kamaraja Nadar
v. Kunju Thevar,
AIR 1958 SC 687 [
LNIND 1958 SC 57 ], p. 697 (S. 117 R.P. Act) :
1959 SCR 583 [
LNIND 1958 SC 57 ]; Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria,
Chandrika Prasad Tripathi v. Shiv Prasad Chanpuria,
AIR 1959 SC 827 [
LNIND 1959 SC 45 ], p. 831 : 1959 Supp (2) SCR 527; Ch Subbarao v. Member, Election
Tribunal, Hyderabad, Ch Subbarao v. Member, Election Tribunal, Hyderabad,
AIR 1964 SC 1027 [
LNIND 1964 SC 396 ], p. 1031 (para 14), p. 1033 (para 25) (S. 81(3) R.P. Act) :
(1964) 6 SCR 213 [
AIR 1965 SC 895 [
LNIND 1964 SC 294 ], pp. 900, 901 (S. 94(3) U.P. Municipalities Act) :
(1965) 1 SCR 970 [
LNIND 1964 SC 294 ]; Virji Ram Sutaria v. Nathalal Premji Bhanvadia, Virji
Ram Sutaria v. Nathalal Premji Bhanvadia,
AIR 1970 SC 765 [
LNIND 1968 SC 331 ], p. 767 (
Art. 173 Constitution ) :
(1969) 2 SCR 627 [
LNIND 1968 SC 331 ]; M. Karunanidhi v. H.V. Handa, M. Karunanidhi v. H.V.
Handa,
AIR 1983 SC 558 [
LNIND 1983 SC 97 ]:
(1983) 2 SCC 473 [
LNIND 1983 SC 97 ]. But see Hari Vishnu Kamath v. Ahmad Ishaque, Hari
Vishnu Kamath v. Ahmad Ishaque,
AIR 1955 SC 233 [
LNIND 1954 SC 174 ] p. 245 (last 13 lines of para 26) :
1955 (1) SCR 1104 [
LNIND 1954 SC 174 ]; Delhi Administration v. Chandan Shah, Delhi
Administration v. Chandan Shah,
AIR 1969 SC 1108 [
LNIND 1969 SC 55 ]:
1969 1 SCC 787 (It was wrongly held that if a directory provision is not substantially complied
with, the resultant act is invalid.)
56 State of Haryana v. P.C. Wadhwa, State of Haryana v. P.C. Wadhwa,

(1987) 2 SCC 602 [
LNIND 1987 SC 397 ], pp. 611, 612 :
AIR 1986 SC 1201 . But see Baikunth Nath Das v. Chief District Medical Officer Boripada,
Baikunth Nath Das v. Chief District Medical Officer Boripada,
AIR 1992 SC 1020 [
LNIND 1992 SC 176 ]:
1992 (2) SCC 410 [
LNIND 1992 SC 192 ] (Uncommunicated remarks can be taken into account in compulsorily
retiring a civil servant). The case of Baikunth Nath Das distinguished in Madan Mohan Choudhary v. State of Bihar,
Madan Mohan Choudhary v. State of Bihar,
JT 1998 (1) SC 459 :
Mr.Srikanth -
Page 71 of 108
AIR 1999 SC 1018 [

LNIND 1999 SC 151 ]:
(1999) 3 SCC 396 [
LNIND 1999 SC 151 ] :
AIR 1999 SC 1018 [
LNIND 1999 SC 151 ], where remarks were not made in normal course.
57 M.Y. Ghorpade v. Shivaji Rao M. Poal, M.Y. Ghorpade v. Shivaji Rao M. Poal,
AIR 2002 SC 3105 [
LNIND 2002 SC 546 ], pp. 3107, 3109 :
(2002) 7 SCC 289 [
LNIND 2002 SC 546 ].
58 Rai Vimal Krishna v. State of Bihar, Rai Vimal Krishna v. State of Bihar,
(2003) 6 SCC 401 [
LNIND 2003 SC 545 ], pp. 412 to 414 :
AIR 2003 SC 2676 [
LNIND 2003 SC 545 ].
59 Sanjeev Gupta v. Union of India, Sanjeev Gupta v. Union of India,

(2005) 1 SCC 45 [
LNIND 2004 SC 1141 ], pp. 67, 68 (para 45).
60 Drigraj Kuer (Rani) v. Amar Krishna Narain Singh (Raja), Drigraj Kuer (Rani) v.
Amar Krishna Narain Singh (Raja),
AIR 1960 SC 444 [
LNIND 1959 SC 222 ], p. 449 :
1960 (2) SCR 431 [
LNIND 1959 SC 222 ].
61 Attorney General's Reference (No. 3 of 1999),

(2001) 1 All ER 577 , p. 583 (e-f) (HL).
62 Shashikant Singh v. Tarkeshwar Singh, Shashikant Singh v. Tarkeshwar Singh,

AIR 2002 SC 2031 [
LNIND 2002 SC 320 ], p. 2035 :
(2002) 1 SCC 583 [
LNIND 2001 SC 2564 ]. It is submitted that ’could be tried together with the accused’ is a
requirement for taking action against a person who is not an accused in a pending trial and to that extent the condition is mandatory.
But it does not mean that the person against whom action is taken under section 319(1) must be tried along with the accused already
facing trial.
64 Quilibet potest renuniare juri pro se introducto (Every man is entitled to renounce a right introduced in his favour);
Wilson v. Mcintosh, Wilson v. Mcintosh,
(1894) AC 129 , p. 133 : 63 LJ PC 49 (PC); Dhirendra Nath Ghorai v. Sudhir Chandra Ghosh,
Dhirendra Nath Ghorai v. Sudhir Chandra Ghosh,
AIR 1964 SC 1300 [
LNIND 1964 SC 58 ], p. 1304 :
1964 (6) SCR 1001 [
LNIND 1964 SC 58 ]; Lachoo Mal v. Radhey Shyam, Lachoo Mal v. Radhey
Shyam,
AIR 1971 SC 2213 [
LNIND 1971 SC 119 ]:
1971 (1) SCC 619 [
Mr.Srikanth -
Page 72 of 108
LNIND 1971 SC 119 ]; Superintendent of Taxes, Dhubri v. Onkarmal Nathumal Trust,

Superintendent of Taxes, Dhubri v. Onkarmal Nathumal Trust,
AIR 1975 SC 2065 [
LNIND 1975 SC 191 ]:
(1976) 1 SCC 766 [
LNIND 1975 SC 191 ]; Director of Inspection, I.T. v. Pooranmall & Sons,
Director of Inspection, I.T. v. Pooranmall & Sons,
AIR 1975 SC 67 [
(1975) 4 SCC 568 [
LNIND 1974 SC 283 ]; PDM Reddy v. P.A. Rao, PDM Reddy v. P.A. Rao,
AIR 1974 SC 2089 [
LNIND 1974 SC 272 ], pp. 2091, 2092 :
(1974) 2 SCC 725 [
LNIND 1974 SC 272 ]; Brajendra Nath Bhargava v. Harsh Wardhan,
Brajendra Nath Bhargava v. Harsh Wardhan,
AIR 1988 SC 293 [
LNIND 1987 SC 805 ], pp. 296, 297 :
1988 (1) SCC 454 [
LNIND 1987 SC 805 ]; Indira Bai v. Nand Kishore, Indira Bai v. Nand Kishore,
AIR 1991 SC 1055 [
LNIND 1990 SC 497 ], p. 1058; Krishna Lal v. State of Jammu & Kashmir,
Krishna Lal v. State of Jammu & Kashmir,
JT 1994(2) SC 619 [
LNIND 1994 SC 277 ], pp. 624-26; Kerala State Housing Board v. Rampriya Hotels (P) Ltd.,
Kerala State Housing Board v. Rampriya Hotels (P) Ltd.,
JT 1994 (5) SC 113 , p. 117 :
(1994) 2 KLT 529 ; Martin & Harris Limited v. VITH Addl. Distt. Judge,
Martin & Harris Limited v. VITH Addl. Distt. Judge,
AIR 1998 SC 492 [
LNIND 1997 SC 1604 ], pp 501 to 503 :
1998 (1) SCC 732 [
LNIND 1997 SC 1604 ]; Commissioner of Customs Mumbai v. Virgo Steels Bombay,
Commissioner of Customs Mumbai v. Virgo Steels Bombay,
AIR 2002 SC 1745 [
LNIND 2002 SC 261 ], p. 1761 :
(2002) 4 SCC 316 [
LNIND 2002 SC 261 ] (Notice under
section 28 of the Customs Act , 1961); Krishna Bahadur v. Purna Theatre, Krishna Bahadur v.
Purna Theatre,
(2004) 8 SCC 229 [
LNIND 2004 SC 849 ], p. 233 :
AIR 2004 SC 4282 [
LNIND 2004 SC 849 ].
65 ALAR Vellayan Chettiar v. Govt. of Madras, ALAR Vellayan Chettiar v. Govt. of

Madras,
AIR 1947 PC 197 [
LNIND 1947 PC 41 ], p. 199; Dhian Singh Sobha Singh v. Union of India,
Dhian Singh Sobha Singh v. Union of India,
AIR 1958 SC 274 [
LNIND 1957 SC 11 ], p. 282 :
1958 SCR 781 [
LNIND 1957 SC 11 ].
66 Dhirendra Nath Ghorai v. Sudhir Chandra Ghosh, Dhirendra Nath Ghorai v.

Sudhir Chandra Ghosh,
AIR 1964 SC 1300 [
LNIND 1964 SC 58 ], p. 1304 :
1964 (6) SCR 1001 [
LNIND 1964 SC 58 ].
Mr.Srikanth -
Page 73 of 108
67 Equitable Life Assurance Society of United States v. Reed, Equitable Life Assurance
Society of United States v. Reed,
(1914) AC 587 , p. 595; Edward Ramia Ltd., v. African Woods Ltd., Edward
Ramia Ltd., v. African Woods Ltd.,
(1960) 1 All ER 627 , p. 630 (PC) Johnson v. Moreton, Johnson v. Moreton,
(1978) 3 All ER 37 , p. 47 :
(1980) AC 37 (HL), (A liberty or right conferred by a statute or law which involves public as
well as a private interest cannotbe waived); Murlidhar v. State of U.P., Murlidhar v. State of U.P.,
AIR 1974 SC 1924 [
LNIND 1974 SC 202 ], pp. 1928, 1929 :
(1974) 2 SCC 472 ; Shalimar Tar Products Ltd. v. H.C. Sharma, Shalimar Tar
Products Ltd. v. H.C. Sharma,
AIR 1988 SC 145 [
LNIND 1987 SC 758 ]:
(1988) 1 SCC 70 [
LNIND 1987 SC 758 ] (statutory requirement of consent in writing by landlord for enabling
tenant to sublet is in public interest to avoid disputes as to consent and cannot be waived); Rai Chand Jain v. Miss Chandra Kanta
Khosla, Rai Chand Jain v. Miss Chandra Kanta Khosla,
AIR 1991 SC 744 , p. 754 :
(1991) 1 SCC 422 (permission of the rent controller to convert residential building into non-
residential is mandatory).
68 National and Grindlays Bank v. Dharamshi etc. National and Grindlays Bank v.
Dharamshi etc.
(1961) 2 All ER 626 (PC).
69 Biharilal v. Bhuri Devi, Biharilal v. Bhuri Devi,

AIR 1997 SC 1879 [
LNIND 1996 SC 2818 ], p. 1885 :
1997 (2) SCC 279 [
LNIND 1996 SC 2818 ].
70 Sangram Singh v. Election Tribunal, Kota, Sangram Singh v. Election Tribunal,

Kota,
AIR 1955 SC 425 [
LNIND 1955 SC 2 ]:
(1955) 2 SCR 1 [
LNIND 1955 SC 2 ]; Topline Shoes Ltd. v. Corporation Bank, Topline Shoes
Ltd. v. Corporation Bank,
AIR 2002 SC 2487 [
LNIND 2002 SC 406 ], pp. 2490, 2491 :
(2002) 6 SCC 33 [
LNIND 2002 SC 406 ]; Kailash v. Nanhka, Kailash v. Nanhka,
(2005) 4 SCC 480 [
LNIND 2005 SC 344 ], pp. 495, 496 :
AIR 2005 SC 2441 [
LNIND 2005 SC 344 ].
71 Topline Shoes Ltd. v. Corporation Bank, supra. Topline Shoes Ltd. v. Corporation
Bank, supra.
72 Kailash v. Nanhku, supra, Kailash v. Nanhku, supra, Kailash v. Nanhku, supra, pp.
498, 500 (SCC). See to the same effect Salem Advocate Bar Association T.N. v. Union of India, Salem Advocate
Bar Association T.N. v. Union of India,
(2005) 6 SCC 344 [
LNIND 2005 SC 573 ], p. 364 (para 21); R.N. Jadi&Brothers v. Subhashchandra,
R.N. Jadi&Brothers v. Subhashchandra,
(2007) 6 SCC 420 [
LNIND 2007 SC 843 ], para 16.
Mr.Srikanth -
Page 74 of 108
73 Dr. Mahachandra Prasad Singh v. Chairman Bihar Legislative Council, Dr.

Mahachandra Prasad Singh v. Chairman Bihar Legislative Council,
(2004) 8 SCC 719 , pp. 761, 762 :
AIR 2005 SC 69 [
LNIND 2004 SC 1100 ].
74 R. v. Immigration Appeal Tribunal, R. v. Immigration Appeal Tribunal,

(1999) 3 All ER 231 , pp. 238, 239 (CA).
75 Ibid.
76 Prakash Jain v. Marie Fernandes, Prakash Jain v. Marie Fernandes,

(2003) 8 SCC 431 [
LNIND 2003 SC 826 ], p. 439 :
AIR 2003 SC 4591 [
LNIND 2003 SC 826 ].
77 R. v. Immigration Appeal Tribunal, supra. R. v. Immigration Appeal Tribunal,

supra. The approach of Lord Woolf approved by House of Lords in Attorney General's Reference (No. 3 of 1999)
(2001) 1 All ER 577 , p. 583 (HL). See further R. v. Sekhon, R. v. Sekhon,
(2003) 3 All ER 508 , p. 517 (CA) (LORD WOOLF, C.J.). See also text and note 61, p. 382.
79 See text and notes 80-88, infra. See further Rajsekhar Gogoi v. State of Assam,
Rajsekhar Gogoi v. State of Assam,
AIR 2001 SC 2313 [
LNIND 2001 SC 1167 ], p. 2315 :
(2001) 6 SCC 46 [
LNIND 2001 SC 1167 ] (para 11).
80 Pate v. Pate, Pate v. Pate,

(1915) AC 1100 (PC); John H. Arseculeratne v. JBM Perera, John H.
Arseculeratne v. JBM Perera,
AIR 1928 PC 273 , p. 275.
81 Maqbool Ahmad v. Onkar Pratap Narain Singh, Maqbool Ahmad v. Onkar Pratap
Narain Singh,
AIR 1935 PC 85 , p. 88.
82 Secretary of State v. Kuchwar Lime & Stone Co. Ltd., Secretary of State v. Kuchwar
Lime & Stone Co. Ltd.,
AIR 1938 PC 20 , p. 22.
83 Jagan Nath v. Jaswant Singh, Jagan Nath v. Jaswant Singh,

AIR 1954 SC 210 [
LNIND 1954 SC 8 ], p. 254 :
1954 SCR 892 [
LNIND 1954 SC 8 ]. See further for effect of non-compliance of
section 119-A of Representation of the People Act, 1951 ; Kumaranand v. Brij Mohan Lal,
Kumaranand v. Brij Mohan Lal,
AIR 1965 SC 628 [
Mr.Srikanth -
Page 75 of 108
LNIND 1964 SC 212 ], pp. 630, 631 :

(1965) 1 SCR 116 [
LNIND 1964 SC 212 ].
84 K. Kamaraja Nadar v. Kunju Thewar, K. Kamaraja Nadar v. Kunju Thewar,

AIR 1958 SC 687 [
LNIND 1958 SC 57 ], p. 696 :
1959 SCR 583 [
LNIND 1958 SC 57 ]. But see Shivchand v. Ujagar Singh, Shivchand v.
Ujagar Singh,
AIR 1978 SC 1583 [
LNIND 1978 SC 220 ]:
(1980) 2 SCC 197 [
LNIND 1978 SC 220 ]. (A candidate, who ought to be joined himself applying for being made a
party under section 90(4), now section 86(4): held election petition cannot be dismissed.) See further the following cases which
hold that the requirement of supplying true attested copies of election petition under section 81(3) is mandatory as the petition is
liable to be dismissed for its non-compliance under section 86: Satya Narain v. Dhuja Ram, Satya Narain v. Dhuja
Ram,
AIR 1974 SC 1185 [
LNIND 1973 SC 419 ]:
(1974) 4 SCC 237 [
LNIND 1973 SC 419 ] (Copies not filed with election petition, petition will be dismissed);
Sarifuddin v. Abdul Gani, Sarifuddin v. Abdul Gani,
AIR 1980 SC 303 [
LNIND 1979 SC 446 ]:
(1980) 1 SCC 403 [
LNIND 1979 SC 446 ] (Copies to be valid must be signed by the election petitioner himself,
otherwise petition would be dismissed); M. Karunanidhi v. H.V. Handa, M. Karunanidhi v. H.V. Handa,
AIR 1983 SC 558 [
LNIND 1983 SC 97 ]:
(1983) 2 SCC 473 [
LNIND 1983 SC 97 ] (Copy of a photograph forming part of election petition not supplied,
petition will be dismissed); Rajendra Singh v. Usha Rani, Rajendra Singh v. Usha Rani,
(1984) 3 SCC 339 [
LNIND 1984 SC 57 ] :
AIR 1984 SC 956 [
LNIND 1984 SC 57 ](one page missing in the election petition but present in its true copy;
petition will be dismissed); V.S. Sasidharan v. K. Karunakaran, V.S. Sasidharan v. K. Karunakaran,
AIR 1990 SC 924 [
LNIND 1989 SC 411 ]:
(1989) 4 SCC 482 [
LNIND 1989 SC 411 ] (copy of a video cassette forming part of election petition not supplied,
petition will be dismissed); Shipra (Dr. Smt.) v. Shantilal Khoiwal, Shipra (Dr. Smt.) v. Shantilal Khoiwal,
AIR 1996 SC 1691 [
LNIND 1996 SC 2234 ]:
(1996) 5 SCC 181 [
LNIND 1996 SC 2234 ] (copy of affidavit in support of corrupt practice supplied not containing
notarial endorsement of the verification and affirmation on oath by election petitioner is not a true copy; petition will be dismissed).
Shipra's case has been confined to the fact situation in that case; so if the copy supplied is substantially a true copy, (e.g., when only
the name and the address of the notary is missing from the copy) it will still be a true copy and the defect will not entail dismissal:
T.M. Jacob v. C. Poulose, T.M. Jacob v. C. Poulose,
AIR 1999 SC 1359 [
LNIND 1999 SC 412 ]:
1999 (4) SCC 274 [
LNIND 1999 SC 412 ] (
Constitution Bench); T. Phunzathang v. Hangkhalian, T. Phunzathang v. Hangkhalian,
AIR 2001 SC 3924 [
LNIND 2001 SC 1856 ]:
(2001) 8 SCC 358 [
LNIND 2001 SC 1856 ]; Ramprasad Sarma v. Manikumar Subba, Ramprasad
Sarma v. Manikumar Subba,
AIR 2003 SC 51 [
LNIND 2002 SC 669 ]:
(2003) 1 SCC 289 [
LNIND 2002 SC 669 ]; Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar,
Mr.Srikanth -
Page 76 of 108
Chandrakant Uttam Chodankar v. Dayanand Rayu Mandrakar,

(2005) 2 SCC 188 .
85 Baru Ram v. Parsanni (Smt.), Baru Ram v. Parsanni (Smt.),

AIR 1959 SC 93 [
LNIND 1958 SC 112 ], p. 96 :
1959 SCR 1403 [
LNIND 1958 SC 112 ]; Birad Mal Singhvi v. Anand Purohit, Birad Mal Singhvi
v. Anand Purohit,
AIR 1988 SC 1796 [
LNIND 1988 SC 353 ], p. 1800 : 1988 Supp SCC 658.
N.B.—But out of many requirements lumped together non-compliance of which is enacted to lead to
a particular consequence, it may be possible to hold that a substantial compliance is sufficient; see K. Kamaraja Nadar v. Kunju
Thewar, supra, K. Kamaraja Nadar v. Kunju Thewar, supra, p. 697; Subbarao (Ch.) v. Member, Election
Tribunal, Hyderabad, Subbarao (Ch.) v. Member, Election Tribunal, Hyderabad,
AIR 1964 SC 1027 [
LNIND 1964 SC 396 ], p. 1031 (para 14), p. 1033 (para 25) :
(1964) 6 SCR 213 [
LNIND 1964 SC 396 ]. See further text and note 55, pp. 380.
86 Baru Ram v. Parsanni (Smt.), Baru Ram v. Parsanni (Smt.), supra;

Sarifuddin v. Abdul Gani, Sarifuddin v. Abdul Gani,
AIR 1980 SC 303 [
LNIND 1979 SC 446 ], p. 306 :
(1980) 1 SCC 403 [
LNIND 1979 SC 446 ].
87 Manilal Mohanlal Shah v. Sardar Sayed Ahmed Sayed Mahmad, Manilal Mohanlal
Shah v. Sardar Sayed Ahmed Sayed Mahmad,
AIR 1954 SC 349 [
LNIND 1954 SC 66 ]:
1955 (1) SCR 108 [
LNIND 1954 SC 66 ]; Rao Mahmood Ahmed Khan v. Ranbir Singh, Rao
Mahmood Ahmed Khan v. Ranbir Singh,
1995(1) Scale 842 : 1995 AIR SCW 1584 : 1995 Supp (4) SCC 275 :
AIR 1995 SC 2195 [
LNIND 1995 SC 276 ].
88 H.S. Rikhy (Dr.) v. New Delhi Municipal Committee, H.S. Rikhy (Dr.) v. New Delhi
Municipal Committee,
AIR 1962 SC 554 [
LNIND 1961 SC 299 ], p. 559 :
1962 (3) SCR 604 [
LNIND 1961 SC 299 ]. See further, M.I. Builders Pvt. v. Radhey Shyam Sahu,
M.I. Builders Pvt. v. Radhey Shyam Sahu,
JT 1999 (5) SC 42 [
LNIND 1999 SC 612 ], pp. 57, 89 :
1999(6) SCC 464 [
LNIND 1999 SC 612 ] :
AIR 1999 SC 2468 [
LNIND 1999 SC 612 ][section 132(4) of U.P. Nagar Palika Adhiniyam, 1959] :
(1999) 6 SCC 464 [
LNIND 1999 SC 612 ] :
AIR 1999 SC 2468 [
LNIND 1999 SC 612 ].
89 Attorney General's Reference (No. 3 of 1999),

(2001) 1 All ER 577 , pp. 583, 584 (HL).
Mr.Srikanth -
Page 77 of 108
90 HALSBURY'S Laws of England (3rd Edition) Vol. 8, p. 141; See further Vita Food Products Inc. v. Unus
Shipping Co., Vita Food Products Inc. v. Unus Shipping Co.,
(1939) 1 All ER 513 , p. 523 :
1939 AC 277 (PC); Lachoo Mal v. Radhey Shyam, Lachoo Mal v. Radhey
Shyam,
AIR 1971 SC 2213 [
LNIND 1971 SC 119 ]:
(1971) 1 SCC 619 [
LNIND 1971 SC 119 ]; Mannalal Khetan v. Kedarnath Khetan, Mannalal
Khetan v. Kedarnath Khetan,
AIR 1977 SC 536 [
LNIND 1976 SC 450 ], p. 539 :
(1977) 2 SCC 120 ; Phoenix General Insurance Co. of Grace, SA v. Administratia Asigurarilor
de stat, Phoenix General Insurance Co. of Grace, SA v. Administratia Asigurarilor de stat,
(1987) 2 All ER 152 , pp. 171 to 176 :
1988 QB 216 (CA).
91 Banarsidas v. Cane Commrs., Banarsidas v. Cane Commrs.,

AIR 1963 SC 1417 [
LNIND 1962 SC 407 ], p. 1424, also see p. 1425 : 1963 Supp (2) SCR 760.
92 BOI Finance Ltd. v. Custodian, BOI Finance Ltd. v. Custodian,

AIR 1997 SC 1952 [
LNIND 1997 SC 495 ], p. 1962 :
1997 (4) JT 15 :
(1997) 10 SCC 488 [
LNIND 1997 SC 495 ] :
AIR 1997 SC 1952 [
LNIND 1997 SC 495 ].
1 Surasaibalini Debi v. Phanindra Mohan Majumdar, Surasaibalini Debi v.

Phanindra Mohan Majumdar,
AIR 1965 SC 1364 [
LNIND 1964 SC 282 ]:
1965 (1) SCR 861 [
LNIND 1964 SC 282 ]; BOI Finance Ltd. v. Custodian, supra. BOI Finance Ltd.
v. Custodian, supra.
2 Passmore v. Morland, plc., Passmore v. Morland, plc.,

(1999) 3 All ER 1005 (CA).
3 Ibid, p. 1023.
4 Ibid.
5 Crawford: Statutory Construction, p. 523; Haridwar Singh v. Bagun Sumbrui, Haridwar Singh v.
Bagun Sumbrui,
AIR 1972 SC 1242 [
LNIND 1972 SC 132 ], p. 1247 :
1973 (3) SCC 889 [
LNIND 1972 SC 132 ]; Lachmi Narain v. Union of India, Lachmi Narain v.
Union of India,
AIR 1976 SC 714 [
LNIND 1975 SC 465 ], p. 726; 1976 SCC (Tax) 213 :
(1976) 2 SCC 953 [
Mr.Srikanth -
Page 78 of 108
LNIND 1975 SC 465 ]; Mannalal Khetan v. Kedarnath Khetan, supra.

Mannalal Khetan v. Kedarnath Khetan, supra.
6 M. Pentiah v. Muddala Veeramallappa, M. Pentiah v. Muddala Veeramallappa,

AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], p. 1113 :
1961 (2) SCR 295 [
LNIND 1960 SC 260 ]; Mannalal Khetan v. Kedarnath Khetan, supra.
Mannalal Khetan v. Kedarnath Khetan, supra. See further Nasiruddin v. Sita Ram Agarwal,
Nasiruddin v. Sita Ram Agarwal,
(2003) 2 SCC 577 [
LNIND 2003 SC 112 ], p. 589 :
AIR 2003 SC 1553 .
7 Bhagchand v. Secretary for State, Bhagchand v. Secretary for State,

AIR 1927 PC 176 ; S. N. Dutt v. Union of India, S. N. Dutt v. Union of India,
AIR 1961 SC 1449 [
LNIND 1961 SC 135 ]:
1962 (1) SCR 560 [
LNIND 1961 SC 135 ].
8 Gaekwar Baroda State Railway v. Hafiz Habib-ul-Haq, Gaekwar Baroda State

Railway v. Hafiz Habib-ul-Haq,
AIR 1938 PC 165 ; Mohanlal Jain v. Sawai Man Singhji, Mohanlal Jain v.
Sawai Man Singhji,
AIR 1962 SC 73 : 1962 (1) SCR 702.
9 G.G. in Council v. Masaddi Lal, G.G. in Council v. Masaddi Lal,

AIR 1961 SC 725 [
LNIND 1961 SC 38 ]:
(1961) 3 SCR 647 [
LNIND 1961 SC 38 ]; Bhojraj v. Darjeeling Himalayan Railway Co. Ltd.,
Bhojraj v. Darjeeling Himalayan Railway Co. Ltd.,
AIR 1962 SC 1879 [
LNIND 1962 SC 208 ]:
1963 (2) SCR 832 [
LNIND 1962 SC 208 ].
10 Waman Shriniwas v. Ratilal Bhagwandas & Co., Waman Shriniwas v. Ratilal

Bhagwandas & Co.,
AIR 1959 SC 689 [
LNIND 1959 SC 19 ]: 1959 Supp (2) SCR 217.
11 Hem Nolini Judah v. Isolyne Sarojabashini Bose, Hem Nolini Judah v. Isolyne
Sarojabashini Bose,
AIR 1962 SC 1471 [
LNIND 1962 SC 76 ]: 1962 Supp (3) SCR 294.
12 H.N. Rishbud v. State of Delhi, H.N. Rishbud v. State of Delhi,

AIR 1955 SC 196 [
LNIND 1954 SC 177 ], p. 203 :
(1955) 1 SCR 1150 [
LNIND 1954 SC 177 ]; State of Madhya Pradesh v. Mubarak Ali, State of
Madhya Pradesh v. Mubarak Ali,
AIR 1959 SC 707 [
LNIND 1959 SC 16 ], p. 710 : 1959 Supp (2) SCR 201; State of Uttar Pradesh v. Bhagwant
Kishore, State of Uttar Pradesh v. Bhagwant Kishore,
Mr.Srikanth -
Page 79 of 108
AIR 1964 SC 221 [

LNIND 1963 SC 114 ], p. 225 :
1964 (3) SCR 71 [
LNIND 1963 SC 114 ].
13 Suraj Mull Nagoremull v. Tritorn Ins. Co., Suraj Mull Nagoremull v. Tritorn Ins.
Co.,
AIR 1925 PC 83 .
14 Mannalal khetan v. Kedarnath Khetan, Mannalal khetan v. Kedarnath Khetan,

AIR 1977 SC 536 [
LNIND 1976 SC 450 ]:
1977 (2) SCC 424 [
LNIND 1976 SC 450 ].
15 A.K. Roy v. State of Punjab, A.K. Roy v. State of Punjab,

(1986) 4 SCC 326 [
LNIND 1986 SC 360 ], p. 333 :
AIR 1986 SC 2160 [
LNIND 1986 SC 360 ].
16 State of Bihar v. Murad Ali Khan, State of Bihar v. Murad Ali Khan,
AIR 1989 SC 1 , p. 5 :
1988 (4) SCC 655 [
LNIND 1988 SC 507 ].
17 Jaipur Zila Sahakari Bhoomi v. Vikas Bank v. Ram Gopal Sharma, Jaipur Zila
Sahakari Bhoomi v. Vikas Bank v. Ram Gopal Sharma,
AIR 2002 SC 643 [
LNIND 2002 SC 44 ], p. 648 :
(2002) 2 SCC 244 [
LNIND 2002 SC 44 ] (
Constitution Bench) overruling Punjab Beverages Pvt. Ltd. v. Sureshchand, Punjab Beverages
Pvt. Ltd. v. Sureshchand,
AIR 1978 SC 995 [
LNIND 1978 SC 65 ]:
(1978) 2 SCC 144 [
LNIND 1978 SC 65 ].
18 K.S. Bhoir v. State of Maharashtra, K.S. Bhoir v. State of Maharashtra,

AIR 2002 SC 444 [
LNIND 2001 SC 2837 ], p. 448 :
(2001) 10 SCC 264 [
LNIND 2001 SC 2837 ].
19 Lachmi Narain v. Union of India, Lachmi Narain v. Union of India,

AIR 1976 SC 714 [
LNIND 1975 SC 465 ], p. 726 : (1976) SCC (Tax) 213 :
(1976) 2 SCC 953 [
LNIND 1975 SC 465 ].
20 Biswanath Khemka v. Emperor, Biswanath Khemka v. Emperor,

AIR 1945 FC 67 ; (1985) 2 SCC 604, pp. 627, 628 :
AIR 1985 SC 1019 [
LNIND 1985 SC 99 ](Requirement to consult the P.S.C. in negative form; held directory).
Mr.Srikanth -
Page 80 of 108
21 Catterall v. Sweetman, Catterall v. Sweetman,

(1845) 163 ER 1047 , p. 1052; Lila Gupta v. Laxmi Narain, Lila Gupta v. Laxmi
Narain,
1978 SC 1351 , pp. 1354, 1355 :
(1978) 3 SCC 258 .
22 “S. 25-F—No workman employed in any industry who has been in continuous service for not less than one year under
an employer shall be retrenched by that employer until—
(a) the workman has been given one month's notice in writing indicating the reason for retrenchment and the period of notice has
expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;...........................
(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent of fifteen days— average
pay for every completed year of service or any part thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate Government.”
23 Bombay Union of Journalists v. State of Bombay, Bombay Union of Journalists v.

State of Bombay,
AIR 1964 SC 1617 [
LNIND 1963 SC 305 ]:
1964 (6) SCR 22 [
LNIND 1963 SC 305 ]; Krishna Bahadur v. Purna Theatre, Krishna Bahadur v.
Purna Theatre,
(2004) 8 SCC 229 [
LNIND 2004 SC 849 ], p. 234 :
AIR 2004 SC 4282 [
LNIND 2004 SC 849 ].
24 Ibid.
25 Cases in Notes 20-24, supra.
26 U.K. Gas Plant Manufacturing Co. v. Emperor, U.K. Gas Plant Manufacturing Co.
v. Emperor,
AIR 1947 PC 38 , pp. 41, 42. For example, see
section 89 of the Registration Act, 1908 which provides: (a prosecution for any offence under this Act may be
commenced by or with the permission of Inspector General); Compare this provision with section 70 of the Stamp Act which reads:
’no prosecution in respect of any offence under this Act shall be instituted without the sanction of the Collector’.
Section 89 of the Registration Act has been held to be permissive and enabling but section 70 of the Stamp Act has
been held to be prohibitory: Dharamdeo Rai v. Ram Nagina Rai, Dharamdeo Rai v. Ram Nagina Rai,
AIR 1972 SC 928 [
LNIND 1972 SC 29 ]:
1972 (1) SCC 460 [
LNIND 1972 SC 29 ].
27 Edward Ramia Ltd. v. African Woods Ltd., Edward Ramia Ltd. v. African Woods
Ltd.,
(1960) 1 All ER 627 , p. 630 (PC).
28 Viner's Abr, Vol. 15 Tit Negative, A, pl 2, p. 540.
Mr.Srikanth -
Page 81 of 108
29 Pir Bux v. Mohamed Tahar, Pir Bux v. Mohamed Tahar,

AIR 1934 PC 235 , p. 237; GHC Ariff v. Jadunath Majumdar, GHC Ariff v.
Jadunath Majumdar,
AIR 1931 PC 79 , p. 80; Makhan Singh Tarsikka v. State of Punjab, Makhan
Singh Tarsikka v. State of Punjab,
AIR 1952 SC 27 [
LNIND 1951 SC 68 ]:
1952 Crlj 321 ; N. Varada Pillai v. Jeevarathnammal, N. Varada Pillai v.
Jeevarathnammal,
AIR 1919 PC 44 , p. 46; Lim Charlie v. Official Receiver, Lim Charlie v.
Official Receiver,
AIR 1934 PC 67 , p. 68. The property belonging to a person can vest in the State or in some
other body only by transfer in the mode prescribed by the
Transfer of Property Act or under a statutory enactment providing for vesting. Noorulla Ghazanfarull v. Municipal
Board, Aligarh, Noorulla Ghazanfarull v. Municipal Board, Aligarh,
1995 (1) Scale 643 , p. 649 :
AIR 1995 SC 1058 [
LNIND 1995 SC 212 ], pp. 1063, 1064 : 1995 Supp (2) SCC 667. See further Syndicate Bank
v. Prabha D. Naik, Syndicate Bank v. Prabha D. Naik,
AIR 2001 SC 1968 [
LNIND 2001 SC 803 ], p. 1974 :
(2001) 4 SCC 713 [
LNIND 2001 SC 803 ] (“Affirmative Statute introductive of a new law do imply a negative”.)
30 State of U.P. v. Manbodhan Lal Srivastava, State of U.P. v. Manbodhan Lal

Srivastava,
AIR 1957 SC 912 [
LNIND 1957 SC 93 ], p. 917 :
1958 SCR 533 [
LNIND 1957 SC 93 ]; State of U.P. v. Babu Ram Upadhya, State of U.P. v.
Babu Ram Upadhya,
AIR 1961 SC 751 [
LNIND 1960 SC 292 ], p. 765 :
(1961) 2 SCR 679 [
LNIND 1960 SC 292 ]; Sainik Motors v. State of Rajasthan, Sainik Motors v.
State of Rajasthan,
AIR 1961 SC 1480 [
LNIND 1961 SC 127 ], p. 1485 :
(1962) 1 SCR 517 [
LNIND 1961 SC 127 ]; Chagganlal Patel v. Agriculture Produce Market Committee,
Chagganlal Patel v. Agriculture Produce Market Committee,
AIR 1976 SC 263 [
LNIND 1975 SC 300 ], p. 267 :
1975 (2) SCC 482 [
LNIND 1975 SC 300 ].
31 Burjore and Bhawani Pershad v. Bhagana, Burjore and Bhawani Pershad v.

Bhagana, ILR 10 Cal 557, pp. 561, 562: 11 IA 7 (PC); Shew Bux Mohata v. Tulsimanjari Dasi, Shew Bux Mohata
v. Tulsimanjari Dasi,
AIR 1961 SC 1453 [
LNIND 1961 SC 142 ], pp. 1454, 1455:
1962 (1) SCR 643 [
LNIND 1961 SC 142 ] (Order 45, Rule 7,
CPC ); Bishwanath Khemka v. Emperor, Bishwanath Khemka v. Emperor,
AIR 1945 FC 67 (Section 256, State of U.P. v. Manbodhan Lal Srivastava, supra
State of U.P. v. Manbodhan Lal Srivastava, supra (Article 320(3)(c),
Constitution ); Drigraj Kuer v. Amar Krishna Narayan Singh, Drigraj Kuer v. Amar Krishna
Narayan Singh,
AIR 1960 SC 444 [
LNIND 1959 SC 222 ]:
1960 (2) SCR 431 [
LNIND 1959 SC 222 ](Section 56, U.P. Court of Wards Act); L. Hazari Mal Kuthiala v. ITO,
Ambala Cantt., L. Hazari Mal Kuthiala v. ITO, Ambala Cantt.,
AIR 1961 SC 200 [
Mr.Srikanth -
Page 82 of 108
LNIND 1961 SC 481 ]:

1961 (1) SCR 892 (Section 5(5), Patiala
Income-tax Act ); Sainik Motors v. State of Rajasthan, Sainik Motors v. State of Rajasthan,
AIR 1961 SC 1480 [
LNIND 1961 SC 127 ](Rule 8 of Rajasthan Passenger and Goods Taxation Rules); Banarsi Das
v. Cane Commr., U.P., Banarsi Das v. Cane Commr., U.P.,
AIR 1963 SC 1417 [
LNIND 1962 SC 407 ]:1963 Supp (2) SCR 760 (Section 18(2)U.P. Sugar Factories Control Act);
K. Venkataramiah v. Seetharama Reddy, K. Venkataramiah v. Seetharama Reddy,
AIR 1963 SC 1526 [
LNIND 1963 SC 39 ]:
(1964) 2 SCR 35 [
LNIND 1963 SC 39 ], (Order 41, Rule 27,
CPC ); Raza Buland Sugar Co. Ltd. v. Municipal Board, Rampur, Raza Buland Sugar Co. Ltd. v.
Municipal Board, Rampur,
AIR 1965 SC 895 [
LNIND 1964 SC 294 ]:
(1965) 1 SCR 20 [
LNIND 1964 SC 196 ](Section 94(3), U.P. Municipalities Act, 1916); K. Narasimhiah v. Singri
Gowda, K. Narasimhiah v. Singri Gowda,
AIR 1966 SC 330 [
LNIND 1964 SC 117 ]:
1964 (7) SCR 618 [
LNIND 1964 SC 117 ](Section 27(3)of the Mysore Town Municipalities Act, 1951, requiring
that three clear days’ notice shall be given was construed having regard to the context and section 36as directory); State of M.P. v.
Azad Bharat Finance Co., State of M.P. v. Azad Bharat Finance Co.,
AIR 1967 SC 276 [
LNIND 1966 SC 144 ]: 1966 Supp SCR 473 (Section 11 of the Opium Act as amended in M.P.
using language ’shall be confiscated’ construed as permissive); Krishna Kumar Mediratta v. Phulchand Agarwala,
Krishna Kumar Mediratta v. Phulchand Agarwala,
AIR 1979 SC 984 [
LNIND 1979 SC 181 ], pp. 986, 987:
1979 (3) SCC 47 [
LNIND 1979 SC 181 ] .(Rule 9(2)of the Mineral Concession Rules, 1960); Ganesh Prasad Shah
Kesari v. Lakshmi Narayan Gupta, Ganesh Prasad Shah Kesari v. Lakshmi Narayan Gupta,
(1985) 3 SCC 53 [
LNIND 1985 SC 134 ] :
AIR 1985 SC 964 [
LNIND 1985 SC 134 ];(The words ’shall order’ the defence to be struck off in section 11-Aof the
Bihar Buildings. (Lease Rent and Eviction Control) Act, 1947 were construed as directory.) Paradise Printers v. Union Territory of
Chandigarh, Paradise Printers v. Union Territory of Chandigarh,
AIR 1988 SC 354 [
LNIND 1987 SC 817 ], p. 358:
(1988) 1 SCC 440 [
LNIND 1987 SC 817 ] (Rule 8(3)of the Rules made under the Capital of Punjab Act, 1952);
AIR 1989 SC 255 [
LNIND 1988 SC 538 ]:
(1989) 1 SCC 1 [
LNIND 1988 SC 538 ](construction of Rule 18(1)of the U.P. Urban Buildings Rules, 1972.
Words ’shall accept the finding’ in earlier proceedings under the repealed Act ’as conclusive’ in proceedings under the new Act
were construed as directory ’shall’ was read as ’may’); Rubber House v. Excellsior Needle Industries Pvt. Ltd.,
AIR 1989 SC 1160 [
LNIND 1989 SC 148 ]:
(1989) 1 SCC 413 (Rule 4(c)of Haryana Urban Rules, 1970); Shibu Chandra Dhar v. Pasupati
Nath Auddya, Shibu Chandra Dhar v. Pasupati Nath Auddya,
AIR 2002 SC 1252 [
LNIND 2002 SC 177 ]:
(2002) 3 SCC 617 [
LNIND 2002 SC 177 ](word ’shall’ in s. 17(2B)of the W.B. Premises Tenancy Act construed as
’may’ having regard to other related provisions); P.T. Rajan v. TPM Sahir, P.T. Rajan v. TPM Sahir,
(2003) 8 SCC 498 , p. 516:
AIR 2003 SC 4603 (use of ’shall’ in a procedural provision will be construed as directory if
thereby no prejudice is caused); U.P. State Electricity Board v. Shiv Mohan Singh, U.P. State Electricity Board v.
Shiv Mohan Singh,
(2004) 8 SCC 402 [
LNIND 2004 SC 1025 ] :
Mr.Srikanth -
Page 83 of 108
AIR 2004 SC 5009 [

LNIND 2004 SC 1025 ](
section 4(4)of the Apprentice Act requiring a contract of apprenticeship to be sent to apprenticeship advisor for
registration is held to be directory and an apprentice under the Act, declared to be a trainee and not a workman under section 18,
does not become a workman under the
Industrial Disputes Act, 1947 even though his contract is not sent for registration and the definition of ’workman’
under the
ID Act includes an apprentice). See also Indo China Steam Navigation Co. v. Jagjit Singh,
Indo China Steam Navigation Co. v. Jagjit Singh,
AIR 1964 SC 1140 [
LNIND 1964 SC 25 ], p. 1151:
(1964) 6 SCR 594 [
LNIND 1964 SC 25 ] (’shall be liable to confiscation’ held mandatory by a
constitution bench) followed in State of Karnataka v. Sareen Kumar Shetty, State of Karnataka v.
Sareen Kumar Shetty,
AIR 2002 SC 1248 [
LNIND 2002 SC 146 ], p. 1251:
(2002) 3 SCC 426 [
LNIND 2002 SC 146 ] (’shall be liable to confiscation’ held mandatory) and Chern Taong Shang
v. Commander S.D. Baijal, Chern Taong Shang v. Commander S.D. Baijal,
AIR 1988 SC 603 [
LNIND 1988 SC 24 ]:
1988 (1) SCC 507 [
LNIND 1988 SC 24 ](words ’shall also be liable to confiscation’ construed as mandatory).
Compare State of M.P. v. Azad Bharat Finance Co., supra, State of M.P. v. Azad Bharat Finance Co., supra,
where similar words were construed as permissive, but in this case the
constitution bench decision in Indo China Navigation Co. was not noticed.
32 Sainik Motors v. State of Rajasthan, Sainik Motors v. State of Rajasthan,

AIR 1961 SC 1480 [
LNIND 1961 SC 127 ], p. 1485:
1962 (1) SCR 517 [
LNIND 1961 SC 127 ].
33 State of U.P. v. Babu Ram, State of U.P. v. Babu Ram,

AIR 1961 SC 751 [
LNIND 1960 SC 292 ], p. 765:(1961) 2 SCR 679, Govindlal Chagganlal Patel v. Agriculture
Produce Market Committee, Govindlal Chagganlal Patel v. Agriculture Produce Market Committee,
AIR 1976 SC 263 [
LNIND 1975 SC 300 ], p. 267:
1975 (2) SCC 482 [
1996 (8) Scale 251 , p. 260:
1996 (10) JT 311 :
(1997) 9 SCC 132 . See further Basavraj R. Patil v. State of Karnataka,
Basavraj R. Patil v. State of Karnataka,
AIR 2000 SC 3214 [
LNIND 2000 SC 1338 ], p. 3222:
(2006) 8 SCC 740 (A mandatory obligation on the court arising from the use of ’shall’ may be
diluted to prevent hardship in exceptional cases.
S. 313(1)(b) Crpc 1974 construed to be obligatory requiring examination of accused in person, yet not preventing
the court to dispense with his presence in appropriate cases.)
34 Hari Vishnu Kamath v. Ahmad Ishaque, Hari Vishnu Kamath v. Ahmad Ishaque,
AIR 1955 SC 233 [
LNIND 1954 SC 174 ], p. 245:
1955 (1) SCR 1104 [
LNIND 1954 SC 174 ]; Ram Autar Singh Bhadauria v. Ram Gopal Singh, Ram
Autar Singh Bhadauria v. Ram Gopal Singh,
AIR 1975 SC 2182 [
LNIND 1975 SC 241 ], p. 2189:
(1976) 1 SCC 43 [
Mr.Srikanth -
Page 84 of 108
LNIND 1975 SC 241 ]; State of U.P. v. Manbodhan Lal Srivastava, State of

U.P. v. Manbodhan Lal Srivastava,
AIR 1957 SC 912 [
LNIND 1957 SC 93 ], p. 917:
1958 SCR 533 [
LNIND 1957 SC 93 ]. But this indication is not conclusive, see Bombay Union of Journalists v.
State of Bombay, Bombay Union of Journalists v. State of Bombay,
AIR 1964 SC 1617 [
LNIND 1963 SC 305 ](discussed in text and notes 23 and 24, p. 392); see also Raza Buland
Sugar Co. v. Municipal Board, Rampur, Raza Buland Sugar Co. v. Municipal Board, Rampur,
AIR 1965 SC 895 [
LNIND 1964 SC 294 ], p. 905:
1965 (1) SCR 970 [
LNIND 1964 SC 294 ] (MUDHOLKAR, J.); Juthika Bhattacharya (Smt.) v. State of Madhya
Pradesh, Juthika Bhattacharya (Smt.) v. State of Madhya Pradesh,
AIR 1976 SC 2534 [
LNIND 1976 SC 306 ], p. 2536: 1976 SCC (Lab) 561.
35 Jaywant S. Kulkarni v. Minochar Dosabhai Shroff, Jaywant S. Kulkarni v. Minochar

Dosabhai Shroff,
AIR 1988 SC 1817 [
LNIND 1988 SC 372 ], p. 1820:
(1988) 4 SCC 108 [
LNIND 1988 SC 372 ] (’shall pass a decree’ substituted for ’may pass a decree’).
36 Tamil Nadu Cauvery Neerppasana Vilaiporulgal Padhugappa Sangam v. Union of India,

Tamil Nadu Cauvery Neerppasana Vilaiporulgal Padhugappa Sangam v. Union of India,
AIR 1990 SC 1316 [
LNIND 1990 SC 306 ], p. 1321 (s. 4 of Inter-State Water Disputes Act, 1956).
37 Chairman Canara Bank, Bangalore v. M.S. Jasra, Chairman Canara Bank,

Bangalore v. M.S. Jasra,
AIR 1992 SC 1341 [
LNIND 1992 SC 212 ], p. 1346 :
AIR 1992 SC 1100 [
LNIND 1992 SC 212 ]“
Section 45(5)(i) of the Banking Regulation Act, 1949 ” ; Mahalaxmi Rice Mills v. State of U.P.,
Mahalaxmi Rice Mills v. State of U.P.,
AIR 1999 SC 147 , p. 149 :
(1998) 6 SCC 590 .
38 M. Narsinga Rao v. State of Andhra Pradesh, M. Narsinga Rao v. State of Andhra

Pradesh,
AIR 2001 SC 318 [
LNIND 2000 SC 1857 ], p. 322 :
(2001) 1 SCC 691 [
LNIND 2000 SC 1857 ] :
2001 Crilj 515 (meaning of these expressions as defined in
section 4 of the Evidence Act applied also for construction of
section 20 of the PC Act, 1988 ).
39 A.G. v. Lock, A.G. v. Lock,

(1744) 26 ER 897 , 898; Queen v. Allooparao, Queen v. Allooparao, (1847) 3
MIA 488, p. 492; Davies v. Evans, Davies v. Evans,
(1882) 9 QBD 238 , p. 243.
40 Queen v. Allooparao, supra, Queen v. Allooparao, supra, p. 492.
Mr.Srikanth -
Page 85 of 108
41 Chapman v. Milvain, Chapman v. Milvain,

(1850) 19 LJ Ex 228 :
(1850) 155 ER 27 , p. 28 (Parke B.).
42 Labour Commr., M.P. v. Burhanpur Tapti Mill, Labour Commr., M.P. v. Burhanpur
Tapti Mill,
AIR 1964 SC 1687 [
LNIND 1964 SC 102 ], p. 1689 :
(1964) 7 SCR 484 [
LNIND 1964 SC 102 ]; Jamatraj v. State of Maharashtra, Jamatraj v. State of
Maharashtra,
AIR 1968 SC 178 [
LNIND 1967 SC 115 ], p. 181 :
1967 (3) SCR 415 [
LNIND 1967 SC 115 ]; T.R. Sharma v. Prithipal Singh, T.R. Sharma v.
Prithipal Singh,
AIR 1976 SC 367 [
LNIND 1975 SC 445 ], p. 370 : 1976 SCC (L&S) 1 :
(1976) 1 SCC 226 [
LNIND 1975 SC 445 ]. For construction of word ’May’ see title 6(k) “May; ’It shall be lawful’;
’shall have power’”.
43 Ganesh Prasad Shah Kesari v. Lakshmi Narayan Gupta, Ganesh Prasad Shah
Kesari v. Lakshmi Narayan Gupta,
(1985) 3 SCC 53 [
LNIND 1985 SC 134 ], p. 59 :
AIR 1985 SC 964 [
LNIND 1985 SC 134 ].
44 Lachmi Narain v. Union of India, Lachmi Narain v. Union of India,

AIR 1976 SC 714 [
LNIND 1975 SC 465 ], p. 726 : 1976 SCC (Tax) 213.
45 Juthika Bhattacharya (Smt.) v. State of Madhya Pradesh, Juthika Bhattacharya

(Smt.) v. State of Madhya Pradesh,
AIR 1976 SC 2534 [
LNIND 1976 SC 306 ], p. 2536 : 1976 SCC (L&S) 561 :
(1976) 4 SCC 96 [
LNIND 1976 SC 306 ].
46 Caldow v. Pixuell, Caldow v. Pixuell,

(1876) 2 CPD 562 , p. 567; R. v. Urbanowski, R. v. Urbanowski,
(1976) 1 All ER 697 , p. 681 (CA).
47 Ibid., P.T. Rajan v. TPM Sahir, P.T. Rajan v. TPM Sahir,

(2003) 8 SCC 498 .
48 Remington Rand of India v. Workmen, Remington Rand of India v. Workmen,

AIR 1968 SC 224 [
LNIND 1967 SC 425 ], p. 226 :
1968 (1) SCR 164 [
LNIND 1967 SC 225 ]. For further examples, see Parkash Chand Maheshwari v. Zila
Parishad, Muzaffarnagar, Parkash Chand Maheshwari v. Zila Parishad, Muzaffarnagar,
AIR 1971 SC 1696 [
LNIND 1971 SC 293 ], p. 1703 :
(1972) 2 SCC 489 ; Manzoor Khan v. State of U.P., Manzoor Khan v. State of
U.P.,
Mr.Srikanth -
Page 86 of 108
AIR 1973 SC 2548 , pp. 2550, 2551 :

1973 (2) SCC 227 ; Dalchand v. Municipal Corporation, Bhopal, Dalchand v.
Municipal Corporation, Bhopal,
(1984) 2 SCC 486 :
AIR 1983 SC 303 [
LNIND 1982 SC 105 ]; Karnal Leather Karmchari Sanghatan v. Liberty Footwear Co.,
Karnal Leather Karmchari Sanghatan v. Liberty Footwear Co.,
AIR 1990 SC 247 [
LNIND 1989 SC 425 ], p. 254 :
1989 (4) SCC 448 [
LNIND 1989 SC 425 ]; Municipal Committee, Charkhi Dadri v. Ramji Lal Bagla,
Municipal Committee, Charkhi Dadri v. Ramji Lal Bagla,
1995 (4) Scale 559 :
(1995) 5 SCC 272 [
LNIND 1995 SC 729 ].
49 Chet Ram Vashist v. Municipal Corporation of Delhi, Chet Ram Vashist v.

Municipal Corporation of Delhi,
AIR 1981 SC 653 [
LNIND 1980 SC 439 ], p. 656 :
(1980) 4 SCC 647 [
LNIND 1980 SC 439 ].
50 T.V. Usman v. Food Inspector Tellicherry Municipality, T.V. Usman v. Food

Inspector Tellicherry Municipality,
JT 1994(1) SC 260 [
LNIND 1994 SC 120 ], p. 266 :
AIR 1994 SC 1818 [
LNIND 1994 SC 120 ]:
(1994) 1 SCC 754 [
LNIND 1994 SC 120 ] :
1994 SCC (Cri) 187 . See further Wang v. Commissioner of Inland Revenue,
Wang v. Commissioner of Inland Revenue,
(1995) 1 All ER 367 , 377 (PC): “When a question like the present one arises—an alleged failure
to comply with a time provision—it is simpler and better to avoid these two words ’mandatory’ and ’directory’ and to ask two
questions. The first is whether the Legislature intended the person making the determination to comply with the time provision,
whether a fixed time or a reasonable time. Secondly, if so, did the Legislature intend that a failure to comply with such a time
provision would deprive the decision-maker of jurisdiction and render any decision which he purported to make null and void?”
51 R. v. Urbanowski, R. v. Urbanowski,
(1976) 1 All ER 697 , p. 681 (CA); Nasiruddin v. Sita Ram Agarwal,
Nasiruddin v. Sita Ram Agarwal,
(2003) 2 SCC 577 [
LNIND 2003 SC 112 ], p. 589 :
AIR 2003 SC 1543 [
LNIND 2003 SC 112 ]; Balwant Singh v. Anand Kumar Sharma, Balwant Singh
v. Anand Kumar Sharma,
(2003) 3 SCC 433 [
LNIND 2003 SC 113 ], p. 436.
52 Supdt. of Taxes v. Onkarmal National Trust, Supdt. of Taxes v. Onkarmal National

Trust,
AIR 1975 SC 2065 [
LNIND 1975 SC 191 ]:
(1976) 1 SCC 766 [
LNIND 1975 SC 191 ] : 1976 SCC (Tax) 73. Collector of Central Excise, Madras v. M.M.
Rubber & Co., Collector of Central Excise, Madras v. M.M. Rubber & Co.,
AIR 1991 SC 2141 [
LNIND 1991 SC 431 ], pp. 2145, 2147 : 1992 Supp (1) SCC 471. See further title 6(h) ’statute
conferring power’, infra.
Mr.Srikanth -
Page 87 of 108
53 Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya,

Balasinor Nagrik Co-operative Bank Ltd. v. Babubhai Shankerlal Pandya,
(1987) 1 SCC 606 :
AIR 1987 SC 849 . For example, see Municipal Corporation of Greater Bombay v.
Hakimwadi (Dr.) Tenants Association, Municipal Corporation of Greater Bombay v. Hakimwadi (Dr.) Tenants
Association,
AIR 1988 SC 233 [
LNIND 1987 SC 782 ]: 1988 Supp SCC 55 :
1987 (4) JT 448 [
LNIND 1987 SC 612 ].
54 Bhavnagar University v. Palitana Sugar Mill (P.) Ltd., Bhavnagar University v.

Palitana Sugar Mill (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ], pp. 125, 126 :
AIR 2003 SC 511 [
LNIND 2002 SC 669 ], p. 520 (construction of section 20(2) of the Gujarat Town Planning and
Urban Development Act, 1976); Balwant Singh v. Anand Kumar Sharma, Balwant Singh v. Anand Kumar Sharma,
(2003) 3 SCC 433 [
LNIND 2003 SC 113 ], p. 436 :
AIR 2003 SC 1543 [
LNIND 2003 SC 112 ].
55 Special Reference No. 1 of 2002 under

Article 143(1) of the Constitution , AIR
2003 SC 87 ; Kihansing Tomar v. Municipal Corporation of the City of Ahmedabad,
Kihansing Tomar v. Municipal Corporation of the City of Ahmedabad,
AIR 2007 SC 269 [
LNIND 2006 SC 847 ]:
(2006) 8 SCC 352 [
LNIND 2006 SC 847 ]. See in this respect also f.n. 41, p. 134.
56 Montreal Street Railway v. Normandin, Montreal Street Railway v. Normandin,

(1917) AC 170 ;
AIR 1917 PC 142 , p. 144; See further State of U.P. v. Manbodhan Lal Shrivastava,
State of U.P. v. Manbodhan Lal Shrivastava,
AIR 1957 SC 912 [
LNIND 1957 SC 93 ], p. 917 :
1958 SCR 533 [
LNIND 1957 SC 93 ]; Banarasi Das v. Cane Commissioner, U.P., Banarasi
Das v. Cane Commissioner, U.P.,
AIR 1963 SC 1417 [
LNIND 1962 SC 407 ],p. 1424 : 1963 Supp (2) SCR 760; Mohan Singh v. International Air Port
Authority, Mohan Singh v. International Air Port Authority,
1996 (8) Scale 251 , p. 260:
1996 (10) JT 311 :
(1997) 9 SCC 132 ; Oriental Insur-ance Co. Ltd. v. Inderjit Kaur, Oriental
Insur-ance Co. Ltd. v. Inderjit Kaur,
AIR 1998 SC 588 [
LNIND 1997 SC 1572 ], p. 590 :
1998 (1) SCC 371 [
LNIND 1997 SC 1572 ]; Bhavnagar University v. Palitana Sugar Mill (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ], p. 126 :
AIR 2003 SC 511 [
LNIND 2002 SC 669 ], p. 520.
57 Montred Street Railway v. Normandin, supra. Montred Street Railway v.

Normandin, supra.
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Page 88 of 108
58 Biswanath Khemka v. Emperor, Biswanath Khemka v. Emperor,

AIR 1945 FC 67 .
59 State of U.P. v. Manbodhan Lal Shrivastava, State of U.P. v. Manbodhan Lal

Shrivastava,
AIR 1957 SC 912 [
LNIND 1957 SC 93 ]:
1958 SCR 533 [
LNIND 1957 SC 93 ]; U.R. Bhatt v. Union of India, U.R. Bhatt v. Union of
India,
AIR 1962 SC 1344 [
LNIND 1960 SC 159 ]:
(1962) 1 LLJ 656 ; Union of India v. T.V. Patel, Union of India v. T.V. Patel,
(2007) 4 SCC 785 [
LNIND 2007 SC 503 ] (para 25) :
(2007) 6 SLT 40 :
(2007) 6 Scale 9 [
LNIND 2007 SC 503 ]. (The provisions of Article 320(3)(c) are not mandatory. The absence of
any consultation or any irregularity in consultation process or non-furnishing of a copy of the advice tendered by UPSC, if any,
does not furnish a ground to the delinquent government servant to challenge the final order passed against him in a court of law).
See further State of Andhra Pradesh v. Rahimuddin Kamol (Dr.), State of Andhra Pradesh v. Rahimuddin
Kamol (Dr.),
AIR 1997 SC 947 [
LNIND 1997 SC 215 ]:
(1997) 10 SCC 570 (Rule requiring consultation with vigilance commission before removal
from service, held directory); G. S. Lamba v. Union of India, G. S. Lamba v. Union of India,
(1985) 2 SCC 604 [
LNIND 1985 SC 99 ], pp. 627, 628 :
AIR 1985 SC 1019 [
LNIND 1985 SC 99 ]. (Requirement of consultation with P.S.C. for relaxing quota rule, held
directory); Chandra Joshi v. Union of India, Chandra Joshi v. Union of India,
AIR 1991 SC 284 , p. 294 : 1992 Supp (1) SCC 272; (Requirement to consult PSC for relaxing
the D.P. Forest Service Rules, held mandatory); R. Hariharan v. V.K. Balchandra Nair, R. Hariharan v. V.K.
Balchandra Nair,
AIR 2000 SC 2933 [
LNIND 2000 SC 1211 ]:
(2000) 7 SCC 399 [
LNIND 2000 SC 1211 ] (consultation with PSC under the Kerala Act for appointment of
Assistant Engineer held mandatory); Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board, Hindustan
Zinc Ltd. v. Andhra Pradesh State Electricity Board,
AIR 1991 SC 1473 [
LNIND 1991 SC 258 ], pp. 1483, 1484 :
1991 (3) SCC 299 [
LNIND 1991 SC 258 ]. (Non-consultation with the consultative council under
section 16 of the Electricity Supply Act 1948 does not invalidate revision of tariffs).
60 L. Hazari Mal Kuthiala v. I.T.O., Ambala Cantt., L. Hazari Mal Kuthiala v. I.T.O.,
Ambala Cantt.,
AIR 1961 SC 200 [
LNIND 1961 SC 481 ]:
1961 (1) SCR 892 .
61 Ibid, pp. 202, 203.
62 Cases referred to in footnotes 59 to 61, supra.
63 Banwarilal Agarwalla v. State of Bihar, Banwarilal Agarwalla v. State of Bihar,

AIR 1961 SC 849 [
LNIND 1961 SC 56 ]:
1962 (1) SCR 33 [
Mr.Srikanth -
Page 89 of 108
LNIND 1961 SC 56 ]; K.S. Srinivasan v. Union of India, K.S. Srinivasan v.

Union of India,
AIR 1958 SC 419 [
LNIND 1958 SC 12 ]:
1958 SCR 1295 [
LNIND 1958 SC 12 ]; Jyoti Prakash Mitter v. Chief Justice, Calcutta High Court,
Jyoti Prakash Mitter v. Chief Justice, Calcutta High Court,
AIR 1965 SC 961 [
LNIND 1964 SC 307 ]:
1965 (2) SCR 53 [
LNIND 1964 SC 307 ]; Chandra Mohan v. State of U.P., Chandra Mohan v.
State of U.P.,
AIR 1966 SC 1987 [
LNIND 1966 SC 148 ]:
(1967) 1 SCR 77 [
LNIND 1966 SC 148 ]; Haridwar Singh v. Bagun Sumbrui, Haridwar Singh v.
Bagun Sumbrui,
AIR 1972 SC 1242 [
LNIND 1972 SC 132 ], p. 1247 :
1973 (3) SCC 889 [
LNIND 1972 SC 132 ]. Also see Rollo v. Minister of Town and Country Planning,
Rollo v. Minister of Town and Country Planning,
(1948) 1 All ER 13 (CA); Municipal Corporation of Greater Bombay v. New Standard Engg.
Ltd., Municipal Corporation of Greater Bombay v. New Standard Engg. Ltd.,
AIR 1991 SC 1362 [
LNIND 1990 SC 775 ]:
1991 (1) SCC 611 [
LNIND 1990 SC 775 ].
64 K.S. Srinivasan v. Union of India, K.S. Srinivasan v. Union of India,

AIR 1958 SC 419 [
LNIND 1958 SC 12 ], p. 430 :
1958 SCR 1295 [
LNIND 1958 SC 12 ].
65 Ibid. Even the word ’may’ used to require consultation may, having regard to the context, be
construed as mandatory: Keshav Chandra Joshi v. Union of India, Keshav Chandra Joshi v. Union of India,
AIR 1991 SC 284 , p. 294 : 1992 Supp (1) SCC 272; Dinkar Anna Patil v. State of Maharashtra,
Dinkar Anna Patil v. State of Maharashtra,
JT 1998 (7) SC 513 , p. 524 :
1998 (6) Scale 54 :
1959 (1) SCC 354 .
66 Jyoti Prakash Mitter v. Chief Justice, Calcutta High Court, Jyoti Prakash Mitter v.
Chief Justice, Calcutta High Court,
AIR 1965 SC 961 [
LNIND 1964 SC 307 ], p. 966 (para 21) :
1965 (2) SCR 53 [
LNIND 1964 SC 307 ].
67 Chandra Mohan v. State of U.P., Chandra Mohan v. State of U.P.,

AIR 1966 SC 1987 [
LNIND 1966 SC 148 ], p. 1990 :
1967 (1) SCR 77 [
LNIND 1966 SC 148 ]. For consultation under Article 234see to the same effect, State of Jammu
and Kashmir v. A.R. Zakki, State of Jammu and Kashmir v. A.R. Zakki,
AIR 1992 SC 1546 [
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Page 90 of 108
68 Chandramouleshwar Prasad v. Patna High Court, Chandramouleshwar Prasad v.

Patna High Court,
AIR 1970 SC 370 [
LNIND 1969 SC 377 ], p. 375 :
1969 (3) SCC 56 [
LNIND 1969 SC 377 ]; referred to in Prakash Chand Maheshwari v. Zila Parishad,
Muzaffarnagar, Prakash Chand Maheshwari v. Zila Parishad, Muzaffarnagar,
AIR 1971 SC 1696 [
LNIND 1971 SC 293 ], p. 1704 :
(1971) 2 SCC 489 [
LNIND 1971 SC 293 ]. See to the same effect State of Kerala v. A. Lakshmi Kutty (Smt.),
State of Kerala v. A. Lakshmi Kutty (Smt.),
(1986) 4 SCC 632 [
LNIND 1986 SC 428 ], pp. 647 to 650 : 1987 AIR (SC) 331.
69 High Court of Judicature of Rajasthan v. P.P. Singh, High Court of Judicature of

Rajasthan v. P.P. Singh,
AIR 2003 SC 1029 [
LNIND 2003 SC 100 ], p. 1037 :
(2003) 4 SCC 239 [
LNIND 2003 SC 100 ] (para 28). (A decision on a matter on which all the judges of the High
Court are to be consulted in a full court meeting will not be invalid because of absence of some judges if the quorum required for
the meeting is complete).
70 Chandramouleshwar Prasad v. Patna High Court, supra; Chandramouleshwar

Prasad v. Patna High Court, supra; Mani Subrat Jain v. State of Haryana, Mani Subrat Jain v.
State of Haryana,
AIR 1977 SC 276 [
LNIND 1976 SC 477 ]: 1977 SCC (L&S) 166 :
(1977) 1 SCC 486 [
LNIND 1976 SC 477 ]. But in special context it may be binding; see text and notes 72, 73, post.
71 Supreme Court Advocates on Record Association v. Union of India, Supreme Court

Advocates on Record Association v. Union of India,
AIR 1994 SC 268 : (1993) 4 SCC 441.
72 Ibid, p. 442. The consultative steps and primacy of the Chief Justice of India’s opinion have been
further explained and modified in Special Reference no. 1 of 1998 under
Article 143(1) of the Constitution of India ,
JT 1998 (7) SC 304 :
AIR 1999 SC 1 [
LNIND 1998 SC 1278 ] Discussed at p. 265, supra.
73
AIR 1972 SC 1242 [
LNIND 1972 SC 132 ], p. 1247 :
1972 (3) SCR 629 [
LNIND 1972 SC 132 ] :
(1973) 3 SCC 889 [
LNIND 1972 SC 132 ]. See further Narayana Sankaran Mooss v. State of Kerala,
Narayana Sankaran Mooss v. State of Kerala,
AIR 1974 SC 175 [
LNIND 1973 SC 306 ]:
(1974) 1 SCC 68 [
LNIND 1973 SC 306 ]. (Requirement of consultation with the State Electricity Board prescribed
by
section 4 of the Electricity Act , 1910, for exercising the power of revoking a licence by the State Government has
been held to be mandatory). Naraindas Indurkhya v. State of M.P., Naraindas Indurkhya v. State of M.P.,
AIR 1974 SC 1232 [
LNIND 1974 SC 106 ]:
Mr.Srikanth -
Page 91 of 108
(1974) 4 SCC 788 [

LNIND 1974 SC 106 ] (Requirement of consultation with the Education Board under section
4(1) of M.P. Act 13 of 1973 for prescription of text-books by the State Government is mandatory). Municipal Corporation of
Greater Bombay v. New Standard Engineering Co. Ltd., Municipal Corporation of Greater Bombay v. New
Standard Engineering Co. Ltd.,
AIR 1991 SC 1362 [
LNIND 1990 SC 775 ]:
1991 (1) SCC 611 [
LNIND 1990 SC 775 ] (Requirement of consultation with the corporation under section 154 for
recognising a subsidised housing scheme to enable the buildings to qualify for concessional rateable value, held mandatory).
Harpal Singh Chauhan v. State of U.P., Harpal Singh Chauhan v. State of U.P.,
AIR 1993 SC 2436 [
LNIND 1993 SC 487 ], p. 2441 :
1993 (3) SCC 552 [
LNIND 1993 SC 487 ] (consultation with the ’District judge’ under
section 24 of the Code of Criminal Procedure for preparing a panel of names for appointment of a public
prosecutor for the district, held mandatory).
74 Justice K.P. Mohapatra v. Sri Ramchandra Nayak, Justice K.P. Mohapatra v. Sri
Ramchandra Nayak,
(2002) 8 SCC 1 [
LNIND 2002 SC 644 ], p. 7 :
AIR 2002 SC 3578 [
LNIND 2002 SC 644 ], p. 3581.
75 1993 Supp (1) SCC 730 : 1992 Supp JT 83 : 1993 SCC (L&S) 252.
76 Ibid., para 26 also quoted in

AIR 2002 SC 3578 [
LNIND 2002 SC 644 ] at p. 3581. See further for this case p. 996, infra.
77 Section 175(3), Government of India Act, 1953;

Article 299, Constitution of India ; Bhikraj Jaipuria v. Union of India, Bhikraj Jaipuria v. Union
of India,
AIR 1962 SC 113 [
LNIND 1961 SC 253 ]:
1962 (2) SCR 880 [
LNIND 1961 SC 253 ]; Karamshi Jethabhai Somayya v. State of Bombay,
Karamshi Jethabhai Somayya v. State of Bombay,
AIR 1964 SC 1714 [
LNIND 1964 SC 55 ]:
(1964) 6 SCR 984 [
LNIND 1964 SC 55 ] (Agreement is void). See further Union of India v. Rallia Ram,
Union of India v. Rallia Ram,
AIR 1963 SC 1685 [
LNIND 1963 SC 120 ]:
(1963) 3 SCR 164 (formal document is not necessary, correspondence resulting in acceptance
note sufficient); State of Bihar v. Karam Chand Thapar, State of Bihar v. Karam Chand Thapar,
AIR 1962 SC 110 [
LNIND 1961 SC 161 ]:
1962 (1) SCR 827 [
LNIND 1961 SC 161 ] (authority to execute on behalf of Government need not be conferred by
notification); State of West Bengal v. B.K. Mondal & Sons, State of West Bengal v. B.K. Mondal & Sons,
AIR 1962 SC 779 [
LNIND 1961 SC 377 ]: 1962 Supp (1) SCR 876. (Agreement invalid but relief under section 70,
Contract Act, can be granted); New Marine Coal Co., Bengal (Pvt.) Ltd. v. Union of India, New Marine Coal Co.,
Bengal (Pvt.) Ltd. v. Union of India,
AIR 1964 SC 152 [
LNIND 1963 SC 96 ]:
(1964) 2 SCR 859 [
LNIND 1963 SC 96 ]; State of Punjab v. Om Prakash Baldeo Krishan (M/s.),
Mr.Srikanth -
Page 92 of 108
State of Punjab v. Om Prakash Baldeo Krishan (M/s.),

AIR 1988 SC 2149 [
LNIND 1988 SC 406 ]: 1988 Supp SCC 722; Sohanlal v. Union of India,
Sohanlal v. Union of India,
AIR 1991 SC 955 [
LNIND 1990 SC 792 ], p. 956 :
1991 (1) SCC 438 [
LNIND 1990 SC 792 ] (no decree for specific performance can be passed). See also text and note
69, p. 384.
78 Young&Co. v. Leamington Spa Corporation, Young&Co. v. Leamington Spa

Corporation,
(1883) 8 AC 517 (HL); H.S. Rikhy (Dr.) v. New Delhi Municipal Committee,
H.S. Rikhy (Dr.) v. New Delhi Municipal Committee,
AIR 1962 SC 554 [
LNIND 1961 SC 299 ]:
1962 (3) SCR 604 [
LNIND 1961 SC 299 ]; Pilloo Dhunji Shaw Sidhwa v. Municipal Corporation, Poona,
Pilloo Dhunji Shaw Sidhwa v. Municipal Corporation, Poona,
AIR 1970 SC 1201 [
LNIND 1970 SC 6 ]:
(1970) 1 SCC 213 [
LNIND 1970 SC 6 ] (relief under section 70, Contract Act, can be granted); B.C. Mohindra v.
Municipal Board, Saharanpur, B.C. Mohindra v. Municipal Board, Saharanpur,
AIR 1970 SC 729 [
LNIND 1968 SC 347 ]:
(1969) 1 SCC 56 [
LNIND 1968 SC 347 ] (formal document is not necessary); M.I. Builders Pvt. Ltd. v. Radhey
Shyam Sahu, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu,
JT 1999 (5) SC 42 [
LNIND 1999 SC 612 ], p. 89 :
AIR 1999 SC 2468 [
LNIND 1999 SC 612 ], pp. 2549, 2500, 2504 :
(1999) 6 SCC 464 [
LNIND 1999 SC 612 ]; Nandkishore Ganesh Joshi v. Commissioner Municipal Corporation
Kalyan and Dombivalli, Nandkishore Ganesh Joshi v. Commissioner Municipal Corporation Kalyan and
Dombivalli,
AIR 2005 SC 34 [
LNIND 2004 SC 1086 ], p. 37 (prior approval of standing committee mandatory). See further
M. Pentiah v. Muddala Veeramallappa, M. Pentiah v. Muddala Veeramallappa,
AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], 1113 (para 15) :
1961 (2) SCR 295 [
LNIND 1960 SC 260 ].
79 See text and note 29, p. 393 under title 6(d) ’Affirmative words may imply a negative.
80 Greene v. Greene, Greene v. Greene,

(1949) 1 All ER 167 ; Howrah Trading Co. Ltd. v. CIT (Central), Calcutta,
Howrah Trading Co. Ltd. v. CIT (Central), Calcutta,
AIR 1959 SC 775 [
LNIND 1959 SC 34 ]: 1959 Supp (2) SCR 448; Mannalal Khetan v. Kedarnath Khetan,
Mannalal Khetan v. Kedarnath Khetan,
AIR 1977 SC 536 [
LNIND 1976 SC 450 ]:
(1977) 2 SCC 424 [
LNIND 1976 SC 450 ]. See further Dove Investments (P.) Ltd. v. Gujarat Industrial
Investment Corpn., Dove Investments (P.) Ltd. v. Gujarat Industrial Investment Corpn.,
(2006) 2 SCC 619 [
AIR 2006 SC 1454 [
LNIND 2006 SC 75 ].
Mr.Srikanth -
Page 93 of 108
81 T.A. Ruf & Co. Ltd. v. Pauwels, T.A. Ruf & Co. Ltd. v. Pauwels,
(1919) 1 KB 660 , p. 670; Banarasi Das v. Cane Commr., U.P., Banarasi Das v.
Cane Commr., U.P.,
AIR 1963 SC 1417 [
82 Jugal Kishore Rameshwardas v. Goolbai Hormusji, Jugal Kishore Rameshwardas

v. Goolbai Hormusji,
AIR 1955 SC 812 [
LNIND 1955 SC 71 ]:
(1955) 2 SCC 867 ; Banarasi Das v. Cane Commr., U.P., supra, Banarasi Das
v. Cane Commr., U.P., supra, p. 1425; Union of India v. Rallia Ram, Union of India v. Rallia Ram,
AIR 1963 SC 1685 [
LNIND 1963 SC 120 ], p. 1689 :
1964 (3) SCR 164 [
LNIND 1963 SC 120 ].
83 Radhakisson Gopikisson v. Balmukund Ramchandra, Radhakisson Gopikisson v.

Balmukund Ramchandra,
AIR 1933 PC 55 ; Banarasi Das v. Cane Commr., U.P., supra. Banarasi Das v.
Cane Commr., U.P., supra. .
84 Banarasi Das v. Cane Commr., U.P., supra. Banarasi Das v. Cane Commr., U.P.,
supra. .
85 Thomas v. Kelly, Thomas v. Kelly,

(1883) 13 AC 506 ; Banarasi Das v. Cane Commr., U.P., supra, Banarasi Das
v. Cane Commr., U.P., supra, p. 1421,.
86 Murudeshwara Ceramics Ltd. v. State of Karnataka, Murudeshwara Ceramics Ltd.

v. State of Karnataka,
AIR 2001 SC 3017 [
LNIND 2001 SC 2323 ]:
(2002) 1 SCC 116 [
LNIND 2001 SC 2323 ].
88 State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, State

Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri,
(2006) 7 SCC 172 [
LNIND 2006 SC 645 ] :
(2006) 8 JT 177 [
LNIND 2006 SC 645 ].
1 For implied conditions see pp. 420 to 431, post.
2
Articles 32 ,
136 ,
226 and
227 of the
Constitution , pp. 760-66, post.
Mr.Srikanth -
Page 94 of 108
3 See Chapter 9, post.
4 See cases in f.n. 3, p. 708 and ‘Cases of Nullity’, pp. 745-757, Chapter 9.
5 Haridwar Singh v. Bagun Sumbrui, Haridwar Singh v. Bagun Sumbrui,

AIR 1972 SC 1242 [
LNIND 1972 SC 132 ], p. 1247 :
1973 (3) SCC 889 [
LNIND 1972 SC 132 ].
6 Wenlock (Baroness) v. River Dee Co., Wenlock (Baroness) v. River Dee Co.,
(1885) 10 AC 354 (HL); A-G v. Fulham Corporation, A-G v. Fulham
Corporation,
(1921) 1 Ch 440 . See further M. Pentiah v. Muddala Veeramallappa, M.
Pentiah v. Muddala Veeramallappa,
AIR 1961 SC 1107 [
LNIND 1960 SC 260 ], pp. 1113, 1114.
7 Bacon's Abr Tit Statute G quoted from Craies: Statute Law, 6th Edition, pp. 264, 265.
8 Centre for Public Interest Litigation v. Union of India, Centre for Public Interest
Litigation v. Union of India,
(2003) 7 SCC 532 [
LNIND 2003 SC 786 ], p. 541 :
AIR 2003 SC 3277 [
LNIND 2003 SC 786 ], p. 3284.
9 Asstt. Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd.,
Asstt. Collector of Central Excise, Calcutta v. National Tobacco Co. of India Ltd.,
AIR 1972 SC 2563 [
LNIND 1972 SC 357 ], p. 2573 :
1972 (2) SCC 560 [
LNIND 1972 SC 357 ]; See further D.R. Venkatachalam v. Dy. Transport Commissioner,
D.R. Venkatachalam v. Dy. Transport Commissioner,
AIR 1977 SC 842 , p. 849 :
1977 (2) SCC 273 ; Jamaluddin Ahmad v. Abusaleh Najmuddin, Jamaluddin
Ahmad v. Abusaleh Najmuddin,
(2003) 4 SCC 257 [
LNIND 2003 SC 260 ], p. 267 :
AIR 2003 SC 1917 [
LNIND 2003 SC 260 ]:
(2003) 2 KLT 638 , (8th Edition, pp. 333, 334 of this book referred).
10 ITO, Cannanore v. M.K. Mohammad Kunhi, ITO, Cannanore v. M.K. Mohammad

Kunhi,
AIR 1969 SC 430 [
LNIND 1968 SC 273 ]:
(1969) 2 SCR 65 [
LNIND 1968 SC 273 ]; Asstt.Collector of Central Excise v. National Tobacco Co. of India Ltd.,
supra, Asstt.Collector of Central Excise v. National Tobacco Co. of India Ltd., supra, p. 2573; Re, O.,
(1991) 1 All ER 330 , p. 334 (CA); Union of India v. Paras Laminates, Union of
India v. Paras Laminates,
AIR 1991 SC 696 [
LNIND 1990 SC 426 ], p. 699 :
1990 (4) SCC 453 [
LNIND 1990 SC 426 ]; Reserve Bank of India v. Peerless General Finance and Investment
Mr.Srikanth -
Page 95 of 108
Company Ltd., Reserve Bank of India v. Peerless General Finance and Investment Company Ltd.,
1996 (1) Scale 13 [
LNIND 1996 SC 22 ], p. 25 :
AIR 1996 SC 646 [
LNIND 1996 SC 22 ], p. 656 :
(1996) 1 SCC 642 [
LNIND 1996 SC 22 ]; Chief Executive Officer & Vice Chairman Gujarat Maritime Board v. Haji
Daud Haji Harun Abu, Chief Executive Officer & Vice Chairman Gujarat Maritime Board v. Haji Daud Haji
Harun Abu,
1996 (8) Scale 608 , p. 613 :
1996 (11) SCC 23 [
LNIND 1996 SC 2613 ]; J.K. Synthetics Ltd. v. Collector of Central Excise, J.K.
Synthetics Ltd. v. Collector of Central Excise,
AIR 1996 SC 3527 , p. 3528 :
1996 (6) SCC 92 ; State of Karnataka v. Vishwabharati House Building Co-op. Society,
State of Karnataka v. Vishwabharati House Building Co-op. Society,
(2003) 2 SCC 412 [
LNIND 2003 SC 60 ], p. 432 :
AIR 2003 SC 1043 [
LNIND 2003 SC 60 ], pp. 1055, 1056; Jamaluddin Ahmad v. Abusaleh Najmuddin, supra,
Jamaluddin Ahmad v. Abusaleh Najmuddin, supra, p. 267 (8th Edition of this book pp. 333, 334 referred); Govt. of Maharashtra v.
Deokar's Distillery, Govt. of Maharashtra v. Deokar's Distillery,
AIR 2003 SC 1216 [
LNIND 2003 SC 309 ], p. 1238 :
(2003) 5 SCC 669 [
LNIND 2003 SC 309 ].
11 State of U.P. v. Poosu, State of U.P. v. Poosu,

AIR 1976 SC 1750 [
LNIND 1976 SC 151 ], p. 1752 :
1976 SCC (Cri) 368 : 1976 SCC (Tax) 402.
12 Savitri v. Govind Singh Rawat, Savitri v. Govind Singh Rawat,

(1985) 4 SCC 337 , pp. 341, 342 : 1986 AIR SC 984.
13 State of Karnataka v. Vishwabharati House Building Co-op. Society, State of

Karnataka v. Vishwabharati House Building Co-op. Society,
(2003) 2 SCC 412 [
LNIND 2003 SC 60 ], p. 431 :
AIR 2003 SC 1043 [
LNIND 2003 SC 60 ], p. 1055.
14 Ibid.
15 V.T. Khanzode v. Reserve Bank of India, V.T. Khanzode v. Reserve Bank of India,
(1982) 2 SCC 7 [
LNIND 1982 SC 64 ] :
AIR 1982 SC 917 [
LNIND 1982 SC 64 ]; Khargram Panchayat Samiti v. State of West Bengal,
Khargram Panchayat Samiti v. State of West Bengal,
(1987) 3 SCC 82 [
LNIND 1987 SC 418 ], pp. 87, 88 :
1987 (2) JT 266 ; Hazell v. Hammersmith and Fulham London Borough Council,
Hazell v. Hammersmith and Fulham London Borough Council,
(1991) 1 All ER 545 , p. 554 :
(1992) 2 AC 1 (HL); Reserve Bank of India v. Peerless General Finance and Investment
Company Ltd., supra. Reserve Bank of India v. Peerless General Finance and Investment Company Ltd., supra.
See further Akumah v. Hackney London Borough Council, Akumah v. Hackney London Borough Council,
(2005) 2 All ER 148 , p. 158 (HL).
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Page 96 of 108
16 Khargram Panchayat Samiti v. State of West Bengal, supra. Khargram Panchayat

Samiti v. State of West Bengal, supra.
17 State of Madhya Pradesh v. Jaora Sugar Mills Ltd., State of Madhya Pradesh v.
Jaora Sugar Mills Ltd.,
1996 (8) Scale 88 , p. 93 :
AIR 1997 SC 600 [
LNIND 1996 SC 1666 ], p. 603 :
(1997) 9 SCC 207 [
LNIND 1996 SC 1666 ]. See further Subhash Bakshi v. West Bengal Medical Council,
Subhash Bakshi v. West Bengal Medical Council,
AIR 2003 SC 1563 [
LNIND 2003 SC 192 ], p. 1568 (right or power to treat patients will imply power to prescribe
medicines and issue certificates).
18 S.D.O., Faizabad v. Shambhu Narain Singh, S.D.O., Faizabad v. Shambhu Narain

Singh,
AIR 1970 SC 140 [
LNIND 1969 SC 146 ], p. 142 :
(1969) 1 SCC 825 [
LNIND 1969 SC 146 ]. See further Credit Suisse v. Allerdale Borough Council,
Credit Suisse v. Allerdale Borough Council,
(1996) 4 All ER 129 , p. 149 :
(1997) QB 306 (CA) (Implied powers do not provide escape route from statutory controls);
Credit Suisse v. Waltham Forest London Borough Council, Credit Suisse v. Waltham Forest London Borough
Council,
(1996) 4 All ER 176 :
(1997) QB 362 (CA) (A detailed statutory code regulating a function may negative any implied
additional power to carry out that function.).
19 Naraindas Indurkhya v. State of M.P., Naraindas Indurkhya v. State of M.P.,

AIR 1974 SC 1232 [
LNIND 1974 SC 106 ], pp. 1242, 1243 :
(1974) 4 SCC 788 [
LNIND 1974 SC 106 ].
20 Ward v. Metropolitan Police Commissioner, Ward v. Metropolitan Police

Commissioner,
(2005) 3 All ER 1013 , p. 1022 (para 24) (HL) (Baroness Hale).
21 Ibid.
22
(2003) 4 SCC 166 [
LNIND 2003 SC 423 ].
23 Nazir Ahmad v. King Emperor, Nazir Ahmad v. King Emperor,

AIR 1936 PC 253 , p. 257; referred to in State of Uttar Pradesh v. Singhara Singh,
State of Uttar Pradesh v. Singhara Singh,
AIR 1964 SC 358 [
LNIND 1963 SC 192 ], p. 361 :
1964 (4) SCR 485 [
LNIND 1963 SC 192 ]; Dhananjay Reddy v. State of Karnataka, Dhananjay
Reddy v. State of Karnataka,
AIR 2001 SC 1512 [
LNIND 2001 SC 678 ], pp. 1518, 1519 :
Mr.Srikanth -
Page 97 of 108
(2001) 4 SCC 9 [
LNIND 2001 SC 678 ] (Requirement of obtaining signature of the accused is mandatory). See
A.K. Roy v. State of Punjab, A.K. Roy v. State of Punjab,
(1986) 4 SCC 326 [
LNIND 1986 SC 360 ], p. 333 :
AIR 1986 SC 2160 [
LNIND 1986 SC 360 ]; Mayurdhwaj Co-op Group Housing Society Ltd. v. P.O. Delhi Co-op.,
Mayurdhwaj Co-op Group Housing Society Ltd. v. P.O. Delhi Co-op.,
AIR 1998 SC 2401 [
LNIND 1998 SC 1498 ], p. 2415 :
1998 (6) SCC 314 [
LNIND 1998 SC 1498 ] (Expulsion of a member of a cooperative society); Chandra Kishore Jha
v. Mahabir Prasad, Chandra Kishore Jha v. Mahabir Prasad,
JT 1999 (7) SC 256 [
LNIND 1999 SC 845 ], p. 263 :
AIR 1999 SC 3558 [
LNIND 1999 SC 845 ], p. 3562 :
(1999) 8 SCC 266 [
LNIND 1999 SC 845 ].
25 Taylor v. Taylor, Taylor v. Taylor,

(1875) 1 Ch D 426 , p. 431; referred to in Nazir Ahmad's case, supra and Singhara Singh's case,
supra.
26 Ayyub v. State of U.P., Ayyub v. State of U.P.,

(2002) 3 SCC 510 [
LNIND 2002 SC 156 ] :
AIR 2002 SC 1192 [
LNIND 2002 SC 156 ]; Bharatbhai alias Jimi Premchandbhan v. State of Gujarat,
Bharatbhai alias Jimi Premchandbhan v. State of Gujarat,
(2002) 8 SCC 447 [
LNIND 2002 SC 627 ], p. 446 :
AIR 2002 SC 3620 [
LNIND 2002 SC 627 ], p. 3633.
27 Haresh Dayaram Thakur v. State of Maharashtra, Haresh Dayaram Thakur v. State

of Maharashtra,
JT 2000 (6) SC 349 [
LNIND 2000 SC 838 ], p. 358 :
(2000) 6 SCC 179 [
LNIND 2000 SC 838 ] :
AIR 2000 SC 2281 [
LNIND 2000 SC 838 ]. See further Commissioner of Income Tax Mumbai v. Anjum M.H.
Ghaswala, Commissioner of Income Tax Mumbai v. Anjum M.H. Ghaswala,
AIR 2001 SC 3868 [
LNIND 2001 SC 2389 ], p. 3875 (para 24) :
(2002) 1 SCC 633 [
LNIND 2001 SC 2389 ] (Commissioner settlement cannot waive or reduce statutory interest
which can be waived or reduced only in the manner provided in the Act) Ramphal Kundu v. Kamal Sharma,
Ramphal Kundu v. Kamal Sharma,
AIR 2004 SC 1657 [
LNIND 2004 SC 104 ]:
(2004) 2 SCC 759 [
LNIND 2004 SC 104 ] (The question as to who has been set up as an official candidate of a
political party has to be decided only in accordance with paras 13 and 13A of the Symbols Order and not by any extrinsic
evidence); Captain Sube Singh v. Lt. Governor of Delhi, Captain Sube Singh v. Lt. Governor of Delhi,
(2004) 6 SCC 440 [
LNIND 2004 SC 589 ], p. 452 (para 29) :
AIR 2004 SC 3821 [
LNIND 2004 SC 589 ].
Mr.Srikanth -
Page 98 of 108
28 Hukumchand Shyamlal v. Union of India, Hukumchand Shyamlal v. Union of India,

AIR 1976 SC 789 [
LNIND 1975 SC 519 ], p. 794 :
1976 (2) SCC 128 [
LNIND 1975 SC 519 ] (para 18).
29 Babu Verghese v. Bar Council Kerala, Babu Verghese v. Bar Council Kerala,
JT 1999 (2) SC 200 [
LNIND 1999 SC 250 ], pp. 210, 211 :
AIR 1999 SC 1281 [
LNIND 1999 SC 250 ], p. 1288 :
(1999) 3 SCC 422 [
LNIND 1999 SC 250 ].
30 London and Clydeside Estates Ltd. v. Aberdeen District Council, London and
Clydeside Estates Ltd. v. Aberdeen District Council, London and Clydeside Estates Ltd. v. Aberdeen District
Council,
(1979) 3 All ER 876 :
(1980) 1 WLR 182 (HL).
31 Mayurdwaj Co-operative Group Housing Society Ltd. v. Presiding Officer, Delhi Co-operative
Tribunal, Mayurdwaj Co-operative Group Housing Society Ltd. v. Presiding Officer, Delhi Co-operative Tribunal,
JT 1998 (4) SC 555 [
LNIND 1998 SC 603 ], p. 563 :
AIR 1998 SC 2410 [
LNIND 1998 SC 603 ]:
(1998) 6 SCC 39 [
LNIND 1998 SC 603 ].
32 See pages 445-451, post.
33 Rees v. Crane, Rees v. Crane,

(1994) 1 All ER 833 (PC) (Case from Trinidad and Tobago). In India the
Constitution does not provide for suspension of a Supreme Court judge or a High Court judge pending proceedings
for his removal under
Article 124(4) of the Constitution . The Supreme Court in Sub-Committee of Judicial Accountability v. Union of
India, Sub-Committee of Judicial Accountability v. Union of India,
AIR 1992 SC 320 [
LNIND 1991 SC 968 ], pp. 357, 358 :
(1991) 4 SCC 699 [
LNIND 1991 SC 968 ] has held that no direction can be issued to the judge restraining him from
discharging judicial functions and the matter is left to the sense of propriety of the judge himself and the advice that he may receive
in that matter from the Chief Justice.
34 Anirudhsinhji v. Karansinhji Jadeja, Anirudhsinhji v. Karansinhji Jadeja,

AIR 1995 SC 2390 [
LNIND 1995 SC 777 ]:
1995 (5) SCC 302 [
LNIND 1995 SC 777 ]; Mohd. Yunus v. State of Gujarat, Mohd. Yunus v. State
of Gujarat,
JT 1997 (8) SC 485 [
(1997) 8 SCC 459 [
LNINDORD 1997 SC 141 ]; Kalpnath Rai v. State, Kalpnath Rai v. State,
JT 1997 (9) SC 18 , p 32 :
(1997) 8 SCC 732 (prior oral approval may be good). See further Nandkishore Ganesh Joshi
v. Commr. Municipal Corporation Kalyan, Nandkishore Ganesh Joshi v. Commr. Municipal Corporation
Kalyan,
AIR 2005 SC 34 [
Mr.Srikanth -
Page 99 of 108
LNIND 2004 SC 1086 ], p. 37 (Requirements of prior approval of standing committee for

execution of contract); Oswal Agro Furnace Ltd. v. Oswal Agro Furnace Ltd. Oswal Agro Furnace Workers Union,
Oswal Agro Furnace Ltd. v. Oswal Agro Furnace Ltd. Oswal Agro Furnace Workers Union,
(2005) 3 SCC 224 [
LNIND 2005 SC 138 ], pp. 229, 230 (Requirement of prior permission of appropriate
government in
sections 25N and
25O of the
Industrial Disputes Act , 1949 for closure of industrial undertaking).
35 High Court of Judicature for Rajasthan v. P.P. Singh, High Court of Judicature for
(2003) 4 SCC 239 [
LNIND 2003 SC 100 ], p. 255 :
AIR 2003 SC 1029 [
LNIND 2003 SC 100 ]. For difference between ’approval’ and ’acceptance’, see Ashok Kumar
Saher v. Union of India, Ashok Kumar Saher v. Union of India,
(2006) 6 SCC 704 [
LNIND 2006 SC 601 ], p. 713 (para 18) :
AIR 2006 SC 2879 [
LNIND 2006 SC 601 ]. The case points out: ’Approval’ presupposes an existing order.
Acceptance means communicated acceptance. In case of ’acceptance’ an application of mind on the part of the competent authority
is sine qua non, ’approval’ of an order only envisages statutory entitlement.
36 Life Insurance Corporation of India v. Escorts Ltd., Life Insurance Corporation of

India v. Escorts Ltd.,
(1986) 1 SCC 264 [
LNIND 1985 SC 362 ], pp. 313, 314 :
AIR 1986 SC 1370 [
LNIND 1985 SC 362 ](construction of
section 29(1) of the Foreign Exchange Regulation Act, 1973 ). See further Burn Standard Company Ltd. v.
Mcdermott International Inc., Burn Standard Company Ltd. v. Mcdermott International Inc.,
AIR 1991 SC 1191 [
LNIND 1991 SC 188 ], pp. 1200, 1201 :
(1991) 2 SCR 67 [
LNIND 1991 SC 188 ] :
(1991) 2 SCC 669 [
LNIND 1991 SC 188 ] (permission may be inferred though not communicated. Construction of
the
section 28(1) of the Foreign Exchange Regulation Act, 1973 ).
37 High Court of Judicature for Rajasthan v. P.P. Singh, High Court of Judicature for
(2003) 4 SCC 239 [
LNIND 2003 SC 100 ], p. 255 :
AIR 2003 SC 1029 [
LNIND 2003 SC 100 ].
38 V.M. Kurian v. State of Kerala, V.M. Kurian v. State of Kerala,

AIR 2001 SC 1409 [
LNIND 2001 SC 827 ], p. 1412 :
(2001) 4 SCC 215 [
LNIND 2001 SC 827 ].
39 Jaya Gokul Education Trust v. Commissioner and Secretary of Government, Jaya

Gokul Education Trust v. Commissioner and Secretary of Government,
AIR 2000 SC 1614 [
LNIND 2000 SC 652 ], p. 1620 :
(2000) 5 SCC 231 [
LNIND 2000 SC 652 ].
Mr.Srikanth -
Page 100 of 108
40 Ballabhdas Agarwala v. J.C. Chakravarty, Ballabhdas Agarwala v. J.C.

Chakravarty,
AIR 1960 SC 576 [
LNIND 1960 SC 12 ]:
1960 (2) SCR 739 [
LNIND 1960 SC 12 ]. (The principle laid down in R. v. Cubbit, R. v. Cubbit,
(1889) 22 QBD 622 and Nazir Ahmad v. King Emperor, supra, Nazir Ahmad v.
King Emperor, supra, was applied). See further K.M. Kanavi v. State of Mysore, K.M. Kanavi v. State of
Mysore,
AIR 1968 SC 1339 [
LNIND 1968 SC 114 ]:
1968 (3) SCR 821 [
LNIND 1968 SC 114 ] (a case under the Bombay Municipal Boroughs Act); Municipal
Corporation, Delhi v. Jagdish Lal, Municipal Corporation, Delhi v. Jagdish Lal,
AIR 1970 SC 7 [
LNIND 1969 SC 210 ](a case under the
Delhi Municipal Corporation Act ). For a similar case under a Panchayat Act;see K. Brahma Suraiah v.
Laxminarayana, K. Brahma Suraiah v. Laxminarayana,
AIR 1970 SC 816 [
LNIND 1968 SC 356 ]:
(1969) 1 SCC 138 [
LNIND 1968 SC 356 ]. See further M.R. Patil v. Member, Industrial Court,
M.R. Patil v. Member, Industrial Court,
AIR 1997 SC 1429 [
LNIND 1997 SC 577 ]:
(1997) 4 SCC 545 [
LNIND 1997 SC 577 ] (A case under the Maharashtra Recognition of Trade Unions and
Prevention of Unfair Labour Practices Act).
41 Charan Lal Sahu v. Neelam Sanjeeva Reddi, Charan Lal Sahu v. Neelam Sanjeeva
Reddi,
AIR 1978 SC 499 [
LNIND 1978 SC 53 ], p. 503:
(1978) 2 SCC 500 [
LNIND 1978 SC 53 ].
42 Chandra Kishore Jha v. Mahavir Prasad, Chandra Kishore Jha v. Mahavir Prasad,
JT 1997 (7) SC 256 , pp. 262, 263:
AIR 1999 SC 3558 [
LNIND 1999 SC 845 ], p. 3562:
(1999) 8 SCC 266 [
LNIND 1999 SC 845 ].
43 Kishori Mohan Bera v. State of West Bangal, Kishori Mohan Bera v. State of West
Bangal,
AIR 1972 SC 1749 : (1972) 3 SCC 845; Shaik Hanif v. State of West Bengal,
Shaik Hanif v. State of West Bengal,
AIR 1974 SC 679 [
LNIND 1974 SC 24 ], p. 683:
(1974) 1 SCC 637 [
LNIND 1974 SC 24 ] :
1974 SCC Cri 292 ; Bhut Nath Mate v. State of West Bengal, Bhut Nath Mate v.
State of West Bengal,
AIR 1974 SC 806 [
LNIND 1974 SC 31 ], p. 810:
(1974) 1 SCC 645 [
LNIND 1974 SC 31 ] :
1974 SCC (Cri) 300 ; Icchudevi v. Union of India, Icchudevi v. Union of India,
AIR 1980 SC 1983 [
LNIND 1980 SC 372 ]:
(1980) 4 SCC 531 [
Mr.Srikanth -
Page 101 of 108
LNIND 1980 SC 372 ]; A.K. Roy v. Union of India, A.K. Roy v. Union of India,
(1982) 1 SCC 271 [
LNIND 1981 SC 469 ] : Harbanslal v. M.L. Wadhwani, Harbanslal v. M.L.
Wadhwani,
(1987) 1 SCC 151 :
AIR 1987 SC 217 ; Hemlal Bhandari v. State of Sikkim, Hemlal Bhandari v.
State of Sikkim,
(1987) 2 SCC 9 [
LNIND 1987 SC 103 ], p. 14:
AIR 1987 SC 762 [
LNIND 1987 SC 103 ]; Abdul Latif Abdul Wahab Sheikh v. B.K. Jha, Abdul
Latif Abdul Wahab Sheikh v. B.K. Jha,
(1987) 2 SCC 22 [
LNIND 1987 SC 143 ], p. 27:
AIR 1987 SC 725 [
LNIND 1987 SC 143 ]; State of Punjab v. Sukhpal Singh, State of Punjab v.
Sukhpal Singh,
AIR 1990 SC 231 [
LNIND 1989 SC 498 ], p. 245:
1990 (1) SCC 35 [
LNIND 1989 SC 498 ]; Sajan Abraham v. State of Kerala, Sajan Abraham v.
State of Kerala,
AIR 2001 SC 3190 , p. 3193:
(2001) 6 SCC 692 (But the procedural requirements should not be construed so literally as to
make their compliance impossible). See further State of N.C.T. Delhi v. Sanjiv alias Bittoo, State of N.C.T.
Delhi v. Sanjiv alias Bittoo,
AIR 2005 SC 2080 [
LNIND 2005 SC 332 ](Judicial review of externment order under the
Delhi Police Act, 1978 ). N.B.— Liversidge v. Anderson, Liversidge v. Anderson,
(1941) 3 All ER 338 :
1942 AC 954 (HL)the House of Lords, in dealing with a wartime Regulation permitting
making of detention order, by majority, interpreted the words ‘if the Minister has reasonable cause to believe’ to mean ‘if the
Minister thinks he has reasonable cause’. LORD ATKIN dissented. According to him, what was essential was ‘existence of
reasonable cause’ and not merley that ‘the minister thought that he had reasonable cause’. The majority judgment had never many
champions even in England and was regarded as the House of Lords “contribution to the war effort” (ALLEN Law and order, 2nd
edition, p. 293). In Ridge v. Baldwin, Ridge v. Baldwin,
(1963) 2 All ER 66 , p. 76:
1946 AC 40 (HL), LORD REID called the majority judgment as “a very peculiar decision”
and in Inland Revenue Commissioner v. Rossminister Ltd., Inland Revenue Commissioner v. Rossminister Ltd.,
(1980) 1 All ER 80 , p. 93 (HL)LORD DIPLOCK said: “the time has come to acknowledge
openly that the majority of this House in Liversidge v. Anderson Liversidge v. Anderson were expediently, and at
that time, perhaps, excusably wrong and dissenting speech of LORD ATKIN was right. In the same case ( Liversidge v.
Anderson,supra Liversidge v. Anderson,supra ) LORD ATKIN also said “that in English law every imprisonment
is prima facie unlawful and that it is for the person directing the imprisonment to justify his act.” Referring to this statement the
House of Lords recently Guisto, in Re Guisto, in Re
(2003) 2 All ER 647 ,p. 663 said that it “has lost none of its force which it had when it was
delivered over 60 years ago” and that “the courts must be vigilant to ensure that the extradition procedures are strictly observed” for
it is a fundamental point of principle that use of the procedures that exist for depriving a person of his liberty must be carefully
scrutinised”. See further Emperor v. Vimlabai Deshpande, Emperor v. Vimlabai Deshpande,
AIR 1946 PC 123 , p. 126: 73 IA 144(Exercise of a power to arrest if a police officer
‘reasonably suspects’ when challenged in court will require proof to the satisfaction of the court that the suspicion of the police
officer was reasonable); Khwaja v. Secretary of State for the Home Department, Khwaja v. Secretary of State for
the Home Department,
(1983) 1 All ER 765 (HL)(When an executive officer's power to make a decision which would
restrict or take away a subject's liberty, was dependant on the existence of certain facts, the court was not limited merely to
inquiring whether the executive officer had reasonable grounds for believing that those precedent facts existed when he acted.
Instead, the court had to be satisfied on the civil standard of proof to a high degree of probability that those facts did in fact exist at
the time the power was exercised); Tan Te Lam v. Superintended of Tai A Chau Detention Centre, Tan Te Lam v.
Superintended of Tai A Chau Detention Centre,
(1996) 4 All ER 256 (PC)(Courts will be slow to hold that statutory provisions authorised
administrative detention for unreasonable periods or in unreasonable circumstances); O'Hara v. Chief Constable of the Royal Ulster
Constabulary, O'Hara v. Chief Constable of the Royal Ulster Constabulary,
(1997) 1 All ER 129 , pp. 138, 139 (HL)(Power to arrest on reasonable grounds for suspicion
requires both subjective and objective tests; the former relates to existence of genuine suspicion and the latter to the reasonableness
of the grounds of suspicion); Joginder Kumar v. State of U.P., Joginder Kumar v. State of U.P.,
AIR 1994 SC 1349 [
Mr.Srikanth -
Page 102 of 108
LNINDORD 1994 SC 51 ], p. 1353:

(1994) 4 SCC 260 [
LNINDORD 1994 SC 51 ] (It is not enough that it is lawful for the police to arrest a person and
there should be justification for exercise of the power of arrest); M.C. Abraham v. State of Maharashtra, M.C.
Abraham v. State of Maharashtra,
(2003) 2 SCC 649 [
LNIND 2002 SC 852 ], pp. 657, 658:
2003 SCC (Cri) 628 [
LNIND 2002 SC 852 ] (since the power to arrest under
section 41 Cr.P.C. is discretionary, a police officer is not always bound to make an arrest and he has to make up
his mind whether it is necessary to arrest the accused person before making the arrest). D.K. Basu v. State of West Bengal,
D.K. Basu v. State of West Bengal,
AIR 1997 SC 610 [
LNIND 1996 SC 2177 ]:
(1997) 1 SCC 416 [
LNIND 1996 SC 2177 ](safeguards for the benefit of arrested person laid down).
44 State of Punjab v. Baldev Singh, State of Punjab v. Baldev Singh,

JT 1999 (4) SC 595 [
LNIND 1999 SC 596 ], p. 622:
AIR 1999 SC 2378 [
LNIND 1999 SC 596 ],p. 2395.
45 Ibid, p. 620 (JT): p. 2393 (AIR). But this procedure applies for search of person and not of baggage: ( Kalema Tumba
v. State of Maharashtra, Kalema Tumba v. State of Maharashtra,
JT 1999 (8) SC 293 [
LNIND 1999 SC 831 ]:
(1999) 8 SCC 257 [
LNIND 1999 SC 831 ] or of something carried in his hand ( State of Punjab v. Makhanchand,
State of Punjab v. Makhanchand,
(2004) 3 SCC 453 [
LNIND 2004 SC 1419 ], p. 456)or of some bag or brief case carried by him ( State of Himachal
Pradesh v. Pawan Kumar, State of Himachal Pradesh v. Pawan Kumar,
AIR 2005 SC 2265 [
LNIND 2005 SC 355 ], p. 2270). See further Roy VD v. State of Kerala, Roy
VD v. State of Kerala,
AIR 2001 SC 137 [
LNIND 2000 SC 1496 ], p. 141:
(2000) 8 SCC 590 [
LNIND 2000 SC 1496 ] (Arrest and search under
sections 41 and
42 of the
NDPS Act by an officer who is not empow-ered or authorised is inherently illegal and cannot give rise to a valid
prosecution and will vitiate the trial); Prabha Shankar Dubey v. State of M.P., Prabha Shankar Dubey v. State of
M.P.,
(2004) 2 SCC 56 [
LNIND 2003 SC 1044 ] :
AIR 2004 SC 486 [
LNIND 2003 SC 1044 ](There is no particular mode or manner in which the accused has to be
told of his right under
section 50 of the NDPS Act and a substantial compliance may be sufficient).
46 Meena Jayendra Thakur v. Union of India, Meena Jayendra Thakur v. Union of

India,
JT 1999 (7) SC 336 [
LNIND 1999 SC 855 ]:
(1999) 8 SCC 679 [
LNIND 1999 SC 857 ]:
AIR 1999 SC 3517 [
LNIND 1999 SC 855 ].
Mr.Srikanth -
Page 103 of 108
47 State of Manipur v. Sansam Ongbi, State of Manipur v. Sansam Ongbi,

JT 1999 (8) SC 228 [
LNIND 1999 SC 936 ], p. 230:
(1999) 8 SCC 250 [
LNIND 1999 SC 936 ] :
AIR 1999 SC 3862 [
LNIND 1999 SC 936 ].
48 Bhavnagar University v. Palitana Sugar Mills (P.) Ltd., Bhavnagar University v.

Palitana Sugar Mills (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ], p. 121:
AIR 2003 SC 511 [
LNIND 2002 SC 669 ], p. 517.
49 Narinderjit Singh v. State of Uttar Pradesh, Narinderjit Singh v. State of Uttar

Pradesh,
AIR 1973 SC 552 [
LNIND 1972 SC 604 ]:
1973 (1) SCC 157 [
LNIND 1972 SC 604 ]; Collector, Allahabad v. Raja Ram Jaiswal, Collector,
Allahabad v. Raja Ram Jaiswal,
(1985) 3 SCC 1 [
LNIND 1985 SC 155 ], pp. 11, 12:
AIR 1985 SC 1622 [
LNIND 1985 SC 155 ]; Nutakki Seshratanam v. Sub Collector Land Aquisition,
Nutakki Seshratanam v. Sub Collector Land Aquisition,
AIR 1992 SC 131 [
LNIND 1991 SC 572 ], p. 132:
1992 (1) SCC 114 [
LNIND 1991 SC 572 ]. See further State of Haryana v. Raghubar Dayal,
State of Haryana v. Raghubar Dayal,
(1995) 1 SCC 133 :
1994 (4) Scale 1084 ; Mandi Samit v. Makrand Singh, Mandi Samit v. Makrand
Singh,
(1995) 2 SCC 497 [
1996 (8) Scale 251 :
1996 (10) JT 311 ; Syed Hasan Rasul v. Union of India, Syed Hasan Rasul v.
Union of India,
AIR 1991 SC 711 [
LNIND 1990 SC 881 ], pp. 714, 715:
1991 (1) SCC 401 [
LNIND 1990 SC 881 ] (Same principle applied in construing
sections 11 and
44
Delhi Development Act ).
50 Gunwant Kaur v. Municipal Committee, Bhatinda, Gunwant Kaur v. Municipal

Committee, Bhatinda,
AIR 1970 SC 802 : 1969 (3) SCC 769.
51 Munshi Singh v. Union of India, Munshi Singh v. Union of India,

AIR 1973 SC 1150 [
LNIND 1972 SC 378 ]:
1973 (2) SCC 337 [
LNIND 1972 SC 378 ].
Mr.Srikanth -
Page 104 of 108
52 Munshi Singh v. Union of India, supra Munshi Singh v. Union of India, supra ;
Union of India v. Mukesh Hans, Union of India v. Mukesh Hans,
AIR 2004 SC 4307 [
LNIND 2004 SC 950 ], p. 4315 :
(2004) 8 SCC 14 [
LNIND 2004 SC 950 ].
53 Union of India v. Krishna Lal Arneja, Union of India v. Krishna Lal Arneja,
(2004) 8 SCC 453 [
LNIND 2004 SC 571 ] :
AIR 2004 SC 3582 [
LNIND 2004 SC 571 ].
54 Giriwar Prasad Narain Singh v. Dukhu Lal Das, Giriwar Prasad Narain Singh v.
Dukhu Lal Das,
AIR 1968 SC 90 [
LNIND 1967 SC 158 ]:
1967 (3) SCR 759 [
LNIND 1967 SC 158 ].
55 Gujarat Electricity Board v. Girdharilal Motilal, Gujarat Electricity Board v.

Girdharilal Motilal,
AIR 1969 SC 267 [
LNIND 1968 SC 194 ]:
(1969) 1 SCR 312 [
LNIND 1968 SC 158 ].
56 Jaswant Singh Mathura Singh v. Ahmedabad Municipal Corporation, Jaswant

Singh Mathura Singh v. Ahmedabad Municipal Corporation,
AIR 1991 SC 2130 [
57 Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association,

Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association,
AIR 1988 SC 233 [
LNIND 1987 SC 782 ]: 1988 Supp SCC 55; Bhavnagar University v. Palitana Sugar Mills (P.)
Ltd., Bhavnagar University v. Palitana Sugar Mills (P.) Ltd.,
(2003) 2 SCC 111 [
LNIND 2002 SC 765 ] :
AIR 2003 SC 511 [
LNIND 2002 SC 669 ].
58 See Chapter 12, title 7, Sub-Delegation.
59 Marathwada University v. Sheshrao Balwantrao Chavan, Marathwada University v.

Sheshrao Balwantrao Chavan,
AIR 1989 SC 1582 [
LNIND 1989 SC 238 ]:
(1989) 3 SCC 132 [
LNIND 1989 SC 238 ].
60 Collector of Monghyr v. Keshav Prasad Goenka, Collector of Monghyr v. Keshav

Prasad Goenka,
AIR 1962 SC 1694 [
LNIND 1962 SC 136 ], pp. 1700, 1701 :
1963 (1) SCR 98 [
Mr.Srikanth -
Page 105 of 108
LNIND 1962 SC 136 ]; Associated Electrical Industries (India) Private Ltd., Calcutta v. Its
Workmen, Associated Electrical Industries (India) Private Ltd., Calcutta v. Its Workmen,
AIR 1967 SC 284 [
LNIND 1960 SC 59 ]:
(1961) 2 LLJ 122 [
LNIND 1960 SC 59 ]; Chandradeo Singh v. Prakash Chandra Bose,
Chandradeo Singh v. Prakash Chandra Bose,
AIR 1963 SC 1430 [
LNIND 1963 SC 11 ], p. 1435 (para 13) :
1964 (1) SCR 639 [
LNIND 1963 SC 11 ]; K. Venkataramiah v. A. Seetharama Reddy, K.
Venkataramiah v. A. Seetharama Reddy,
AIR 1963 SC 1526 [
LNIND 1963 SC 39 ], p. 1529 (para 13) :
(1964) 2 SCR 35 [
LNIND 1963 SC 39 ]; Ajawtha Industries v. Central Board of Direct Taxes,
Ajawtha Industries v. Central Board of Direct Taxes,
AIR 1976 SC 437 [
LNIND 1975 SC 831 ]: 1976 SCC (Tax) 127 ; Union of India v. H.P. Chothia,
Union of India v. H.P. Chothia,
AIR 1978 SC 1214 [
LNIND 1978 SC 124 ], p. 1216 :
(1978) 2 SCC 586 [
LNIND 1978 SC 124 ] : 1978 SCC (Lab) 356. Rajmallaiah v. Anil Kishore,
Rajmallaiah v. Anil Kishore,
AIR 1980 SC 1502 [
LNIND 1980 SC 210 ]: 1980 Supp SCC 81. The reasons recorded must show the application of
mind to the material on record; Union of India v. M.L. Capoor, Union of India v. M.L. Capoor,
AIR 1974 SC 87 [
LNIND 1973 SC 292 ], p. 88 :
(1973) 2 SCC 836 [
LNIND 1973 SC 292 ]; Great Portland Estates v. Westminster City Council,
Great Portland Estates v. Westminster City Council,
(1984) 3 All ER 744 , p. 752 :
1985 AC 661 :
(1984) 3 WLR 1035 (HL). The necessity of giving reasons in a healthy check against abuse or
misuse of power for if the reasons recorded are extraneous or irrelevant the order would be struck down; Maneka Gandhi v. Union
of India, Maneka Gandhi v. Union of India,
AIR 1978 SC 597 [
LNIND 1978 SC 25 ], p. 619 :
(1978) 1 SCC 248 [
LNIND 1978 SC 25 ]. The requirement of recording satisfaction with reasons may be implicit in
a statute, Hukamchand Shyamlal v. Union of India, Hukamchand Shyamlal v. Union of India,
AIR 1976 SC 789 [
LNIND 1975 SC 519 ], p. 793 :
(1976) 2 SCC 128 [
LNIND 1975 SC 519 ]. But the requirement of recording reasons may in some context be held to
be a curable irregularity not vitiating the order, G. Marulasiddaiah (Dr.) v. T. G. Siddapparadhya (Dr.), G.
Marulasiddaiah (Dr.) v. T. G. Siddapparadhya (Dr.),
AIR 1971 SC 2264 [
LNIND 1971 SC 92 ], pp. 2267, 2268 :
(1971) 1 SCC 568 [
LNIND 1971 SC 92 ]; R. v. Liverpool City Council, R. v. Liverpool City
Council,
(1975) 1 All ER 379 , p. 384 (QBD); G. S. Lamba v. Union of India, G. S.
Lamba v. Union of India,
(1985) 2 SCC 604 [
LNIND 1985 SC 99 ], p. 626 :
AIR 1985 SC 1019 [
LNIND 1985 SC 99 ]. See further on the question of sufficiency of reasons in the context of
statutory requirement to give reasons: South Bucks District Council v. Porter, South Bucks District Council v.
Porter,
(2004) 4 All ER 775 , p. 786 (HL) (The reasons for a decision must be intelligible and they must
be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached
on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated,
the degree of particularity required depending entirely on the nature of issues falling for decision).
Mr.Srikanth -
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61 Narayan Das Indurkhya v. State of Madhya Pradesh, Narayan Das Indurkhya v.

State of Madhya Pradesh,
AIR 1972 SC 2086 [
LNIND 1972 SC 261 ], pp. 2088, 2089 :
1972 (3) SCC 676 [
LNIND 1972 SC 261 ]; State of Uttar Pradesh v. Lalaisingh Yadav, State of
Uttar Pradesh v. Lalaisingh Yadav,
AIR 1977 SC 202 [
LNIND 1976 SC 333 ], p. 204 :
1976 SCC (Cri) 556 [
LNIND 1976 SC 333 ] :
(1976) 4 SCC 213 [
LNIND 1976 SC 333 ].
62 Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, Swadeshi Cotton Mills
Co. Ltd. v. State Industrial Tribunal,
AIR 1961 SC 1381 [
LNIND 1961 SC 121 ], pp. 1386, 1387 :
(1962) 1 SCR 422 [
LNIND 1961 SC 121 ]; Capital Multi-Purpose Co-operative Societies, Bhopal v. State of M.P.,
Capital Multi-Purpose Co-operative Societies, Bhopal v. State of M.P.,
AIR 1967 SC 1815 [
LNIND 1967 SC 399 ], pp. 1819, 1820 :
1967 (3) SCR 329 [
LNIND 1967 SC 399 ];
Narayan Govind Gavate v. State of Maharashtra, Narayan Govind Gavate v. State

of Maharashtra,
AIR 1977 SC 183 [
LNIND 1976 SC 364 ], p. 192 :
1977 SCC (Cri) 49 [
LNIND 1976 SC 364 ] :
(1977) 1 SCC 133 [
LNIND 1976 SC 364 ]. State of Haryana v. Hari Ram Yadav, State of Haryana
v. Hari Ram Yadav,
JT 1994(1) SC 126 [
LNIND 1994 SC 85 ], pp. 129, 130 :
AIR 1994 SC 1262 [
LNIND 1994 SC 85 ], p. 1265. Same rule has been applied for requirement of prior consultation;
Naraindas Indurkhya v. State of M.P., Naraindas Indurkhya v. State of M.P.,
AIR 1974 SC 1232 [
LNIND 1974 SC 106 ], p. 1244 :
(1974) 4 SCC 788 [
LNIND 1974 SC 106 ] :
(1994) 2 SCC 617 [
LNIND 1994 SC 85 ]. But the authorities should as a matter of practice record the satisfaction
and the reasons therefor in the order, Liberty Oil Mills v. Union of India, Liberty Oil Mills v. Union of India,
(1984) 3 SCC 465 [
LNIND 1984 SC 381 ], p. 498 :
AIR 1984 SC 1271 [
LNIND 1984 SC 381 ]. Short reasons showing application of mind to relevant facts will suffice;
State of U.P. v. Committee of Management of SKM Inter College, State of U.P. v. Committee of Management of
SKM Inter College,
1995 (3) Scale 50 : 1995 AIR SCW 3030 : 1995 (5) JT 196 : 1995 Supp (2) SCC 535.
63 K.L. Subhayya v. State of Karnataka, K.L. Subhayya v. State of Karnataka,

AIR 1979 SC 711 [
LNIND 1979 SC 57 ]:
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(1979) 2 SCC 115 [

LNIND 1979 SC 57 ]. Bai Radha v. State of Gujarat, Bai Radha v. State of
Gujarat,
(1969) 2 SCR 799 [
LNIND 1968 SC 348 ] :
(1969) 1 SCC 43 [
LNIND 1968 SC 348 ] :
AIR 1970 SC 1396 [
LNIND 1968 SC 348 ], where a similar requirement has not been held to be mandatory.
64 State of Punjab v. Balbir Singh, State of Punjab v. Balbir Singh,

JT 1994(2) SC 108 :
AIR 1994 SC 1872 : (1994) 3 SCC 299.
65 P.P. Abdullah v. Competent Authority, P.P. Abdullah v. Competent Authority,

(2007) 2 SCC 510 [
AIR 2007 SC 1057 [
LNIND 2006 SC 1144 ].
66 Mohammad Jafar v. Union of India, Mohammad Jafar v. Union of India,

JT 1994(2) SC 597 [
LNIND 1994 SC 339 ]: 1994 Supp (2) SCC 1.
67 Ibid, p. 603.
68 C.B. Gautam v. Union of India, C.B. Gautam v. Union of India,

(1993) 1 SCC 78 [
LNIND 1992 SC 833 ] :
AIR 1994 SC 771 [
section 269UD of the Income-tax Act ) :
1992 (6) JT 678 [
LNIND 1992 SC 833 ].
69 Kumari Shrilekha Vidyarthi v. State of U.P., Kumari Shrilekha Vidyarthi v. State of

U.P.,
AIR 1991 SC 537 [
LNIND 1990 SC 565 ], p. 546 :
1991 (1) SCC 212 [
LNIND 1990 SC 565 ].
70 T.R. Thandur v. Union of India, T.R. Thandur v. Union of India,

AIR 1996 SC 1643 [
LNIND 1996 SC 749 ], p. 1562 :
(1996) 3 SCC 690 [
LNIND 1996 SC 749 ]. See further text and notes 8 to 10, pp. 429-30.
71 Indian Aluminium Company v. Kerala State Electricity Board, Indian Aluminium

Company v. Kerala State Electricity Board,
AIR 1975 SC 1967 [
LNIND 1975 SC 225 ], pp. 1975, 1976 :
(1975) 2 SCC 414 [
section 49 of the Electricity (Supply) Act, 1948 . See further R. v. Hammersmith and Fulham London Borough
Council, Ex parte, Beddowes, R. v. Hammersmith and Fulham London Borough Council, Ex parte, Beddowes,
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(1987) 1 All ER 369 , pp. 379, 383 :

1987 QB 1050 :
(1987) 2 WLR 263 (CA).
72 Ibid.
73 Birla Stone Lime Co. Ltd., Orissa; Textiles Mills Ltd. v. Orissa State Electricity Board
Birla Stone Lime Co. Ltd., Orissa; Textiles Mills Ltd. v. Orissa State Electricity Board
AIR 1976 SC 127 [
LNIND 1975 SC 417 ]:
(1976) 2 SCC 167 [
LNIND 1975 SC 417 ].
74 Ukha Kolhe v. State of Maharashtra, Ukha Kolhe v. State of Maharashtra,

AIR 1963 SC 1531 [
LNIND 1963 SC 37 ], pp. 1539, 1542 :
(1964) 1 SCR 926 [
LNIND 1963 SC 37 ]; Nazir Ahmad v. King-Emperor, Nazir Ahmad v. King-
Emperor,
AIR 1936 PC 253 , distinguished).
75 Prabhani Transport Co-operative Society Ltd. v. Regional Transport Authority,

Prabhani Transport Co-operative Society Ltd. v. Regional Transport Authority,
AIR 1960 SC 801 [
LNIND 1960 SC 389 ], p. 804 :
(1960) 3 SCR 177 [
LNIND 1960 SC 389 ] (N.B.: Nazir Ahmed's case, supra, distinguished).
76 See text and notes 61 to 66, pp. 965-66, infra.
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 5
SUBSIDIARY RULES
(iii) Implied Conditions and Judicial Review
(a)Administrative and quasi judicial orders.— A statutory discretion or power,

whether it be administrative or quasi-judicial, although conferred in wide terms is subject to
certain implied conditions or limitations.77 A violation of these conditions or limitations even
though there be no violation of any express condition can give rise to judicial review. The implied
limitations arise for Parliament is presumed not to legislate contrary to the rule of law which
enforces “minimum standard of fairness both substantive and procedural”78 so that the exercise of
statutory discretion conforms to the “principles of good administration”.79
The implied conditions or limitations are: The person on whom the power is conferred must
exercise it in good faith for furtherance of the object of the statute; he must not proceed upon a
misconstruction of the statute; he must take into account matters relevant for exercise of the
power; he must not be influenced by irrelevant matters; he must not act unreasonably, i.e.,
irrationally or perversely;80 he must not fetter his discretion in advance by adopting a rigid rule or
policy,81 and in matters affecting fundamental rights he must follow the principle of
proportionality.
The principle of proportionality requires the court to apply a three stage test: (1) whether the
objective sought to be achieved is relevant and sufficiently important to justify limiting the
fundamental rights; (2) whether the means chosen to limit that right are rational fair and not
arbitrary, and (3) whether the means used impair the right as minimally as reasonably possible.82
The Supreme Court has held that the proportionality principle which involves a stricter test of
reasonableness was being applied in India by courts as a primary reviewing authority in judicial
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review of legislative and administrative action affecting fundamental rights ever since 1950
without specifically naming it.83 By proportionality, it is meant that the question whether while
regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures
has been made by the Legislature or the administrator so as to achieve the object of the legislation
or the purpose of the administrative order as the case may be.84 The court will act as a primary
reviewing authority in relation to statutes or statutory rules or any order which has the force of a
statute.85 In cases where the challenge is of unreasonable classification under Articles 14 the
principle of proportionality as applied to other fundamental rights will apply.86 The fundamental
right of equality in Article 14 has also been so construed as to make the concept of reasonableness
and non-arbitrariness pervade the entire constitutional scheme as a golden thread running through
the whole of the fabric of the
Constitution 87
. So the ’state’ acting whether as a ’landlord’ or ’tenant’ is required to
act bonafide and not arbitrarily and every executive action must be informed by reason.88 Where
the challenge is not of unreasonable classification but only of arbitrariness under Article 14, the
proportionately principle will not apply and the test of Wednesbury unreasonableness will apply.89
But the spirit of the doctrine may be &
applied in appropriate cases.1 But as observed by Dharmadhikari J.: “The concept of

’reasonableness' defies definition” and “the functional conceptual implication of ’reasonableness'
is that it is another word used for public policy” and “the test of ’reasonableness' is nothing
substantially different from ’social engineering’ ’balancing of interests' or any of the other
formulas which modern sociological theories suggest as an answer to the problem of judicial
function.”2
Thakkar, J. has recently said that ’proportionality’ involves ’balancing test’ and ’necessity test’.
Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or
infringement of rights or interests and a manifest “imbalance of relevant considerations, the latter
(necessity test) requires infringement of human rights to the least restrictive alternative.”3
The order of any statutory authority or tribunal is also open to judicial review by a public law
remedy or by a private law remedy of civil suit when it suffers from jurisdictional errors and is a
nullity.4
Conferment of quasi-judicial power further implies that the person concerned must follow the
rules of natural justice,5 and must give reasons for making the order which he is empowered to
make.6 Purely administrative bodies are also bound to act justly and fairly which may bring in the
requirement of natural justice,7 as also the duty to give reasons.8 In the context of an order
directing the assessee to have his accounts audited by an accountant under section 142(2A) of the
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Income Tax Act 1961 , the question of applicability of principles of natural justice
was again elaborately discussed and in holding that the principles of natural justice including
giving of reasons were implied before exercise of the said power, Sinha J., observed: “When by
reason of an action on the part of a statutory authority civil or evil consequences ensue, principles
of natural justice are required to be followed”.9 Sinha, J. further observed: “It is beyond any cavil
that ordinarily unless excluded by operation of a statute, the superior courts while exercising
power of judicial review shall proceed on the basis that assignment of reasons is imperative in
character.”10 The legality of an order of a statutory authority must be judged on the basis of the
reasons assigned therefor in the order which cannot be supplemented by affidavit or otherwise.11
Even a non-statutory private body which is not a state under
Article 12 of the Constitution but which exercises public functions is bound to follow
the principles of ’fairness' and ’good faith’ and to act reasonably12 and its orders are amendable to
judicial review under
Article 226 of the Constitution . 13
Section 4(1)d of the recently enacted statute, the

Right to Information Act, 2005 , also requires every public authority in India to
’provide reasons for its administrative or quasi-judicial decisions to affected persons'.
A legitimate expectation as distinguished from a right of receiving some benefit (substantive

legitimate expectation) or of being heard before an adverse order is passed (procedural legitimate
expectation) may by itself furnish a ground for challenge to an order if it is passed without
hearing the person having such legitimate expectation.14 “The word ’legitimate’ in that expression
falls to be read as meaning ’reasonable’. Accordingly, ’legitimate expectations' in this context are
capable of including expectations which go beyond enforceable legal rights, provided they have
some reasonable basis.”15 Stated briefly, when a statute confers power upon a public official to
destroy defeat or prejudice a person's rights, interests or legitimate expectations, the rules of
natural justice regulate the exercise of that power unless they are excluded by plain words or
necessary intendment.16 This principle applies also to cases where administrative action has its
origin in common law or prerogative; but duty to hear may be negatived on grounds of national
security or like causes.17 The ultimate decision in denial of substantive legitimate expectation will
also be open to judicial review on Wednesbury principles18 even when it is reached as a result of a
change in policy19 although the Court has to be more circumspect while interfering in matters of
policy which are essentially within the domain of the Executive.20 “In all legitimate expectation
cases, whether substantive or procedural, three questions arise. The first question is to what has
the public authority, whether by practice or promise, committed itself; the second is whether the
authority has acted or proposes to act unlawfully in relation to its commitment; the third is what
the court should do.”21 There is also authority for the view that the court can interfere on the
general ground of unfairness, whether or not it takes the form of a breach of legitimate
expectations or some other jurisprudential notion, where a change in a policy or practice occurs
without adequate or clear advance notification to those likely to be affected.22 However, the
doctrine of legitimate expectation cannot be pressed in aid for taking support of an Act which is
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yet to be brought into force in future by a decision of the executive Government as that would be
treating inoperative statutory provisions as having immediate effect.23 But the doctrine of
legitimate expectation has been applied in some cases for giving benefit of International
Conventions which are yet to be incorporated into municipal law.24
Similar to the doctrine of substantive legitimate expectation is the doctrine of promissory

estoppel.25 If the Government or an authority or a person who is competent to act on its behalf
makes a promise or representation to a person knowing or intending that it would be acted upon
by the person and the person, in fact, acts upon the promise or representation and alters his
position, the Government will be bound by the promise or representation which would be
enforceable against it and it would not be open to the Government to wriggle out on the plea that
there was no consideration for the promise or that there was no contract as required by
Article 299 of the Constitution or that some statutory order or notification was
required to give the representation a binding effect which was not done. The doctrine of
promissory estoppel is an equitable doctrine, therefore, if there is an overriding public interest that
the Government should not be held by the promise or representation, the doctrine will not apply.
The doctrine will also have no application if the promise or representation is prohibited by law for
example if the promise or representation is to grant exemption but the relevant statute does not
enable the Government to do so. The doctrine is also not available against the legislature. In State
of Punjab v. Nestle India Limited, State of Punjab v. Nestle India Limited,
26 where earlier cases were reviewed, there were representation at various stages to manufacturers
of milk products in Punjab that the State Government had decided in principle to abolish purchase
tax on milk with effect from 1-4-1996. The manufacturers acting on this assurance did not pay
purchase tax in 1996-1997 and passed on the benefit to the milk producers by providing various
concessions and facilities. The State Government had requisite power under Section 6(2) and
Section 30 of the Act to exempt milk from purchase tax by issuing proper notification, which was
not done. In spite of it, the Government was held by its representation and the demands for
purchase tax for the year 1996-97 were quashed in writ petition filed by the manufacturers of milk
products. In MRF Ltd. v. Asst. Commissioner (Assessment) Sales Tax, MRF Ltd. v.
Asst. Commissioner (Assessment) Sales Tax, 27 it was held that when a manufacturer
expanded and diversified his industrial unit on the assurance of exemption of sales tax for seven
years and a statutory notification to that effect was also issued, withdrawal of the exemption
notification by another statutory notification before the expiry of seven years will not apply to
those who became entitled to exemption for a fixed period on the basis of promissory estoppel
and that to apply the notification to deprive them of the exemption would make it unreasonable
and arbitrary. This case clarifies that the case of Rom Industries Ltd. v. State of J&K, supra
Rom Industries Ltd. v. State of J&K, supra (note 26) does not disturb the settled position in law
that where a right for exemption of tax for a certain period had already accrued, withdrawal of the
exemption during that period will not ordinarily affect the accrued right unless there be some
overriding public interest to prevail over the plea of promissory estoppel.28 The case also
reiterates that the doctrine of promissory estoppel has been repeatedly applied to statutory
notifications.29 Even retrospective amendment of statutory rules for withdrawing exemption can
be hit by promissory estoppel.30 Another case on the point is Bannari Amman Sugars Limited v.
Commercial Tax Officer, Bannari Amman Sugars Limited v. Commercial Tax
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Officer, 31 where the principles stated above about the doctrine of legitimate
expectation and promissory estoppel were reiterated. In this case on facts found by the High Court
the petitioner industries were not held to be established on the assurance of grant of concession in
purchase tax and therefore the High Court held that the Government could validity withdraw the
exemption of purchase tax. The Supreme Court, however, remanded the case to the High Court as
no specific plea negating promissory estoppel was properly taken in the return and the case was
decided by the High Court on the basis of files produced before it by the Government.32
Even an investigating body like a Commission functioning under a Commissions of Enquiry Act,
though not bound by the technical rules of evidence, must follow the principles of natural justice
in that it must base its findings on evidence that has some probative value and it must listen fairly
to any relevant evidence conflicting with the finding and any rational argument against the finding
that a person represented at the inquiry whose interests (including in that term career and
reputation) may be adversely affected by it, may wish to place or would have so wished if he had
been informed of the risk of the finding being made.33 But when the proceedings of a Commission
are purely inquisitoreal, the complainant is not seeking to enforce any private right and the finding
is not likely to expose the complainant to any pains or penalties or prosecution, the commission is
not bound to give an opportunity to the complainant to rebut the finding of the commission.34
The rule of audi alteram partem is not attracted during the investigation of a crime under the
Criminal Procedure Code (except when expressly provided) even when the
investigating agency applies to the court for issuance of a letter of Rogatory to a court in a foreign
country.35 Speaking generally a person is not entitled to be heard in a preliminary enquiry or
investigation when at a later stage he is to get full opportunity of defending himself before any
final decision is taken against him, yet there was no universal rule to that effect.36 This general
rule was followed in holding that a person is not entitled to be heard at the stage of grant of
sanction for prosecution as he will get full opportunity to defend himself during trial following
sanction.37 But when the preliminary enquiry is against a person holding a high office, the charges
are serious and the finding in the preliminary enquiry is likely to damage the reputation, fairness
will require that the person concerned is given opportunity in the prelimianry enquiry itself to
reply to the charges.38 Also when in a so-called preliminary enquiry a definitive finding is reached
against a temporary or probationer public servant which is made the foundation for his
termination, omission to follow the principles of natural justice will make the termination
invalid.39
In India a liberal interpretation of

Articles 14 and
21 of the
Constitution readily brings in the requirements of natural justice to administrative
40
actions against a person. It has become an implied principle of the rule of law that any order
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having civil consequences should be passed only after following the principles of natural justice.41
Further, in India the State and every public authority or instrumentality of the State must act
reasonably in public interest and fairly for these requirements have also been spelled out of
Article 14 and the concept of rule of law.42Article 14 is said to be the constitutional guardian of
principles of natural justice.43
Unless the statute provides otherwise, the implication of natural justice will require absence of
bias44 in (to be determined on the objective tests of real likelihood or possibility of bias) and
predecisional hearing by the adjudicating authority; and any omission by the adjudicating
authority to hear the person concerned is not cured by a prior hearing given to him by the
investigating authority or by a post-decisional hearing given in appeal.45 But if prior hearing will
defeat the object of the exercise of statutory power, the matter being one of real urgency, a post-
decisional hearing by the adjudicating authority may meet the requirements of natural justice.46
Similarly when the service of notice has not been effected for reasons beyond the control of the
adjudicating authority within the time allowed by law for making the order, a post decisional
hearing will meet the need to afford opportunity to the person affected.47 This is how the principle
of natural justice is reconciled with the considerations of public interest or administrative
necessity.48 It cannot also be said that an omission of or a defect in hearing at the original stage
can never be cured by a full hearing afforded in appeal.49 Further, situations may arise, although
very rarely, where necessity of prompt action to eradicate a grave social evil may need complete
suspension of the requirement of natural justice, even though it is not unlikely that some innocents
may suffer.50
Briefly stated ’natural justice’ means ’fairplay in action’ and requirements of natural justice
depend upon the facts of each case.51 Therefore, in judging the validity of an order when the
complaint is about non-compliance with the principles of natural justice, in cases where the attack
is not on ground of bias, a distinction has to be drawn between cases of ’no notice’ or ’no hearing’
and cases of ’no fair hearing’ or ’no adequate hearing’. If the defect is of the former category, it
may automatically make the order invalid but if the defeat is of the latter category, it will have to
be further examined whether the defect has resulted in prejudice and failure of justice and it is
only when such a conclusion is reached that the order may be declared invalid.52 Even in cases of
’no notice’ or ’no hearing’, the superior courts may in the exercise of their discretion decline to
interfere by judicial review (under 0 Article 32 or 226 as the case may be) where on admitted or
undisputed facts the view taken by the impugned order is the only possible view and it would be
futile to issue any writ to compel observance of natural justice.53 This is called the useless
formality theory.54 For example, when the petitioner was appointed even though he was not
qualified on the cut off date (last date for receipt of applications) and was ineligible to be
considered for appointment, cancellation of his appointment without hearing him was not
interfered with as it would have been a futile exercise.55 Sympathy for the petitioner as he became
qualified before the date of interview was held to be not a good ground even for interference
under
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Article 142 of the Constitution .56
(b)Subordinate legislation.— A power conferred to make subordinate legislation

must be exercised in conformity with the express and implied limitations contained in the
empowering statute. It has been said that the limitations which apply to the exercise of
administrative or quasi-judicial power conferred by a statute,57 except the requirement of natural
justice, also apply to the exercise of legislative power.58 So the exercise of a legislative power
derived from a statute can be assailed on the grounds that it is in conflict with the
Constitution or the governing statute; that there has been non-consideration of
essential facts; and that it is manifestly arbitrary.59 A detailed discussion of various aspects of
judicial review of delegated legislation occurs in Chapter 12.
(c)Ordinances and orders under the

Constitution .— A power to make law by Ordinance under the
Constitution must, however, be distinguished from a statutory power to make
subordinate legislation. Unlike the exercise of a statutory power, an Ordinance made by the
President under Article 123 or by the Governor under
Article 213 of the Constitution cannot be questioned on the ground of non-
application of mind or mala fides or on the ground that the prevailing circumstances did not
warrant the issue of the Ordinance.60 But the Ordinance making power cannot be used to
circumvent the Legislature by repromulgating an Ordinance time and again, after the Legislature
is prorogued, in a routine manner.61 Interference by the court in that event is illustrative of the
general principle that the function of construing the provisions of the
constitution and the laws and consequently the function of determining whether the
act of a constitutional or statutory functionary falls within the limits of the power entrusted to it or
is vitiated by an erroneous application of the ambit of the power are matters falling within the
jurisdiction of the court.62 Thus though the exercise of power by the President in the matter of
grant or refusal of pardon under
Article 72 of the Constitution cannot be questioned on merits, it can be subjected to
judicial review when it is vitiated by self denial on an erroneous assumption that he has no power
to go into the merits after it has been judicially concluded by the highest court.63 Similarly an
order of remission of life sentence passed by the Governor under Article 161, when certain vital
facts about the prisoner, who was an MLA, were not disclosed can be quashed by the High Court
in judicial review under Article 226.64 Considerations of religion, caste or political loyalty are
irrelevant in exercising the power of remission. Therefore, remission granted of about seven years
unexpired sentence under Article 161 essentially on the ground that the convict was a good
congress worker was quashed by the Supreme Court.65 The principle of limited judicial review
has also been applied to exercise of powers in certain sensitive areas under the
Constitution . Limited judicial review has been exercised for examining the validity
of a proclamation issued by the President under
Article 356 of the Constitution 66
. Similarly satisfaction of the President under clause
(c) of second Proviso to
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Article 311(2) of the Constitution , that in the interest of the security of the State it is
not expedient to hold an enquiry, is also open to limited judicial review on the ground of mala
fides and also on the ground that it was based on wholly extraneous ground.67
Even power of Parliament/State Legislature to punish for its contempt68 or to expel a member69
for breach of its privilege is not final and conclusive and is subject to the power of judicial review
under
Articles 32 ,
136 and
226 of the
Constitution . Even a finality clause in a
Constitution Amendment Act does not deprive the superior courts of their power of
judicial review which forms part of the basic structure of the
Constitution . 70
(i) Manner of expression of exercise of power
The power to make an order must also be distinguished from the manner of expressing an order
which may have been prescribed with a view to give the prescribed manner of expression an
evidentiary value. In such a case the non-compliance with the prescribed manner of expression
does not invalidate the order if the same is proved otherwise to have been validly made. It is on
this principle that section 40 of the 9th Schedule to the Government of India Act, 1935,71 and
Article 77,72 and Article 16673 of the
Constitution have been held to be directory. If, while passing an order in exercise of
a power, the source of the power is not quoted or a wrong provision is quoted, it will not
invalidate the order, and the exercise of the power will be referable to a jurisdiction which confers
validity upon it.74 The same principle applies when a subordinate legislation such as a bye-law
which although within jurisdiction is expressed to be made under a wrong provision.75 But the
principle has no application when the provision to which the exercise of power is sought to be
referred contains certain conditions which are not shown to have been satisfied.76 So a penalty
imposed under one provision cannot be supported under another provision when no notice under
that provision was issued to the party on whom the penalty is imposed.77 Further, the principle
cannot be used to widen the effect of a notification issued expressly under one provision so as
also to relate it under some other provision.78 Thus an exemption of Excise duty by a notification
under Rule 8(1) of the Central Excise Rules cannot be construed to cover exemption from special
duty of excise levied under the
Finance Act , 1979.79
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(j) Statute conferring private rights and benefits
When certain requirements are prescribed by a statute as preliminary to the acquisition of a right
or benefit conferred by the statute, such prescriptions are mandatory for acquisition of the right or
benefit. Thus, if it is desired to have a partnership firm registered under the
Income-tax Act , the requirements of the Act and the Rules framed under it must be
strictly complied with for by securing registration the partners of the firm obtain the benefit of
lower rate of assessment as no tax is directly charged on the income of the firm.80 And a dealer
claiming benefit of a statutory exemption or concession from payment of sales tax on the ground
that sales were made to registered dealers or the Government must prove that the sales were to
registered dealers or the Government by production of declaration forms as required by the
statute; and he is not entitled to the exemption if declaration forms are not produced.81 Similarly,
if a person wants a stage carriage permit, it is necessary for him to make an application in the
manner and within the time as prescribed by the
Motor Vehicles Act 82
. 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.83 The principle applies even to procedural statutes and if a notice
is required to be served before instituting an action the provision as to notice is construed as
mandatory.84 And if a person wants to exercise his right 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.85 Similarly, any requirement as to sanction before initiation of
any criminal proceeding has been held to be mandatory.86 But procedural provisions, which are
merely technical and have no special object behind them may be held directory if substantive
requirements have been fulfilled.87
(k) Enabling words, e.g., ’may’, ’it shall be lawful’, ’shall have power’. Power
coupled with duty
Ordinarily, the words ’May’ and ’It shall be lawful’ are not words of compulsion. They are
enabling words and they only confer capacity, power or authority and imply a discretion.88 “They
are both used in a statute to indicate that something may be done which prior to it could not be
done”.89 The use of words ’Shall have power’ also connotes the same idea.90
The legislature may also use other form of words to confer a discretion. For example, the words
’nothing is this Article shall prevent the State from making any provision for the reservation’ in
favour of backward class of citizens as used in
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Article 16(4) of the Constitution have been held to be only enabling not imposing
any constitutional duty nor conferring any fundamental right for reservation.1
Generally a power conferred on an authority by use of the word ’may’ to rule on a particular
matter does not confer an exclusive jurisdiction and take away the jurisdiction of some other
authority to decide the same matter. Thus the power conferred by
section 16 of the Arbitration and Conciliation Act , 1966 on the arbitral tribunal that
it ’may rule’ on any objection as to existence of an arbitration agreement does not exclude the
jurisdiction of the Chief Justice of India or his designate to decide that question, if need be, in a
petition under section 11 seeking appointment of arbitrator.2
When a capacity or power is given to a public authority, there may be circumstances which
couple with the power a duty to exercise it,3 or the manner in which it may only be exercised.4 In
other words the legal and factual context in which the power is to be exercised may combine the
power with an obligation to exercise it even though it is conferred by use of the word ’May’.5 As
stated by Cotton, L.J.: “’May’ can never mean must, so long as the English language retains its
meaning; but it gives a power and then it may be a question, in what cases, when any authority or
body has a power given it by the word ’may’, it becomes its duty to exercise that power”.6 As
observed by Lord Cairns: “There may be something in the nature of the thing empowered to be
done, something in the object for which it is to be done, something in the conditions under which
it is to be done, something in the title of the person or persons for whose benefit the power is to be
exercised, which may couple the power with a duty, and make it the duty of the person in whom
the power is reposed to exercise that power when called upon to do so”.7 It was further pointed
out by Lord Cairns: “Where a power is deposited with a public officer for the purpose of being
used for the benefit of persons specifically pointed out with regard to whom a definition is
supplied by the Legislature of the conditions upon which they are entitled to call for its exercise,
that power ought to be exercised and the court will require it to be exercised”.8 Lord Blackburn
stated in the same case: “The enabling words are construed as compulsory whenever the object of
the power is to effectuate a legal right”.9 In the words of Beg, J.: “If the conditions in which the
power is to be exercised in particular cases are also specified by a statute then, on the fulfilment
of those conditions, the power conferred becomes annexed with a duty to exercise it in that
manner”.10 Following these principles it was held by the Privy Council interpreting
section 51 of the Income-tax Act , 1918, that in case there was a serious point of law
to be considered there was a duty on the Chief Revenue Authority to state a case to the High
Court.11 This principle was also applied by the Supreme Court in interpreting section 57 of the
Stamp Act, 1899, and it was held that it imposes a duty on the Chief Controlling Revenue
Authority to make a reference to the High Court when an important question of law arises for
consideration.12 And in construing Rule 63 of the C.P. and Berar Motor Vehicles Rules which
reads ’the authority by which a permit is renewed, may likewise renew any counter-signature of
the permit’, the Supreme Court held that ’may’ in the context was obligatory: that is to say the
exercise of power under this rule depends not upon the discretion of the authority but upon proof
of the particular case requiring renewal of the counter-signature.13 Further in dealing with
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section 35 of the Income-tax Act, 1922 , which provided that the authorities ’may
rectify any mistake apparent on the face of the record’, the Court held that authorities were bound
to exercise the power if conditions for its exercise were shown to exist by a person interested. In
holding so, Shah, J., observed: “Even if the words used in the statute are prima facie enabling, the
Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a
right—public or private—of a citizen”.14 Similarly, a power to comply with natural justice before
taking an adverse action against an employee conferred by prima facie enabling words will be
construed as mandatory.15
A power conferred by the Environmental Protection Act, 1986 having regard to its object cannot
be treated as power simpliciter, but it is a power coupled with a duty and so it is the duty of the
State to make sure that the conditions or directions under the Act are fulfilled.16
A Government memorandum providing that in the event of the candidate who is appointed to a
statutory post resigning within six months ’the reserved list may be operated’ to fill the vacancy
where it may not be possible to keep the post vacant till the completion of fresh recruitment, when
read along with the relevant statutory provision that the vacancy ’shall be filled up by the Central
Government as soon as practicable’ was construed to confer a discretion coupled with a duty to
appoint the person next in order of merit from the approved reserved list to the post becoming
vacant.17
When permissive words are employed by the Legislature to confer a power on a Court to be
exercised in the circumstances pointed out by the statute, it becomes the duty of the Court to
exercise that power on proof of those circumstances. As pointed out by Jervies, C.J.: “When a
statute confers an authority to do a judicial act in a certain case, it is imperative on those so
authorised to exercise the authority, when the case arises and its exercise is duly applied for by a
party interested and having a right to make that application”.18 “The use of permissive words in
such cases”, said James, L.J. “is the usual courtesy of Legislature in dealing with the
judicature”.19 The words ’it shall be lawful’ may be used for the purpose of conferring a new
jurisdiction which was not lawful for the authority concerned to exercise till then and when a case
for the exercise of that jurisdiction is made out, it would be the duty of the said authority to grant
the relief and not to refuse to exercise its authority merely at its discretion.20 As observed by
Ayyanger, J.: “Though the word ’may’ might connote merely an enabling or a permissive power
in the sense of the usual phrase ’it shall be lawful’, it is also capable of being construed as
referring to a compellable duty, particularly when it refers to a power conferred on a court or
other judicial authority”.21 It has, therefore, been held that the words ’an order under this Act may
be made by any court’ as they occur in
section 11 of the Probation of Offenders Act, 1958 , imposed a duty to pass an order
under the Act subject to conditions and limitations imposed by the Act and that a court had no
unfettered discretion in refusing to pass an order when an occasion to pass the same arose within
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the four corners of the Act.22 Similarly, the words ’the court may pass a decree for eviction’, have
been construed as not conferring a discretion for refusing to pass a decree where a landlord in a
suit has proved the fulfilment of all conditions entitling him to possession, and the court in such
cases is bound to pass a decree in his favour in spite of the use of the word ’may’.23 Further, the
words ’the Magistrate may take cognizance of any cognizable offence’ in
section 190(1)(b) of the Code of Criminal Procedure, 1973 , have been construed to
24
mean “must take cognizance” leaving no discretion to the Magistrate. And so, a rule requiring
that ’the court may engage a counsel to defend the person’ in a capital sentence case was held to
cast an obligatory duty on the court to provide a counsel if the conditions of the rule were
satisfied.25 When an Act conferring the power does not mention the conditions or the
circumstances in which the power is to be exercised it will be construed as discretionary and
directory. On this principle
section 442 of the Companies Act, 1956 , which empowers that the court ’may stay or
restrain’ a proceeding against a company after the presentation of a winding up petition, has been
construed to be discretionary and directory.26 But even in cases where the conditions or
circumstances are not expressly indicated by the Act, a duty may arise to exercise the power
conferred if it could be shown that on facts of the case exercise of the power would alone carry
out the object of the Act. This is so because judicial power has to be justly and properly
exercised.27
The word ’may’ may also be used in the sense of ’shall’ or ’must’ by the Legislature while
conferring power on a high dignitary.28 When the context shows that the power is coupled with an
obligation, “the word ’may’ which denotes discretion should be construed to mean a command”.29
The use of the word ’may’ in such cases is “out of deference to the high status of the authority on
whom the power and the obligation are intended to be conferred and imposed”.30 It was, therefore,
held that the words ’the Government may, in respect of a gazetted Government servant on his
own request, refer his case to the Tribunal,’ in the context of Rule 4(2) of the U.P. Disciplinary
Proceedings (Administrative Tribunal) Rules, 1947, conferred a power coupled with an obligation
on the Governor to exercise the power when a request was made by a gazetted Government
servant in that behalf and that the Governor had no discretion in the matter.31 Rule 30 of the
Rajasthan Minor Mineral Concession Rules, 1955, which is to the effect that ’a mining lease may
be granted for a period of five years unless the applicant himself desires a shorter period’, has
been construed to confer no discretion on the Government to fix a period less than five years if the
applicant did not desire a shorter period. A proviso to the rule dealing with renewal has been
similarly construed.32Section 5(3) of the C.P. and Berar Revocation of Land Revenue Exemptions
Act, 1948 provided that ’the State Government may make a grant of money or pension—for
suitable maintenance of any family of a descendant from a former ruling Chief’. In construing this
provision it was held that except in those cases where there were good grounds for not granting
the pension, the Government was bound to make a grant to those who fulfilled the required
condition and the word ’may’ had to be read as ’must’. It was also held that the Act laid a duty to
be performed in a judicial manner.33 Clause 20 of the Cotton Textiles (Central) Order, 1948
authorised the Textiles Commissioner to issue directions to manufacturers regarding the classes or
specifications of cloth or yarn and the maximum and the minimum quantities thereof which they
shall or shall not produce ’during such periods as may be specified in the directions'. It was held
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that the power conferred to issue directions is coupled with the duty to specify the particular
period for which the directions shall be operative and directions issued without specifying the
period will be ultra vires.34 But, ’may’ will not be construed as mandatory if such a construction
would defeat the purpose of the Act or would lead to unjust results.35 Further, if the word ’may’
was substituted in place of ’shall’ during the Bill's progress in Parliament, it may not be possible
to construe ’may’ as ’shall’.36
The principle that the word ’may’ is sometimes used in the sense of shall or must, while
conferring power on a high dignitory out of deference to him, has also been applied when power
is conferred on Parliament to enact a law. Interpreting
Article 124(5) of the Constitution , which provides that Parliament may by law
regulate the procedure for the presentation of an address and for the investigation and proof of the
misbehaviour or incapacity of a judge, it has been held, that it is an enabling provision for ’the
procedure for presentation of an address' but it is a compulsive provision for providing the
procedure ’for the investigation and proof of the misbehaviour or incapacity of a judge’.37
(l) Words conveying discretion; as he deems fit; think necessary; consider

necessary
Where a statute provides for the grounds on which a person is entitled to a certain relief and
confers power on a Tribunal to pass orders ’as it deems fit’, the exercise of the power to grant the
relief is not dependent upon the discretion of the Tribunal.38 In a case where the tenancy had
terminated according to the provisions of the statute and the landlord had applied for an order for
possession to the Mamlatdar who is required by the Act ’to pass order thereon as he deems fit’,
the Supreme Court held that the Mamlatdar had no discretion to refuse the relief on equitable
considerations not covered by the statute. Sarkar, J. observed: “Section 29(3) only confers power
to make an order in terms of the statute, an order which would give effect to a right which the Act
has elsewhere conferred. The words ’as he deems fit’ do not bestow a power to make any order on
consideration de hors the statute which the authorities consider best according to their notions of
justice.”39 The wide discretion conferred by these words has to be exercised “fairly and bona fide”
keeping in view the purpose for which it is conferred.40 Similarly, the words ’shall take such
action thereon as it may think fit’ do not give a discretion to take action outside the statute.41
When a power is conferred on an appellate or revisional Tribunal in similar words, the appellate
or the revisional Tribunal cannot pass any and every order but can only pass such orders which
the subordinate authority could have passed in that particular case.42
The words ’think necessary’ or ’consider necessary’ have also been held to confer a discretion but
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not an unfettered discretion.43
Even where there is not much indication in the Act of the ground upon which discretion is to be
exercised it does not mean that its exercise is dependent upon mere fancy of the Court or Tribunal
or Authority concerned. It must be exercised in the words of Lord Halsbury, “according to the
rules of reason and justice, not according to private opinion; according to law and not humour; it
is to be not arbitrary, vague and fanciful, but legal and regular”.44 As stated by Robson: “Within
certain limits, the individual who exercises discretion is quite free but if he ventures outside those
frontiers his power ends, if he takes into consideration matters ’fantastic and foreign to subject-
matter’, if he decides the matter, according ’to his will and private affections', then he is regarded
as having failed to exercise any discretion at all”.45
(m) ’Have regard to’
The words ’Have regard to’ when occurring in a statute should be construed in relation to the
context and the subject-matter.46 Ordinarily, these words are understood as “a guide and not a
fetter”.47 They only oblige the authority on whom the power is conferred “to consider as relevant
data material to which it must have regard”.48 Therefore, when some statutory power is to be
exercised ’having regard to’ certain specified provisions, it only means that those matters must be
taken into consideration. But the statutory authority is not strictly bound by such provisions even
if any of such provisions is worded in a negative form, and an exercise of the power does not
become invalid or in excess of jurisdiction if those provisions are not strictly followed.49 A
grievance that due regard was not paid to such provisions may not give rise to any justiciable
dispute.50Section 6(1)(e) of the Karnataka Contract Carriages (Acquisition) Act, 1976, empowers
the arbitrator to determine by his award the amount of compensation which appears to him to be
just and reasonable. In making the award the arbitrator is required to ’have regard to’ the
circumstances of each case and the provisions of the schedule which provide for principles for
determination of the amount of compensation. In interpreting the section, the Supreme Court held
that the arbitrator is not obliged to fix the amount of compensation as specified in the schedule
and that he has to fix the amount which appears to him to be just and reasonable on the totality of
circumstances keeping primarily in mind the amount mentioned in the schedule.51Section 3(4) of
the U.P. Electricity Duty Act, 1952 provides that ’the State Government may in public interest
having regard to the prevailing chargesfor supply of energy in any area, the generating capacity of
any plant, the need to promote industrial production generally or any specific class thereof and
other relevant factors either fix different rates of Electricity duty in relation to different classes of
consumption of energy or allow any exemption from payment thereof.’ In construing this section
the Supreme Court held that the expression ’having regard to’ did not mean that it was a
mandatory duty to consider the factors mentioned in the section and all that the section required
was that these factors should be borne in mind but they were subordinated to the need of public
interest.52 Similar view was taken of
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section 3C of the Essential Commodities Act, 1955 which provides for price fixation
of levy sugar having regard to certain matters and it was held that the words ’having regard to’ are
not strictly mandatory but in essence directory and if the enumerated matters have been generally
considered the court will not strictly scrutinize the extent to which these matters and other matters
have been taken into account53 But as the words ’have regard to’ have to be construed according
to the context and subject-matter, they may in a particular context have a compelling or
mandatory effect.54 Further, the words ’having regard to’ certain enumerated matters do not mean
’having regard only to’ those matters and, therefore, consideration of other relevant matters is not
excluded.55 When a Court is enjoined to ’have regard to’ certain provisions in the trial of a
proceeding and no regard is paid to them, the trial will not be ’in accordance with law’ and such
an error will be liable to correction in appeal or revision.56
7. CONJUNCTIVE AND DISJUNCTIVE WORDS ’OR’ AND ’AND’
The word ’or’ is normally disjunctive and ’and’ is normally conjunctive57 but at times they are
read as vice versa to give effect to the manifest intention of the Legislature as disclosed from the
context.58 As stated by Scrutton, L.J.: “You do sometimes read ’or’ as ’and’ in a statute. But you
do not do it unless you are obliged because ’or’ does not generally mean ’and’ and ’and’ does not
generally mean ’or’.59 And as pointed out by Lord Halsbury the reading of ’or’ as ’and’ is not to
be resorted to, “unless some other part of the same statute or the clear intention of it requires that
to be done”.60 But if the literal reading of the words produces an unintelligible or absurd result
’and’ may be read for ’or’ and ’or’ for ’and’ even though the result of so modifying the words is
less favourable to the subject provided that the intention of the Legislature is otherwise quite
clear.61 Conversely if reading of ’and’ as ’or’ produces grammatical distortion and makes no
sense of the portion following ’and’, ’or’ cannot be read in place of ’and’.62 The alternatives
joined by ’or’ need not always be mutually exclusive.63
It is also not unusual to find use of pairs of words as a composite class. An example of this nature
is found in section 22(1) of the Common Regulation Act, 1965 which uses the expression ’sports
and pastimes' as a composite class. In interpreting this expression Lord Hoffman said: “As a
matter of language I think that ’sports and pastimes' is not two classes of activities but a single
composite class which uses two words in order to avoid arguments over whether an activity is a
sport or pastime. The law constantly uses pairs of words in this way. As long as the activity can
properly be called a sport or a pastime, it falls within the composite class.”64
In section 2(1)(d)(i) of the Bombay Lotteries and Prize Competition Control and Tax Act, 1948,
(as amended by Act 30 of 1952) the Supreme Court read ’or’ as ’and’ to give effect to “the clear
intention of the Legislature as expressed in the Act read as a whole”.65 The words ’owner or
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master’ as they occur in section 1(2) of the Oil in Navigable Waters Act, 1955 were construed by
the House of Lords to mean ’owner and master’ making both of them guilty of the offence under
that section as reading of ’or’ as ’or’ would have produced an absurd result of leaving it to the
Executive to select either the owner or master for being prosecuted without the Act giving any
guidance for the selection. Such a result would have also been against the constitutional
practice.66 Similarly in
section 42(2) of the Income-tax Act, 1922 the result produced by reading ’or’ as ’or’
“could not have been intended” and the word ’or’ was read in the context as meaning ’and’.67 In
section 11 of the Suits Valuation Act, 1887 , clauses (a) and (b) of sub-section (1)
although separated by the word ’or’ have been read conjunctively as that is the obvious intention
disclosed by sub-section (2).68 The expression ’established or incorporated’ used in sections 2(f),
22 and 23 of the
University Grants Commission Act was read as ’established and incorporated’
having regard to the constitutional scheme and in order to ensure that the Act is able to achieve its
objective and the UGC is able to perform its duties and responsibilities.69 Speaking generally, a
distinction may be made between positive and negative conditions prescribed by a statute for
acquiring a right or benefit. Positive conditions separated by ’or’ are read in the alternative70 but
negative conditions connected by ’or’ are construed as cumulative and ’or’ is read as ’nor’ or
’and’.71
Section 3 of the Prevention of Corruption Act, 1988 empowers the Government to

appoint as many special judges as may be necessary for such area or areas or for such case or
group of cases, as may be specified in the notification. Construing the italised ’or’ it was held that
it would mean that the Government has the power to do either or both the things, i.e., the
Government may, even for an area for which a special judge has been appointed, appoint a special
judge for a case or group of cases.72 The case illustrates that the alternatives joined by ’or’ need
not always be mutually exclusive.
In
section 7 of the Official Secrets Act , 1920, which reads: ’Any person who attempts to
commit any offence under the principal Act or this Act, or solicits or incites or endeavours to
persuade another person to commit an offence, or aids or abets and does any act preparatory to the
commission of an offence’, the word ’and’ printed in Italics was read as ’or’ for by reading ’and’
as ’and’ the result produced was unintelligible and absurd and against the clear intention of the
Legislature.73Section 3(b)(i) of the
Drugs Act, 1940 , (before its amendment in 1962) defined drug as follows: ’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’. The italicized, word ’and’ in this definition
was read disjunctively as the context showed that it was the clear intention of the Legislature.74
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But if the conjunctive sense of the word ’and’ also subserves the object of the provision there can
be no doubt that ’and’ cannot be construed as ’or’.75
8. CONSTRUCTION OF GENERAL WORDS
(a) General
The normal rule is that general words in a statute must receive a general construction unless there
is something in the Act itself such as the subject-matter with which the Act is dealing or the
context in which the said words are used to show the intention of the Legislature that they must be
given a restrictive meaning.76 Their import to have wider effect cannot be cut down by arbitrary
addition or retrenchment in language.77 Since general words have ordinarily a general meaning,
the first task in construing such words, as in construing any word, is to give the words their plain
and ordinary meaning and then to see whether the context or some principle of construction
requires that some qualified meaning should be placed on those words.78
Paragraph 16 of Schedule 1 (Part 4) of the Acquisition of Land Act, 1946, which provides that a
compulsory purchase order shall not be questioned ’in any legal proceeding whatsoever’, was
construed by the House of Lords as prohibiting any attack to the order including one on the
ground that the order was made in bad faith.79 Lord Radcliffe in that case said: “It is
quite true, as is said, that these are merely general words; but then, unless there is some
compelling reason to the contrary, I should be inclined to regard general words as the most apt to
produce a corresponding general result”.80 Viscount Simonds in the same case
observed: “There is, in fact, no justification for the introduction of limiting words such as ’if made
in good faith’, and there is the less reason for doing so when those words would have the effect of
depriving the express words ’in any legal proceedings whatsoever’ of their full meaning and
content”.81 Similarly, the Supreme Court while construing the words ’any connection whatever’
refused to limit them to direct connections for the restricted construction would not have given
full meaning to the words ’any’ and ’whatever’.82 On the same principle the words ’coal including
coke in all its form’ were construed to include petroleum coke. A restricted meaning that these
words were limited to coke derived from coal would have given no weight to the generality of the
words ’in all its form’.83
In a case relating to
section 26 of the Factories Act , 1937, which enjoins occupiers of a factory to provide
safe means of access to ’every place’ at which any person has at any time to work, the House of
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Lords held that a point on a vessel, which was being repaired in a dockyard, where a workman
had to work was within the words ’every place’ as occurring in the section.84 It was argued in this
case that section 26 was to be found in fasciculus of sections dealing with a safety provision
which were restricted to plant and premises of the factory, and therefore, the words ’every place’
in section 26 should also be restricted to plant and premises of the factory thereby excluding any
object which came for repairs in the factory. This argument was rejected and in that connection
Lord Guest observed: “There is no principle which would compel a Court to restrict general
words to be found in one section by a limitation to be found in other surrounding sections dealing
with different matters”.85 Similarly the expression ’every order’ in section 7 of the Bombay
Government Premises (Eviction) Act, 1956 which provides for an appeal against ’every order’ of
the competent authority was construed to confer a right of appeal to the Government if the order
be against the Government and the expression was not held restricted to orders in favour of the
Government appealable by the alleged unauthorised occupier.86
It is, however, quite often that the object or the subject-matter or the collocation or speaking
briefly the context has the effect of restricting the normal wide meaning of general words, “for
words and particularly general words cannot be read in isolation; their colour and content are
derived from their context”.87 “It is a recognised principle of construction”, observed Kapur, J.
“that general words and phrases, however wide and comprehensive they may be, in their literal
sense must usually be construed as being limited to the actual object of the Act”.88 It may in the
same context be said that it is a sound rule of construction to confine the general provisions of a
statute to the statute itself.89 It has already beenseen that the application of the rule in Heydon's
case90 in construing ambiguous provisions of a statute may have the effect of limiting general
words in such provisions to the evil or mischief which the statute was intended to remedy.
Similarly, the application of the rule of harmonious construction has the effect of restricting
general provisions to avoid conflict with specific provisions of the same statute.91
“One of the safest guides to the construction of sweeping general words which it is difficult to
apply in their full literal sense”, stated the Privy Council, “is to examine other words of like
import in the same instrument and to see what limitations can be placed on them”.92 In
section 14(1) of the Factories Act , 1937, which provides that ’every dangerous part
of any machinery, other than prime movers and transmission machinery, shall be securely
fenced’, the words ’any machinery’ were construed by the House of Lords as meaning any
machinery used in the factory for or ancillary to its manufacturing processes but not a machinery
emerging as a product of the factory.93 This result was reached having regard to the collocation or
the architecture of the sections 12, 13 and 14. Sections 12 and 1394 which dealt with prime movers
and transmission machinery were limited in their scope to the machinery forming part of the
equipment of the factory and the exception contained in section 14(1) in respect of prime movers
and transmission machinery left no doubt to the court that the scope of that section also was
similarly limited.
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The Caravan Sites and Control of Development Act, 1960, prohibits any occupier of land to cause
or permit his land to be used as a caravan site except under a licence granted by his local
authority. The Act by section 5 empowers the local authority to impose to a site licence ’such
conditions as the authority may think it necessary or desirable to impose on the occupier of land
in the interests of persons dwelling thereon in caravans, or any other class of persons, or of the
public at large’. The powers conferred by the aforesaid provisions on a local authority although in
most general terms were construed by the House of Lords as not authorising the imposition of a
condition which did not relate to the use of the site but which restricted the site owners' freedom
of contract in other respects with caravan dwellers.95 This result was reached mainly on the
ground that if Parliament intended to bring about such a fundamental change as to authorise
&
the local authorities to restrict freedom of contract between the site owner and caravan dwellers it
would have done so in quite clear terms.1
The words ’representation in regard to testator's estate’ were construed in a case as referring to
probate or letters of administration with the will annexed thereby excluding the grant of letters of
administration simpliciter on the ground that the Act in question was limited in its scope to
testamentary dispositions.2
The word ’vest’ has no fixed connotation meaning in all cases that the property is owned by the
person in whom it vests. It may vest in title or in possession or in some other limited sense “as
indicated in the context in which it may have been used in a particular piece of legislation.”3
The word ’person’ has at times been construed as meaning only males,4 whereas at times it has
been given its full effect to include both males and females,5 as also a company or a corporation,6
and in some cases even the Crown,7 or the State.8 In the context of
section 50 of the NDPS Act , which provides certain safeguards for search of ’any
person’ the word ’person’ has been construed to mean “a human being with appropriate coverings
and clothings and also footwear” but not to include a bag or briefcase which the person may be
carrying.9 Similarly the word ’family’, the primary meaning of which is children,10 has a variable
connotation according to its context.11 Thus a single person living alone or a master and servant
living together may be regarded as a family,12 a son-in-law may be regarded as a member of the
family of his mother-in-law and wife,13 and a brother's son living with and helping his father's
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brother in his business may be regarded as a member of his family.14 Though it has been held that
two adults living together in platonic relationship do not constitute a family on the ground that
’family’ does not mean ’household’ and a broadly recognisable de facto familial nexus is
necessary,15 but with the change in society's attitude towards homosexual relationships, two
persons living together in a stable and permanent homosexual relationship have been held in law
to constitute a ’family’.16
Another general word of common use is ’business' which according to Lord Diplock is an
“etymological chameleon; it suits its meaning to the context in which it is found”.17 The same
simile has been applied by Thomas J. to the expression ’failure of justice.’18 A similar general
word of common use is ’suitable’ which has been described by Lord Hoffman to be “an empty
vessel which is filled with meaning by context and background”.19
General words also receive a restricted meaning because of principle of legality as also when used
in association with other words by application of the rules of noscitur a sociis and ejusdem
generis.
(a1) Principle of Legality
As statutes are not enacted in a vacuum, it is assumed that long standing principles of
constitutional law and administrative law are not displaced by use of merely general words.20 This
is styled as the principle of legality.21 In the words of Sir John Romilly: “The general words of the
Act are not to be so construed as to alter the previous policy of the law, unless no sense or
meaning can be applied to those words consistently with the intention of preserving the previous
policy untouched”.22 Since every new law involves some change the above statement of Lord
Romilly must be applied with caution23 and should be normally confined to cases where “the
abrogation of a long standing rule of law is in question”.24 There are many presumptions which an
interpreter is entitled to raise which are not readily displaced merely by use of general words, e.g.,
an intention to bind the Crown25 or an intention to exclude the supervisory jurisdiction of superior
courts26 will not be inferred merely by use of general words. It is an application of the same
principle that unless there be clearest provision to the contrary, Parliament is presumed not to
legislate contrary to rule of law which enforces “minimum standard of fairness both substantive
and procedural.”27 Thus a statutory power though conferred in wide terms has certain implied
limitations;28 provisions excluding challenge to an order have no application when the order is a
nullity29 and a provision excluding an appeal against an order of a criminal court does not bar an
appeal against an order which the court had no power to make.30 For the same reason, unless the
statute expressly or by necessary implication provides otherwise an administrative decision does
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not take effect before it is communicated to the person concerned.31
The principle of legality requires that in the absence of express language or necessary implication
to the contrary, the courts will presume that even the most general words were intended to be
subject to the basic rights of the individual and in this way the courts of the United Kingdom,
though acknowledging the sovereignty of Parliament apply principles of Constitutionality little
different from those which exist in countries where the power of the legislature is expressly
limited by a constitutional document.32 This principle applies also in the construction of delegated
legislation.33 In this case paras 37 and 37A of Standing Order 5A (made under
section 47(1) of the Prisons Act , 1952) were construed not to take away the right of
free speech of a prisoner through oral interviews to persuade a journalist to investigate the safety
of his conviction and to publish the findings in an effort to gain access to justice.34
(a2) Principle of Legality and the Human Rights Act (U.K.) 35
Even after the enactment of the Human Rights Act, 1998 (U.K.) which gives statutory recognition
to the European Convention for the protection of Human Rights and Fundamental Freedoms, the
principle of legality will apply being expressly recognised by section 3 of the Act and gaining
further support from the obligation of a Minister in charge of a Bill to make a statement of
compatibility as required by section 19. But in cases, where the legislative infringement of
fundamental rights is so clearly expressed as not to yield to the principle of legality, the courts
will be able to draw this to the attention of Parliament by making a declaration of incompatibility
and it will be then for the sovereign Parliament to decide whether or not to remove the
incompatibility.36 Indeed, section 3 of the Act37 has been construed to enact a much stronger
presumption that normally arises under the principle of legality.
In R. v. A, R. v. A, ,38 Lord Steyn whose views were shared by the majority said: “In
accordance with the will of Parliament as reflected in section 3 it will be sometimes necessary to
adopt an interpretation which linguistically may appear strained. The techniques to be used will
not only involve the reading down of express language in a statute but also the implication of
provisions. A declaration of incompatibility is a measure of last resort. It must be avoided unless
it is plainly impossible to do so. If a clear limitation on Convention rights is stated in terms such
an impossibility will arise.”39 In this case the question related whether section 41 of the Youth
Justice and Criminal
Evidence Act , 1999, which imposed wide restrictions on evidence and questioning
about complainant's sexual history, could be given effect in a way that was compatible with the
fair trial guarantee under Article 6 of the Convention. The House of Lords held that it was
possible to read section 41 “as subject to the implied provision that evidence or questioning which
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is required to ensure a fair trial under Art. 6 of the Convention should not be treated as
inadmissible”.40
Section 11(5)(b)(ii) of the

Coroners Act , 1988 required that a coroner's inquisition, signed by the jury should
set out ’how, when and where’ the deceased came by his death and Rule 36(1) of the 1984 rules
provided that the proceedings and evidence at an inquest were to be directed solely to ascertaining
certain matters including ’how, when and where’ the deceased came by his death. After
enforcement of the Human Rights Act, 1998 the above provisions of the
Coroners Act and the rules had to be read compatible with the State's procedural
obligation for protection of right to life to provide for effective public investigation, i.e., to
investigate death under Article 2 of the Convention ordinarily to culminate in an expression of the
jury's conclusion on the disputed factual issues at the heart of the case, i.e., relating to the events
leading up to the death. With this object the word ’how’ in section 11(5)(b)(ii) and Rule 36(1)(b)
was construed as meaning not simply ’by what means' but ’by what means and in what
circumstances'.41 But this broad interpretation will apply only when the death took place after
coming into force of the Human Rights Act, i.e., after 2nd October 2000. For inquests in respect
of deaths before this date the word ’how’ will only mean by ’what means' even though the inquest
has been started or is continuing after 2nd October 2000 for the reason that the obligations created
by the Human Rights Act are not retrospective.42
In Ghaidan v. Mendoza Ghaidan v. Mendoza 43 the House of Lords had
to consider after enforcement of the Human Rights Act, 1988 the interpretation of para 2 of
schedule I to the Rent Act, 1977 which reads:
2.
(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house
immediately before the death of the original tenant, shall after the death be the statutory
tenant if and so long as he or she occupies the dwelling-house as his or her residence.
(2) For the purposes of this paragraph, a person who was living with the original tenant as his
or her wife or husband shall be treated as the spouse of the original tenant....
This provision was earlier interpreted by the House of Lords in Fitzpatric v. Sterling Housing
Corporation Fitzpatric v. Sterling Housing Corporation 44 and it was
held that Para 2(2) was limited to heterosexual couples living together as husband and wife
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without getting married but did not apply to homosexual couples living together. But in Ghaidan
v. Mandoza Ghaidan v. Mandoza 45 the provision was interpreted under
s. 3 of the Human Rights Act to avoid discrimination on the ground of sexual orientation to
include homosexual couples. This was done by interpreting the words ’as his or her wife or
husband’ in para 2(2) to mean ’ as if they were his wife or husband’ so that ’spouse’ included the
survivor of a same sex partnership.46 It was held that the court could read in words which change
the meaning of the enacted legislation so as to make it convention compliant. Lord Steyn
emphasised that “interpretation under section 3(1) is the prime remedial remedy and that resort to
section 4 must always be an exceptional course. In practical effect there is a strong rebuttable
presumption in favour of an interpretation consistent with convention rights.”47
An example of a case where the House of Lords found it impossible to construe an English statue
compatible with Article 6(1) of the Convention48 is furnished by R (on the Application of
Anderson) v. Secretary of State for the Home Department. R (on the Application of
Anderson) v. Secretary of State for the Home Department. 49 The question in this
case related to the power of the Secretary of State under section 29 of the Crime (Sentences) Act,
1997 to fix the minimum term of imrisonment on the expiry of which alone the case of a prisoner
sentenced to mandatory life imprisonment could be sent to the Parole Board for consideration
whether he could be released earlier. It was held that the fixing of such a tariff was a sentencing
exercise involving an assessment of the quantum of punishment that the convicted murderer
should undergo and its entrustment to the Secretary of State who was not independent of the
executive was incompatible with Article 6(1) of the Convention. The court found it impossible to
construe section 29 compatible with article 6 of the Convention under section 3(1) of the Human
Rights Act and declared its incompatibility. According to Lord Steyn section 3(1) is not available
where the suggested interpretation is contrary to express statutory words or is by implication
necessarily contradicted by the statute.50
Another example of incompatibility is Bellinger v. Bellinger, Bellinger v. Bellinger,

51 where the House of Lords declined to hold that a post operative male to female transexual could
be treated as ’female’ for purposes of marriage under section 11(c) of the Matrimonial Clauses
Act, 1973 to remove incompatibility by construction under section 3 of the Human Rights Act and
declared that provision incompatible with convention rights under section 4 of the Act leaving the
choice with Parliament to remove incompatibility by legislation. The issue in this case related to
the change in fundamental concept of marriage which the court held could not be brought about
by any process of interpretation and needed parliamentary legislation.
Another more recent case which may be mentioned here is A. v. Secretary of State for the Home
Department A. v. Secretary of State for the Home Department 52 which
related to the compatibility of the Anti Terrorism Crime and Security Act, 2001 with the
provisions of the convention. Nine suspected foreign terrorists were arrested and detained in
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England under the Act in the wake of September 11 Al-Quaeda attack in New York. The
detainees were detained indefinitely because the Home Secretary believed that their presence in
the UK was threat to national security. They could not be deported back to their home countries
because there was a threat that they would be subject to torture in breach of Article 3 of the
convention. The provisions of the Act in particular section 23 permitting indefinite detention
without trial of only foreigners were held by a majority of eight against one to be violative of right
to liberty provision in Article 5 and non-discrimination provision in Article 14 of the convention.
Article 15 permits derogation from Article 5 provision ’in time of war or other public emergency
threatening the life of the nation’ but requires that measures taken ’must be strictly required by the
exigencies of the situation’. On this aspect it was held that the measures adopted were not
proportionate to the threat. Section 23 of the Act was, therefore, declared incompatible with the
convention rights. This is an important case for it upholds liberty and equality even in times of
great danger to national security.
It has been said that sections 3 and 4 of the Act give the Act its unique character as a participatory
human rights setting it apart from earlier Bill of Rights based on a judicial interpretative
monopoly. Even when the Parliament accepts the courts interpretation of incompatibility, which
will be done in most of the cases, it will be for Parliament to choose what to put in place of the
incompatible statutory provision.53
As expected the coming into force of the Human Rights Act, 1998 from 2nd October 200054 gave
rise to a flow of H.R. cases in courts and tribunals of all kinds and all levels in the United
Kingdom. Any earlier decision on the interpretation of an Act became open to reconsideration on
the question of compatibility with Convention rights. Lord Hope in R. v. Kansal, R.
v. Kansal, aptly remarked: “The development of our jurisprudence on the Human Rights Act,
1998, has only just begun. New problems are being revealed every week, if not every day.”55
In R (on the application of Al-Keini) v. Secretary of State, R (on the application of

Al-Keini) v. Secretary of State, 56 the House of Lords faced a new problem of extra
territorial application of the Human Rights Act which on the face of it does not provide for extra
territorial operation. By relying upon the Srasbourg Human Rights jurisprudence it was held that
the Act will apply to a territory outside the United Kingdom, which because of military
occupation is in effective control of the Government of the U.K. Therefore, a relative of an Iraqi
civilian, who was taken to a detention unit in a British military base at Basra in Iraq and was said
to have been so brutally beaten that he died of his injuries, was granted judicial review of an order
of the Secretary of State declining to hold enquiry for deprivation of right to life under Article 2
of the Convention. But in five other cases, where Iraqi civilians were killed outside the military
base by British armed forces judicial review was refused.
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The impact of Human Rights on continued detention of prisoners taken in Afghanistan was also
felt in the United States. In Rasul v. Bush Rasul v. Bush
[(2004) 124 SC 2686 57
] the United States Supreme Court departed
from its earlier view that foreigners held outside United States territory did not have any right to
file Habeas Corpus petition in United States’ courts. In this case, in the military operations in
Afghanistan to hunt down members of Al Qaeda, the troops captured many foreigners who were
taken to the United States military base in Guantanamo in Cuba outside United States. The lower
courts dismissed their Habeas Corpus petition on the ground of jurisdiction based on earlier
precedents. But in appeal the Supreme Court held that United States’ courts have jurisdiction to
review the legality of detention of foreigners captured outside United States territory during
hostilities in Afghanistan and held abroad in United States military custody in Gauntanamo base.
The earlier view was departed from on the following considerations: (i) The foreigners captured
were not citizens of countries at war with the United States; (ii) the prisoners had denied being
involved in hostilities against United States; (iii) they were never given access to a tribunal; and
(iv) they had never been accused of any crime and were held in detention for more than two years
in a territory over which the United States had exclusive jurisdiction.
(b)Noscitur a Sociis
The rule of construction noscitur a sociis as explained by Lord Macmillan means: “The meaning
of a word is to be judged by the company it keeps”.58 As stated by the Privy Council: “it is a
legitimate rule of construction to construe words in an Act of Parliament with reference to words
found in immediate connection with them”.59 It is a rule wider than the rule of ejusdem generis;
rather the latter rule is only an application of the former. The rule has been lucidly explained by
Gajendragadkar, J. in the following words: “This rule, according to Maxwell,60 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,
that is, the more general is restricted to a sense analogous to a less general. The same rule is thus
interpreted in Words and Phrases.61 “Associated words take their meaning from one another under
the doctrine of noscitur a sociis, the philosophy of which is that the meaning of the doubtful word
may be ascertained by reference to the meaning of words associated with it; such doctrine is
broader than the maxim ejusdem generis.” In fact the latter maxim ’is only an illustration or
specific application of the broader maxim noscitur a sociis'. It must be borne in mind that noscitur
a sociis, is merely a rule of construction and it cannot prevail in cases where it is clear that the
wider words have been deliberately used in order to make the scope of the defined word
correspondingly wider. It is only where the intention of the Legislature in associating wider words
with words of narrower significance is doubtful, or otherwise not clear that the present rule of
construction can be usefully applied.62 The rule was recently applied in construing the word
’luxuries' in Entry 62 of List II of the
Constitution 63
which is a term of wide denotation not free from ambiguity. Further,
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the rule cannot be used to make one of the associated words wholly redundant.64
Some examples where this doctrine has been applied may now be mentioned.
In a private Act a water company was empowered ’to break up the soil and pavement of roads,
highways, footways, commons, streets, lanes, alleys, passages and public places' provided they
did not enter upon any private lands without the consent of the owner and it was contended by the
company that this power enabled the company to break up the soil of a private field in which there
was a public footway. This contention, however, failed and the court construed the word
’footways' from the company it kept as meaning those paved footways in large towns which are
too narrow to admit of horses and carriages.65
While dealing with a Purchase Tax Act, which used the expression ’manufactured beverages
including fruit-juices and bottled waters and syrups etc.’, it was held that the description ’fruit-
juices' as occurring therein should be construed in the context of the preceding words and that
orange-juice unsweetened and freshly pressed was not within the description.66
Section 4(1) which provides an exception to the offence under section 2 of the Obscene
Publications Act, 1959, and which corresponds to exception (a)(i) to
section 292(2) of the Penal Code enables the accused to prove that ’publication of
the article in question is justified as being for the public good on the ground that it is in the
interest of science, literature, art or learning or of other objects of general concern’. It was held by
the House of Lords67 that the general words ’other objects of general concern’ operated in the
same area which was covered by the words science, literature, art or learning and that these words
did not fall in a totally different area of sexual behaviour and could not enable the accused to
prove that the articles seized, which were hard pornography, had some psycotherapeutic value for
various categories of persons e.g., for persons of heterosexual taste and perverts to relieve their
sexual tensions.
In construing the word ’declare’ in the phrase ’to create, declare, assign, limit or extinguish’ as it
occurs in section 17 of the Indian
Registration Act, 1908 , the Privy Council held that though the word ’declare’ was
capable of bearing a wider meaning but in section 17, being in association with other words, its
meaning was restricted to connote a definite change of legal relationship as distinct from a mere
statement of facts. Viscount Dunedin quoted with approval the observations of West, J. from a
Bombay case which are to the following effect: “’Declare’ is placed along with ’create’, ’limit’ or
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’extinguish’ a right, title or interest and these words imply a change of legal relation to the
property by an expression of will embodied in the document.—I think this is equally the case with
the word ’declare’. It implies a declaration of will, not a mere statement of fact.”68
Rule 31 of the Rajasthan Rules of Business, which required that ’proposals for dismissing,
removing or compulsory retiring of an Officer’, should be referred to the Governor, was
construed, as not necessitating any such reference in cases of compulsory retirement not
amounting to punishment. It was held that the phrase ’compulsory retirement’ as it occurs in the
rule in association with ’dismissal’ and ’removal’ must be taken to cover only cases of
punishment and not normal cases of compulsory retirement such as those which result on
attaining superannuation age or those which fall under Rule 244 of the Civil Service Rules.69
In section 232 of the Indian

Companies Act , 1913, which enacted that ’where any company is being wound up by
or subject to the supervision of the court, any attachment, distress or execution put into force
without leave of the court against the estate or effects or any sale held without leave of the court
of any of the properties of the company after the commencement of the winding up shall be void’,
the words ’any sale held without leave of the court’ were construed in the light of the associated
words, ’any attachment, distress, or execution put into force’ and thereby restricted to a sale held
through the intervention of the court thus excluding a sale effected by a secured creditor outside
the winding up and without intervention of the court.70
Similarly, in construing the word ’posting’ as it occurs in

Article 233(1) of the Constitution in association with words ’appointment’ and
’promotion’ the Supreme Court held that the word ’posting’ took its colour from the associated
words and meant “the assignment of an appointee or promotee to a position in the cadre” and not
his transfer from one station to another.71 And the word ’use’ in Entry 52 of List II occurring
sandwiched between ’consumption’ and ’sale’ was held to take colour from the associate words
and in order to attract octroi duty, to connote use of a commodity “for an indefinite period in such
a way that it came to rest finally and permanently within the municipal limits.”72
Further, in dealing with the definition of commercial establishment in

section 2(4) of the Bombay Shops and Establishments Act, 1948 , which reads
’commercial establishment means an establishment which carries on any business, trade or
profession’, the word ’profession’ was construed with the associated words ’business' and ’trade’
and it was held that a private dispensary of a doctor was not within the definition.73
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Again, in construing
Article 194(3) of the Constitution which refers to Powers, Privileges and Immunities
of a House of the Legislature of a State, the Supreme Court said 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 legislative powers but to powers of a House which are necessary for the conduct of its
business.74
And, in interpreting entry 15 of the Schedule to the U.P. Sales Tax Act, 1948, which reads ’old,
discarded, unserviceable or obsolete machinery stores or vehicles including waste products', the
expression ’old’ was construed to refer to old machinery which had become non-functional or
non-usable.75 When some articles are gouped together in an entry in the schedules of Sales Tax
and Excise statutes, each word in the entry draws colour from the other words therein on the
principle of noscitur a sociis.76 Thus in entry 16 of schedule A to the Punjab General Sales Tax
Act, 1948 which reads ’cosmetics, perfumery and toilet goods, excluding tooth paste, tooth
powder, kumkum and soap, the word ’perfumery’ was construed to mean such articles as are used
as cosmetics and toilet goods and are upon the person, and it was held that the word had no
application to dhoop and aggarbatti.77
Section 80HHC, as inserted by the

Finance Act , 1983 in the
Income-tax Act, 1961 grants a deduction from total income of 50% of the profits
earned in the business of export of goods or merchandise; but the section does not apply to (i)
’mineral oil and (ii) minerals and ores'. The word ’minerals' here was construed on the basis of
this doctrine in association with ’mineral oils' and ’ores', the three words taken together as
intended to encompass all that is extracted from earth, and on this view all minerals extracted
from the earth including ’granite’ were held to be covered, in the word ’minerals'.78
(c) Rule ofejusdem generis
When particular words pertaining to a class, category or genus are followed by general words, the
general words are construed as limited to things of the same kind as those specified.79 This rule
which is known as the rule of ejusdem generis reflects an attempt “to reconcile incompatibility
between the specific and general words in view of the other rules of interpretation that all words
in a statute are given effect if possible, that a statute is to be construed as a whole and that no
words in a statute are presumed to be superfluous”.80 The rule applies when “(1) 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 enumeration; (4) the general terms
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follow the enumeration; and (5) there is no indication of a different legislative intent”.81 If the
subjects of enumeration belong to a broad based genus as also to a narrower genus, there is no
principle that the general words should be confined to the narrower genus.82
Farwell, L.J., in applying this rule, so as to limit the phrase ’in consequence of war, disturbance or
any other cause’ to causes of the same kind as the two named instances, stated: “when there is a
clear category followed by words which are not clear, unambiguous general words, it would
violate rule of construction to strike out and render unmeaning two words which were presumably
inserted for the purpose of having some meaning”.83 Later in his judgment he said: “Now if the
words in this case had been ’in consequence of war, disturbance or any other cause whatsoever,
whether similar to those preceding or not’, there would have been no room for the argument,
because there would be no real category at all; it is universality, and not a category; it is whole
range of causes, but, inasmuch as you have simply the words ’any other cause’ which are
ambiguous, then the rule does apply”.84
The above passages from the judgment of Farwell, L.J. were quoted by Lord Evershed, M.R. in
construing the words, ’in all times of public processions, rejoicings or illuminations, and in any
case when the streets are thronged or liable to be obstructed’. It was held that the general words
’in any case’ etc. were intended to be confined to cases within the genus or category of which
public processions, rejoicings and illuminations were specific instances and they were limited to
particular or extraordinary occasions. It was pointed out that the absence of the word ’other’
before the word ’case’ was immaterial although it commonly occurs before the general words
following particular instances.85
By application of this rule the words ’any other goods' occurring in section 43 of the Customs
(Consolidation) Act, 1876 which empowered His Majesty by order in Council to prohibit the
importation of ’arms, ammunition, or gun powder or any other goods' were construed as referring
to goods similar to ’arms, ammunition or gun powder’.86
The rule was applied in construing the words ’any other process' in section 2(f)(v) of the Central
Excises and Salt Act, 1944 which defines ’manufacture’ in relation to goods in Item no. 19-I of
the Schedule to the Central Excise Tariff Act, 1985 to include ’bleaching mercerising, dyeing,
printing, water-proofing, rubberising, shrink-proofing, organdie processing or any other process—
.’ The Supreme Court held that the processes enumerated contemplate processes which import
change of a lasting character to the fabric by either the addition of some chemical into the fabric
or otherwise and ’any other process' in the section must share one or other of these incidents
which constitute manufacture in the extended sense.87
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On the same principles the Privy Council held that the words ’any other sufficient reason’
occurring in Rule 1 of Order 47,
Civil Procedure Code, 1908 , must be taken as meaning a reason sufficient on the
grounds at least analogous to those specified immediately previously,88 and similarly the phrase
’further and other relief’ occurring in section 92(1)(h) of the Code was held by the Privy Council
to mean relief of the same nature as specified in clauses (a) to (g) of the same section.89 The
words ’or otherwise invalid’, in para 15 of Schedule II to the
Code of Civil Procedure, 1908 , before enactment of the
Arbitration Act , 1940, were construed by the Privy Council as ejusdem generis to the
specific grounds of invalidity mentioned in the said para,90 but this decision has not been followed
in interpreting
section 30 of the Arbitration Act 91
, 1940, which is similarly worded. It also appears
that the words ’or otherwise’ have not been usually construed ejusdem generis.92 They are words
of wide import but the context may limit their scope.93
The introduction of the words ’whatsoever’ after the general words following particular instances
of a genus does not exclude the application of ejusdem generis principle.94 The Privy Council
construed the words ’any other person or persons whatsoever’ by this rule and restricted their
meaning to officers of similar kind as specified before these general words.95
In cases where the particular words can belong to a broad based genus it is not open to confine
them to a narrower genus so as to limit the meaning of the general words. This principle is
illustrated by the construction of
section 13B of the Industrial Employment (Standing Orders) Act, 1946 , which reads:
’Nothing in this Act shall apply to an industrial establishment in so far the workmen employed
therein are persons to whom the Fundamental and Supplementary Rules, Civil Services
(Classification Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised
Leave Rules, Civil Service Regulations, Civilians in Defence Service (Classification, Control and
Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that
may be notified in this behalf by the appropriate Government in the Official Gazette apply’. The
rules specifically mentioned in the section have a narrower genus of being applicable to
Government Servants only; they have also a broader genus of being statutory in character. In
holding that “any other rules or regulations” should refer to all statutory rules governing
workmen, the Supreme Court held that the specification of rules should not be attributed to the
narrower genus and that the broad based genus should be applied so as not to narrow the effect of
the general words.1
Ejusdem generis rule was used for construing the words ’a particular social group’ as
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occurring in the definition of ’refugee’ in Article 1A(2) of the Convention and Protocol relating to
the status of refugees which is enforced in the United Kingdom by the Asylum and Immigration
Appeals Act, 1993. ’Refugee’ as defined therein is a person who ’owing to well founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his origin and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country’. The House of Lords2 in this context
quoted with approval and applied the reasoning in the case of Acosta Re Interim Decision, 1986
decided by the United States Board of Immigration Appeals. In that case the Board observed:
“The other grounds of persecution listed in association with ’membership in a particular social
group’ are ’race’, ’religion’, ’nationality’ and ’political opinion’. Each of these grounds describes
persecution aimed at an immutable characteristic: a characteristic that either is beyond the power
of an individual to change or is so fundamental to individual identity or conscience that it ought
not be required to be changed.—Thus, the other four grounds of persecution enumerated restrict
refugee status to individuals who are either unable by their own actions, or as a matter of
conscience should not be required, to avoid persecution. Applying the doctrine of ejusdem
generis, we interpret the phrase ’persecution on account of membership in a particular social
group’ to mean persecution that is directed towards an individual who is a member of a group of
persons all of whom share a common, immutable characteristic. The shared characteristic might
be an innate one such as sex, colour or kinship ties or in some circumstances it might be a shared
past experience such as former military leadership or land ownership.”3 It was, therefore held that
women could constitute ’a particular social group’ if they were discriminated against in a country
in the matter of protection of human rights.
It is essential for application of the ejusdem generis rule that enumerated things before the general
words must constitute a category or a genus or a family which admits of a number of species or
members.4 “It is requisite” said Chandrashekhar Aiyar, J. “that there must be a distinct genus,
which must comprise more than one species;”5 and “it is clearly laid down by decided cases”, said
Subbarao, J. “that the specific words must form a distinct genus or category”.6 If the specified
things preceding general words belong to different categories, this principle of construction will
not apply.7 Further, mention of a single species does not constitute a genus.8 Thus, in the phrase ’a
salary or income’ as it finds place in section 60(2) of the Presidency Insolvency Act, 1909 the
word ’income’ has not been construed ejusdem generis for the preceding word ’salary’ signifies
only one species and does not constitute a genus.9 Similarly, the expres-sion ’discharge or
dismissal’ in item 1 of Schedule IV of Maharashtra (Recognition of Trade Unions and Prevention
of Unfair Labour Practice) Act, has not been construed by the rule of ejusdem generis to limit the
word ’discharge’ to discharge as a matter of penalty on the reasoning that the wider word
’discharge’ does not follow the more limited word ’dismissal’ and neither of them is a genus nor
species of the same very genus.10
In construing the definition of ’workmen’ in the Industrial Courts Act, 1919, which reads: ’means
any person who entered into or works under a contract with an employer whether the contract be
by way of manual labour, clerical work or otherwise—’; Viscount Simon, L.C. said: “The use of
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words ’or otherwise’ does not bring into play the ejusdem generis principle for ’manual labour’
and ’clerical work’ do not belong to a single limited genus”.11
And, said Lord Simonds in another case: “Indeed if a collection of items is heterogeneous, it
almost seems a conflict in words to say that they belong to the same genus”.12
In interpreting section 20 of the United Town Electrical

Company Act , which reads: ’the company shall be liable for water rates on all lands
and buildings owned by it in the aforesaid town, but otherwise the company shall be exempt from
taxation’; the Privy Council rejected the contention that the word ’taxation’ should be construed
ejusdem generis with ’water rate’; Lord Thankerton said: “There is no room for the application of
the principle of ejusdem generis in the absence of any mention of a genus, since the mention of a
single species for example of water rates does not constitute a genus”.13
In construing section 33 of the Barrow-in-Furness Corporation Extension Act, 1872, which

provided: “No theatre or other place of public entertainment (other than such places of
entertainment as are now subject to the provisions of the Barrow-in-Furness Corporation Act,
1868, section 164, and which last mentioned places are to continue subject to the provisions of
that Act) shall be opened or used unless the same shall first have been licensed—”; Asquith, J.,
rejected the contention that ’other place of public entertainment’ should be read as subject to
ejusdem generis rule and gave three reasons in support of his conclusion which may usefully be
quoted: “(a) Words excepting a species from a genus are meaningless unless the species in
question prima facie falls within the genus. ’All hats other than top hats' makes sense. ’All top
hats other than bowler hats' does not. Equally little does ’All top hats and other articles except
gloves', if other articles' are to be read as ejusdem generis with ’top hats'. Here the ’places'
covered by section 164 of the 1868 Act —the places excepted—do not fall within the assumed
genus ’theatre or other’ similar ’place of public entertainment’ although there may be an overlap
between the two. (b) No case was cited to us in which a genus has been held to be constituted, not
by the enumeration of a number of classes followed by the words ’or other’, but by the mention of
a single class (in this case ’theatre’) followed by those words. (c) The tendency of more modern
authorities is to attenuate the application of the ejusdem generis rule.”14
Section 49(3) of the Electricity Supply Act, 1948 empowers the Electricity Board ’to
fix different tariffs for the supply of electricity to any person—having regard to the geographical
position of any area, the nature of the supply and purpose for which the supply is required and any
other relevant factors.’ In construing this section the Supreme Court declined to apply the rule of
ejusdem generis for limiting the ambit of ’other relevant factors' on the ground that there was no
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genus of the relevant factors.15 The enumerated factors viz. geographical position of the area and
the nature and purpose of the supply could not be related to any common genus to enable the
application of the ejusdem generis rule.
In construing the words ’a claim of set-off or other proceeding to enforce a right arising from
contract’, occurring in
section 69 of the Indian Partnership Act, 1932 , the Supreme Court refused to limit
the generality of ’other proceeding’ and to apply the ejusdem generis rule as the preceding phrase
’a claim of set-off’, did not constitute a genus or category.16 In that case, Hidayatullah, J., in
explaining the principle that the rule cannot be applied unless there be “a genus constituted or a
category disclosed”, gave the following illustration: “In the expression ’books, pamphlets,
newspapers and other documents', 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 from newspaper.”17
If the preceding words do not constitute mere specifications of a genus but constitute description
of a complete genus, the rule has no application. In a policy of insurance, the insurers were given
an option to terminate the policy if they so desired ’by reason of such change or from any other
cause whatever’; the words ’by reason of such change’ in the context referred to any and every act
done to the insured property whereby the risk of fire was increased; the Privy Council in these
circumstances refused to construe the words ’or from any other cause whatever’ by the rule of
ejusdem generis. Lord Watson said: “In the present case, there appears no room for its
application. The antecedent clause does not contain a mere specification of particulars but the
description of a complete genus”. It was held that the insurers could terminate the policy at will.18
Similarly, if the preceding words and the general words in question constitute description of two
categories or genera or the general words in question in themselves constitute description of a
distinct category, the rule will have no application. In construing the words ’for the purpose of a
State or any other public purpose’ in section 6(4)(a), of the Bombay Land Requisition Act, 1948,
the Supreme Court declined to apply the rule of ejusdem generis for the construction of the words
’or any other public purpose’ and pointed out by referring to the legislative entries in the lists that
’State purpose’ and ’any other public purpose’ were in themselves two distinct categories.19
The rule of ejusdem generis has to be applied with care and caution. It is not an inviolable rule of
law, but it is only permissible inference in the absence of an indication to the contrary,20 and
where context and the object and mischief of the enactment do not require restricted meaning to
be attached to words of general import, it becomes the duty of the courts to give those words their
plain and ordinary meaning.21 As stated by Lord Scarman: “If the legislative purpose of a statute
is such that a statutory series should be read ejusdem generis, so be it, the rule is helpful. But, if it
is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many
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other rules of statutory interpretation, is a useful servant but a bad master.”22 So a narrow
construction on the basis of ejusdem generis rule may have to give way to a broader construction
to give effect to the intention of Parliament by adopting a purposive construction.23 In
interpreting, section 1 of the Sunday Observance Act, 1780, which reads—’any house, room or
other place which shall be opened or used for public entertainment on any part of Lords Day—
shall be deemed a disorderly house’, the Court of Queens Bench Division rejected the argument
that the word ’place’ should be construed ejudem generis with the preceding words ’house’ and
’room’. It was held that looking to the mischief aimed at, the intention of Parliament in the use of
the word ’place’ was deliberate to give it a wider meaning than the words ’house’ and ’room’.24
This case may be compared with a decision of the House of Lords where the words ’other place’
were construed ejusdem generis in the phrase ’house, office, room or other place’.25 The
conflicting results illustrate the principle that the rule of ejusdem generis like many other rules is
merely a canon of construction which gives way to the clear intention of the Legislature.
It may also be noticed that the rule of ejusdem generis has, it appears, no inverse application.
General words preceding the enumeration of specific instances are not governed by this rule and
their import cannot be limited by any such principle.26 At any rate, when the Legislature before
enumerating specific examples uses the words ’without prejudice to the generality of the
foregoing provision’ the preceding general provision cannot be restricted by applying the rule of
ejusdem generis.27
A word of caution is here necessary. The fact that the ejusdem generis rule is not applicable does
not necessarily mean that the prima facie wide meaning of the word ’other’ or similar general
words cannot be restricted if the language or the context and the policy of the Act demand a
restricted construction.28 In the expression ’defect of jurisdiction or other cause of a like nature’ as
they occur in
section 14(1) of the Limitation Act the generality of the words ’other cause’ is cut
down expressly by the words ’of a like nature’, though the rule of ejusdem generis is strictly not
applicable as mention of a single species ’defect of jurisdiction’ does not constitute a genus.29
Another example that may here be mentioned is
section 129 of the Motor Vehicles Act which empowers any police officer authorised
in this behalf or other person authorised in this behalf by the State Government’ to detain and
seize vehicles used without certification of registration or permit. The words ’other person’ in this
section cannot be construed by the rule of ejusdem generis for mention of single species namely
’police officer’ does not constitute a genus but having regard to the importance of the power to
detain and seize vehicles it is proper to infer that the words ’other person’ were restricted to the
category of Government Officers.30 In the same category falls the case interpreting the words
’before filing a written statement or taking any other steps in the proceedings’ as they occur in
section 34 of the Arbitration Act , 1940. In the context in which the expression ’any
other steps' finds place it has been rightly construed to mean a step clearly and unambiguously
manifesting an intention to waive the benefit of arbitration agreement, although the rule of
ejusdem generis has no application for mention of a single species viz. written statement does not
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constitute a genus.31
(d) Words of Rank
As an outcome of the rule of ejusdem generis, there is another rule that statutes which deal 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.32 Thus, it has been held that a duty imposed
on ’copper, brass, pewter, and tin and all other metals not enumerated’ did not cover silver or
gold, these being of a superior kind to the particular metals enumerated.33
(e)Reddendo Singula Singulis
The rule may be stated from an Irish case in the following words: “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 to 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”.34 Thus, ’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,35 and in the
sentence: ’If any one shall draw or load any sword or gun’ the word ’draw’ is applied to ’sword’
only and the word ’load’ to ’gun’ only, because it is impossible to load a sword or draw a gun.36
An example of the application of the rule is furnished in the construction of section 59(1) of the
Local Government Act, 1933, which reads: ’A person shall be disqualified for being elected or
being a member of a local authority if he has within five years before the day of election or since
his election been convicted of any offence and ordered to be imprisoned for a period of not less
than three months without the option of fine’. Clauson, J. construing the section said: “The section
provides for two matters: first what is to be disqualification for election? and, secondly what is to
be disqualification for being a member after election? and it provides for two disqualifications:
first, conviction within five years before the day of election; and secondly, conviction since
election. It is obvious that the second disqualification mentioned does not fit the first case
mentioned, namely that of election, but does fit the second case, and the second case only. It is
also obvious that the first disqualification mentioned fits the first case, and it does not seem at all
apt to fit the second case.” And, after referring to certain strange results, if the first
disqualification, were applied to the second case, he proceeded on to say: “All difficulty can be
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avoided by applying the well-known method of construction commonly known as reddendo

singula singulis; and applying the first disqualification mentioned to first case dealt with, and the
second disqualification to the second case dealt with—”. It was, therefore, held that a conviction
prior to election although a disqualification for the election was not a disqualification for
continuing to be a member and if the election was not challenged by election petition within the
time limited therefor, the member did not vacate his seat.37
Another example of the application of the rule is found 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.38
77 “Law has reached its finest moments when it has freed man from unlimited discretion”: United States v. Wunderlish,
United States v. Wunderlish, 342 U.S. 98; Shiv Sagar Tiwari v. Union of India, Shiv Sagar Tiwari v. Union of
India,
AIR 1997 SC 2725 [
LNIND 1996 SC 1873 ], p. 2726 :
(1997) 1 SCC 444 [
LNIND 1996 SC 1873 ]. “In a system based on the rule of law, unfettered governmental
discretion is a contradiction in terms”: WADE, Administrative Law (5th edn.) pp. 355, 356 quoted in Town Hamlets London
Borough Council v. Chitnik Developments Ltd., Town Hamlets London Borough Council v. Chitnik Developments
Ltd.,
(1988) 1 All ER 961 , p. 966 (HL); Bharat Heavy Electricals Ltd. v. M. Chandrashekhar Reddy,
Bharat Heavy Electricals Ltd. v. M. Chandrashekhar Reddy,
2005 (2) SCC 481 [
LNIND 2005 SC 83 ], p. 486 (para 14) (No authority, be it administrative or judicial has any
power to exercise the discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and
reasons thereof).
78 Pierson v. Secretary of State for the Home Department, Pierson v. Secretary of State
for the Home Department,
(1997) 3 All ER 577 , pp. 604, 607 (HL). See further text and note 20, p. 464.
79 Terminology used by D.J. GALLIGAN, quoted in (1999) 115 LQR 119. See further M.I. Builders Pvt. Ltd. v.
Radhey Shyam Sahu, M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu,
AIR 1999 SC 2468 [
LNIND 1999 SC 612 ], pp. 2501, 2502 :
(1999) 9 SCC 182 (Judicial review promotes ’good governance’).
N.B. 1. For conflicting views concerning the foundation of judicial review in English Law see: PAUL
CRAIG, ’ Competing Models of Judicial Review’, (1999(Public Law 428; JEFFREY JOWELL, ’ Of vires and Vacuums : The
Constitutional Context of Judicial Review’, (1999) Public Law 448. For expansion of judicial review in England see JOHN LEWIS,
’ Is the High Court the Guardian of Fundamental Constitutional Rights’, (1993) Public Law 59. For criticism of this article see
J.A.G. GRIFFITH, ’The Brave New World of Sir John Lewis’, (2000) 63 Modern Law Review, 159.
N.B. 2. The real function of the court in judicial review is declaration and enforcement of law and not
simply removal of administrative injustice as distinguished from legality: Attorney General (NSW) v. Quin,
Mr.Srikanth -
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Attorney General (NSW) v. Quin,

(1990) 170 CLR 1 , pp. 35, 36; Minister for Immigration and Multi-cultural Affairs v. Yusuf,
Minister for Immigration and Multi-cultural Affairs v. Yusuf, (2001) 75 ALJR 1105, p. 1118.
80 For administrative power see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp.,
Associated Provincial Picture Houses Ltd. v. Wednesbury Corp.,
(1947) 2 All ER 680 :
(1948) 1 KB 223 (CA); Padfield v. Minister of Agriculture, Fisheries and Food,
Padfield v. Minister of Agriculture, Fisheries and Food,
(1968) 1 All ER 694 :
1968 AC 997 (HL); Secretary of State for Education and Science v. Metropolitan Borough of
Tameside, Secretary of State for Education and Science v. Metropolitan Borough of Tameside,
(1976) 3 All ER 665 (CA), 679 (HL); United Kingdom Association of Professional Engineers v.
Advisory Conciliation and Arbitrary Service, United Kingdom Association of Professional Engineers v. Advisory
Conciliation and Arbitrary Service,
(1980) 1 All ER 612 , p. 620 :
1981 AC 424 :
(1980) 2 WLR 254 (HL); Bombay London Borough Council v. Greater London Council,
Bombay London Borough Council v. Greater London Council,
(1982) 1 All ER 129 (CA), 153 (HL); Holgate Mohammed v. Duke, Holgate
Mohammed v. Duke,
(1984) 1 All ER 1054 , p. 1057(HL) (Power to arrest on reasonable grounds can be questioned on
these grounds); C.C.S.U. v. Minister for Civil Services, C.C.S.U. v. Minister for Civil Services,
(1984) 3 All ER 935 , pp. 950, 951 (HL). (Grounds of challenge are illegality, irrationality and
procedural impropriety); Puhlhofer v. Hillingdon London Borough Council, Puhlhofer v. Hillingdon London
Borough Council,
(1986) 1 All ER 467 , p. 474 (HL); Westminster City Council v. Greater London Council,
Westminster City Council v. Greater London Council,
(1986) 1 All ER 278 , p. 295 (HL); Singh v. Immigration Appeal Tribunal,
Singh v. Immigration Appeal Tribunal,
(1986) 2 All ER 721 , p. 728 (HL); Nottinghamshire County Council v. Secretary of State for the
Environment, Nottinghamshire County Council v. Secretary of State for the Environment,
(1986) 1 All ER 199 (HL) (grounds of challenge to an order requiring approval of House of
Commons); Hammersmith and Fulham London Borough Council v. Secretary of State for the Environment,
Hammersmith and Fulham London Borough Council v. Secretary of State for the Environment,
(1990) 3 All ER 589 , pp. 636, 637 (HL) (order requiring approval of House of Common in
matters of economic policy; ground of challenge of irrationality is very much nar rowed down); Tower Hamlets London Borough
Council v. Chetnik Developments Ltd., Tower Hamlets London Borough Council v. Chetnik Developments Ltd.,
(1988) 1 All ER 961 , p. 966 (HL) (no unfettered discretion); Brunyate v. Inner London
Education Society, Brunyate v. Inner London Education Society,
(1989) 2 All ER 417 (HL) (Governors of a school who were to function independently of the
authority appointing them could not be removed by the authority on the ground of non-compliance of its wishes though power of
removal conferred in wide terms); Lonrho Plc. v. Secretary of State for Trade and Industry, Lonrho Plc. v.
Secretary of State for Trade and Industry,
(1989) 2 All ER 609 (HL) (Discretion conferred by
section 437(3) of the Companies Act to publish report of inspectors relating to affairs of a company to be exercised
on Wednesbury principles); Doody v. Secretary of State for the Home Department, Doody v. Secretary of State for
(1993) 3 All ER 92 , p. 107 (HL); R. v. Secretary of State for Home Department, Exparte
Launder, R. v. Secretary of State for Home Department, Exparte Launder,
(1997) 3 ALL ER 961 , p. 976 (HL) (judicial review in extradiction cases); R. v. Lord
Chancellor, R. v. Lord Chancellor,
(1996) 4 All ER 751 (QBD), p. 759 (judicial review of Lord Chancellor's discretion in the matter
of deployment of judges); R. v. Chief Constable of Sussex, R. v. Chief Constable of Sussex,
(1999) 1 All ER 129 (HL) (Judicial review of the discretion exercised by the Chief Constable in
deploying the police force to prevent obstruction to lawful movement of goods by demonstrators); Parter v. Magill,
Parter v. Magill, (2002) 1 All ER (HL) (A local Authority has to act in public interest and not for promoting the electoral prospect
of a party represented on the council).
Rohtas Industries Ltd. v. S.D. Agarwal, Rohtas Industries Ltd. v. S.D. Agarwal,
AIR 1969 SC 707 [
LNIND 1968 SC 428 ]:
(1969) 1 SCC 325 [
LNIND 1968 SC 428 ]; Khudiram Das v. State of West Bengal, Khudiram Das
Mr.Srikanth -
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v. State of West Bengal,

AIR 1975 SC 550 [
LNIND 1974 SC 386 ], pp. 557, 558 :
1975 SCC (Cri) 435 [
LNIND 1974 SC 386 ] :
(1975) 2 SCC 81 [
LNIND 1974 SC 386 ]; Hukumchand Shyamlal v. Union of India, Hukumchand
Shyamlal v. Union of India,
AIR 1976 SC 789 [
LNIND 1975 SC 519 ], p. 794 :
(1976) 2 SCC 128 [
LNIND 1975 SC 519 ]; Narayan Govind Gavate v. State of Maharashtra,
Narayan Govind Gavate v. State of Maharashtra,
AIR 1977 SC 183 [
LNIND 1976 SC 364 ], p. 192 :
1977 SCC (Cri) 49 [
LNIND 1976 SC 364 ] :
(1977) 1 SCC 183 ; Indian Express Newspapers v. Union of India, Indian
Express Newspapers v. Union of India,
(1985) 1 SCC 641 [
LNIND 1984 SC 337 ], pp. 691, 692, 693 :
AIR 1986 SC 515 [
LNIND 1984 SC 337 ]; Express Newspapers v. Union of India, Express
Newspapers v. Union of India,
(1986) 1 SCC 133 [
LNIND 1985 SC 321 ], pp. 218 to 220 :
AIR 1986 SC 872 [
LNIND 1985 SC 321 ]. State of U.P. v. Maharaja Dharamander Prasad Singh,
State of U.P. v. Maharaja Dharamander Prasad Singh,
AIR 1989 SC 997 [
LNIND 1989 SC 680 ], p. 1009 :
(1989) 2 SCC 305 ; Neelima Misra v. Harinder Kaur Paintal (Dr.), Neelima
Misra v. Harinder Kaur Paintal (Dr.),
AIR 1990 SC 1402 [
LNIND 1990 SC 173 ], p. 1411 :
(1990) 2 SCC 746 [
LNIND 1990 SC 173 ]. State of Haryana v. Bhajanlal, State of Haryana v.
Bhajanlal,
AIR 1992 SC 604 , pp. 618-20 : 1992 Supp (1) SCC 335 (Statutory power to investigate
cognizable offences is not immune from judicial review); Sarojini Ramaswamy v. Union of India, Sarojini
Ramaswamy v. Union of India,
AIR 1992 SC 2219 , pp. 2248-58 :
(1992) 4 SCC 506 (Impeachment of a Judge by Parliament is open to judicial review); Harpal
Singh Chauhan v. State of U.P., Harpal Singh Chauhan v. State of U.P.,
AIR 1993 SC 2436 [
LNIND 1993 SC 487 ], p. 2441 :
1993 (3) SCC 552 [
LNIND 1993 SC 487 ] (It is settled that even the exercise of power vested in subjective terms is
open to judicial review); Mansukhlal Vithaldas Chauhan v. State of Gujarat, Mansukhlal Vithaldas Chauhan v.
State of Gujarat,
AIR 1997 SC 3400 [
LNIND 1997 SC 1158 ]:
1997 (7) SCC 622 [
LNIND 1997 SC 1158 ] (judicial review in matters of grant of sanction to prosecute); S.R.
Bommai v. Union of India, S.R. Bommai v. Union of India,
AIR 1994 SC 1918 : (1994) 1 SCC 754 (Limited judicial review of President's order under
Article 356see on this point, pp. 743-44, infra. Sarojini Ramaswamy and Bommai cases show that Parliament's approval does not
Mr.Srikanth -
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confer immunity from judicial review); Naga People's Movement of Human Rights v. Union of India, Naga
People's Movement of Human Rights v. Union of India,
AIR 1998 SC 431 [
LNIND 1997 SC 1511 ], p. 461 :
(1998) 2 SCC 109 [
LNIND 1997 SC 1511 ] (Bommai principle applied to an order declaring an area disturbed area);
A.K. Kaul v. Union of India, A.K. Kaul v. Union of India,
AIR 1995 SC 1403 [
LNIND 1995 SC 533 ]:
(1995) 4 SCC 731 “Bommai principle applied to an order of dismissal under Article 311(2)
Proviso (c)”; Peerless General Finance and Investment Co. Ltd v. Reserve Bank of India, Peerless General
Finance and Investment Co. Ltd v. Reserve Bank of India,
AIR 1992 SC 1033 [
LNIND 1992 SC 104 ], p. 1051 :
(1992) 2 SCC 343 [
LNIND 1992 SC 104 ] (In matters of economic policy judicial review is restrained); Special
Reference No. 1 of 1998 under
Article 143(1) of the constitution of India AIR
1999 SC 1 :
(1998) 7 SCC 739 [
LNIND 1998 SC 1278 ] (judicial review in the matter of appointment and transfer of judges);
Secretary Indian Tea Association v. Ajit Kumar Bareit, Secretary Indian Tea Association v. Ajit Kumar Bareit,
AIR 2000 SC 915 [
LNIND 2000 SC 298 ]:
(2000) 3 SCC 93 [
LNIND 2000 SC 298 ]. (Judicial review in matters of orders of Government under
section 10 of the Industrial Disputes Act, 1947 ).
Air India Ltd. v. Cochin International Airport Ltd., Air India Ltd. v. Cochin
International Airport Ltd.,
AIR 2000 SC 801 , p. 804 :
(2000) 2 SCC 617 (judicial review in the matter of award of contracts) :
(2000) 2 SCC 617 ; Master Marine Services Pvt. Ltd. v. Metcalfe&Hodkinson Pvt. Ltd.,
Master Marine Services Pvt. Ltd. v. Metcalfe&Hodkinson Pvt. Ltd.,
AIR (2005) SC 2299 [
LNIND 2005 SC 389 ](judicial review in award of contract); Directorate of Education v.
Educomp Datamatics Ltd., Directorate of Education v. Educomp Datamatics Ltd.,
AIR 2004 SC 1962 [
LNIND 2004 SC 304 ]:
(2004) 4 SCC 19 [
LNIND 2004 SC 304 ] (Judicial review of terms of tender notice inviting tenders for grant of
contract); Association of Registration Plates v. Union of India, Association of Registration Plates v. Union of
India,
(2005) 1 SCC 679 [
LNIND 2004 SC 1189 ] (Judicial review of tender notice for supply of high security registration
plates requiring foreign collaboration and experience in the field).
Orix Auto Finance (India) Ltd. v. Jagmander Singh, Orix Auto Finance (India) Ltd.
v. Jagmander Singh,
(2006) 2 SCC 598 [
LNIND 2006 SC 89 ] :
(2006) 1 KLT 814 [
LNIND 2006 SC 89 ] :
(2006) 127 DLT 278 (No judicial review of Hire Purchase agreement conferring right on
Financier to take possession of the vehicle unless terms unconscionable and opposed to public policy); Noble Resources Ltd. v.
State of Orissa, Noble Resources Ltd. v. State of Orissa,
AIR 2007 SC 119 [
LNIND 2006 SC 723 ](paras 20 to 30) :
Mr.Srikanth -
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(2006) 10 SCC 236 [

LNIND 2006 SC 723 ] (judicial review in contractual matters); State of Karnataka v. All India
Manufacturers Organisation, State of Karnataka v. All India Manufacturers Organisation,
(2006) 4 SCC 683 [
LNIND 2006 SC 286 ], pp. 706, 707 :
AIR 2006 SC 1846 [
LNIND 2006 SC 286 ](Even in exercise of contractual rights the Government or the State as
defined in Article 12 has to act reasonably and without arbitrariness); Ramchandra Murarilal Bhattad v. State of Maharashta,
Ramchandra Murarilal Bhattad v. State of Maharashta,
(2007) 3 SCC 588 (paras 55, 59) :
AIR 2007 SC 401 [
LNIND 2006 SC 1085 ](Rejection of all bids as a result of change in policy, no reasons for
rejection of bids required to be assigned).
Secunderabad Cantonment Board v. Mohammad Mohiuddin, Secunderabad

Cantonment Board v. Mohammad Mohiuddin,
AIR 2004 SC 784 [
LNIND 2003 SC 1039 ], pp. 792, 793 (the Role of principle of res judicata in public law is
restricted); P.M. Bhargava v. University Grants Commission, P.M. Bhargava v. University Grants Commission,
(2004) 6 SCC 661 [
LNIND 2004 SC 602 ] :
AIR 2004 SC 3478 [
LNIND 2004 SC 602 ](Academic matters, e.g. curriculum/syllabi fall outside judicial review);
Essar Oil Ltd. v. Halar Utkarshsamiti, Essar Oil Ltd. v. Halar Utkarshsamiti,
(2004) 2 SCC 392 [
LNIND 2004 SC 75 ], pp. 407, 409 :
AIR 2004 SC 1834 [
LNIND 2004 SC 75 ](judicial review of order passed under section 29 of the Wild Life
Prosecution Act, 1972 permitting laying of pipelines for carrying crude oil through the Marine National Park and Sanctuary); State
of U.P. v. Johrimal, State of U.P. v. Johrimal,
(2004) 4 SCC 714 , pp. 730, 731 :
AIR 2004 SC 3800 (Scope of judicial review in the matter of appointment of public prosecutor
and district counsel); Union of India v. S.B. Vohra, Union of India v. S.B. Vohra,
(2004) 2 SCC 150 [
LNIND 2004 SC 19 ] (judicial review in regusal by the Union of India or the State to accord
approval to the salaries recommended by the Chief Justice for High Court staff); Peoples Union for Civil Liberties v. Union of
India, Peoples Union for Civil Liberties v. Union of India,
AIR 2004 SC 1442 [
LNIND 2004 SC 1473 ]:
(2004) 2 SCC 476 (judicial review of order regarding non-disclosure of report of Atomic
Energy Regulatory Board); M.P. Special Police Establishment v. State of M.P., M.P. Special Police Establishment
v. State of M.P.,
(2004) 8 SCC 788 [
LNIND 2004 SC 1133 ], pp. 805, 806 (If refusal to grant sanction to prosecute is based on non-
consideration of relevant facts and irrational, the Governor can grant sanction) Badrinath v. Government of Tamil Nadu,
Badrinath v. Government of Tamil Nadu,
AIR 2000 SC 3243 [
LNIND 2000 SC 1324 ], pp. 3253, 3257 (Judicial Review in matters of promotion of civil
servants); Ugar Sugar Works Ltd. v. Delhi Administration, Ugar Sugar Works Ltd. v. Delhi Administration,
AIR 2001 SC 80 [
LNIND 2000 SC 1367 ], pp. 90, 91 (Judicial review in matters of award of Contract); Ugar
Sugar Works Ltd. v. Delhi Administration, Ugar Sugar Works Ltd. v. Delhi Administration,
AIR 2001 SC 1447 [
LNIND 2001 SC 763 ], p. 1458 :
(2001) 3 SCC 635 [
LNIND 2001 SC 763 ] (judicial review in matters of liquor policy); Union of India v. Harjeet
Singh Sandhu, Union of India v. Harjeet Singh Sandhu,
AIR 2001 SC 1772 [
Mr.Srikanth -
Page 41 of 103
LNIND 2001 SC 947 ], p. 1788 (judicial review of orders under

section 19 of the Army Act read with Rule 14); N.R. Nair v. Union of India, N.R. Nair v. Union of
India,
AIR 2001 SC 2337 [
LNIND 2001 SC 1129 ]:
(2001) 6 SCC 84 [
LNIND 2001 SC 1129 ] (judicial review in respect of orders under
section 22 of the Prevention of Cruelty to Animals Act ); R.K. Garg v. Union of India, R.K. Garg
v. Union of India,
(1981) 4 SCC 676 , pp. 690, 691, 706 :
AIR 1981 SC 2138 [
LNIND 1981 SC 434 ](judicial review in matters of economic policy; no interference unless
legislative judgment appears to be palpably arbitrary); Bhavesh D. Parish v. Union of India, Bhavesh D. Parish v.
Union of India,
(2000) 5 SCC 471 [
LNIND 2000 SC 906 ], p. 486 :
AIR 2000 SC 2047 [
LNIND 2000 SC 906 ](Interference in economic legislation only when the view reflected in it is
not possible at all; Balco Employees Union Vv. Union of India, Balco Employees Union Vv. Union of India,
AIR 2002 SC 350 , p. 381 :
(2002) 2 SCC 333 (Policy decisions in economic matters, e.g., disinvestment in public sector
undertaking are not ordinarily open to judicial review unless contrary to
constitution or any statute); Federation of Railway Officers Association v. Union of india,
Federation of Railway Officers Association v. Union of india,
(2003) 4 SCC 289 [
LNIND 2003 SC 338 ], p. 299 :
AIR 2003 SC 1843 [
LNIND 2003 SC 251 ](on matters affecting policy and requiring technical expertise judicial
review is of limited scope); Indian Railway Construction Co. Ltd. v. Ajay Kumar, Indian Railway Construction Co.
Ltd. v. Ajay Kumar,
(2003) 4 SCC 579 [
LNIND 2003 SC 251 ] :
AIR 2003 SC 1843 [
LNIND 2003 SC 251 ](Judicial Review of an order dispensing enquiry under AIR 311(2); State
Financial Corporation v. Jagadamba Oil Mills, State Financial Corporation v. Jagadamba Oil Mills,
AIR 2002 SC 834 [
LNIND 2002 SC 73 ](Judicial review of the discretion of the corporation to make recovery from
the debtor); Rayalseema Paper Mills Ltd. v. Govt. of A.P., Rayalseema Paper Mills Ltd. v. Govt. of A.P.,
AIR 2002 SC 3699 [
LNIND 2002 SC 661 ], p. 3704 :
(2003) 1 SCC 341 [
LNIND 2002 SC 661 ] (Judicial review in price fixation). Onkar Lal Bajaj v. Govt. of A.P.,
Onkar Lal Bajaj v. Govt. of A.P.,
AIR 2003 SC 252 (Judicial review against en masse cancellation of allotments of petrol pumps,
LPG gas agencies and Kerosene agencies when controversy related to only 5 to 10% of the allotments, i.e., nearly 413 allotments);
Mukund Swarup Misra v. Union of India, Mukund Swarup Misra v. Union of India,
(2007) 2 SCC 536 [
LNIND 2007 SC 40 ] :
(2007) 3 JT 200 ; (Onkar Lal Bajaj case explained); Union of India v. Shivendra Bikram Singh,
Union of India v. Shivendra Bikram Singh,
AIR 2003 SC 2481 , p. 2491 :
(2003) 6 SCC 359 [
LNIND 2003 SC 1252 ] (judicial review in matters of Court Martial proceedings); Union of India
v. Ex Fl. U.G.S. Bajwa, Union of India v. Ex Fl. U.G.S. Bajwa,
AIR 2004 SC 808 [
LNIND 2003 SC 500 ]:
(2003) 9 SCC 630 [
Mr.Srikanth -
Page 42 of 103
LNIND 2003 SC 500 ] (judicial review of court martial proceedings); Binny Ltd. v. Sadasivan,
Binny Ltd. v. Sadasivan,
(2005) 6 SCC 657 [
LNIND 2005 SC 597 ] (Principles of public policy/judicial review cannot be applied in the
employment of workers by private bodies unless a public law element is involved and writ petition by workers is not maintainable);
Directorate of Film Festivals v. Gaurav Ashwin Jain, Directorate of Film Festivals v. Gaurav Ashwin Jain,
(2007) 4 SCC 737 [
LNIND 2007 SC 460 ] (paras 16, 22, 23) :
AIR 2007 SC 290 [
LNIND 2006 SC 959 ](Scope of judicial review in policy matters. Illegality in one case does not
entitle another peson to obtain a similar order on the ground of Article 14).
For judicial review in the matter of Construction of big dams see : Tehri Bandh Virodhi Sangarh Samiti v. State of
U.P., Tehri Bandh Virodhi Sangarh Samiti v. State of U.P., (1990) 4 JT (SC) 519 : 1992(1) SCC 44; Narmada
Bachao Andolan v. Union of India, Narmada Bachao Andolan v. Union of India,
AIR 2000 SC 3751 [
LNIND 2000 SC 1361 ]; N.D. Jayal v. Union of India, N.D. Jayal v. Union of
India,
AIR 2004 SC 867 [
LNIND 2003 SC 1171 ]:
(2004) 9 SCC 362 [
LNIND 2003 SC 1171 ]. For judicial review of development providing right to shelter in the
context of conservation of natural resources see Intellectual Forum Tirupathi v. State of A.P., Intellectual
Forum Tirupathi v. State of A.P.,
(2006) 3 SCC 549 [
LNIND 2006 SC 119 ] :
AIR 2006 SC 1350 [
LNIND 2006 SC 119 ]. For town planning and environment protection in the case of release of
land of sick industries for development and considerations in judicial review, see Bombay Dyeing Mfg. Co. Ltd. v. Bombay
Environmental Group, Bombay Dyeing Mfg. Co. Ltd. v. Bombay Environmental Group,
(2006) 3 SCC 434 [
LNIND 2006 SC 164 ] (para 197) :
(2006) 2 SLT 65 . For issue of mandamus to demolish unauthorized construction as not justified
when Corporation has discretion to regularise or demolish it, see Muni Servrat Swami Jain S.M.P. Sangh v. Arun Nathuram
Gaikwad, Muni Servrat Swami Jain S.M.P. Sangh v. Arun Nathuram Gaikwad,
(2006) 8 SCC 590 [
LNIND 2006 SC 808 ], p. 610 (para 53) :
AIR 2007 SC 38 [
LNIND 2006 SC 808 ]. For grounds of judicial review and extent of deference to the authority's
views exercising discretion, see Rameshwar Prasad (vi) v. Union of India, Rameshwar Prasad (vi) v. Union of
India,
(2006) 2 SCC 1 (paras 240, 241) :
AIR 2006 SC 980 ; Jayarajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel,
Jayarajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel,
(2006) 8 SCC 200 [
LNIND 2006 SC 704 ] (paras 13 to 19). For judicial review in the matter of fixation of price of
coal by Nationalised Companies or Government in the context of
Article 39(b) of the Constitution , see Ashoka Smokeless Coal India (P.) Ltd. v. Union of India,
Ashoka Smokeless Coal India (P.) Ltd. v. Union of India,
(2007) 2 SCC 640 [
LNIND 2006 SC 1074 ] (paras 110 to 114) :
(2007) 1 JT 125 .
For example, power conferred for requisitioning property cannot be validly exercised for acquiring property in the
garb of requisition, H.D. Vora v. State of Maharashtra, H.D. Vora v. State of Maharashtra,
(1984) 2 SCC 337 [
LNIND 1984 SC 52 ] :
AIR 1984 SC 886 ; power of acquisition cannot be exercised for an ulterior purpose of
Mr.Srikanth -
Page 43 of 103
preventing construction of a cinema house, Collector, Allahabad v. Raja Ram Jaiswal, Collector, Allahabad v.
Raja Ram Jaiswal,
(1985) 3 SCC 1 [
LNIND 1985 SC 155 ], pp. 19-21 :
AIR 1985 SC 1622 [
LNIND 1985 SC 155 ] or for denying renewal of a lease, State of U.P. v. Lalji Tandon,
State of U.P. v. Lalji Tandon,
(2004) 1 SCC 1 [
LNIND 2003 SC 959 ], p. 12 :
AIR 2004 SC 32 [
LNIND 2003 SC 936 ], p. 38; and acquisition for public purpose cannot be made to provide
houses for those who are already in possession of houses, Srinivasa Co-op. House Building Society Limited v. Madan Gurumurthy
Sastry, Srinivasa Co-op. House Building Society Limited v. Madan Gurumurthy Sastry,
JT 1994(4) SC 197 [
LNIND 1994 SC 466 ], p. 205 :
1994 (4) SCC 675 [
LNIND 1994 SC 466 ]. Acquisition for the public purpose of setting up of a new town cannot be
directly made under the
Land Acquisition Act, 1894 , ignoring the comprehensive and mandatory provisions of a town planning legislation,
e.g., the Punjab Regional and Town Planning and Development Act, 1995: State of Punjab v. Sanjeet Singh, State
of Punjab v. Sanjeet Singh,
(2007) 6 SCC 292 [
LNIND 2007 SC 827 ].
For the nature of irrationality, perversity or unreasonableness in administrative law, seeR. v. Chief Constable of
Sussex,
(1999) 1 All ER 129 , p. 157 (HL) (The simple test of unreasonableness applied by House of
Lords is whether the decision in question was one which a reasonable authority could reach or conversely whether the conduct
complained of is one which no sensible authority acting with due appreciation of responsibilities would have decided to adopt.);
G.B. Mahajan v. Jalgaon Municipal Council, G.B. Mahajan v. Jalgaon Municipal Council,
AIR 1991 SC 1153 [
LNIND 1990 SC 532 ], pp. 1163-66 :
(1991) 3 SCC 91 [
LNIND 1990 SC 532 ]; U.P. Finaicial Corporation AIRSC Gem Cap (India) Pvt. Ltd.,
U.P. Finaicial Corporation AIRSC Gem Cap (India) Pvt. Ltd.,
AIR 1993 SC 1435 [
LNIND 1993 SC 179 ], p. 1439 :
(1993) 2 SCC 299 [
LNIND 1993 SC 179 ]; Union of India v. G. Ganyutham, Union of India v. G.
Ganyutham,
AIR 1997 SC 3387 [
LNIND 1997 SC 1123 ], p. 3391 :
1997 (7) SCC 463 [
LNIND 1997 SC 1123 ] (Briefly stated it means that the decision is so outrageous that no
reasonable person could have arrived at); State of NCT Delhi v. Sanjiv alias Bittoo, State of NCT Delhi v. Sanjiv
alias Bittoo,
(2005) 5 SCC 181 [
LNIND 2005 SC 332 ] (Judicial Review in general; nature of ’unreasonableness’ or
’irrationality’: case concerning externment order); M.I. Builders Ltd. v. Radhey Shyam Sahu, M.I. Builders Ltd. v.
Radhey Shyam Sahu,
AIR 1999 SC 2468 [
LNIND 1999 SC 612 ], pp. 2500, 2501 :
1999 (6) SCC 464 [
LNIND 1999 SC 612 ]; Kruger v. Commonwealth, Kruger v. Commonwealth,
(1997) 71 ALJR 991, p. 997 (Reasonableness may depend upon the community standards of the time; BRENNAN C.J.).
For quasi-judicial power see Anisminic Ltd. v. Foreign Compensation Commission, Anisminic Ltd.
v. Foreign Compensation Commission,
Mr.Srikanth -
Page 44 of 103
(1969) 1 All ER 208 :

(1969) 2 AC 147 (HL); Page v. Hull University Visitor, Page v. Hull University
Visitor,
(1993) 1 All ER 97 , pp. 107-109 (HL); Union of India v. Tarachand Gupta and Brothers,
Union of India v. Tarachand Gupta and Brothers,
AIR 1971 SC 1558 [
LNIND 1971 SC 79 ]:
1971 (1) SCC 486 [
LNIND 1971 SC 79 ]; Liberty Oil Mills v. Union of India, Liberty Oil Mills v.
Union of India,
(1984) 3 SCC 465 [
LNIND 1984 SC 381 ], p. 494 (para 26) :
AIR 1984 SC 1271 [
LNIND 1984 SC 381 ] and other cases in note 89, pp. 749-50.
81 British Oxygen Co. Ltd. v. Minister of Technology, British Oxygen Co. Ltd. v.
Minister of Technology,
(1970) 3 All ER 165 , p. 170 (HL); Shri Rama Sugar Industries v. State of A.P.,
Shri Rama Sugar Industries v. State of A.P.,
AIR 1974 SC 1745 [
LNIND 1973 SC 404 ], p. 1750 :
(1974) 1 SCC 534 [
LNIND 1973 SC 404 ]; Asbestos Cement Ltd. v. Union of India, Asbestos
Cement Ltd. v. Union of India,
1983 MPLJ 501 , pp. 506, 507 (G.P. Singh C.J.); Finlay v. Secretary of State for Home
Department, Finlay v. Secretary of State for Home Department,
(1984) 3 All ER 801 , p. 829 (HL); U.P. State Road Transport Corporation v. Mohd. Ismail,
U.P. State Road Transport Corporation v. Mohd. Ismail,
AIR 1991 SC 1099 [
LNIND 1991 SC 207 ](para 12) :
(1991) 3 SCC 239 [
LNIND 1991 SC 207 ] :
(1991) 2 LLJ 332 [
LNIND 1991 SC 207 ]. In R. v. Secretary of State for the Home Department, ex parte, Venables,
R. v. Secretary of State for the Home Department, ex parte, Venables,
(1997) 3 All ER 97 , pp. 120, 121 (HL), Lord Browne Wilkinson explained the law on the point
that the person on whom the power is conferred is not precluded “from developing and applying a policy as to the approach which
he will adopt in the generality of cases. But the position is different if the policy adopted is such as to preclude the person from
departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which
the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decision taken
pursuant to it will be unlawful.”
82 De Fruitas v. Permanent Secretary of Ministry of Agriculture, Fisheries and Housing,

De Fruitas v. Permanent Secretary of Ministry of Agriculture, Fisheries and Housing,
(1999) 1 AC 69 , p. 80 (PC); R. v. Shayler, R. v. Shayler,
(2002) 2 All ER 477 , pp. 498, 506 (HL); R v. A, R v. A,
(2001) 3 All ER 1 , p. 15 (HL); R. v. Secretary of State for the Home Department ex parte Daly,
R. v. Secretary of State for the Home Department ex parte Daly,
(2001) 3 All ER 433 , pp. 445 to 447 (HL) (Difference between Wednesbury unreasonableness
and proportionality principle in the context of Human Rights); Matthews v. Ministry of Defence, Matthews v.
Ministry of Defence,
(2003) 1 All ER 689 , p. 723 (HL); Tweed v. Parades Commission for Northern Ireland,
Tweed v. Parades Commission for Northern Ireland,
(2007) 2 All ER 273 , pp. 288, 289 (HL); R (Begum) v. Denbigh High School, R
(Begum) v. Denbigh High School,
(2006) 2 All ER 487 , para 30 (HL) (Proportionality must be judged objectively. The court must
make a value judgment or evaluation by reference to the circumstances prevailing at the relevant time); Miss Behavin Ltd. v. Belfast
City Council, Miss Behavin Ltd. v. Belfast City Council,
(2007) 3 All ER 1007 , para 24 (HL) (The evaluation of legislation is not limited to the adequacy
of minister’s exploration of the policy opinions or his explanation in Parliament or to the circumstances and social needs existing at
that time but also to those existing at the time when its application is called for). See further Ian Leigh ’Taking rights
Mr.Srikanth -
Page 45 of 103
Proportionately: Judicial Review, the Human Rights Act and Strasburg’ (2002) Public Law 265; Francesca Klug and Chaire O'
Brien, ’The First Two Years of the Human Rights Act’ (2002) Public Law 649, pp. 658 to 660.
83 Om Kumar v. Union of India, Om Kumar v. Union of India,

AIR 2000 SC 3689 [
LNIND 2000 SC 1585 ], p. 3702 (para 54) :
(2001) 2 SCC 386 [
LNIND 2000 SC 1585 ]; Terioat Estates (P.) Ltd. v. U.T. Chandigarh, Terioat
Estates (P.) Ltd. v. U.T. Chandigarh,
(2004) 2 SCC 136 .
84 Terioat Estates (P.) Ltd. v. U.T. Chandigarh, supra, Terioat Estates (P.) Ltd. v. U.T.
Chandigarh, supra, p. 145.
85 Ibid, p. 146 (para 50).
86 Omkumar v. Union of India, supra, Omkumar v. Union of India, supra, p. 3704

(para 66)
87 Ajay Hasia v. Khalid Mujib Sehravardi, Ajay Hasia v. Khalid Mujib Sehravardi,
(1981) 1 SCC 722 [
LNIND 1980 SC 456 ], p. 741 :
AIR 1981 SC 487 [
LNIND 1980 SC 456 ](
Constitution Bench). See further E.P. Royappa v. State of T.N., E.P. Royappa v. State of T.N.,
(1974) 4 SCC 3 [
LNIND 1973 SC 359 ] :
AIR 1974 SC 555 [
LNIND 1973 SC 359 ]. For criticism see Prof. Wade, ’Public Law in Britain and India, pp. 41,
42.
88 Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli, Bharat Petroleum

Corporation Ltd. v. Maddula Ratnavalli,
(2007) 6 SCC 81 (para 16) :
(2007) 6 JT 264 . (’If so desired by the Central Government’ construed to involve ’objective
criteria’ “C para 13).
89 Omkumar v. Union of India, supra, Omkumar v. Union of India, supra, p. 3704

(para 67). See further Union of India v. G. Ganagutham, Union of India v. G. Ganagutham,
(1997) 7 SCC 463 [
LNIND 1997 SC 1123 ], pp. 478, 479 :
AIR 1997 SC 3387 [
LNIND 1997 SC 1123 ], p. 3396 (In this the question of applicability of proportionality
principles in matters affecting fundamental rights was left open). Proportionality principle is not applicable in judging the
appropriateness of punishment imposed in disciplinary proceedings and the test of Wednesbury reasonableness applies: Union of
India v. G. Ganayutham supra; Union of India v. G. Ganayutham supra; Regional Manager
UPSRTC v. Hotilal, Regional Manager UPSRTC v. Hotilal,
(2003) 3 SCC 650 ; Chairman and Managing Director United Commercial Bank v. P.C. Kakkar,
Chairman and Managing Director United Commercial Bank v. P.C. Kakkar,
(2003) 4 SCC 364 [
LNIND 2003 SC 181 ] :
AIR 2003 SC 1571 [
LNIND 2003 SC 181 ]. See also Balaram Kumawat v. Union of India, Balaram
Kumawat v. Union of India,
(2003) 7 SCC 628 [
Mr.Srikanth -
Page 46 of 103
LNIND 2003 SC 714 ], p. 642; Commissioner of Police v. Syed Hussain,

Commissioner of Police v. Syed Hussain,
(2005) 6 SCC 321 [
LNIND 2005 SC 319 ] (paras 25 to 32); Hombe Gowda Education Trust v. State of Karnataka,
Hombe Gowda Education Trust v. State of Karnataka,
(2006) 1 SCC 430 [
LNIND 2005 SC 977 ] (para 20) :
(2005) 10 JT 598 :
(2006) 1 LLJ 1004 [
LNIND 2005 SC 977 ]; Commissioner of Police v. Syed Hussain, Commissioner
of Police v. Syed Hussain,
(2006) 3 SCC 173 [
AIR 2006 SC 1246 [
LNIND 2006 SC 51 ]; A. Sudhakar v. Postmaster General, A. Sudhakar v.
Postmaster General,
(2006) 4 SCC 348 [
LNIND 2006 SC 213 ] (para 28) :
(2006) 4 JT 68 [
LNIND 2006 SC 213 ]. See for criticism Ashish Chug, ’Is the Supreme Court Disproportionately
Applying the Proportionality Principle’, (2004) 8 SCC (J) 33. Proportionately principle has also been referred in moulding the relief
under Article 142; Sandip Subhash Parate v. State of Maharashtra, Sandip Subhash Parate v. State of
Maharashtra,
(2006) 7 SCC 501 [
LNIND 2006 SC 650 ] (para 14) :
AIR 2006 SC 3102 [
LNIND 2006 SC 650 ].
1 Terioat Estates (P.) Ltd. v. U.T. Chandigarh, (supra), Terioat Estates (P.) Ltd. v.
U.T. Chandigarh, (supra), pp. 147, 148. See also Saurabh Chandra v. Union of India, Saurabh Chandra v.
Union of India,
AIR 2004 SC 361 [
LNIND 2003 SC 950 ], p. 373. (The strict scrutiny test or the intermediate scrutiny test as applied
in USA not applied in India).
2 Om Prakash v. State of U.P., Om Prakash v. State of U.P.,

(2004) 3 SCC 402 [
LNIND 2004 SC 1328 ], p. 414 :
AIR 2004 SC 1896 [
LNIND 2004 SC 1328 ], p. 1903. (Reliance is placed on Friedman, ’Legal Theory’ 4th Edn., pp.
83, 85).
3 Coimbatore District Central Co-operative Bank v. Coimbatore District Central Cooperative Bank
Employees Assn., Coimbatore District Central Co-operative Bank v. Coimbatore District Central Cooperative
Bank Employees Assn.,
(2007) 4 SCC 669 [
LNIND 2007 SC 517 ] (para 19). Reliance is placed on De Smith, Judicial Review of
Administrative Action (1995), pp. 601-05.
4 See title 2(b), ’cases of nullity’, chapter 9, infra.
5 Ridge v. Baldwin, Ridge v. Baldwin,

(1963) 2 All ER 66 (HL); Wiseman v. Borneman, Wiseman v. Borneman,
(1969) 3 All ER 275 :
1971 AC 297 (HL); Maneka Gandhi v. Union of India, Maneka Gandhi v.
Union of India,
AIR 1978 SC 597 [
LNIND 1978 SC 25 ], pp. 626, 627 :
Mr.Srikanth -
Page 47 of 103
(1978) 1 SCC 248 [

Union of India,
(1984) 3 SCC 465 [
LNIND 1984 SC 381 ], pp. 486-91; Mangilal v. State of Madhya Pradesh,
Mangilal v. State of Madhya Pradesh,
AIR 2004 SC 1280 , pp. 1283, 1284 :
(2004) 2 SCC 447 . But when a party loses the opportunity of having his case heard because of
the fault of his legal advisors he may not be able to complain of denial of natural justice: Al-Mehadawi v. Secretary of State for the
Home Department, Al-Mehadawi v. Secretary of State for the Home Department,
(1989) 3 All ER 843 : (1990) 1AC 876 (HL).
N.B. In State of Himachal Pradesh v. Raja Mahendra Pal, In State of Himachal
Pradesh v. Raja Mahendra Pal,
AIR 1999 SC 1786 [
LNIND 1999 SC 328 ], p. 1791 :
(1999) 4 SCC 43 [
LNIND 1999 SC 328 ] (para 8), it is observed by a two judge bench that the primary test of
determining that an authority is quasi-judicial is whether the authority has any express duty to act judicially in arriving at the
decision. This view is, it is submitted, not correct. It ignores Ridge v. Baldwin supra Ridge v. Baldwin supra ,
which holds that the duty to act judicially may arise from the very nature of the function performed by the authority. Ridge v.
Baldwin Ridge v. Baldwin has been followed by the Supreme Court in later cases, see Maneka Gandhi v. Union
of India, supra, Maneka Gandhi v. Union of India, supra, pp. 286, 287 (SCC) which is a
constitution bench decision. Another two judge bench of the Supreme Court in Indian
National Congress v. Institute of Social Welfare, National Congress v. Institute of
Social Welfare,
AIR 2002 SC 2158 [
LNIND 2002 SC 400 ], p. 2167 :
(2002) 5 SCC 685 [
LNIND 2002 SC 400 ], though rightly upholding that the Election Commission while deciding to
register a political party acts quasi judicially, ignores Ridge v. Baldwin, supra, and Maneka Gandhi, supra, Ridge
v. Baldwin, supra, and Maneka Gandhi, supra, and Maneka Gandhi, supra, and omits to notice that duty to act judicially may arise
from the nature of the power itself.
6 Bhagat Raja v. Union of India, Bhagat Raja v. Union of India,

AIR 1967 SC 1606 [
LNIND 1967 SC 98 ]:
1967 (3) SCR 302 [
LNIND 1967 SC 98 ]; Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of
India, Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India,
AIR 1976 SC 1785 [
LNIND 1976 SC 202 ], p. 1789 :
1976 (2) SCC 981 [
LNIND 1976 SC 202 ]; Mahindra and Mahindra v. Union of India, Mahindra
and Mahindra v. Union of India,
AIR 1979 SC 798 [
LNIND 1979 SC 59 ], p. 823 :
(1979) 2 SCC 529 [
LNIND 1979 SC 59 ]; Sitaram v. State of Uttar Pradesh, Sitaram v. State of
Uttar Pradesh,
AIR 1979 SC 745 [
LNIND 1979 SC 65 ], p. 753 :
(1979) 2 SCC 656 [
LNIND 1979 SC 65 ] :
1979 SCC (Cri) 576 [
LNIND 1979 SC 65 ]; Organo Chemical Industries v. Union of India, Organo
Chemical Industries v. Union of India,
AIR 1979 SC 1803 [
LNIND 1979 SC 288 ]:
(1979) 4 SCC 573 [
LNIND 1979 SC 288 ]; Bharathan Thampuran v. State of Kerala, Bharathan
Mr.Srikanth -
Page 48 of 103
Thampuran v. State of Kerala,

AIR 1979 SC 1918 [
LNIND 1979 SC 306 ], p. 1922 :
(1979) 4 SCC 326 ; A.L. Kalra v. Project and Equipment Corporation of India Ltd.,
A.L. Kalra v. Project and Equipment Corporation of India Ltd.,
(1984) 3 SCC 316 [
LNIND 1984 SC 136 ], pp. 336, 337 :
AIR 1984 SC 1361 [
LNIND 1984 SC 136 ]; Vasudeo Vishwanath Saraf v. New Education Institute,
Vasudeo Vishwanath Saraf v. New Education Institute,
(1986) 4 SCC 31 [
LNIND 1986 SC 248 ], p. 37 :
AIR 1985 SC 2105 ; S.N. Mukherjee v. Union of India, S.N. Mukherjee v. Union
of India,
AIR 1990 SC 1984 [
LNIND 1990 SC 986 ], pp. 1995-97 :
(1990) 4 SCC 594 [
LNIND 1990 SC 986 ] (Except in cases where the requirement has been dispensed with
expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to
record the reasons for its decision. This requirement can be regarded as one of the principles of natural justice). Under English law,
a quasi-judicial authority need not give reasons unless required to do so by statute. See Rex. v. Northumberland Compensation
Appeal Tribunal, Rex. v. Northumberland Compensation Appeal Tribunal,
(1952) 1 All ER 122 . There is, however, a definite shift in favour of the view that reasons should
be given. See R. v. Immigration Appeal Tribunal, Ex parte, Khan Mohamad, R. v. Immigration Appeal
Tribunal, Ex parte, Khan Mohamad,
(1983) 2 All ER 420 , p. 423 (CA); R. v. Civil Services Appeal Board, ex parte, Bruce,
R. v. Civil Services Appeal Board, ex parte, Bruce,
(1989) 2 All ER 907 , p. 911 (CA); Flannery v. Halifax Estate Agencies Ltd.,
Flannery v. Halifax Estate Agencies Ltd.,
(2000) 1 All ER 373 , pp. 377, 378 (CA) (The duty to give reasons “is function of due process
and therefore of justice. Its rationale has two principle aspects. The first is that fairness surely requires that the parties—especially
the losing party—should be left in no doubt why they have won or lost.—The second is that a requirement to give reasons
concentrates the mind and if it is fulfilled the resulting decision is much more likely to be soundly based.”) Reasons recorded
should be proper, intelligible and adequate depending upon the circumstances of the case and their quality should be judged by
looking to the substance rather than to the form: Save Britains Heritage v. Number 1 Poultry Limited, Save
Britains Heritage v. Number 1 Poultry Limited,
(1991) 2 All ER 10 , pp. 22-27 :
(1991) 1 WLR 153 (HL). But in special Acts like
Border Security Force Act or
Army Act all the principles of natural justice cannot be imported : Union of India v. Amrik Singh,
Union of India v. Amrik Singh,
AIR 1991 SC 564 [
LNIND 1991 SC 53 ], p. 569 :
1991 (1) SCC 654 [
LNIND 1991 SC 53 ]; Union of India v. J.S. Bros, Union of India v. J.S. Bros,
AIR 1993 SC 773 , p. 776 :
1993 (1) SCC 176 .
7 K. (H) (an infant), In re, K. (H) (an infant), In re,

(1967) 1 All ER 226 ; R. v. Gaming Board, R. v. Gaming Board,
(1970) 2 All ER 528 (CA); A.K. Kraipak v. Union of India, A.K. Kraipak v.
Union of India,
AIR 1970 SC 150 [
LNIND 1969 SC 197 ]:
(1969) 2 SCC 262 [
LNIND 1969 SC 197 ]; Maneka Gandhi v. Union of India, Maneka Gandhi v.
Union of India,
AIR 1978 SC 597 [
LNIND 1978 SC 25 ], pp. 627, 628 :
(1978) 1 SCC 248 [
LNIND 1978 SC 25 ]; Ashok Kumar, Yadav v. State of Haryana, Ashok Kumar,
Yadav v. State of Haryana,
(1985) 4 SCC 417 [
LNIND 1985 SC 197 ], pp. 440-442 : 1985 AIR SC 454 ; Harbhajan Singh Dhalla v. Union of
India, Harbhajan Singh Dhalla v. Union of India,
Mr.Srikanth -
Page 49 of 103
(1986) 4 SCC 678 [

LNIND 1986 SC 420 ], p. 688 :
AIR 1987 SC 9 [
LNIND 1986 SC 420 ]; K.L. Shephard v. Union of India, K.L. Shephard v.
Union of India,
(1987) 4 SCC 431 [
LNIND 1987 SC 1008 ], pp. 444 to 447 :
AIR 1988 SC 686 [
LNIND 1987 SC 1008 ], pp. 693, 694; H.L. Trehan v. Union of India, H.L.
Trehan v. Union of India,
AIR 1989 SC 568 [
LNIND 1988 SC 557 ]:
1989 (1) SCC 764 [
LNIND 1988 SC 557 ]; Modi Industries Ltd. v. State of Uttar Pradesh, Modi
Industries Ltd. v. State of Uttar Pradesh,
AIR 1994 SC 536 [
LNIND 1993 SC 879 ], p. 542 :
1994 (1) SCC 282 ; Scooters India Ltd. v. M. Mohammad Yakub, Scooters India
Ltd. v. M. Mohammad Yakub,
AIR 2001 SC 227 [
LNIND 2000 SC 1613 ]:
(2001) 1 SCC 61 [
LNIND 2000 SC 1613 ]; State Govt. Houseless Harijan Employees Assocition v. State of
Karnataka, State Govt. Houseless Harijan Employees Assocition v. State of Karnataka,
AIR 2001 SC 437 [
LNIND 2000 SC 1829 ], p. 443 :
(2001) 1 SCC 610 [
LNIND 2000 SC 1829 ] (Reasons given in the order cannot be supp lemented by affidavit at the
time of hearing in court). But see Neelima Misra v. Harinder Kaur Paintal (Dr.), Neelima Misra v. Harinder
Kaur Paintal (Dr.),
AIR 1990 SC 1402 [
LNIND 1990 SC 173 ], p. 1411 :
(1990) 2 SCC 746 [
LNIND 1990 SC 173 ]; Baikuntha Nath Das v. Chief District Medical Officer,
Baikuntha Nath Das v. Chief District Medical Officer,
AIR 1992 SC 1020 [
LNIND 1992 SC 176 ], p. 1032 (para 33) :
1992 (2) SCC 299 [
LNIND 1992 SC 176 ]. (Natural justice not to be imported if order is to be passed on subjective
satisfaction). Dr. Rash Lal Yadav v. State of Bihar, Dr. Rash Lal Yadav v. State of Bihar,
JT 1994 (7) SC 62 [
LNIND 1994 SC 557 ](Natural justice cannot be imported if pleasure doctrine is introduced by
the Legislature and order is to be passed on subjective satisfaction); Py Mullai Hlychho v. State of Mizoram, Py
Mullai Hlychho v. State of Mizoram,
(2005) 2 SC 92 , p. 101 (Pleasure doctrine may negative natural justice); Designated Authority,
Anti Dumping Directorate, Authority, Anti Dumping Directorate, Ministry of Commerce v. Holdor Topspoe A/S,
Authority, Anti Dumping Directorate, Ministry of Commerce v. Holdor Topspoe A/S,
AIR 2000 SC 2556 , p. 2565 :
(2000) 6 SCC 626 [
LNIND 2000 SC 2491 ] (order extending time for investigation does not require notice) :
(2000) 6 SCC 626 [
LNIND 2000 SC 2491 ] :
AIR 2000 SC 2556 ; State of Kerala v. N. Avinasiapan, State of Kerala v. N.
Avinasiapan,
(2004) 2 SCC 344 , p. 346 (order of Commissioner Excise under section 67F of the Kerala
Abkari Act in declining to admit an application for suo motu revision is not bad for the reason that notice to the applicant was not
given and the order does not give reasons).
N.B. 1. The rule of audi alterumpartem is not necessarily excluded by use of the formulae ’where it
appears to—’ or ’if it appears to the satisfaction of—’ or ’if the—considers necessary’ or ’if the—is satisfied’; Duryappa v.
Fernando, Duryappa v. Fernando,
(1967) 2 AC 337 :
(1967) 2 All ER 152 (PC); Indore Textiles Ltd. v. Union of India, Indore
Textiles Ltd. v. Union of India,
1981 MPLJ 236 , p. 240 (G.P. SINGH, C.J.).
Mr.Srikanth -
Page 50 of 103
2. The principle of fairness in administrative matters is explained in Doody v. Secretary of State for
the Home Department, Doody v. Secretary of State for the Home Department,
(1993) 3 All ER 92 , p. 106 :
(1994) 1 AC 531 (HL), by LORD MUSTILL as follows: “(1) Where an Act of Parliament
confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are not immutable. They may change with the passage of time. (3) The principles of fairness are not to
be applied by rote identically in every situation. What fairness demands is dependant on the context of the decision, and this is to be
taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both
its language and the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a
person who may be adversely affected by the decision will have an opportunity to make representation on his own behalf either
before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its
modification or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors
may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”
8 Hochtief Gamman v. State of Orissa, Hochtief Gamman v. State of Orissa,

AIR 1975 SC 2226 [
LNIND 1975 SC 322 ], p. 2234 :
(1975) 2 SCC 649 [
LNIND 1975 SC 322 ] : 1975 SCC (L) 362 ; Manager, Govt. Branch Press v. D.B. Belliappa,
Manager, Govt. Branch Press v. D.B. Belliappa,
AIR 1979 SC 429 [
LNIND 1978 SC 364 ], p. 434; Congreve v. Home Office, Congreve v. Home
Office,
(1976) 1 All ER 697 , p. 709 (CA); Harbhajan Singh Dhalla v. Union of India, supra;
Harbhajan Singh Dhalla v. Union of India, supra; ; Gurbachan Singh v. Union of India, Gurbachan Singh v.
Union of India,
JT 1996 (1) SC 215 (reasons are required to be recorded when it affects public interest);
Consumer Action Group v. State of Tamil Nadu Consumer Action Group v. State of Tamil Nadu
AIR 2000 SC 3060 [
LNIND 2000 SC 1130 ], p. 3070 (Exercise of wide discretionary power to exempt from the
provisions of a statute impliedly requires the recording of reasons in the order itself.) :
(2000) 7 SCC 425 [
LNIND 2000 SC 1130 ].
Under English law there is no general duty while exercising a statutory discretion to give reasons; but failure to give
reasons does not take away the power of judicial review and if all known facts point in a different direction that may lead to the
conclusion that the authority had no rational reasons: Lanrho Plc. v. Secretary of State for Trade and Industry,
Lanrho Plc. v. Secretary of State for Trade and Industry,
(1989) 2 All ER 609 , p. 620 (HL). More recent English cases show insistance on greater
openness or transparency and duty to give reasons is inferred from implied requirement of fairness in exercise of the power in
appropriate circumstances : Doody v. Secretary for State for the Home Department, Doody v. Secretary for State
(1993) 3 All ER 92 , pp. 106, 107, 110 :
(1994) 1 AC 531 (HL); R. v. Higher Education Funding Council, R. v. Higher
Education Funding Council,
(1994) 1 All ER 651 :
(1994) 1 WLR 242 (CA). See E.G. JACOBS, ’Public Law—The Impact of Europe’ 1999 Public
Law 232, pp. 235, 236 (The impact of community law is making the duty to give reasons for an administrative order as a necessary
requirement to enable effective judicial review). In India non-commu-nication of reasons is not fatal to the order; but reasons must
exist and the record disclosing them must be produced at the time of judicial review; Union of India v. E.G. Nambudiri,
Union of India v. E.G. Nambudiri,
AIR 1991 SC 1216 [
LNIND 1991 SC 225 ], pp. 1219, 1220 :
1991 (3) SCC 38 [
LNIND 1991 SC 225 ].
9 Rajesh Kumar v. Dy. C.I.T., Rajesh Kumar v. Dy. C.I.T.,

(2007) 2 SCC 181 [
Mr.Srikanth -
Page 51 of 103
LNIND 2006 SC 906 ] (para 26) :

AIR 2007 SC 181 [
LNIND 2006 SC 906 ].
10 Ibid (para 23). See further text and notes 40 to 43, p. 436.
11 R.S. Garg v. State of U.P., R.S. Garg v. State of U.P.,

(2006) 6 SCC 430 [
LNIND 2006 SC 561 ] (para 33):
AIR 2006 SC 2912 [
LNIND 2006 SC 561 ]; Chandra Singh v. State of Rajasthan, Chandra Singh v.
State of Rajasthan,
AIR 2003 SC 2889 [
LNIND 2003 SC 567 ], p. 2900. But see Mahavir Jute Mills v. Shibbanlal,
Mahavir Jute Mills v. Shibbanlal,
AIR 1975 SC 2057 [
LNIND 1975 SC 239 ]:
(1975) 2 SCC 818 [
LNIND 1975 SC 239 ]; R.S. Dass v. Union of India, R.S. Dass v. Union of India,
AIR 1987 SC 593 [
LNIND 1986 SC 694 ], pp. 603, 604: 1987 Supp SCC 617; National Institute of Mental
Health&Neuro Sciences v. K. Kalyana Raman (Dr.), National Institute of Mental Health&Neuro Sciences v. K.
Kalyana Raman (Dr.),
AIR 1992 SC 1806 [
LNIND 1991 SC 636 ],p. 1808: 1992 Supp (2) SCC 481.
12 Board of Control for Cricket in India v. Netaji Cricket Club, Board of Control for
Cricket in India v. Netaji Cricket Club,
(2005) 4 SCC 741 [
LNIND 2005 SC 24 ].
13 Zee Telefilms Ltd. v. Union of India, Zee Telefilms Ltd. v. Union of India,
(2005) 4 SCC 649 [
LNIND 2005 SC 101 ], p. 682 (paras 32, 33).
14 O'Reilly v. Mackman, O'Reilly v. Mackman,

(1982) 3 All ER 1124 , pp. 1126, 1127:
(1983) 2 AC 237 (HL); Attorney-General of Honkong v. Ng. Yuen Shiu,
Attorney-General of Honkong v. Ng. Yuen Shiu,
(1983) 2 All ER 346 , p. 350:
(1983) 2 AC 629 (PC); C.C.S.U. v. Minister of Civil Service, C.C.S.U. v.
Minister of Civil Service,
(1984) 3 All ER 935 , p. 949 (HL); R. v. Secretary for State for the Home Department, ex parte,
Fire Brigade Union, R. v. Secretary for State for the Home Department, ex parte, Fire Brigade Union,
(1995) 2 All ER 244 , p. 254 (HL); State of Kerala v. K.G. Madhavan, State of
Kerala v. K.G. Madhavan,
AIR 1989 SC 49 [
LNIND 1988 SC 466 ], pp. 61, 63, 64:
(1988) 4 SCC 669 [
LNIND 1988 SC 466 ]. Indian Aluminium Co. Ltd. v. Karnataka Electricity Board,
Indian Aluminium Co. Ltd. v. Karnataka Electricity Board,
AIR 1992 SC 2169 [
LNIND 1992 SC 401 ], p. 2182:
(1992) 2 SCC 580 ; Navjyoti Co-op. Group Housing Society v. Union of India,
Navjyoti Co-op. Group Housing Society v. Union of India,
AIR 1993 SC 155 , pp. 165, 166:
(1992) 4 SCC 477 ; Union Territory of Chandigarh v. Dilbagh Singh, Union
Territory of Chandigarh v. Dilbagh Singh,
Mr.Srikanth -
Page 52 of 103
AIR 1993 SC 796 [

LNIND 1992 SC 793 ], p. 801 (para 11):
(1993) 1 SCC 1543 ; Food Corporation of India v. Kamdhenu Cattle Feed Industries,
Food Corporation of India v. Kamdhenu Cattle Feed Industries,
AIR 1993 SC 1601 [
LNIND 1992 SC 794 ], p. 1604:
(1993) 1 SCC 71 [
LNIND 1992 SC 794 ]; Union of India v. Hindustan Development Corporation,
Union of India v. Hindustan Development Corporation,
AIR 1994 SC 988 [
LNIND 1993 SC 1080 ], pp. 1019, 1020; Gaziabad Development Authority v. Delhi
Auto&General Finance Pvt. Ltd., Gaziabad Development Authority v. Delhi Auto&General Finance Pvt. Ltd.,
JT 1994 (3) SC 275 , p. 279:
AIR 1994 SC 2263 : (1994) 4 SCC 42(The doctrine merely ensures procedural fairness); Ashoka
Smokeless Coal India (P) Ltd. v. Union of India, Ashoka Smokeless Coal India (P) Ltd. v. Union of India,
(2007) 2 SCC 640 [
LNIND 2006 SC 1074 ] (paras 183 to 187):
(2007) 1 JT 125 . (The doctrine has been developed in the context of principles of natural
justice). National Building Construction Corporation v. S. P. Singh, National Building Construction Corporation
v. S. P. Singh,
AIR 1998 SC 2776 [
LNIND 1998 SC 812 ], pp. 2783 to 2785.(Claims based on ‘Legitimate Expectation’ have been
held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory
estoppel); Dr. Chanchal Goyal v. State of Rajasthan, Dr. Chanchal Goyal v. State of Rajasthan,
(2003) 3 SCC 485 [
LNIND 2003 SC 221 ], pp. 495 to 501: (2003) SCC (L&S) 322(clear statutory words override
any expectation, however founded); Hira Tikkoo v. Union Territory Chandigarh, Hira Tikkoo v. Union Territory
Chandigarh,
AIR 2004 SC 3648 [
LNIND 2004 SC 481 ], p. 3655:
(2004) 6 SCC 765 [
LNIND 2004 SC 481 ] (Relief on the basis of ‘legitimate expectation’ cannot be granted if it is
likely to harm larger public interest)’; Bannari Amman Sugars Ltd. v. Commercial Tax Officer, Bannari Amman
Sugars Ltd. v. Commercial Tax Officer,
(2005) 1 SCC 625 [
LNIND 2004 SC 1166 ], p. 633(overriding public interest will negative legitimate expectation).
See Philip Sales and Karen Steyn, ‘Legitimate Expectations in English Public Law : An Analysis', (2004) Public Law 564. The
author concludes (p. 595) : “Underlying the whole area is the need for a fair balance to be struck between the private interests of
individuals in having their expectations based upon statements made by public authorities protected and the general public interest
in affording decision makers with discretionary powers flexibility in responding to particular situations”. See further (2004) 63
Cambridge Law Journal, pp. 261 to 264 (comment on the case of Stretch v. U.K., Stretch v. U.K., 38 EHCR 12, a
decision of the European court of Human Rights which allows atleast damages even in case of unlawful representation). Stretch v.
U.K., supra, Stretch v. U.K., supra, also discussed in Ashoka Smokeless Coal India (P) Ltd. v. Union of India,
Ashoka Smokeless Coal India (P) Ltd. v. Union of India,
(2007) 2 SCC 640 [
LNIND 2006 SC 1074 ] (para 184):
(2007) 1 JT 125 .
15 Attorney-General of Hongkong v. Ng. Yuen Shiu, supra, Attorney-General of

Hongkong v. Ng. Yuen Shiu, supra, p. 636 (AC); Regina (Bibi) v. Newham London Borough Council, Regina
(Bibi) v. Newham London Borough Council,
(2002) 1 WLR 237 , p. 239 (CA).
16 Annetts v. Mccann, Annetts v. Mccann, (1991) 65 ALJR 167 (High Court of

Australia); Minister for Immigration Ex parte Miah, IN RE. Minister for Immigration Ex parte Miah, IN RE.
(2001) 75 ALJR 889, p. 910 (High Court of Australia).
17 C.C.S.U. v. The Minister for Civil Services, C.C.S.U. v. The Minister for Civil
Services,
(1984) 3 All ER 935 , p. 952 (HL) (procedural propriety gives way to national security). A
statute may also expressly or by necessary implication exclude the application of natural Justice: Union of India v. Tulsiram Patel,
Mr.Srikanth -
Page 53 of 103
Union of India v. Tulsiram Patel,

(1985) 3 SCC 398 [
LNIND 1985 SC 219 ], pp. 478, 479 :
AIR 1985 SC 1416 [
LNIND 1985 SC 219 ]; Rash Lal Yadav (Dr.) v. State of Bihar, Rash Lal Yadav
(Dr.) v. State of Bihar,
JT 1994 (4) SC 228 , p. 241 :
1994 (5) SCC 267 [
LNIND 1994 SC 557 ] : 1994 SCC (L&S) 1063.
18 Grounds mentioned in text and note 76, p. 408 are known as Wednesbury principles as their origin is traced to the case
of Associated Provincial Pictures House Ltd. v. Wednesbury Corporation, Associated Provincial Pictures House
Ltd. v. Wednesbury Corporation, which is the first case mentioned in note 76.
19 Punjab Communications Ltd. v. Union of India, Punjab Communications Ltd. v.

Union of India,
AIR 1999 SC 1801 [
LNIND 1999 SC 484 ], p. 1815 :
(1999) 4 SCC 727 [
LNIND 1999 SC 484 ]; Union of India v. International Trading Co. Union of
India v. International Trading Co.
(2003) 5 SCC 437 [
LNIND 2003 SC 536 ], p. 446 :
AIR 2003 SC 3983 [
LNIND 2003 SC 536 ]; Bannari Amman Sugars Ltd. v. Commercial Tax Officer,
Bannari Amman Sugars Ltd. v. Commercial Tax Officer,
(2005) 1 SCC 625 [
LNIND 2004 SC 1166 ], p. 635.
20 M.P. Oil Extraction v. K.N. Oil Industries, M.P. Oil Extraction v. K.N. Oil
Industries,
AIR 1998 SC 145 [
LNIND 1997 SC 1755 ], pp. 156, 157 (para 41) :
1997 (7) SCC 592 [
LNIND 1997 SC 1755 ].
21 Regina (Bibi) v. Newham Borough Council, Regina (Bibi) v. Newham Borough

Council,
(2002) 1 WLR 237 (para 19) (CA). See further Jain ’Substantive Legitimate Expectations:
Striking the Right Balance’ (2005) 121 LQR 300.
22 R. v. Ministry of Defence, exparte Walker, R. v. Ministry of Defence, exparte

Walker,
(1999) 3 All ER 935 , p. 945 (C.A.) and cases referred to therein; affd.
(2000) 1 WLR 806 (HL).
23 R. v. Director of Public Prosecutions, R. v. Director of Public Prosecutions,

(1999) 4 All ER 801 , p. 833 (HL).
24 See text and notes 47-49, p. 599.
25 Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., Motilal Padampat Sugar
Mills Co. Ltd. v. State of U.P.,
Mr.Srikanth -
Page 54 of 103
(1979) 2 SCC 409 [

LNIND 1978 SC 382 ] :
AIR 1979 SC 621 [
LNIND 1978 SC 382 ]; State of Punjab v. Nestle India Ltd., State of Punjab v.
Nestle India Ltd.,
(2004) 6 SCC 465 [
LNIND 2004 SC 603 ] : 2004 Supp (2) JT 283; Ashoka Smokeless Coal India (P) Ltd. v. Union
of India, Ashoka Smokeless Coal India (P) Ltd. v. Union of India,
(2007) 2 SCC 640 [
LNIND 2006 SC 1074 ] (paras 173 to 182) :
(2007) 1 JT 125 .
26 State of Punjab v. Nestle India Ltd., (supra). State of Punjab v. Nestle India Ltd.,
(supra). See further Rom Industries Ltd. v. State of J&K, Rom Industries Ltd. v. State of J&K,
(2005) 7 SCC 348 , (Grant of exemption by a statutory notification for a certain period.
Withdrawal thereof before that period does not give rise to a claim on basis of promissory estoppel.)
27
(2006) 8 SCC 702 [
LNIND 2006 SC 754 ] (paras 30 to 39) :
(2006) 12 JT 244 .
28 Ibid (para 34).
29 Ibid (paras 30 and 33).
30 Mahabir Vegetable Oils Ltd. v. State of Haryana, Mahabir Vegetable Oils Ltd. v.
State of Haryana,
(2006) 3 SCC 620 [
LNIND 2006 SC 182 ] :
(2006) 3 JT 544 .
31
(2005) 1 SCC 625 [
LNIND 2004 SC 1166 ], p. 633 (para 7) p. 638 (para 21).
32 Ibid. The principles relating to promissory estoppel were reiterated in A.P. Steel Rerolling Mills Ltd.
v. State of Kerala, A.P. Steel Rerolling Mills Ltd. v. State of Kerala,
(2007) 2 SCC 725 [
LNIND 2006 SC 1149 ] (para 11), but on the facts found by the High Court the Supreme Court
held that the plea was rightly negatived. These principles were again reiterated and applied in Southern Petrochemical Industries
Co. Ltd. v. Electricity Inspector, Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector,
(2007) 5 SCC 447 [
LNIND 2007 SC 681 ] (paras 118 to 131) :
AIR 2007 SC 1984 [
LNIND 2007 SC 681 ]. A case of promissory estoppel cannot be founded on a budgetary speech
of a minister: Pine Chemicals Ltd. v. Assessing Authority, Pine Chemicals Ltd. v. Assessing Authority,
(1992) 2 SCC 683 [
LNIND 1992 SC 956 ]; Union of India v. Ganesh Rice Mills, Union of India v.
Ganesh Rice Mills,
(1998) 9 SCC 630 [
LNINDORD 2016 SC 15974 ]; State of Karnataka v. K.K. Mohandas, State of
Karnataka v. K.K. Mohandas,
(2007) 6 SCC 484 [
LNIND 2007 SC 921 ] (paras 23, 24, 28).
Mr.Srikanth -
Page 55 of 103
33 Mahon v. Air Newzealand Ltd., Mahon v. Air Newzealand Ltd.,

(1984) 3 All ER 201 , p. 210 :
(1984) AC 808 :
(1984) 3 WLR 884 (PC). In India there is express provision to this effect in
section 8B of the Commissions of Inquiry Act, 1952 . In this context, see Kiran Bedi and Jinder Singh v.
Committee of Enquiry, Kiran Bedi and Jinder Singh v. Committee of Enquiry,
AIR 1989 SC 714 [
LNIND 1989 SC 833 ]:
(1989) 1 SCC 494 [
LNIND 1989 SC 10 ]; State of Jammu and Kashmir v. Bakshi Gulam Mohammad,
State of Jammu and Kashmir v. Bakshi Gulam Mohammad,
AIR 1967 SC 122 [
LNIND 1966 SC 139 ]: 1966 Supp SCR 401 ; State of Bihar v. Lal Krishna Advani,
State of Bihar v. Lal Krishna Advani,
(2003) 8 SCC 361 [
LNIND 2003 SC 788 ].
34 Public Disclosure Commission v. Isaacs, Public Disclosure Commission v. Isaacs,

(1989) 1 All ER 137 , pp. 141, 142 :
(1988) 1 WLR 1043 (HL).
35 Union of India v. W.N. Chadha, Union of India v. W.N. Chadha,

AIR 1993 SC 1082 : 1993 (1) SCC 154.
36 Rees v. Crane, Rees v. Crane,

(1994) 1 All ER 833 , pp. 848, 849 :
(1994) 2 AC 173 :
(1994) 2 WLR 476 (PC) (Preliminary enquiry before representation to the President for
appointing a tribunal for removal of a High Court judge under
section 107 of the Constitution of Trinidad and Tobago); Radhey Shyam Gupta v. U.P. Agro Industries
Corporation Ltd., Radhey Shyam Gupta v. U.P. Agro Industries Corporation Ltd.,
AIR 1999 SC 609 , p. 612 (para 15), where reference is made in this context to De Smith, 5th
Ed., p. 491 :
(1999) 2 SCC 21 .
37 Assistant Commissioner Assessment II Bangalore v. Vellappa Textiles Ltd. Assistant

Commissioner Assessment II Bangalore v. Vellappa Textiles Ltd. Assistant Commissioner Assessment II Bangalore
v. Vellappa Textiles Ltd.,
AIR 2004 SC 86 [
LNIND 2003 SC 794 ], p. 98 :
(2003) 11 SCC 405 [
LNIND 2003 SC 794 ].
38 Rees v. Crane, supra Rees v. Crane, supra .
39 Radhey Shyam Gupta v. Agro Industries Corportion Ltd., supra, Radhey Shyam
Gupta v. Agro Industries Corportion Ltd., supra, p. 617 (AIR).
40 Union of India v. Tulsiram Patel, Union of India v. Tulsiram Patel,

(1985) 3 SCC 398 [
LNIND 1985 SC 219 ], p. 476 :
AIR 1985 SC 1416 [
LNIND 1985 SC 219 ]; Olga Tellis v. Bombay Municipal Corporation, Olga
Mr.Srikanth -
Page 56 of 103
Tellis v. Bombay Municipal Corporation,

(1985) 3 SCC 545 [
LNIND 1985 SC 215 ], pp. 577-84; Charan Lal Sahu v. Union of India, Charan
Lal Sahu v. Union of India,
AIR 1990 SC 1480 [
LNIND 1989 SC 639 ], pp. 1540, 1541 :
1990 (1) SCC 613 [
LNIND 1989 SC 639 ]; Managing Director, ECIL v. B. Karunakar, Managing
Director, ECIL v. B. Karunakar,
AIR 1994 SC 1074 [
LNIND 1993 SC 1059 ], p. 1103 :
1993 (4) SCC 727 [
LNIND 1993 SC 1059 ].
41 Raghunath Thakur v. State of Bihar, Raghunath Thakur v. State of Bihar,

AIR 1989 SC 620 [
LNIND 1988 SC 549 ], p. 621 :
(1989) 1 SCC 229 [
LNIND 1988 SC 549 ]; Baldeo Singh v. State of H.P., Baldeo Singh v. State of
H.P.,
AIR 1987 SC 1239 : (1987) 2 SCC 510, p. 515; State of Haryana v. Ramkishan,
State of Haryana v. Ramkishan,
AIR 1988 SC 1301 [
LNIND 1988 SC 297 ], p. 1308 :
(1988) 3 SCC 416 [
LNIND 1988 SC 297 ]; Cantonment Board, Dinapore v. Taramani Devi,
Cantonment Board, Dinapore v. Taramani Devi,
AIR 1992 SC 61 , p. 62 : (1992) Supp (2) SCC 501; Southern Painters v. Fertilizers &
Chemicals Travancore Ltd., Southern Painters v. Fertilizers & Chemicals Travancore Ltd.,
AIR 1994 SC 1277 , p. 1280 : 1994 Supp (2) SCC 699; Tejshree Ghag v. Prakash Parashuram
Patil, Tejshree Ghag v. Prakash Parashuram Patil,
AIR 2007 SC 2141 [
LNIND 2007 SC 704 ], para 15 (Transfer of an employee to a post which is not an equivalent
post affects his status and results in civil consequences and attracts principles of natural justice). But the principle has to be
pragmatically applied to the given fact situation and not extended to ridiculous limits as a ritual to be applied at every stage; State of
Madhya Pradesh v. R.P. Sharma, State of Madhya Pradesh v. R.P. Sharma,
1996 (5) Scale 814 , pp. 817, 818 :
AIR 1996 SC 2665 , p. 2667 :
(1996) 10 SCC 516 .
42 Dwarka Marfatia & Sons v. Board of Trustees of the Port of Bombay, Dwarka
Marfatia & Sons v. Board of Trustees of the Port of Bombay,
AIR 1989 SC 1644 , p. 1648 (para 25 and the cases referred to therein) :
1989 (3) SCC 293 [
LNIND 1989 SC 261 ]; Mahabir Auto Stores v. Indian Oil Corporation,
Mahabir Auto Stores v. Indian Oil Corporation,
AIR 1990 SC 1031 [
LNIND 1990 SC 135 ], p. 1037 :
(1990) 3 SCC 752 [
LNIND 1990 SC 135 ] (also cases referred to therein). The principle negativing arbitrary state
action has been extended to contractual rights; Kumari Shrilekha Vidyarthi v. State of U.P., Kumari Shrilekha
Vidyarthi v. State of U.P.,
AIR 1991 SC 537 [
LNIND 1990 SC 565 ], p. 557 :
1991 (1) SCC 212 [
LNIND 1990 SC 565 ]; Verigamto Naveen v. Govt. of Andhra Pradesh,
Verigamto Naveen v. Govt. of Andhra Pradesh,
AIR 2001 SC 3609 [
LNIND 2001 SC 2085 ], pp. 3614, 3615 :
(2001) 8 SCC 344 [
LNIND 2001 SC 2085 ]; Jamsed Hormusji Wadia v. Board of Trustees Port of Mumbai,
Jamsed Hormusji Wadia v. Board of Trustees Port of Mumbai,
(2004) 3 SCC 214 [
Mr.Srikanth -
Page 57 of 103
LNIND 2004 SC 47 ], p. 236 :

AIR 2004 SC 1815 [
LNIND 2004 SC 47 ]:
(2004) 3 SCC 214 [
LNIND 2004 SC 47 ]; ABL International Ltd. v. Export Credit Gurantee Corporation of India
Ltd., ABL International Ltd. v. Export Credit Gurantee Corporation of India Ltd.,
(2004) 3 SCC 553 , p. 570 (para 23) :
(2003) 10 JT 300 [
LNIND 2003 SC 1128 ]. The Supreme Court has stressed that in the distribution of Government
benefits such as allotment of plots, houses, petrol pumps, gas agencies, mineral leases, contracts, quotas and licences etc. the
Government must evolve a transparent and objective criteria/procedure so that the choice among the members belonging to the
same class or category is based on reason/fairplay and non-arbitrariness; Common Cause, A Registered Society v. Union of India,
Common Cause, A Registered Society v. Union of India,
1996 (7) Scale 156 [
LNIND 1996 SC 1542 ], p. 173 :
AIR 1996 SC 3538 [
LNIND 1996 SC 1542 ], p. 3550, on review
JT 1999 (5) SC 237 [
LNIND 1999 SC 637 ], pp. 258 to 260 (principle of judicial review upheld but award of damages
to State against minister set aside); Onkarlal Bajaj v. Union of India, Onkarlal Bajaj v. Union of India,
(2003) 2 SCC 673 [
LNIND 2002 SC 1316 ] :
AIR 2003 SC 2562 [
LNIND 2002 SC 1316 ]. See further, Tata Cellular v. Union of India, Tata
Cellular v. Union of India,
JT 1994 (4) SC 532 [
LNIND 1994 SC 665 ]:
(1994) 6 SCC 551 which advises judicial restraint in administrative matters. Article 14 does not
also assume uniformity in erroneous actions or decisions. Guarantee of equality is a positive concept and cannot be enforced in a
negative manner to perpetuate an illegality: State of Kerala v. K. Prasad, State of Kerala v. K. Prasad,
(2007) 7 SCC 140 [
LNIND 2007 SC 837 ] (paras 13 and 14).
43 Charan Lal Sahu v. Union of India, Charan Lal Sahu v. Union of India,
AIR 1990 SC 1480 [
LNIND 1989 SC 639 ], pp. 1540, 1541 :
1990 (1) SCC 613 [
LNIND 1989 SC 639 ]; Krishan Lal v. State of Jammu & Kashmir, Krishan Lal
v. State of Jammu & Kashmir,
JT 1994(2) SC 619 [
LNIND 1994 SC 277 ], p. 626 :
1994(4) SCC 422 [
LNIND 1994 SC 277 ] : 1994 SCC (L&S) 885.
44 R. v. Gough, R. v. Gough,
(1993) 2 All ER 724 , p. 737 (HL) (The test of bias as laid down in this case was real danager of
bias’ rather than ’real likelihood’, “to ensure that the court is thinking in terms of possibility rather than probability”). Accepting the
criticism against the test of bias in R. v. Gough supra R. v. Gough supra , which was not followed in other
common law jurisdictions, the House of Lords modified the said test in Porter v. Magill, Porter v. Magill,
(2002) 1 All ER 465 , p. 507 (HL) (The test as laid down in this case is: “The court must first
ascertain all the circumstances which have a bearing on the suggestion that the judge was biased, it must then ask whether those
circumstances would lead to a fair minded and informed observer to conclude that there was a real possibility that the tribunal was
biased: The question is whether a fair minded and informed observer, having considered the facts would conclude that there was a
real possibility that the tribunal was biased.” The test as now formulated is objective and accords with the view taken in Strasbourg
court and also in other common law jurisdictions). This test was reaffirmed in Lawal v. Northern Spirit, Lawal v.
Northern Spirit,
(2004) 1 All ER 187 , pp. 192, 193 (HL); and R. (on the application of Al-Hasan) v. Secretary of
State for the Home Department, R. (on the application of Al-Hasan) v. Secretary of State for the Home
Department,
(2005) 1 All ER 927 , p. 940 (HL). See furtherexp. Pinochit Ugarta (No. 2),
(1999) 1 All ER 577 (HL) (A judge is automatically disqualified from hearing a matter in which
he has a pecuniary interest in the outcome as also when the decision would lead to promotion of a cause in which he is involved,
together with one of the parties); Locabail (UK) Ltd. v. Bayfield Properties Ltd., Locabail (UK) Ltd. v. Bayfield
Mr.Srikanth -
Page 58 of 103
Properties Ltd.,
(2000) 1 All ER 65 (CA) (A joint judgment on ’Bias’ by LORD BINGHAM C.J., LORD WOLF
MR and SIR RICHARD VC: Parties may waive their right to object on the ground of ’bias’ when there is no automatic
disqualification and facts concerning ’bias’ have been disclosed. Extra judicial writing by a judge on a question will not normally
disqualify a judge for deciding that question except in extreme cases). Helljay Investments Pvt. Ltd. v. Deputy Commissioner of
Taxation, Helljay Investments Pvt. Ltd. v. Deputy Commissioner of Taxation, 74 ALJR 68 (The bare fact that a
judicial officer has earlier expressed an opinion on a question of law in a case will seldom if ever warrant a conclusion of
apprehension of bias); Johnson v. Johnson, Johnson v. Johnson, (2000) 74 AL JR 1380, pp. 1382, 1386-91 (Test of
apprehended bias in Australia); Ebner v. Official Trusty in Bankruptcy, Ebner v. Official Trusty in Bankruptcy, 75
ALJR 277 (The test is one of possibility, real and not remote, not probability); Refugee Review Tribunal, Ex parte H, IN RE.
Refugee Review Tribunal, Ex parte H, IN RE. Re Refugee Review Tribunal, Ex parte H, (2001) 75 ALJR 982, p. 990 (The test of
apprehended bias is objective test of possibility as distinct from probability); Concrete Pty Ltd. v. Parramatta Design and
Developments Pty Ltd., Concrete Pty Ltd. v. Parramatta Design and Developments Pty Ltd., (2006) 81 ALJR 352,
p. 371 (para 110). (A judge is disqualified if a fair-minded by-observer might reasonably apprehend that the judge might not bring
an impartial mind to the resolution of the question the judge is required to decide). Kumaon Mandal Vikas Nigam Ltd. v. Girja
Shanker Pant, Kumaon Mandal Vikas Nigam Ltd. v. Girja Shanker Pant,
AIR 2001 SC 24 [
LNIND 2000 SC 1362 ], p. 35 :
(2001) 1 SCC 182 [
LNIND 2000 SC 1362 ] (Bias depends on facts of each case and allegation should be supported
by positive evidence. Apprehension of bias is not sufficient, and facts should show real danger of bias or real likelihood of bias);
Union of India v. B.N. Jha, Union of India v. B.N. Jha,
AIR 2003 SC 1416 [
LNIND 2003 SC 304 ], p. 1424 :
(2003) 4 SCC 531 [
LNIND 2003 SC 304 ], p. 544, (objective test of real likelihood of bias); M.P. Special Police
Establishment v. State of M.P., M.P. Special Police Establishment v. State of M.P.,
(2004) 8 SCC 788 [
LNIND 2004 SC 1133 ], pp. 800, 803 (real danger of bias on objective test). Crawford Bayley &
Co. v. Union of India, Crawford Bayley & Co. v. Union of India,
(2006) 6 SCC 25 [
LNIND 2006 SC 471 ] (paras 18, 19) :
AIR 2006 SC 2544 [
LNIND 2006 SC 471 ]. (The doctrine ’no man can be a judge in his own cause’ cannot be
applied simply on the ground that an officer of a statutory corporation has been appointed Estate Officer under the Public Premises
Eviction Act, 1971, who will take action to evict persons in unauthorized occupation of premises belonging to the corporation).
Election Commission of India v. Subramanian Swamy, Election Commission of India v. Subramanian Swamy,
AIR 1996 SC 1810 [
LNIND 1996 SC 843 ], p. 1817 (para 15) :
(1996) 4 SCC 104 [
LNIND 1996 SC 843 ] (objection on the ground of bias is subject to the doctrine of necessity.
Thus if there is no other person excepting A to decide the issue, the doctrine of necessity will make it imperative on him to decide
the issue inspite of any allegation of bias); State of West Bengal v. Shivananda Pathak, State of West Bengal v.
Shivananda Pathak,
AIR 1998 SC 2050 : (1998) 5 SCC 513 (Bias on the ground of judicial obstinacy); Amar Nath
Chowdhury v. Braithwaite & Co. Ltd., Amar Nath Chowdhury v. Braithwaite & Co. Ltd.,
AIR 2002 SC 678 [
LNIND 2002 SC 27 ]:
(2002) 2 SCC 290 [
LNIND 2002 SC 27 ] (Managing Director dismissing an employee cannot sit in the Board of
Directors to hear the employee's appeal. Doctrine of necessity was inapplicable as the Board could have delegated its appellate
power to a committee). See Sir Bloom-Cooper's Comment on ’Bias in Appeal’, (2005) Public Law 225 in which he quotes at p. 227
a very illuminating judgment of Judge Jerome Frank (on behalf of himself, Judge Learned Hand and Judge Swam) in Rt J.P. Linhan
Inc., (138 F 20, 650), a brief excerpt from which reads: “Democracy must, indeed, fail unless our courts try cases fairly, and there
can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, ’bias’ and ’partiality’ be defined to
mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will.” Judge
Frank in Linaham supra also quoted in Samya Sett v. Shambhu Sarkar, Samya Sett v. Shambhu Sarkar,
(2005) 6 SCC 767 [
LNIND 2005 SC 615 ], p. 775.
45 Institute of Chartered Accountants of India v. L.K. Ratna, Institute of Chartered

Accountants of India v. L.K. Ratna,
(1986) 4 SCC 537 [
LNIND 1986 SC 394 ] :
AIR 1987 SC 71 [
Mr.Srikanth -
Page 59 of 103
LNIND 1986 SC 394 ]; K.L. Shephard v. Union of India, K.L. Shephard v.

Union of India,
AIR 1988 SC 686 [
LNIND 1987 SC 1008 ]:
(1987) 4 SCC 431 [
LNIND 1987 SC 1008 ]; H.L. Trehan v. Union of India, H.L. Trehan v. Union of
India,
AIR 1989 SC 568 [
LNIND 1988 SC 557 ]:
(1989) 1 SCC 764 [
LNIND 1988 SC 557 ].
46 Maneka Gandhi v. Union of India, Maneka Gandhi v. Union of India,

AIR 1978 SC 597 [
LNIND 1978 SC 25 ]:
(1978) 1 SCC 248 [
Union of India,
(1984) 3 SCC 465 [
LNIND 1984 SC 381 ], pp. 486-91:
AIR 1984 SC 1271 [
LNIND 1984 SC 381 ]; Charan Lal Sahu v. Union of India, Charan Lal Sahu v.
Union of India,
AIR 1990 SC 1480 [
LNIND 1989 SC 639 ], pp. 1544, 1545:
(1990) 1 SCC 613 [
LNIND 1989 SC 639 ]; Canara Bank v. V.K. Awasthy, Canara Bank v. V.K.
Awasthy,
(2005) 6 SCC 321 [
LNIND 2005 SC 319 ] (paras 5 and 6). See further Luga Bay Shipping Corporation v. Board
of Trustees of the Port of Cochin, Luga Bay Shipping Corporation v. Board of Trustees of the Port of Cochin,
AIR 1997 SC 544 [
LNIND 1996 SC 1960 ], p. 550:
1997 (1) SCC 631 [
LNIND 1996 SC 1960 ]. (Urgency for repair of the port and to have the damages in hand for that
purpose may enable making of Regulations to enable unilateral fixation and recovery of damages, subject to a right of suit, against
a ship causing damage to the Port.). The court will be extremely reluctant to construe the statute to exclude predecisional hearing
except in very exceptional circumstances: Swadeshi Cotton Mills v. Union of India, Swadeshi Cotton Mills v.
Union of India,
(1981) 1 SCC 664 [
LNIND 1981 SC 28 ] para 44; Bidhannagar (Salt Lake) Welfare Association v. Central
Valuation Board, Bidhannagar (Salt Lake) Welfare Association v. Central Valuation Board,
AIR 2007 SC 2276 [
LNIND 2007 SC 729 ] para 32:
(2007) 6 SCC 668 [
LNIND 2007 SC 729 ].
47 I.J. Rao, Asstt. Collector of Customs v. Bibhuti Bhushan Bagh, I.J. Rao, Asstt.
Collector of Customs v. Bibhuti Bhushan Bagh,
AIR 1989 SC 1884 [
LNIND 1989 SC 320 ]:
1989 (3) SCC 202 [
LNIND 1989 SC 320 ].
48 Ibid, p. 1890. Also see, cases in footnote 46, supra.
49 Calvin v. Carr, Calvin v. Carr,

(1980) AC 574 (PC); Lloyd v. Mcmahon, Lloyd v. Mcmahon,
(1987) 1 All ER 1118 , p. 1165 (HL); Union Carbide Corporation v. Union of India,
Union Carbide Corporation v. Union of India,
Mr.Srikanth -
Page 60 of 103
AIR 1992 SC 248 : (1991) 4 SCC 584; Canara Bank v. Debasis Das, Canara
Bank v. Debasis Das,
(2003) 4 SCC 557 [
LNIND 2003 SC 324 ], p. 576:
AIR 2003 SC 2041 [
LNIND 2003 SC 324 ], p. 2051(The case also discusses in detail the concept of natural justice);
Canara Bank v. V.K. Awasthy, Canara Bank v. V.K. Awasthy,
AIR 2005 SC 2090 [
LNIND 2005 SC 319 ](Natural Justice in the context of dismissal from service). See further
Commissioner of Sales Tax v. Subhash&Co., Commissioner of Sales Tax v. Subhash&Co.,
(2003) 3 SCC 454 [
LNIND 2003 SC 209 ] (The appellate authority may in suitable cases remit the case to the
original authority. The case also discusses the meaning of ‘notice’ and refers to various dictionaries and cases).
50 For example see cases relating to cancellation of examination on report of mass copying: Bihar School Examination
Board v. Subhas Chandra, Bihar School Examination Board v. Subhas Chandra,
AIR 1970 SC 1269 [
LNIND 1970 SC 117 ]:
(1970) 1 SCC 648 [
LNIND 1970 SC 117 ]; Chairman J&K State Board of Education v. Feyaz Ahmad,
Chairman J&K State Board of Education v. Feyaz Ahmad,
AIR 2000 SC 1039 [
LNIND 2000 SC 181 ]:
(2000) 3 SCC 59 [
LNIND 2000 SC 181 ].
51 See for the nature of flexibility in this matter State of Maharashtra v. Jalgaon Municipal Council,
State of Maharashtra v. Jalgaon Municipal Council,
AIR 2003 SC 1659 [
LNIND 2003 SC 203 ], p. 1677 (para 32).
52 State Bank of Patiala v. S.K. Sharma, State Bank of Patiala v. S.K. Sharma,
AIR 1996 SC 1669 [
LNIND 1996 SC 2680 ], pp. 1683, 1684:
1996 (3) SCC 364 [
LNIND 1996 SC 2680 ]; P.D. Agrawal v. State Bank of India, P.D. Agrawal v.
State Bank of India,
(2006) 8 SCC 776 [
LNIND 2006 SC 326 ] (para 39):
AIR 2006 SC 2064 [
LNIND 2006 SC 326 ]. See further Union of India v. Mustafa&Najibai Trading Co.,
Union of India v. Mustafa&Najibai Trading Co.,
JT 1998 (5) SC 16 [
LNIND 1998 SC 611 ], pp. 36, 37:
AIR 1998 SC 2526 [
LNIND 1998 SC 611 ]:
1998 (6) SCC 79 [
LNIND 1998 SC 611 ]; State of U.P. v. Harendra Arora, State of U.P. v.
Harendra Arora,
AIR 2001 SC 2319 [
LNIND 2001 SC 1155 ]:
(2001) 6 SCC 392 [
LNIND 2001 SC 1155 ](non-furnishing of enquiry report under R. 55A of the Civil Services
(Classification Control and Appeal) Rules, 1930); Oriental Insurance Co. Ltd. v. S. Balkrishnan, Oriental
Insurance Co. Ltd. v. S. Balkrishnan,
AIR 2001 SC 2400 [
LNIND 2001 SC 2895 ]:
(2003) 11 SCC 734 [
LNIND 2001 SC 2895 ](non-supply of enquiry report); Canara Bank v. Debasis Das,
Canara Bank v. Debasis Das,
(2003) 4 SC 557 , p. 578:
Mr.Srikanth -
Page 61 of 103
AIR 2003 SC 2041 [

LNIND 2003 SC 324 ]; State of Maharashtra v. Jalgaon Municipal Council, supra,
State of Maharashtra v. Jalgaon Municipal Council, supra, pp. 1678, 1679; Commissioner of Income Tax Chandigarh v. Pearl
Mech. Eng. and Foundry Works, Commissioner of Income Tax Chandigarh v. Pearl Mech. Eng. and Foundry
Works,
(2004) 4 SCC 597 [
LNIND 2004 SC 506 ] :
AIR 2004 SC 2345 [
LNIND 2004 SC 506 ]. (In a proceeding for a acquisition of property under
s. 269 of the Income Tax Act, 1961 , the acquisition does not become invalid if notice to the owner is issued before
publication of the notice in the Official Gazette and not after it for it causes no prejudice); Union of India v. Jesus Sales
Corporation, Union of India v. Jesus Sales Corporation,
AIR 1996 SC 1509 [
LNIND 1996 SC 2608 ], p. 1512:
(1996) 4 SCC 69 [
LNIND 1996 SC 2608 ] (Hearing does not always mean personal hearing); Ganesh Santa Ram
Sirur v. State Bank of India, Ganesh Santa Ram Sirur v. State Bank of India,
AIR 2005 SC 314 [
LNIND 2004 SC 1148 ], pp. 323, 324. (Personal hearing not always necessary); Transmission
Corpn. of A.P. Ltd. v. Shri Rama Krishna Rice Mill, Transmission Corpn. of A.P. Ltd. v. Shri Rama Krishna Rice
Mill,
(2006) 3 SCC 74 [
LNIND 2006 SC 111 ] (para 9):
AIR 2006 SC 1445 [
LNIND 2006 SC 111 ](cross-examination of a person whose statement is relied upon not always
necessary); Punjab National Bank v. Manjeet Singh, Punjab National Bank v. Manjeet Singh,
(2006) 8 SCC 647 [
LNIND 2006 SC 800 ] (paras 17, 18):
AIR 2007 SC 262 [
LNIND 2006 SC 800 ](In case of an industrial dispute individual workers are not required to be
heard. Hearing given to unions is sufficient).
53 Aligarh Muslim University v. Mansoor Ali Khan, Aligarh Muslim University v.

Mansoor Ali Khan,
AIR 2000 SC 2783 [
LNIND 2000 SC 1156 ], pp. 2787, 2788:
(2000) 7 SCC 529 [
LNIND 2000 SC 1156 ]; M.C. Mehta v. Union of India, M.C. Mehta v. Union of
India,
JT 1999 (5) SC 114 [
LNIND 1999 SC 617 ]:
AIR 1999 SC 2583 [
LNIND 1999 SC 617 ]; S.L. Kapoor v. Jagmohan, S.L. Kapoor v. Jagmohan,
1980 (4) SCC 379 [
LNIND 1980 SC 391 ] :
AIR 1981 SC 136 [
LNIND 1980 SC 391 ]; Venkateshwara Rao v. Government of Andhra Pradesh,
Venkateshwara Rao v. Government of Andhra Pradesh,
1966 (2) SCR 172 [
LNIND 1965 SC 254 ] :
AIR 1966 SC 828 [
LNIND 1965 SC 254 ]. See further note 15, p. 756.
54 M.C. Mehta v. Union of India, supra, M.C. Mehta v. Union of India, supra, (paras
22, 23) (AIR); State of Manipur v. Y.Token Singh, State of Manipur v. Y.Token Singh,
(2007) 5 SCC 65 [
LNIND 2007 SC 203 ] (paras 22, 30):
(2007) 3 JT 606 .
55 Ashok Kumar Sarkar v. Union of India, Ashok Kumar Sarkar v. Union of India,
(2007) 4 SCC 54 [
Mr.Srikanth -
Page 62 of 103
LNIND 2007 SC 223 ] (para 28) p. 66 :

(2007) 6 JT 127 .
56 Ibid, para 33 pages 68-70.
58 State of U.P. v. Renusagar Power Co., State of U.P. v. Renusagar Power Co.,
AIR 1988 SC 1737 [
LNIND 1988 SC 619 ], p. 1763 :
(1988) 4 SCC 59 [
LNIND 1988 SC 619 ]; Shri Sitaram Sugar Co. Ltd. v. Union of India, Shri
Sitaram Sugar Co. Ltd. v. Union of India,
AIR 1990 SC 1277 [
LNIND 1990 SC 152 ], p. 1297 :
(1990) 3 SCC 223 [
LNIND 1990 SC 152 ]; West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd.,
West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd.,
AIR 2002 SC 3588 [
LNIND 2002 SC 632 ], p. 3600 :
(2002) 8 SCC 715 [
LNIND 2002 SC 632 ]. See further Boddington v. British Transport Police,
Boddington v. British Transport Police,
(1998) 2 All ER 203 , pp. 218, 219 (HL).
59 Ibid. For judicial review of Act passed by Parliament or State Legislature, see pp. 530-36, post.
60 T. Venkata Reddy v. State of A.P., T. Venkata Reddy v. State of A.P.,

(1985) 3 SCC 198 [
LNIND 1985 SC 106 ], pp. 211, 212 :
AIR 1985 SC 724 [
LNIND 1985 SC 106 ]; K. Nagaraj v. State of Andhra Pradesh, K. Nagaraj v.
State of Andhra Pradesh,
(1985) 1 SCC 523 [
LNIND 1985 SC 9 ], pp. 548, 549 :
AIR 1985 SC 551 [
LNIND 1985 SC 9 ]; Gurudevdatta VKSS Maryadit v. State of Maharashtra,
Gurudevdatta VKSS Maryadit v. State of Maharashtra,
AIR 2001 SC 1980 [
LNIND 2001 SC 761 ], p. 1987 :
(2001) 4 SCC 534 [
LNIND 2001 SC 761 ].
61 D.C. Wadhwa (Dr.) v. State of Bihar, D.C. Wadhwa (Dr.) v. State of Bihar,
(1987) 1 SCC 378 [
LNIND 1986 SC 546 ] :
AIR 1987 SC 579 [
LNIND 1986 SC 546 ]. See further Krishna Kumar Singh v. State of Bihar,
Krishna Kumar Singh v. State of Bihar,
JT 1998 (4) SC 58 [
LNIND 1998 SC 553 ]:
1998 (5) SCC 643 [
LNIND 1998 SC 553 ].
Mr.Srikanth -
Page 63 of 103
62 Kehar Singh v. Union of India, Kehar Singh v. Union of India,

AIR 1989 SC 653 [
LNIND 1988 SC 586 ], p. 659 :
1989 (1) SCC 204 [
LNIND 1988 SC 586 ].
63 Ibid. See further Reckley v. Minister of Public Safety and Immigration, Reckley
v. Minister of Public Safety and Immigration,
(1996) 1 All ER 562 (PC) (Exercise of prerogative of mercy under
section 92 of the Constitution of Bahamas is not open to judicial review); De Freitas v. Benny, De
Freitas v. Benny,
(1976) 1 AC 239 , p. 247 (PC) (similar view under the
constitution of Trinidad and Tobago. As pithily put by Lord Diplock: “Mercy is not the subject of legal rights. It
begins where legal rights end.”). For criticism, see Christopher Golber, “Reckley (No. 2) and the Prerogative of Mercy: Act of
grace or constitutional safeguard”, 1997 Modern Law Review 572.
64 Swaran Singh v. State of U.P., Swaran Singh v. State of U.P.,

JT 1998 (2) SC 452 [
LNIND 1998 SC 301 ]:
AIR 1998 SC 2026 [
LNIND 1998 SC 301 ]:
(1998) 4 SCC 75 [
LNIND 1998 SC 301 ]. See further State (Govt. of NCT) v. Preem Rai, State
(Govt. of NCT) v. Preem Rai,
(2003) 7 SCC 121 [
LNIND 2003 SC 632 ] :
2003 SCC (Cri) 1586 [
LNIND 2003 SC 632 ] (court has no power to commute sentence under
section 433(c) Cr.P.C. Difference between commutation, Pardon, Remission, Amnesity. Articles 72 and 161 also
considered).
65 Epuru Sudhakar v. Govt. of A.P., Epuru Sudhakar v. Govt. of A.P.,

(2006) 8 SCC 161 [
LNIND 2006 SC 807 ] (paras 56, 65) :
AIR 2006 SC 3385 [
LNIND 2006 SC 807 ].
66 See pages 743-44, infra.
67 A.K. Kaul v. Union of India, A.K. Kaul v. Union of India,

AIR 1995 SC 1403 [
LNIND 1995 SC 533 ], p. 1415 :
1995 (4) SCC 73 [
LNIND 1995 SC 533 ]. See further Indian Railway Construction Co. Ltd. v. Ajaykumar,
Indian Railway Construction Co. Ltd. v. Ajaykumar,
AIR 2003 SC 1843 [
LNIND 2003 SC 251 ], pp. 1848 to 1850 :
(2003) 4 SCC 579 [
LNIND 2003 SC 251 ] (Principles of judicial review in a case where departmental enquiry was
dispensed with under Article 311(2)).
68 M.S.M. Sharma v. Srikrishna Sinha, M.S.M. Sharma v. Srikrishna Sinha,

AIR 1959 SC 395 [
LNIND 1958 SC 163 ]: 1959 Supp (1) SCR 806; Keshav Singh In re Keshav
Singh In re (special Reference No. 1 of 1964)
AIR 1965 SC 745 .
Mr.Srikanth -
Page 64 of 103
69 Raja Ram Pal v. Hon'ble Speaker, Lok Sabha, Raja Ram Pal v. Hon'ble Speaker,
Lok Sabha,
(2007) 3 SCC 184 :
(2007) 2 JT 1 [
LNIND 2007 SC 35 ].
70 See pages 761-63, post.
71 J.K. Gas Plant Manufacturing Co. (Rampur) Ltd. v. Emperor, J.K. Gas Plant
Manufacturing Co. (Rampur) Ltd. v. Emperor,
AIR 1947 PC 38 .
72 Major E.G. Barsay v. State of Bombay, Major E.G. Barsay v. State of Bombay,
AIR 1961 SC 1762 [
LNIND 1961 SC 196 ], p. 1776 :
1962 (2) SCR 195 [
LNIND 1961 SC 196 ].
73 Dattatraya Moreshwar v. State of Bombay, Dattatraya Moreshwar v. State of

Bombay,
AIR 1952 SC 181 [
LNIND 1952 SC 22 ]:
1952 SCR 612 [
LNIND 1952 SC 22 ]; State of Bombay v. Purushottam Jog Naik, State of
Bombay v. Purushottam Jog Naik,
AIR 1952 SC 317 [
LNIND 1952 SC 40 ]:
1952 SCR 674 [
LNIND 1952 SC 40 ]; Joseph John, P. v. State of Trav-Co., Joseph John, P. v.
State of Trav-Co.,
AIR 1955 SC 160 [
LNIND 1954 SC 163 ]:
(1955) 1 SCR 1011 [
LNIND 1954 SC 163 ]; Ghaio Mall & Sons v. State of Delhi, Ghaio Mall &
Sons v. State of Delhi,
AIR 1959 SC 65 [
LNIND 1958 SC 111 ]:
1959 SCR 1424 [
LNIND 1958 SC 111 ]; State of Rajasthan v. Sripal Jain, State of Rajasthan v.
Sripal Jain,
AIR 1963 SC 1323 [
LNIND 1963 SC 17 ], p. 1326 :
(1964) 2 SCR 722 [
LNIND 1963 SC 90 ]; R. Chitralekha v. State of Mysore, R. Chitralekha v. State
of Mysore,
AIR 1964 SC 1823 [
LNIND 1964 SC 20 ], p. 1829 :
(1964) 6 SCR 238 [
LNIND 1964 SC 6 ]; Bijoya Lakshmi Cotton Mills Ltd. v. State of W.B., Bijoya
Lakshmi Cotton Mills Ltd. v. State of W.B.,
AIR 1967 SC 1145 [
LNIND 1967 SC 12 ]:
1967 (2) SCR 406 [
LNIND 1967 SC 12 ]; State Govt. Houseless Harijan Employees Association v. State of
Karnataka, State Govt. Houseless Harijan Employees Association v. State of Karnataka,
AIR 2001 SC 437 [
LNIND 2000 SC 1829 ], p. 447 :
(2001) 1 SCC 610 [
Mr.Srikanth -
Page 65 of 103
LNIND 2000 SC 1829 ]. Crawford Bayley & Co. v. Union of India, Crawford
Bayley & Co. v. Union of India,
(2006) 6 SCC 25 [
LNIND 2006 SC 471 ] (para 26) :
AIR 2006 SC 2544 [
LNIND 2006 SC 471 ](Rules of Business issued under
Articles 77 and
166 of the
Constitution are not mandatory). But mere passing of a cabinet resolution is not enough till some action is taken in
terms of Article 166 for issuance of a Government order: J.P. Bansal v. State of Rajasthan, J.P. Bansal v. State of
Rajasthan, 2003 AIR SCW 1848, p. 1853 :
(2003) 5 SCC 134 [
LNIND 2003 SC 322 ] :
AIR 2003 SC 1405 [
LNIND 2003 SC 322 ].
74 Balakotiah v. Union of India, Balakotiah v. Union of India,

AIR 1958 SC 232 [
LNIND 1957 SC 133 ], p. 236 :
1958 SCR 1052 [
LNIND 1957 SC 133 ]; L. Hazarimal Kuthiala v. I.T.O., L. Hazarimal Kuthiala
v. I.T.O.,
AIR 1961 SC 200 [
LNIND 1961 SC 481 ], p. 202 :
(1961) 1 SCR 892 ; Berar Swadeshi Vanaspati v. Municipal Committee, Shegaon,
Berar Swadeshi Vanaspati v. Municipal Committee, Shegaon,
AIR 1962 SC 420 [
LNIND 1957 SC 18 ]:
(1962) 1 SCR 596 ; Gopal Narain v. State of U.P., Gopal Narain v. State of
U.P.,
AIR 1964 SC 370 [
LNIND 1963 SC 410 ], p. 377 :
(1964) 4 SCR 869 [
LNIND 1963 SC 410 ]; Roshan Lal Gautham v. State of U.P., Roshan Lal
Gautham v. State of U.P.,
AIR 1965 SC 991 [
LNIND 1964 SC 276 ], p. 994 :
(1965) 1 SCR 841 [
LNIND 1964 SC 276 ], J.K. Steel Ltd. v. Union of India, J.K. Steel Ltd. v. Union
of India,
AIR 1970 SC 1173 [
LNIND 1968 SC 316 ], p. 1188 :
(1969) 2 SCR 481 [
LNIND 1968 SC 316 ]; N.B. Sanjana v. Elphinstone Spinning & Weaving Mills Co. Ltd.,
N.B. Sanjana v. Elphinstone Spinning & Weaving Mills Co. Ltd.,
AIR 1971 SC 2039 [
LNIND 1971 SC 657 ], p. 2045 :
(1971) 1 SCC 337 [
LNIND 1971 SC 657 ]; P. Radhakrishna Naidu v. Government of Andhra Pradesh,
P. Radhakrishna Naidu v. Government of Andhra Pradesh,
AIR 1977 SC 854 [
LNIND 1976 SC 478 ], p. 858 :
(1977) 1 SCC 561 [
LNIND 1976 SC 478 ]; Municipal Corporation, Ahmedabad v. Benttiraben Manilal,
Municipal Corporation, Ahmedabad v. Benttiraben Manilal,
AIR 1983 SC 537 [
LNIND 1983 SC 101 ], p. 539 :
(1983) 2 SCC 422 [
Tulsiram Patel,
(1985) 3 SCC 398 [
LNIND 1985 SC 219 ], p. 501 :
AIR 1985 SC 1416 [
LNIND 1985 SC 219 ]; Union of India v. Khazan Singh, Union of India v.
Khazan Singh,
Mr.Srikanth -
Page 66 of 103
AIR 1992 SC 1535 : 1993 Supp (1) SCC 583, pp. 585, 586; State of Karnataka v. Krishnaji
Srinivas Kulkarni, State of Karnataka v. Krishnaji Srinivas Kulkarni,
(1994) 2 SCC 558 , p. 563; M.T. Khan v. State of A.P., M.T. Khan v. State of
A.P.,
(2004) 2 SCC 267 [
LNIND 2004 SC 16 ], p. 273 :
AIR 2004 SC 2934 [
LNIND 2004 SC 16 ]; Union of India v. Azadi Bachao Andolan, Union of India
v. Azadi Bachao Andolan,
AIR 2004 SC 1107 [
LNIND 2003 SC 853 ], p. 1125 (para 46) : 2003 Supp (1) 220.
75 Afzal Ullah v. State of U.P., Afzal Ullah v. State of U.P.,

AIR 1964 SC 264 [
LNIND 1963 SC 220 ], p. 268 :
1964 (4) SCR 991 [
LNIND 1963 SC 220 ]; Hukumchand Mills Ltd. v. State of M.P., Hukumchand
Mills Ltd. v. State of M.P.,
AIR 1964 SC 1329 [
LNIND 1964 SC 46 ], p. 1332 :
1964 (6) SCR 857 [
LNIND 1964 SC 46 ]; Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of
India, Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India,
AIR 1992 SC 1033 [
LNIND 1992 SC 104 ], p. 1043 :
1992 (2) SCC 343 [
LNIND 1992 SC 104 ]; Om Prakash v. State of U.P., Om Prakash v. State of
U.P.,
(2004) 3 SCC 402 [
LNIND 2004 SC 1328 ], p. 409 :
AIR 2004 SC 1896 [
LNIND 2004 SC 1328 ].
76 Amritsar Improvement Trust v. Baldev Inder Singh, Amritsar Improvement Trust v.

Baldev Inder Singh,
AIR 1972 SC 182 [
LNIND 1971 SC 575 ], p. 186 (paras 18 and 19) :
1972 (1) SCC 165 [
LNIND 1971 SC 575 ].
77 Commissioner of Sales Tax U.P., Lucknow v. Anoop Wines Khuldabad, Allahabad,

Commissioner of Sales Tax U.P., Lucknow v. Anoop Wines Khuldabad, Allahabad,
AIR 1988 SC 2042 [
78 Union of India v. Modi Rubber Ltd., Union of India v. Modi Rubber Ltd.,
(1986) 4 SCC 66 [
LNIND 1986 SC 266 ], pp. 74-77 :
AIR 1985 SC 1992 .
79 Ibid.
80 ##Parekh Wadilal v. C.I.T., Nagpur, ##Parekh Wadilal v. C.I.T., Nagpur,

AIR 1967 SC 448 [
LNIND 1966 SC 276 ], p. 449 (para 4) :
(1967) 1 SCR 998 [
LNIND 1966 SC 276 ]; Steel Bros. v. C.I.T., Steel Bros. v. C.I.T.,
Mr.Srikanth -
Page 67 of 103
AIR 1958 SC 315 : (1958) 33 ITR 1; SRM Service v. CIT, Hyderabad, SRM
Service v. CIT, Hyderabad,
AIR 1973 SC 1445 [
LNIND 1973 SC 126 ], p. 1448 :
1974 (3) SCC 116 [
LNIND 1973 SC 126 ]. See also Progressive Financers v. Commissioner of Income-tax,
Progressive Financers v. Commissioner of Income-tax,
JT 1997 (2) SC 729 [
LNIND 1997 SC 319 ]:
AIR 1997 SC 1021 [
(1997) 3 SCC 79 [
LNIND 1997 SC 319 ].
81 A Kedar Nath Jute Mfg. Co. Ltd. v. Commercial Tax Officer, Kedar Nath Jute Mfg. Co. Ltd. v.
Commercial Tax Officer,
IR 1966 SC 12 : 1965 (3) SCR 626; Sales Tax Commissioner v. Prabhudayal Premnarain,
Sales Tax Commissioner v. Prabhudayal Premnarain,
AIR 1988 SC 1775 [
LNIND 1988 SC 607 ]: 1988 Supp SCC 729; State of Andhra Pradesh v. Hyderabad Asbestos
Cement Production Ltd., State of Andhra Pradesh v. Hyderabad Asbestos Cement Production Ltd.,
JT 1994(3) SC 456 :
AIR 1994 SC 2364 : (1994) 5 SCC 100; Phool Chand Gupta v. State of Andhra Pradesh,
Phool Chand Gupta v. State of Andhra Pradesh,
AIR 1997 SC 914 [
LNIND 1997 SC 85 ]:
1997 (1) Scale 419 [
LNIND 1997 SC 85 ] :
(1997) 2 SCC 591 [
LNIND 1997 SC 85 ]; India Agencies (Regd.) Bangalore v. Additional Commissioner of
Commercial Taxes, India Agencies (Regd.) Bangalore v. Additional Commissioner of Commercial Taxes,
(2005) 2 SCC 129 [
LNIND 2004 SC 1251 ], p. 141. For a similar case of concessional rate of octroi; see Indian
Aluminium Company Ltd. v. Thane Municipal Corporation, Indian Aluminium Company Ltd. v. Thane
Municipal Corporation,
AIR 1992 SC 53 [
82 Shrinivasa Reddy v. State of Mysore, Shrinivasa Reddy v. State of Mysore,

AIR 1960 SC 350 [
LNIND 1959 SC 198 ]:
1960 (2) SCR 130 [
LNIND 1959 SC 198 ].
83 Edwards Ramia Ltd. v. African Woods Ltd., Edwards Ramia Ltd. v. African Woods
Ltd.,
(1960) 1 All ER 627 , p. 630 (PC). But see Krishna Kumar Mediratta v. Phulchand
Agarwala, Krishna Kumar Mediratta v. Phulchand Agarwala,
AIR 1977 SC 984 [
LNIND 1977 SC 44 ], pp. 986, 987 :
(1977) 2 SCC 5 [
LNIND 1977 SC 44 ]. (In this it has been held that the requirement of deposit of fees along with
the application for a prospecting licence under Rule 9(2) of the Mineral Concession Rules, 1960 is directory).
84 See cases in notes 7 to 9, pp. 390-91 under title 6(c) ’Use of negative words’.
85 Jagat Dhish Bhargava v. Jawahar Lal Bhargava, Jagat Dhish Bhargava v. Jawahar
Lal Bhargava,
Mr.Srikanth -
Page 68 of 103
AIR 1961 SC 832 [

LNIND 1960 SC 311 ]:
1961 (2) SCR 918 [
LNIND 1960 SC 311 ]; State of U.P. v. C. Tobit, State of U.P. v. C. Tobit,
AIR 1958 SC 414 [
LNIND 1958 SC 9 ]:
1958 SCR 1275 [
LNIND 1958 SC 9 ]. But the requirement of filing three copies of record for preferring a Letters’
Patent Appeal under the Punjab High Court Rules has been held to be directory; State of Punjab v. Shamlal Murari,
State of Punjab v. Shamlal Murari,
AIR 1976 SC 1177 [
LNIND 1975 SC 384 ]:
(1977) 1 SCC 719 .
86 Gour Chandra Rout v. Public Prosecutor, Gour Chandra Rout v. Public Prosecutor,
AIR 1963 SC 1198 [
LNIND 1962 SC 390 ]: 1963 Supp (2) SCR 447. For difference between requirement of a
complaint in writing by a prescribed officer and sanction, see Electrical Manufacturing Co. v. D.D. Bhargava,
Electrical Manufacturing Co. v. D.D. Bhargava,
AIR 1968 SC 247 [
LNIND 1967 SC 248 ], pp. 249, 250 :
1968 (1) SCR 394 [
LNIND 1967 SC 248 ].
87 Mangalore Chemicals & Fertilisers Ltd. v. Deputy Commissioner of Commercial Taxes,

Mangalore Chemicals & Fertilisers Ltd. v. Deputy Commissioner of Commercial Taxes,
AIR 1992 SC 152 [
LNIND 1991 SC 340 ], pp. 157, 158 :
1992 (3) JT 482 : 1992 Supp (1) SCC 21.
88 Madanlal Fakrichand Dudhediya v. S. Changdeo Sugar Mills, Madanlal

Fakrichand Dudhediya v. S. Changdeo Sugar Mills,
AIR 1962 SC 1543 [
LNIND 1962 SC 125 ], p. 1557 : 1962 Supp (3) SCR 973; Chinnamar Kathiam v. Ayyavoo,
Chinnamar Kathiam v. Ayyavoo,
AIR 1982 SC 137 , p. 140 :
1982 (1) SCC 159 .
89 Ibid.
90 Commissioner of Police v. Gordhandas Bhauji, Commissioner of Police v.

Gordhandas Bhauji,
AIR 1952 SC 16 [
LNIND 1951 SC 63 ], p. 20 :
1952 SCR 135 [
LNIND 1951 SC 63 ].
1 Ajit Singh v. State of Punjab, Ajit Singh v. State of Punjab,

JT 1999 (9) SC 542 [
LNIND 1999 SC 1317 ], p. 543:
1999 (7) Scale 395 [
LNIND 1999 SC 1317 ] :
(1999) 7 SCC 209 [
LNIND 1999 SC 820 ].
Mr.Srikanth -
Page 69 of 103
2 Wellington Association v. Kirit Mehta, Wellington Association v. Kirit Mehta,

AIR 2000 SC 1379 [
LNIND 2000 SC 584 ], p. 1383:
(2000) 4 SCC 272 [
LNIND 2000 SC 584 ].
3 Alcock Ashdown and Company v. Chief Revenue Authority, Alcock Ashdown and
Company v. Chief Revenue Authority,
AIR 1923 PC 138 , p. 144; Chief Controlling Revenue Authority v. Maharashtra Sugar Mills
Ltd., Chief Controlling Revenue Authority v. Maharashtra Sugar Mills Ltd.,
AIR 1950 SC 218 [
LNIND 1950 SC 31 ], pp. 220, 221:
1950 SCR 536 ; Commissioner of Police v. Gordhandas, supra, Commissioner
of Police v. Gordhandas, supra, p. 21, Bhaiya Punjalal v. Bhagwat Prasad, Bhaiya Punjalal v. Bhagwat Prasad,
AIR 1963 SC 120 [
LNIND 1962 SC 232 ], p. 127:
(1963) 3 SCR 312 [
LNIND 1962 SC 232 ]; Ramji Missar v. State of Bihar, Ramji Missar v. State of
Bihar,
AIR 1963 SC 1088 [
LNIND 1962 SC 406 ], p. 1092, 1093: 1963 Supp (2) SCR 745; State of U.P. v. Jogendra Singh,
State of U.P. v. Jogendra Singh,
AIR 1963 SC 1618 [
LNIND 1963 SC 52 ], p. 1620:
1964 (2) SCR 197 [
LNIND 1963 SC 52 ]; Sardar Govind Rao v. State of Madhya Pradesh, Sardar
Govind Rao v. State of Madhya Pradesh,
AIR 1965 SC 1222 [
LNIND 1964 SC 259 ]: 1964 SCN 269 :
1965 MPLJ 566 [
LNIND 1964 SC 259 ], p. 570 (SC). See further Leach v. The Queen, Leach v.
The Queen, (2007) 81 ALJR 598, p. 608 (para 38)(The word ‘may’ is sometimes used not to confer a discretion but a power to be
exercised upon the satisfaction of the matters described in the provision).
4 Societe De Traction v. Kamani Engineering Co. Ltd., Societe De Traction v.

Kamani Engineering Co. Ltd.,
AIR 1964 SC 558 [
LNIND 1963 SC 116 ], p. 562:
1964 (3) SCR 116 [
LNIND 1963 SC 116 ].
5 Official Liquidator v. Dharti Dhan, Official Liquidator v. Dharti Dhan,

AIR 1977 SC 740 [
LNIND 1977 SC 80 ], p. 744:
(1977) 2 SCC 166 [
LNIND 1977 SC 80 ].
6 Nichols In re Baker, Nichols In re Baker, 59 LJ Ch 661, p. 663.
7 Julius v. Lord Bishop of Oxford, Julius v. Lord Bishop of Oxford,

(1874-80) All ER Rep 43 , p. 47:
(1880) 5 AC 214 (HL). See further State (Delhi Administration) v. I.K. Nangia,
State (Delhi Administration) v. I.K. Nangia,
AIR 1979 SC 1977 [
LNIND 1979 SC 417 ], p. 1980:
(1980) 1 SCC 258 [
LNIND 1979 SC 417 ]; Tara Prasad Singh v. Union of India, Tara Prasad
Singh v. Union of India,
Mr.Srikanth -
Page 70 of 103
AIR 1980 SC 1682 [

LNIND 1980 SC 234 ], p. 1698:
(1980) 4 SCC 179 [
LNIND 1980 SC 234 ]; Ambica Quarry Works v. State of Gujarat, Ambica
Quarry Works v. State of Gujarat,
(1987)1 SCC 213 [
LNIND 1986 SC 513 ], p. 218:
AIR 1987 SC 1073 [
LNIND 1986 SC 513 ]; Superintending Engineer, Public Health v. Kuldeep Singh,
Superintending Engineer, Public Health v. Kuldeep Singh,
AIR 1997 SC 2133 [
LNIND 1997 SC 79 ], p. 2137:
(1997) 9 SCC 199 [
LNIND 1997 SC 79 ].
8 Ibid, p. 49, referred to in L. Hirday Narain v. I.T.O. Bareilly, L. Hirday Narain v.

I.T.O. Bareilly,
AIR 1971 SC 33 [
LNIND 1970 SC 283 ], p. 36:
(1970) 2 SCC 530 [
LNIND 1970 SC 321 ].
9 Ibid, p. 59; referred to in Punjab Sikh Regular Motor Service, Raipur v. R.T.A., Raipur,
Punjab Sikh Regular Motor Service, Raipur v. R.T.A., Raipur,
AIR 1966 SC 1318 [
LNIND 1965 SC 261 ]:
(1996) 2 SCR 221 ; Hirday Narain v. I.T.O. Bareilly, supra, Hirday Narain v.
I.T.O. Bareilly, supra, p. 36; Ambica Quarry Works supra; v. State of Gujarat, Ambica Quarry Works supra; v.
State of Gujarat, ; Sub Committee of Judicial Accountability v. Union of India, Sub Committee of Judicial
Accountability v. Union of India,
AIR 1992 SC 320 [
LNIND 1991 SC 968 ], p. 352:
1991 (4) SCC 699 [
LNIND 1991 SC 968 ].

AIR 1977 SC 740 [
LNIND 1977 SC 80 ], p. 745:
(1977) 2 SCC 166 [
LNIND 1977 SC 80 ].
11 Alcock Ashdown&Company v. Chief Revenue Authority, Alcock

Ashdown&Company v. Chief Revenue Authority,
AIR 1923 PC 138 . See further Jaswant Rai v. Central Board of Direct Taxes and Revenue,
Jaswant Rai v. Central Board of Direct Taxes and Revenue,
AIR 1998 SC 1891 [
LNIND 1998 SC 529 ], p. 1894:
(1998) 5 SCC 77 [
LNIND 1998 SC 529 ] (Power of Commissioner under
section 273A of the Income-tax Act 1961 is coupled with a duty).
12 Chief Controlling Reveune Authority v. Maharashtra Sugar Mills Ltd., Chief

Controlling Reveune Authority v. Maharashtra Sugar Mills Ltd.,
AIR 1950 SC 218 [
LNIND 1950 SC 31 ]:
1950 SCR 536 ; Banarasidas Ahluwalia v. Chief Controlling Revenue Authority, Delhi,
Banarasidas Ahluwalia v. Chief Controlling Revenue Authority, Delhi,
AIR 1968 SC 497 [
Mr.Srikanth -
Page 71 of 103
LNIND 1967 SC 283 ], p. 502:

1968 (2) SCR 685 [
LNIND 1967 SC 376 ].
13 Punjab Sikh Regular Motor Service, Raipur v. R.T.A., Raipur, Punjab Sikh Regular
Motor Service, Raipur v. R.T.A., Raipur,
AIR 1966 SC 1318 [
LNIND 1965 SC 261 ]:
1966 (2) SCR 221 [
LNIND 1965 SC 261 ].
14 L. Hirday Narain v. I.T.O., Bareilly, L. Hirday Narain v. I.T.O., Bareilly,

AIR 1971 SC 33 [
LNIND 1970 SC 283 ], p. 36:
(1970) 2 SCC 355 [
LNIND 1970 SC 283 ], p. 359.
15 Wasim Beg v. State of Uttar Pradesh, Wasim Beg v. State of Uttar Pradesh,
AIR 1998 SC 1291 [
LNIND 1998 SC 294 ], p. 1296:
1998 (3) SCC 321 [
LNIND 1998 SC 294 ].
16 N.D. Jayal v. Union of India, N.D. Jayal v. Union of India,

AIR 2004 SC 867 [
LNIND 2003 SC 1171 ], p. 878 (para 24):
(2004) 9 SCC 362 [
LNIND 2003 SC 1171 ].
17 A.P. Aggarwal v. Govt. of National Capital Territory of Delhi, A.P. Aggarwal v.

Govt. of National Capital Territory of Delhi,
AIR 2000 SC 206 ,p. 207:
(2000) 1 SCC 600 [
LNIND 1999 SC 1020 ].
18 Macdougall v. Paterson, Macdougall v. Paterson,

(1851) 11 Ch 755 , p. 773: 138 ER 672, p. 679.
19 Neath and Brecon Ry. Co., Re, Neath and Brecon Ry. Co., Re,
(1874) LR 9 Ch 263, p. 264.
20 Shelly v. London County Council, Shelly v. London County Council,

(1948) 2 All ER 898 , p. 901 (HL).
21 Ramji Missar v. State of Bihar, Ramji Missar v. State of Bihar,

AIR 1963 SC 1088 [
22 Ibid, p. 1093.
Mr.Srikanth -
Page 72 of 103
23 Bhaiya Punjalal v. Bhagvat Prasad, Bhaiya Punjalal v. Bhagvat Prasad,

AIR 1963 SC 120 [
LNIND 1962 SC 232 ], p. 127 :
1963 (3) SCR 312 [
LNIND 1962 SC 232 ].
24 Sub-Divisional Magistrate, Delhi v. Ram Kali (Mst.), Sub-Divisional Magistrate,

Delhi v. Ram Kali (Mst.),
AIR 1968 SC 1 [
LNIND 1967 SC 229 ], p. 5. See further Jamatraj Kewalji Govani v. State of Maharashtra,
Jamatraj Kewalji Govani v. State of Maharashtra,
AIR 1968 SC 178 [
LNIND 1967 SC 115 ], p. 181 :
(1967) 3 SCR 415 [
LNIND 1967 SC 115 ].
25 Bashira v. State of U.P., Bashira v. State of U.P.,

AIR 1968 SC 1313 [
LNIND 1968 SC 122 ]:
1969 (1) SCR 32 [
LNIND 1968 SC 122 ].

AIR 1977 SC 740 [
LNIND 1977 SC 80 ], p. 744 :
(1977) 2 SCC 166 [
LNIND 1977 SC 80 ].
27 Ibid, p. 745.
28 State of U.P. v. Jogendra Singh, State of U.P. v. Jogendra Singh,

AIR 1963 SC 1618 [
LNIND 1963 SC 52 ], p. 1620 :
1964 (2) SCR 197 [
LNIND 1963 SC 52 ].
29 Ibid; Rangaswami, Textile Commissioner v. Sagar Textile Mills (P.) Ltd., Ibid;
Rangaswami, Textile Commissioner v. Sagar Textile Mills (P.) Ltd.,
AIR 1977 SC 1516 [
LNIND 1977 SC 57 ], p. 1517 :
(1977) 2 SCC 578 [
LNIND 1977 SC 57 ].
30 State of U.P. v. Jogendra Singh, State of U.P. v. Jogendra Singh,

AIR 1963 SC 1618 [
LNIND 1963 SC 52 ], p. 1620 :
1964 (2) SCR 197 [
LNIND 1963 SC 52 ].
31 Ibid.
Mr.Srikanth -
Page 73 of 103
32 State of Rajasthan v. Harishanker Rajendrapal, State of Rajasthan v. Harishanker

Rajendrapal,
AIR 1966 SC 296 [
LNIND 1965 SC 427 ]:
1965 (3) SCR 402 [
LNIND 1965 SC 427 ].
33 Sardar Govindrao v. State of M.P., Sardar Govindrao v. State of M.P.,

AIR 1965 SC 1222 [
LNIND 1964 SC 259 ]:
1965 (1) SCR 678 [
LNIND 1964 SC 259 ], distinguished in Sahodara Devi v. Govt. of India,
Sahodara Devi v. Govt. of India,
AIR 1971 SC 1599 [
LNIND 1971 SC 205 ]:
1972 (3) SCC 156 [
LNIND 1971 SC 205 ]. (Case dealing with Rule 27 of the Cantonment Land Administration
Rules).
34 Rangaswami, Textile Commissioner v. Sagar Textile Mills (P) Ltd., Rangaswami,

Textile Commissioner v. Sagar Textile Mills (P) Ltd.,
AIR 1977 SC 1516 [
LNIND 1977 SC 57 ]:
(1977) 2 SCC 578 [
LNIND 1977 SC 57 ].
35 Chief Settlement Commissioner v. Ram Singh, Chief Settlement Commissioner v.

Ram Singh,
(1987) 1 SCC 612 , p. 614 :
AIR 1987 SC 1834 .
36 CIT v. P.K. Noorjahan, CIT v. P.K. Noorjahan,

AIR 1999 SC 1600 , p. 1601 :
(1997) 11 SCC 198 .
37 Sub Committee of Judicial Accountability v. Union of India, Sub Committee of

Judicial Accountability v. Union of India,
AIR 1992 SC 320 [
LNIND 1991 SC 968 ], p. 352 :
1991 (4) SCC 699 [
LNIND 1991 SC 968 ].
38 R. v. Boteler, R. v. Boteler, (1864) 33 LJMC 101, p. 103; referred to in Raja Ram

Mahadeo Paranjype v. Aba Maruti Mali, Raja Ram Mahadeo Paranjype v. Aba Maruti Mali,
AIR 1962 SC 753 [
39 Raja Ram Mahadeo Paranjype v. Aba Maruti Mali, supra, Raja Ram Mahadeo
Paranjype v. Aba Maruti Mali, supra, p. 758.
Mr.Srikanth -
Page 74 of 103
40 Chariant International Ltd. v. Securities and Exchange Board of India, Chariant

International Ltd. v. Securities and Exchange Board of India,
(2004) 8 SCC 524 [
LNIND 2004 SC 852 ], p. 539 :
AIR 2004 SC 4236 [
LNIND 2004 SC 852 ].
41 Akshaibar Lal (Dr.) v. Vice-Chancellor,

BHU , Akshaibar Lal (Dr.) v. Vice-Chancellor,
BHU ,
AIR 1961 SC 619 , p. 626 :
1961 (3) SCR 386 .
42 A. St. Arunachalam Pillia v. Southern Roadways Ltd., A. St. Arunachalam Pillia v.

Southern Roadways Ltd.,
AIR 1960 SC 1191 [
LNIND 1960 SC 147 ], p. 1194 :
1960 (3) SCR 764 [
LNIND 1960 SC 147 ]; Abdul Mateen v. Ram Kailash Pandey, Abdul Mateen v.
Ram Kailash Pandey,
AIR 1963 SC 64 [
LNIND 1962 SC 250 ], p. 69 :
(1963) 3 SCR 523 [
LNIND 1962 SC 250 ] (Both these cases deal with section 64, Andhra Pradesh
Motor Vehicles Act , which empowers the revising authority to ’pass such order in relation to the case as it deems
fit’). See further R. v. Minister of Transport, R. v. Minister of Transport,
(1933) All ER Rep 604 , p. 608 (CA), (LORD RUSSEL), p. 610, (ROMER, L.J.),(consideration
of power of Minister of Transport while dealing with an appeal under section 81, Road Traffic Act, 1930 (20 and 21 Geo. 5, c. 43)
’to make such order as he thinks fit’); C.I.T. v. Kanpur Coal Syndicate, C.I.T. v. Kanpur Coal Syndicate,
AIR 1965 SC 325 [
LNIND 1964 SC 167 ], p. 328 :
(1964) 8 SCR 85 [
sections 33 ,
34 ,
Income-tax Act, 1922 ); Jagat Bahadur v. State of M.P., Jagat Bahadur v. State of M.P.,
AIR 1966 SC 945 [
LNIND 1965 SC 342 ]:
(1966) 2 SCR 822 [
LNIND 1965 SC 342 ] (in appeal against acquittal, the High Court can pass only such sentence
which the trial Court could have passed); Joginder Singh v. Dy. Custodian General of Evacuee Property, Joginder
Singh v. Dy. Custodian General of Evacuee Property,
AIR 1967 SC 145 [
LNIND 1961 SC 234 ]:
1962 (2) SCR 738 [
LNIND 1961 SC 234 ]. But see J.S. Jadhav v. Mustafa Hazi Mohammad, J.S.
Jadhav v. Mustafa Hazi Mohammad,
AIR 1993 SC 1535 [
LNIND 1993 SC 340 ]:
(1993) 2 SCC 562 [
LNIND 1993 SC 340 ], where without referring to the cases noted above,
section 38 of the Advocates Act 1961 which uses similar words was very widely construed and a decree was passed
which the original disciplinary authority could not have passed.
43 George v. Devan County Council, George v. Devan County Council,

(1988) 3 All ER 1002 , p. 1006 (HL).
44 Sharpe v. Wakefield, Sharpe v. Wakefield,

(1886-90) All ER Rep 651 , p. 53 :
1891 AC 173 (HL); Hindusthan Tin Works Pvt. Ltd. v. Employees of Hindusthan Tin Works Pvt.
Mr.Srikanth -
Page 75 of 103
Ltd., Hindusthan Tin Works Pvt. Ltd. v. Employees of Hindusthan Tin Works Pvt. Ltd.,
AIR 1979 SC 75 [
LNIND 1978 SC 227 ], p. 78 :
(1979) 2 SCC 80 [
LNIND 1978 SC 227 ]; Sant Raj v. O.P. Singla, Sant Raj v. O.P. Singla,
(1985) 2 SCC 349 [
LNIND 1985 SC 118 ], p. 352 :
AIR 1985 SC 617 [
LNIND 1985 SC 118 ]; Uma Devi Nambiar v. T.C. Sidhan, Uma Devi Nambiar
v. T.C. Sidhan,
(2004) 2 SCC 321 [
LNIND 2003 SC 1077 ], p. 336 :
AIR 2004 SC 1772 [
LNIND 2003 SC 1077 ], p. 1781; National Insurance Co. Ltd. v. Keshav Bahadur,
National Insurance Co. Ltd. v. Keshav Bahadur,
(2004) 2 SCC 370 [
LNIND 2004 SC 81 ], p. 375 :
AIR 2004 SC 1581 [
LNIND 2004 SC 81 ]; Union of India v. Kuldip Singh, Union of India v. Kuldip
Singh,
AIR 2004 SC 827 [
LNIND 2003 SC 1056 ], p. 832 :
(2004) 2 SCC 590 [
LNIND 2003 SC 1056 ]; Nandkishore Ganesh Joshi v. Commr. Municipal Corporation, Kalyan,
Nandkishore Ganesh Joshi v. Commr. Municipal Corporation, Kalyan,
AIR 2005 SC 34 [
LNIND 2004 SC 1086 ], p. 37 (para 16). In a Government of Laws there is nothing like
unfettered discretion immune from judicial reviewability; Khudiram v. State of W.B., Khudiram v. State of W.B.,
AIR 1975 SC 550 [
LNIND 1974 SC 386 ], p. 558 :
(1975) 2 SCC 81 [
LNIND 1974 SC 386 ]; Manager, Government Branch Press v. D.B. Belliappa,
Manager, Government Branch Press v. D.B. Belliappa,
AIR 1979 SC 429 [
LNIND 1978 SC 364 ], p. 434 :
(1979) 1 SCC 477 [
LNIND 1978 SC 364 ]; Special Courts Bill, In re, Special Courts Bill, In re,
AIR 1979 SC 478 [
LNIND 1978 SC 661 ], p. 519 :
(1979) 1 SCC 380 [
LNIND 1978 SC 661 ]; Kumari Shrilekha Vidyarthi v. State of U.P., Kumari
Shrilekha Vidyarthi v. State of U.P.,
AIR 1991 SC 537 [
LNIND 1990 SC 565 ], p. 554 : 1990 Supp (1) SCR 625. See further text and note 77, p. 420.
45 Robson: ’Justice and Administrative Law’, 3rd Edn., p. 407. See D.S. Chellammal Anni (Smt.) v. Masanan
Samban, D.S. Chellammal Anni (Smt.) v. Masanan Samban,
AIR 1965 SC 498 [
LNIND 1964 SC 522 ], p. 502 (para 10) :
1964 (7) SCR 197 [
LNIND 1964 SC 522 ]; Gudi Kanti Narsimhulu v. Public Prosecutor, Gudi
Kanti Narsimhulu v. Public Prosecutor,
AIR 1978 SC 429 [
LNIND 1977 SC 336 ], pp. 432, 433 :
(1978) 1 SCC 577 ; Babu Singh v. State of U.P., Babu Singh v. State of U.P.,
AIR 1978 SC 527 [
LNIND 1978 SC 29 ], p. 529 :
(1978) 1 SCC 579 [
LNIND 1978 SC 29 ]. See cases in note 80, pp. 421, 422.
46 Ryots of Garabandho v. Zamindar of Parlakimedi, Ryots of Garabandho v.

Zamindar of Parlakimedi,
AIR 1943 PC 164 [
Mr.Srikanth -
Page 76 of 103
LNIND 1943 PC 21 ], p. 180; Shri Sitaram Sugar Co. Ltd. v. Union of India,
Shri Sitaram Sugar Co. Ltd. v. Union of India,
AIR 1990 SC 1277 [
LNIND 1990 SC 152 ], p. 1290 :
1990 (1) SCR 909 [
LNIND 1990 SC 152 ].
47 Perry v. Wright, Perry v. Wright,

(1908) 1 KB 441 , p. 458 (CA); State of Karnataka v. Ranganath Reddy, State
of Karnataka v. Ranganath Reddy,
AIR 1978 SC 215 , p. 227 :
(1977) 4 SCC 471 ; Shri Sitaram Sugar Co. Ltd. v. Union of India, Shri Sitaram
Sugar Co. Ltd. v. Union of India,
AIR 1990 SC 1277 [
LNIND 1990 SC 152 ], pp. 1290, 1291 :
(1990) 3 SCC 223 [
LNIND 1990 SC 152 ].
48 Saraswati Industrial Syndicate Ltd. v. Union of India, Saraswati Industrial

Syndicate Ltd. v. Union of India,
AIR 1975 SC 460 [
LNIND 1974 SC 257 ], p. 462 :
(1974) 2 SCC 630 [
LNIND 1974 SC 257 ]; State of U.P. v. Renusagar Power Co., State of U.P. v.
Renusagar Power Co.,
AIR 1988 SC 1737 [
LNIND 1988 SC 619 ]:
(1988) 4 SCC 59 [
LNIND 1988 SC 619 ]; Sitaram Sugar Co. Ltd. v. Union of India, Sitaram
Sugar Co. Ltd. v. Union of India,
AIR 1990 SC 1277 [
LNIND 1990 SC 152 ],p. 1291 :
1990 (3) SCC 223 [
LNIND 1990 SC 152 ].
49 Ryots of Garabandho v. Zamindar of Parlakimedi, Ryots of Garabandho v.

Zamindar of Parlakimedi,
AIR 1943 PC 164 [
LNIND 1943 PC 21 ], p. 180; Mysore State Electricity Board v. Bangalore Woollen,
Cotton&Silk Mills, Mysore State Electricity Board v. Bangalore Woollen, Cotton&Silk Mills,
AIR 1963 SC 1128 [
LNIND 1962 SC 372 ], p. 1136 : 1963 Supp (2) SCR 127; Saraswati Industrial Syndicate Ltd. v.
Union of India, Saraswati Industrial Syndicate Ltd. v. Union of India,
AIR 1975 SC 460 [
LNIND 1974 SC 257 ], p. 462 :
(1974) 2 SCC 630 [
LNIND 1974 SC 257 ]; State of U.P. v. Renusagar Power Co., State of U.P. v.
Renusagar Power Co.,
AIR 1988 SC 1737 [
LNIND 1988 SC 619 ], p. 1762 :
(1988) 4 SCC 59 [
Sitaram Sugar Co. Ltd. v. Union of India,
AIR 1990 SC 1277 [
LNIND 1990 SC 152 ], p. 1290 :
(1990) 3 SCC 223 [
LNIND 1990 SC 152 ] See further. Karam Singh Sobti v. Pratap Chand,
Karam Singh Sobti v. Pratap Chand,
AIR 1964 SC 1305 [
LNIND 1963 SC 206 ], p. 1310 :
(1964) 4 SCR 647 [
Mr.Srikanth -
Page 77 of 103
LNIND 1963 SC 206 ]; May v. City of London Real Property, May v. City of
London Real Property,
(1982) 1 All ER 660 , p. 670 (HL).
50 Mysore State Electricity Board v. Bangalore Woollen, Cotton&Silk Mills, Mysore

State Electricity Board v. Bangalore Woollen, Cotton&Silk Mills,
AIR 1963 SC 1128 [
51 State of Karnataka v. Rangnatha Reddy, State of Karnataka v. Rangnatha Reddy,

AIR 1978 SC 215 , p. 227 :
(1977) 4 SCC 471 .
52 State of U.P. v. Renusagar Power Co., State of U.P. v. Renusagar Power Co.,
AIR 1988 SC 1737 [
LNIND 1988 SC 619 ], p. 1762 :
1988 (4) SCC 59 [
LNIND 1988 SC 619 ].
53 Sitaram Sugar Co. Ltd. v. Union of India, Sitaram Sugar Co. Ltd. v. Union of India,
AIR 1990 SC 1277 [
LNIND 1990 SC 152 ], pp. 1291, 1292 :
(1990) 3 SCC 223 [
LNIND 1990 SC 152 ]. See further Shri Malaprabha Co-op. Sugar Factory Ltd. v. Union of
India, Shri Malaprabha Co-op. Sugar Factory Ltd. v. Union of India,
AIR 1994 SC 1311 , p. 1322 :
1994 (1) SCC 648 .
54 Union of India v. Komalabai,

AIR 1968 SC 377 [
LNIND 1967 SC 261 ], pp. 382, 383 :
1968 (1) SCR 463 [
LNIND 1967 SC 261 ].
55 CIT v. Gangadhar Banerjee&Co. (P) Ltd., CIT v. Gangadhar Banerjee&Co. (P)

Ltd.,
AIR 1965 SC 1977 [
LNIND 1965 SC 95 ]:
(1965) 3 SCR 439 [
Sitaram Sugar Co. Ltd. v. Union of India, 1990 SC 1277, p. 1290 :
1990 (3) SCC 223 [
LNIND 1990 SC 152 ].
56 V.K. Verma v. Radhey Shyam, V.K. Verma v. Radhey Shyam,

AIR 1964 SC 1317 , p. 1320 : 66 Punj LR 990. See further section 47(a),
Motor Vehicles Act , 1939 which required transport authorities in considering applications for stage carriage
permits to ’have regard to’ the matters specified in that section; and see K.M. Shanmugam v. S.R.V.S. (P) Ltd.,
K.M. Shanmugam v. S.R.V.S. (P) Ltd.,
AIR 1963 SC 1626 [
LNIND 1963 SC 25 ]:
(1964) 1 SCR 809 [
LNIND 1963 SC 25 ]; Syed Yakoob v. K.S. Radhakrishan, Syed Yakoob v. K.S.
Radhakrishan,
AIR 1964 SC 477 : (1964) 5 SCR 64; Patiala Bus (Sirhind) Pvt. Ltd. v. State Transport
Mr.Srikanth -
Page 78 of 103
Appellate Tribunal, Punjab, Patiala Bus (Sirhind) Pvt. Ltd. v. State Transport Appellate Tribunal, Punjab,
AIR 1974 SC 1174 : (1974) 2 SCC 215.
57 Hyderabad Asbestos Cement Product v. Union of India, Hyderabad Asbestos

Cement Product v. Union of India,
JT 1999 (9) SC 505 [
LNIND 1999 SC 1101 ], p. 510 :
2000 (1) SCC 426 [
LNIND 1999 SC 1101 ] :
AIR 2000 SC 314 [
LNIND 1999 SC 1101 ].
58 Ishwar Singh Bindra v. State of U.P., Ishwar Singh Bindra v. State of U.P.,
AIR 1968 SC 1450 [
LNIND 1968 SC 146 ], p. 1454 :
(1969) 1 SCR 219 [
LNIND 1968 SC 146 ]; Municipal Corporation of Delhi v. Tek Chand Bhatia,
Municipal Corporation of Delhi v. Tek Chand Bhatia,
AIR 1980 SC 360 [
LNIND 1979 SC 402 ], p. 363 :
(1980) 1 SCC 158 [
LNIND 1979 SC 402 ]; R.S. Nayak v. A.R. Antulay, R.S. Nayak v. A.R. Antulay,
(1984) 2 SCC 183 [
LNIND 1984 SC 43 ], pp. 224, 225 :
AIR 1984 SC 684 [
LNIND 1984 SC 43 ]; M. Satyanarayana v. State of Karnataka, M.
Satyanarayana v. State of Karnataka,
(1986) 2 SCC 512 [
LNIND 1986 SC 66 ], p. 515 :
AIR 1986 SC 1162 [
LNIND 1986 SC 66 ].
59 Green v. Premier Glynrhonwy Slate Co., Green v. Premier Glynrhonwy Slate Co.,
(1928) 1 KB 561 , p. 568; Nasiruddin v. State Transport Appellate Tribunal,
Nasiruddin v. State Transport Appellate Tribunal,
AIR 1976 SC 331 [
LNIND 1975 SC 306 ], p. 338 :
(1975) 2 SCC 671 [
LNIND 1975 SC 306 ]; Municipal Corporation of Delhi v. Tek Chand Bhatia, supra;
Municipal Corporation of Delhi v. Tek Chand Bhatia, supra; State (Delhi Administration) v. Puran Mal,
State (Delhi Administration) v. Puran Mal,
(1985) 2 SCC 589 [
LNIND 1985 SC 103 ] :
AIR 1985 SC 741 [
LNIND 1985 SC 103 ].
60 Mersey Docks and Harbour Board v. Henderson Bros., Mersey Docks and Harbour
Board v. Henderson Bros.,
(1888) 13 AC 595 , p. 603 : 58 LJ QB 152 (HL). See further Puran Singh v. State of M.P.,
Puran Singh v. State of M.P.,
AIR 1965 SC 1583 [
LNIND 1965 SC 23 ], p. 1584, (para 5) :
(1965) 2 SCR 853 [
LNIND 1965 SC 23 ]; Municipal Corporation of Delhi v. Tek Chand Bhatia, supra.
Municipal Corporation of Delhi v. Tek Chand Bhatia, supra.
Mr.Srikanth -
Page 79 of 103
61 A.G. v. Beauchamp, A.G. v. Beauchamp,

(1920) 1 KB 650 ; R. v. Oakes, R. v. Oakes,
(1959) 2 All ER 92 .
62 Sahney Steel&Press Works Ltd., Hyderabad v. Commissioner of Income-tax, Andhra Pradesh,

Sahney Steel&Press Works Ltd., Hyderabad v. Commissioner of Income-tax, Andhra Pradesh,
JT (1997) 8 SC 173 [
LNIND 1997 SC 1241 ], p. 188 :
1997 (7) SCC 764 [
LNIND 1997 SC 1241 ].
63 J. Jayalalitha v. Union of India, J. Jayalalitha v. Union of India,

AIR 1999 SC 1912 [
LNIND 1999 SC 553 ], p. 1919 :
(1999) 5 SCC 138 [
LNIND 1999 SC 553 ].
64 R. v. Oxfordshire County Council, R. v. Oxfordshire County Council,

(1999) 3 All ER 385 , p. 396 (HL).
65 State of Bombay v. RMD Chamarbaugwala, State of Bombay v. RMD

Chamarbaugwala,
AIR 1957 SC 699 [
LNIND 1957 SC 38 ], p. 709 :
1957 SCR 1002 .
66 Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry, Federal
Steam Navigation Co. Ltd. v. Department of Trade and Industry,
(1974) 2 All ER 97 (HL).
67 Mazagaon Dock Ltd. v. CIT & EPT, Mazagaon Dock Ltd. v. CIT & EPT,
AIR 1958 SC 861 [
LNIND 1958 SC 72 ]:
1959 SCR 848 [
LNIND 1958 SC 72 ].
68 Kiran Singh v. Chaman Paswan, Kiran Singh v. Chaman Paswan,

AIR 1954 SC 340 [
LNIND 1954 SC 67 ], p. 345 :
1955 (1) SCR 117 [
LNIND 1954 SC 67 ]. See further Tilkayat Shri Govindlalji v. State of Rajasthan,
Tilkayat Shri Govindlalji v. State of Rajasthan,
AIR 1963 SC 1638 [
LNIND 1963 SC 8 ], p. 1652 (para 39) :
(1964) 1 SCR 561 [
LNIND 1963 SC 8 ]; Gopinder Singh v. Forest Department of Himachal Pradesh,
Gopinder Singh v. Forest Department of Himachal Pradesh,
AIR 1991 SC 433 [
LNIND 1990 SC 429 ], pp. 434, 435 : 1990 Supp SCC 272 (’or’ read as ’and’ to avoid absurd
result).
Mr.Srikanth -
Page 80 of 103
69 Prof. Yashpal v. State of Chattisgarh, Prof. Yashpal v. State of Chattisgarh,

AIR 2005 SC 2026 [
LNIND 2005 SC 135 ](para 40).
70 Star Co. Ltd. v. Commr. of Income-tax, Star Co. Ltd. v. Commr. of Income-tax,
AIR 1970 SC 1559 [
LNIND 1969 SC 254 ]:
(1970) 3 SCC 864 .
71 Patel Chunibhai Dajibha v. Narayanrao, Patel Chunibhai Dajibha v. Narayanrao,

AIR 1965 SC 1457 [
LNIND 1964 SC 340 ], p. 1465 :
1965 (2) SCR 328 [
LNIND 1964 SC 340 ]; Punjab Produce & Trading Co. v. C.I.T., West Bengal,
Punjab Produce & Trading Co. v. C.I.T., West Bengal,
AIR 1971 SC 2471 [
LNIND 1971 SC 339 ], pp. 2473, 2474 :
(1971) 2 SCC 540 [
LNIND 1971 SC 339 ]; Brown&Co. v. Harrison, Brown&Co. v. Harrison,
(1927) All ER Rep 195 , pp. 203, 204 (CA).
72 J. Jayalalitha v. Union of India, J. Jayalalitha v. Union of India,

AIR 1999 SC 1912 [
LNIND 1999 SC 553 ], p. 1919 :
(1999) 5 SCC 138 [
LNIND 1999 SC 553 ].
73 R. v. Oakes, R. v. Oakes,
(1959) 2 All ER 92 .
74 Ishwar Singh Bindra v. State of U.P., Ishwar Singh Bindra v. State of U.P.,
AIR 1968 SC 1450 [
LNIND 1968 SC 146 ], p. 1454 :
1969 (1) SCR 219 [
LNIND 1968 SC 146 ]. For another example, see Joint Director of Mines Safety v. Tandur
and Nayandgi Stone Quarries (P) Ltd., Joint Director of Mines Safety v. Tandur and Nayandgi Stone Quarries
(P) Ltd.,
(1987) 3 SCC 208 [
LNIND 1987 SC 373 ], p. 211 :
AIR 1986 SC 1253 [
LNIND 1986 SC 149 ]; Samee Khan v. Bindu Khan, Samee Khan v. Bindu
Khan,
AIR 1998 SC 2765 , p. 2769 :
(1998) 7 SCC 59 (’and may also’ in Order 39 Rule 2A
CPC construed as ’or may likewise’)
75 Paras Ram v. State of Haryana, Paras Ram v. State of Haryana,

AIR 1993 SC 1212 [
LNIND 1992 SC 735 ], p. 1214 :
1992 (4) SCC 662 [
LNIND 1992 SC 735 ]. (The words ’arms and ammunition’ in section 5 of the TADA Act were
read conjunctively.)
Mr.Srikanth -
Page 81 of 103
76 Beckford v. Wade, Beckford v. Wade,

(1805) 34 ER 34 , p. 35 (PC); Phillips v. Poland, Phillips v. Poland,
(1866) LR 1 CP 204, p. 207.
77 Beckford v. Wade, supra, Beckford v. Wade, supra, p. 35; Liverpool Justices,

(1883) 11 QBD 638 , p. 649; Smith v. East Elloe Rural District Council, Smith
v. East Elloe Rural District Council,
(1956) 1 All ER 855 , p. 870 :
1956 AC 736 (HL); Felix v. Thomas, Felix v. Thomas,
(1966) 3 All ER 21 , p. 27 (PC).
78 Gardiner v. Admiralty Commrs., Gardiner v. Admiralty Commrs.,

(1964) 2 All ER 93 , p. 97 (HL) (Lord Upjohn); A.G. for Ontario v. Mercer,
A.G. for Ontario v. Mercer,
(1883) 8 AC 767 , p. 778 : 58 LJ PC 54 : 60 LT 191 (PC). See for example H.K. Choudhury
v. Issardas, H.K. Choudhury v. Issardas,
AIR 1965 SC 1647 [
LNIND 1965 SC 41 ], p. 1651 (paras 13 and 14) :
1965 (3) SCR 78 [
LNIND 1965 SC 41 ]; (words “claims to properties—in West Pakistan” were not construed to
exclude claims in respect of agricultural lands). Cf. case in note 38, p. 561, of Chapter 6, where ’property’ was construed to exclude
’agricultural lands’.
79 Smith v. East Elloe Rural District Council, Smith v. East Elloe Rural District
Council,
(1956) 1 All ER 855 (HL).
80 Ibid, p. 870.
81 Ibid, p. 859. This case has not been accepted by the Supreme Court in India, see text and note 63, p.
742.
82 V.D. Jhingan v. State of U.P., V.D. Jhingan v. State of U.P.,

AIR 1966 SC 1762 [
LNIND 1966 SC 73 ]:
1966 (3) SCR 736 [
LNIND 1966 SC 73 ].
83 India Carbon Ltd. v. Superintendent of Taxes, Gauhati, India Carbon Ltd. v.

Superintendent of Taxes, Gauhati,
AIR 1972 SC 154 [
LNIND 1971 SC 392 ]:
(1971) 3 SCC 612 [
LNIND 1971 SC 392 ]. See further State of Bihar v. Hydrocarbons Co. Ltd.,
State of Bihar v. Hydrocarbons Co. Ltd.,
JT 1994 (6) SC 118 :
AIR 1995 SC 991 [
LNIND 1994 SC 722 ]: 1994 Supp (3) SCC 621. [Calcined Petroleum Coke (
CPC ) manufactured out of Raw Petroleum Coke (RPC) is not taken out of the entry ’coke in all its forms’ and the
fact that
CPC and RPC are different commodities is of little consequence.]
Mr.Srikanth -
Page 82 of 103
84 Gardiner v. Admiralty Commrs., Gardiner v. Admiralty Commrs.,

(1964) 2 All ER 93 (HL).
85 Ibid, p. 96.
86 State of Maharashtra v. Marwanjee P. Desai, State of Maharashtra v. Marwanjee

P. Desai,
AIR 2002 SC 456 [
LNIND 2001 SC 2858 ], p. 462:
(2002) 2 SCC 318 [
LNIND 2001 SC 2858 ].
87 A.G. v. HRH Prince Ernest Augustus, A.G. v. HRH Prince Ernest Augustus,
(1957) 1 All ER 49 , p. 53:
1957 AC 436 (HL); Maunsel v. Olins, Maunsel v. Olins,
(1975) 1 All ER 16 , pp. 21, 22 (HL); Union of India v. Sankalchand, Union of
India v. Sankalchand,
AIR 1977 SC 2328 [
LNIND 1977 SC 268 ], p. 2341:
(1977) 4 SCC 193 [
LNIND 1977 SC 268 ]; Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa,
Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa,
(1987) 3 SCC 279 [
LNIND 1987 SC 466 ], p. 290:
AIR 1987 SC 1454 [
LNIND 1987 SC 466 ].
88 Empress Mills, Nagpur v. Municipal Committee, Wardha, Empress Mills, Nagpur v.

Municipal Committee, Wardha,
AIR 1958 SC 341 [
LNIND 1957 SC 139 ], p. 348. See further Chertsey UDC v. Mixnam's Properties,
Chertsey UDC v. Mixnam's Properties,
(1964) 2 All ER 627 :
1965 AC 735 (HL)(LORD REID quoted MAXWELL on Statute, 11th Edition, p. 79 for the
same proposition). Utkal Contractors and Joinery Pvt. Ltd. v. State of Orissa, supra. Utkal Contractors and
Joinery Pvt. Ltd. v. State of Orissa, supra. .
89 Rabindra Chamaria v. Registrar of Companies, Rabindra Chamaria v. Registrar of

Companies,
AIR 1992 SC 398 [
LNIND 1991 SC 608 ], p. 403: 1992 Supp (2) SCC 10. (The words ’any proceeding’ in
section 633 of the Companies Act confined to proceedings arising in respect of duties prescribed by the
Companies Act only).
90 See Chapter 2, title 3(b), ’Rule in Heydon's case’.
91 See Chapter 2, title 4(b), ’Inconsistency and repugnancy to be avoided; harmonious construction’.
92 Blackwood v. R., Blackwood v. R.,

(1882) 8 AC 82 , p. 94 (PC). See further Kerala State Housing Board v. Rampriya Hotels
(P.) Ltd., Kerala State Housing Board v. Rampriya Hotels (P.) Ltd.,
JT 1994 (5) SC 113 , p. 116:
(1994) 5 SCC 672 .
Mr.Srikanth -
Page 83 of 103
93 Parvin v. Morton Machine Co. Ltd., Parvin v. Morton Machine Co. Ltd.,
(1952) 1 All ER 670 (HL).
94 Ibid, pp. 671, 673.
95 Chertsey Urban District Council v. Mixnam's Properties, Chertsey Urban District

Council v. Mixnam's Properties,
(1964) 2 All ER 627 (HL).
1 Ibid, pp. 631, 632 (LORD REID), 639, 640 (LORD UPJOHN).
2 Bidie (deceased) IN RE. Bidie (deceased) IN RE. ,

(1948) 2 All ER 995 :
1949 Ch 121 .
3 Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, Fruit and
Vegetable Merchants Union v. Delhi Improvement Trust,
AIR 1957 SC 344 [
LNIND 1956 SC 90 ]:
1957 SCR 1 ; Municipal Corporation of Greater Bombay v. Hindustan Petroleum Corporation,
Municipal Corporation of Greater Bombay v. Hindustan Petroleum Corporation,
AIR 2001 SC 3630 [
LNIND 2001 SC 1796 ], p. 3632 :
(2001) 8 SCC 143 [
LNIND 2001 SC 1796 ]; Bharat Cooking Coal Limited v. Karamchand Thapar&Bros. Pvt. Ltd.,
Bharat Cooking Coal Limited v. Karamchand Thapar&Bros. Pvt. Ltd.,
(2003) 1 SCC 6 [
LNIND 2002 SC 702 ], pp. 8, 9.
4 Nairn v. St. Andrews University, Nairn v. St. Andrews University,

(1909) AC 147 ; Viscountess Rhondda's Claim,
(1922) 2 AC 339 (HL).
5 Henrietta Muir Edwards v. A.G. of Canada, Henrietta Muir Edwards v. A.G. of

Canada,
AIR 1930 PC 120 .
6 Motipur Zamindari Co. Ltd. v. State of Bihar, Motipur Zamindari Co. Ltd. v. State
of Bihar,
AIR 1953 SC 320 [
LNIND 1953 SC 52 ]:
1953 SCR 720 [
LNIND 1953 SC 52 ]; Union of India v. Khader International Construction,
Union of India v. Khader International Construction,
AIR 2001 SC 2277 [
LNIND 2001 SC 1205 ].
7 Madras Electric Supply Corporation Ltd. v. Boarland, Madras Electric Supply

Corporation Ltd. v. Boarland,
Mr.Srikanth -
Page 84 of 103
(1955) 1 All ER 753 :

(1955) 2 WLR 632 (HL).
8 State of Punjab v. Okara Grain Buyers Syndicate Ltd., Okara, State of Punjab v.
Okara Grain Buyers Syndicate Ltd., Okara,
AIR 1964 SC 669 [
LNIND 1963 SC 256 ]: (
1964 (5) SCR 387 [
LNIND 1963 SC 256 ]; Samatha v. State of Andhra Pradesh, Samatha v. State
of Andhra Pradesh,
AIR 1997 SC 3297 : (1997) 8 SCC 191.
9 State of Himachal Pradesh v. Pawan Kumar, State of Himachal Pradesh v. Pawan

Kumar,
AIR 2005 SC 2265 [
LNIND 2005 SC 355 ], p. 2270.
10 Deoki Nandan v. Murlidhar, Deoki Nandan v. Murlidhar,

AIR 1957 SC 133 [
LNIND 1956 SC 74 ], p. 139 (para 11) :
1956 SCR 756 [
LNIND 1956 SC 74 ].
11 Price v. Gould, Price v. Gould, 143 LT 333, p. 334; Brock v. Wollams,

Brock v. Wollams,
(1949) 1 All ER 715 , p. 717; Jones v. Whitehill, Jones v. Whitehill,
(1950) 1 All ER 71 , p. 72; Gammans v. Ekins, Gammans v. Ekins,
(1950) 2 All ER 140 , p. 141; American Economic Laundry Ltd. v. Little,
American Economic Laundry Ltd. v. Little,
(1950) 2 All ER 1186 , p. 1188; Longdon v. Horton, Longdon v. Horton,
(1951) 1 All ER 60 , pp. 61, 62; Perry v. Dembowski, Perry v. Dembowski,
(1951) 2 All ER 50 , pp. 51, 52; Baldeo Sahai v. R.C. Bhasin, Baldeo Sahai v.
R.C. Bhasin,
AIR 1982 SC 1091 [
LNIND 1982 SC 86 ]:
(1982) 2 SCC 210 [
LNIND 1982 SC 86 ]; K.V. Muthu v. Angamuthu Ammal, K.V. Muthu v.
Angamuthu Ammal,
AIR 1997 SC 628 [
LNIND 1996 SC 2164 ], pp. 631, 632 :
(1997) 2 SCC 53 [
LNIND 1996 SC 2164 ].
12 Corporation of Nagpur v. Nagpur Handloom Cloth Market Co. Ltd., Corporation of

Nagpur v. Nagpur Handloom Cloth Market Co. Ltd.,
AIR 1963 SC 1192 [
LNIND 1962 SC 409 ], p. 1197 : 1963 Supp (2) SCR 796. But see Krishna Prasad v. CIT,
Bangalore, Krishna Prasad v. CIT, Bangalore,
AIR 1975 SC 498 [
LNIND 1974 SC 360 ], p. 500 :
(1975) 1 SCC 160 [
LNIND 1974 SC 360 ], where in the context of the
Income-tax Act it has been held that a single individual does not constitute a family.
13 S.N. Sudalaimuthu Chettiar v. Palaniyandavan, S.N. Sudalaimuthu Chettiar v.

Palaniyandavan,
AIR 1966 SC 469 [
Mr.Srikanth -
Page 85 of 103
LNIND 1965 SC 188 ], p. 470 :

1966 (1) SCR 450 [
LNIND 1965 SC 188 ]. See further Khurode Chandra v. Sarda Prasad,
Khurode Chandra v. Sarda Prasad, 7 Ind. Cas 436 (Cal) ap proved in Srilekha Ghosh (Roy) v. Parthasarathi Ghosh,
Srilekha Ghosh (Roy) v. Parthasarathi Ghosh,
AIR 2002 SC 2500 [
LNIND 2002 SC 422 ],p. 2503 :
(2002) 6 SCC 359 [
LNIND 2002 SC 422 ].
14 K.V. Muthu v. Angamuthu Ammal, supra. K.V. Muthu v. Angamuthu Ammal, supra. .
15 Carega Properties, S.A. (formerly Joram Development Ltd.) v. Sharrat, Carega

Properties, S.A. (formerly Joram Development Ltd.) v. Sharrat,
(1979) 2 All ER 1084 (HL).
16 Fitzpatrick v. Sterling Housing Association Ltd., Fitzpatrick v. Sterling Housing

Association Ltd.,
(1999) 4 All ER 705 (HL). See further, text and note 17, p. 246.
17 Town Investments Ltd. v. Department of Environment, Town Investments Ltd. v.

Department of Environment,
(1977) 1 All ER 813 , p. 819 :
(1978) AC 359 :
(1977) 2 WLR 450 (HL). (Occupation of the premises as a tenant by the Crown for Government
purposes was held to be ’business tenancy’); Vishwanath Jhunjhunwala v. State of U.P., Vishwanath
Jhunjhunwala v. State of U.P.,
(2004) 4 SCC 437 [
LNIND 2004 SC 499 ], p. 438 :
AIR 2004 SC 2568 [
LNIND 2004 SC 499 ], p. 2570 (’Business’ as used in Sales Tax Acts). See further State of
Tamil Nadu v. Board of Trustees of the Port of Madras, State of Tamil Nadu v. Board of Trustees of the Port of
Madras,
JT 1999 (2) SC 410 [
LNIND 1999 SC 312 ], p. 416 :
AIR 1999 SC 1647 [
LNIND 1999 SC 312 ], p. 165 :
(1999) 4 SCC 630 [
LNIND 1999 SC 312 ]. (If the main activity is not business the incidental activities will not
constitute business) followed in Commissioner of Sales Tax v. Sai Publication Fund, Commissioner of Sales Tax v.
Sai Publication Fund,
AIR 2002 SC 1582 [
State of U.P.,
AIR 1999 SC 1867 [
LNIND 1999 SC 517 ], p. 1902 :
1999 (9) SCC 700 [
LNIND 1999 SC 517 ]. (’Business’ is wider than ’trade and commerce’).
18 Shamnsaheb M. Multani v. State of Karnataka, Shamnsaheb M. Multani v. State of

Karnataka,
AIR 2001 SC 921 [
LNIND 2001 SC 218 ], p. 925 :
(2001) 2 SCC 577 [
LNIND 2001 SC 218 ].
Mr.Srikanth -
Page 86 of 103
19 R (on the application of Quintavalle v. Human Fertilisation and Embryology Authority,

R (on the application of Quintavalle v. Human Fertilisation and Embryology Authority,
(2005) 2 All ER 556 , p. 564 (fg).
(1997) 3 All ER 577 , p. 604 (HL).
21 Ibid; R. v. Secretary of State for the Home Department, ex parte Simms, R. v.

Secretary of State for the Home Department, ex parte Simms,
(1999) 3 All ER 400 , p. 411 (LORD STEYN) pp. 412, 413 (LORD HOFFMAN) (HL); B (a
minor) v. Director of Public Prosecution, B (a minor) v. Director of Public Prosecution,
(2000) 1 All ER 833 pp. 844, 845 (HL) (LORD STEYN) (see further for this case text and note
81, p. 878) : R. v. Secretary of State for the Home Department, R. v. Secretary of State for the Home Department,
(2001) 3 All ER 433 , p. 440 (HL).
22 Minet v. Leman, Minet v. Leman, (1855) 20 Beav 269, p. 278; 24 LJ Ch 545, pp.
547, 548, referred to in Chertsey U.D.C. v. Mixnam's Properties, Chertsey U.D.C. v. Mixnam's Properties,
(1964) 2 All ER 627 , p. 631 :
(1965) AC 735 (HL). See further State of Gujarat v. Shyamlal Mohanlal,
State of Gujarat v. Shyamlal Mohanlal,
AIR 1965 SC 1251 [
LNIND 1964 SC 352 ], p. 1259 :
(1965) 2 Cr LJ 256 (alternation of common law not intended;
section 94, Cr.P.C. ); Maunsell v. Olins, Maunsell v. Olins,
(1975) 1 All ER 16 , pp. 18, 28 (HL); Re, O,
(1991) 1 All ER 330 , p. 336(f) (CA); R (on the application of Rottman) v. Commissioner of
Police, R (on the application of Rottman) v. Commissioner of Police,
(2002) 2 All ER 865 , p. 890 (HL) (Power of police to search premises in or on which a person is
arrested on warrant not affected by the
Extradition Act , 1989); Malika Holdings PTY Ltd. v. Streton, Malika Holdings PTY Ltd. v.
Streton, (2001) 75 ALJR 626, pp. 631, 648, 649; (1991) 65 Australian Law Journal (current topics) 375 (presumption is also against
alteration of equitable principles).
23 Rose v. Ford, Rose v. Ford,

(1937) 3 All ER 359 , p. 370 (HL) (LORD WRIGHT).
24 Maunsell v. Olins, Maunsell v. Olins,

(1975) 1 All ER 16 , p. 28 :
(1975) AC 373 (HL) (LORD SIMON).
25 See Chapter 8.
26 See Chapter 9, title 3, ’Exclusion of jurisdiction of Superior Courts’.
(1997) 3 All ER 577 , p. 607 (HL).
28 See pp. 420-25, supra.
Mr.Srikanth -
Page 87 of 103
29 See p. 745, infra.
30 R v. Cain, R v. Cain,
(1984) 2 All ER 737 , p. 741 :
(1985) AC 46 :
(1984) 3 WLR 393 (HL); Pierson v. Secretary of State for the Home Department, supra,
Pierson v. Secretary of State for the Home Department, supra, p. 605.
31 R (on the application of Anufrijeva) v. Secretary of State for the Home Department,
R (on the application of Anufrijeva) v. Secretary of State for the Home Department,
(2003) 3 All ER 827 , pp. 838, 839 (HL).
32 R. v. Secretary of State for the Home Department, Ex parte Simms, R. v. Secretary

of State for the Home Department, Ex parte Simms,
(1999) 3 All ER 400 , p. 412 (HL).
33 Ibid, p. 413.
34 Ibid. The principle of constitutionality as applied in India is discussed in Chapter 6 title 3.
35 See. ’The Interpretation of U.K. Domestic Legislation in the Light of European Convention and
Human Rights Jurisprudence’ by Lady Justice Arden, (2004) 25 Statute Law Review 165.
36 R. v. Secretary of State for the Home Department, Exparte Simms, supra, R. v.

Secretary of State for the Home Department, Exparte Simms, supra, pp. 412, 413. See further R. v. Director of Public
Prosecution, R. v. Director of Public Prosecution,
(1999) 4 All ER 801 , p. 831 (HL); R (on the application of Morgan Grenfell & Co. Ltd.) v.
Special Commissioner of Income-tax, R (on the application of Morgan Grenfell & Co. Ltd.) v. Special
(2002) 3 All ER 1 , pp. 5, 12, 13 (HL). For cases where interpretation was influenced by the
Human Rights Act: see R. v. Offen, R. v. Offen,
(2001) 2 All ER 154 ; Macdonald v. Ministry of Defence, Macdonald v.
Ministry of Defence,
(2001) 1 All ER 620 , p. 629, 630; Hans. v. Comr. of Customs & Excise, Hans.
v. Comr. of Customs & Excise,
(2001) 4 All ER 687 (CA); Housing and Regeneration Community Association v. Donoghue,
Housing and Regeneration Community Association v. Donoghue,
(2001) 4 All ER 604 , p. 624 (C.A. LORD WOOLF C.J.) (approach to be adopted in Acts passed
before the Human Rights Act, 1998); Cachia v. Faluyi, Cachia v. Faluyi,
(2002) 1 All ER 192 , p. 197 (C.A.).
37 ’So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way
which is compatible with the convention rights.’
38
(2001) 3 All ER 1 (HL).
39 Ibid, p. 17.
Mr.Srikanth -
Page 88 of 103
40 Ibid. Compare Indian Cases in text and notes 86 and 89, pp. 854-55, infra.
41 R (on the application of Middleton) v. West Somerset Coroner, R (on the application
of Middleton) v. West Somerset Coroner,
(2004) 2 All ER 465 , p. 485 (HL); R (on the application of Sacket) v. West Yorkshire Coroner,
R (on the application of Sacket) v. West Yorkshire Coroner,
(2004) 2 All ER 487 , p. 499 (HL).
42 R (on the application of Hurst) v. London Northern District Coroner, R (on the
application of Hurst) v. London Northern District Coroner,
(2007) 2 All ER 1025 (HL).
43
(2004) 3 All ER 411 (HL).
44
(1999) 4 All ER 705 (HL).
45
(2004) 3 All ER 411 (HL).
46 Ibid, p. 429.
47 Ibid.
48 Article 6(1) ’In the determination of his civil rights and obligation or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
49
[2002] 4 All ER 1089 :
(2002) 3 WLR 1800 (HL). See further Government of the United States of America v.
Montgomery (No. 2), Government of the United States of America v. Montgomery (No. 2),
(2004) 4 All ER 280 (HL). (Registration and enforcement of a confiscation order passed by a
United States court against a person, who was now a citizen and resident of United Kingdom, on the basis of fugitive disentitlement
doctrine as applied in the United States did not violate his rights under Article 6(1) of the convention. For fugitive disentitlement
doctrine, see pp. 293, 294 of the Report).
50 Ibid, pp. 1113, 1114. See further R. (on the application of Rusbridger) v. Attorney General,
R. (on the application of Rusbridger) v. Attorney General,
(2003) 3 All ER 784 , p. 790 (HL). For another example of incompatibility see Bellinger v.
Bellinger, Bellinger v. Bellinger,
(2003) 2 All ER 593 (HL). For non-disclosure of information to defence on the ground of public
interest immunity and right to a fair trial see R v. H, R v. H,
(2004) 1 All ER 1269 (HL).
51
(2003) 2 All ER 593 (HL).
Mr.Srikanth -
Page 89 of 103
The Parliament's response came by enacting the Gender Recognition Act, 2004 which confers legal rights
prospectively on all transsexual persons who are able to demonstrate to a panel that they have, or have had, gender dysphosia and
that they live permanently in their acquired gender : (2005) Public Law 331.
52 (2004) UK HL 56 :
(2005) 2 WLR 87 (HL) :
(2005) 3 All ER 169 (HL). The response of Parliament was enactment of
Prevention of Terrorism Act , 2005, which repealed Sections 21-32 of the Anti-terrorism Crime and Security Act,
2001. The 2005 Act in place of these sections provides for ’control orders’ which, in case they did not involve derogation from the
right to liberty under Art. 5 of the European Convention, could be made against suspected terrorists with the permission of the court
but if the order violated Art. 5 it could be made only by the court. See further: Prof. Jeffrey Jowell, ’The Road to Constitutionalism
in the United Kingdom : Renewal and Reform; Constitutionalism Human Rights and the Rule of Law (Essays in the honour of Soli
J. Sorabjee, Universal Law Publishing Co.); Prof. Adam Tomkins ’Analysis’, 2005 Public Law 255; Mary Arden, Lady Justice of
Appeal, ’Human Rights in the Age of Terrorism’, (2005) 121 LQR 604 -27.
53 120 (2004) Law Quarterly Review, pp. 197, 198.
54 The Act has not been construed to be retrospective and has not been applied even to pending proceedings: Wainwright
v. Home Office, Wainwright v. Home Office,
(2003) 3 All ER 943 , p. 950 (CA).
55
(2002) 1 All ER 257 , p. 272 (HL).
56
(2007) 3 All ER 685 .
57 The case is fully discussed by Manuel Jose and Garcia Manesilla in an article in
(2006) 80 ALJ 232 .
58 Law and Other Things, p. 166; referred to in SALMOND, Jurisprudence, 11th Edition, p. 153. Rohit Pulp and Paper
Mills Ltd. v. Collector of Central Excise, Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise,
AIR 1991 SC 754 [
LNIND 1990 SC 281 ], p. 761 :
(1990) 3 SCC 447 [
LNIND 1990 SC 281 ].
59 Angus Robertson v. George Day, Angus Robertson v. George Day,

(1879) 5 AC 63 , p. 69 : 64 LJ PC 9 (PC); referred to in M.K. Ranganathan v. Govt. of
Madras, referred to in M.K. Ranganathan v. Govt. of Madras,
AIR 1955 SC 604 [
LNIND 1955 SC 41 ], p. 609 :
1955 (2) SCR 374 [
LNIND 1955 SC 41 ]; Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer,
Ahmedabad Pvt. Primary Teachers Association v. Administrative Officer,
AIR 2004 SC 1426 , p. 1432 :
(2004) 1 SCC 755 (8th Edn., p. 379 of this book is referred).
60 MAXWELL: Interpretation of Statutes, 11th Edition, p. 321.
Mr.Srikanth -
Page 90 of 103
61 “Words and Phrases”, Vol. XIV, p. 207.
62 State of Bombay v. Hospital Mazdoor Sabha, State of Bombay v. Hospital Mazdoor

Sabha,
AIR 1960 SC 610 [
LNIND 1960 SC 19 ], pp. 613, 614 :
1960 (2) SCR 866 [
LNIND 1960 SC 19 ]. See further Bank of India v. Vijay Transport, Bank of
India v. Vijay Transport,
AIR 1988 SC 151 [
LNIND 1987 SC 754 ]: 1988 Supp SCC 47 (The rule has no application when the meaning is not
in doubt.); Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, Rohit Pulp and Paper Mills Ltd. v.
Collector of Central Excise,
AIR 1991 SC 754 [
LNIND 1990 SC 281 ], pp. 761, 762 :
(1990) 3 SCC 447 [
LNIND 1990 SC 281 ]; Kerala State Housing Board v. Rampriya Hotels (P) Ltd.,
Kerala State Housing Board v. Rampriya Hotels (P) Ltd.,
JT 1994 (5) SC 113 , p. 116 :
1994 (5) SCC 672 ; Samatha v. State of Andhra Pradesh, Samatha v. State of
Andhra Pradesh,
AIR 1997 SC 3297 , p. 3336 :
(1997) 8 SCC 191 ; K. Bhigirathi G. Shenoy v. K.B. Ballakuraya, K. Bhigirathi
G. Shenoy v. K.B. Ballakuraya,
JT 1999 (2) SC 563 [
LNIND 1999 SC 350 ], p. 565 :
AIR 1999 SC 2143 [
LNIND 1999 SC 350 ], p. 2146; Brindavan Bangle Stores v. Assistant Commissioner of
Commercial Taxes, Brindavan Bangle Stores v. Assistant Commissioner of Commercial Taxes,
AIR 2000 SC 601 , p. 604 :
(2000) 1 SCC 674 [
LNIND 2000 SC 31 ] (Rule not to apply when meaning not in doubt) :
(2000 ) 1 SCC 674 [
LNIND 2000 SC 31 ]; CBI, AHD, Patna v. Braj Bhushan Prasad, CBI, AHD,
Patna v. Braj Bhushan Prasad,
AIR 2001 SC 4014 [
LNIND 2001 SC 1239 ], p. 4020.
63 Godfrey Phillips India Ltd. v. State of U.P., Godfrey Phillips India Ltd. v. State of
U.P.,
(2005) 2 SCC 515 [
LNIND 2005 SC 65 ], pp. 550, 551 (paras 81, 83).
64 Shriram Vinyl and Chemical Industries v. Commissioner of Customs, Shriram Vinyl

and Chemical Industries v. Commissioner of Customs,
AIR 2001 SC 1283 [
LNIND 2001 SC 733 ], p. 1285 :
(2001) 4 SCC 286 [
LNIND 2001 SC 733 ] (In the expression ‘initial setting up or for the assembly or manufacture’,
‘assembly’ cannot be equated to ‘manufacture’ as it will make it redundant.
65 Scales v. Pickering, Scales v. Pickering, 130 ER 840; referred to in Devendra M.

Surti (Dr.) v. State of Gujarat, Devendra M. Surti (Dr.) v. State of Gujarat,
AIR 1969 SC 63 [
LNIND 1968 SC 148 ]:
1969 (1) SCR 235 [
LNIND 1968 SC 148 ].
Mr.Srikanth -
Page 91 of 103
66 Commrs. v. Savoy Hotel, Commrs. v. Savoy Hotel,

(1966) 2 All ER 299 .
67 Director of Public Prosecutions v. Jordon, Director of Public Prosecutions v.

Jordon,
(1976) 3 All ER 775 :
(1977) AC 699 :
(1976) 3 WLR 887 (HL).
68 Bageshwari Charan Singh v. Jagannath, Bageshwari Charan Singh v. Jagannath,

AIR 1932 PC 55 , pp. 56, 57; where observations of West, J., in Sakharam Krishnaji v. Madan
Krishnaji, Sakharam Krishnaji v. Madan Krishnaji, ILR 5 Bom 232, p. 236, are quoted with approval.
69 State of Rajasthan v. Sripal Jain, State of Rajasthan v. Sripal Jain,

AIR 1963 SC 1323 [
LNIND 1963 SC 17 ], p. 1325 :
1964 (1) SCR 742 [
LNIND 1963 SC 17 ].
70 M.K. Ranganathan v. Government of Madras, M.K. Ranganathan v. Government of

Madras,
AIR 1955 SC 604 [
LNIND 1955 SC 41 ], p. 609 :
1955 (2) SCR 374 [
LNIND 1955 SC 41 ].
71 State of Assam v. Ranga Muhammad, State of Assam v. Ranga Muhammad,

AIR 1967 SC 903 [
LNIND 1966 SC 199 ], p. 906 :
1967 (1) SCR 454 [
LNIND 1966 SC 199 ].
72 Acqueous Victuals Pvt. Ltd. v. State of U.P., Acqueous Victuals Pvt. Ltd. v. State of
U.P.,
AIR 1998 SC 2278 [
LNIND 1998 SC 561 ], p. 2285 :
1998 (5) SCC 474 [
LNIND 1998 SC 561 ].
73 Devendra M. Surti (Dr.) v. State of Gujarat, Devendra M. Surti (Dr.) v. State of

Gujarat,
AIR 1969 SC 63 [
LNIND 1968 SC 148 ], p. 67 :
1969 (1) SCR 235 [
LNIND 1968 SC 148 ].
74 State of Karnataka v. Union of India, State of Karnataka v. Union of India,

AIR 1978 SC 68 [
LNIND 1977 SC 312 ], pp. 99, 100 :
(1977) 4 SCC 608 [
LNIND 1977 SC 312 ].
Mr.Srikanth -
Page 92 of 103
75 Rainbow Steels Ltd. v. Commissioner of Sales Tax, Rainbow Steels Ltd. v.

Commissioner of Sales Tax,
AIR 1981 SC 2101 [
LNIND 1981 SC 52 ]:
(1981) 2 SCC 141 [
LNIND 1981 SC 52 ]. For further example, see Rohit Pulp and Paper Mills Ltd. v. Collector
of Central Excise, Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise,
AIR 1991 SC 754 [
LNIND 1990 SC 281 ]:
(1990) 3 SCC 447 [
LNIND 1990 SC 281 ].
76 Pradeep Aggarbatti, Ludhiana v. State of Punjab, Pradeep Aggarbatti, Ludhiana v.

State of Punjab,
AIR 1998 SC 171 [
LNIND 1997 SC 1487 ], p. 173 :
(1997) 8 SCC 511 [
LNIND 1997 SC 1487 ].
77 Ibid. G. Radhakrishna Murthy & Co. v. Commercial Tax Officer, G. Radhakrishna

Murthy & Co. v. Commercial Tax Officer,
JT 1998 (4) SC 426 : (1997) 8 SCC 37 :
(1997) 8 SCC 37 (Agarbatti not included in ‘perfumes’ under item 36 of
Andhra Pradesh General Sales Tax Act ).
78 Stonecraft Enterprises v. Commissioner of Income-tax, Stonecraft Enterprises v.

JT 1999 (2) SC 332 , p. 334 :
AIR 1999 SC 1638 , p. 1640.
79 Kavalappara Kottarathil Kochuni v. State of Madras, Kavalappara Kottarathil

Kochuni v. State of Madras, AIR 1960, SC 1080, p. 1103 :
1960 (3) SCR 887 [
LNIND 1960 SC 436 ]; Thakur Amarasinghji v. State of Rajasthan, Thakur
Amarasinghji v. State of Rajasthan,
AIR 1955 SC 504 [
LNIND 1955 SC 36 ], p. 523 :
1955 (2) SCR 303 [
LNIND 1955 SC 36 ]; Brownsea Haven Properties v. Pools Corporation,
Brownsea Haven Properties v. Pools Corporation,
(1958) 1 All ER 205 , pp. 213, 214 :
1958 Ch 574 (CA); Siddeshwari Cotton Mill (P) Ltd. v. Union of India,
Siddeshwari Cotton Mill (P) Ltd. v. Union of India,
AIR 1989 SC 1019 [
LNIND 1989 SC 28 ], p. 1023 :
(1989) 2 SCC 458 [
LNIND 1989 SC 28 ]; Housing Board of Haryana v. Haryana Housing Board Employees Union,
Housing Board of Haryana v. Haryana Housing Board Employees Union,
1995 (6) Scale 139 [
LNIND 1995 SC 1720 ], p. 150 :
AIR 1996 SC 434 [
LNIND 1995 SC 1720 ], p. 441 :
(1996) 1 SCC 95 [
LNIND 1995 SC 1720 ]; State of Karnataka v. Kempaiah, State of Karnataka v.
Kempaiah,
AIR 1998 SC 3047 [
LNIND 1998 SC 653 ], p. 3050 :
1998 (6) SCC 103 [
LNIND 1998 SC 653 ].
Mr.Srikanth -
Page 93 of 103
80 Tribhuwan Prakash Nayyar v. Union of India, Tribhuwan Prakash Nayyar v. Union

of India,
AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 545 :
(1969) 3 SCC 99 [
LNIND 1969 SC 388 ]; Siddeshwari Cotton Mills (P) Ltd. v. Union of India, supra;
Siddeshwari Cotton Mills (P) Ltd. v. Union of India, supra; Housing Board of Haryana v. Haryana Housing
Board Employees Union, supra; Housing Board of Haryana v. Haryana Housing Board Employees Union, supra;
Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad, Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad,
JT 1999 (4) SC 546 [
LNIND 1999 SC 592 ], p. 579 :
AIR 1999 SC 2423 [
LNIND 1999 SC 592 ], p. 2444 :
1999 (6) SCC 275 [
LNIND 1999 SC 592 ].
81 Amar Chandra v. Collector of Excise, Tripura, Amar Chandra v. Collector of

Excise, Tripura,
AIR 1972 SC 1863 [
LNIND 1972 SC 280 ], p. 1868:
(1972) 2 SCC 442 [
LNIND 1972 SC 280 ]; Housing Board of Haryana v. Haryana Housing Board Employees
Union, supra; Housing Board of Haryana v. Haryana Housing Board Employees Union, supra; ; Grasim
Industries Ltd. v. Collector of Customs, Bombay, Grasim Industries Ltd. v. Collector of Customs, Bombay,
AIR 2002 SC 1766 , p. 1710:
(2002) 4 SCC 297 [
LNIND 2002 SC 260 ]. Nagrik Upbhogta Manch v. Union of India, Nagrik
Upbhogta Manch v. Union of India, In
AIR 2002 SC 2405 [
LNIND 2002 SC 365 ]:
(2002) 5 SCC 466 [
LNIND 2002 SC 365 ] in the expression ’charges rates, duties and taxes’, the term ’charges’ was
“read ejusdem generis taking colour from the succeeding terms, rates, duties and taxes”. It is submitted that here the general
category preceded the enumeration of specific categories and so the rule of ejusdem generis was technically not applicable and the
court in fact applied the more general rule— Noscitur a sociis—discussed at p. 471, ante and rightly limited the meaning of the
term charges.
82 Uttar Pradesh S.E. Board v. Harishanker, Uttar Pradesh S.E. Board v.

Harishanker, Uttar Pradesh S.E. Board v. Harishanker,
AIR 1979 SC 65 , p. 73:
(1978) 4 SCC 16 [
LNIND 1978 SC 209 ]; Grasim Industries Ltd. v. Collector of Customs Bombay, supra
Grasim Industries Ltd. v. Collector of Customs Bombay, supra .
83 Tillmans&Co. v. S.S. Knutsford Ltd., Tillmans&Co. v. S.S. Knutsford Ltd.,

(1908) 2 KB 385 , p. 403.
84 Ibid, p. 404. See further, Grasim Industries v. Collector of Customs, Bombay, supra
Grasim Industries v. Collector of Customs, Bombay, supra .
85 Brownsea Haven Properties v. Poole Corporation, Brownsea Haven Properties v.

Poole Corporation,
(1958) 1 All ER 205 , pp. 213, 214:
1958 Ch 574 (CA).
Mr.Srikanth -
Page 94 of 103
86 A.G. v. Brown, A.G. v. Brown,

(1920) 1 KB 773 .
87 Siddeshwari Cotton Mills (P) Ltd. v. Union of India, Siddeshwari Cotton Mills (P)
AIR 1989 SC 1019 [
LNIND 1989 SC 28 ], p. 1023:
1989 (2) SCC 458 [
LNIND 1989 SC 28 ] (The question was whether ’calendering’ was ’any other process’. The case
was remitted to the Tribunal). See further Asst. Collector of Central Excise, Guntur v. Ramdeo Tobacco Company,
Asst. Collector of Central Excise, Guntur v. Ramdeo Tobacco Company,
AIR 1991 SC 506 [
LNIND 1991 SC 48 ]:
1991 (2) SCC 119 [
LNIND 1991 SC 48 ](In the expression ’suit, prosecution or other legal proceedings’, the words
’other legal proceedings’ construed ejusdem generis as restricted to proceedings in a court of law).
88 Chhajju Ram v. Neki, Chhajju Ram v. Neki,

AIR 1922 PC 112 : 49 IA 144; Bisheswar Pratap Sahi v. Parath Nath,
Bisheswar Pratap Sahi v. Parath Nath,
AIR 1934 PC 213 . Cf. Tribhuvan Parkash Nayyar v. Union of India, Tribhuvan
Parkash Nayyar v. Union of India,
AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 545:
(1969) 3 SCC 99 [
LNIND 1969 SC 388 ] (Relates to construction of Rule 18 of the Displaced Persons Verification
of Claims Rules, 1954).
89 Abdul Rahim v. Syed Abu Mohamed Barkat Ali Shah, Abdul Rahim v. Syed Abu
Mohamed Barkat Ali Shah,
AIR 1928 PC 16 .
90 Chhabba Lal v. Kallu Lal, Chhabba Lal v. Kallu Lal,

AIR 1946 PC 72 , approving opinion of IQBAL AHMAD J., in Mariam v. Amina,
Mariam v. Amina,
AIR 1937 All 65 .
91 Union of India v. Om Prakash, Union of India v. Om Prakash,

AIR 1976 SC 1745 [
LNIND 1976 SC 150 ], p. 1749:
(1976) 4 SCC 32 [
LNIND 1976 SC 150 ]. (It is said that sections 32 and 33 make the difference.)
92 Lila Wati Bai v. State of Bombay, Lila Wati Bai v. State of Bombay,
AIR 1957 SC 521 [
LNIND 1957 SC 25 ], pp. 528, 529:
1957 SCR 721 [
LNIND 1957 SC 25 ]; Kavallappara Kottarathil Kochuni v. State of Madras,
Kavallappara Kottarathil Kochuni v. State of Madras,
AIR 1960 SC 1080 [
LNIND 1960 SC 436 ], p. 1103:
1960 (3) SCR 887 [
LNIND 1960 SC 436 ]; National Association of Local Govt. Officers v. Bolton Corpora-tion,
National Association of Local Govt. Officers v. Bolton Corpora-tion,
(1942) AC 166 :
(1942) 2 All ER 425 , p. 428 (HL)(for this case see further p. 388); Skinner & Co. v. Shew & Co.,
Mr.Srikanth -
Page 95 of 103
Skinner & Co. v. Shew & Co.,

(1893) 1 Ch 413 (CA). But see Eton Rural District Council v. Thames Conservators,
Eton Rural District Council v. Thames Conservators,
(1950) 1 All ER 996 , 997; George De Costa v. Controller of Estate Duty,
George De Costa v. Controller of Estate Duty,
AIR 1967 SC 849 [
LNIND 1966 SC 279 ], p. 851 (para 6): (1967) 1 SCR.
93 S. Prakash Rao v. Commy. of Commercial Taxes, S. Prakash Rao v. Commy. of

Commercial Taxes,
AIR 1990 SC 997 [
LNIND 1990 SC 105 ], p. 1003:
(1990) 2 SCC 259 [
LNIND 1990 SC 105 ]. See further Western India Plywood Limited v. P. Ashokan,
Western India Plywood Limited v. P. Ashokan,
AIR 1997 SC 3883 [
LNIND 1997 SC 1240 ], p. 3886 (para 11):
(1997) 7 SCC 638 [
LNIND 1997 SC 1240 ]; Assistant Commissioner v. Nandanam Construction Company,
Assistant Commissioner v. Nandanam Construction Company,
JT 1999 (7) 265 , p. 270:
(1999) 8 SCC 69 [
LNIND 1999 SC 847 ].
94 R. v. Cleworth, R. v. Cleworth, (1864) 4 B & S 927, p. 932; referred to in Tillmans

& Co. v. S.S. Knutsford Ltd., Tillmans & Co. v. S.S. Knutsford Ltd.,
(1908) 2 KB 385 , p. 404; Brownsea Haven Properties v. Poole Corporation,
Brownsea Haven Properties v. Poole Corporation,
(1958) 1 All ER 205 , p. 213:
1958 AC 574 (CA).
95 Samuel, Re, Samuel, Re,

(1913) AC 514 , p. 525 (PC); 19 IC 765, p. 768 (PC).
1 Uttar Pradesh S.E. Board v. Hari Shanker, Uttar Pradesh S.E. Board v. Hari
Shanker,
AIR 1979 SC 65 , p. 73 :
(1978) 4 SCC 16 [
LNIND 1978 SC 209 ].
2 R. v. Immigration Appeal Tribunal, 0 0 0 0

(1999) 2 All ER 545 (HL).
3 Ibid, p. 553. This case is further discussed at pp. 604-605, post
4 State of Bombay v. Ali Gulshan, State of Bombay v. Ali Gulshan,

AIR 1955 SC 810 [
LNIND 1955 SC 70 ], p. 812 :
1955 (2) SCR 867 [
LNIND 1955 SC 70 ]; Kavallappara Kottarathil Kochuni v. State of Madras,
Kavallappara Kottarathil Kochuni v. State of Madras,
AIR 1960 SC 1080 [
LNIND 1960 SC 436 ], p. 1103 :
1960 (3) SCR 887 [
LNIND 1960 SC 436 ]; Indramani Pyarelal Gupta (Dr.) v. W.R. Natu,
Mr.Srikanth -
Page 96 of 103
Indramani Pyarelal Gupta (Dr.) v. W.R. Natu,

AIR 1963 SC 274 [
LNIND 1962 SC 159 ], p. 281 :
(1963) 1 SCR 721 [
LNIND 1962 SC 159 ]; Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd.,
Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd.,
AIR 1964 SC 1882 [
LNIND 1964 SC 166 ], p. 1885 :
1964 (8) SCR 50 [
LNIND 1964 SC 166 ]; Hamdard Dawakhana v. Union of India, Hamdard
Dawakhana v. Union of India,
AIR 1965 SC 1167 [
LNIND 1964 SC 326 ], p. 1172 :
(1965) 2 SCR 192 [
LNIND 1964 SC 326 ]; Raja Bhanu Pratap Singh v. Asstt. Custodian, Raja
Bhanu Pratap Singh v. Asstt. Custodian,
AIR 1966 SC 245 [
LNIND 1965 SC 178 ], p. 246 :
(1966) 1 SCR 304 [
LNIND 1965 SC 178 ]; Tribhuvan Parkash Nayyar v. Union of India,
Tribhuvan Parkash Nayyar v. Union of India,
AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 545 :
(1969) 3 SCC 99 [
LNIND 1969 SC 388 ]; Jaga Ram v. State of Haryana, Jaga Ram v. State of
Haryana,
AIR 1971 SC 1033 [
LNIND 1971 SC 150 ]:
(1971) 1 SCC 671 [
LNIND 1971 SC 150 ]; Mangalore Electric Supply Co. Ltd. v. C.I.T., W.B.,
Mangalore Electric Supply Co. Ltd. v. C.I.T., W.B.,
AIR 1978 SC 1272 [
LNIND 1978 SC 153 ], p. 1275 :
(1978) 3 SCC 248 [
LNIND 1978 SC 153 ]; Siddeshwari Cotton Mills (P) Ltd. v. Union of India,
Siddeshwari Cotton Mills (P) Ltd. v. Union of India,
AIR 1989 SC 1019 [
LNIND 1989 SC 28 ], p. 1023 :
1989 (1) SCR 214 [
LNIND 1989 SC 28 ].

AIR 1955 SC 810 [
LNIND 1955 SC 70 ], p. 812 :
1955 (2) SCR 867 [
LNIND 1955 SC 70 ].

Kochuni v. State of Madras,
AIR 1960 SC 1080 [
LNIND 1960 SC 436 ], p. 1103 :
1960 (3) SCR 887 [
LNIND 1960 SC 436 ].
7 National Association of Local Govt. Officers v. Bolton Corporation, National

Association of Local Govt. Officers v. Bolton Corporation,
(1942) 2 All ER 425 (HL); Hood Barrs v. IRC, Hood Barrs v. IRC,
(1946) 2 All ER 768 , p. 773 : 176 LT 283 (CA); In-dramani Pyarelal Gupta (Dr.) v. W.R. Natu,
In-dramani Pyarelal Gupta (Dr.) v. W.R. Natu,
AIR 1963 SC 274 [
LNIND 1962 SC 159 ], pp. 280, 281 :
Mr.Srikanth -
Page 97 of 103
1963 (1) SCR 721 [

LNIND 1962 SC 159 ]; Hamdard Dawakhana v. Union of India, Hamdard
AIR 1965 SC 1167 [
LNIND 1964 SC 326 ], p. 1172; Raja Bhanu Pratap v. Assistant Custodian, E.P., Bahraich,
Raja Bhanu Pratap v. Assistant Custodian, E.P., Bahraich,
AIR 1966 SC 245 [
LNIND 1965 SC 178 ], p. 246 :
1966 (1) SCR 304 [
LNIND 1965 SC 178 ].
8 United Town Electric Co. Ltd. v. A.G. for Newfoundland, United Town Electric Co.
Ltd. v. A.G. for Newfoundland,
(1939) 1 All ER 423 (PC); referred to in Mysore State Electricity Board v. Bangalore Woollen,
Cotton & Silk Mills, Mysore State Electricity Board v. Bangalore Woollen, Cotton & Silk Mills,
AIR 1963 SC 1128 [
LNIND 1962 SC 372 ], p. 1138; Jagdish Chandra Gupta v. Kajaria Traders (In-dia) Ltd.,
Jagdish Chandra Gupta v. Kajaria Traders (In-dia) Ltd.,
AIR 1964 SC 1882 [
LNIND 1964 SC 166 ], p. 1885; Quazi v. Quazi, Quazi v. Quazi,
(1979) 3 All ER 897 , p. 902 (HL); Siddeshwari Cotton Mills (P) Ltd. v. Union of India,
Siddeshwari Cotton Mills (P) Ltd. v. Union of India,
AIR 1989 SC 1019 [
LNIND 1989 SC 28 ], p. 1023 :
1989 (1) SCC 420 [
LNIND 1989 SC 31 ].
9 P. Veerasamy v. Official Assignee High Court Madras, P. Veerasamy v. Official

Assignee High Court Madras,
JT 1999 (1) SC 8 [
LNIND 1999 SC 19 ], p. 16 :
AIR 1999 SC 661 [
LNIND 1999 SC 19 ], p. 667 :
(1999) 2 SCC 505 [
LNIND 1999 SC 19 ].
10 Lokmat Newspapers Pvt. Ltd. v. Shankar Prasad, Lokmat Newspapers Pvt. Ltd. v.
Shankar Prasad,
JT 1999 (4) SC 546 [
LNIND 1999 SC 592 ], p. 579 :
AIR 1999 SC 2423 [
LNIND 1999 SC 592 ], p. 2444 :
(1999) 6 SCC 275 [
LNIND 1999 SC 592 ].
11 National Association of Local Govt. Officers v. Bolton Corporation, National

Association of Local Govt. Officers v. Bolton Corporation,
(1942) 2 All ER 425 (HL).
12 Russel v. Scott, Russel v. Scott,

(1948) 2 All ER 1 , p. 4 (HL). See further Housing Board of Hary-ana v. Haryana Housing
Board Employees Union, Housing Board of Hary-ana v. Haryana Housing Board Employees Union,
1995 (6) Scale 139 [
LNIND 1995 SC 1720 ], p. 150 :
AIR 1996 SC 434 [
LNIND 1995 SC 1720 ], p. 441 (para 51) :
(1996) 1 SCC 95 [
LNIND 1995 SC 1720 ].
Mr.Srikanth -
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13 United Town Electric Company Ltd. v. A.G. for Newfoundland, United Town
Electric Company Ltd. v. A.G. for Newfoundland,
(1939) 1 All ER 423 (PC).
14 Allen v. Emmerson, Allen v. Emmerson,

(1944) 1 All ER 344 , p. 347 :
1944 KB 362 (KBD).
15 Jiyajirao Cotton Mills Ltd. v. Madhya Pradesh Electricity Board, Jiyajirao Cotton
Mills Ltd. v. Madhya Pradesh Electricity Board,
AIR 1989 SC 788 [
LNIND 1988 SC 445 ], p. 809 :
1988 (4) JT 737 [
LNIND 1988 SC 445 ] : 1989 Supp (2) SCC 52; Adoni Cotton Mills v. A.P. State Electricity
Board, Adoni Cotton Mills v. A.P. State Electricity Board,
AIR 1976 SC 2414 [
LNIND 1976 SC 255 ]:
1976 (4) SCC 68 [
LNIND 1976 SC 255 ]; Bihar State Electricity Board v. Parmeshwar Kumar Agarwala,
Bihar State Electricity Board v. Parmeshwar Kumar Agarwala,
AIR 1996 SC 2214 , p. 2215 :
1996 (4) SCC 686 .
16 Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., Jagdish Chandra Gupta v.
Kajaria Traders (India) Ltd.,
AIR 1964 SC 1882 [
LNIND 1964 SC 166 ], p. 1885 :
1964 (8) SCR 50 [
LNIND 1964 SC 166 ].
17 Ibid. For further illustrations where the rule was not applied for want of a genus, see the following cases: Hamdard
Dawakhana v. Union of India, Hamdard Dawakhana v. Union of India,
AIR 1965 SC 1167 [
LNIND 1964 SC 326 ], p. 1172 :
(1965) 2 SCR 192 [
LNIND 1964 SC 326 ] (section 2(d)(o) of the Fruits Products Order); Raja Bhanu Pratap Singh
v. Assistant Custodian, Raja Bhanu Pratap Singh v. Assistant Custodian,
AIR 1966 SC 245 [
LNIND 1965 SC 178 ], p. 246 :
(1965) 3 SCR 499 [
LNIND 1965 SC 105 ] (
section 10(2)(n) of the Administration of Evacuee Property Act, 1950 ); Akarapu Katta Mallu v. Purna Chandra
Rao, Akarapu Katta Mallu v. Purna Chandra Rao,
AIR 1967 SC 1363 [
LNIND 1966 SC 312 ]:
(1967) 2 SCR 309 [
LNIND 1966 SC 312 ] (
section 562-A, Cr.P.C. , 1898); Tribhuwan Parkash Nayyar v. Union of India, Tribhuwan Parkash
Nayyar v. Union of India,
AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 545 :
(1969) 3 SCC 99 [
LNIND 1969 SC 388 ]. [ Rule 18 of the Displaced Persons (Verifica-tion of Claims)
Supplementary Rules, 1954]; Collector of Central Excise, Coimba-tore v. Protein Products of India Ltd., Collector
of Central Excise, Coimba-tore v. Protein Products of India Ltd.,
AIR 1989 SC 627 [
LNIND 1988 SC 563 ], p. 629 : 1989 Supp (1) SCC 729 (Exemption notification Dt/30-6-1979
under the Central Excises and Salt Act, 1944).
Mr.Srikanth -
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18 Sun Fire Office v. Hart, Sun Fire Office v. Hart,

(1889) 14 AC 98 , p. 104 (PC); referred to with approval in Central Bank of India v. Hartford
Fire Insurance Co., Central Bank of India v. Hartford Fire Insurance Co.,
AIR 1965 SC 1288 , p. 1291 :
(1965) 35 Com Cases 378 .

AIR 1955 SC 810 [
LNIND 1955 SC 70 ]:
1995 (2) SCR 867 .

AIR 1960 SC 1080 [
LNIND 1960 SC 436 ], p. 1103 :
1960 (3) SCR 887 [
LNIND 1960 SC 436 ]; Tribhuwan Parkash Nayyar v. Union of India,
Tribhuwan Parkash Nayyar v. Union of India,
AIR 1970 SC 540 [
LNIND 1969 SC 388 ], p. 545 :
(1969) 3 SCC 99 [
LNIND 1969 SC 388 ] (the rule is neither final nor conclusive). Mangalore Elec-tric Supply. Co.
Ltd. v. C.I.T., West Bengal, Mangalore Elec-tric Supply. Co. Ltd. v. C.I.T., West Bengal,
AIR 1978 SC 1272 [
LNIND 1978 SC 153 ], p. 1275 :
(1978) 3 SCC 248 [
LNIND 1978 SC 153 ]; Grasim Industries Ltd. v. Collector of Customs Bombay,
Grasim Industries Ltd. v. Collector of Customs Bombay,
AIR 2002 SC 1706 [
LNIND 2002 SC 260 ], p. 1710 :
(2002) 4 SC 297 .
21 Lilawati Bai v. State of Bombay, Lilawati Bai v. State of Bombay,

AIR 1957 SC 521 [
LNIND 1957 SC 25 ], p. 529 :
1957 SCR 721 [
LNIND 1957 SC 25 ]; Ham-dard Dawakhana v. Union of India, Ham-dard
AIR 1965 SC 1167 [
LNIND 1964 SC 326 ], p. 1172 :
(1965) 2 SCR 192 [
LNIND 1964 SC 326 ]; Grasim Industries Ltd. v. Collector of Customs Bombay, supra.
Grasim Industries Ltd. v. Collector of Customs Bombay, supra.
22 Quazi v. Quazi, Quazi v. Quazi,

(1979) 3 All ER 897 , p. 916 :
1980 AC 744 :
(1979) 3 WLR 823 (HL).
23 See C (a minor), Re, C (a minor), Re,

(1996) 4 All ER 871 , p. 877 (a to e) (HL).
24 Culley v. Harrison, Culley v. Harrison,

(1956) 2 All ER 254 .
Mr.Srikanth -
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25 Powell v. Kempton Park Racecourse, Powell v. Kempton Park Racecourse,

(1899) AC 143 : 80 LT 538 (HL).
26 Wellsted's Will Trusts, Re, Wellsted's Will Trusts, Re,

(1949) 1 All ER 577 , p. 587 (CA); Canadian National Railways v. Canada Steamship Lines
Ltd., Canadian National Railways v. Canada Steamship Lines Ltd.,
(1945) AC 204 , p. 211 (PC); Thakur Amarsinghji v. State of Rajasthan, Thakur
Amarsinghji v. State of Rajasthan,
AIR 1955 SC 504 [
LNIND 1955 SC 36 ], p. 523 :
(1955) 2 SCR 303 [
LNIND 1955 SC 36 ], Timblo Irmaos Ltd. Margao v. Jorge Anibal Motos Sequeira,
Timblo Irmaos Ltd. Margao v. Jorge Anibal Motos Sequeira,
AIR 1977 SC 734 [
LNIND 1976 SC 495 ], p. 739 :
(1977) 3 SCC 474 [
LNIND 1976 SC 495 ].
N.B.—‘Vide’ or ‘Videlicet’ means ‘to wit’ or ‘that is to say’. ‘Etc.’ or ‘etcetera’ does not mean ‘et
alia’, but means ‘and all the rest’. A clause in a charter party was worded as follows: ‘Should the vessel be detained by causes over
which the charter-ers have no control, viz. quarantine, ice, hurricane, blockade, clearing of the steamer after the last cargo is taken
over, etc. no demurrage is to be charged and lay days not to count’; Held, the initial general words were not limited to particular
instances mentioned but referred to all causes over which the charterers had no control; see Ambatielos v. Anton Jurgens Margarine
Works, see Ambatielos v. Anton Jurgens Margarine Works,
(1922) All ER 543 , pp. 546, 549 :
1923 AC 175 (HL). The meaning of expression ‘that is to say’ varies according to context. It
may have the object of explaining, extending or limiting the meaning of a preceding clause; State of Tamil Nadu v. Pyarelal
Malhotra, State of Tamil Nadu v. Pyarelal Malhotra,
AIR 1976 SC 800 [
LNIND 1976 SC 16 ], pp. 803, 804 :
(1976) 1 SCC 834 [
LNIND 1976 SC 16 ]; and it may be construed as exhaustive : Sait Rikhaji Furtarnal v. State of
Andhra Pradesh, Sait Rikhaji Furtarnal v. State of Andhra Pradesh,
AIR 1991 SC 354 : 1991 Supp (1) SCC 202; Commissioner of Sales Tax v. Popular Trading
Company, Commissioner of Sales Tax v. Popular Trading Company,
JT 2000 (4) SC 253 [
LNIND 2000 SC 598 ], p. 256 :
AIR 2000 SC 1578 [
LNIND 2000 SC 598 ]:
(2000) 5 SCC 511 [
LNIND 2000 SC 598 ] (‘that is to say’ is descriptive, enu-merative and exhaustive); Castrol
India Ltd. v. Commissioner of Central Excise, Calcutta, Castrol India Ltd. v. Commissioner of Central Excise,
Calcutta,
(2005) 3 SCC 30 [
LNIND 2005 SC 204 ], pp. 36, 37 (‘that is to say’ are words of limitation used in descriptive,
enumerative and exhaustive sense); Mahindra Engineering & Chemical Products Ltd. v. Union of India, Mahindra
Engineering & Chemical Products Ltd. v. Union of India,
AIR 1993 SC 406 [
LNIND 1992 SC 64 ], (para 3) :
(1992) 1 SCC 727 [
LNIND 1992 SC 64 ] (Use of expressions ‘namely’, or ‘that is to say’ followed by description of
goods is usu-ally exhaustive unless there are strong indications to the contrary); State of Karna-taka v. Balaji Computers,
State of Karna-taka v. Balaji Computers,
(2007) 2 SCC 743 [
LNIND 2006 SC 1167 ] (paras 17 to 29) :
(2007) 1 JT 250 [
LNIND 2006 SC 1100 ] (meaning of words ‘namely’, ‘that is to say’); Sree Durga Distributors v.
Mr.Srikanth -
Page 101 of 103
State of Karnataka, Sree Durga Distributors v. State of Karnataka,

(2007) 4 SCC 465 [
LNIND 2007 SC 390 ] (para 5) :
AIR 2007 SC 1751 [
LNIND 2007 SC 569 ](‘namely’ followed by description of goods held exhaustive). See further
Royal Hatcheries Pvt. Ltd. v. State of Andhra Pradesh, Royal Hatcheries Pvt. Ltd. v. State of Andhra Pradesh,
AIR 1994 SC 666 , p. 667 : 1994 Supp (1) SCC 429 (use of ‘etc.’ after enumeration following
‘that is to say’ will not make the enumeration ex-haustive).
27 Chertsey UDC v. Mixnam's Properties Ltd., Chertsey UDC v. Mixnam's Properties

Ltd.,
(1964) 2 All ER 627 , pp. 630, 631 :
1965 AC 735 (HL). See further Emperor v. Sibnath Banerji, Emperor v.
Sibnath Banerji,
AIR 1945 PC 156 ; Afzal Ullah v. State of U.P., Afzal Ullah v. State of U.P.,
AIR 1964 SC 264 [
LNIND 1963 SC 220 ], p. 268 :
(1964) 4 SCR 991 [
LNIND 1963 SC 220 ]; Shiv Kirpal Singh v. V.V. Giri, Shiv Kirpal Singh v. V.V.
Giri,
AIR 1970 SC 2097 [
LNIND 1970 SC 367 ], p. 2112 :
(1970) 2 SCC 567 [
LNIND 1970 SC 367 ].
28 R. v. Clarke, R. v. Clarke,
(1985) 2 All ER 777 , p. 782 :
1985 AC 1037 ; Quazi v. Quazi, Quazi v. Quazi,
(1979) 3 All ER 897 , p. 903 :
(1980) 2 AC 744 (HL). See title 8(b), Noscitur a Sociis.
29 Zafar Khan v. Board of Revenue, Zafar Khan v. Board of Revenue, (1984) (Supp)
SCC 505, p. 516 :
AIR 1985 SC 39 [
LNIND 1984 SC 196 ](The rule of ejusdem generis wrongly applied, but the decision is correct).
But if the words ’and the like’ are preceded by more than one species of a genus they would be construed ejusdem generis; Express
Hotels Pvt. Ltd. v. State of Gujarat, ejusdem generis; Express Hotels Pvt. Ltd. v. State of Gujarat,
AIR 1989 SC 1949 [
LNIND 1989 SC 286 ], p. 1960 :
(1989) 3 SCC 677 [
LNIND 1989 SC 286 ]. For construction of the words ’or the like’ see further Shree Chamundi
Mopeds Ltd. v. Church of South India Trust Association, Shree Chamundi Mopeds Ltd. v. Church of South
India Trust Association,
AIR 1992 SC 1439 [
LNIND 1992 SC 368 ], p. 1445 :
1992 (3) SCC 1 [
LNIND 1992 SC 368 ] :
1992 (3) JT 98 [
LNIND 1992 SC 368 ].
30 Ishwar Singh Bagga v. State of Rajasthan, Ishwar Singh Bagga v. State of

Rajasthan,
(1987) 1 SCC 101 [
LNIND 1986 SC 460 ], p. 113 :
AIR 1987 SC 628 [
LNIND 1986 SC 460 ] The rule of ejusdem generis wrongly applied but the decision is correct).
Distinguished in Rajkumar Gupta v. Governor, Delhi, Rajkumar Gupta v. Governor, Delhi,
AIR 1997 SC 2680 [
Mr.Srikanth -
Page 102 of 103
LNIND 1996 SC 1833 ]:

(1997) 1 SCC 556 [
LNIND 1996 SC 1833 ] (Interpreting
section 34 of the Industrial Disputes Act, 1947 , it was held that the Government may authorise a private person to
file a complaint)
31 Food Corpn. of India v. Yadav Engineer and Contractor, Food Corpn. of India v.
Yadav Engineer and Contractor,
(1983) 1 SCR 95 [
LNIND 1982 SC 116 ], p. 106 :
(1982) 2 SCC 499 [
LNIND 1982 SC 116 ] :
AIR 1982 SC 1302 [
LNIND 1982 SC 116 ] referred to in Rachappa Guruadappa v. Gurusidappa Nariamappa,
Rachappa Guruadappa v. Gurusidappa Nariamappa,
AIR 1989 SC 635 [
LNIND 1988 SC 552 ], p. 637 :
(1989) 1 SCC 345 [
LNIND 1988 SC 559 ] (rule of ejusdem generis wrongly applied).
32 Canterbury's (Archbishop) case,

(1596) 76 ER 519 ; Copland v. Powell, Copland v. Powell,
(1823) 130 ER 149 .
33 Casher v. Holmes, Casher v. Holmes,

(1831) 109 ER 1263 : 109 ECR 1263.
34 M’Neill v. Crommelin, M’Neill v. Crommelin, (1858) 9 Ir CLR 61 : 62 Digest, p.

672. In Koteswar Vittal Kamnath v. K. Rangappa Baliga & Co., Koteswar Vittal Kamnath v. K. Rangappa Baliga
& Co.,
AIR 1969 SC 504 [
LNIND 1968 SC 378 ], p. 511 :
(1969) 1 SCC 255 [
LNIND 1968 SC 378 ], the Supreme Court quoted the rule from Blacks Interpretation of Laws
as follows: “When a sentence in a statute contains several antecedents and several consequences, they are to be read distributively,
that is to say each phrase or expression is to be referred to its appropriate objects”.
35 Osborne : Concise Law Dictionary, 7th Edition, p. 281.
36 Wharton : Law Lexicon, 14th Edition, p. 850.
37 Bishop v. Deakin, Bishop v. Deakin,

(1936) 1 All ER 255 , p. 257. Cf. Election Commission, India v. Saka Venkata Rao,
Election Commission, India v. Saka Venkata Rao,
AIR 1953 SC 210 [
LNIND 1953 SC 23 ], p. 215 :
1953 SCR 1144 [
LNIND 1953 SC 23 ].
38 Koteswar Vittal Kamath v. K. Rangappa Baliga&Co., Koteswar Vittal Kamath v. K.

Rangappa Baliga&Co.,
AIR 1969 SC 504 [
LNIND 1968 SC 378 ], p. 511 :
Mr.Srikanth -
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(1969) 1 SCC 255 [

LNIND 1968 SC 378 ].
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 6
OPERATION OF STATUTES
1. COMMENCEMENT
, means the day on which the Act comes into force.
1
Unless provided otherwise, 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.2 Thus, if a Central Act is assented to by the
President on 26th January at 10.30 a.m., it would be construed to have come into operation on the
mid-night between 25th and 26th January.3
Under the various State General Clauses Acts 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.4
Quite often the commencement of an Act is postponed to some specified future date or to such
date as the appropriate Government may, by notification in the Official Gazette, appoint.5
Provision is also at times made for appointment of different dates for coming into force of
different parts of the same Act.
Mr.Srikanth -
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An Act cannot be said to commence or to be in force unless it is brought into operation by

legislative enactment or by the exercise of authority by a delegate empowered to bring it into
operation.6 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.7 When enforcement of a statute or a provision therein
is left to the discretion of the Government without laying down any objective standards, no writ of
mandamus can be issued to the Government to enforce the statute or the provision.8 But if
considerable time has elapsed since passing of the statute a writ can be issued directing the
Government to consider the question whether the statute or the provision should be brought into
force.9 Further, although the court has power to stay the operation of a statute, this should be done
only in exceptional cases.10
The House of Lords has also held that when certain provisions of a statute are to come into force
on a day to be appointed by a minister by order made by statutory instrument, the courts could not
compel the minister to bring those provisions into effect;11 but the minister's discretion was not
unfettered and he was required to keep the question whether those statutory provisions should be
brought into force under review and it would be an abuse or excess of power for him to exercise a
prerogative power in-consistent with that duty.12 A provision in a statute cannot be made
operative by applying the doctrine of legitimate expectation when the provision is yet to come
into force on a notification issued by the executive Government.13
A provision in a Bill does not come into operation unless the enacting process is over and the
resultant Act containing that provision is brought into operation. But an Act can provide that
provisions of a Bill on a given subject will come into operation on their introduction in the
Legislature. Thus
section 4 of the Provisional Collection of Taxes Act, 1931 provides that a declared
provision (which refers to a provision relating to increase of a duty of Customs and Excise with a
declaration that it is in public in-terest that the provision should have immediate effect) will have
the force of law immediately on the expiry of the day on which the Bill containing the provision is
introduced and it will cease to have the force of law when the provisions of the Act come into
operation as an enactment.14
When an Act is preceded by an identically worded Ordinance and the Act contains a provision
that ‘all actions and orders under the Ordinance are deemed to have been under the Act’, for all
practical purposes the Act will be deemed to be in operation and effective from the date of the
commencement of the Ordinance.15
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An Act not applicable to an area or a state cannot be made to apply there by judicial fiat but if a
provision in such an Act embodies a principle of justice, equity or good conscience the principle
so embodied may be applied to a case arising from an area or state to which the Act does not
extend, if the fact situation of the case so requires.16
Although, unless otherwise provided, a Central Act comes into operation on the day it receives
the Presidential assent, the gap between the date of assent and the date of promulgation of the Act
may, in cases affecting personal liberty, give rise to a defence of want of fair procedure.17
2. RETROSPECTIVE OPERATION
(a) General principles
(i) Power to make retrospective laws.—The Union Parliament and State Legislatures have
plenary powers of legislation within the fields assigned to them and subject to certain
constitutional and judicially recognised restrictions18 can legislate prospectively as well as
retrospectively.19 Competence to make a law for a past period on a subject depends upon
present competence to legislate on that subject.20 By retrospective legislation, the
Legislature may make a law which is operative for a limited period prior to the date of its
coming into force and is not operative either on that date or in future.21 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 .22 This power has also been often used for validating prior
executive and legislative acts by retrospectively curing the defect which led to their
invalidity and thus even making ineffective judgments of competent courts declaring the
invalidity.23 It is not necessary that the invalidity must be cured by the same Legislature
which had passed the earlier invalid Act. Thus if a state Legislature passes an Act on a
subject which falls outside its competence and within the competence of Parliament and is
for that reason held invalid, Parliament can by pass-ing a retrospective Act which
incorporates the State Act cure the invalid-ity.24
(ii) Statutes dealing with substantive rights.—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.25 But the rule in general is applicable where the
object of the statute is to affect vested rights or to impose new burdens or to impair
existing obligations. Unless there are words in the statute sufficient to show the intention
Mr.Srikanth -
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of the Legislature to affect existing rights, it is “deemed to be prospective only ‘nova

constitutio futuris formam imponere debet non praeteritis’ 26 [2 c. Int.
392]”27 In the words of Lord Blanesburg, “provisions which touch a right in existence at
the passing of the statute are not to be applied retrospectively in the absence of express
enactment or necessary intendment.”28 “Every statute, it has been said”, observed Lopes,
L.J., “which takes away or impairs vested rights acquired under existing laws, or creates a
new obligation or imposes a new duty, or attaches a new disability in respect of
transactions already past, must be presumed to be intended not to have a retrospective
effect”.29 As a logical corollary of the general rule, that retrospective operation is not taken
to be intended unless that intention is manifested by express words or necessary
implication, there is a subordinate rule to the effect that a statute or a section in it is not to
be construed so as to have larger retrospective operation than its language renders
necessary.30 In other words close attention must be paid to the language of the statutory
provision for determining the scope of the retrospectivity intended by Parliament.31 But if
the literal reading of the provision giving retrospectivity produces absurdities and
anomalies, a case not prima facie within the words may be taken to be covered, if the
purpose of the provision indicates that the intention was to cover it.32 The inhibition
against retrospective construction is not a rigid rule and must vary secundum materium.33
It has been said that “the basis of the rule is no more than simple fairness which ought to
be the basis of every legal rule.”34
It is not necessary that an express provision be made to make a statute retrospective

and the 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.35
The rule against retrospective construction is not applicable to a statute merely

“because a part of the requisites for its action is drawn from a time antecedent to its
passing”.36 If that were not so, every statute will be presumed to apply only to persons
born and things come into existence after its operation and the rule may well result in
virtual nullification of most of the statutes. An
amending Act is, therefore, not retrospective merely because it applies
also to those to whom pre-amended Act was applicable if the amended Act has
operation from the date of its amendment and not from an anterior date.37 But this does
not mean that a statute which takes away or impairs any vested right acquired under
existing laws or which creates a new obligation or imposes a new burden in respect of
past transactions will not be treated as retrospective.38 Thus to apply an
amending Act , which creates a new obligation to pay additional
compensation, or which reduces the rate of compensation,40 to pending proceedings
39
for determination of compensation for acquisitions already made, will be to construe it

retrospective which cannot be done unless such a construction follows from express
words or necessary implication. Similarly, a new law enhancing compensation payable
in respect of an accident arising out of use of motor vehicle will not be applicable to
accidents taking place before its enforcement and pending proceedings for assessment
of compensation will not be affected by such a law unless by express words or
Mr.Srikanth -
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necessary implication the new law is retrospective.41 It makes no difference in

application of these principles that the amendment is by substitution or otherwise.42
The cases where the principle, that a statute is not retrospective simply because it takes
into account past events, has been applied are discussed hereinafter under titles 2(g)
and 2(h).
Another principle flowing from presumption against retrospectivity is that “one does
not expect rights conferred by the statute to be destroyed by events which took place
before it was passed.”43
In certain cases, a distinction is drawn 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.44 This distinction, however, has not been maintained in
other cases.45 The word ‘retrospective’ has thus been used in different senses causing a
certain amount of confusion.46 The real issue in each case is as to the scope of
particular enactment having regard to its language and the object discernible from the
statute read as a whole.
(iii)Statutes dealing with procedure.—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.47 As stated by 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”.48 If the new
Act affects matters of procedure only, then, prima facie, “it applies to all actions pending
as well as future”.49 In stating the principle that “a change in the law of procedure operates
retrospectively and unlike the law relating to vested right is not only prospective”,50 the
Supreme Court has quoted with approval the reason of the rule as expressed in Maxwell:51
“No person has a vested right in any course of procedure. He has only the right of
prosecution or defence in the manner prescribed for the time being by or for the court in
which the case is 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”.52 Relying
upon this principle it has been held that “if a court has jurisdiction to try the suit, when it
comes for disposal, it cannot refuse to assume jurisdiction by reason of the fact that it had
no jurisdiction to entertain it at the time when it was instituted.”53 It has been said that law
relating to forum and limitation is procedural in nature whereas law relating to right of
action and right of appeal even though remedial is substantive in nature; that a procedural
statute should not generally speaking be applied retrospectively where the result would be
to create new disabilities or obligations or to impose new duties in respect of transactions
already accomplished; that a statute which not only changes the procedure but also creates
new rights and obligations shall be construed to be prospective, unless otherwise provided
either expressly or by necessary implication.54
Mr.Srikanth -
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A change of forum except in pending proceedings55 is a matter of procedure and,

therefore, if a new Act requires certain types of original proceedings to be instituted
before a special tribunal constituted under the Act to the exclusion of civil courts, all
proceedings of that type whether based on old or new causes of action will have to be
instituted before the tribunal.56 The non-executability of a decree passed by an Indian
court against a foreigner at a place in foreign country is also a matter of procedure and
the decree becomes executable if the place where it is being executed ceases to be a
foreign country and becomes part of India and the Indian
Code of Civil Procedure 57
is extended to that place. On the same
principle it was held that an arbitration award made in a foreign State is enforceable in
the United Kingdom as a convention award under
section 3 of the Arbitration Act , 1975 if the foreign State is a party to
the New York convention when proceedings for enforcing the award are taken
although it was not such a party at the time of the making of the award.58 It was pointed
out that in so construing the section it was not given a retrospective operation as it
merely affected the form of procedure of enforcement in that an award which, at the
time it was made, was enforceable by action at common law became enforceable under
the Act on the foreign State becoming a party to the convention subsequent to the date
of the award.59Section 45B the
Employees' State Insurance Act, 1948 , which enables the Employees'
State Insurance Corporation to recover arrears of contribution from the employers as
arrears of land revenue, has been held to be procedural and applicable to arrears falling
due before coming into force of the section on January 28, 1968.60 The reason is that
statutes providing for new remedies for enforcement of an existing right are treated as
procedural and apply to future as well past causes of action.61
(iv)Recent statements of the rule against retrospectivity.—The classification of a statute as

either substantive or procedural does not necessarily determine whether it may have a
retrospective operation. For example, a statute of limitation is generally regarded as
procedural but if its application to a past cause of action has the effect of reviving or
extinguishing a right of suit such an operation cannot be said to be procedural.62 It has also
been seen that the rule against retrospective construction is not applicable merely because
a part of the requisites for its action is drawn from a time antecedent to its passing.63 For
these reasons the rule against retrospectivity has also been stated in recent years avoiding
the classification of statutes into substantive and procedural and avoiding use of words like
existing or vested.
One such formulation by Dixon C.J. is as follows: “The general rule of the common
law is that a statute changing the law ought not, unless the intention appears with
reasonable certainty, to be understood as applying to facts or events that have already
occurred in such a way as to confer or impose or otherwise affect rights or liabilities
which the law had defined by reference to the past events. But given rights and
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liabilities fixed by reference to the past facts, matters or events, the law appointing or
regulating the manner in which they are to be enforced or their enjoyment is to be
secured by judicial remedy is not within the application of such a presumption”.64
Another more recent and more simple statement of the rule was made in Secretary of
State for Social Security v. Tunnicliffe Secretary of State for Social
Security v. Tunnicliffe 65 by Staughton L.J. in the following words:
“The true principle is that 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 degree-the greater the unfairness, the more it is to be expected that Parliament
will make it clear if that is intended.”66 The above statement was approved by the
House of Lords in L’office Cherifien des Phosphates v. Yamashita Shinnihon
Steamship Co. Ltd. L’office Cherifien des Phosphates v. Yamashita
Shinnihon Steamship Co. Ltd. 67 It was observed that the question of
fairness will have to be answered in respect of a particular statute by taking into

account various factors, viz., value of the rights which the statute affects; extent to
which that value is diminished or extinguished by the suggested retrospective effect of
the statute; unfairness of adversely affecting the rights; clarity of the language used by
Parliament and the circumstances in which the legislation was created.68 “All these
factors must be weighed together to provide a direct answer to the question whether the
consequences of reading the statute with the suggested degree of retrospectivity is so
unfair that the words used by Parliament cannot have been intended to mean what they
might appear to say.”69
In Yamashita's case during the pendency of a claim in arbitration the

Arbitration Act , 1980 was amended by inserting section 13A which
empowered the arbitrators to dismiss a claim if there has been inordinate and
inexcusable delay on the part of the claimant in pursuing the claim which makes fair
resolution of the issues difficult or causes serious prejudice to the respondent. The
question in the case was whether delay by the claimant in pursuing the claim before the
date of enactment of section 13A could be taken into account in considering the
question of dismissal under that section and this question was answered in the
affirmative. But it does not follow that the rule as stated in the traditional form has
been abandoned. Indeed the judgment of the Court of Appeal in Tunnicliffe's case
where the rule of fairness was stated and applied by Staughton L.J. was overruled by
the House of Lords in Plewa v. Chief Adjudication Officer. Plewa v.
Chief Adjudication Officer. 70 In that case the question related to the
construction of section 53 of the Social Security Act, 1986. This section enabled the
Secretary of State to recover over-payment of pension from either the recipient or from
third parties on whose misrepresentation or failure to disclose over-payment was made.
The provision creating an obligation on third parties for repayment was a new
provision. Further, the section removed the defence of due care and diligence that was
earlier available to the recipient. The section was held to be retrospective by the Court
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of Appeal by applying the test of fairness. But the House of Lords held that the section
created a new obligation and the presumption against retrospectivity applied.71 The
section, therefore, did not apply to over-payments made before its enactment. Even
applying the test of fairness it was not possible to say that it would not be unfair to
apply the section to over-payments made before its operation.72 The over-payments
before the new Act came into operation were thus held to be recoverable only under the
repealed Acts from the recipient being liabilities incurred before the repeal.73
The test of fairness was applied by the Court of Appeal in Antonelli v. Secretary of
State for Trade and Industry, Antonelli v. Secretary of State for Trade
and Industry, 74 in interpreting section 3(1)(a)(i) of the Estate Agents
Act, 1979. This section authorises the Director General of Fair Trading to make an
order prohibiting a person from doing any estate agency work when he considers him
to be unfit to practice on the ground that ‘he has been convicted of an offence
involving fraud or other dishonesty or violence’. The question in the case was whether
a conviction which occurred prior to the passing of the Act could enable the Director to
make a disqualification order. In holding that the Director could act on a conviction
which occurred prior to the Act the court found that the test of fairness was satisfied for
the power was intended for the protection of the public and the Director had a wide
discretion in considering whether the conviction made the person unfit to carry on
estate agency work.75
The doctrine of fairness was referred to by the Supreme Court in Vijay v. State of
Maharashtra. Vijay v. State of Maharashtra. 76 In this
case a new law which enacted that ‘no person shall be a member of a Panchayat or
continue as such who has been elected as a councilor of Zila Parishad as a member of
the Panchayat Samiti’ was held to be retrospective and applicable to existing members
of a Panchayat. In holding so S.B. Sinha, J. observed: “It is now well-settled that when
a literal reading of the provision giving retrospective effect does not produce absurdity
or anomaly, the same would not be construed only prospective. The negation is not a
rigid rule and varies with the intention and purport of the legislation, but to apply it in
such a case is a doctrine of fairness. When a new law is enacted for the benefit of the
community as a whole, even in absence of a provision the statute may be held to be
retrospective in nature.”77
(v) Language not always decisive.—In deciding the question of applicability of a particular
statute to past events, the language used is no doubt the most important factor to be taken
into account;78 but it cannot be stated as an inflexible rule that use of present tense or
present perfect tense is decisive of the matter that the statute does not draw upon past
events for its operation. Thus, the words ‘a debtor commits an act of bankruptcy’ were
held to apply to acts of bankruptcy committed before the operation of the Act.79 The words
‘if a person has been convicted’ were construed to include anterior convictions.80 The
words ‘has made’, ‘has ceased’, ‘has failed’ and ‘has become’, may denote events
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happening before or after coming into force of the statute and all that is necessary is that
the event must have taken place at the time when action on that account is taken under the
statute.81 The words ‘dying intestate’ were interpreted by the Judicial Committee not as
connoting the future tense but as a mere description of the status of the deceased person
without any reference to the time of his death.82 So the words,’held on lease’, may be only
descriptive of land and may apply to lands held on lease prior to or after the coming into
force of the Act.83 The words, ‘when a person dies’, may include a person who died prior
to the coming into force of the Act.84 And the word ‘is’ though normally referring to the
present often has a future meaning and may also have a past signification in the sense of
‘has been’.85
The real issue in each case is as to the dominant intention of the Legislature to be gathered from
the language used, the object indicated, the nature of rights affected, and the circumstances under
which the statute is passed.
(b) Statutes regulating succession
Statutes enacted for regulating succession are not applicable to successions which had already
opened, as otherwise the effect will be to divest the estate from persons in whom it had vested
prior to coming into force of the new statute.86 The material point of time, for applicability of a
law altering the order of succession is the date when succession opens thereafter.
It was, therefore, held that the Hindu Law of Inheritance (Amendment) Act, 1929, applied to a
case where the female heir died after the coming into force of the Act though the male to whom
she had succeeded had died prior to its enforcement.87 By so applying the Act, it was not given a
retrospective operation as to deprive persons of rights already vested in them for under the Hindu
Law a female heir, though a limited owner, fully represents the estate and the reversioners during
her lifetime have no interest & in it.1 The words ‘dying intestate’, as used in the Act, were
construed to mean “in the case of intestacy of a Hindu male”.2
section 8 of the Hindu Succession Act, 1956 , which enacts that the property of a male
Hindu ‘dying intestate shall devolve’ according to the provisions of the Act, has been held to be
inapplicable to a case where succession opened before the Act.3 But it has been applied to the case
of a female limited owner who died after the Act although the male to whom she had succeeded
had died prior to the Act.4 As already seen,5 succession in such a case opens again after the death
of the limited owner and to find out as to who are the heirs, who can succeed to the deceased
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male, the law in force at the time of the limited owner's death has to be seen.6
By
section 14 of the Hindu Succession Act, 1956 , it is enacted that ‘any property
possessed by a female Hindu, whether acquired before or after the commencement of this Act,
shall be held by her as full owner thereof and not as a limited owner’. The section on its own
terms is retrospective; the only qualification being that the Hindu female should be possessed of
the estate at the time the Act came into force. Having regard to the object of the section to
ameliorate the status of Hindu females, the word ‘possessed’ has been construed in a broad sense
so as to mean “the state of owning or having in one's hand or power” and to include actual as well
as constructive possession.7 But the section has not been given a retrospective operation larger
than its language permits. It has, therefore, been held that if the female Hindu had alienated the
estate prior to the coming into force of the Act, neither she nor her alienee get the right of full
ownership under the section.8 But if the alienee reconveys the property to the Hindu female after
commencement of the Act, she would become full owner for she would then be possessed of
property acquired after the Act which is also covered by section 14(1).9 A widow losing her right
to the property or right to maintenance, by virtue of which she was possessed of the property, by
her remarriage before the Act does not get benefit of section 14(1).10
The right of a concubine and an illegitimate son of a Sudra Hindu to claim maintenance for their
life from the estate, which right vested on the death of the Sudra prior to the coming into force of
the
Hindu Adoptions and Maintenance Act, 1956 , is not defeated by sections 21, 22 and
25 of the Act.11
And a new law requiring sanction of adoption as a condition for its validity was held not to apply
to an adoption previously made.12
(c) Statutes regulating transfers and contracts
Statutes prescribing formalities for effecting transfers are not applicable to transfers made prior to
their enforcement,13 and similarly statutes dispensing with formalities which were earlier
necessary for making transfers have not the effect of validating transfers which were lacking in
these formalities and which were made prior to such statutes.14 A transfer made in contravention
of a statutory prohibition is invalid and is not validated by repeal of the statute containing the
prohibition.15 And permission obtained to make a transfer, under a law which allows transfer or
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permission, is of no avail if the law is amended before the transfer, prohibiting transfer
completely.16
The
Transfer of Property Act, 1882 , on its own terms (section 2) is not retrospective and
does not affect any right or liability arising out of legal relation constituted before the Act came
into force, or any relief in respect of any such right or liability. An oral mortgage created before
this Act came into force and valid according to the then existing law has been held to be
enforceable even after the Act came into force.17 Even such provisions of the Act which mainly
deal with matters of procedure, e.g., section 67 which refers to a suit for foreclosure, cannot be
availed of for reviving a right which had become extinct before coming into force of the Act.18
Leases executed prior to the Act are not governed by technical rules of forfeiture enacted in
section 111(g).19 But, it has been held that defence of part-performance enacted in section 53A of
the Act (introduced by
amending Act 20 of 1929) is available to a transferee even when the transfer was
made prior to coming into force of the
amending Act 20
. This case can be supported on the view that section 53A does not
create any substantive right in the property in favour of the transferee, but merely creates a right
of defence and is thus procedural in nature.
Validity of existing contracts is not affected by a posterior Act making contracts of that nature
invalid. It was, therefore, held that Act No. 21 of 1848, ‘an Act for avoiding wagers,’ which
provided that all agreements by way of gaming and wagering shall be null and void and not
enforceable, did not affect the validity or enforceability of wagering agreements made prior to the
coming into force of the Act.21 And a transfer valid when made is not invalidated by a subsequent
prohibition.22
But there are, very often, posterior laws which seriously affect the performance of existing
contracts and the commonest example is where a contract is frustrated by supervening
impossibility brought by subsequent statutes or by governmental steps taken under them.23 A
statute which in the words of Cockburn, C.J., “engrafts an enactment upon existing contracts” has
in effect a retrospective operation.24 Bye-laws framed under
Forward Contracts (Regulation) Act, 1952 , which deal with forward contracts in
cotton and refer to ‘every contract’, and ‘every on-call contract’ ‘in so far as cotton is uncalled for
thereunder or in so far as the price has not been fixed thereunder’, and which required such
contracts to be closed out on a day not originally contracted for at a price fixed by law, were held
to be retrospective and to affect existing executory contracts made prior to the date of operation of
the bye-laws.25
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section 4 of the Benami Transactions (Prohibition) Act, 1988 , which provides that no
suit to enforce ‘any right in respect of any property held benami’ ‘shall lie’ by or on behalf of a
person claiming to be the real owner; and ‘no defence based on any right in respect of any
property held benami’ ‘shall be allowed in any suit’ by or on behalf of a person claiming to be the
real owner, has been construed by the Supreme Court to apply even to Benami transactions
entered before the commencement of the Act.26 The section was applied to pending suits
including those in which only appeals were pending.27 Though upholding the interpretation of
section 4 that it applies also to Benami transactions entered before the coming into force of the
Act, the view earlier taken that it applies even to pending suits including appeals has been
considerably modified.28 It has now been held that the bar of section 4 will apply to claims by the
real owner in suits filed after the commencement of section 4 of the Act and not in pending
suits;29 and to a defence by the real owner in all suits filed after section 4 of the Act came into
force and also in such pending suits in which the stage for filing the defence is reached after
section 4 of the Act came into force.30 The various propositions following from the decisions on
the Act have been culled out by M. Jagannadha Rao J. in Rebti Devi v. Ram Dutt.
Rebti Devi v. Ram Dutt. 31
A statute extending the term of existing leases was held to have effectively extended a lease when
the landlord had issued a notice terminating the lease but the period of notice had not expired
before coming into force of the statute. It was held that as the period of notice had not expired the
landlord had no vested right to eject the tenant when the new law came into force.32
A new law which enacts that transfers made ‘shall not be declared to be invalid’ will not apply to
transfers which were already declared to be invalid before the coming into force of the new law.33
In the context of a contract of carriage of goods it has been held that the liability of the railway
administration would be governed by Act 39 of 1961 which amended the
Railways Act , 1890 if the
amending Act had come into force on the date when the breach of contract took
place. 34
But 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 consequence which had
taken place before its operation.35 And a new law which retrospectively reduces rate of interest
under existing mortgages may not be construed, in the absence of clear words to the contrary, to
affect accounts settled before its operation, and it may thus have effect to reduce only outstanding
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and future liability as regards interest.36
(d) Statutes of limitation
Statutes of limitation are regarded as procedural and the law of limitation which applies to a suit
is the law in force at the date of the institution of the suit irrespective of the date of accrual of the
cause of action.37 The object of a statute of limitation is not to create any right but to prescribe
periods within which legal proceedings may be instituted for enforcement of rights which exist
under the substantive law.38 But, after expiry of the period of limitation, the right of suit comes to
an end, therefore, if a particular right of action had become barred under an earlier
Limitation Act , the right is not revived by a later
Limitation Act even if it provides a larger period of limitation than that provided by
the earlier Act.39 On the same principle, if right to execute a decree or judgment gets barred under
an earlier Act, the right is not revived by a later Act.40 When the later Act provides a shorter
period of limitation than that provided by the earlier Act, a right of suit, which is subsisting
according to the earlier Act on the date when the later Act comes into operation, will not be taken
to be extinguished.41 If there is still time even on the basis of the later Act within which such a
suit can be filed, the right has to be availed of within that period, and the benefit of the earlier Act
is not available.42 Condonation of delay in such cases in filing the suit or claim will be governed
by the provisions of the later Act and not by the provisions of the earlier Act.43 But if the shorter
period provided in the later Act had already expired on the date of its enforcement, the suit can be
filed within a reasonable time after the commencement of the later Act, otherwise the effect of the
later Act would be to extinguish a subsisting right of suit, an inference which cannot be reached
except from express enactment or necessary implication.44 To avoid these complications when a
later
Limitation 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.45 Statutes of Limitation are thus retrospective in so far as 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 is
already barred on the date of their coming into operation, nor do they have the effect of
extinguishing a right of action subsisting on that date. But a statute may, expressly or impliedly by
retrospectively extending limitation, revive a barred claim. Section 45-O of the Banking
Companies Act introduced by
Amending Act 52 of 1953, enacts that in computing the period of limitation
prescribed for a suit or application by a banking company which is being wound up, the period
commencing from the date of the presentation of the petition for winding up of the banking
company shall be excluded. The section further provides that its provision shall also apply to a
banking company in respect of which a petition for the winding up has been presented before the
commencement of the
amending Act . Interpreting the section it was held that its provisions applied to suits
or applications by a banking company in respect of causes of action about which suits could be
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instituted, or applications made on the date of presentation of the winding up petition, before the
commencement of the
amending Act , even though the specified period of limitation for such action had
expired before the commencement of the Act. This construction was arrived at in the background
that the
amending Act was passed in the interests of the depositors, and it could be inferred
that the largest extension of limitation, which the language used was capable of giving was
intended.46
Section 166(3) of the Motor Vehicles Act, 1988 provided a period of limitation of six
months for filing a claim petition before the tribunal constituted under the Act with power to
extend limitation on sufficient cause but not beyond twelve months from the occurrence of the
accident. This provision that is section 166(3) was deleted by MV (Amendment) Act, 1994 which
came into force on 14-11-1994. The result of the deletion is that after 14-11-1994 there is no
period of limitation for a claim petition. The deletion of section 166(3) is not expressly made
retrospective. But having regard to its object, it has been applied to pending (at any stage) claims
and claims in respect of accidents occurring prior to 14-11-1994 but not filed till then even though
they had become barred under section 166(3).47 The deletion, however, will not reopen a decision
holding a claim barred under section 166(3) which had become final.48
(e) Fiscal statutes
Fiscal legislation imposing liability is generally governed by the normal presumption that it is not
retrospective49 and it is a cardinal principle of the tax law that the law to be applied is that in force
in the assessment year unless otherwise provided expressly or by necessary implication.50 The
above rule applies to the charging section and other substantive provisions such as a provision
imposing penalty51 and does not apply to machinery or procedural provisions of a taxing Act
which are generally retrospective and apply even to pending proceedings,52 But a procedural
provision, as far as possible, will not be so construed as to affect finality of tax assessment or to
open up liability which had become barred.53 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.54 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.55 In the absence of a clear implication such a
legislation will not be given a greater retrospectivity than is expressly mentioned; nor will it be
construed to authorise the Income-tax Authorities to commence proceedings which, before the
new Act came into force, had by the expiry of the period then provided become barred.56 But
unambiguous language must be given effect to, even if it results in reopening of assessments
which had become final after expiry of the period earlier provided for reopening them.57 There is
no fixed formula for the expression of legislative intent to give retrospectivity to a taxation
enactment.58 Though the Legislature has enormous power to make retrospective taxing laws, yet
when a retrospective Act is entirely arbitrary and irrational it may be declared invalid as offending
Article 14 of the Constitution .59 But the retrospective operation would have to be
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found to be unduly oppressive and confiscatory before it can be held to be so unreasonable as to

violate constitutional norms of
Articles 14 and
19 of the
Constitution .60
On the principle that a new Act affecting, existing rights or creating new obligations, is presumed
to be prospective only,
section 171(6) of the Income-tax Act, 1961 has been held not to be applicable to
assessment made on a Hindu undivided family for any assessment year prior to 1st April, 1962,
when the Act came into force.61section 171(6) creates joint and several liability of the members to
pay the tax assessed on a Hindu undivided family if the Income-tax Officer after completion of
the assessment finds that the family has already effected a partition whether total or partial. It was
pointed out that as the liability created by section 171(6) was not limited to the extent of the joint
family properties coming to the hands of a member and made him personally liable, it was a new
liability and the section could not be construed to apply to assessments completed under the old
Act.
The liability to pay income-tax is a perfected debt on the last day of the previous year62 but as that
liability is computed according to the law in force at the beginning of the assessment year, i.e., the
first day of April, any change in law affecting tax liability after that date though made during the
currency of the assessment year, unless specifically made retrospective, does not apply to the
assessment for that year.63 On the same principle when a surcharge on Agricultural Income-tax
was enforced from 1st September, 1957; it was held that it could not apply to the assessment year
1957-58 as it was not brought into force from the beginning of that year, i.e., 1st April, 1957.64
Similarly revision of schedule to the Kerala Plantation Tax Act, 1960 by the Kerala
Finance Act , 1987 with effect from 1-7-1987 which revised the tariff categories as
well as the tariff structure was held to be applicable only in the next financial year viz. 1988-89
and not in the financial year 1987-88.65
A taxing Act cannot, however, be called retrospective if it taxes an event which is continuing and
not complete when the Act comes into force. So, instalments of hire paid after the coming into
force of the
Finance Act , 1972 under a hire-purchase agreement made before the Act were
subjected to the value added tax and it was held that the tax was not retrospective.66 A default,
which is a continuing default and not a default once for all, can be dealt with under the provisions
of the new Act, if it continues when the new Act comes into force, although it commenced when
the old Act was in force. A default in filing a return of income is a continuing default till the
return is filed; such a default, though it commenced when the
Income-tax Act, 1922 was in force, can yet be dealt with under the provisions of the
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Income-tax Act, 1961 if it continued after the commencement of the new Act.67
(f) Penal statutes
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 .68 Even otherwise they are construed prospective
“because it manifestly shocks one's sense of justice that an act, legal at the time of doing it, should
be made unlawful by some new enactment”.69 Therefore, if an Act creates a new offence it will
bring into its fold only those offenders who commit all ingredients of the offence after the Act
comes into operation.70 The same principle has been applied while dealing with a law which
affects the power of grant of pardon or remission.
Section 433A of the Code of Criminal Procedure which requires that where a
sentence of imprisonment for life is imposed on conviction of a person for an offence for which
death is one of the punishments, such person shall not be released from prison unless he had
served at least fourteen years of imprisonment, has been held to be applicable to sentences
imposed after the coming into force of the section and not to person convicted before its coming
into force.71
The prohibition of
Article 20 of the Constitution to enact retrospective penal laws has no application to
a law which only mollifies the rigour of an existing penal law. Indeed, Article 15.1 of the
International covenant on Civil and Political Rights, 1966 which was ratified by India on 10-4-
1979 and which is included in the definition of Human Rights in
Section 2(d) of the Protection of Human Rights Act, 1993 , in addition to the
safeguards contained in
Article 20 of the Constitution , provides: ‘If subsequent to the commission of the
offence, provision is made by law for imposition of a lighter penalty, the offender shall benefit
thereby’.72 The question whether a penal law which mollifies the rigour of an existing penal law is
retrospective and to what extent will depend upon the construction of the Act having regard to the
well settled rules of construction.73 In Rattan Lal v. State of Punjab Rattan Lal v.
State of Punjab ,74 the Probation of the
Offenders Act , 1958 did not apply to the area where the offence was committed at
the time of commission of the offence or even when the accused was convicted but it was
extended to that area where his appeal was pending before the Sessions Judge yet the Supreme
Court held that the benefit of the Act could be given to the accused. In State v. Gian Singh
State v. Gian Singh ,75 the accused was convicted for the offence under Section 3(1) of the TADA
Act, 1985 for commission of a terrorist act resulting in death of a person for which the only
punishment was death sentence under section 3(2)of the Act. The TADA Act, 1985 expired by
efflux of time on 22-5-1987 but the proceedings were continued by a saving clauses under the
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Act. The Act of 1985 was replaced by the TADA Act, 1987. In this Act in the corresponding
Section 3(2) the harshness of the sentence was diluted and the accused could be sentenced to
death or life imprisonment. The question before the Supreme Court, where the appeal of the
accused and the reference for confirmation of death sentence were pending, was whether the
benefit of the dilution of the harshness of death sentence in section 3(2) of the 1987 Act could be
given to the accused and his sentence of death could be replaced by sentence for life
imprisonment. The Supreme Court in these circumstances gave the benefit of Section 3(2) of the
1987 Act to the accused and sentenced him to life imprisonment. The Supreme Court gave two
reasons for applying section 3(2) of the 1987 Act. The court first applied a general principle in the
case which was stated as follows: “If any subsequent legislation would downgrade the offence, it
would be a salutory principle for administration of criminal justice to suggest that the said
legislative benevolence can be extended to the accused who awaits judicial verdict regarding
sentence.”76 The second reason that the Supreme Court gave was that the continued operation of
the 1985 Act after expiry under a saving clause for continuance of criminal proceedings in respect
of offences committed when the Act was in force became inconsistent, in so far the sentence part
of same section 3(2) was concerned, with section 3(2) of the 1987 Act and could not be given
effect to in view section 25 of the 1987 Act which gave an overriding effect to the Act over any
enactment in case of inconsistency.77
But the benefit of mollification of ingredients of the substantive offence after conviction during
pendency of appeal has not been allowed to the accused. Thus, a notification making a distinction
between a small quantity and commercial quantity of brown sugar and thereby making possession
of a small quantity of brown sugar not an offence under
Section 2 of the Narcotic Drugs and Psychotropic Substances Act, 1985 has not been
applied in a case where the notification was issued after commission of the offence and also after
the accused was sentenced.78 Similarly, benefit of mollification of prescribed standard of mineral
oil in relation to hard-boiled sugar confectionery by a notification which came into force during
pendency of appeal against conviction was not allowed to the accused.79
It is open to the Legislature to make a provision in the law amending and mollifying existing
penal law that the
amending Act will apply in cases pending trial but will not apply to cases pending in
appeal.80 By Section 4(1) of the Narcotics Drugs and Psychotropic Substances (Amendment) Act,
2001 which rationalised the sentencing structure by providing graded sentences linked to the
quantity of Narcotic Drug, made the amended provisions applicable to cases pending before the
court or under investigation but excluded the application of the Act to cases pending in appeal.
This provision was held to be valid.81
The procedure prescribed for trial of offence in a new Act may be applied for trial of similar
offences under a repealed Act. Thus sanction for prosecution granted under the provisions of the
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new Act will be good for prosecution of an offence requiring sanction under the repealed Act, for
sanction pertains to procedure.82 But the question whether a law which does not affect the
punishment but applies a procedure, which is prejudicial to the accused by curtailing his
procedural right, can be retrospectively applied to offences taking place earlier and is not violative
of
Article 20 of the Constitution has been referred to a
Constitution Bench. 83
The enforcement of the Human Rights Act, 1998 in England from 2nd October 2000, section 7 of
which enables the victim of an unlawful act by a public authority to rely on the Act in
‘proceedings brought by or at the investigation of a public authority whenever the act in question
took place’ was held not to apply when the person complaining had been convicted before the
enforcement of the Act, though his appeal was pending when the Act came into force.84 But this
decision was not unanimous and was later followed with considerable hesitation.85
In Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Ltd.
Pyare Lal Sharma v. Managing Director, Jammu & Kashmir Industries Ltd. ,86 Regulation 16.14
of the Jammu & Kashmir Industries Employees Service Rules which was amended on April 20,
1983 came for consideration. The amendment added certain more grounds for termination of
service of an employee and one of the grounds so added was: If he (the employee) remains on
unauthorised absence’. In construing the Regulation the Supreme Court held that the period of
unauthorised absence prior to the date of amendment could not be taken into consideration for
terminating the services of an employee. In so construing the Regulation the court observed: “It is
the basic principle of natural justice that no one can be penalised on the ground of a conduct
which was not penal on the day it was committed.”87 This case shows that the rule of construction
against retroactivity of penal laws is not restricted to Acts providing for criminal offences but
applies also to laws which provide for other penal consequences of a severe nature, e.g.,
termination of service.
(g) Statutes prescribing posterior disqualification on past conduct
But, “no man has such a vested right in his past crimes and their consequences as would entitle
him to insist that in no future legislation shall any regard whatever be had to his previous
history”.88 It was, therefore, held that if a statute increased penalty on second conviction of an
offence, a conviction before commencement of the statute could be taken into account.89
Similarly, if the object of a statute is not to inflict punishment but to protect the public from the
activities of undesirable persons who bear the stigma of a conviction or misconduct on their
character, the conviction or misconduct of such a person before the operation of the statute may
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be relied upon.90
In Queen v. Vine Queen v. Vine ,91 the question related to the construction of section
14 of 33 & 34 Vict. c. 29, which enacted that ‘every person convicted of felony shall be for ever
disqualified from selling spirits by retail’. It was held that the disqualification applied to every
convicted felon irrespective of whether he was so convicted prior to or after the Act came into
operation. In the course of his judgment, Cockburn, C.J., observed: “Here the object of the
enactment is not to punish offenders, but to protect the public against public houses in which
spirits are retailed being kept by persons of doubtful characters—. On looking at the Act, the
words used seem to import the intention to protect the public against persons convicted in the past
as well as in future; the words are in effect equivalent to ‘every convicted felon’.”92
In A Solicitor's Clerk Re, A Solicitor's Clerk Re, ,93 the question related to
disqualification regarding employment as a solicitor's clerk. By section 16(1) of the Solicitors
Act, 1941, it was provided that where a solicitor's clerk has been convicted of certain offences
including larceny in respect of any money or property which belonged to his employer or to a
client of his, an application may be made on behalf of the Law Society to the disciplinary
committee for an order that no solicitor shall employ the said person without the written
permission of the Law Society. This provision was amended by the
amending Act of 1956, which allowed the society to apply for an order where a clerk
‘has been convicted’ of larceny irrespective of whether the money or property belonged to his
employer or one of his clients or to some one else. A clerk, who was convicted of larceny in 1953
of property which belonged neither to his employer nor to a client of his, was proceeded against
under the amended section, and it was contended by him that the
amending Act of 1956 was not retrospective so as to apply to convictions before its
operation. In rejecting the contention Lord Goddard, C.J., observed: “In my opinion, this Act is
not in truth retrospective. It enables an order to be made disqualifying a person from acting as a
solicitor's clerk in the future and what happened in the past is the cause or reason for the making
of the order; but the order has no retrospective effect. It would be retrospective if the Act provided
that anything done before the Act came into force or before the order was made should be void or
voidable, or if a penalty were inflicted for having acted in this or any other capacity before the
Act came into force or before the order was made. This Act simply enables a disqualification to
be imposed for the future which in no way affects anything done by the appellant in the past.
Accordingly, in our opinion, the disciplinary committee had jurisdiction to make the order
complained of.”94
In State of Bombay v. Vishnu Ramchandra, State of Bombay v. Vishnu Ramchandra,

95 the question was whether a person convicted in 1949 of theft could be directed to remove
himself outside a specified area under section 57 of the Bombay

Police Act , 1951, which authorised removal of a person who ‘has been convicted’ of
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certain offences including theft. The contention raised was that the conviction being prior to the
Act, no removal could be founded on such a conviction. In overruling the High Court, where the
above contention had found favour, Hidayatullah, J. for the Supreme Court stated: “Section 57 of
the Bombay
Police Act , 1951, does not create a new offence nor makes punishable that which
was not an offence. It is designed to protect the public from the activities of undesirable persons
who have been convicted of offences of a particular kind. The section only enables the authorities
to take note of their convictions and to put them outside the area of their activities, so that the
public may be protected against a repetition of such activities. An offender who has been
punished may be restrained in his acts and conduct by some legislation, which takes note of his
antecedents; but so long as the action taken against him is after the Act comes into force, the
statute cannot be said to be applied retrospectively.”1 It was further observed that the words ‘has
been’ described in the context past actions without regard to time.2
The last three cases3 may be compared with the case of Pulborough Parish School Board Election
Re, Pulborough Parish School Board Election Re, , Bourke v. Nutt
4
Bourke v. Nutt , where the Court of Appeal (Lord Esher, M.R. dissenting) held that the
provisions of the Bankruptcy Act, 1883, which impose certain disqualifications ‘where a debtor is
adjudged bankrupt’, did not apply to past adjudications by virtue of the presumption against
retrospection. The comparison only illustrates that the word ‘retrospective’ is used in more senses
than one causing a certain amount of confusion and that the real issue in each case is as to the
scope of the particular enactment having regard to its language and the object discernible from the
statute read as a whole.5
(h) Statutes conferring prospective benefit on antecedent facts: Remedial

statutes
Just as the fact that a prospective disqualification under a statute results from anterior misconduct,
is not always taken as sufficient to make the statute retrospective,6 so also 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.7 Cases under these heads
illustrate that the rule against retrospective construction is not always applicable to a statute
merely “because a part of the requisites for its action is drawn from time antecedent to its
passing”.8
In Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi. Boucher
Pierre Andre v. Superintendent, Central Jail, Tihar, New Delhi. 9 The Supreme
Court held that the benefit to set off pre-conviction detention period against the term of
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imprisonment conferred by
section 428 of the Criminal Procedure Code , 1974 ‘where an accused person, has,
on conviction been sentenced to imprisonment for a term’ is also available where the sentence
was imposed before the commencement of the Code to reduce the unserved portion of the
sentence and that in so construing the section it was not given any retrospective effect for it did
not affect the sentence already undergone but affected only that part of the sentence which
remained to be served in future. It was further held that words ‘has been sentenced’ were neutral
and could take in the convictions prior to coming into force of the Code.
In R. v. Mary Whitechappel (St.) (Inhabitants), R. v. Mary Whitechappel (St.)

(Inhabitants), 10 the question related to the construction of section 2 of the Poor
Removal Act, 1846, which provided that ‘no woman residing in any parish with her husband at
the time of his death shall be removed from such parish, for twelve calendar months next after his
death, if she so long continues a widow’. In that case it was sought to remove a widow within
twelve months from the date of the death of her husband who had died prior to the Act came into
force; and it was argued that to apply the Act to such a case was to construe it retrospectively. In
rejecting the contention, Lord Denman, C. J. observed: “It was said that the operation of the
statute was confined to persons who had become widows after the Act was passed, and that the
presumption against a retrospective statute being intended supported this construction; but we
have shown before that the statute is in its direct operation prospective, as it relates to future
removals only, and that it is not properly called a retrospective statute because a part of the
requisites for its action is drawn from time antecedent to its passing”.11 In this case the words
‘shall be removed’ were thus found appropriate to cover all cases of future removals irrespective
of whether the husband had died prior to the Act but they were not found wide enough to nullify
completed removals prior to the Act, even if the widow was removed within twelve months of her
husband's death.12
In R. v. Birwistle, etc. Justices, R. v. Birwistle, etc. Justices, 13 which
arose under the Married Woman (Maintenance in Case of Desertion) Act, 1886, the Act was held
to apply, without express words, to desertions which took place prior to the Act. It was said: “It
was intended to cure an existing evil and to afford to married women a remedy for desertion,
whether such desertion took place before the passing of the Act or not”.14
In Lane v. Lane, Lane v. Lane, 15section 4 of the Summary Jurisdiction
(Married Women) Act, 1895, which entitled a married woman ‘whose husband shall have been
guilty of persistent cruelty to her’ to apply for an order under the Act, was held to apply even to
acts of cruelty committed before the passing of the Act.
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In Weldon v. Winslow, Weldon v. Winslow, 16 construing a statutory
provision to the effect— ‘a married woman shall be capable of suing and being sued either in
contract or in tort, or otherwise, in all respects as if she were a Femme sole and her husband need
not be joined with her as plaintiff or defendant or be made a party to any action or other legal
proceeding brought by or taken against her and any damages or costs recovered by her in any
such action or proceeding shall be her separate property,’ it was held that a married woman was
competent to file in her own name an action for tort although the cause of action arose before the
statute came into operation.
But, although opinion was not uniform,17section 2(4) of the Hindu Women's Right to Separate
Residence and Maintenance Act, 1946, which entitled a Hindu married woman to claim separate
residence and maintenance from her husband ‘if he marries again’ was generally held to apply to
cases where the husband married again after the date on which the Act came in to force.18
When rate of interest payable upon compensation for ‘land acquired’ by a municipal council was
raised by an Act from four to six per cent, it was held by the Privy Council that benefit of increase
in interest from the date of operation of the Act was available also in respect of land acquired
before the Act and that such a construction of the Act did not give rise to any question of
retrospective operation of the Act.19 The decision may have been different if in the place of the
word ‘acquired’ some such words as ‘to be acquired’ or ‘hereafter acquired’ might have been
used in the Act.20
Protection from eviction conferred by an Act upon a tenant who ‘has actually built’ a permanent
structure on the land of the tenancy was held to cover even such cases where the structure was
built by the tenant before the coming into force of the Act.21 A provision in a Rent Control and
Eviction Act, which was added by an amendment and which enabled a tenant to adjust water
taxes and water charges paid by him towards rent due from him, was held to apply to pending
suits which related to eviction on the ground of arrears of rent and the tenant was held entitled to
adjust water taxes and charges paid by him although the arrears of rent due and water taxes and
charges paid related to periods before coming into force of the amendment.22
A new law enhancing compensation in case of death by electric shock and saying that ‘cases
already closed shall not be reopened’, was construed to apply to all cases which were not closed,
i.e., to all cases pending or yet to be instituted in respect of accidents taking place before the
amendment.23
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In Barber v. Pigden Barber v. Pigden ,24 the question related to the Law Reform
(Married Women and Tortfeasors) Act, 1935, which provided in section 3 that ‘the husband of a
married woman shall not, by reason only of his being her husband, be liable in respect of any tort
committed by her, whether before or after the marriage’. section 4 saved from the operation of the
Act, legal proceedings already commenced. The question before the Court of Appeal was:
whether the Act applied to a tort committed prior to the Act in respect of which proceedings had
not commenced when the Act came into operation. In holding the Act applicable to such torts,
Scott, LJ., pointed out that the purpose of the Act was to make a clean sweep of the old legal
fiction that a woman on marriage became merged in the personality of her husband, and thus to
confer on a married woman full human status; that the legal fictions so removed were in their
origin inextricably mixed up with old procedural law; that a statute abolishing old legal fictions of
this nature is akin to a procedural statute; and that only expressed exception pointed out in the Act
was in respect of pending proceedings which implied that there is no room for any other
exception.25
Remedial statutes, though favoured by courts are not for that reason retrospective to affect vested
rights;26 but since such statutes are to be construed liberally, the inhibition of the rule against
retrospective construction may be applied with less insistence.27
In Central Bank of India v. Their Workmen, Central Bank of India v. Their

Workmen, 28 the proviso introduced in section 10(b)(ii) of the Banking
Companies Act , 1949, by the
amending Act of 1956, though held to be remedial, was not applied for a period
anterior to the date of operation of the
amending Act . S. K. Das, J. in that case observed: “A remedial Act is not necessarily
retrospective; it may be either enlarging or restraining; and it takes effect prospectively, unless it
has retrospective effect by express terms or necessary intendment”.29 So in Kerala State
Electricity Board v. Valsala Kerala State Electricity Board v. Valsala ,30 amendment
of the
Workmen's Compensation Act, 1923 by Act No. 30 of 1995 enhancing the amount of
compensation and rate of interest in respect of death or permanent disablement resulting from an
accident was held not to apply to accidents taking place before the
amending Act came into force. But in Rathi Menon v. Union of India,
Rathi Menon v. Union of India, 31 it has been held that compensation payable for an
‘untoward incident’ resulting in personal injury under the Railway Accident Compensation Rules,
1990 will be the revised amount, when increased by revision of the Rules after the accident but
before the order was passed by the claims Tribunal.
In Workmen of F.T. & R. Co. v. Management Workmen of F.T. & R. Co. v.
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Management ,32 the question related to the construction of

section 11A of the Industrial Disputes Act, 1947 , which was added by an amendment
in 1971. The section was brought into force sometime after the
amending Act was passed. The section empowers a labour court to interfere with the
finding of misconduct and the punishment imposed on a workman in a domestic enquiry ‘where
an industrial dispute relating to the discharge or dismissal of a workman has been referred’ to it.
In holding that the section did not apply to pending references, the Supreme Court pointed out
that the section abridged the rights of the employer, it was not brought into force immediately
when the
amending Act was passed, and in a proviso it referred to ‘a proceeding under the
section’ which could take in only references made after coming into force of the section. It will be
seen that the language ‘has been referred’ as used in the section could have been construed to
include even pending references but other considerations prevailed to hold that pending references
were not affected by the section. However
section 10 of the Industrial Disputes Act, 1947 which authorises the appropriate
Government, where it is of opinion that an industrial dispute exists or is apprehended, to refer the
dispute for adjudication under the Act has been construed to authorise reference of an industrial
dispute which arose on facts existing before the coming into force of the Act. It has been held that
all that the section requires is that the dispute must exist on the date of the reference and it is
immaterial whether it arose earlier to the commencement of the Act.33 On a similar reasoning
section 2A of the Act, which enlarges the definition of Industrial Dispute by including certain
individual disputes, has also been construed to authorise reference of a dispute which arose earlier
to the addition of the section in the Act by amendment.34 And the same approach is exhibited in
the construction of section 17B of the same Act (added by an amendment) which enables a
workman to receive full wages after an award of reinstatement during the pendency of a
proceeding to challenge the award taken by the employer in a High Court or the Supreme Court.
The section has been held to apply to an award made and a proceeding challenging the award
taken before the section was inserted in the Act provided the proceeding was pending when the
section came into force.35
Statutes providing new remedies for enforcement of existing rights will apply to future as well as
past causes of action, the reason being that such statutes since they do not affect existing rights,
are classified as procedural.36 Thus, the introduction by a new law of certificate procedure for
recovery of certain type of claims as it applies for recovery of land revenue, will be retrospective
and will apply to all claims of that type whether arising before or after the introduction of the new
law.37 A new law providing a new remedy to the Government to recover arrears of rent will be
similarly treated.38 An amendment Act which introduced a provision in a Sales-tax Act enabling
recovery of tax assessed on a firm also from its partners was held to apply for recovery of tax
assessed before the amendment by recovery proceedings taken after the amendment.39 And a new
law providing for alternative adjudication proceeding for punishment of certain offences will
apply for adjudication of the offences committed prior to the coming into force of the law.40
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(i) Declaratory statutes
The presumption against retrospective operation is not applicable to declaratory statutes. As stated
in Craies and approved by the Supreme Court: “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 the word ‘enacted’.”41 But the
use of the words ‘it is declared’ is not conclusive that the Act is declaratory for these words may,
at times, be used to introduce new rules of law and the Act in the latter case will only be
amending the law and will not necessarily be retrospective.42 In determining, therefore, the nature
of the Act, regard must be had to the substance rather than to the form.43 If a new Act is ‘to
explain’ an earlier Act, it would be without object unless construed retrospective.44 An
explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the
meaning of the previous Act.45 It is well settled that if a statute is curative or merely declaratory
of the previous law retrospective operation is generally intended.46 The language ‘shall be deemed
always to have meant’47 or ‘shall be deemed never to have included’48 is declaratory, and is in
plain terms retrospective. In the absence of clear words indicating that the
amending Act is declaratory, it would not be so construed when the pre-amended
provision was clear and unambiguous.49 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 will have
retrospective effect and, therefore, if the principal Act was existing law when the
constitution came into force, the
amending Act also will be part of the existing law.50
The above statement of the law relating to the nature and effect of a declaratory statute has been
quoted with approval by the Supreme Court from earlier editions of this book in a number of
cases.51
“In Mithilesh Kumari v. Prem Bihari Khare Mithilesh Kumari v. Prem Bihari Khare
,52
section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted,
wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as
to the common law or the meaning or effect of any statute. The conclusion, however, that section
4 applied also to past benami transactions may be supportable on the language used in the
section.” These observations and criticism of Mithilesh Kumari's case also received the approval
in R. Rajgopal Reddy v. Padmini Chandrasekharan, R. Rajgopal Reddy v. Padmini
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Chandrasekharan, 53 where the Supreme Court after quoting them (from 5th Edition
pp. 315, 316) said: “No exception can be taken to the above observations”.54
A proviso added from 1-4-1988 to section 43B inserted in the

Income-tax Act, 1961 from 1-4-1984 came up for consideration in Allied Motors (P.)
Ltd. v. Commissioner of Income-tax Allied Motors (P.) Ltd. v. Commissioner of
Income-tax 55 and it was given retrospective effect from the inception of the section
on the reasoning that the proviso was added to remedy unintended consequences and supply an
obvious omission so that the section may be given a reasonable interpretation and that in fact the
amendment to insert the proviso would not serve its object unless it is construed as retrospective.
In Commisioner of Income-tax, Bombay v. Podar Cement Pvt. Ltd. Commisioner of
56
Income-tax, Bombay v. Podar Cement Pvt. Ltd. , the Supreme Court held that amendments
introduced by the
Finance Act , 1987 in so far they related to section 27(iii), (iiia) and (iiib) which
redefined the expression ‘owner of house property’, in respect of which there was a sharp
divergence of opinion amongst the High Courts, was clarificatory and declaratory in nature and
consequently retrospective. Similarly, in Brij Mohan Das Laxman Das v. Commissioner of
Income-tax. Brij Mohan Das Laxman Das v. Commissioner of Income-tax.
57 Explanation 2 added to
section 40 of the Income-tax Act, 1961 from 1-4-1985 on a question on which there
was a divergence of opinion was held to be declaratory in nature and, therefore, retrospective.
And in Zile Singh v. State of Haryana Zile Singh v. State of Haryana ,58 substitution
of the word ‘upto’ for the word ‘after’ in the proviso to section 13A (added in 1994) in the
Haryana Municipal Act 1973 by the Haryana Municipal Second Amendment Act, 1994 was held
to be correction of an obvious drafting error to bring about the text in conformity with the
legislative intent and, therefore, retrospective. Even without the amendment of the proviso, the
court in all probability would have read and interpreted the section as corrected by the
amendment.59
(j) Statutes regulating appeals
An appeal is the “right of entering a superior court and invoking its aid and interposition to
redress an error of the court below”60 and “though procedure does surround an appeal the central
idea is a right”.61 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.62 Any change in the law relating
to appeals, after institution of original proceedings, which adversely touches this vested right is
presumed not to be retrospective.63
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The leading case on the point is the decision of the Privy Council in Colonial Sugar Refining
Company v. Irving. Colonial Sugar Refining Company v. Irving. 64 In
that case an action was brought in the Supreme Court of Queensland in October, 1922. At that
time the Order in Council of 1860 gave a right of appeal to His Majesty in Council from the
judgment of the Supreme Court. The judgment in the case was delivered by the Supreme Court on
September 4, 1903. About ten days before this judgment the Judiciary Act, 1903, came into force,
the effect of which was that Her Majesty in Council ceased to be a Court of Appeal from
decisions of the Supreme Court and the only appeal under this Act lay to the High Court of
Australia. In spite of this Act an appeal was taken to the Privy Council against the judgment of the
Supreme Court and the question, therefore, arose whether the Judiciary Act, 1903, was
retrospective so as to take away the right of appeal to the Privy Council in an action brought
before the coming into force of this Act. In sustaining the right of appeal, Lord Macnaghten
observed: “To deprive a suitor in a pending action of an appeal to a superior tribunal which
belonged to him as of right, is a very different thing from regulating procedure. In principle, their
Lordships see no difference between abolishing an appeal altogether and transferring the appeal to
a new tribunal. In either case there is an interference with existing rights contrary to the well-
known general principle that statutes are not to be held to act retrospectively unless a clear
intention to that effect is manifested.”65
The principle laid down by the Privy Council in the above case66 has been accepted by the
Supreme Court in Garikapati v. Subbiah Choudhry Garikapati v. Subbiah Choudhry
67 where, on a review of earlier authorities, S.R. Das, C.J. deduced the following five
propositions: “(i) The legal pursuit of a remedy, suit, appeal and second appeal are really but steps
in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal
proceeding; (ii) the right of appeal is not a mere matter of procedure but is a substantive right; (iii)
the institution of the suit carries with it 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; (iv) 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 of appeal; (v) this vested right of appeal can be taken away only by a subsequent
enactment if it so provides expressly or by necessary intendment and not otherwise.”68 Construing
Articles 133 and
135 of the
Constitution 69
in the light of the above principles, it was held in this case that in suits
filed in British India before the date of coming into force of the
Constitution an appeal lay to the Supreme Court against a decision of the High Court
rendered after that date, if the suit satisfied the requirement of valuation for appealing to the Privy
Council or the Federal Court according to the law in force at the date of institution of the suit,
although it did not satisfy the requirement of valuation as laid in
Article 133 of the Constitution .
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It must, further, be noticed that the same principle of construction applies whether the change in
law abolishes altogether the right of appeal available at the date of initiation of original
proceedings, or whether it merely hampers its exercise by imposing restrictions.70 Indeed, in the
Colonial Sugar Refining Company's case71 the right of appeal was only transferred to another
tribunal by the subsequent law which was construed as not affecting appeals arising from pending
actions. It has, therefore, been held that an assessee's right of appeal against assessment of tax
which vested in him on the date of filing of return, was not affected by a subsequent change in
law which required as a condition to the exercise of right of appeal the making of deposit of the
tax assessed.72 On the same principle, it was decided that an amendment enhancing court-fees did
not apply to a memorandum of appeal presented after coming into force of the amendment, if it
related to a decree passed in a suit instituted prior to the coming into force of the amendment.73
Similarly, a change in law restricting grounds of appeal will not apply to suits instituted earlier.74
But a provision laying down a special procedure which is required to be gone through before a
litigant is entitled to raise in appeal a material point left undecided by the lower court does not
create any vested right and the procedure cannot be insisted upon in appeals from pending suits
after the repeal of the provision.75
A right of appeal, however, cannot exist without the existence of a Court to which the appeal is to
be taken; and “a litigant has no right to contend that a tribunal, before whom he should have taken
an appeal when he instituted the suit, should not be abolished”,76 for the Legislature is fully
competent “to enact a law of that kind”.77 It, therefore, follows that “if the court, to which an
appeal lies, is altogether abolished without any forum substituted in its place for the disposal of
pending matters or for the lodgment of appeals, the vested right perishes no doubt”.78 In other
words, if the Legislature after the institution of a legal proceeding abolishes simpliciter the court
to which the appeals would have lain according to the law then in force and provides for no court
in substitution, it will be understood that the right of appeal inhering in a suitor at the date of
institution of the legal proceeding is taken away by necessary implication. To obviate this
consequence, when the
Constitution repealed the Government of India Act, 1935, and thereby abolished the
Federal Court of India and created instead the Supreme Court of India, provisions were made in
Articles 135 and 374(2) of the
Constitution to confer on the Supreme Court the jurisdiction and powers, with
respect to any matter, which were exercisable by the Federal Court before the commencement of
the
Constitution .79 Similarly, the
Constitution by Article 374(4) abolished the authorities functioning as Privy
Councils in Princely States which later on became Part B States and provision was made for
transfer of all pending appeals and other proceedings before these authorities to the Supreme
Court.80 However, in respect of Privy Councils functioning in Princely States the conferral of
jurisdiction on the Supreme Court was only in respect of proceedings pending before these
authorities on the commencement of the
Constitution . Therefore, the decision of a High Court in these States which was
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rendered before the

Constitution and in respect of which no appeal or leave to appeal was pending before
the State Privy Council was not made appealable to the Supreme Court even if such a decision
could have been appealed to the State Privy Council had that authority continued.81 Thus in such
cases, there was a destruction of the right of appeal as a result of abolition of the Court of Appeal.
But as already discussed the right of appeal is not affected if one set of courts are abolished and
another set of courts of equal status are constituted; and provision is made for a change over of
proceedings.82 When a court, to which the appeals would have lain in accordance with the law in
force at the time of institution of proceedings, is abolished by a subsequent law which also
establishes a court of a like status, the question, as to how far the right of appeal vesting on the
institution of proceedings is taken away, altered, modified or preserved, will have to be answered
on a careful analysis of the subsequent law to find out as to what extent the new court has been
endowed with the jurisdiction and power of the court abolished.83
It must, also, be noticed that the right of appeal that vests at the commencement of original
proceeding is limited to the various stages of the same proceeding, e.g., suit, appeal or second
appeal; but is not available in respect of a later original proceeding even if the same is somewhat
connected with the earlier one, e.g., an application for amendment of a decree under
section 152, Code of Civil Procedure .84
Further, though a right of appeal to a particular court is a vested right, no party has a vested right
to have his appeal heard by a specified number of judges of that court and a change in law in that
matter will be regarded merely as a change in procedure; and therefore retrospective.85 Again,
when existing civil courts are abolished and new civil courts are created by the new law, an
appeal against a decision in a pending suit decided by the new civil court, to which it is
transferred, will lie to the court which has power to hear appeals under the new law.86 This is on
the principle that when the repealing Act abolishes the existing courts and provides for new
courts, the forum for pursuing the vested right of appeal must be as provided in the repealing
Act.87
(k) Statutes affecting finality of orders
An order, which on the date it is made is final, gives rise to vested rights; and a subsequent
change in law giving rise to new right of appeal or revision is presumed not to affect the finality
of orders already made.1 This principle was settled by the Privy Council in Delhi Cloth & General
Mills Ltd. v. C.I.T., Delhi. Delhi Cloth & General Mills Ltd. v. C.I.T., Delhi.
2 In this case certain orders were made in January, 1926, by the High Court at Lahore
on reference to that court under
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section 66(2) of the Indian Income-tax Act, 1922 . At that time there was no statutory
provision for appeal to the Privy Council against such orders, and this was the position until the
first April, 1926, when the Indian Income-tax (Amendment) Act, 1926, came into force which
inserted section 66-A in the
Income-tax Act , conferring a right of appeal to the Privy Council against orders of
the High Court made under section 66. In a petition for special leave against the orders made in
January, 1926, the Privy Council held that the finality of these orders, as they were passed prior to
the commencement of the
amending Act , was not affected as the Act did not clearly so provide; and, therefore,
no appeal lay to the Privy Council.3 Lord Blanesburg in delivering the opinion of the Privy
Council observed: “Provisions, which, if applied retrospectively, would deprive of their existing
finality of orders, which, when the statute came into force, were final, are provisions which touch
existing rights. Accordingly, if the section now in question is to apply to orders final at the date
when it came into force, it must be clearly so provided.”4 On the same principle, conferral of a
wider jurisdiction on the High Court to interfere in revision by an
amending Act is not a mere matter of procedure but relates to substantive rights; and
the wider jurisdiction cannot be invoked against an order made before the commencement of the
Amending Act .5
But the right to finality does not vest or accrue until the making of the order; and, therefore, if a
new right of appeal or revision is conferred before making of the order, although after institution
of proceedings, the right of appeal or revision is available against all orders subsequently made.6
It has, therefore, been held that an appeal will lie to the Supreme Court under
Article 133 of the Constitution against a decree of a High Court in a Part B States
(previously Princely States) made after the commencement of the
Constitution in a previously instituted suit, even though when the suit was instituted,
there existed no right of appeal to His Majesty in Council or the Federal Court.7 Same principle
can be said to have been applied when a Sales Tax Act was amended during the pendency of a
revision, providing for a reference at the instance of Commissioner of Sales Tax. It was held that
the Commissioner could apply for reference against the order made in the pending revision.8
Alteration in law relating to appeals when it reduces already existing rights of appeal is, as
already seen, presumed to be prospective and will not affect pending proceedings;9 but if such
alteration increases rights of appeal, it will be presumed to be retrospective applying to orders
subsequently made in pending proceedings, though it will not affect finality of orders already
made.10
On the principle that finality of decided cases is not affected, it was held that extension of time
limited for appeal from decisions in cases which had been adjudicated upon previously to the
passing of the Mortgagees Legal Costs Act, 1895, and which were right at the time when they
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were pronounced, will not be allowed, notwithstanding that section 3 of that statute was
retrospective in its operation, and applied to ‘mortgages made and business transacted and acts
done either before or after the commencement of’ the Act.11 And a final adjudication of invalidity
of certain transfers was held to be not affected by a new law which enacted that the transfers
‘shall not be declared to be invalid’.12 Similarly an order granting a stage-carriage permit was not
held to be invalidated by a subsequent law which was retrospective and which provided for
review of earlier orders until the order was actually reviewed in accordance with the provisions of
the new law.13
But, if a new Act provides that the orders made under the old Act are deemed to be made under
the new Act as if it were in force on the day when the orders were made, the orders though made
under the old Act will become appealable or revisable under the new Act.14 Similarly, a
retrospective change in law may enable a court to review its earlier decision and to modify it even
in the absence of an express conferral of such power.15 And, a retrospective statute may by
implication without using express words, invalidate an order previously made.16 Thus a decree
passed by a Civil Court in a suit was invalidated when by a retrospective change in law the
subject-matter of the suit was taken out of the jurisdiction of Civil Courts.17 Conversely a decree
passed by a Small Cause Court and held to be inexecutable for want of jurisdiction may be
validated and made executable by a retrospective legislation.18
(l) Pending proceedings
(i) Alteration of substantive rights.—A retrospective statute which affects rights in existence is
not readily construed to affect adjudication of pending proceedings.19 The courts insist that to
have that result the language should be sufficiently clear,20 although it need not be express.21
Courts have undoubtedly leaned very strongly against applying a new Act to a pending action,
when the language of the statute does not compel them to do so.22 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.23
The above principle has also been applied to proceedings pending for selection of candidates for
appointment to a post. In this case24 proceedings for selection to the post of Principal were
pending before the Director of Education under section 16F of the U.P. Intermediate Education
Act, 1921 when the Act was amended taking away the power of the Director to make an
appointment. It was held that the
amending Act could not in the absence of express words or necessary implication be
construed to take away the power of the Director in the pending proceedings for selection.25 But
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steps taken under an existing law which take away the jurisdiction of an authority may affect a
pending proceeding before it especially when the authority is a tribunal of limited jurisdiction. In
such a case, the authority's power to deal with the matter must continue when the decision is
rendered by it and if the authority's power is taken away before that stage is reached, it will cease
to have jurisdiction even in a pending matter. For example, clause 16(3) of the Banking
Ombudsman Scheme, 1995 made under the
Banking Regulation Act provides that ‘no complaint to the Banking Ombudsman
shall lie unless—the complaint is not the subject matter for which any proceeding before any
court, tribunal or arbitrator or other forum is pending’. In a case where during the pendency of a
complaint before the Ombudsman, the Debts Recovery Tribunal was moved on the same subject
matter, it was held, that the Ombudsman lost the jurisdiction to deal with the complaint.26 The
word ‘lie’ in cl. 19(3) of the scheme was construed to mean that the Ombudsman must continue to
have foundation in law to deal with the matter till the stage of decision and not merely when the
complaint is filed.27
In Smithies v. National Association of Operative Plasterers Smithies v. National

Association of Operative Plasterers 28 section 4 of the Trade Disputes Act, 1906
which enacted that ‘an action for tort against a trade union shall not be entertained by any court’
was held not to affect disposal of an action commenced before passing of the Act.
In Beadling v. Goll, Beadling v. Goll, 29 the Gaming Act, 1922, which
had repealed a section of an earlier Gaming Act, was held not to terminate a pending action even
though it had enacted that ‘no action for the recovery of money under the said section shall be
entertained by any court’.
In Chandrasingh v. Surjitlal, Chandrasingh v. Surjitlal, 30section 12(2)
of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which enacted that ‘no
suit for recovery of possession shall be instituted’ was held to be prospective not affecting a suit
commenced earlier to the passing of the Act.
In Provincial Government of Madras v. J.S. Basappa, Provincial Government of

Madras v. J.S. Basappa, 31section 18A of the Madras General Sales Tax Act, 1939,
which was inserted by an

amending Act of 1951, and which enacted that ‘no suit or other proceeding shall be
instituted in any court to set aside or modify any assessment made under this Act, was held not to
apply to suit instituted before the
amending Act came into force.
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In Venugopala v. Krishnaswami, Venugopala v. Krishnaswami,

32section 46(2) of the Government of India Act, 1935, which enacted that Burma shall cease to be
part of India, was construed not to affect the continuance of pending action in an Indian court
which related to properties situated in Burma.
A new law bringing about a change in forum does not affect pending actions,33 unless a provision
is made in it for change over of proceedings or there is some other clear indication that pending
actions are affected.34 Thus if the new law which is enacted during the pendency of a suit in a
Civil Court is worded in the form that ‘no Civil Court shall have jurisdiction to settle, decide or
deal with’certain questions which are committed to the jurisdiction of Revenue Courts and the
pending suit relates to these questions, the jurisdiction of the Civil Court would be ousted.35
The principle, that pending proceedings are not affected, does not go beyond this that in every
case language of the statute has to be examined to determine whether the Legislature clearly
intended to bring within reach of the statute even pending proceedings.36 It is, therefore, not
essential that the Legislature, if it intends to apply a statute to pending proceedings, must enact an
express provision to that effect.37 A retrospective conferral of new rights or a retrospective
restoration of rights which had earlier been taken away, will in general, affect pending
proceedings.38 It is the duty of Courts, whether trying original proceedings or hearing an appeal,
to take notice of the change in law affecting pending actions and to give effect to the same.39
Thus, if a taxing Act is retrospectively changed after reference, the High Court and Supreme
Court must take notice of it.40 For example, if a refund provision in a taxing Act is amended by
incorporating the principle of ‘unjust enrichment’ by providing that no refund shall be made
unless the applicant proves that the incidence of tax has not been passed on by him to any other
person, the amendment will be taken notice of even when the matter is pending in appeal before
the Supreme Court and refund will be disallowed if the applicant fails to establish that the tax
burden has not been passed on by him to any other person41. Similarly, if a law providing for
compensation for an acquisition is retrospectively altered the Collector in making an award and
the courts in deciding a reference or appeal relating to compensation must give effect to the
change in law.42
Proceedings pending for quantification of compensation in respect of acquisitions already made

are not affected by a change in law which enhances or reduces the rate of compensation unless the
new law expressly or impliedly provides otherwise.43 Further, the new law may confer only
limited retrospectivity. The principle of limited retrospectivity of an amending statute, which
makes changes in substantive law, applicable to pending proceedings is illustrated by the Land
Acquisition (Amendment) Act, 1984. Section 23(1) of the principal Act prescribes the matters
which are required to be considered in determining compensation. Section 23(2) makes provision
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for award of ‘solatium’ in consideration of compulsory nature of acquisition. Prior to the

amending Act the solatium required to be paid was 15% of the market value. Section
28 of the principal Act before amendment allowed interest at the rate of 6% on the amount
awarded by court in excess of the sum awarded by the collection. The Bill amending the principal
Act was introduced in the Lok Sabha on April, 30, 1982. The
amending Act came into force on September 24, 1984. The
amending Act introduced section 23(1A) in the principal Act which allows additional
compensation in the shape of interest at the rate of 12% from the date of the notification under
section 4 upto the date of Collector's award or taking over possession whichever is earlier. The
amending Act also enhanced the solatium payable under section 23(2) from 15% to
30% and rate of interest prescribed in section 28 from 6% to 9%.
section 30 of the amending Act which was headed as ‘Transitional provisions’
enacted in sub-section (1) that section 23(1A) as inserted in the principal Act shall apply and shall
be deemed to have applied also to: (a) every proceeding for the acquisition of any land pending on
April 30, 1982 in which no award has been made by the Collector before that date, and (b) every
proceeding for the acquisition of any land commenced after April 30, 1982 whether or not an
award has been made by the Collector before the date of commencement of the
amending Act , i.e., September 24, 1984. Sub-section (2) of section 30 enacted that
section 23 and section 28 of the principal Act as amended shall apply and shall be deemed to have
applied also to any award made by the Collector or court or to any order passed by the High Court
or Supreme Court in appeal against such award under the provisions of the principal Act after
April 30, 1982 and before the commencement of the
amending Act , i.e., September 24, 1984.
Section 30 of the amending Act created a lot of controversy as to the extent of
retrospectivity of section 23(1A) and section 23(2) as amended. It is, however, now settled by two
Constitution Bench decisions that these provisions have to be read along with
section 30 of the amending Act and cannot be given larger retrospectivity than
allowed by section 30.44 It was, therefore, held that entitlement to additional compensation
allowed by section 23(1A) depends upon pendency of acquisition proceedings as on April 30,
1982 or commencement of acquisition proceedings after that date and if the Collector had made
the award before that date then additional compensation cannot be awarded even if the reference
arising out of the Collector's award or appeal against the court's award was pending when the
amending Act came into force.45 It was similarly held that entitlement to increased
solatium by section 23(2) as amended depended upon
section 30(2) of the amending Act and was available only when the award of the
Collector or the court was made between April 30, 1982 and September 24, 1984 and the benefit
of enhanced solatium will not apply to a pending appeal against the court's award if the above
condition was not satisfied. It will, however, be seen that literal reading of
section 30(2) of the amending Act limited the retrospectivity of the amendment in
section 23(2) to awards made by the Collector or the court between the introduction of the Bill
and coming into force of the Act. There was however no reason why if the amended provision
applied to awards already made after the introduction of the Bill, it should not apply to awards
made after the commencement of the Act in pending matters.46 It was, therefore, held that it was
implicit in
section 30(2) of the Amending Act that the benefit of section 23(2) as amended
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should also be given to awards made after commencement of the Act in pending proceedings.47
In K.C. Mukherjee v. Mst. Ramratan Kuer, K.C. Mukherjee v. Mst. Ramratan Kuer,
48 a landlord had sued for ejectment of the tenant and his transferee of a non - transferable
occupancy holding on the ground that the transfer was made without the plaintiff's consent. When
the matter was pending in appeal before the Privy Council, the Bihar Tenancy Amendment Act,
1934, came into force which enacted that every landlord shall be deemed to have given his
consent to every transfer made before 1923. The transfer in question before the Privy Council was
of 1916 and was held to be validated negativing plaintiff's right to recover possession although the
amending Act contained no express provision applying the Act to pending
proceedings.
In Shyabuddinsab v. Municipality of Gadag Betgeri, Shyabuddinsab v. Municipality

of Gadag Betgeri, 49 where certain elections to the offices of President and Vice-
President were called into question and while the matter was pending in appeal before the
Supreme Court, the Municipal Act was amended by a retrospective Act and all elections to the
offices of President and Vice-President were validated, it was held that the elections in question
were also validated although the Act made no express reference to elections which were already
in challenge in a court.
In S.B.K. Oil Mills v. Subhash Chandra, S.B.K. Oil Mills v. Subhash Chandra,
50section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which
enacted that ‘a landlord shall not be entitled to the recovery of possession’, and section 12(3)(b)
of the same Act which enacted that ‘no decree for eviction shall be passed’ were held to enact a
rule of decision applicable to pending suits.51 Similarly in Raffiquennesa v. Lal Bahadur Chhetri,
Raffiquennesa v. Lal Bahadur Chhetri, 52section 5(1) of the Assam Non-Agricultural
Urban Tenancy Act, 1955, which enacted that a ‘tenant shall not be ejected by the landlord from
the tenancy except on the ground of non-payment of rent’, was held to apply to pending
proceedings for ejectment even at the appellate stage.53 It was pointed out in this case that if the
Legislature had intended that the protection afforded by the Act should operate prospectively, i.e.,
only in respect of suits filed after the coming into force of the Act, it should have been easy to say
so by providing that ‘the tenant shall not be sued in ejectment’ instead of providing that ‘the
tenant shall not be ejected’.54 After referring to these cases the Supreme court recently observed:
“In some statutes the legislature—says that no suit shall be ‘entertained’ or ‘instituted’ in regard
to a particular subject matter. It has been held by this court that such a law will not affect pending
actions and the law is only prospective. But the position is different if the law states that after its
commencement, no suit shall be ‘disposed of’ or ‘no decree shall be passed’ or ‘no court shall
exercise power or jurisdiction’. In this class of cases the Act applies even to pending
proceedings—.”55 But, though the words ‘shall not be ejected’ are appropriate to cover pending
suits, they may not be sufficient to bar execution of decrees already obtained unless the context
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gives a clear indication to the contrary.56 It has also been held that the words ‘no decree for
eviction shall be passed in a suit or proceeding filed and pending against a tenant’ though wide
enough to cover a pending appeal,57 are not wide enough to cover a leave petition under
Article 136 of the Constitution or an appeal under that provision after leave is
granted.58 But the words ‘a tenant shall not be evicted whether in execution of a decree or
otherwise’ have been held to cover even an appeal under Article 136 pending in the Supreme
Court.59
The case Qudrat Ullaeh v. Municipal Board Bareilly, Qudrat Ullaeh v. Municipal
Board Bareilly, 60 will show that if a new Rent Control Act permits a pending suit to
be amended to bring it in conformity with the provisions of the new Act, it is the new Act that
will govern pending suits. But even in such a case the new Act will not apply where the rights of
the parties had crystallised and the suit had been decreed by the trial court before the coming into
force of the new Act which contained provisions to save accrued rights.61
In Ramsarup v. Munshi, Ramsarup v. Munshi, 62 a suit for

pre-emption was decreed by courts below and while an appeal from that decree was pending in
the Supreme Court, the Punjab Legislature passed Act 10 of 1960, amending its earlier Act of
1913, and inserting in it a new section 31 to the effect that ‘no court shall pass a decree in a suit
for pre-emption whether instituted before or after the commencement’ of the
amending Act inconsistent with its provisions. It was held that the bar of the
provision had to be taken note of by the Supreme Court, and it made no difference whether the
appeal was from a decree dismissing the suit or decreeing the suit. The court in that case set aside
the decree of pre-emption passed by courts below, which had been passed before the Act came
into force and dismissed the suit in obedience to the new Act. To enable a plaintiff to succeed in a
suit for preemption, the right of pre-emption must continue to exist till the passing of the decree
but if the right is taken away by a change in law after passing of the decree in the trial court, it
will not affect the decree which may have been challenged in appeal unless the change in law is
retrospective and contains a provision analogous to section 31 referred to above.63
In Mithilesh Kumari v. Prem Bihari Khare, Mithilesh Kumari v. Prem Bihari Khare,
64 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 in appeal by the Additional District Judge
and the High Court. The defendant appealed to the Supreme Court by special leave. During the
pendency of the appeal in the Supreme Court the Benami Transaction (Prohibition) Act, 1988
came into force. Section 4(1) of this Act provides that no suit to enforce any right in respect of
any property held 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. This case was followed in Duvuru
Jaya Mohan Reddy v. Alluru Naga Reddy Duvuru Jaya Mohan Reddy v. Alluru Naga
Reddy 65 which was also pending in the Supreme Court when the said Act came into
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force. In this case the suit was filed by the benamidar against the real owner and the auction
purchaser and had been dismissed by the High Court. Section 4(2) of the Act provides that ‘no
defence based on any right in respect of any property held benami-shall be allowed in any suit’.
The Supreme Court took notice of the Act and allowed the appeal and decreed the suit. Both these
cases are no longer good law on the point that pending suits and appeals were affected by section
4 of the Act as that view has now been substantially overruled in R. Rajgopal Reddy v. Padmini
Chandrasekharan. R. Rajgopal Reddy v. Padmini Chandrasekharan. 66
In Mohanlal v. Sawai Mansinghji Mohanlal v. Sawai Mansinghji ,67 while the suit
against the ruler of an Indian State was pending, section 87B was inserted in the
Civil Procedure Code, 1908 , by
Amending Act II of 1951. This section applied to rulers of former Indian States, the
provisions of section 86 which is to the effect: ‘No ruler of a foreign State may be sued’. It was
held by the Supreme Court 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.
In Safali Ray Chowdhary v. A.K. Datta, Safali Ray Chowdhary v. A.K. Datta,
68 a suit for ejectment by a tenant against a sub-tenant was pending under the West Bengal
Premises Rent Control (Temporary Provisions) Act, 1950, when this Act was repealed and
replaced by the West Bengal Tenancy Act, 1956. The new Act contained a saving clause that
pending proceedings may be continued as if the repealed Act ‘had been in force and had not been
repealed’. The new Act also made provision for upgrading of a sub-tenant as tenant and for
bringing him into direct relationship with the landlord. It was held that it was open even to a sub-
tenant against whom a suit was pending when the new Act came into force to take the benefit of
the new Act and to contend that the plaintiff tenant's right has come to an end.
In Dahiben widow of Ranchhodji Jivanji v. Vasanji Kevalbhai, Dahiben widow of

Ranchhodji Jivanji v. Vasanji Kevalbhai, 69 the question that was considered was
regarding the applicability of the Bombay Tenancy and Agricultural Lands Act, 1948, which gave
protection to the tenants against eviction to pending suits. Section 88(1) of the Act as originally
enacted made the Act inapplicable to any area within the limits inter alia of the municipal
borough of Surat and within a distance of two miles of the limit of borough. During the pendency
of a suit relating to a land situate within the area excluded from the operation of the Act, section
88(1) was amended making the Act applicable to the area where the suit land was situated. It was
held that the Act though it affected substantive rights, applied to the pending suit for it was a
beneficial legislation and had to be given a liberal interpretation.
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In Mathew M. Thomas v. Commissioner of Income-tax Mathew M. Thomas v.

70
Commissioner of Income-tax , circular No. 455 dated 16-9-1986 issued by the Central Board of
Direct Taxes which ‘with a view to achieve early finalisation of proceedings under Chapter XXA
of the
Income-tax Act, 1961 ’ (which had been deleted and made inapplicable in respect of
properties transferred after September 30, 1986) directed that where acquisition proceedings have
been initiated under section 269D the proceedings will be dropped if the apparent consideration
was below Rs. 5 lakhs, was held to be a beneficient provision and was applied not only to original
proceedings pending before the competent authority but also to proceedings pending in appeal
before the Tribunal and the High Court in appeal.
(ii) Alterations in matters of procedure.—It has already been noticed71 that for the reason that 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 Attorney-General v. Vernazza, Attorney-General v. Vernazza, 72 a
provision enacted during the pendency of appeal preferred by a person who was declared a
vexatious litigant, and authorising the court to order that any legal proceedings instituted by him
in any court before the making of the order shall not be continued by him without leave of the
High Court, was held to embrace proceedings instituted before commencement of the Act and
also to authorise the Court of Appeal to make the order in terms thereof. It was pointed out that
the Act was procedural for “no man, let alone a vexatious litigant, has a vested right to bring or
continue proceedings which are an abuse of the process of the court”.73
In Craxford's (Ramsgate) Ltd. v. Williams and Steer Manufacturing Co. Ltd.,

Craxford's (Ramsgate) Ltd. v. Williams and Steer Manufacturing Co. Ltd., 74
the question related to the effect of section 2 of the Law Reform (Enforcement of Contracts) Act,
1954, on pending proceedings. section 2 of the Act of 1954, repealed ‘
section 4 of the Sale of Goods Act , 1893 in relation to any contract, whether made
before or after the commencement of this Act’. The repealed section 4 of the Act of 1893, was to
the effect that ‘a contract for the sale of any goods of the value of £10 or upwards shall not be
enforceable by action unless the buyer shall accept part of the goods so sold and actually receive
the same or give something in earnest to bind the contract or in part payment, or unless some note
or memorandum in writing of the contract be made and signed by the party to be charged or his
agent in that behalf. In an action filed on a contract, the defence rested under section 4 of the Act
of 1893. During the trial but before judgment the 1954 Act came into operation giving rise to the
question whether the defence under the repealed section 4 of the 1893 Act remained a valid plea.
It was held that section 4 was only a procedural section fettering the power of court to grant a
remedy unless the contract was established in a particular manner; and no one had any vested
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right under it; and that the fetter having been removed by repeal of the provision in respect of all
contracts, the court could grant the remedy even in an action which was instituted earlier to the
repeal.
In Anant Gopal Sheorey v. State of Bombay, Anant Gopal Sheorey v. State of

Bombay, 75
section 342A of the Code of Criminal Procedure , 1898, introduced by

Amending Act 26 of 1954, which enacted that any accused person shall be a
competent witness and may give evidence on oath in disproof of the charges, was held to be
applicable to a prosecution which was pending at the time the
amending Act came into force.
In Blyth v. Blyth, Blyth v. Blyth, 76section 1 of the Matrimonial Causes
Act, 1963, which enables rebuttal by evidence of presumption of condonation arising from marital
intercourse 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.
But proceedings or trials completed before the change in law of procedure are not reopened for
applying the new procedure.77 In Nani Gopal Mitra v. State of Bihar, Nani Gopal
Mitra v. State of Bihar, 78 the accused was convicted for criminal misconduct in the
discharge of his official duty by recourse to presumption contained in
section 5(3) of the Prevention of Corruption Act , 1947, which provision was
repealed by Act 40 of 1964 when the appeal was pending. It was held that the repeal of section
5(3) after completion of trial did not affect the trial and the conviction could not be set aside in
appeal on the ground that section 5(3) which was a procedural provision was repealed during
pendency of appeal. By Act 16 of 1967 section 5(3) as it stood before its repeal was made
applicable to all pending proceedings.79
3. OPERATION CONTROLLED ON CONSIDERATIONS OF

CONSTITUTIONALITY: PRESUMPTION AGAINST EXCEEDING
CONSTITUTIONAL POWERS
(a) Legislative Powers
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In India legislative powers of Parliament and State Legislatures are conferred by Article 246 and
distributed by Lists I, II and III in the seventh schedule of the
Constitution . Parliament has exclusive power to make laws with respect to any of the
matters in List I and State Legislatures have exclusive power to make laws with respect to matters
in List II. Parliament and State Legislatures have both power to make laws with respect to matters
in List III which is called the Concurrent List. Residuary power of legislation is vested in
Parliament by virtue of Article 248 and entry 97 in List I. The power of State Legislatures to
make laws is subject to the power of Parliament to make laws with respect to matters in Lists I
and III. While examining the legislative competence of Parliament to make a law all that is
required to be seen is whether the subject matter falls in List II which Parliament cannot enter for
in view of the residuary power vesting in Parliament other matters are not outside the legislative
competence of Parliament.80
Entries in the legislative lists are fields of legislation and receive widest construction unless their
import is cut down by competing entries and other parts of the
Constitution 81
. A matter mentioned in an entry is construed to cover all ancillary or
subsidiary matters which can be reasonably be said to be comprehended in it.82 For example Entry
45 List I which reads ‘Banking’ has been construed to enable Parliament to provide for recovery
of debts due to banks and to constitute for that purpose Banking Tribunals.83 And a law for
regulating recognition of educational institutions conducting courses of Bachelor of Education,
enacted under Entry 66 of List I of Sch. VII, can provide that a qualification obtained in teacher
education from any institution which is not recognised will not be treated as a valid qualification
for appointment under the Central Government or a State Government or a University.84 Further,
power to enact a law on a particular topic includes the power to make provision in the law enacted
to prevent its evasion.85 But when wide construction of an entry leads to a conflict or overlapping
with another entry in the same or different list, the rule of harmonious construction is applied so
as to reconcile the conflict and to give effect to all of them.86 Thus the expression ‘industries’ in
Entry 52 of List I has been construed in a limited sense to comprise only of manufacturing
activities and not to include raw material and disposal of final product.87 This construction was
adopted to avoid clash of Entry 52 List I with Entries 14, 27, 28 and 66 of List II and Entry 33 of
List III.88 Similarly Entry 25 in the State List which reads “Gas and gas Works' has been held to
be restricted to manufactured gas and not to cover natural gas which has been held to be covered
by Entry 53 of List I viz., ‘Regulation and development of oil fields and mineral resources;
petroleum and petroleum products.’89 And on the same principle Entry 32 in List II relating to
‘Incorporation-of-Universities’ has been given a restricted construction because of Entry 66 in
List I which relates to ‘Co-ordination and determination of standards in institutions for higher
education or research and scientific and technical institutions.’90
The question whether the Legislature has kept itself within the jurisdiction assigned to it or has
encroached upon a forbidden field is determined by finding out the true nature and character or
pith and substance of the legislation91 which may be different from its consequential effects.92 If
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the pith and substance of the legislation is covered by an entry within the permitted jurisdiction of
the Legislature any incidental encroachment in the rival field is to be disregarded.93
A law made by a State Legislature with respect to a matter in the concurrent list if repugnant to a
law made by Parliament will be void to the extent of the repugnancy unless the state law has
received the assent of the President in which case it will prevail in that state.94 When a Central
Act is enacted earlier, although brought into force later to the law enacted by the State which has
received the assent of the President, the Central Act being earlier law will give way to the State
law on matters covered by it.95 The assent of the President which gives primacy to the state law
has to be after due consideration. The primacy of the state law will, therefore, be restricted against
the law enacted by Parliament which is mentioned in the proposal for seeking assent of the
President to the state law and the primacy of the state law will not extend against any other law
enacted by Parliament which is not mentioned in the proposal.96 But the assent of the President to
the State law does not prevent Parliament from, enacting later any law with respect to the same
matter including a law adding, amending or repealing the State law.97 Repugnancy may also arise
outside the concurrent list for a State Legislature's power, even in respect of matters in the
exclusive state list, is subject to Parliament's power to make laws in respect of matters in Lists I
and III. Because of the doctrine of pith and substance which permits incidental encroachment in
the rival field, it is possible that a law made by a State Legislature, which in pith and substance is
a law in respect of a matter in List II, has made incidental encroachment on some matter in List I.
Such an incidental encroachment will be valid if the field of encroachment is not covered but it
will be void, to the extent of repugnancy, if the field be already covered or it will become void if
the field be later covered by a law made by Parliament.1 But what will happen when a Central Act
which in pith and substance is a law in respect of a matter in List I, incidently encroaches upon a
matter in List II and thereafter the State Legislature covers the field of encroachment by enacting
a law which in pith and substance relates to a matter in List II? As the exclusive power of the
State Legislature in respect of List II under Article 246(3) is subject to clauses (1) and (2) of the
same Article which confer legislative power upon Parliament in respect of matters in Lists I and
III and as the power of Parliament in respect of List I, under clause (1) is notwithstanding
anything in clauses (2) and (3), the answer may be that the Central Act will still be effective and
the State Act to the extent of the encroachment by the Central Act will be ineffective. The
observations made by Balakrishnan, J. who delivered the unanimous opinion of a
Constitution Bench in Special Reference (1) of 20012 fully supports this answer.
These observations are: “Although Parliament cannot legislate on any of the entries in the State
list it may do so incidently while essentially dealing with the subject coming within the purview
of the entry in the Union list. Conversely, the State Legislature also may incidently trench upon
the subject covered in the Union List. Such incidental encroachment in either event need not make
the legislation ultra vires the
Constitution . The doctrine of pith and substance is sometimes invoked to find out the
nature and content of the legislation. However, when there is irreconcilable conflict between the
two legislations the Central Legislation shall prevail. However, every attempt would be made to
reconcile the conflict.”3 These observations will appear to settle the view that in cases where
conflict arises between a Central Act and a State Act because of incidental encroachment on a
subject in the rival exclusive list, it is the Central Act which will always prevail. But in ITC Ltd. v.
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Agricultural Produce Market Committee, ITC Ltd. v. Agricultural Produce Market

Committee, 4 Smt Ruma Pal, J. had held that in a case where the conflict is between a
State Act and a Central Act, because of incidental encroachment of the Central Act on a subject in
the State List, the State legislation being within the exclusive power of the State Legislature will
be the dominant legislation and shall prevail over the Central Act in the field of encroachment. It
has been held in some cases that the doctrine of covered field or occupied field can be applied
only to matters in List III.5
Repugnancy arises when the conflict between competing legislations cannot be reconciled and it
is not possible to give effect to both. But before reaching the conclusion that there is repugnancy
arising from conflict, effort should be made to remove the conflict by harmonious construction.6
Repugnancy may also arise, even in the absence of direct conflict, when the superior legislation
evinces an intention to cover the entire field leaving no room for the rival legislation to operate in
that field.7 For example if the Central Act provides only for fixation of minimum price, there
would be no repugnancy if the State Act provides for fixation of higher price.8 In contrast, when
regulation of tobacco products was entirely taken over under Central Act 34 of 2003, it was held
that the State Government had no power to prohibit ‘Gutka’ containing tobacco even for a limited
period under the
Prevention of Food Adulteration Act, 1954 .9 The effect of repugnancy is not repeal
of the subordinate law by the superior law but only to eclipse it till the repugnancy persists.
Therefore, when repugnancy caused by superior law is removed by its repeal or amendment the
subordinate law will revive automatically without its re-enactment.10
It is said that a Legislature cannot assume a power by colourable legislation. This doctrine really
means that the Legislature in passing a statute, though purporting to act within the limits of its
powers, has in substance and in reality trangressed these powers. The question even in these cases
is not of bona fides or mala fides but only of competence to enact the particular law.11
It is also sometimes said that Parliament can never do indirectly, what it cannot do directly. But
this is not a correct statement of the principle. Whether or not Parliament can do something
indirectly, which it cannot do directly, may depend upon why it cannot do directly. In law, as in
life, there are many examples of things that can be done indirectly, although not directly. The true
principle is that “it is not permissible to do indirectly what is prohibited directly.”12
The doctrine of separation of powers does not prevent the Legislature from validating a law or
executive order declared invalid by court by passing a suitable validating Act which effectively
removes the cause of invalidity and thereby makes the judgment inoperative.13 In any case a
judgment declaring an Ordinance unconstitutional which is challenged in appeal but the appeal is
Mr.Srikanth -
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dismissed as infructuous on the expiry of the Ordinance pending the appeal cannot stand as a final
judgment which can affect the validity of a new Ordinance promulgated later.14
Even acting within its competence neither Parliament nor a State Legislature can violate any
provision of the
Constitution , e.g., the fundamental rights. A law enacted by Parliament and State
Legislatures is, therefore, open to judicial review on the grounds of lack of legislative competence
and violation of other provisions of the
Constitution 15
. Since Article 14 strikes at arbitrariness in state action whether of the
legislature or the executive, a law enacted by Parliament or State Legislatures will also be open to
judicial review on the ground of ‘manifest’ arbitrariness as it will make it offend the fundamental
right under Article 14.16 It has been said that no enactment can be struck down just by saying that
it is arbitrary or unreasonable.17 In deciding whether a provision is violative of a fundamental
right the test to be applied is of its “direct and inevitable effect” on the fundamental right.18 But
motives of the legislature are irrelevant for judicial review.19
1
Section 3(13), General Clauses Act, 1897 .
2
Section 5, General Clauses Act, 1897 ; C.I.T., Punjab v. R.B. Jodha Mal Kuthiala, C.I.T., Punjab
v. R.B. Jodha Mal Kuthiala,
AIR 1966 SC 1433 [
LNIND 1965 SC 320 ]:
(1966) 2 SCR 645 [
LNIND 1965 SC 320 ].
Section 5 General Clauses Act has no application when the Act provides that it will come into force on a date to be
notified by the Central Government : Common Cause v. Union of India, Common Cause v. Union of India,
(2003) 8 SCC 250 [
LNIND 2003 SC 862 ], p. 262 :
AIR 2003 SC 4493 [
LNIND 2003 SC 862 ].
3 See Tomlinson v. Bullock, Tomlinson v. Bullock,

(1879) 4 QBD 230 . See also S.S. Gadgil v. Lal & Co., S.S. Gadgil v. Lal & Co.,
AIR 1965 SC 171 [
LNIND 1964 SC 168 ], p. 175 :
(1964) 8 SCR 72 [
LNIND 1964 SC 168 ]; B.N. Agarwalla v. State of Orissa, B.N. Agarwalla v.
State of Orissa,
1995 (6) Scale 54 [
LNIND 1995 SC 1645 ], p. 56 :
(1995) 6 SCC 509 [
LNIND 1995 SC 1645 ].
Mr.Srikanth -
Page 44 of 103
4 Section 5, Assam Act 2 of 1915; Section 6, Bengal Act 1 of 1899; Section 5, Bombay Act 1 of 1904; Section 6, Bihar
& Orissa Act 1 of 1917; Section 3, Madhya Pradesh Act 3 of 1958; Section 5, Madras Act 1 of 1891; Section 3, Orissa Act 1 of
1937; Section 3, Punjab Act 1 of 1898; Section 5, U.P. Act 1 of 1904; Section 3, Travancore-Cochin Act 8 of 1125 M.E.; Section 5,
Rajasthan Act 8 of 1959; Section 5(1)(iii), Mysore Act 3 of 1899. See Deputy Commercial Tax Officer, Madras v. Sha Sukraj
Peeraji, Deputy Commercial Tax Officer, Madras v. Sha Sukraj Peeraji,
AIR 1968 SC 67 [
LNIND 1967 SC 143 ], p. 70 :
(1967) 3 SCR 661 [
LNIND 1967 SC 143 ] (a case under the Madras
General Clauses Act , 1891).
5 See State of Bombay v. Salat Pragji, State of Bombay v. Salat Pragji,

AIR 1957 SC 517 [
LNIND 1957 SC 26 ], p. 521 :
1957 SCR 745 . See further Orient Paper Industries Ltd. v. State of Orissa,
Orient Paper Industries Ltd. v. State of Orissa,
AIR 1991 SC 672 [
LNIND 1990 SC 643 ], p. 682 : 1991 Supp (1) SCC 81 (Original Act brought into force by
notification; Retrospective amendment from its inception not to be brought into force by fresh notification).
6 State of Orissa v. Chandrashekhar Singh, State of Orissa v. Chandrashekhar Singh,

AIR 1970 SC 398 [
LNIND 1969 SC 213 ]:
(1969) 2 SCC 334 [
LNIND 1969 SC 213 ]; Union of India v. Sukumar Sen Gupta, Union of India v.
Sukumar Sen Gupta,
AIR 1990 SC 1692 [
LNIND 1990 SC 294 ]: 1990 Supp SCC 545.
7 Ishwar Das v. Union of India, Ishwar Das v. Union of India,

AIR 1972 SC 1193 [
LNIND 1972 SC 97 ]:
(1972) 1 SCC 646 [
LNIND 1972 SC 97 ]. State of Assam v. K.B. Kurkalang, State of Assam v. K.B.
Kurkalang,
AIR 1972 SC 223 [
LNIND 1971 SC 590 ]:
(1972) 1 SCC 148 [
LNIND 1971 SC 590 ].
8 A.K. Roy v. Union of India, A.K. Roy v. Union of India,

AIR 1982 SC 710 [
LNIND 1981 SC 469 ]:
(1982) 1 SCC 271 [
LNIND 1981 SC 469 ]; Altmesh Rein v. Union of India, Altmesh Rein v. Union
of India,
AIR 1988 SC 1768 [
LNIND 1988 SC 361 ]:
(1988) 4 SCC 54 [
LNIND 1988 SC 361 ]. See further Attorney-General for India v. Amratlal Prajivandas,
Attorney-General for India v. Amratlal Prajivandas,
JT 1994 (3) SC 583 , p. 618 :
AIR 1994 SC 2179 : (1994) 5 SCC 54; Union of India v. Prakash Hinduja,
Union of India v. Prakash Hinduja,
(2003) 6 SCC 195 [
LNIND 2003 SC 540 ], p. 217 :
AIR 2003 SC 2612 [
LNIND 2003 SC 540 ]; Common Cause v. Union of India, Common Cause v.
Union of India,
(2003) 8 SCC 250 [
Mr.Srikanth -
Page 45 of 103
LNIND 2003 SC 862 ], p. 262 :

AIR 2003 SC 4493 [
LNIND 2003 SC 862 ].
9 Altmesh Rein v. Union of India, supra Altmesh Rein v. Union of India, supra .
10 Factortome Ltd. v. Secretary of State for Transport, Factortome Ltd. v. Secretary of

State for Transport,
(1991) 1 All ER 70 (CJEC and HL); Bhavesh D. Parish & Co. v. Union of India,
Bhavesh D. Parish & Co. v. Union of India,
JT 2000 (6) SC 604 [
LNIND 2000 SC 906 ], p. 622 :
AIR 2000 SC 2047 [
LNIND 2000 SC 906 ], p. 2057 :
(2000) 5 SCC 471 [
LNIND 2000 SC 906 ] (The presumption being that the law is constitutional, there should be
normally no stay especially in a matter relating to economic reform). For effect of the vacation of stay order on the operation of the
Act, see Employees State Insurance Corp. v. All India ITDC Employees Union, Employees State Insurance
Corp. v. All India ITDC Employees Union,
(2006) 4 SCC 257 [
LNIND 2006 SC 209 ] :
(2006) 4 JT 26 and cases referred therein (court cannot direct that the statute shall operate
prospectively).
11 R. v. Secretary of State for the Home Department, ex parte, Fire Brigade Union, R.
v. Secretary of State for the Home Department, ex parte, Fire Brigade Union,
(1995) 2 All ER 244 , p. 252 :
(1995) 2 AC 513 (HL).
12 Ibid, p. 253.
13 R. v. Director of Public Prosecutions exparte Kebeline, R. v. Director of Public

Prosecutions exparte Kebeline,
(1999) 4 All ER 801 , p. 833 (HL). For doctrine of legitimate expectation, see pp. 431-33, ante.
14 Pieco Electronics & Electricals Ltd. v. Collector of Central Excise, Pieco

Electronics & Electricals Ltd. v. Collector of Central Excise,
JT 1997 (10) SC 368 [
LNIND 1996 SC 1726 ], pp. 369, 370 :
1997 (2) SCC 220 [
LNIND 1996 SC 1726 ] :
(1996) 87 ELT 577 .
15 Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., Fuerst Day Lawson Ltd. v. Jindal
Exports Ltd.,
AIR 2001 SC 2293 [
LNIND 2001 SC 1180 ], pp. 2296, 2301, 2302 :
(2001) 6 SCC 336 .
16 Panchugopal Barua v. Umesh Chandra Goswamy, Panchugopal Barua v. Umesh

Chandra Goswamy,
JT 1997 (2) SC 554 [
LNIND 1997 SC 250 ], pp. 565, 566 :
Mr.Srikanth -
Page 46 of 103
AIR 1997 SC 1041 [

LNIND 1997 SC 250 ], pp. 1046, 1047 :
(1997) 4 SCC 713 [
LNIND 1997 SC 250 ].
17 R (On the application of L) v. Secretary of State for the Home Department, R (On
the application of L) v. Secretary of State for the Home Department,
(2003) 1 All ER 1062 , pp. 1067 (para 17), 1068 (para 24), 1069 (para 26) (CA). See further text
and note 72, p. 876.
18 State of Gujarat v. Raman Lal Keshav Lal Soni, State of Gujarat v. Raman Lal
Keshav Lal Soni,
(1983) 2 SCR 287 [
LNIND 1983 SC 36 ] :
1983 (2) SCC 33 [
LNIND 1983 SC 36 ] :
AIR 1984 SC 161 [
LNIND 1983 SC 36 ]; State of Tamil Nadu v. Arooran Sugars Ltd., State of
Tamil Nadu v. Arooran Sugars Ltd.,
AIR 1997 SC 1815 , pp. 1822, 1823 :
(1997) 1 SCC 326 ; National Agricultural Cooperative Marketing Federation of India Ltd. v.
Union of India, National Agricultural Cooperative Marketing Federation of India Ltd. v. Union of India,
(2003) 5 SCC 23 [
LNIND 2003 SC 345 ], p. 30 :
AIR 2003 SC 1329 [
LNIND 2003 SC 345 ](Implied judicially recognised limitations for making retrospective
legislation).
19 United Provinces v. Atiqa Begum (Mt.), United Provinces v. Atiqa Begum (Mt.),
AIR 1941 FC 16 , p. 26 : 194 FCR 110; Piare Dusadh v. Emperor, Piare
Dusadh v. Emperor,
AIR 1944 FC 1 , pp. 9, 10; M.P.V. Sundararamier v. State of A.P., M.P.V.
Sundararamier v. State of A.P.,
AIR 1958 SC 468 [
LNIND 1958 SC 20 ], p. 486 :
1959 SCR 1422 ; J.K. Jute Mills Co. Ltd. v. State of U.P., J.K. Jute Mills Co.
Ltd. v. State of U.P.,
AIR 1961 SC 1534 [
LNIND 1961 SC 180 ], p. 1540 :
(1962) 2 SCR 1 [
LNIND 1961 SC 180 ]; Rai Ramkrishna v. State of Bihar, Rai Ramkrishna v.
State of Bihar,
AIR 1963 SC 1667 [
LNIND 1963 SC 33 ], p. 1673 :
(1964) 1 SCR 897 [
LNIND 1963 SC 33 ]; K.C. Arora v. State of Haryana, K.C. Arora v. State of
Haryana,
(1984) 3 SCC 281 [
LNIND 1984 SC 379 ], pp. 288, 289 :
AIR 1984 SC 1 [
LNIND 1983 SC 293 ]; Bhubaneshwar Singh v. Union of India, Bhubaneshwar
Singh v. Union of India,
JT 1994 (5) SC 83 , p. 87 :
(1994) 6 SCC 77 ; Bakhtawar Trust v. Narayana, Bakhtawar Trust v.
Narayana,
AIR 2003 SC 2236 , p. 2241; Virendra Singh Hooda v. State of Haryana,
Virendra Singh Hooda v. State of Haryana,
AIR 2005 SC 137 [
LNIND 2004 SC 1104 ], pp. 147, 152 (can take away vested rights). See also Sabally v. A.G.,
Sabally v. A.G.,
(1964) 3 All ER 377 (CA); Western Transport Pvt. Ltd. v. Kropp, Western
Mr.Srikanth -
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Transport Pvt. Ltd. v. Kropp,

(1964) 3 All ER 722 (PC).
20 A. Hajee Abdul Shukoor & Co. v. State of Madras, A. Hajee Abdul Shukoor & Co. v.
State of Madras,
AIR 1964 SC 1729 [
LNIND 1964 SC 178 ], p. 1735 (para 33) :
(1964) 8 SCR 217 [
LNIND 1964 SC 178 ].
21 District Mining Officer v. Tata Iron & Steel Co., District Mining Officer v. Tata
Iron & Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], pp. 3140, 3155 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ].
22 State of Tamil Nadu v. Arooran Sugars Ltd., State of Tamil Nadu v. Arooran Sugars
Ltd.,
AIR 1997 SC 1815 : 1997 (1) SCC 326.
23 See text and notes 14 to 20, pp. 48, 49, supra.
24 P. Kannadasan v. State of Tamil Nadu, P. Kannadasan v. State of Tamil Nadu,

AIR 1996 SC 2560 : 1996 (5) SCC 670.
25 Keshvan v. State of Bombay, Keshvan v. State of Bombay,

AIR 1951 SC 128 [
LNIND 1951 SC 3 ], p. 130 :
1951 SCR 228 [
LNIND 1951 SC 3 ]; Janardan Reddy v. State, Janardan Reddy v. State,
AIR 1951 SC 124 [
LNIND 1950 SC 56 ], p. 127 :
1950 SCR 940 [
LNIND 1950 SC 56 ]; Mahadeolal Kanodia v. Administrator General of W.B.,
Mahadeolal Kanodia v. Administrator General of W.B.,
AIR 1960 SC 936 [
LNIND 1960 SC 128 ], p. 939 :
(1960) 3 SCR 578 [
LNIND 1960 SC 128 ]; State of Bombay v. Vishnu Ramchandra, State of
Bombay v. Vishnu Ramchandra,
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], p. 309 :
(1961) 2 SCR 924 ; Rafiquennessa (Mst.) v. Lal Bahadur Chetri, Rafiquennessa
(Mst.) v. Lal Bahadur Chetri,
AIR 1964 SC 1511 [
LNIND 1964 SC 48 ], p. 1514 :
(1964) 6 SCR 876 [
LNIND 1964 SC 48 ]; Arjan Singh v. State of Punjab, Arjan Singh v. State of
Punjab,
AIR 1970 SC 703 [
LNIND 1968 SC 303 ], p. 705 :
(1969) 2 SCR 347 [
LNIND 1968 SC 303 ]; K.C. Arora v. State of Haryana, K.C. Arora v. State of
Haryana,
(1984) 3 SCC 281 [
LNIND 1984 SC 379 ], pp. 288, 289 :
Mr.Srikanth -
Page 48 of 103
AIR 1984 SC 1 [
LNIND 1983 SC 293 ]; Mithilesh Kumari v. Prem Bahadur Khare, Mithilesh
Kumari v. Prem Bahadur Khare,
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ], pp. 1253, 1254 :
(1989) 2 SCC 95 [
LNIND 1989 SC 96 ]; State of Madhya Pradesh v. Rameshwar Rathod, State of
Madhya Pradesh v. Rameshwar Rathod,
AIR 1990 SC 1849 [
LNIND 1990 SC 318 ]:
1990 (4) SCC 21 [
LNIND 1990 SC 318 ]; Shyam Sunder v. Ram Kumar, Shyam Sunder v. Ram
Kumar,
AIR 2001 SC 2472 [
LNIND 2001 SC 1541 ], pp. 2481, 2482 :
(2001) 8 SCC 24 [
LNIND 2001 SC 1541 ] : Zile Singh v. State of Haryana, Zile Singh v. State of
Haryana,
AIR 2004 SC 5100 [
LNIND 2004 SC 1050 ], p. 5103 :
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ], p. 8, (9th Edn., p. 438 of this book is referred); Gem Granites v.
Cammr. of Income Tax, Gem Granites v. Cammr. of Income Tax,
(2005) 1 SCC 229 , p. 296; C. Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd.,
C. Gupta v. Glaxo-Smithkline Pharmaceuticals Ltd.,
(2007) 7 SCC 171 [
LNIND 2007 SC 760 ] (Broadening of the definition of ‘Workman’ by amendment in the
Industrial Disputes Act, 1947 is not retrospective to affect the dismissal of an employee who was not a workman
on the date of his dismissal).
26 ‘A new law ought to regulate what is to follow, not the past’. Osborn: Concise Law Dictionary, p. 224.
27 Doolubdass Pettamberdass v. Ramloll Thackoorseydass, Doolubdass

Pettamberdass v. Ramloll Thackoorseydass, (1850) 5 MIA 109, pp. 126, 127 (Baron Parke Mr); K.C. Arora v. State of Haryana,
supra; K.C. Arora v. State of Haryana, supra; Zile Singh v. State of Haryana, supra.
Zile Singh v. State of Haryana, supra. See further K.S. Paripoornan v. State of Kerala, K.S.
Paripoornan v. State of Kerala,
JT 1994 (6) SC 182 , pp. 213, 214 :
AIR 1995 SC 1012 , p. 1034 :
(1994) 5 SCC 593 .
28 Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi, Delhi Cloth Mills & General
Co. Ltd. v. CIT, Delhi,
AIR 1927 PC 242 [
LNIND 1927 BOM 129 ], p. 244; citing Colonial Sugar Refining Co. v. Irving,
Colonial Sugar Refining Co. v. Irving,
(1905) AC 369 (PC); Jose De Costa v. Bascora Sadasiva Sinai Narcornim,
Jose De Costa v. Bascora Sadasiva Sinai Narcornim,
AIR 1975 SC 1843 [
LNIND 1976 SC 162 ], p. 1849 :
(1976) 2 SCC 917 [
LNIND 1976 SC 162 ]; K.C. Arora v. State of Haryana, supra. K.C. Arora v.
State of Haryana, supra.
29 Pulborough Parish School Board Election, Re, Pulborough Parish School Board
Election, Re, Bourke v. Nutt, Bourke v. Nutt,
(1894) 1 QB 725 , p. 737. See further Amireddi Raja Gopala Rao v. Amireddi
Sitharamamma, Amireddi Raja Gopala Rao v. Amireddi Sitharamamma,
AIR 1965 SC 1970 [
LNIND 1965 SC 46 ], p. 1973 :
Mr.Srikanth -
Page 49 of 103
(1965) 3 SCC 122 . (A construction that affects vested rights “should never be adop-ted if the
words are open to another construction.”) Shri Vijayalakshmi Rice Mills v. State of Andhra Pradesh, Shri
Vijayalakshmi Rice Mills v. State of Andhra Pradesh,
AIR 1976 SC 1471 [
LNIND 1976 SC 114 ], p. 1473 :
(1976) 3 SCC 37 [
LNIND 1976 SC 114 ]; K. Kapen Chako v. Provident Investment Company (P) Ltd.,
K. Kapen Chako v. Provident Investment Company (P) Ltd.,
AIR 1976 SC 2610 [
LNIND 1976 SC 411 ], p. 2617 :
(1977) 1 SCC 593 [
LNIND 1976 SC 411 ]; Govinddas v. Income-tax Officer, Govinddas v. Income-
tax Officer,
AIR 1977 SC 552 [
LNIND 1975 SC 666 ], p. 558 :
(1977) 1 SCC 234 [
LNIND 1976 SC 412 ]; Punjab Tin Supply Co. v. Central Government, Punjab
Tin Supply Co. v. Central Government,
(1984) 1 SCC 206 [
LNIND 1983 SC 300 ], p. 219 :
AIR 1984 SC 87 [
LNIND 1983 SC 300 ]; Mithilesh Kumari v. Prem Bahadur Khare, Mithilesh
Kumari v. Prem Bahadur Khare,
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ], pp. 1253, 1254 :
1989 (2) SCC 95 [
LNIND 1989 SC 96 ]; Pearce v. Secretary of State for Defence, Pearce v.
Secretary of State for Defence,
(1988) 2 All ER 348 , p. 372 (HL); Yew Bon Tew v. Kenderancen Bas Mara,
Yew Bon Tew v. Kenderancen Bas Mara,
(1982) 3 All ER 833 , p. 836 :
1983 AC 553 :
(1982) 2 WLR 1026 (PC); Plewa v. Chief Adjudication Officer, Plewa v.
Chief Adjudication Officer,
(1994) 3 All ER 323 , p. 328 (HL); R. Rajgopal Reddy v. Padminichandra, R.
Rajgopal Reddy v. Padminichandra,
1995(1) Scale 692 [
LNIND 1995 SC 176 ], pp. 702, 703 : 1995 AIR SCW 1422 :
(1955) 2 SCC 630 ; K. Gopinathan Nair v. State of Kerala, K. Gopinathan Nair
v. State of Kerala,
AIR 1997 SC 1925 [
LNIND 1997 SC 1771 ], p. 1939 :
1997 (4) JT 369 .
30 Reid v. Reid, Reid v. Reid,

(1886) 31 Ch D 402 , p. 408; Lauri v. Renad, Lauri v. Renad,
(1892) 3 Ch 402 , p. 421; Gardner & Co. v. Cone, Gardner & Co. v. Cone,
(1928) All ER Rep 458 , p. 459; United Provinces v. Atiqa Begum (Mt.), United
Provinces v. Atiqa Begum (Mt.),
AIR 1941 FC 16 , p. 47; S.S. Gadgil v. Lal & Co., S.S. Gadgil v. Lal & Co.,
AIR 1965 SC 171 [
LNIND 1964 SC 168 ], p. 177 :
(1964) 8 SCR 72 [
LNIND 1964 SC 168 ]; Mohd Idris v. Sat Narain, Mohd Idris v. Sat Narain,
AIR 1966 SC 1499 [
LNIND 1965 SC 370 ], p. 1501 :
(1966) 3 SCR 15 [
LNIND 1965 SC 370 ]; Arjan Singh v. State of Punjab, Arjan Singh v. State of
Punjab,
AIR 1970 SC 703 [
LNIND 1968 SC 303 ], p. 706 :
(1969) 2 SCR 347 [
LNIND 1968 SC 303 ]; Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. S.G. Mehta,
Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. S.G. Mehta,
Mr.Srikanth -
Page 50 of 103
AIR 1963 SC 1436 [

LNIND 1962 SC 498 ], p. 1446 : 1963 Supp (2) SCR 92; Sales Tax Officer, Ward II, Moradabad
v. Oriental Coal Corporation Moradabad, Sales Tax Officer, Ward II, Moradabad v. Oriental Coal Corporation
Moradabad,
AIR 1988 SC 648 [
LNIND 1988 SC 15 ], p. 653 : 1988 Supp SCC 308; Bhagat Ram Sharma v. Union of India,
Bhagat Ram Sharma v. Union of India,
AIR 1988 SC 740 [
LNIND 1987 SC 761 ], p. 746 : 1988 Supp SCC 30; Union of India v. Raghubir Singh,
Union of India v. Raghubir Singh,
AIR 1989 SC 1933 [
LNIND 1989 SC 328 ], p. 1948; K.S. Paripoornan v. State of Kerala, K.S.
AIR 1992 SC 1488 , p. 1494 :
(1992) 1 SCC 684 Affirmed by
Constitution Bench,
JT 1994(6) SC 182 , p. 219 :
AIR 1995 SC 1012 , p. 1038; R. Rajgopal Reddy v. Padminichandra, supra; R.
Rajgopal Reddy v. Padminichandra, supra; Dy. Collector v. S. Venkata Ramanaiah, Dy.
Collector v. S. Venkata Ramanaiah,
1995 (5) Scale 521 , 531, 532 :
AIR 1996 SC 224 [
LNIND 1995 SC 931 ], p. 232; Shyam Sunder v. Ram Kumar, Shyam Sunder v.
Ram Kumar,
AIR 2001 SC 2472 [
LNIND 2001 SC 1541 ], pp. 2481, 2482 :
(2001) 8 SCC 24 [
LNIND 2001 SC 1541 ]; Co-operative Company Ltd. v. Commissioner of Trade Tax U.P.,
Co-operative Company Ltd. v. Commissioner of Trade Tax U.P.,
(2007) 4 SCC 480 [
LNIND 2007 SC 520 ] (para 29) :
(2007) 6 JT 49 :
(2007) 5 SLT 400 .
31 Union of India v. Raghubir Singh, Union of India v. Raghubir Singh,

AIR 1989 SC 1933 [
LNIND 1989 SC 328 ], p. 1948 :
1989 (2) SCC 754 [
LNIND 1989 SC 328 ]; K.S. Paripoornan v. State of Kerala, supra. K.S.
Paripoornan v. State of Kerala, supra. Principles relating to retrospectivity stated above were reiterated and reference was made to
pages 474 and 475 of 10th edition of this book in S.L. Srinivas Jute Twine Mills (P) Ltd. v. Union of India, S.L.
Srinivas Jute Twine Mills (P) Ltd. v. Union of India,
(2006) 2 SCC 740 [
LNIND 2006 SC 98 ] (para 18) :
(2006) 2 JT 397 :
(2006) 2 LLJ 225 [
LNIND 2006 SC 98 ] and MRF Ltd. v. Asst. Commissioner (Assessment) Sales Tax,
MRF Ltd. v. Asst. Commissioner (Assessment) Sales Tax,
(2006) 8 SCC 702 [
LNIND 2006 SC 754 ] (para 28) :
(2006) 12 JT 244 .
32 Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama, Union of India v.
Filip Tiago De Gama of Vedem Vasco De Gama,
AIR 1990 SC 981 [
LNIND 1989 SC 598 ], p. 985 :
(1990) 1 SCC 277 [
LNIND 1989 SC 598 ].
Mr.Srikanth -
Page 51 of 103
33 Barber v. Pigden, Barber v. Pigden, (1937) 1 All ER, 126 :

(1973) 1 KB 664 (CA) (Scott, L.J.); Carson v. Carson, Carson v. Carson,
(1964) 1 All ER 681 , p. 687.
34 L’Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd.,

L’Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd.,
(1994) 1 All ER 20 , p. 29(J) :
(1994) 1 AC 486 (HL); United States Government v. Montgomery, United
States Government v. Montgomery,
(2001) 1 All ER 815 , p. 825 (d) (HL). The doctrine of fairness in the context of retrospectivity
was also referred to by Sinha J. in Vijay v. State of Maharashtra, Vijay v. State of Maharashtra,
(2006) 6 SCC 289 [
LNIND 2006 SC 556 ] :
(2006) 7 JT 112 . See further pp. 501-503, post, for these cases.
35 Mithilesh Kumari v. Prem Bihari Khare, Mithilesh Kumari v. Prem Bihari Khare,
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ], p. 1254 :
1989 (2) SCC 95 [
LNIND 1989 SC 96 ]; Zile Singh v. State of Haryana, Zile Singh v. State of
Haryana,
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ], p. 9 :
AIR 2004 SC 32 [
LNIND 2003 SC 936 ](9th Edn., p. 440 of this book is referred). See further text and notes 26 to
31 (p. 508) and 50 to 54 (p. 529).
36 R. v. St. Mary White Chapels (Inhabitants), R. v. St. Mary White Chapels

(Inhabitants),
(1848) 12 QB 120 , p. 127; Master Ladies’ Tailors’ Organisation v. Ministry of Labour,
Master Ladies’ Tailors’ Organisation v. Ministry of Labour,
(1950) 2 All ER 525 , p. 527; Rao Shiv Bahadur Singh v. State of U.P., Rao Shiv
Bahadur Singh v. State of U.P.,
AIR 1953 SC 394 [
LNIND 1953 SC 68 ], p. 398 :
1953 SCR 1188 [
LNIND 1953 SC 68 ]; Union of India v. Madan Gopal, Union of India v. Madan
Gopal,
AIR 1954 SC 158 [
LNIND 1953 SC 117 ], p. 163 :
1954 SCR 541 [
LNIND 1953 SC 117 ]; State of Bombay v. Vishnu Ramchandra, State of
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], p. 310 :
(1961) 2 SCR 26 [
LNIND 1960 SC 239 ]; Sajjan Singh v. State of Punjab, Sajjan Singh v. State of
Punjab,
AIR 1964 SC 464 [
LNIND 1963 SC 203 ], p. 468 :
(1964) 4 SCR 630 [
LNIND 1963 SC 203 ]; Kapur Chand v. B.S. Grewal, Kapur Chand v. B.S.
Grewal,
AIR 1965 SC 1491 [
LNIND 1964 SC 305 ], p. 1493 :
(1965) 2 SCR 36 [
LNIND 1964 SC 305 ]; Sree Bank Ltd. v. Sarkar Dutt Roy & Co., Sree Bank
Ltd. v. Sarkar Dutt Roy & Co.,
AIR 1966 SC 1953 [
LNIND 1965 SC 127 ], p. 1957 :
1965 (3) SCR 708 [
Mr.Srikanth -
Page 52 of 103
LNIND 1965 SC 127 ]; T.K. Lakshmana v. State of Madras, T.K. Lakshmana v.

State of Madras,
AIR 1968 SC 1489 [
LNIND 1968 SC 85 ], p. 1494 :
1968 (3) SCR 542 [
LNIND 1968 SC 85 ]; Customs and Excise Commissioners v. Thorn Electrical Industries Ltd.,
Customs and Excise Commissioners v. Thorn Electrical Industries Ltd.,
(1975) 1 All ER 439 , p. 447 (QBD); D.S. Nakara v. Union of India, D.S.
Nakara v. Union of India,
AIR 1983 SC 130 [
LNIND 1982 SC 208 ], p. 143 :
(1983) 1 SCC 305 [
LNIND 1982 SC 208 ]; R.L. Marwaha v. Union of India, R.L. Marwaha v.
Union of India,
(1987) 4 SCC 31 [
LNIND 1987 SC 576 ], pp. 37, 38 : 1987 SCC (L&S) 350;
AIR 2000 SC 1976 [
LNIND 2000 SC 475 ], p. 1980 :
(2000) 3 SCC 607 [
LNIND 2000 SC 475 ].
37 Bishan Narain Misra v. State of U.P., Bishan Narain Misra v. State of U.P.,
AIR 1965 SC 1567 [
LNIND 1964 SC 261 ]:
1965 (1) SCR 693 [
LNIND 1964 SC 261 ]; Punjab University v. Subash Chander, Punjab
University v. Subash Chander,
(1984) 3 SCC 603 [
LNIND 1984 SC 159 ], pp. 611, 612:
AIR 1984 SC 1415 [
LNIND 1984 SC 159 ]. See further Mohinder Kumar v. State of Haryana,
Mohinder Kumar v. State of Haryana,
(1985) 4 SCC 221 [
LNIND 1985 SC 287 ], p. 231:
AIR 1986 SC 244 [
LNIND 1985 SC 287 ], (a validating Act); Dena Bank v. Bhikhabhai Prabhudas Parekh & Co.,
Dena Bank v. Bhikhabhai Prabhudas Parekh & Co.,
AIR 2000 SC 3654 [
LNIND 2000 SC 721 ], p. 3660:
(2000) 5 SCC 694 [
LNIND 2000 SC 721 ] (The passage in the text from this book is quoted from 7th edition p. 369).
38 K.S. Paripoornan v. State of Kerala, K.S. Paripoornan v. State of Kerala,

JT 1994 (6) SC 182 , pp. 213, 214:
AIR 1995 SC 1012 , pp. 1034, 1035.
39 Ibid. See further, Land Acquisition Officer-cum-DSWO A.P. v. B.V. Reddy, Land
Acquisition Officer-cum-DSWO A.P. v. B.V. Reddy,
AIR 2002 SC 1045 [
LNIND 2002 SC 123 ]:
(2002) 3 SCC 463 [
LNIND 2002 SC 123 ] (
section 25 of the Land Acquisition Act before amendment in 1984 restricting compensation to not more than
claimed was a substantive provision. Amendment removing this bar cannot be construed to be retrospective even to apply to a
pending appeal).
40 Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar, Maharaja Chintamani

Saran Nath Shahdeo v. State of Bihar,
JT 1999 (8) SC 45 [
LNIND 1999 SC 901 ],p. 56:
Mr.Srikanth -
Page 53 of 103
AIR 1999 SC 3609 [

LNIND 1999 SC 901 ], p. 3614 :
(1999) 8 SCC 16 [
LNIND 1999 SC 901 ].
41 Padma Srinivasan v. Premier Insurance Co. Ltd., Padma Srinivasan v. Premier

Insurance Co. Ltd.,
AIR 1982 SC 836 [
LNIND 1982 SC 46 ]; Maitri Koley v. New India Assurance Co., Maitri Koley v.
New India Assurance Co.,
(2003) 8 SCC 718 [
LNIND 2003 SC 947 ] :
(2003) 9 JT 159 .
42 Ibid. For effect of ‘substitution’, see text and notes 87 to 89, p. 638, post.
43 Birmingham City Council v. Walker, Birmingham City Council v. Walker,

(2007) 3 All ER 445 , p. 449 (para 11) (HL).
44 West v. Gwynne, West v. Gwynne,

(1911) 2 Ch 1 , p. 11, 12; Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil,
Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil,
AIR 1966 SC 1758 [
LNIND 1961 SC 368 ], p. 1761. See also Shri Bakul Oil Industries v. State of Gujarat,
Shri Bakul Oil Industries v. State of Gujarat,
(1987) 1 SCC 31 [
LNIND 1986 SC 432 ], p. 37:
AIR 1987 SC 122 : (1987) 165 ITR 6.
45 Duke of Devonshire v. Barrow Haematite Steel Co. Ltd., Duke of Devonshire v.

Barrow Haematite Steel Co. Ltd.,
(1877) 2 QBD 286 , p. 289; Indramani (Dr.) v. W.R. Natu, Indramani (Dr.) v.
W.R. Natu,
AIR 1963 SC 274 [
LNIND 1962 SC 159 ], p. 286 :
(1963) 1 SCR 173 [
LNIND 1962 SC 82 ]; Govinddas v. Income-tax Officer, Govinddas v. Income-
tax Officer,
AIR 1977 SC 552 [
LNIND 1975 SC 666 ], p. 558:
(1976) 1 SCC 906 [
LNIND 1975 SC 666 ]; Mohd. Rashid Ahmad v. State of U.P., Mohd. Rashid
Ahmad v. State of U.P.,
AIR 1979 SC 592 [
LNIND 1978 SC 393 ], p. 598 :
(1979) 1 SCC 596 [
LNIND 1978 SC 393 ].
46 Gardner & Co. v. Cone, Gardner & Co. v. Cone,

(1928) All ER Rep 458 , p. 461.
47 Gardner v. Lucas, Gardner v. Lucas,

(1878) 3 AC 582 , p. 603 (HL); Delhi Cloth & General Mills Co. Ltd. v. CIT, Delhi,
Delhi Cloth & General Mills Co. Ltd. v. CIT, Delhi,
AIR 1927 PC 242 [
Mr.Srikanth -
Page 54 of 103
LNIND 1927 BOM 129 ], p. 244; Jose De Costa v. Bascora Sadashiva Sinai Narcornim,
Jose De Costa v. Bascora Sadashiva Sinai Narcornim,
AIR 1975 SC 1843 [
LNIND 1976 SC 162 ], p. 1849 :
(1976) 2 SCC 917 [
LNIND 1976 SC 162 ]; Gurbachan Singh v. Satpal Singh, Gurbachan Singh v.
Satpal Singh,
AIR 1990 SC 209 [
LNIND 1989 SC 475 ], p. 219 :
(1990) 1 SCC 445 [
LNIND 1989 SC 475 ]; Hitendra Vishnu Thakur v. State of Maharashtra,
Hitendra Vishnu Thakur v. State of Maharashtra,
AIR 1994 SC 2623 [
LNIND 1994 SC 572 ], p. 2641 (para 25(i) :
(1994) 4 SCC 602 [
LNIND 1994 SC 572 ].
48 Blyth v. Blyth, Blyth v. Blyth,

(1966) 1 All ER 524 , p. 535 :
1966 AC 643 (HL).
49 A.G. v. Vernazza, A.G. v. Vernazza,

(1960) 3 All ER 97 , p. 100 :
1960 AC 965 :
(1960) 3 WLR 466 (HL); K. Eapin Chako v. Provident Fund Investment Company (P) Ltd.,
K. Eapin Chako v. Provident Fund Investment Company (P) Ltd.,
AIR 1976 SC 2610 [
LNIND 1976 SC 411 ], p. 2617 :
(1977) 1 SCC 583 .
50 Anant Gopal Sheorey v. State of Bombay, Anant Gopal Sheorey v. State of Bombay,
AIR 1958 SC 915 [
LNIND 1958 SC 80 ], p. 917 :
1959 SCR 919 [
LNIND 1958 SC 80 ]. See further Union of India v. Sukumar Pyne, Union of
India v. Sukumar Pyne,
AIR 1966 SC 1206 [
LNIND 1965 SC 239 ]:
1966 (2) SCR 34 [
LNIND 1965 SC 239 ]; Tikaram & Sons v. Commr. of Sales Tax, U.P., Tikaram
& Sons v. Commr. of Sales Tax, U.P.,
AIR 1968 SC 1286 [
LNIND 1968 SC 80 ], p. 1292:
(1968) 3 SCR 512 [
LNIND 1968 SC 80 ]; State of Madras v. Lateef Hamid & Co., State of Madras
v. Lateef Hamid & Co.,
AIR 1972 SC 1781 [
LNIND 1971 SC 440 ], p. 1784:
(1971) 3 SCC 560 [
LNIND 1971 SC 440 ]; Balumal Jamnadas Batra v. State of Maharashtra,
Balumal Jamnadas Batra v. State of Maharashtra,
AIR 1975 SC 2083 : (1975) 4 SCC 645. (An enactment relating to burden of proof like
section 123, Customs Act, 1962 , would be a matter of procedure); Rai Bahadur Seth Sriram Durgaprasad v.
Director of Enforcement, Rai Bahadur Seth Sriram Durgaprasad v. Director of Enforcement,
(1987) 3 SCC 27 [
LNIND 1987 SC 448 ], pp. 33, 34 :
AIR 1987 SC 1364 [
LNIND 1987 SC 448 ]. (
Section 113A, Evidence Act, 1872 inserted in the Act by Act 46 of 1983 providing for presumption as to abetment
of suicide by a married woman is a procedural provision and applies to trial of offences committed earlier to the insertion of the
section); Gurbachan Singh v. Satpal Singh, Gurbachan Singh v. Satpal Singh,
Mr.Srikanth -
Page 55 of 103
AIR 1990 SC 209 [

LNIND 1989 SC 475 ], p. 219 :
(1990) 1 SCC 445 [
LNIND 1989 SC 475 ].
51 MAXWELL: Interpretation of Statutes, 11th Edition, p. 216.
52 See cases in footnote 50, supra.
53 Sudhir G. Angur v. M. Sanjeev, Sudhir G. Angur v. M. Sanjeev,

(2006) 1 SCC 141 [
LNIND 2005 SC 862 ] (para 1):
AIR 2006 SC 351 [
LNIND 2005 SC 862 ].
54 Hitendra Vishnu Thakur v. State of Maharashtra, Hitendra Vishnu Thakur v. State

of Maharashtra,
AIR 1994 SC 2623 [
LNIND 1994 SC 572 ], p. 2641 (para 25) :
(1994) 4 SCC 602 [
LNIND 1994 SC 572 ]; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar,
Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar,
JT 1999 (8) SC 45 [
LNIND 1999 SC 901 ], p. 56:
AIR 1999 SC 3609 [
LNIND 1999 SC 901 ], p. 3614 :
(1999) 8 SCC 16 [
Kumar,
AIR 2001 SC 2472 [
LNIND 2001 SC 1541 ], p. 2482:
(2001) 8 SCC 24 [
LNIND 2001 SC 1541 ]. For forum see text and notes 55-56 below; for limitation, see title 2(d);
for appeal, see titles 2(j) and 2(k).
55 See text and notes 33 and 34, p. 542.
56 New India Insurance Co. Ltd. v. Shanti Misra (Smt.), New India Insurance Co. Ltd.
v. Shanti Misra (Smt.),
AIR 1976 SC 237 : (1975) 2 SCC 840.
57 B. Narhari Shivram Shet Narvekar v. Pannalal Umediram, B. Narhari Shivram Shet

Narvekar v. Pannalal Umediram,
AIR 1977 SC 164 [
LNIND 1976 SC 15 ]:
(1976) 3 SCC 203 [
LNIND 1976 SC 15 ].
58 Kuwait Minister of Public v. Sir Frederick Snow & Partners, Kuwait Minister of
Public v. Sir Frederick Snow & Partners,
(1984) 1 All ER 733 , p. 737 (HL).
Mr.Srikanth -
Page 56 of 103
59 Ibid.
60 Employees’ State Insurance Corporation v. Dwarka Nath Bhargawa, Employees’

State Insurance Corporation v. Dwarka Nath Bhargawa,
AIR 1997 SC 3518 [
LNIND 1997 SC 1107 ], p. 3519 :
1997 (7) SCC 131 [
LNIND 1997 SC 1107 ].
61 Dilip v. Mohd. Azizul Haq., Dilip v. Mohd. Azizul Haq.,

AIR 2000 SC 1976 [
LNIND 2000 SC 475 ], pp. 1979, 1980 :
(2000) 3 SCC 607 [
LNIND 2000 SC 475 ].
62 See title 2(d) Statutes of limitation, pp. 509 to 511.
64 Maxwell v. Murphy, Maxwell v. Murphy,

(1957) 96 CLR 261 , p. 267 applied in Rodway v. Queen, Rodway v. Queen,
(1990) 64 ALJR 305, pp. 306, 307 (HC Australia).
65
(1991) 2 All ER 712 : (1992) 4 Admin LR 57 (CA).
66 Ibid, p. 714. See further the dissenting opinion of SAHAI J. in K.S. Paripoornan v. State of Kerala,
K.S. Paripoornan v. State of Kerala,
JT 1994 (6) SC 182 , pp. 227, 228 :
AIR 1995 SC 1012 , pp. 1044, 1045 :
(1994) 5 SCC 593 .
67
(1994) 1 All ER 20 , p. 30 :
(1994) 1 AC 486 (HL).
68 Ibid.
69 Ibid. See further, Wilson v. First County Trust Ltd., Wilson v. First County Trust
Ltd.,
(2003) 4 All ER 97 , p. 155 (HL).
70
(1994) 3 All ER 323 :
(1995) 1 AC 249 :
(1994) 3 WLR 317 (HL).
Mr.Srikanth -
Page 57 of 103
71 Ibid, p. 328.
72 Ibid, p. 329.
73 Ibid.
74
(1998) 1 All ER 997 (CA).
75 Ibid, p. 1006. See further title 2(g) statutes prescribing posterior disqualification on past conduct, pp.
519 to 521.
76
(2006) 6 SCC 289 [
LNIND 2006 SC 556 ] :
(2006) 7 JT 112 .
77 Ibid.
78 For example, see P. Ganeshwar Rao v. State of Andhra Pradesh, P. Ganeshwar Rao v. State of
Andhra Pradesh,
AIR 1988 SC 2068 [
LNIND 1988 SC 434 ], p. 2092 : 1988 Supp SCC 740 :
(1988) 4 SLR 548 (Amendment in recruitment rules for ‘vacancies arising’ was held to be not
applicable to pre-amendment vacancies. In the absence of the word ‘arising’ the amendment would have applied even to existing
vacancies). Vinay Kumar Shukal v. Lakhpat Ram, Vinay Kumar Shukal v. Lakhpat Ram,
AIR 1990 SC 2171 [
LNIND 1990 SC 446 ]:
(1990) 4 SCC 246 [
LNIND 1990 SC 446 ] (The words ‘as may be’ generally denote a future event.)
79 Ex parte, Pratt,
(1884) 12 QBD 334 ; referred to in State of Bombay v. Vishnu Ram Chandra,
State of Bombay v. Vishnu Ram Chandra,
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], pp. 309, 310 :
1961 (2) SCR 26 [
LNIND 1960 SC 239 ].
80 State of Bombay v. Vishnu Ram Chandra, State of Bombay v. Vishnu Ram Chandra,
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], p. 310. For full discussion of this case see text and notes 95, 1 and 2, pp.
520-21. See also Boucher Pierre Andre v. Superintendent, Central jail, Tihar, New Delhi, Boucher Pierre
Andre v. Superintendent, Central jail, Tihar, New Delhi,
AIR 1975 SC 164 [
LNIND 1974 SC 382 ], p. 166 :
(1975) 1 SCC 192 [
LNIND 1974 SC 382 ]. For discussion of this case, see text and note 9, p. 522. See further
Sahebram v. Financial Commissioner, Sahebram v. Financial Commissioner,
AIR 1971 SC 198 [
LNIND 1970 SC 73 ]:
(1970) 1 SCC 524 [
Mr.Srikanth -
Page 58 of 103
LNIND 1970 SC 73 ] (The words ‘has been in continuous occupation for six years’ construed).
But the words ‘has been’ may be used in the sense of ‘shall have been’ denoting only events taking place after the coming into
force of the Act; Athlumney, Ex parte, Wilson, In re, Athlumney, Ex parte, Wilson, In re,
(1898) 2 QB 547 :
(1895-9) All ER 329 referred to in Workmen of Firestone Tyre & Rubber Co. v. Management,
Workmen of Firestone Tyre & Rubber Co. v. Management,
AIR 1973 SC 1227 [
LNIND 1973 SC 430 ], p. 1248 :
(1973) 1 SCC 813 [
LNIND 1973 SC 430 ]; Secretary, Regional Transport Authority v. D.P. Sharma,
Secretary, Regional Transport Authority v. D.P. Sharma,
AIR 1989 SC 509 [
81 T.K. Lakshmana v. State of Madras, T.K. Lakshmana v. State of Madras,

AIR 1968 SC 1489 [
LNIND 1968 SC 85 ], p. 1494 :
1968 (3) SCR 542 [
LNIND 1968 SC 85 ].
82 Lala Dunichand v. Anarkali (Mt.), Lala Dunichand v. Anarkali (Mt.),

AIR 1946 PC 173 .
83 S.N. Kamble v. Sholapur Borough Municipality, S.N. Kamble v. Sholapur Borough

Municipality,
AIR 1966 SC 538 [
LNIND 1965 SC 463 ], p. 543 :
1966 (1) SCR 618 [
LNIND 1965 SC 463 ].
84 J.N. Sharma v. H.H. Vijaykuverba, J.N. Sharma v. H.H. Vijaykuverba,

AIR 1966 SC 1074 : 1966 (2) SCR 618.
85 Anand Gajpati Raju v. P.V.G. Raju, Anand Gajpati Raju v. P.V.G. Raju,
JT 2000 (4) SC 590 [
LNIND 2000 SC 530 ], p. 593 :
(2000) 4 SCC 539 [
LNIND 2000 SC 530 ] :
AIR 2000 SC 1886 [
LNIND 2000 SC 530 ](Construing the words ‘judicial authority before which an action is
brought in a matter which is the subject of an arbitration agreement’ in
section 8(1) of the Arbitration Act 1996 , it was held that an arbitration agreement need not be in existence when
the action is brought and they will also cover a case where the arbitration agreement comes into existence after the action is
brought.)
86 Muhammad Abdus Samad v. Qurban Hussain, Muhammad Abdus Samad v. Qurban

Hussain, ILR 26 All 119, pp. 129, 130 (PC).
87 Lala Dunichand v. Anarkali (Mt.), Lala Dunichand v. Anarkali (Mt.),

AIR 1946 PC 173 ; Fateh Bibi v. Charan Dass, Fateh Bibi v. Charan Dass,
AIR 1970 SC 789 [
LNIND 1970 SC 120 ]:
(1970) 3 SCC 658 .
Mr.Srikanth -
Page 59 of 103
1 Ibid.
2 Ibid.
3 Eramma v. Veerupana, Eramma v. Veerupana,

AIR 1966 SC 1879 [
LNIND 1965 SC 318 ]:
1966 (2) SCR 626 [
LNIND 1965 SC 318 ].
4 Daya Singh v. Dhan Kuar, Daya Singh v. Dhan Kuar,

AIR 1974 SC 665 [
LNIND 1974 SC 90 ]:
(1974) 1 SCC 696 [
LNIND 1974 SC 89 ].
5 See cases in footnote 87, supra.
6 Daya Singh v. Dhan Kuar, Daya Singh v. Dhan Kuar,

AIR 1974 SC 665 [
LNIND 1974 SC 90 ]:
(1974) 1 SCC 696 [
LNIND 1974 SC 89 ].
7 Kotturuswami v. Veeravva, Kotturuswami v. Veeravva,

AIR 1959 SC 577 [
LNIND 1958 SC 172 ], pp. 581, 582 : 1959 Supp (1) SCR 968; Munnalal v. Rajkumar,
Munnalal v. Rajkumar,
AIR 1962 SC 1493 [
8 Kotturuswami v. Veeravva, supra, Kotturuswami v. Veeravva, supra, p. 581; [

approving Lukai (Mt.) v. Niranjan, Lukai (Mt.) v. Niranjan,
AIR 1958 MP 160 [
LNIND 1958 MP 46 ](FB); and Harak Singh v. Kailash Singh, Harak Singh v.
Kailash Singh,
AIR 1958 Pat 581 (FB)]; Munshi Singh v. Sohanbai (Smt.), Munshi Singh v.
Sohanbai (Smt.),
AIR 1989 SC 1179 [
LNIND 1989 SC 149 ]:
(1989) 2 SCC 265 [
LNIND 1989 SC 149 ]. Even if the alience be a female, she does not get full rights of ownership;
Kalawati Bai v. Soiryabai, Kalawati Bai v. Soiryabai,
AIR 1991 SC 1581 [
LNIND 1991 SC 254 ]:
(1991) 3 SCC 410 [
LNIND 1991 SC 254 ]; Naresh Kumari v. Sakshi Lal, Naresh Kumari v. Sakshi
Lal,
AIR 1999 SC 928 [
LNIND 1999 SC 109 ]:
(1999) 2 SCC 656 [
LNIND 1999 SC 109 ].
Mr.Srikanth -
Page 60 of 103
9 Jagannathan Pillai v. Kunjithapadam Pillai, Jagannathan Pillai v. Kunjithapadam

Pillai,
(1987) 2 SCC 572 [
LNIND 1987 SC 406 ] :
AIR 1987 SC 1493 [
LNIND 1987 SC 406 ].
10 Velamuri Vekata Sivaprasad v. Kothuri Venkateshwarlu, Velamuri Vekata

Sivaprasad v. Kothuri Venkateshwarlu,
JT 1999 (9) SC 242 [
LNIND 1999 SC 1047 ]:
(2000) 2 SCC 139 [
LNIND 1999 SC 1047 ] :
AIR 2000 SC 434 [
LNIND 1999 SC 1047 ]. For interpretation of section 14, see further text and notes 7 and 8, pp.
840-41.
11 Amireddi Raja Gopala Rao v. Amireddi Shitharamamma, Amireddi Raja Gopala

Rao v. Amireddi Shitharamamma,
AIR 1965 SC 1970 [
LNIND 1965 SC 46 ], p. 1973 :
1965 (3) SCR 122 [
LNIND 1965 SC 46 ].
12 Sobhag Singh v. Jai Singh, Sobhag Singh v. Jai Singh,

AIR 1968 SC 1328 [
LNIND 1968 SC 19 ], p. 1330 :
1968 (2) SCR 848 [
LNIND 1968 SC 19 ].
13 Thakoor Hurdeo Bux v. Thakoor Jowahir Singh, Thakoor Hurdeo Bux v. Thakoor
Jowahir Singh,
(1879) 6 IA 161 , p. 166; Hassanji & Sons v. State of M.P., Hassanji & Sons v.
State of M.P.,
AIR 1965 SC 470 , p. 472 (para 9) : 1963 Supp (3) SCR 235, (Mineral Concession Rules, 1949,
are not retrospective); Dy. Collector v. S. Venkata Ramanaiah, Dy. Collector v. S. Venkata Ramanaiah,
1995 (5) Scale 521 , pp. 531, 532 :
(1995) 6 SCC 545 [
LNIND 1995 SC 931 ].
14 Mata Prasad v. Nageshwari Sahai, Mata Prasad v. Nageshwari Sahai,

AIR 1925 PC 272 , p. 278.
15 Ram Kristo v. Dhankisto, Ram Kristo v. Dhankisto,

AIR 1969 SC 204 [
LNIND 1968 SC 157 ], p. 208 :
1969 (1) SCR 342 [
LNIND 1968 SC 157 ].
16 Guruputrappa Mallappa Harkune v. Tahsildar, Guruputrappa Mallappa Harkune v.

Tahsildar,
AIR 1992 SC 92 : 1993 Supp (1) SCC 496.
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Page 61 of 103
17 Ahmad Raza v. Abid Husain, Ahmad Raza v. Abid Husain, ILR 48 All 494, p. 501
(PC).
18 Shrinath Das v. Khetter Mohan Singh, Shrinath Das v. Khetter Mohan Singh, ILR
16 Cal 693, p. 701 (PC).
19 Namdeo Lokman v. Narbadabai, Namdeo Lokman v. Narbadabai,

AIR 1953 SC 228 [
LNIND 1953 SC 25 ], p. 230 :
1953 SCR 1009 [
LNIND 1953 SC 25 ]. See also Maharaja of Jeypore v. Rukmini Pattamahadevi,
Maharaja of Jeypore v. Rukmini Pattamahadevi, ILR 42 Mad 589, pp. 597, 598 :
AIR 1919 PC 1 : 46 IA 109 (PC).
20 Maneklal Mansukhbhai v. H.J. Ginwalla & Sons, Maneklal Mansukhbhai v. H.J.

Ginwalla & Sons,
AIR 1950 SC 1 [
LNIND 1950 SC 13 ], p. 4 :
1950 SCR 75 .
21 Doolubdass Pettamberdass v. Ramloll Thackoorseydas, Doolubdass Pettamberdass

v. Ramloll Thackoorseydas, (1850) 5 MIA 109, pp. 126, 127; Moon v. Durden, Moon v. Durden,
(1848) 2 Ex 22 ; Herschell v. Porter, Herschell v. Porter,
(1923) 2 KB 193 .
22 State of Kerala v. Philomina, State of Kerala v. Philomina,

AIR 1976 SC 2363 [
LNIND 1976 SC 282 ], p. 2367 :
1976 (4) SCC 314 [
LNIND 1976 SC 282 ].
23 See Satyabrata v. Mugneeram Bangur & Co. (P.) Ltd., Satyabrata v. Mugneeram
Bangur & Co. (P.) Ltd.,
AIR 1954 SC 44 [
LNIND 1953 SC 101 ]:
1954 SCR 310 [
LNIND 1953 SC 101 ]; Mugneeram Bangur and Co. (P) Ltd. v. Gurbachan Singh,
Mugneeram Bangur and Co. (P) Ltd. v. Gurbachan Singh,
AIR 1965 SC 1523 [
LNIND 1964 SC 356 ]:
(1965) 2 SCR 630 [
LNIND 1964 SC 356 ]; Halsbury's Laws of England, Vol. 8 (3rd Edition), p. 184.
24 Duke of Devonshire v. Barrow Haematite Steel Co. Ltd., Duke of Devonshire v.

Barrow Haematite Steel Co. Ltd.,
(1877) 2 QBD 286 , p. 289; referred to in Indramani (Dr.) v. W.R. Natu,
Indramani (Dr.) v. W.R. Natu,
AIR 1963 SC 274 [
LNIND 1962 SC 159 ], p. 286 :
(1963) 1 SCR 721 [
LNIND 1962 SC 159 ]; See further Gardner & Co. v. Cone, Gardner & Co. v.
Cone,
(1928) All ER Rep 458 , p. 461.
Mr.Srikanth -
Page 62 of 103
25 ndramani (Dr.) v. W.R. Natu, ndramani (Dr.) v. W.R. Natu,

AIR 1963 SC 274 [
LNIND 1962 SC 159 ], p. 286 :
(1963) 1 SCR 721 [
LNIND 1962 SC 159 ].
26 Mithilesh Kumari v. Prem Bihari Khare, Mithilesh Kumari v. Prem Bihari Khare,
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ], pp. 1254, 1255 :
1989 (2) SCC 95 [
LNIND 1989 SC 96 ].
27 Ibid. This case has been severely criticised and shown to be erroneous by Seervai; see Constitutional
law of india, 4th Edition, Vol. 1, p. 233 (para 2.125). Mithilesh Kumari*'s case followed in Om Prakash v. Jai Prakash,
Om Prakash v. Jai Prakash,
AIR 1992 SC 885 [
LNIND 1992 SC 14 ]:
(1992) 2 SCC 42 [
LNIND 1992 SC 96 ].
28 R. Rajgopal Reddy v. Padminichadra Chandrasekharan, R. Rajgopal Reddy v.

Padminichadra Chandrasekharan,
1995 (1) Scale 629 : 1995 AIR SCW 1422 :
AIR 1996 SC 238 [
LNIND 1995 SC 176 ].
29 Ibid, pp. 698, 699.
30 Ibid, p. 700.
31 JT 1997 “9” SC 179, pp. 182, 183 :

AIR 1998 SC 310 [
LNIND 1997 SC 1844 ], pp. 312-14 : “1977” 11 SCC 714. See further G. G. Mahalingappa v.
G.M. Savitha, G. Mahalingappa v. G.M. Savitha, “2005” 6 SCC 441, pp. 448, 449.
32 Trimbak Damodhar Rajpurker v. Assaram Hiraman Patil, Trimbak Damodhar

Rajpurker v. Assaram Hiraman Patil,
AIR 1966 SC 1758 [
LNIND 1961 SC 368 ]: 1962 Supp “1” SCR 700.
33 Bai Achhuba v. Kalidas, Bai Achhuba v. Kalidas,

AIR 1967 SC 651 [
LNIND 1963 SC 284 ]: 1964 “5” SCR 853.
34 Union of India v. Steel Stock Holders Syndicate, Union of India v. Steel Stock
Holders Syndicate,
AIR 1976 SC 879 [
LNIND 1976 SC 67 ], p. 894 : “1976” 3 SCC 108.
35 Gardner & Co. v. Cone, Gardner & Co. v. Cone, “1928” All ER Rep 458.
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Page 63 of 103
36 Bhrigunandan Prasad v. Appellate Officer, Bhrigunandan Prasad v. Appellate

Officer,
AIR 1966 SC 1683 [
37 C. Beepathuma v. V. Shankaranarayana, C. Beepathuma v. V. Shankaranarayana,

AIR 1965 SC 241 , p. 245 : “1964” 5 SCR 836; Shahidganj “Masjid” v. S.G.P. Committee,
Shahidganj “Masjid” v. S.G.P. Committee,
AIR 1940 PC 116 , p. 121 : “1940” Lah 393; Sonilal v. Kanhaiyalal, Sonilal v.
Kanhaiyalal, 19 IC 291, p. 294 “PC” “Suit instituted when Act XV of 1877 was in force; acknowledgment relied upon to extend
limitation made when earlier Act was in force; held, Act XV of 1877 applied to the suit and acknowledgment to be effective to
extend limitation must conform to section 19 of that Act”. See further Allah Rakhi “Mt.” v. Shah Mohammad,
Allah Rakhi “Mt.” v. Shah Mohammad,
AIR 1934 PC 77 , p. 78 : 61 IA 50 “pending proceedings are not affected by a change in the law
of limitation”; Ramprasad v. Vijay Kumar, Ramprasad v. Vijay Kumar,
AIR 1967 SC 278 [
LNIND 1966 SC 119 ], p. 283 “para 13” : 1966 Supp SCR 188.
38 Hari Nath Chatterjee v. Mothur Mohun Goswamy, Hari Nath Chatterjee v. Mothur
Mohun Goswamy, ILR 21 Cal 8 “PC”; R.C. Jall v. Union of India, R.C. Jall v. Union of India,
AIR 1962 SC 1281 [
LNIND 1962 SC 92 ], p. 1284 : 1962 Supp “3” SCR 436. “The statute of limitation assumes the
existence of a cause of action and does not define or create one”. See further Bhimsen Gupta v. Bishwanath Prasad Gupta,
Bhimsen Gupta v. Bishwanath Prasad Gupta, “2004” 4 SCC 95 :
AIR 2004 SC 1770 [
LNIND 2004 SC 139 ](Expiry of limitation for a suit only bars the remedy, it does not extinguish
the right; for example, arrears of rent for recovery of which limitation period has expired still remains ‘lawfully payable’ though not
‘lawfully recoverable’ and can sustain a suit for ejectment on the ground of arrears of rent).
39 Appasami Odayar v. Subromanya Odayar, Appasami Odayar v. Subromanya

Odayar, ILR 12 Mad 26, p. 33 “PC”; Mahesh Narain Munshi v. Taruck Nath Moitra, Mahesh Narain Munshi v.
Taruck Nath Moitra, ILR 20 Cal 487, p. 497 “PC”; M. Ramyya v. U. Lakshmayya, M. Ramyya v. U. Lakshmayya,
AIR 1942 PC 54 , p. 56. See further S.S. Gadgil v. Lal & Co., S.S. Gadgil v.
Lal & Co.,
AIR 1965 SC 171 [
LNIND 1964 SC 168 ], pp. 175, “para 8” : “1964” 8 SCR 72; Yew Bon Tew v. Kenderaan Bas
Mara, Yew Bon Tew v. Kenderaan Bas Mara, “1982” 3 All ER 833 “PC”; Arnold v. Central Electricity
Generatings Board, Arnold v. Central Electricity Generatings Board, “1987” 3 All ER 694, pp. 696, 697 : “1988”
AC 228 : “1987” 3 WLR 1009 “HL”.
40 Abdul Majid v. Jawahirlal, Abdul Majid v. Jawahirlal, ILR 36 All 350, p. 353 “PC”;
Sachindra Nath v. Maharaj Bahadur, Sachindra Nath v. Maharaj Bahadur,
AIR 1922 PC 187 , pp. 190, 191 : 48 IA 335.
41 New India Insurance Co. Ltd. v. Shanti Misra “Smt.”, New India Insurance Co. Ltd.
v. Shanti Misra “Smt.”,
AIR 1976 SC 237 , pp. 241, 242 : 1975 “2” SCC 840.
42 Gopaldas v. Tribhowan, Gopaldas v. Tribhowan,

AIR 1921 Bom 40 ; Begum Sultan V. Salvi Begum, Begum Sultan V. Salvi
Begum,
AIR 1926 All 93 ; Mohammad Saleh v. Mohammad Saleh Mohammad Saleh v.
Mohammad Saleh
AIR 1930 Cal 34 .
Mr.Srikanth -
Page 64 of 103
43 Vinod Gurudas Raikar v. National Insurance Co. Ltd., Vinod Gurudas Raikar v.
National Insurance Co. Ltd.,
AIR 1991 SC 2156 [
LNIND 1991 SC 435 ]: “1991” 4 SCC 33.
44 New India Insurance Co. Ltd v. Shanti Misra, New India Insurance Co. Ltd v.
Shanti Misra,
AIR 1976 SC 237 : “1975” 2 SCC 840; Vinod Gurudas Raikar v. National Insurance Co. Ltd.,
Vinod Gurudas Raikar v. National Insurance Co. Ltd.,
AIR 1991 SC 2156 [
LNIND 1991 SC 435 ], 2158 : “1991” 4 SCC 333; Union of India v. Harnam Singh,
Union of India v. Harnam Singh,
AIR 1993 SC 1367 [
LNIND 1993 SC 111 ], p. 1373 : 1993 “2” SCC 162.
Contrary intention is manifested when the new Act does not come into force at once and its enforcement is postponed
for a reasonable time; see v v. Leads and Bradford Rly. Co., v v. Leads and Bradford Rly. Co., “1852” 18 QB
343; and Towler v. Chatterton, Towler v. Chatterton, “1829” 133 ER 1280 : “1829” 6 Bing 253.
45 See
section 30, Limitation Act, 1963 “Act 36 of 1963”; and original
section 30, Limitation Act , 1908 “Act 9 of 1908”.
46 Sree Bank Ltd. v. Sarkar Dutt Roy & Co., Sree Bank Ltd. v. Sarkar Dutt Roy & Co.,
AIR 1966 SC 1953 [
LNIND 1965 SC 127 ], pp. 1956, 1961 : 1965 “3” SCR 708 : “1965” 35 Comp Cas 881.
47 Dhannalal v. D.P. Vijayvargiya, Dhannalal v. D.P. Vijayvargiya, 1996 “4” Scale

458, pp. 461, 462 :
AIR 1996 SC 2155 [
LNIND 1996 SC 934 ], pp. 2157, 2158 : “1996” 4 SCC 652.
48 Ibid.
49 HALSBURY'S Laws of England, “3rd Edition”, Vol. 36, p. 425;See also Union of India v. Madan
Gopal, Union of India v. Madan Gopal,
AIR 1954 SC 158 [
LNIND 1953 SC 117 ]:
1954 SCR 541 [
LNIND 1953 SC 117 ] “Income-tax Legislation imposing tax on the basis of income of previous
year is not really restrospective”. It is submitted that in D.G. Ghouse & Co. v. State of Kerala, D.G. Ghouse & Co.
v. State of Kerala,
AIR 1980 SC 271 [
LNIND 1979 SC 385 ], p. 277 : “1980” 2 SCC 410 it has not been correctly stated that a tax on
buildings which operates from an anterior date is not retrospective. For excise duty, see Collector of Central Excise, Ahmedabad
v. Ashoka Mills Ltd., Collector of Central Excise, Ahmedabad v. Ashoka Mills Ltd.,
AIR 1990 SC 33 [
LNIND 1989 SC 853 ], p. 39 : “1989” 4 SCC 81. “Rate of Excise duty is that which prevails on
clearance of the goods and a subsequent change in rate of duty is not construed as retrospective to apply to goods already cleared.”
50 Reliance Jute and Industries Ltd. v. Commissioner of Income-tax, Reliance Jute and
Industries Ltd. v. Commissioner of Income-tax,
Mr.Srikanth -
Page 65 of 103
AIR 1980 SC 251 [

LNIND 1979 SC 396 ], p. 252 : 1980 “1” SCC 139.
51 Collector of Central Excise Ahmedabad v. Orient Fabrics Pvt. Ltd., Collector of

Central Excise Ahmedabad v. Orient Fabrics Pvt. Ltd.,
AIR 2004 SC 953 [
LNIND 2003 SC 135 ]: “2003” 3 SCC 636.
52 Commissioner of Wealth Tax, Meerut v. Sharvan Kumar Swarup, Commissioner of

Wealth Tax, Meerut v. Sharvan Kumar Swarup, JT 1994 “6” SC 446, pp. 451 to 454 : “1994” 6 SCC 623 : “1994” 210 ITR 886
“Rule 1BB of the Wealth Tax Rules inserted from 1-4-1979 laying down method of valuation of a house used for residential
purpose was applied to pending assessments of the years 1977-78 and 1978-79”.
53 Income-tax Officer v. S.K. Habibullah, Income-tax Officer v. S.K. Habibullah,

AIR 1962 SC 918 [
LNIND 1962 SC 25 ]: 1962 Supp “2” SCR 716; Delhi Cloth & General Mill Co. Ltd. v. C.I.T.,
Delhi, Delhi Cloth & General Mill Co. Ltd. v. C.I.T., Delhi,
AIR 1927 PC 242 [
LNIND 1927 BOM 129 ]: 54 IA 421. See State of Tamil Nadu v. Star Tabacco Co.,
State of Tamil Nadu v. Star Tabacco Co.,
AIR 1973 SC 1387 : “1974” 3 SCC 319 “Power to open an assessment is not a matter of
procedure”.
54 Controller of Estate Duty Gujarat-I v. M.A. Merchant, Controller of Estate Duty

Gujarat-I v. M.A. Merchant,
AIR 1989 SC 1710 [
LNIND 1989 SC 287 ], p. 1713 : 1989 Supp “1” SCC 499.
55 Banarasidas v. ITO, District IV, Calcutta, Banarasidas v. ITO, District IV, Calcutta,
AIR 1964 SC 1742 [
LNIND 1964 SC 112 ], p. 1744; Bombay v. Onkarmal Meghraj, Bombay v.
Onkarmal Meghraj,
AIR 1973 SC 2585 [
LNIND 1973 SC 454 ], pp. 2589, 2590 : “1974” 3 SCC 349.
56 S.S. Gadgil v. Lal & Co., S.S. Gadgil v. Lal & Co.,
AIR 1965 SC 171 [
LNIND 1964 SC 168 ], p. 177 “para 13” : “1964” 8 SCR 72; K.M. Sharma v. Income-tax Officer
New Delhi, K.M. Sharma v. Income-tax Officer New Delhi,
AIR 2002 SC 1715 [
LNIND 2002 SC 274 ], p. 1718 “para 13” : “2002” 4 SCC 339; National Agricultural Co-
operative Marketing Federation of India Ltd. v. Union of India, National Agricultural Co-operative Marketing
Federation of India Ltd. v. Union of India,
AIR 2003 SC 1329 [
LNIND 2003 SC 345 ], p. 1337 : “2003” 5 SCC 23 : “2003” 260 ITR 548. But see Mysore
Rolling Mills “P.” Ltd. v. Collector of Central Excise, Mysore Rolling Mills “P.” Ltd. v. Collector of Central
Excise, “1987” 1 SCC 695, p. 697 :
AIR 1987 SC 1488 [
LNIND 1987 SC 191 ].
57 Commercial Tax Officer v. Biswanath Jhunjhunwala, Commercial Tax Officer v.

Biswanath Jhunjhunwala, 1996 “6” Scale 211, p. 216 :
AIR 1997 SC 357 [
LNIND 1996 SC 1343 ], p. 360; Addl. Commissioner v. Jyoti Traders, Addl.
Commissioner v. Jyoti Traders, JT 1998 “8” SC 60, pp. 70, 71 : 1998 “6” Scale 141 : “1999” 2 SCC 77 :
Mr.Srikanth -
Page 66 of 103
AIR 1999 SC 526 [

LNIND 1998 SC 1041 ].
58 National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India, supra,
National Agricultural Co-operative Marketing Federation of India Ltd. v. Union of India, supra, p. 1334.
59 Tata Motors Ltd. v. State of Maharashtra, Tata Motors Ltd. v. State of Maharashtra,
AIR 2004 SC 3618 [
LNIND 2004 SC 629 ], pp. 3622, 3623 : “2004” 5 SCC 783.
60 R.C. Tobacco “P.” Ltd. v. Union of India, R.C. Tobacco “P.” Ltd. v. Union of
India, “2005” 7 SCC 725 “paras 20 to 22”.
61 Govinddas v. Income-tax Officer, Govinddas v. Income-tax Officer,

AIR 1977 SC 552 [
LNIND 1975 SC 666 ], pp. 558, 559 :
(1976) 1 SCC 906 [
LNIND 1975 SC 666 ].
62 Kesoram Industries & Cotton Mills Ltd. v. CWT (Central), Calcutta, Kesoram
Industries & Cotton Mills Ltd. v. CWT (Central), Calcutta,
AIR 1966 SC 1370 [
LNIND 1965 SC 330 ], p. 1379 :
(1966) 2 SCR 688 [
LNIND 1965 SC 330 ]; ITO, Mangalore v. M. Damodar Bhat, ITO, Mangalore
v. M. Damodar Bhat,
AIR 1969 SC 408 [
LNIND 1968 SC 264 ], p. 413 :
1969 (2) SCR 29 [
LNIND 1968 SC 264 ]. See further CIT v. Shelly Products, CIT v. Shelly
Products,
(2003) 5 SCC 461 , p. 476 :
AIR 2003 SC 2532 (case of advance text and tax deducted at source. Liability does not depend
on assessment).
63 C.I.T., Bombay v. Scindia Steam Navigation Co. Ltd., C.I.T., Bombay v. Scindia
Steam Navigation Co. Ltd.,
AIR 1961 SC 1633 [
LNIND 1961 SC 159 ], p. 1646 :
1962 (1) SCR 788 [
LNIND 1961 SC 159 ].
64 Karimtharuvi Tea Estates Ltd. v. State of Kerala, Karimtharuvi Tea Estates Ltd. v.
State of Kerala,
AIR 1966 SC 1385 [
LNIND 1965 SC 383 ]:
1966 (3) SCR 93 [
LNIND 1965 SC 383 ].
65 State of Kerala v. Alex George, State of Kerala v. Alex George,

(2005) 1 SCC 299 [
LNIND 2004 SC 1152 ].
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66 Customs and Excise Commissioners v. Thorn Electrical Industries Ltd., Customs

and Excise Commissioners v. Thorn Electrical Industries Ltd.,
(1975) 1 All ER 439 (QBD).
67 Maya Rani Punj v. Commissioner of Income-tax, Delhi, Maya Rani Punj v.

Commissioner of Income-tax, Delhi,
(1986) 1 SCC 445 [
LNIND 1985 SC 358 ] :
AIR 1986 SC 293 [
LNIND 1985 SC 358 ].
68 West Ramnad Electric Distribution Co. Ltd. v. State of Madras, West Ramnad
Electric Distribution Co. Ltd. v. State of Madras,
AIR 1962 SC 1753 [
LNIND 1962 SC 492 ], pp. 1758, 1760 :
1963 (2) SCR 747 [
LNIND 1962 SC 492 ]; State of Maharashtra v. K.K.S. Ramaswamy, State of
Maharashtra v. K.K.S. Ramaswamy,
AIR 1977 SC 2091 [
LNIND 1977 SC 247 ]:
1977 (3) SCC 525 [
LNIND 1977 SC 247 ]; Soni Devrajbhai Babubhai v. State of Guja-rat, Soni
Devrajbhai Babubhai v. State of Guja-rat,
AIR 1991 SC 2173 [
LNIND 1991 SC 417 ]:
(1991) 4 SCC 298 [
LNIND 1991 SC 417 ] (
Section 304B of the Penal Code provides a new offence of Dowry death and is not retrospective); Kalpnath Rai v.
State, Kalpnath Rai v. State,
AIR 1998 SC 201 , p. 210 :
(1997) 8 SCC 733 (All the ingredients of the offence must happen after the new offence comes
into force. Case relating to section 3(5) of TADA).
Article 20 corresponds to Article 7(1) of the European Convention, the second limb of which provides :‘Nor shall a
heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed’. It was held by the
House of Lords that penalty ‘applicable’ referred to the maximum sentence for the offence and Article 7(1) was not violated when
there was a change in the release re-gime between the date of the offence, which permitted unconditional release subject to good
behaviour after serving a part of the sentence whereas the release regime when he was convicted permitted his release after the
same period but under a li-cence which placed him under supervision and imposed certain restrictions on his freedom on failure of
which he could be recalled to serve the remaining sentence: R. (on the application of Uttley v. Secretary of State for Home
Department, R. (on the application of Uttley v. Secretary of State for Home Department,
(2004) 4 All ER 1 (HL).
69 Midland Rly. Co. v. Pyre, Midland Rly. Co. v. Pyre,

(1861) 142 ER 419 , p. 424 (ERLE, C.J.); referred to in State of Bombay v. Vishnu Ramchandra,
referred to in State of Bombay v. Vishnu Ramchandra,
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], p. 309 :
(1962) 2 SCR 26 ; See further Waddington v. Miah, Waddington v. Miah,
(1974) 2 All ER 377 , p. 379 (HL). (Restro-spective Criminal Legislation is against Article 11(2)
of the Declaration of Human Rights of the United Nations and Article 7 of the European Convention for the Protection of Human
Rights and Fundamental Freedom); R. v. Kirk, R. v. Kirk,
(1985) 1 All ER 453 (EEC Court) (The principle that penal provisions may not have retroactive
effect is one which is common to all the legal orders of the member States); Barretto, Re, Barretto, Re,
(1994) 1 All ER 447 , p. 453 (CA) (Any provision which increases the penalty par-ticularly if
coupled with an additional liability to imprisonment cannot be construed retrospective). The rule against retrospectivity of penal
statutes may also apply to “any law that alters the legal rules of evidence, thus accepting less or different testi-mony than the law
Mr.Srikanth -
Page 68 of 103
required at the time of the commission of the offence, in order to convict the offender”: Aly Mokhtar, ‘Nullum Crimen, Nulla
Poena Sine Lege, As-pects and Prospects’ 26 (2005) Statute Law Review 41, p. 48.
70 R. v. Griffiths, R. v. Griffiths,
(1891) 2 QB 145 , p. 148 (LORD COLERIDGE, C.J.); But see Sajjan Singh v. State of
Punjab, Sajjan Singh v. State of Punjab,
AIR 1964 SC 464 [
LNIND 1963 SC 203 ], p. 468 :
1964 (4) SCR 630 [
LNIND 1963 SC 203 ].
71 Maruram v. Union of India, Maruram v. Union of India,

AIR 1980 SC 2147 [
LNIND 1980 SC 446 ], pp. 2167, 2168 :
(1981) 1 SCC 107 [
LNIND 1980 SC 446 ]; State of Haryana v. Ram Diya, State of Haryana v. Ram
Diya,
AIR 1990 SC 1336 [
LNIND 1990 SC 222 ], pp. 1338, 1339 :
1990 (2) SCC 701 [
LNIND 1990 SC 222 ].
72 The courts in India have not paid much attention to this provision. This provision as incorporated in the Hongkong Bill
of Rights was construed by the Privy Council in Chau Chihung v. R, Chau Chihung v. R,
(1996) 1 All ER 914 (PC). It was held that when the new law in force at the time of trial had no
exact counterpart in the former law in force when the offence was committed the question to be determined would by what range of
sen-tences would have been open to the court to impose if the defendant had been con-victed and sentenced under new law.
73 Rattan Lal v. State of Punjab, Rattan Lal v. State of Punjab,

AIR 1965 SC 444 [
LNIND 1964 SC 135 ], p. 446.
74 Ibid.
75
AIR 1999 SC 3450 [
LNIND 1999 SC 802 ]:
(1999) 9 SCC 312 [
LNIND 1999 SC 802 ].
76 Ibid, p. 3455 (para 32).
77 Ibid, p. 3455 (para 34).
78 P.P. Fathima v. State of Kerala, P.P. Fathima v. State of Kerala,

(2003) 8 SCC 726 :
(2003) 8 JT 527 .
79 Dayal Singh v. State of Rajasthan, Dayal Singh v. State of Rajasthan,

(2004) 5 SCC 721 [
Mr.Srikanth -
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LNIND 2004 SC 1738 ] :

AIR 2004 SC 2608 [
LNIND 2004 SC 1738 ].
80 Basheer alias N.P. Basheer v. State of Kerala, Basheer alias N.P. Basheer v. State
of Kerala,
(2004) 3 SCC 609 [
LNIND 2004 SC 172 ] :
AIR 2004 SC 2757 [
LNIND 2004 SC 172 ].
81 Ibid. See further, Pratap Singh v. State of Jharkhand, Pratap Singh v. State of
Jharkhand,
(2005) 3 SCC 551 [
LNIND 2005 SC 100 ], pp. 570 (para 32), p. 587-89 [
Juvenile Justice (care and Protection of Children) Act, 2000 , which repealed Juvenile Justice Act, 1986, in section
20 gives benefit of the new Act in pending cases to those who were Juvenile under the new Act when the new Act came into force
though they may have ceased to be juvenile under the old Act. This was held to be consistent with
Article 20 of the constitution ].
82 Kapur Chand v. State of Bombay, Kapur Chand v. State of Bombay,

AIR 1958 SC 993 , pp. 997, 998 :
1959 SCR 250 .
83 Transmission Corporation of A.P. v. Ch. Prabhakar, Transmission Corporation of

A.P. v. Ch. Prabhakar,
(2004) 5 SCC 551 [
LNIND 2004 SC 655 ] :
AIR 2004 SC 3368 [
LNIND 2004 SC 655 ].
84 R v. Lambert, R v. Lambert,
(2001) 3 All ER 577 (HL).
85 R v. Kansal (No. 2), R v. Kansal (No. 2),

(2002) 1 All ER 257 (HL).
86
AIR 1989 SC 1854 : (1989) 3 SCC 448.
87 Ibid, p. 1860.
88 R. v. Austin, R. v. Austin,
(1913) 1 KB 551 , p. 556 (Phillimore, J.); referred to in State of Bombay v. Vishnu Ramchandra,
State of Bombay v. Vishnu Ramchandra,
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], p. 310 :
1961 (2) SCR 26 [
LNIND 1960 SC 239 ].
Mr.Srikanth -
Page 70 of 103
89 R. v. Austin, R. v. Austin,
(1913) 1 KB 551 , p. 556 (Phillimore, J.).
90 Queen v. Vine, Queen v. Vine,

(1875) 10 QB 195 ; A. Solicitor’s Clerk, Re, A. Solicitor’s Clerk, Re,
(1957) 3 All ER 617 (DC); State of Bombay v. Vishnu Ramchandra, State of
AIR 1961 SC 307 [
LNIND 1960 SC 239 ]:
(1961) 2 SCR 26 [
LNIND 1960 SC 239 ]; State of Bombay, v. Vishnu Ramchandra, State of
Bombay, v. Vishnu Ramchandra,
AIR 1965 SC 1206 [
LNIND 1964 SC 328 ], p. 1209 :
1965 (2) SCR 205 [
LNIND 1964 SC 328 ].
91
(1875) 10 QB 195 .
92 Ibid.
93
(1957) 3 All ER 617 .
94 Ibid, p. 619. See further Antonelli v. Secretary of State for Trade and Industry,
Antonelli v. Secretary of State for Trade and Industry,
(1998) 1 All ER 997 (CA) (discussed at p. 502; R. v. Field, R. v. Field,
(2003) 3 All ER 769 (CA) (order disqualifying individual from working with children can be
made in respect of offence committed before the statutory provision under which order is issued).
95
AIR 1961 SC 307 [
LNIND 1960 SC 239 ]:
1961 (2) SCR 26 [
LNIND 1960 SC 239 ].
1 Ibid p. 310. See further Bashiruddin v. B.S.S. Majlis, Bashiruddin v. B.S.S. Majlis,
AIR 1965 SC 1206 [
LNIND 1964 SC 328 ], p. 1209 (para 10) :
(1965) 2 SCR 205 [
LNIND 1964 SC 328 ]; Sajjan Singh v. State of Punjab, Sajjan Singh v. State of
Punjab,
AIR 1964 SC 464 [
LNIND 1963 SC 203 ], p. 468 :
1964 (4) SCR 630 [
LNIND 1963 SC 203 ]; Kapurchand v. B.S. Grewal, Kapurchand v. B.S.
Grewal,
AIR 1965 SC 1491 [
LNIND 1964 SC 305 ], p. 1493 :
1965 (2) SCR 36 [
LNIND 1964 SC 305 ].
Mr.Srikanth -
Page 71 of 103
3 See cases referred to in notes 90-95, pp. 519-520.
4
(1894) 1 QB 725 :
(1891-94) All ER 834 (CA).
5 See text and notes 44-46, p. 498.
6 See under title 2(g) ‘Statutes prescribing Posterior Disqualification on Past Conduct’, supra.
7 Master Ladies’ Tailors’ Organisation v. Ministry of Labour, Master Ladies’

Tailors’ Organisation v. Ministry of Labour,
(1950) 2 All ER 525 ; Sree Bank Ltd. v. Sarkar Dutt Roy & Co., Sree Bank Ltd.
v. Sarkar Dutt Roy & Co.,
AIR 1966 SC 1953 [
LNIND 1965 SC 127 ], p. 1957 (para 9) :
1965 (3) SCR 708 [
LNIND 1965 SC 127 ]; Ramji Purshottam v. Laxmanbhai Kurlawala, Ramji
Purshottam v. Laxmanbhai Kurlawala,
(2004) 6 SCC 455 [
LNIND 2004 SC 553 ],p. 463:
AIR 2004 SC 4010 [
LNIND 2004 SC 553 ], p. 4015.(The text from 9th Edn., p. 462 of this book is quoted).
8 See text and note 36, p. 496 and text and notes 10, 11, pp. 522-23, infra.
9
AIR 1975 SC 164 [
LNIND 1974 SC 382 ]:
(1975) 1 SCC 192 [
LNIND 1974 SC 382 ].
10
(1848) 12 QB 120 : 116 ER 811.
11 Ibid, p. 127.
12 Ibid.
13 (1889) 58 LJMC 158 : referred to in State of Bombay v. Vishnu Ram Chandra, State of Bombay v.
Vishnu Ram Chandra,
AIR 1961 SC 307 [
LNIND 1960 SC 239 ], p. 309 :
1961 (2) SCR 26 [
LNIND 1960 SC 239 ].
14 Ibid.
Mr.Srikanth -
Page 72 of 103
15 (1896) P 133: 65 LJP 63.
16
(1884) 13 QBD 784 . See further Chebarao v. Chebarao, Chebarao v.
Chebarao,
(1987) 1 All ER 999 (CA);(Words ‘has been dissolved or annulled’ in section 12(1)of the
Matrimonial and Family Proceedings Act, 1984 were construed to cover cases where marriage was dissolved or annulled prior to
the Act).
17 MULLA : Hindu Law, (12th Edition), p. 707.
18 Sukhribai (Mt.) v. Pohkalsingh, Sukhribai (Mt.) v. Pohkalsingh,

AIR 1950 Nag 33 , pp. 36, 37; (HIDAYATULLAH, J.).
19 Municipal Council of Sydney v. Troy, Municipal Council of Sydney v. Troy,

AIR 1928 PC 128 , p. 130.
20 Ibid, distinguished in K.S. Paripoornan v. State of Kerala, K.S. Paripoornan v.

State of Kerala,
JT 1994 (6) SC 182 , p. 219 :
AIR 1995 SC 1012 : (1994) 5 SCC 593, on the ground that there was a non obstante clause in
the new Act which increased rate of interest.
21 Rafiquennessa (Mst.) v. Lal Bahadur Chhetri, Rafiquennessa (Mst.) v. Lal Bahadur

Chhetri,
AIR 1964 SC 1511 [
LNIND 1964 SC 48 ], p. 1514 :
1964 (6) SCR 876 [
LNIND 1964 SC 48 ].
22 Ramji Purshottam v. Laxman Bhai D. Kurlawala, Ramji Purshottam v. Laxman

Bhai D. Kurlawala,
(2004) 6 SCC 455 [
LNIND 2004 SC 553 ], p. 463:
AIR 2004 SC 4010 [
LNIND 2004 SC 553 ].
23 Shashikalabai v. State of Maharashtra, Shashikalabai v. State of Maharashtra,

AIR 1999 SC 706 : (1998) 5 SCC 332(case of circular of Maharashtra State Electricity Board).
24
(1937) 1 All ER 115 :
(1937) 1 KB 664 (PC).
25 Ibid, pp. 125, 126.
Mr.Srikanth -
Page 73 of 103
26 Central Bank of India v. Their Workman, Central Bank of India v. Their Workman,
AIR 1960 SC 12 [
LNIND 1959 SC 113 ], p. 17 :
1960 (1) SCR 200 [
LNIND 1959 SC 113 ].
27 Corpus Juris Secundum, Vol. 82, Art. 416, pp. 992, 993. For example, see Rattan Lal v. State of Punjab,
Rattan Lal v. State of Punjab,
AIR 1965 SC 444 [
LNIND 1964 SC 135 ]:
(1964) 7 SCR 676 [
LNIND 1964 SC 135 ], for this case, see page 516, supra, where it is discussed; Workmen of
Firestone Tyre & Rubber Co. v. Management, Workmen of Firestone Tyre & Rubber Co. v. Management,
AIR 1973 SC 1227 [
LNIND 1973 SC 430 ]:
1973 (1) SCC 813 [
LNIND 1973 SC 430 ]; Bharat Singh v. Management of Tuberculosis Centre,
Bharat Singh v. Management of Tuberculosis Centre,
(1986) 2 SCC 614 [
LNIND 1986 SC 105 ] :
AIR 1986 SC 842 [
LNIND 1986 SC 105 ]. See cases in notes 8 to 16, 21, 22 and 23, supra and in notes 33 to 40,
infra. Also see title 2(a), Chapter 11 text and notes 61 to 65, pp. 832-33.
28
AIR 1960 SC 12 [
LNIND 1959 SC 113 ]:
1960 (1) SCR 200 [
LNIND 1959 SC 113 ].
29 Ibid, p. 17.
30
JT 1999 (7) SC 292 [
LNIND 1999 SC 832 ]:
(1999) 8 SCC 254 [
LNIND 1999 SC 832 ] :
AIR 1998 SC 3502 , overruling an earlier decision of 1996.
31
JT 2001 (3) SC 457 [
LNIND 2001 SC 664 ]:
AIR 2001 SC 1333 [
LNIND 2001 SC 664 ] followed in N. Parmeshwaran Pillai v. Union of India,
N. Parmeshwaran Pillai v. Union of India,
AIR 2002 SC 1834 [
LNIND 2002 SC 283 ]:
(2002) 4 SCC 306 [
LNIND 2002 SC 283 ].
32
AIR 1973 SC 1227 [
LNIND 1973 SC 430 ]:
(1973) 1 SCC 813 [
LNIND 1973 SC 430 ].
Mr.Srikanth -
Page 74 of 103
33 Jahiruddin v. Model Mills, Nagpur, Jahiruddin v. Model Mills, Nagpur,

AIR 1966 SC 907 [
LNIND 1965 SC 324 ]:
1966 (2) SCR 660 [
LNIND 1965 SC 324 ].
34 Rustom and Hornsby (P) Ltd. v. T.B. Kadam, Rustom and Hornsby (P) Ltd. v. T.B.
Kadam,
AIR 1975 SC 2025 [
LNIND 1975 SC 231 ]:
(1976) 3 SCC 71 [
LNIND 1975 SC 231 ].
35 Bharat Singh v. Management of New Delhi Tuberculosis Centre, Bharat Singh v.

Management of New Delhi Tuberculosis Centre,
(1986) 2 SCC 614 [
LNIND 1986 SC 105 ] :
AIR 1986 SC 842 [
LNIND 1986 SC 105 ].
36 Idas,
(1863) 167 ER 309 , p. 302; Abdul Karim v. Dy. Custodian General, Abdul
Karim v. Dy. Custodian General,
AIR 1964 SC 1256 [
LNIND 1964 SC 43 ], p. 1258 :
(1964) 6 SCR 837 [
LNIND 1964 SC 43 ]; Jahiruddin v. Model Mills, Jahiruddin v. Model Mills,
AIR 1966 SC 907 [
LNIND 1965 SC 324 ]:
1966 (2) SCR 660 [
LNIND 1965 SC 324 ].
37 Abdul Karim v. Dy. Custodian General, Abdul Karim v. Dy. Custodian General,
AIR 1964 SC 1256 [
LNIND 1964 SC 43 ], p. 1258 :
1964 (6) SCR 837 [
LNIND 1964 SC 43 ].
38 State of U.P. v. Anand Swarup, State of U.P. v. Anand Swarup,

AIR 1974 SC 125 [
LNIND 1973 SC 323 ], p. 128 :
1974 SCC 421 [
LNIND 1973 SC 323 ].
39 Dena Bank v. Bhikabhai Prabhudas Parekh ‘Co., Dena Bank v. Bhikabhai

Prabhudas Parekh ‘Co.,
AIR 2000 SC 3654 [
LNIND 2000 SC 721 ], pp. 3660, 3661 :
(2000) 5 SCC 694 [
LNIND 2000 SC 721 ] (The liability of the partners for paying the dues of the firm was an
existing liability and the amendment only provided a new remedy for enforcing that liability. This is probably the basis of the
decision).
40 Union of India v. Sukumar Pyne, Union of India v. Sukumar Pyne,

AIR 1966 SC 1206 [
Mr.Srikanth -
Page 75 of 103
LNIND 1965 SC 239 ]:

1966 (2) SCR 34 [
LNIND 1965 SC 239 ]; Rai Bahadur Seth Shreeram Durgaprasad (M/s.) v. Director of
Enforcement, Rai Bahadur Seth Shreeram Durgaprasad (M/s.) v. Director of Enforcement,
(1987) 3 SCC 27 [
LNIND 1987 SC 448 ], pp. 33, 34 :
AIR 1987 SC 1364 [
LNIND 1987 SC 448 ]. See further for retroactivity of procedural laws, pp. 478 to 480.
41 CRAIES: Statute Law, 7th Edition, p. 58, approved in Central Bank of India v. Their Workmen,
Central Bank of India v. Their Workmen,
AIR 1960 SC 12 [
LNIND 1959 SC 113 ], p. 27 :
(1960) 1 SCR 200 [
LNIND 1959 SC 113 ]. See Jones v. Bennet, Jones v. Bennet,
(1890) 63 LT 705 , p. 708 (LORD COLERIDGE, C.J.); Madras Marine & Co. v. State of
Madras, Madras Marine & Co. v. State of Madras,
(1986) 3 SCC 552 [
LNIND 1986 SC 220 ], p. 563 :
AIR 1986 SC 1760 [
LNIND 1986 SC 220 ]; Satnam Overseas (Export) v. State of Haryana, Satnam
Overseas (Export) v. State of Haryana,
AIR 2003 SC 66 [
LNIND 2002 SC 659 ], p. 84 :
(2003) 1 SCC 561 .
42 Harding v. Queensland Stamp Commissioners, Harding v. Queensland Stamp

Commissioners,
(1898) AC 769 , pp. 775, 776 (PC).
43 Ibid.
44 R. v. Dursley (Inhabitants), R. v. Dursley (Inhabitants),

(1832) 110 ER 168 , p. 169.
45 Keshavlal Jethalal Shah v. Mohanlal, Keshavlal Jethalal Shah v. Mohanlal,

AIR 1968 SC 1336 [
LNIND 1968 SC 95 ], p. 1339 :
(1968) 3 SCR 623 [
LNIND 1968 SC 95 ]. The question whether an ‘explanation’ added by an
amending Act is really explanatory or not would depend on its construction. In S.K. Govindan and Sons v. Commr.
of Income-tax, Cochin, S.K. Govindan and Sons v. Commr. of Income-tax, Cochin,
AIR 2001 SC 254 [
LNIND 2000 SC 1723 ], p. 260 :
(2001) 1 SCC 460 [
LNIND 2000 SC 1723 ] :
(2001) 247 ITR 192 [
LNIND 2000 SC 1723 ], Explanation 2 inserted in
section 139(8) of the Income-tax Act, 1961 was held to be clarificatory. But in Birla Cement Works v. The Central
Board of Direct Taxes, Birla Cement Works v. The Central Board of Direct Taxes,
JT 2001 (3) SC 256 [
LNIND 2001 SC 589 ], p. 262 :
(2001) 9 SCC 35 [
LNIND 2001 SC 589 ] :
AIR 2001 SC 1080 [
LNIND 2001 SC 589 ], it was held that mere addition of an ‘explanation’ by an
amending Act in a taxing Act cannot, without more, be held to be clarificatory and retrospective. In Commissioner
of Income-tax Bhopal v. Shelly Products, Commissioner of Income-tax Bhopal v. Shelly Products,
Mr.Srikanth -
Page 76 of 103
(2003) 5 SCC 461 , pp. 477, 478 :

AIR 2003 SC 2532 provisos (a) and (b) added in
section 240 of the Income-tax Act, 1961 by
amending Act which came into force on 1-4-1989 were held to be clarificatory and retrospective.
46 Channan Singh v. Jai Kuar (Smt.), Channan Singh v. Jai Kuar (Smt.),
AIR 1970 SC 349 [
LNIND 1969 SC 257 ], p. 351 :
(1969) 2 SCC 429 [
LNIND 1969 SC 257 ].
47 CIT v. Straw Products, CIT v. Straw Products,

AIR 1966 SC 1113 [
LNIND 1965 SC 349 ]:
1966 (2) SCR 881 [
LNIND 1965 SC 349 ].
48 Union of India v. S. Muthyam Reddy, Union of India v. S. Muthyam Reddy,

JT 1999 (7) SC 596 [
LNIND 1999 SC 883 ], p. 597 :
1999 (7) SCC 545 [
LNIND 1999 SC 883 ] :
AIR 1994 SC 3881 .
49 Sakuru v. Tanoji, Sakuru v. Tanoji,

(1985) 3 SCC 590 [
LNIND 1985 SC 218 ], p. 594 :
AIR 1985 SC 1279 [
LNIND 1985 SC 218 ].
50 Punjab Traders v. State of Punjab, Punjab Traders v. State of Punjab,

AIR 1990 SC 2300 [
LNIND 1990 SC 553 ], p. 2304 :
1991 (1) SCC 86 [
LNIND 1990 SC 553 ].
51 R. Rajgopal Reddy v. Padmini Chandrasekharan, R. Rajgopal Reddy v. Padmini

Chandrasekharan,
1995 (1) Scale 692 [
LNIND 1995 SC 176 ], p. 704 :
AIR 1996 SC 238 [
LNIND 1995 SC 176 ], p. 246 :
(1995) 2 SCC 630 [
LNIND 1995 SC 176 ]; Allied Motors (P.) Ltd. v. CIT, Allied Motors (P.) Ltd. v.
CIT,
AIR 1997 SC 1361 [
LNIND 1997 SC 1773 ], pp. 1366, 1367 :
1997 (3) SCC 472 [
LNIND 1997 SC 1773 ]; CIT v. Podar Cement Pvt. Ltd., CIT v. Podar Cement
Pvt. Ltd.,
AIR 1997 SC 2523 , pp. 2537, 2538 :
1997 (5) SCC 482 ; Shyam Sunder v. Ram Kumar, Shyam Sunder v. Ram
Kumar,
AIR 2001 SC 2472 [
LNIND 2001 SC 1541 ], p. 2487 :
(2001) 8 SCC 24 [
LNIND 2001 SC 1541 ]; Zile Singh v. State of Haryana, Zile Singh v. State of
Mr.Srikanth -
Page 77 of 103
Haryana,
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ], p. 9 :
AIR 2004 SC 5100 [
LNIND 2004 SC 1050 ], pp. 5103, 5104. See further S.B. Bhattacharjee v. S.D. Majumdar,
S.B. Bhattacharjee v. S.D. Majumdar,
AIR 2007 SC 2102 [
LNIND 2007 SC 679 ](paras 26 to 29) :
(2007) 7 JT 381 .
52
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ], p. 1255 :
1989 (2) SCC 95 [
LNIND 1989 SC 96 ].
53
1995 (1) Scale 692 [
LNIND 1995 SC 176 ] : 1995 AIR SCW 1422 :
AIR 1996 SC 238 [
LNIND 1995 SC 176 ].
54 Ibid, p. 704 (Scale) : p. 246 (AIR). See further p. 496.
55
AIR 1997 SC 1361 [
LNIND 1997 SC 1773 ], pp. 1366, 1367 :
1997 (3) SCC 472 [
LNIND 1997 SC 1773 ].
56
AIR 1997 SC 2523 , p. 2538 :
(1997) 5 SCC 482 .
57
AIR 1997 SC 1651 [
LNIND 1996 SC 2947 ], p. 1654 :
1997 (1) SCC 352 [
LNIND 1996 SC 2947 ]; Affirmed in Suwalal Anandlal Jain v. Commr. of Income-tax,
Suwalal Anandlal Jain v. Commr. of Income-tax,
AIR 1997 SC 1279 [
LNIND 1997 SC 407 ]:
(1997) 4 SCC 89 [
LNIND 1997 SC 407 ] and Commissioner of Income-tax Bombay v. Kanji Shivji and Co.,
Commissioner of Income-tax Bombay v. Kanji Shivji and Co.,
AIR 2000 SC 774 [
LNIND 2000 SC 162 ]:
(2000) 2 SCC 253 [
LNIND 2000 SC 162 ]. See further cases in f.n. 45, supra.
58
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ] :
AIR 2004 SC 5100 [
LNIND 2004 SC 1050 ].
Mr.Srikanth -
Page 78 of 103
59 Ibid, p. 23 (SCC).
60 A.G. v. H.J. Sillem, A.G. v. H.J. Sillem,

(1864) 11 ER 1200 , p. 1209 (HL) (LORD WESTBURY, L.C.); referred to in Dayawanti v.
Inderjit, Dayawanti v. Inderjit,
AIR 1966 SC 1423 [
LNIND 1966 SC 15 ], p. 1427 :
(1966) 3 SCR 275 [
LNIND 1966 SC 15 ]; Sitaram v. State of Uttar Pradesh, Sitaram v. State of
Uttar Pradesh,
AIR 1979 SC 745 [
LNIND 1979 SC 65 ], p. 756 :
(1979) 3 SCC 656 . See Shanker Ramchandra Abhyanker v. Krishnaji,
Shanker Ramchandra Abhyanker v. Krishnaji,
AIR 1970 SC 1 [
LNIND 1969 SC 170 ], p. 4 :
(1969) 2 SCC 74 [
LNIND 1969 SC 170 ] (Revision is exercise of appellate jurisdiction); Nalakath Saimuddin v.
Koorikadan Sulaiman, Nalakath Saimuddin v. Koorikadan Sulaiman,
AIR 2002 SC 2562 [
LNIND 2002 SC 410 ], pp. 2566, 2567 :
(2002) 6 SCC 1 [
LNIND 2002 SC 410 ]; Rani Manprasad v. Gopichand, Rani Manprasad v.
Gopichand,
AIR 1973 SC 566 [
LNIND 1972 SC 388 ], p. 568 :
(1973) 4 SCC 87 , (Rights of appeal and revision are creatures of Statute); Shiv Shakti Co-op.
Housing Society, Nagpur v. Swaraj Developers, Shiv Shakti Co-op. Housing Society, Nagpur v. Swaraj
Developers,
AIR 2003 SC 2434 [
LNIND 2003 SC 454 ], pp. 2439, 2443 :
(2003) 6 SCC 659 [
LNIND 2003 SC 454 ] (Difference between Appeal and Revision pointed out. Revision does not
confer any substantive vested right and a curtailment of revisional power by an
amending Act will also apply to pending revisions); Gujrat Agro Industries Co. Ltd. v. The Municipal Corporation
of the City of Ahmedabad, Gujrat Agro Industries Co. Ltd. v. The Municipal Corporation of the City of
Ahmedabad,
AIR 1999 SC 1818 [
LNIND 1999 SC 458 ]:
(1999) 4 SCC 468 [
LNIND 1999 SC 458 ] (The right appeal may be conferred subject to certain conditions);
Ramchandra Goverdhan Pandit v. Charity Commissioner, Ramchandra Goverdhan Pandit v. Charity
Commissioner,
(1987) 3 SCC 273 [
LNIND 1987 SC 409 ], p. 278 :
AIR 1987 SC 1598 [
LNIND 1987 SC 409 ](The word need not be expressly used to create a right of appeal);
Kashinath G. Jalmi (Dr.) v. Speaker, Kashinath G. Jalmi (Dr.) v. Speaker,
AIR 1993 SC 1873 [
LNIND 1993 SC 319 ], p. 1883 :
(1993) 3 SCC 703 (Power to review is not an inherent power it should be conferred expressly or
inferred by necessary implication). But see Budhia Swain v. Gopinath, Budhia Swain v. Gopinath,
AIR 1999 SC 2089 [
LNIND 1999 SC 512 ], p. 2091
(1999) 4 SCC 396 [
LNIND 1999 SC 512 ] (A court or tribunal has inherent jurisdiction to recall an order in certain
circumstances); M.M. Thomas v. State of Kerala, M.M. Thomas v. State of Kerala,
JT 2000 (1) SC 26 [
LNIND 2000 SC 23 ]:
AIR 2000 SC 540 [
LNIND 2000 SC 23 ]:
(2000) 1 SCC 666 [
LNIND 2000 SC 23 ] (High Court being a court of record has plenarypower to review its
Mr.Srikanth -
Page 79 of 103
judgment when error is apparent). See also Jagir Singh v. Ranbir Singh, Jagir Singh v. Ranbir Singh,
AIR 1979 SC 381 [
LNIND 1978 SC 323 ], p. 384 :
(1979) 1 SCC 560 [
LNIND 1978 SC 323 ] (Judicial power of Superintendence of the High Court under
Article 227 of the Constitution does not create any vested right even in a pending application for exercise of that
power); Ramchandra v. Dattatrya, Ramchandra v. Dattatrya,
AIR 1986 MP 191 [
LNIND 1986 MP 214 ], p. 194 (FB) (Revisional Jurisdiction under
Section 115 CPC does not confer a vested right). See further Northern Plastics Ltd. v. Hindustan Photo Film
Mfg. Co. Ltd., Northern Plastics Ltd. v. Hindustan Photo Film Mfg. Co. Ltd.,
JT 1997 (3) SC 101 [
LNIND 1997 SC 305 ], pp. 117 to 119 :
1997 (4) SCC 452 [
LNIND 1997 SC 305 ] (The expression ‘any person aggrieved’ for purposes of entitlement of
appeal is wider than the expression ‘any party aggrieved’, even so the person who claims the right to appeal must have suffered
some legal injury); Roopchand v. State of Punjab, Roopchand v. State of Punjab,
AIR 1963 SC 1503 [
LNIND 1962 SC 328 ]: 1963 Supp (1) SCR 539 followed Behari Kunj Sahkari Awas Samiti v.
State of U.P., Behari Kunj Sahkari Awas Samiti v. State of U.P.,
AIR 1997 SC 3123 [
LNIND 1997 SC 1090 ], p. 3125 :
(1997) 7 SCC 37 [
LNIND 1997 SC 1090 ] (A delegating to B its jurisdiction in certain matters. Orders of B in
those matters are not appealable to or revisable by A under a general power of appeal or revision against orders of B). For doctrine
of merger and appellate jurisdiction under Article 136see Kunhayammed v. State of Kerala, Kunhayammed v.
State of Kerala,
AIR 2000 SC 2587 [
LNIND 2000 SC 933 ]:
(2000) 6 SCC 359 [
LNIND 2000 SC 933 ], Union of India v. West Coast Paper Mills Ltd., Union of
India v. West Coast Paper Mills Ltd.,
(2004) 2 SCC 747 [
LNIND 2004 SC 264 ], pp. 755, 756 :
AIR 2004 SC 1596 [
LNIND 2004 SC 264 ]; Chandi Prasad v. Jagdish Prasad, Chandi Prasad v.
Jagdish Prasad,
(2004) 8 SCC 724 , pp. 731, 732. For the nature of right to file cross objection see Municipal
Corporation of Delhi v. nternational Security and Intelligence Agency Ltd., Municipal Corporation of Delhi v.
nternational Security and Intelligence Agency Ltd.,
(2004) 3 SCC 250 [
LNIND 2003 SC 170 ]. For use of appellate jurisdiction under Article 136 for rebuking the High
Court and for expunging of disrespectful remarks made by the High Court against the Supreme Court in its judgment, see Tirupati
Balaji Developers Pvt. Ltd. v. State of Bihar, Tirupati Balaji Developers Pvt. Ltd. v. State of Bihar,
(2004) 5 SCC 1 [
LNIND 2004 SC 538 ] :
AIR 2004 SC 2351 [
LNIND 2004 SC 538 ]. The appellate court has an inherent power to dismiss even a first appeal
or statutory appeal summarily: Bolin Chetia v. Jagdish Bhuyan, Bolin Chetia v. Jagdish Bhuyan,
(2005) 6 SCC 81 [
LNIND 2005 SC 257 ] (para 16).
61 Radhakrishan v. Shridhar, Radhakrishan v. Shridhar,

AIR 1950 Nag 177 , p. 184 (FB) (Hidayatullah, J.).
62 Colonial Sugar Refining Co. v. Irving, Colonial Sugar Refining Co. v. Irving,
(1905) AC 369 : 92 LT 733 : 21 TLR 513 (PC); Hossein Kasam Dada (India) Ltd. v. State of
M.P., Hossein Kasam Dada (India) Ltd. v. State of M.P.,
AIR 1953 SC 221 [
LNIND 1953 SC 20 ]:
1953 SCR 987 [
LNIND 1953 SC 20 ]; Garikapati v. N. Subbiah Chaudhry, Garikapati v. N.
Subbiah Chaudhry,
Mr.Srikanth -
Page 80 of 103
AIR 1957 SC 540 [

LNIND 1957 SC 10 ]; State of Bombay v. Supreme General Films Exchange,
State of Bombay v. Supreme General Films Exchange,
AIR 1960 SC 980 [
LNIND 1960 SC 136 ]:
(1960) 3 SCR 640 [
LNIND 1960 SC 136 ]; Kasibai v. Mahadu, Kasibai v. Mahadu,
AIR 1965 SC 703 [
LNIND 1964 SC 363 ], p. 705 : (1965) 2 MLJ (SC) 116 ; Jose De Costa v. Bascora Sadasiva
Sinai Narconim, Jose De Costa v. Bascora Sadasiva Sinai Narconim,
AIR 1975 SC 1843 [
LNIND 1976 SC 162 ], p. 1849 :
(1976) 2 SCC 917 [
LNIND 1976 SC 162 ]. See further District Judge, Lakshmi Narayan v. First Addl.
Lakshmi Narayan v. First Addl.
AIR 1964 SC 489 [
LNIND 1962 SC 437 ]:
1964 (1) SCR 362 [
LNIND 1962 SC 437 ].
N.B.—Different considerations will apply to a change in law which enlarges rights of appeal. See title
(k), ‘Statutes affecting finality of orders’, text and notes 6-10, pp. 537-38.
63 Ibid.
64
(1905) AC 369 (PC).
65 Ibid, pp. 372, 373.
66 Ibid.
67
AIR 1957 SC 540 [
LNIND 1957 SC 10 ]:
1975 SCR 488 . See however, the forceful dissent of Venkatrama Aiyar, J.
68 Garikapati v. N. Subbiah Choudhry, Garikapati v. N. Subbiah Choudhry,

AIR 1957 SC 540 [
LNIND 1957 SC 10 ], p. 553 :
1957 SCR 488 [
LNIND 1957 SC 10 ].
69 Ibid.
70 Kasibai v. Mahadu, Kasibai v. Mahadu,

AIR 1965 SC 703 [
LNIND 1964 SC 363 ], p. 705; Ganpat Rai Hiralal v. Chamber of Commerce,
Ganpat Rai Hiralal v. Chamber of Commerce,
AIR 1952 SC 409 [
LNIND 1952 SC 58 ], p. 410 (para 9) :
1953 SCR 752 ; Hossein Kasam Dada (India) Ltd. v. State of M.P., Hossein
Kasam Dada (India) Ltd. v. State of M.P.,
AIR 1953 SC 221 [
Mr.Srikanth -
Page 81 of 103
LNIND 1953 SC 20 ]:
1953 SCC 987 ; State of Bom-bay v. Supreme General Films Exchange, State of
Bom-bay v. Supreme General Films Exchange,
AIR 1960 SC 980 [
LNIND 1960 SC 136 ]:
(1960) 3 SCR 488 [
LNIND 1960 SC 112 ]. See further the following cases which were approved in Garikapati v.
Subbiah Choudhry, Garikapati v. Subbiah Choudhry,
AIR 1957 SC 540 [
LNIND 1957 SC 10 ]:
1957 SCC 488 : Sadar Ali v. Dolimuddin, Sadar Ali v. Dolimuddin,
AIR 1928 Cal 640 (FB); Vasudeo Samiar, In re, Vasudeo Samiar, In re,
AIR 1929 Mad 381 [
LNIND 1928 MAD 252 ]: 52 Mad 361 (FB). (In these two cases the question related to the effect
of change in law in Letters Patent restricting the right of appeal from judgment of a single Judge by putting condition of leave to be
obtained from that Judge): Nagendra Nath Bose v. Mon Mohan Singh, Nagendra Nath Bose v. Mon Mohan Singh,
AIR 1931 Cal 100 (Change in law imposing condition of deposit of decretal amount before
exercise of right of appeal for setting aside an execution sale).
71 Colonial Sugar Refining Co. v. Irving, Colonial Sugar Refining Co. v. Irving,
(1905) AC 369 : 92 LT 733 (PC).
72 Hossein Kasam Dada (India) Ltd. v. State of M.P., Hossein Kasam Dada (India)
Ltd. v. State of M.P.,
AIR 1953 SC 221 [
LNIND 1953 SC 20 ]:
1953 SCR 987 [
LNIND 1953 SC 20 ]; referred to with approval in Collector of Customs & Excise, Cochin v.
A.S. Bava, Collector of Customs & Excise, Cochin v. A.S. Bava,
AIR 1968 SC 13 [
LNIND 1967 SC 215 ], p. 15 :
(1968) 1 SCR 82 [
LNIND 1967 SC 215 ]. But a change in law in this respect before assessment proceedings are
commenced will apply to assessment orders made after the change although they are in respect of a period prior to the change;
Hardeo-das Jagannath v. State of Assam, Hardeo-das Jagannath v. State of Assam,
AIR 1970 SC 724 [
LNIND 1968 SC 296 ]:
(1969) 1 SCC 372 [
LNIND 1969 SC 2 ]. Further when the right of appeal as originally granted is itself conditional
requiring the de-posit, Hossein Kasam Dada's case has no application; Vijay Prakash and Jawahar v. Collector of Customs,
Vijay Prakash and Jawahar v. Collector of Customs,
AIR 1988 SC 2010 [
LNIND 1988 SC 392 ], p. 2012 :
(1988) 4 SCC 402 [
LNIND 1988 SC 392 ]. Hossein Ka-sam Daba's case followed in interpreting the proviso to
section 173 Motor Vehicles Act, 1988 which requires deposit of a certain portion of the amount awarded before
right of appeal against the award is exercised: Ramesh Singh v. Cinta Devi, Ramesh Singh v. Cinta Devi,
AIR 1996 SC 1560 : 1996 (3) SCC 142.
73 State of Bombay v. Supreme General Films Exchange, State of Bombay v. Supreme

General Films Exchange,
AIR 1960 SC 980 [
LNIND 1960 SC 136 ]:
1960 (3) SCR 640 [
LNIND 1960 SC 136 ].
74 Kasibai v. Mahadu, Kasibai v. Mahadu,

AIR 1965 SC 703 [
LNIND 1964 SC 363 ]: (1965) 2 MLJ (SC) 116.
Mr.Srikanth -
Page 82 of 103
75 Jose De Costa v. Bascora Sadasiva Sinai Narconim, Jose De Costa v. Bascora

Sadasiva Sinai Narconim,
AIR 1975 SC 1843 [
LNIND 1976 SC 162 ]:
(1976) 2 SCC 917 [
LNIND 1976 SC 162 ], p. 926 (Abolition of such a procedure in effect removes a restriction for
an appeal and will be presumed to be retrospective; see text and notes 6 to 8, pp. 537-38).
76 Ittyavira Mathai v. Varkey Varkey, Ittyavira Mathai v. Varkey Varkey,

AIR 1964 SC 907 [
LNIND 1963 SC 4 ], p. 914 :
1964 (1) SCR 495 [
LNIND 1963 SC 4 ].
78 Daji Saheb v. Shankar Rao, Daji Saheb v. Shankar Rao,

AIR 1956 SC 29 [
LNIND 1955 SC 76 ], p. 30 :
1955 (2) SCR 872 [
LNIND 1955 SC 76 ]. Also see Jose De Costa v. Bascora Sadasiva Sinai Narconim,
Jose De Costa v. Bascora Sadasiva Sinai Narconim,
AIR 1975 SC 1843 [
LNIND 1976 SC 162 ]:
(1976) 2 SCC 917 [
LNIND 1976 SC 162 ].
79 Daji Saheb v. Shankar Rao, Daji Saheb v. Shankar Rao,

AIR 1956 SC 29 [
LNIND 1955 SC 76 ], p. 30 :
1955 (2) SCR 872 [
LNIND 1955 SC 76 ] (Decree passed by the High Court of Bombay before the
Constitution , held appealable to the Supreme Court according to the law in force before the coming into force of
the
Constitution ); Garikapati v. N. Subbiah Choudhry, Garikapati v. N. Subbiah Choudhry,
AIR 1957 SC 540 [
LNIND 1957 SC 10 ], pp. 555, 556 :
1957 SCR 488 [
LNIND 1957 SC 10 ] (Decree of High Court of Andhra Pradesh passed after the Constitu-tion in
a suit instituted prior to the
Constitution , held appealable to the Supreme Court according to the law in force at the time of institution of suit).
See further Yel-lappagouda v. Basangouda, Yel-lappagouda v. Basangouda,
AIR 1960 SC 808 [
LNIND 1960 SC 70 ]:
(1960) 3 SCR 221 [
LNIND 1960 SC 70 ] (An order of the Privy Council passed before Abolition of Privy Council
Jurisdiction Act, 1949 is deemed for purposes of enforceability a decision of the Federal Court; and a decision of the Federal Court
given before the
Constitution is deemed to be for that purpose a decision of the Supreme Court by
Article 374(2) of the Constitution . The latter fic-tion, it was held, also brings in within its ambit a decision of the
Privy Council deemed to be a decision of the Federal Court. It was further held that a petition for cancellation of such a decision of
Privy Council, under section 10, Bombay Hereditary Offices Act was entertainable by the Supreme Court for such a petition could
have been entertained by the Privy Council before abolition of its jurisdiction and later on by the Federal Court.)
80 Garikapati v. N. Subbiah Choudhry, supra, Garikapati v. N. Subbiah Choudhry,

supra, p. 556.
Mr.Srikanth -
Page 83 of 103
81 Janardhan Reddy v. State, Janardhan Reddy v. State,

AIR 1951 SC 124 [
LNIND 1950 SC 56 ], p. 125 :
1950 SCR 940 [
LNIND 1950 SC 56 ].
82 Ganpat Rai Hiralal v. Chamber of Commerce, Ganpat Rai Hiralal v. Chamber of

Commerce,
AIR 1952 SC 409 [
LNIND 1952 SC 58 ], p. 410 (para 9) :
1953 SCR 752 .
83 The principle stated can be deduced from the following cases; Ittyavira Mathai v. Varkey Varkey,
Ittyavira Mathai v. Varkey Varkey,
AIR 1964 SC 907 [
LNIND 1963 SC 4 ], p. 914 :
1964 (1) SCR 495 [
LNIND 1963 SC 4 ]; Garikapati v. N. Subbiah Choudhry, Garikapati v. N.
Subbiah Choudhry,
AIR 1957 SC 540 [
LNIND 1957 SC 10 ]:
(1957) SCR 488 [
LNIND 1957 SC 10 ];
AIR 1956 SC 29 [
LNIND 1955 SC 76 ]:
1955 (2) SCR 872 [
LNIND 1955 SC 76 ]; Ganpat Rai Hiralal v. Chamber of Commerce, Ganpat
Rai Hiralal v. Chamber of Commerce,
AIR 1952 SC 402 ; Janardhan Reddy v. State, Janardhan Reddy v. State,
AIR 1951 SC 124 [
LNIND 1950 SC 56 ];
1950 SCR 940 [
LNIND 1950 SC 56 ]. See further Hukumchand Mills v. State of M.P.,
Hukumchand Mills v. State of M.P.,
AIR 1964 SC 1329 [
LNIND 1964 SC 46 ], pp. 1332, 1333 (para 5).
84 Ganpat Rai Hiralal v. Chamber of Commerce, Ganpat Rai Hiralal v. Chamber of

Commerce,
AIR 1952 SC 409 [
LNIND 1952 SC 58 ], p. 410 (para 8) :
1953 SCR 752 .
85 Ittyavira Mathai v. Varkey Varkey, Ittyavira Mathai v. Varkey Varkey,

AIR 1964 SC 907 [
LNIND 1963 SC 4 ], p. 914 :
(1964) 1 SCR 495 [
LNIND 1963 SC 4 ]; P. Mohd.Meera Lebbai v. Thirumalaya Gounder Ramaswami,
P. Mohd.Meera Lebbai v. Thirumalaya Gounder Ramaswami,
AIR 1966 SC 430 [
LNIND 1965 SC 200 ]:
1966 (1) SCR 574 [
LNIND 1965 SC 200 ].
86 Maria Cristina De Souza Sodder v. Amria Zurana Pereira Pinto, Maria Cristina De
Souza Sodder v. Amria Zurana Pereira Pinto,
AIR 1979 SC 1352 : (1979) 1 SCC 92.
Mr.Srikanth -
Page 84 of 103
87 Ibid. (But the wide observations that forum of appeal is always a matter of procedure are not correct,
see text and notes 62-65, pp. 531-32).
1 Dafedar Niranjan Singh v. Custodian, Evacuee Property, Dafedar Niranjan Singh v.

Custodian, Evacuee Property,
AIR 1961 SC 1425 [
LNIND 1961 SC 94 ]:
1962 (1) SCR 214 [
LNIND 1961 SC 94 ]; Keshavlal Jethalal Shah v. Mohanlal, Keshavlal Jethalal
Shah v. Mohanlal,
AIR 1968 SC 1336 [
LNIND 1968 SC 95 ]:
1968 (3) SCR 623 [
LNIND 1968 SC 95 ].
2
AIR 1927 PC 242 [
LNIND 1927 BOM 129 ]: 54 IA 421.
3 Ibid.
4 Ibid, p. 244.
5 Keshavlal Jethalal Shah v. Mohanlal, Keshavlal Jethalal Shah v. Mohanlal,

AIR 1968 SC 1336 [
LNIND 1968 SC 95 ], p. 1339 :
1968 (3) SCR 623 [
LNIND 1968 SC 95 ].
6 Indira Sohanlal v. Custodian of Evacuee Property, Indira Sohanlal v. Custodian of

Evacuee Property,
AIR 1956 SC 77 [
LNIND 1955 SC 85 ], p. 84 :
(1955) 2 SCR 1117 [
LNIND 1955 SC 85 ]; Moti Ram v. Suraj Bhan, Moti Ram v. Suraj Bhan,
AIR 1960 SC 655 [
LNIND 1960 SC 24 ], p. 657 :
(1960) 2 SCR 896 [
LNIND 1960 SC 24 ]; Rathbone v. Munn, Rathbone v. Munn,
(1868) 18 LT 857 (BLACKBURN, J.).
7 Nathoo Lal v. Durga Prasad, Nathoo Lal v. Durga Prasad,

AIR 1954 SC 355 [
LNIND 1954 SC 63 ], p. 357 :
1955 (1) SCR 51 [
LNIND 1954 SC 63 ]; Garikapati v. N. Subbiah Choudhry, Garikapati v. N.
Subbiah Choudhry,
AIR 1957 SC 540 [
LNIND 1957 SC 10 ], pp. 562, 563, 564 (paras 43, 46, 47) :
1957 SCR 488 [
LNIND 1957 SC 10 ].
Mr.Srikanth -
Page 85 of 103
8 Tikaram & Sons v. Commr. of Sales Tax, U.P., Tikaram & Sons v. Commr. of Sales
Tax, U.P.,
AIR 1968 SC 1286 [
LNIND 1968 SC 80 ], p. 1292 :
1968 (3) SCR 512 [
LNIND 1968 SC 80 ].
9 See title 2(j) ‘Statutes Regulating appeals’, supra.
10 See text and cases in notes 6 to 8, pp. 537-38.
11 Eyre v. Wynn Mckenzie, Eyre v. Wynn Mckenzie,

(1896) 1 Ch 135 (CA).
12 Bai Achhuba v. Kalidas, Bai Achhuba v. Kalidas,

AIR 1967 SC 651 [
LNIND 1963 SC 284 ]:
1964 (5) SCR 853 [
LNIND 1963 SC 284 ].
13 Sharif Ahmad v. Regional Transport Authority, Meerut, Sharif Ahmad v. Regional

Transport Authority, Meerut,
AIR 1978 SC 209 [
LNIND 1977 SC 301 ], p. 214 :
(1978) 1 SCC 1 [
LNIND 1977 SC 301 ].
14 Bishambhar Nath Kohli v. State of U.P., Bishambhar Nath Kohli v. State of U.P.,
AIR 1966 SC 573 [
LNIND 1965 SC 256 ], p. 579 :
(1966) 2 SCR 158 [
LNIND 1965 SC 256 ]; Mithoo Shahni v. Union of India, Mithoo Shahni v.
Union of India,
AIR 1964 SC 1536 [
LNIND 1964 SC 71 ], pp. 1539, 1540 :
(1964) 7 SCR 103 [
LNIND 1964 SC 71 ]. See further Special Military Estates Officer v. Munnivenkataramaiah,
Special Military Estates Officer v. Munnivenkataramaiah,
AIR 1990 SC 499 [
LNIND 1990 SC 4 ]:
(1990) 2 SCC 168 [
LNIND 1990 SC 4 ] [An award fixing annual compensation for requisition of land under the
Defence of India Act, 1962 made before its expiry though final for the period the Defence of India Act was in force was held to be
appealable under the
Requisitioning and Acquisition of Immovable Property Act, 1952 for a period subsequent thereto as the requisition
was deemed to be made under section 25 (substituted in 1968) of the Requisitioning Act.].
15 Shatrunjit v. Md. A. Azim Khan, Shatrunjit v. Md. A. Azim Khan,

AIR 1971 SC 1474 [
LNIND 1971 SC 246 ]:
1971 (2) SCC 200 [
LNIND 1971 SC 246 ]. But see Gurdit Singh v. State of Punjab, Gurdit Singh
v. State of Punjab,
AIR 1974 SC 1791 [
LNIND 1974 SC 148 ]:
Mr.Srikanth -
Page 86 of 103
(1974) 2 SCC 260 [

LNIND 1974 SC 148 ].
16 Jyoti Prakash Mitter v. C.J., Calcutta, Jyoti Prakash Mitter v. C.J., Calcutta,
AIR 1965 SC 961 [
LNIND 1964 SC 307 ], p. 969 :
1965 (2) SCR 53 [
LNIND 1964 SC 307 ].
17 Sunder Dass v. Ram Parkash, Sunder Dass v. Ram Parkash,

AIR 1977 SC 1201 [
LNIND 1977 SC 101 ], p. 1205 :
(1977) 2 SCC 662 [
LNIND 1977 SC 101 ].
18 Dulare Lodh v. Third Addl. Dist. Judge, Kanpur, Dulare Lodh v. Third Addl. Dist.
Judge, Kanpur,
(1984) 3 SCC 99 [
LNIND 1984 SC 142 ] :
AIR 1984 SC 1260 [
LNIND 1984 SC 142 ].
19 United Provinces v. Atiqa Begum (Mt.), United Provinces v. Atiqa Begum (Mt.),
AIR 1941 FC 16 , pp. 37, 47 :
1940 FCR 110 .
20 Venugopala v. Krishnaswami, Venugopala v. Krishnaswami,

AIR 1943 FC 24 , p. 27; Moti Ram v. Suraj Bhan, Moti Ram v. Suraj Bhan,
AIR 1960 SC 655 [
LNIND 1960 SC 24 ], p. 658; K.S. Paripoornan v. State of Kerala, K.S.
JT 1994 (6) SC 182 , p. 219 :
AIR 1995 SC 1012 .
21 Shyabuddinsab Mohidinsab Akki v. Gadag Betgeri Municipal Borough,

Shyabuddinsab Mohidinsab Akki v. Gadag Betgeri Municipal Borough,
AIR 1955 SC 314 [
LNIND 1955 SC 13 ], pp. 319, 320 :
(1955) 1 SCR 1268 [
LNIND 1955 SC 13 ]; K.C. Mukherjee v. Mt. Ramratan Kuer, K.C. Mukherjee
v. Mt. Ramratan Kuer,
AIR 1936 PC 49 : 63 IA 47. See further text and notes 36-42, pp. 542-43; Paripoornan v. State
of Kerala, supra, Paripoornan v. State of Kerala, supra, p. 214..
22 United Provinces v. Mt. Atiqa Begum, supra, United Provinces v. Mt. Atiqa Begum,
supra, p. 57 (SULAIMAN, J.); K.S. Paripoornan v. State of Kerala, supra, K.S. Paripoornan v. State of Kerala,
supra, p. 214.
23 Garikapati v. N. Subbiah Choudhry, Garikapati v. N. Subbiah Choudhry,

AIR 1957 SC 540 [
LNIND 1957 SC 10 ], p. 553 (para 25) :
1957 SCC 488 ; referred to in R. Rajgal Reddy v. Padmini Chandrasekharan, R.
Rajgal Reddy v. Padmini Chandrasekharan,
Mr.Srikanth -
Page 87 of 103
1995(1) Scale 692 [

LNIND 1995 SC 176 ], p. 703 :
AIR 1996 SC 238 [
LNIND 1995 SC 176 ], p. 246; Dy. Collector v. S. Venkata Ramanaiah, Dy.
Collector v. S. Venkata Ramanaiah,
1995 (5) Scale 521 , pp. 531, 532; Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar,
Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar,
JT 1999 (8) SC 45 [
LNIND 1999 SC 901 ], p. 54 :
AIR 1999 SC 3609 [
LNIND 1999 SC 901 ], p. 3613 :
(1999) 8 SCC 16 [
Kumar,
AIR 2001 SC 2472 [
LNIND 2001 SC 1541 ], p. 2478 :
(2001) 8 SCC 24 [
LNIND 2001 SC 1541 ].
24 A.A. Cotton v. Director of Education, A.A. Cotton v. Director of Education,

AIR 1983 SC 1143 [
LNIND 1983 SC 91 ]:
(1983) 3 SCC 33 [
LNIND 1983 SC 91 ].
25 Ibid. See further P. Mahendran v. State of Karnataka, P. Mahendran v. State of

Karnataka,
AIR 1990 SC 405 [
LNIND 1989 SC 606 ]:
(1990) 1 SCC 411 [
LNIND 1989 SC 606 ]; Gopal Krushna Rath v. M.A.A. Baig, Gopal Krushna
Rath v. M.A.A. Baig,
AIR 1999 SC 2093 , p. 2094 :
(1999) 1 SCC 544 .
26 Durga Hotel Complex v. Reserve Bank of India, Durga Hotel Complex v. Reserve
Bank of India,
(2007) 5 SCC 120 [
AIR 2007 SC 1467 [
LNIND 2007 SC 332 ].
27 Ibid.
28
(1909) 1 KB 310 , pp. 319, 320.
29
(1929) 38 TLR 128 (CA).
30
AIR 1951 SC 199 [
LNIND 1951 SC 12 ], p. 201 :
1951 SCR 221 [
LNIND 1951 SC 12 ]. Referred with apparent approval in Motiram Ghelabhai v. Maniram
Mr.Srikanth -
Page 88 of 103
Motiram, Motiram Ghelabhai v. Maniram Motiram,

(1985) 2 SCC 279 [
LNIND 1985 SC 70 ], p. 282 :
AIR 1985 SC 709 [
LNIND 1985 SC 70 ]. In Vineet Kumar v. Mangal Sain Wadhera, Vineet Kumar
v. Mangal Sain Wadhera,
(1984) 3 SCC 352 [
LNIND 1984 SC 7 ] :
AIR 1984 SC 817 , Section 20 of the U.P. Act, which uses similar language, was applied to a
pending suit when a house which was exempt from the operation of the Act came within its operation after expiry of ten years
during the pendency of the suit but this case was dissented from in Nand Kishore Marwah v. Samundri Devi,
Nand Kishore Marwah v. Samundri Devi,
(1987) 4 SCC 382 [
LNIND 1987 SC 654 ] :
AIR 1987 SC 2284 [
LNIND 1987 SC 654 ] and it was held that section 20 was inapplicable in such cases.
Nandkishore's case was followed in Atma Ram Mittal v. Ishwar Singh Punia, Atma Ram Mittal v. Ishwar Singh
Punia,
AIR 1988 SC 2031 [
LNIND 1988 SC 401 ]:
1988 (4) SCC 284 [
LNIND 1988 SC 401 ] (which related to exemption under the Haryana Act and where also the
period of exemption, i.e., 10 years expired during the pendency of the suit); Suresh Chand v. Gulam Chisti, Suresh
Chand v. Gulam Chisti,
AIR 1990 SC 897 [
LNIND 1990 SC 54 ]:
(1990) 1 SCC 593 [
LNIND 1990 SC 54 ]; Suresh Chand v. Gulam Chisti Suresh Chand v. Gulam
Chisti
AIR 1992 SC 1106 [
LNIND 1992 SC 73 ]:
(1992) 1 SCC 751 [
LNIND 1992 SC 73 ], and Bholanath Varshney v. Mulk Raj Madan, Bholanath
Varshney v. Mulk Raj Madan,
AIR 1994 SC 1664 (Cases under the U.P. Act); Kishan v. Manoj Kumar,
Kishan v. Manoj Kumar,
JT 1998 (1) SC 633 [
LNIND 1998 SC 196 ]:
AIR 1998 SC 999 [
LNIND 1998 SC 196 ]:
(1998) 2 SCC 710 [
LNIND 1998 SC 196 ] (a case under the Haryana Act). See also Shyam Charan v. Sheoji Bhai,
Shyam Charan v. Sheoji Bhai,
AIR 1977 SC 2270 [
LNIND 1977 SC 292 ], p. 2272 :
1977 (4) SCC 393 [
LNIND 1977 SC 292 ] (The M.P. Accommodation Control Act, 1961 does not apply to pending
suits).
31
AIR 1964 SC 1873 [
LNIND 1963 SC 261 ], p. 1876 :
1964 (5) SCR 517 [
LNIND 1963 SC 261 ]. Approved on this point in State of Kerala v. Ramaswami Iyer & Sons,
State of Kerala v. Ramaswami Iyer & Sons,
AIR 1966 SC 1738 [
LNIND 1966 SC 51 ]:
1966 (3) SCR 582 [
LNIND 1966 SC 51 ].
32
AIR 1943 FC 24 .
Mr.Srikanth -
Page 89 of 103
33 Manujendra v. Purnendu Prasad, Manujendra v. Purnendu Prasad,

AIR 1967 SC 1419 [
LNIND 1966 SC 203 ], p. 1422 :
1964 (6) SCR 654 [
LNIND 1964 SC 26 ]; Dewaji v. Ganpatlal, Dewaji v. Ganpatlal,
AIR 1969 SC 560 [
LNIND 1968 SC 195 ]:
(1969) 1 SCR 573 [
LNIND 1968 SC 195 ]; CIT v. Dhadi Sahu, CIT v. Dhadi Sahu, 1993 AIR SCW
3578 : 1994 Supp (1) SCC 257; CIT v. R. Shardamma (Smt.), CIT v. R. Shardamma (Smt.),
AIR 1996 SC 3199 [
LNIND 1996 SC 723 ], p. 3200 :
(1996) 8 SCC 388 [
LNIND 1996 SC 723 ]; R. Kapilnath v. Krishna, R. Kapilnath v. Krishna,
(2003) 1 SCC 444 [
LNIND 2002 SC 801 ], p. 446 :
AIR 2003 SC 565 [
LNIND 2002 SC 801 ], p. 567 (8th edition p. 442 of this book is referred with approval).
34 Mohd. Idris v. Sat Narain, Mohd. Idris v. Sat Narain,

AIR 1966 SC 1499 [
LNIND 1965 SC 370 ], p. 1501; Commr. of Income Tax v Dhadi Sahu, Commr.
of Income Tax v Dhadi Sahu, 1993 AIR SCW 3578 : 1994 Supp (1) SCC 257; R. Kapilnath v. Krishna, supra. R.
Kapilnath v. Krishna, supra.
AIR 1996 SC 3199 [
LNIND 1996 SC 723 ], p. 3200 :
1996 (8) SCC 388 [
LNIND 1996 SC 723 ]; R. Kapilnath v. Krishna, supra. R. Kapilnath v. Krishna,
supra. .
35 Inacio Martines v. Narayan Hari Naik, Inacio Martines v. Narayan Hari Naik,
AIR 1993 SC 1756 [
LNIND 1993 SC 337 ]:
1993 (3) SCC 123 [
LNIND 1993 SC 337 ]; Judith Fernandes (Mrs.) v. Conceicao Antonio Fernandes,
Judith Fernandes (Mrs.) v. Conceicao Antonio Fernandes,
AIR 1996 SC 2821 : (1996) 10 SCC 401. See further United Bank of India, Calcutta v.
Abhijit Tea Co. Pvt. Ltd., United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.,
AIR 2000 SC 2957 [
LNIND 2000 SC 1190 ]:
(2000) 7 SCC 357 [
section 18 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 ).
36 Shyabuddinsab v. Municipality of Gadag Betgeri, Shyabuddinsab v. Municipality of

Gadag Betgeri,
AIR 1955 SC 314 [
LNIND 1955 SC 13 ], p. 320 :
(1955) 1 SCR 1268 [
LNIND 1955 SC 13 ]; Mohanlal Jain v. Sawai Man Singhji, Mohanlal Jain v.
Sawai Man Singhji,
AIR 1962 SC 73 , p. 76 :
1962 (1) SCR 702 [
LNIND 1961 SC 84 ].
37 See cases in note 21, p. 539, supra. See further King v. Southampton Income-tax Commrs., Ex
parte, W.M. Singer, King v. Southampton Income-tax Commrs., Ex parte, W.M. Singer,
(1916) 2 KB 249 , p. 259; K.C. Mukherjee v. Mt.Ramratan Kuer, K.C.
Mr.Srikanth -
Page 90 of 103
Mukherjee v. Mt.Ramratan Kuer,

AIR 1936 PC 49 : 63 IA 47; United Provinces v. Mt. Atiqa Begum, United
Provinces v. Mt. Atiqa Begum,
AIR 1941 FC 16 , p. 40; Dayawati v. Inderjit, Dayawati v. Inderjit,
AIR 1966 SC 1423 [
LNIND 1966 SC 15 ]:
1966 (3) SCR 275 [
LNIND 1966 SC 15 ].
38 Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai, Ishverlal Thakorelal Almaula

v. Motibhai Nagjibhai,
AIR 1966 SC 459 [
LNIND 1965 SC 186 ], p. 466 (para 12) :
(1966) 1 SCR 450 [
LNIND 1965 SC 188 ].
39 Quilter v. Mapleson, Quilter v. Mapleson,

(1882) 9 QBD 672 , p. 676; Stovin v. Fairbrass, Stovin v. Fairbrass,
(1919) 88 LJKB 1004 , p. 1010; A.G. v. Vernazza, A.G. v. Vernazza,
(1960) 3 All ER 97 , p. 101 :
(1960) AC 965 :
(1960) 3 WLR 466 (HL); Lachmeshwar v. Keshav Lal, Lachmeshwar v. Keshav
Lal,
AIR 1941 FC 5 , pp. 12, 13, 14; Kotturuswami v. Veeravva, Kotturuswami v.
Veeravva,
AIR 1959 SC 577 [
LNIND 1958 SC 172 ], p. 579 : 1959 Supp (1) SCC 968; Dayawati v. Inderjit,
Dayawati v. Inderjit,
AIR 1966 SC 1423 [
LNIND 1966 SC 15 ]; Lakshmi Narayan Gun v. Niranjan Modak, Lakshmi
Narayan Gun v. Niranjan Modak,
(1985) 1 SCC 270 [
LNIND 1984 SC 328 ], p. 274 :
AIR 1985 SC 111 [
LNIND 1984 SC 328 ]; United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.,
United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd.,
AIR 2000 SC 2957 [
LNIND 2000 SC 1190 ], p. 2962 :
(2000) 7 SCC 357 [
LNIND 2000 SC 1190 ] (7th edition p. 406 of this book is referred).
40 CIT v. Straw Products, CIT v. Straw Products,

AIR 1966 SC 1113 [
LNIND 1965 SC 349 ]:
1966 (2) SCR 881 [
LNIND 1965 SC 349 ].
41 Union of India v. ITC Limited, Union of India v. ITC Limited,

AIR 1993 SC 2135 , pp. 2141, 2145 : 1993 Supp (4) SCC 326.
AIR 1990 SC 981 [
LNIND 1989 SC 598 ], pp. 984, 985 :
1990 (1) SCC 277 [
LNIND 1989 SC 598 ].
Mr.Srikanth -
Page 91 of 103
43 See text and notes 39 and 40, p. 497.
44 Union of India v. Raghubir Singh, Union of India v. Raghubir Singh,

AIR 1989 SC 1933 [
LNIND 1989 SC 328 ]:
1989 (2) SCC 754 [
LNIND 1989 SC 328 ]; K.S. Paripoornan v. State of Kerala, K.S. Paripoornan
v. State of Kerala,
JT 1994 (6) SC 182 :
AIR 1995 SC 1012 : (1994) 5 SCC 593 followed in Ghaziabad Development Authority v.
Anoop Singh, Ghaziabad Development Authority v. Anoop Singh,
(2003) 2 SCC 484 [
LNIND 2003 SC 81 ] :
AIR 2003 SC 1004 [
LNIND 2003 SC 81 ]. See further Union of India v. Swarn Singh, Union of
India v. Swarn Singh,
AIR 1997 SC 462 [
LNIND 1996 SC 1008 ]:
(1996) 5 SCC 501 [
LNIND 1996 SC 1008 ] (There is no inherent power to give the benefit of the
amending Act to awards to which it does not apply and any order giving such a benefit is a nullity and can be
challenged even in execution proceedings).
45 K.S. Paripoornan v. State of Kerala, supra, K.S. Paripoornan v. State of Kerala,

supra, p. 209.
46 Union of India v. Raghubir Singh, supra, Union of India v. Raghubir Singh, supra,
pp. 1948, 1949.
AIR 1990 SC 981 [
LNIND 1989 SC 598 ]:
1990 (1) SCC 277 [
LNIND 1989 SC 598 ].
48
AIR 1936 PC 49 : 63 IA 47.
49
AIR 1955 SC 314 [
LNIND 1955 SC 13 ]:
1955 (1) SCR 1268 [
LNIND 1955 SC 13 ].
50
AIR 1961 SC 1596 [
LNIND 1961 SC 194 ], p. 1601. See further on the same point Lakshmi Narayan Gun v.
Niranjan Modak, Lakshmi Narayan Gun v. Niranjan Modak,
(1985) 1 SCC 270 [
LNIND 1984 SC 328 ], p. 274 :
AIR 1985 SC 111 [
LNIND 1984 SC 328 ]. But see Moti Ram v. Suraj Bhan, Moti Ram v. Suraj
Bhan,
AIR 1960 SC 655 [
Mr.Srikanth -
Page 92 of 103
LNIND 1960 SC 24 ], p. 658 :

(1960) 2 SCR 974 [
LNIND 1960 SC 33 ] (Amendment during pendency of proceeding restricting ground of
ejectment, held not retrospective). Compare cases in text and footnote 30, p. 541.
51 See also Motiram Ghelabhai v. Maniram Motiram, Motiram Ghelabhai v.

Maniram Motiram,
(1985) 2 SCC 279 [
LNIND 1985 SC 70 ] :
AIR 1985 SC 709 [
LNIND 1985 SC 70 ](But not to a pending appeal because of a special proviso in the nature of a
saving).
52
AIR 1964 SC 1511 [
LNIND 1964 SC 48 ], pp. 1514, 1515 :
1964 (6) SCR 876 [
LNIND 1964 SC 48 ]. Also see Lakshmi Narayan Gun v. Niranjan Modak, supra
Lakshmi Narayan Gun v. Niranjan Modak, supra .
53 Ibid.
54 Ibid, pp. 1514, 1515.
55 United Bank of India, Calcutta v. Abhijit Teo Co. Pvt. Ltd., United Bank of India,
Calcutta v. Abhijit Teo Co. Pvt. Ltd.,
AIR 2000 SC 2957 [
LNIND 2000 SC 1190 ], p. 2962 :
(2000) 7 SCC 357 [
LNIND 2000 SC 1190 ].
56 Nathia Agarwalla v. Jahanara Begum, Nathia Agarwalla v. Jahanara Begum,

AIR 1967 SC 92 [
LNIND 1966 SC 88 ]:
1966 (3) SCR 926 [
LNIND 1966 SC 88 ]. See further Kanailal Sur v. Paramnidhi Sadhu Khan,
Kanailal Sur v. Paramnidhi Sadhu Khan,
AIR 1957 SC 907 [
LNIND 1957 SC 83 ]:
1958 SCR 360 [
LNIND 1957 SC 83 ]; M. Subbarao & Sons v. Yoshodamma, M. Subbarao &
Sons v. Yoshodamma,
AIR 2002 SC 3284 [
LNIND 2002 SC 588 ]:
(2002) 7 SCC 553 [
LNIND 2002 SC 588 ] (An eviction decree which has became final before repeal of the Act
though not yet executed is not affected by the new Act unless there be clear words to the contrary). But see H. Shiva Rao v. Cecila
Pereira, H. Shiva Rao v. Cecila Pereira,
(1987) 1 SCC 258 , pp. 260, 261 :
AIR 1987 SC 248 in which it was held that the words ‘no order or decree for recovery of
possession shall be made’ barred even pending execution proceedings.
57 Dilip v. Mohd. Azizul Haque, Dilip v. Mohd. Azizul Haque,

AIR 2000 SC 1796 [
LNIND 2000 SC 654 ], p. 1979 :
Mr.Srikanth -
Page 93 of 103
(2000) 3 SCC 607 [

LNIND 2000 SC 475 ].
58 Laxman Marotrao Navakhare v. Keshavrao Eknathsa Tapar, Laxman Marotrao

Navakhare v. Keshavrao Eknathsa Tapar,
AIR 1993 SC 2596 [
LNIND 1993 SC 180 ]:
1993 (2) SCC 270 [
LNIND 1993 SC 180 ]. For the nature of the power under Article 136, see Teherakhatoon v.
Salambin Mohammad, Teherakhatoon v. Salambin Mohammad,
JT 1999 (2) SC 452 :
AIR 1999 SC 1104 [
LNIND 1999 SC 207 ]:
(1999) 2 SCC 635 [
LNIND 1999 SC 207 ] and cases referred to therein.
59 East India Corporation Ltd. v. Shree Manakshi Mills Ltd., East India Corporation
Ltd. v. Shree Manakshi Mills Ltd.,
AIR 1991 SC 1094 [
LNIND 1991 SC 218 ]:
1991 (3) SCC 230 [
LNIND 1991 SC 218 ].
60
AIR 1974 SC 396 [
LNIND 1973 SC 374 ], p. 402 :
(1974) 1 SCC 202 [
LNIND 1973 SC 374 ].
61 Idul Hasan v. Rajindra Kumar Jain, Idul Hasan v. Rajindra Kumar Jain,
AIR 1990 SC 678 [
LNIND 1989 SC 430 ], p. 681 :
1989 (4) SCC 550 [
LNIND 1989 SC 430 ].
62
AIR 1963 SC 553 [
LNIND 1962 SC 286 ], pp. 562, 563 :
(1963) 3 SCR 858 [
LNIND 1962 SC 286 ]. Followed in Mula v. Godhu, Mula v. Godhu,
AIR 1971 SC 89 [
LNIND 1969 SC 295 ], p. 91. See further Amarjit Kaur v. Pritam Singh,
Amarjit Kaur v. Pritam Singh,
AIR 1974 SC 2068 [
LNIND 1974 SC 210 ]:
(1974) 2 SCC 363 [
LNIND 1974 SC 210 ]; Sadhu Singh v. Dharundev, Sadhu Singh v. Dharundev,
AIR 1980 SC 1654 : (1981) 1 SCC 510. A new law applying to ‘suits pending’ will apply to all
stages of the suit including appeals, at any rate to an appeal against a preliminary decree: Dayawati v. Inderjit,
Dayawati v. Inderjit,
AIR 1966 SC 1423 [
LNIND 1966 SC 15 ]. A new law applying to ‘a suit or proceeding’ will not ordinarily apply to
pending appeals: Dewaji v. Ganpatlal, Dewaji v. Ganpatlal,
AIR 1969 SC 560 [
LNIND 1968 SC 195 ]:
(1969) 1 SCR 573 [
LNIND 1968 SC 195 ] especially appeals under Article 136 pending in Supreme Court,
Marotrao Navakhare v. Keshavrao Eknathsa Tapar, Marotrao Navakhare v. Keshavrao Eknathsa Tapar,
Mr.Srikanth -
Page 94 of 103
AIR 1993 SC 2596 [

LNIND 1993 SC 180 ], p. 2601 :
1993 (2) SCC 270 [
LNIND 1993 SC 180 ].
63 Shyam Sunder v. Ram Kumar, Shyam Sunder v. Ram Kumar,

AIR 2001 SC 2472 [
LNIND 2001 SC 1541 ]:
(2001) 8 SCC 24 [
LNIND 2001 SC 1541 ].
64
AIR 1989 SC 1247 [
LNIND 1989 SC 96 ]:
1989 (2) SCC 95 [
LNIND 1989 SC 96 ]. See further Darshan Singh v. Rampal Singh, Darshan
Singh v. Rampal Singh,
AIR 1991 SC 1654 [
LNIND 1990 SC 725 ]:
1990 (4) JT 561 [
LNIND 1990 SC 725 ] : 1992 Supp (1) SCC 191 (
Amending Act to the effect ‘no person shall contest any alienation of immovable property’ was held to apply to a
suit pending in appeal).
65
AIR 1994 SC 1647 , p. 1648 : 1994 Supp. (2) SCC 559.
66
1995 (1) Scale 692 [
LNIND 1995 SC 176 ] :
AIR 1996 SC 238 [
LNIND 1995 SC 176 ]:
(1995) 2 SCC 630 [
LNIND 1995 SC 176 ]. For this case see p. 508.
67
AIR 1962 SC 73 , p. 76 :
1962 (1) SCR 702 [
LNIND 1961 SC 84 ].
68
AIR 1976 SC 1810 [
LNIND 1976 SC 218 ]:
(1976) 3 SCC 602 [
LNIND 1976 SC 218 ].
69
1995(2) Scale 657 :
AIR 1995 SC 1215 [
LNIND 1995 SC 1391 ]: 1995 Supp (2) SCC 295.
70
AIR 1999 SC 999 [
Mr.Srikanth -
Page 95 of 103
LNIND 1999 SC 158 ]:

(1999) 2 SCC 543 [
LNIND 1999 SC 158 ].
71 See title 2(a)(iii) Statutes dealing with procedure, pp. 498 to 500.
72
(1960) 3 All ER 97 :
1960 AC 965 :
(1960) 3 WLR 466 (HL).
73 Ibid, p. 101.
74
(1954) 3 All ER 17 .
75
AIR 1958 SC 915 [
LNIND 1958 SC 80 ]:
1959 SCR 919 [
LNIND 1958 SC 80 ].
76
(1966) 1 All ER 524 :
1966 AC 643 (HL).
77 Nani Gopal Mitra v. State of Bihar, Nani Gopal Mitra v. State of Bihar,
AIR 1970 SC 1636 [
LNIND 1968 SC 309 ], p. 1639 :
1969 (2) SCR 411 [
LNIND 1968 SC 309 ].
78 Ibid.
79 G.P. Nayyar v. State, G.P. Nayyar v. State,

AIR 1979 SC 602 [
LNIND 1978 SC 390 ]:
(1979) 2 SCC 593 [
LNIND 1978 SC 390 ].
80 Naga Peoples Movement of Human Rights v. Union of India, Naga Peoples

Movement of Human Rights v. Union of India,
AIR 1998 SC 431 [
LNIND 1997 SC 1511 ], p. 446 (para 20) :
1998 (2) SCC 1093 (also the cases referred to therein); State of Karnataka v. Viswabarathi
House Building Co-op. Society, State of Karnataka v. Viswabarathi House Building Co-op. Society,
AIR 2003 SC 1043 [
LNIND 2003 SC 60 ], p. 1052 :
(2003) 2 SCC 412 [
LNIND 2003 SC 60 ]. See further, Peoples Union for Civil Liberties v. Union of India,
Mr.Srikanth -
Page 96 of 103
Civil Liberties v. Union of India,

AIR 2004 SC 456 [
LNIND 2003 SC 1103 ], p. 467 :
(2004) 9 SCC 580 [
LNIND 2003 SC 1103 ] (As terrorism is much wider than Law and Order/Public Order, laws
enacted for prevention of terrorism will fall within the residuary jurisdiction of Parliament).
81 Balaji v. I.T. Officer, Balaji v. I.T. Officer,

AIR 1962 SC 123 [
LNIND 1961 SC 261 ], p. 125 :
1962 (2) SCR 983 [
LNIND 1961 SC 261 ]; Union of India v. H. S. Dhillon, Union of India v. H. S.
Dhillon,
AIR 1972 SC 1061 [
LNIND 1971 SC 544 ], p. 1070 :
1971 (2) SCC 779 [
LNIND 1971 SC 544 ]; Union of India v. Shah Goberdhanlal Kabra Teachers’ College,
Union of India v. Shah Goberdhanlal Kabra Teachers’ College, (2002) 8 SCC, pp. 233, 234; Welfare Association ARP
Maharashtra v. Ranjit P. Gohil, Welfare Association ARP Maharashtra v. Ranjit P. Gohil,
AIR 2003 SC 1266 [
LNIND 2003 SC 218 ], p. 1278 :
(2003) 9 SCC 358 [
LNIND 2003 SC 218 ].
82 State of Madras v. Gannon Dunkerley, State of Madras v. Gannon Dunkerley,

AIR 1958 SC 560 [
LNIND 1958 SC 39 ], pp. 564, 565 :
1959 SCR 379 [
LNIND 1958 SC 39 ]; Jagannath Baksh Singh v. State of U.P., Jagannath Baksh
Singh v. State of U.P.,
AIR 1962 SC 1563 [
LNIND 1962 SC 145 ], p. 1568 :
(1963) 1 SCR 220 [
LNIND 1962 SC 145 ]; Express Hotels Private Ltd. v. State of Gujarat, Express
Hotels Private Ltd. v. State of Gujarat,
AIR 1989 SC 1949 [
LNIND 1989 SC 286 ],p. 1956 :
(1989) 3 SCC 677 [
LNIND 1989 SC 286 ]; Elel Hotels and Investments Ltd. v. Union of India, Elel
Hotels and Investments Ltd. v. Union of India,
AIR 1990 SC 1664 [
LNIND 1989 SC 293 ], pp. 1668, 1669 :
(1989) 3 SCC 698 [
LNIND 1989 SC 293 ]; P.N. Krishna Lal v. Government of Kerala, P.N.
Krishna Lal v. Government of Kerala, 1995 AIR SCW 1325, p. 1332 : 1995 Supp (2) SCC 187; Union of India v. Shah
Goberdhanlal Kabra Teachers College, supra Union of India v. Shah Goberdhanlal Kabra Teachers College,
supra Welfare Association ARP Maharashtra v. Ranjit P. Gohil, supra, Welfare Association ARP
Maharashtra v. Ranjit P. Gohil, supra, pp. 1278, 1279.
83 Union of India v. Delhi High Court Bar Association, Union of India v. Delhi High
Court Bar Association,
AIR 2002 SC 1479 [
LNIND 2002 SC 206 ]:
(2002) 2 SCC 642 [
LNIND 2002 SC 108 ]. But ‘Co-operative Banks’ do not fall under Entry 45 List 1 and they are
constituted under Entry 32 List II which relates to ‘co-operative societies’. As a result the Recovery of Debts Due to Banks and
Financial Institutions Actenacted by Parliament has no application to co-operative banks: Greater Bombay Co-op. Bank Ltd. v.
United Yarn Tex (P.) Ltd., Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex (P.) Ltd.,
(2007) 6 SCC 236 [
LNIND 2007 SC 420 ] para 98 :
Mr.Srikanth -
Page 97 of 103
AIR 2007 SC 1584 [

LNIND 2007 SC 420 ]. See pp. 322-23 also for this case.
84 Union of India v. Shah Goberdhan L. Kabra Teachers’ College, Union of India v.

Shah Goberdhan L. Kabra Teachers’ College,
(2002) 8 SCC 228 [
LNIND 2002 SC 651 ] :
AIR 2002 SC 3675 [
LNIND 2002 SC 651 ].
85 Indian Handicrafts Emporium v. Union of India, Indian Handicrafts Emporium v.

Union of India,
AIR 2003 SC 3240 [
LNIND 2003 SC 718 ], p. 3257 :
(2003) 7 SCC 589 [
LNIND 2003 SC 718 ].
86 Cal. Gas (Prop.) Ltd. v. State of W. B., Cal. Gas (Prop.) Ltd. v. State of W. B.,
AIR 1962 SC 1044 [
LNIND 1962 SC 477 ], p. 1050 : 1962 Supp (3) SCR 1; Waverly Jute Mills v. Raymon & Co.,
Waverly Jute Mills v. Raymon & Co.,
AIR 1963 SC 90 [
LNIND 1962 SC 587 ], p. 95 :
1963 (3) SCR 209 [
LNIND 1964 SC 416 ]; Union of India v. Shah Goberdhanlal Kabra Teachers College, supra;
Union of India v. Shah Goberdhanlal Kabra Teachers College, supra; ; Welfare Association ARP Maharashtra v. Ranjit P. Gohil,
supra Welfare Association ARP Maharashtra v. Ranjit P. Gohil, supra .
87 ITC Ltd. v. Agricultural Produce Market Committee, ITC Ltd. v. Agricultural

Produce Market Committee,
AIR 2002 SC 852 [
LNIND 2002 SC 63 ]:
(2002) 9 SCC 232 [
LNIND 2002 SC 63 ](
Constitution bench).
88 Ibid.
89 Special Reference No. 1 of 2001,

(2004) 4 SCC 489 [
LNIND 2004 SC 1507 ] :
AIR 2004 SC 2647 .
90 Prof. Yashpal v. State of Chhattisgarh, Prof. Yashpal v. State of Chhattisgarh,

(2005) 5 SCC 420 [
LNIND 2005 SC 135 ], p. 444.
91 Subramanyan v. Muttuswami, Subramanyan v. Muttuswami,

AIR 1941 FC 47 , p. 51; Assistant Commissioner of Urban Land Tax, Madras v. Buckingham
and Carnatic Co. Ltd., Assistant Commissioner of Urban Land Tax, Madras v. Buckingham and Carnatic Co. Ltd.,
AIR 1970 SC 169 [
LNIND 1969 SC 163 ], p. 176 :
1969 (2) SCC 55 [
Mr.Srikanth -
Page 98 of 103
LNIND 1969 SC 163 ]; Union of India v. Shah Goberdhanlal Kabra Teachers College,
Union of India v. Shah Goberdhanlal Kabra Teachers College,
(2002) 8 SCC 228 [
LNIND 2002 SC 651 ], p. 234; Welfare Association ARP Maharashtra v. Ranjit P. Gohil,
Welfare Association ARP Maharashtra v. Ranjit P. Gohil,
AIR 2003 SC 1266 [
LNIND 2003 SC 218 ], pp. 1278, 1279 :
(2003) 9 SCC 358 [
LNIND 2003 SC 218 ]; Hindustan Liver Ltd. v. State of Maharashtra,
Hindustan Liver Ltd. v. State of Maharashtra,
AIR 2004 SC 326 , p. 339 :
(2004) 9 SCC 438 , Bharat Hydro Power Corpn. v. State of Assam, Bharat
Hydro Power Corpn. v. State of Assam,
(2004) 2 SCC 553 [
LNIND 2004 SC 27 ], p. 561 :
AIR 2004 SC 3173 [
LNIND 2004 SC 27 ]; E.V. Chinnaiah v. State of Andhra Pradesh, E.V.
Chinnaiah v. State of Andhra Pradesh,
AIR 2005 SC 162 [
LNIND 2004 SC 1137 ], p. 171, Jamshed N. Guzdar v. State of Maharashtra,
Jamshed N. Guzdar v. State of Maharashtra,
(2005) 2 SCC 591 [
LNIND 2005 SC 33 ], pp. 635 to 637. The expression ‘pith and substance’ was first used by Lord
Watson in Union Colliery Co. of British Columbia v. Bryden, Union Colliery Co. of British Columbia v. Bryden,
(1899) AC 580 , p. 599[see in this context Street, ‘Doctrine of Ultra Vires’ (1930), (Sweet and
Maxwell), p. 449].
92 A.G. of Sakatchewan v. A.G. of Canada, A.G. of Sakatchewan v. A.G. of Canada,

AIR 1949 PC 190 , p. 193; Kannan Deval Hills Produce Co. Ltd. v. State of Kerala,
Kannan Deval Hills Produce Co. Ltd. v. State of Kerala,
AIR 1972 SC 2301 [
LNIND 1972 SC 262 ], p. 2307 :
(1972) 2 SCC 218 [
LNIND 1972 SC 262 ], p. 229 (para 28).
93 Prafulla Kumar v. Bank of Commerce Khulna, Prafulla Kumar v. Bank of

Commerce Khulna,
AIR 1947 PC 60 [
LNIND 1947 PC 7 ], p. 65; State of Bombay v. F.N. Balsara, State of Bombay v.
F.N. Balsara,
AIR 1951 SC 318 [
LNIND 1951 SC 42 ], p. 322 (para 8) :
1951 SCR 682 [
LNIND 1951 SC 42 ]; Chaturbhai v. Union of India, Chaturbhai v. Union of
India,
AIR 1960 SC 424 [
LNIND 1959 SC 214 ], p. 429 :
(1960) 2 SCR 362 [
LNIND 1959 SC 214 ]; Ishwari Khetan Sugar Mills (P) Ltd. v. State of Uttar Pradesh,
Ishwari Khetan Sugar Mills (P) Ltd. v. State of Uttar Pradesh,
(1980) 4 SCC 136 [
LNIND 1980 SC 161 ], p. 147:
AIR 1980 SC 1955 [
LNIND 1980 SC 161 ]; Federation of Hotel and Restaurant Association of India v. Union of
India, Federation of Hotel and Restaurant Association of India v. Union of India,
(1989) 3 SCC 634 [
LNIND 1989 SC 299 ], pp. 652, 653:
AIR 1990 SC 1637 [
LNIND 1989 SC 299 ]; Siel Ltd. v. Union of India, Siel Ltd. v. Union of India,
AIR 1998 SC 3076 [
LNIND 1998 SC 870 ], p. 3081 :
1998 (7) SCC 26 [
LNIND 1998 SC 870 ]; Union of India v. Shah Goberdhanlal Kabra, Teachers College, supra
Mr.Srikanth -
Page 99 of 103
Union of India v. Shah Goberdhanlal Kabra, Teachers College, supra ; T.N. Kalyan Mandal Association v. Union of India,
T.N. Kalyan Mandal Association v. Union of India,
(2004) 5 SCC 632 [
LNIND 2004 SC 493 ], p. 652:
AIR 2004 SC 3757 [
LNIND 2004 SC 493 ].
94 Article 254.
95 Rishikesh v. Salma Begum (Smt.), Rishikesh v. Salma Begum (Smt.),

(1995) 4 SCC 718 :
AIR 1995 SCW 2476 ; M.P. Shikshak v. R.P.F. Commissioner, M.P. Shikshak
v. R.P.F. Commissioner,
AIR 1999 SC 443 [
LNIND 1998 SC 1056 ], pp. 446, 447:
(1999) 1 SCC 396 [
LNIND 1998 SC 1056 ]; Engineering Kamgar Union v. M/s. Electro Steel Castings Ltd.,
Engineering Kamgar Union v. M/s. Electro Steel Castings Ltd.,
AIR 2004 SC 2401 [
LNIND 2004 SC 508 ], pp. 2410, 2411 :
(2004) 6 SCC 36 [
LNIND 2004 SC 508 ].
96 Kaiser-I-Hind Pvt. Ltd. v. National Textile Corporation, Kaiser-I-Hind Pvt. Ltd. v.

National Textile Corporation,
AIR 2002 SC 3404 [
LNIND 2002 SC 604 ]:
(2002) 8 SCC 182 [
LNIND 2002 SC 604 ].
97 Art 254.
1 Madhya Pradesh State Road Transport Corporation v. Heeralal Chotelal, Madhya

Pradesh State Road Transport Corporation v. Heeralal Chotelal,
1980 MPLJ 8 (FB) pp. 17, 18 (G.P. singh C.J.); ITC Ltd. v. Agricultural Produce Market
Committee, ITC Ltd. v. Agricultural Produce Market Committee,
AIR 2002 SC 852 [
LNIND 2002 SC 63 ], p. 921 :
(2002) 9 SCC 232 [
LNIND 2002 SC 63 ].
2
(2004) 4 SCC 489 [
LNIND 2004 SC 1507 ] :
AIR 2004 SC 2647 .
3 Ibid, pp. 499, 500. These observations have also been quoted with approval in Jamshed N. Guzdar v.
State of Maharashtra, Jamshed N. Guzdar v. State of Maharashtra,
(2005) 2 SCC 591 [
LNIND 2005 SC 33 ], p. 637 which is also a
Constitution Bench decision. See further Govt. of A.P. v. J.B. Educational Society, Govt. of
A.P. v. J.B. Educational Society,
(2005) 3 SCC 212 [
LNIND 2005 SC 183 ], pp. 219, 220(paras 9, 10, 11 and 12).
Mr.Srikanth -
Page 100 of 103
4
AIR 2002 SC 852 [
LNIND 2002 SC 63 ], p. 921 :
(2002) 9 SCC 232 [
LNIND 2002 SC 63 ] (para 130).
5 Hindustan Lever v. State of Maharashtra, Hindustan Lever v. State of Maharashtra,

AIR 2004 SC 326 , p. 339 (para 35) :
(2004) 9 SCC 438 and cases referred to therein; State of Bihar v. Shree Baidyanath Ayurvedic
Bhavan (P.) Ltd., State of Bihar v. Shree Baidyanath Ayurvedic Bhavan (P.) Ltd.,
(2005) 2 SCC 762 [
LNIND 2005 SC 34 ], p. 779 (para 25).
6 Bar Council of India v. Board of Management of Dayanand College of Law, Bar

Council of India v. Board of Management of Dayanand College of Law,
(2007) 2 SCC 202 (paras 12 and 13) :
AIR 2007 SC 1342 [
LNIND 2006 SC 1050 ].
7 Deepchand v. State of U.P., Deepchand v. State of U.P.,

AIR 1959 SC 648 [
LNIND 1959 SC 3 ], p. 665 : 1959 Supp (2) SCR 8; State of Orissa v. Tulloch & Co.,
State of Orissa v. Tulloch & Co.,
AIR 1964 SC 1284 [
LNIND 1963 SC 191 ], p. 1292 : 1
1964 (4) SCR 461 [
LNIND 1963 SC 191 ]; M. Karunanidhi v. Union of India, M. Karunanidhi v.
Union of India,
AIR 1979 SC 898 [
LNIND 1979 SC 135 ], pp. 909, 910 :
(1979) 3 SCC 431 [
LNIND 1979 SC 135 ]; Kulwant Kaur v. Gurdial Singh, Kulwant Kaur v.
Gurdial Singh,
AIR 2001 SC 1273 [
LNIND 2001 SC 739 ]; Kanka Griha Nirman Sahakari Sangha v. Narayanamma Smt.,
Kanka Griha Nirman Sahakari Sangha v. Narayanamma Smt.,
AIR 2002 SC 3659 [
LNIND 2002 SC 630 ], p. 3663 :
(2003) 1 SCC 228 [
LNIND 2002 SC 630 ], p. 235; M.P. AIT Permit Owners Ass. v. State of M.P.,
M.P. AIT Permit Owners Ass. v. State of M.P.,
(2004) 1 SCC 320 [
LNIND 2004 SC 141 ] :
AIR 2004 SC 981 [
LNIND 2003 SC 1039 ](State Act enhancing penalty for an offence under the Central Act will
give rise to repugnancy and the State Act would be void unless president's assent is obtained to the State Act); Mehsana District
Central Co-operative Bank Ltd. v. State of Gujarat, Mehsana District Central Co-operative Bank Ltd. v. State of
Gujarat,
(2004) 2 SCC 463 [
LNIND 2004 SC 117 ], p. 467 :
AIR 2004 SC 1576 [
LNIND 2004 SC 117 ]; Govt. of A.P. v. J.B. Education Society, Govt. of A.P. v.
J.B. Education Society,
(2005) 3 SCC 212 [
LNIND 2005 SC 183 ], pp. 221, 222. If the entire field is not covered, repugnancy must exist in
fact and must not be a mere possibility: Siel Ltd. v. Union of India, Siel Ltd. v. Union of India,
AIR 1956 SC 676 [
LNIND 1956 SC 37 ]:
1958 SCR 393 ; Siel Ltd. v. Union of India, Siel Ltd. v. Union of India,
Mr.Srikanth -
Page 101 of 103
AIR 1998 SC 3076 [

LNIND 1998 SC 870 ], p. 3080 :
(1998) 7 SCC 26 [
LNIND 1998 SC 870 ]; Saurashtra Oil Mills Association v. State of Gujarat,
Saurashtra Oil Mills Association v. State of Gujarat,
AIR 2002 SC 1130 [
LNIND 2002 SC 127 ], p. 1136 :
(2002) 3 SCC 202 [
LNIND 2002 SC 127 ]; Punjab Dairy Development Board v. Cepham Milk Specialities Ltd.,
Punjab Dairy Development Board v. Cepham Milk Specialities Ltd.,
(2004) 8 SCC 621 [
LNIND 2004 SC 826 ], p. 628 (para 12) :
(2004) 7 JT 5 [
LNIND 2004 SC 826 ]; Bharat Hydro Power Corpn. Ltd. v. State of Assam,
Bharat Hydro Power Corpn. Ltd. v. State of Assam,
(2004) 2 SCC 553 [
LNIND 2004 SC 27 ], pp. 564, 565, 569, 570 :
AIR 2004 SC 3173 [
LNIND 2004 SC 27 ](Even if both competing legislations are enacted under the same entry in
List III, there can be no repugnancy if both can be obeyed without any clash between them. See further Telstra Corporation Ltd.
v. Worthing, Telstra Corporation Ltd. v. Worthing, (1999) 73 ALJR 470, pp. 480, 481 (Paras 58 to 59); Telstra
Corporation Ltd. v. Worthing, Telstra Corporation Ltd. v. Worthing, (1999) 73 ALJR 565, p. 571 (Paras 27 to 29).
Also see, Chapter 7 title 5(a) ‘Implied repeal’ pp. 640 to 644.
8 U.P Co-operative Cane Unions Federations v. West U.P. Sugar Mills Association,
U.P Co-operative Cane Unions Federations v. West U.P. Sugar Mills Association,
(2004) 5 SCC 430 [
LNIND 2004 SC 623 ], p. 449 (para 12) :
AIR 2004 SC 3697 [
LNIND 2004 SC 623 ](case of Tika Ramji v. State of Uttar Pradesh, supra, Tika
Ramji v. State of Uttar Pradesh, supra, distinguished).
9 Godawat Pan Masala Products P. Ltd. v. Union of India, Godawat Pan Masala
Products P. Ltd. v. Union of India,
(2004) 7 SCC 68 [
LNIND 2004 SC 737 ] :
AIR 2004 SC 4057 [
LNIND 2004 SC 737 ].
10 Carter v. Egg and Egg Pulp Marketing Board, Carter v. Egg and Egg Pulp
Marketing Board,
(1942) 66 CLR 557 , p. 573 (Latham C.J.) approvingly quoted in Deepchand v. State of U.P.,
Deepchand v. State of U.P.,
AIR 1959 SC 648 [
11 K.C.G. Narayan Deo v. State of Orissa, K.C.G. Narayan Deo v. State of Orissa,
AIR 1953 SC 375 [
LNIND 1953 SC 70 ], pp. 379, 381 :
1954 SCR 1 [
LNIND 1953 SC 70 ]; Naga Peoples Movement of Human Rights v. Union of India,
Naga Peoples Movement of Human Rights v. Union of India,
AIR 1998 SC 431 [
LNIND 1997 SC 1511 ], pp. 450, 451 :
1998 (2) SCC 109 [
LNIND 1997 SC 1511 ]; Welfare Association ARP Maharashtra v. Ranjit P. Gohil,
Welfare Association ARP Maharashtra v. Ranjit P. Gohil,
AIR 2003 SC 1266 [
LNIND 2003 SC 218 ], pp. 1282, 1283.
Mr.Srikanth -
Page 102 of 103
12 Gleeson C.J., in Pacific Coal Pvt. Ltd., Ex Parte Construction, Forestry, Mining and Energy Union, IN RE.
Pacific Coal Pvt. Ltd., Ex Parte Construction, Forestry, Mining and Energy Union, IN RE. (2000) 74 ALJR 1034, p. 1040 quoting
Mason C.J., Glaudron And Mchugh JJ in Caltex Oil (Aust.) Pvt. Ltd. v. Best, Caltex Oil (Aust.) Pvt. Ltd. v. Best,
(1990) 170 CLR 516 , p. 522.
13 Dharm Dutt v. Union of India, Dharm Dutt v. Union of India,

AIR 2004 SC 1295 [
LNIND 2003 SC 1025 ], pp. 1317 to 1320 :
(2004) 1 SCC 712 [
LNIND 2003 SC 1025 ]. See further text and note 14 to 20, pp. 48-49 and text and note 23, p.
494.
14 Dharm Dutt v. Union of India, supra, Dharm Dutt v. Union of India, supra, pp.
1319, 1320.
15 Public Services Tribunal Bar Association v. State of U.P., Public Services Tribunal
Bar Association v. State of U.P.,
(2003) 4 SCC 104 [
LNIND 2003 SC 118 ], p. 120 (para 26) :
AIR 2003 SC 1344 [
LNIND 2003 SC 338 ]; Bakhtawar Trust v. M.D. Narayan, Bakhtawar Trust v.
M.D. Narayan,
AIR 2003 SC 2236 , p. 2241.
16 Ajay Hasia v. Khalid Mujib, Ajay Hasia v. Khalid Mujib,

(1981) 1 SCC 722 [
LNIND 1980 SC 456 ], p. 741 :
AIR 1981 SC 487 [
LNIND 1980 SC 456 ]. For a recent examples, see P. Tulsi Das v. Govt. of A.P.,
P. Tulsi Das v. Govt. of A.P.,
AIR 2003 SC 43 [
LNIND 2002 SC 660 ], p. 50 :
(2003) 1 SCC 364 [
LNIND 2007 SC 934 ]; Mardia Chemical Ltd. v. Union of India, Mardia
Chemical Ltd. v. Union of India,
AIR 2004 SC 2371 [
LNIND 2004 SC 458 ], p. 2395 (para 64); Punjab Dairy Development Board v. Chepham Milk
Specialities Ltd., Punjab Dairy Development Board v. Chepham Milk Specialities Ltd.,
(2004) 8 SCC 621 [
LNIND 2004 SC 826 ], p. 629 :
(2004) 7 JT 5 [
LNIND 2004 SC 826 ]. See further text and notes 23 to 27, infra.
17 State of A.P. v. Mcdowell & Co., State of A.P. v. Mcdowell & Co.,
(1996) 3 SCC 709 [
LNIND 1996 SC 650 ] :
AIR 1996 SC 1627 [
LNIND 1996 SC 650 ]. The ques-tion has been referred to a larger bench: Subramanian Swamy
v. Director of C.B.I., Subramanian Swamy v. Director of C.B.I.,
(2005) 2 SCC 317 [
LNIND 2014 SC 232 ] :
2005 Crlj 1413 : 2005 SCC (L&S) 241.

(1978) 1 SCC 248 [
Mr.Srikanth -
Page 103 of 103
LNIND 1978 SC 25 ], p. 299 :

AIR 1978 SC 597 [
LNIND 1978 SC 25 ], p. 635.
19 Bakhtawar Trust v. M.D. Narayan, Bakhtawar Trust v. M.D. Narayan,

AIR 2003 SC 2236 , p. 2244 :
(2003) 5 SCC 298 .
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 6
OPERATION OF STATUTES
(b) Presumption of Constitutionality
As already discussed,20 a statute is construed so as to make it effective and operative on the

principle expressed in the maxim ‘ut res magis valeat quam pereat’. There is, therefore, a
presumption that the Legislature does not exceed its jurisdiction, and the burden of establishing
that the Act is not within the competence of the Legislature, or that it has transgressed other
constitutional mandates, such as those relating to fundamental rights, is always on the person who
challenges its vires.21 “Unless it becomes clear beyond reasonable doubt that the legislation in
question transgresses the limits laid down by the organic law of the
Constitution it must be allowed to stand as the true expression of the national will”.22
The principle is, however subject to the exception that once the citizen is able to establish that the
impugned legislation has invaded his fundamental rights under
Article 19(1)(g) of the Constitution , the State must justify that the law is saved under
23
clause (6) of the same Article. The exception stated above has been widened in later decisions
by general observations to apply to other fundamental rights.24 After approvingly referring to the
above discussion relating to the presumption of constitutionality from 8th edition pp. 453, 454 of
this book Lahoti, J., summed up the principles in which he said: “If a case of violation of a
constitutional provision is made out then the State must justify that the law can still be protected
under a saving provision.”25 Further the state may also have to satisfy that the restrictions imposed
on fundamental rights satisfy the test of proportionality which requires a stricter test of
reasonableness.26 Similarly, if a law is shown to invade the freedom of trade under Article 301,
the onus shifts to the State to satisfy that the restrictions imposed are reasonable and in the public
interest within the meaning of Article 304(b).27 But in State of Gujarat v. Mirzapur Moti Kureshi
Kassab Jamat, State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,
28 which also related to Article 19(1)(g) a bench of seven judges laid down: (1) A restriction
placed on any fundamental right which is aimed at securing directive principles and fundamental
duties can be taken into account in judging the reasonableness of the restrictions;29 (2) When the
facts stated in the objects and reasons and the Preamble justify the enactment of the law a
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presumption of reasonableness of the restriction will arise;30 (3) Restriction may even amount to
prohibition but it must satisfy the test that a lesser alternative would have been inadequate.31
(c) Rule of Construction
The above principle in its application as a rule of construction is that if on one construction a
given statute will become ultra vires the powers of the Legislature whereas on another
construction, which may be open, the statute remains effective and operative, the court will prefer
the latter, on the ground that the Legislature is presumed not to have intended an excess of its
jurisdiction.32 According to Holmes, J., the rule requires that “the statute must be construed in
such a way as not merely to save its constitutionality but so far as it is consistent with fair
interpretation, not to raise grave doubts on that score.”33 This rule is general for all law-making
bodies of limited powers and is equally applicable for construction of bye-laws.34 But the rule
applies only where two views are possible as to the meaning of the statutory language.35
General words may, therefore, be construed, narrowly or widely, with reference to the powers of
the Legislature and their meaning applied to those matters in respect of which the legislative
competence exists.36 Thus, if it is possible to read the statutory language as subject to an implied
term which avoids conflict with constitutional limitations, the court should be very ready to make
such an implication.37
The principle was examined in some detail by the Federal Court,38 in considering the validity of
the Hindu Women's Right to Property Act, 1937. The Act, which was passed by the Council of
State after commencement of Part III of the Government of India Act, 1935, when the subject of
devolution of agricultural land had been committed exclusively to Provincial Legislatures, dealt in
quite general terms with the ‘Property’ or ‘separate property’ of a Hindu dying intestate or his
‘interest in joint family property’. A question, therefore, arose whether the Act was ultra vires of
the powers of the Central Legislature. The Federal Court held the Act intra vires by construing
the word ‘Property’ as meaning ‘property other than agricultural land’; Gwyer, C.J. observed: “If
that word (property) necessarily and inevitably comprises all forms of property, including
agricultural land, then clearly the Act went beyond the powers of the Legislature; but when a
Legislature with limited and restricted powers makes use of a word of such wide and general
import, the presumption must surely be that it is using it with reference to that kind of property
with respect to which it is competent to legislate and to no other.39 The learned Chief Justice
further observed: “There is a general presumption that a Legislature does not intend to exceed its
jurisdiction, and there is ample authority for the proposition that general words in a statute are to
be construed with reference to the powers of the Legislature which enacts it.”40
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The rule was applied by the Supreme Court41 in its construction of

section 124A of the Indian Penal Code . The section which relates to offence of
sedition makes a person punishable who ‘by words, either spoken or written or by sign or visible
representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards the Government established by law’. The section, as
construed by the Privy Council,42 did not make it essential for an activity to come within its
mischief that the same should involve intention or tendency to create disorder, or disturbance of
law and order or incitement to violence. The Federal Court43 had, however, taken a different view.
In the Supreme Court when the question came up as to the constitutional validity of the section,
the court differing from the Privy Council adopted the construction placed by the Federal Court
and held that on a correct construction, the provisions of the section are limited in their
application “to acts involving intention or tendency to create disorder or disturbance of law and
order or incitement to violence; and one of the reasons for adopting this construction was to avoid
the result of unconstitutionality in view of Articles 19(1)(a) and 19(2) of the
Constitution .44 Sinha, C.J., in speaking for the court said: “It is well settled that if
certain provisions of law, construed in one way, would make them consistent with the
Constitution and another interpretation would render them unconstitutional, the court
would lean in favour of the former construction.”45 The application of this rule in this case is,
however, open to one objection. The basis of the rule being the assumed intention of the
Legislature not to transgress the constitutional barriers, how can that intention be assumed when
at the time the law was passed there were no such barriers; and the limitations as to legislative
competence were brought in by a
Constitution long after the enactment of the law ? This criticism finds support from
the decision of the Supreme Court in Gulabbhai v. Union of India, Gulabbhai v.
Union of India, 46 but as held in this case, the principle of severability in application
or separability in enforcement, if that be possible, may still be applied. However, in spite of the
above criticism it seems now settled that a pre-
constitution law can be read down by interpretation to avoid its being declared
invalid as violating the
Constitution . In Sunil Batra v. Delhi Administration, Sunil Batra v.
Delhi Administration, 47 the Supreme Court upheld the validity of
section 30(2) of the Prisons Act, 1894 , which provides for solitary confinement of a
prisoner under sentence of death in a cell and section 56 of the same Act, which provides for the
confinement of a prisoner in irons for his safe custody, by construing them narrowly so as to
avoid their being declared invalid on the ground that they were violative of the rights guaranteed
under
Articles 14 ,
19 and
21 of the
Constitution . And in New India Sugar Mills v. Commissioner of Sales Tax,
New India Sugar Mills v. Commissioner of Sales Tax, 48 a wide definition of the
word ‘sale’ in the Bihar Sales Tax Act, 1947, was restricted by construction to exclude
transactions, in which property was transferred from one person to another without any previous
contract of sale; a wider construction would have resulted in attributing to the Bihar Legislature
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an intention to legislate beyond its competence.
In
section 6(a) of the Hindu Minority and Guardianship Act, 1956 which provides that
the natural guardian of a minor's person or property will be ‘the father and after him, the mother’,
the words ‘after him’ were construed not to mean ‘only after the lifetime of the father’ but to
mean ‘in the absence of’ as the former construction would have made the section unconstitutional
for violating constitutional provision against sex discrimination.49
Provisions in the municipal laws extended or enacted by Parliament for the Territory of Delhi (viz.
the Punjab Municipal Act, 1911 extended to Part C State of Delhi by a notification under the Part
C State Laws Act, 1950; the Delhi Municipal Act, 1957, and the New
Delhi Municipal Corporation Act , 1994) levying property tax on lands and buildings
do neither contain any exception in respect of the property of a State, nor do they contain any
specific provision that property of a State used or occupied for the purposes of any trade or
business carried on by the Government of the State shall be liable to taxation.
Article 289 of the Constitution makes the property of a State exempt from Union
taxation but the exemption does not apply to any property used or occupied for the purposes of
any trade or business carried on by the State. The above mentioned municipal laws governing the
territory of Delhi being union laws were construed consistent with the legislative power of
Parliament in Article 289 not to authorise levy of property tax on property of a State used for
purpose of the Government but to authorise levy of tax on property of a State used for the
purposes of trade or business.50
In Govindlalji v. State of Rajasthan, Govindlalji v. State of Rajasthan,

51 where a question arose as to the constitutional validity of the Rajasthan Nathdwara Temple Act
(13 of 1959), the words ‘affairs of the temple’ occurring in section 16 of the said Act were
construed as restricted to secular affairs as on a wider construction the section would have
violated
Articles 25 and
26 of the
Constitution .
The Supreme Court52 applied the same principle in construing section 40(1), cl. (aa) of the
Land Acquisition Act, 1894 , as amended by Act 31 of 1962 so as to confine its
application to such ‘building or work’ which will subserve the public purpose of the industry or
work in which the company, for which acquisition is made, is engaged; a wider and a literal
construction of the clause would have brought it in conflict with
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Article 31(2) of the Constitution and would have rendered it unconstitutional. In

Indian Oil Corporation v. Municipal Corporation Indian Oil Corporation v.
53
Municipal Corporation , section 123 of the Punjab Municipal Corporation Act, 1976 which
empowered the Corporation to levy octroi on articles and animals ‘imported into the city’ was
read down to mean articles and animals ‘imported into the municipal limits for purposes of
consumption, use or sale’ only as a wide construction would have made the provision
unconstitutional being in excess of the power of the State Legislature conferred by Entry 52 of
List II of Schedule VII of the
Constitution .
Another illustration of restriction of general words by construction so as to avoid invalidity is

furnished by a case54 in which the question related to the construction of a service rule which was
to the effect: ‘A Government servant shall, unless for special reasons otherwise directed by
Government, retire from service on his completing 55 years of age’. The words ‘unless for special
reasons otherwise directed by Government’ which were quite general, were not construed to
authorise the Government to retire a civil servant before attaining the age of 55 years as that
construction would have brought the rule in conflict with
Article 311 of the Constitution as interpreted in Motiram Deka v. General Manager,
N.E.F. Railways Motiram Deka v. General Manager, N.E.F. Railways ,55 for the rule
did not provide for any period of service on completion of which the power to retire before the
attainment of the age of superannuation could be exercised. The aforesaid general words were,
therefore, confined as giving power to the Government to allow the civil servant to remain in
service even beyond the age of 55 years for special reasons.56 A proviso in a service rule, relating
to the Government's right to withhold or withdraw pension if the pensioner was subsequently
found guilty of grave misconduct or negligence in a judicial proceeding, laid down that no such
judicial proceeding if not instituted within the period of service shall be instituted in respect of a
cause of action which arose on an event which took place more than four years before such
institution.
Article 309 of the Constitution , under which the rule was made, empowers the
Government to regulate conditions of service; it does not empower the Government to lay down
periods of limitation for institution of civil or criminal proceedings against a government servant.
In this background the proviso to the rule was read down to provide an exception to the
Government's right to withhold or withdraw pension if proceedings are not instituted within the
period mentioned in the proviso and not to create an embargo on the prosecution of the
government servant after that period57
A further illustration, where general words were read down to keep the legislation within
permissible constitutional limits, is furnished in the construction of
section 5 of the Lotteries (Regulation) Act, 1998 which reads: ‘A State Government
may, within the State prohibit the sale of tickets of a lottery organised conducted or promoted by
every other State’. To avoid the vice of discrimination and excessive delegation, the section was
construed to mean that a State can only ban lotteries of other States, when it decides as a policy to
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ban its own lotteries, or in other words, when it decides to make the State a lottery free zone.58
The principle under discussion applies also for construction of

Constitution Amendment Acts. The
Constitution Forty Sixth Amendment Act, which came into force on 2nd February
1983, inserted clause 29A in Article 366 to widen the ambit of ‘tax on sale or purchase of goods’
by including in it a tax on the supply of food and drink. Before the amendment the States were not
competent to levy sales tax on supply of food and drink by hoteliers and restaurant owners in
exercise of their taxing power under Entry 54 in List II of the
Constitution which enables them to levy taxes on sale or purchase of goods and their
effort in that direction proved abortive.59
Section 6 of the Constitution Forty sixth Amendment Act which was headed as
‘validation and exemption’ provided that for the purpose of every provision of the
Constitution in which the expression ‘tax on the sale or purchase of goods’ occurs
and for the purposes of any law passed or made, or purporting to have been passed or made
before the commencement of this Act in pursuance of any such provision, the said expression shall
be deemed to include and shall be deemed always to have included a tax on the supply of food or
any drink. Relying on section 6 it was contended before the Supreme Court that the section
validated the sales tax laws of the States with retrospective effect and that the States were entitled
to levy the tax on the supply of food and drink regardless of the fact that there was no provision
in the State Acts for such levy prior to 2nd February, 1983.60 This argument was rejected on the
ground that Parliament when exercising the power to amend the
Constitution under Article 366 has no power to amend State laws in respect of
matters listed in List II and section 6 would be bad in law if it were construed to be an essay by
Parliament exercising constituent powers to amend the Sales Tax Laws of the States. Section 6,
therefore, was read as only giving retrospective operation to the expansion of the expression ‘tax
on the sale or purchase of goods’ in Entry 54, List II to include a tax on the supply of food or
drink and thus validating retrospectively State Sales Tax Acts that had theretofore made provision
for the levy of sales tax on the supply of food or drink.61
Just as general words may be construed in a limited sense62 to avoid the statute becoming
unconstitutional, so also words may be construed in a wider sense63 if a narrower construction
renders the law unconstitutional and that result is avoided by giving the words a wider meaning.
This principle can be deduced from the Supreme Court's decision in Express Newspapers Ltd. v.
Union of India. Express Newspapers Ltd. v. Union of India. 64Section
9(1) of the Working Journalists (Condition of Service) and Miscellaneous Provisions Act, 1955,
directs that in fixing rates of wages of working journalists, the Wage Board shall have regard to
the cost of living, the prevalent rates of wages for comparable employments the circumstances
relating to newspaper industry in different regions of the country and to any other circumstances
which to the Board may seem relevant. One of the objections on behalf of the industry was that
the Act imposes unreasonable restrictions on the freedom to carry on business amongst other on
the ground that it was not made incumbent on the Board to consider the capacity of the industry to
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pay as an essential circumstance in fixing the rates of wages. The Supreme Court although
observing that the criticism “would appear to be justified” negatived the contention by holding
that ‘the circumstances relating to newspaper industry in different regions of the country’ which
the Board was required to take into consideration should be read as including a consideration as to
‘capacity of the Industry to pay’. In reaching this conclusion Bhagwati, J. observed: “It is,
however, well recognised that the courts would lean towards the constitutionality of an enactment
and if it is possible to read this circumstance, as comprised within the category of circumstances
relating to the newspaper industry in different regions of the country, the court should not strike
down the provisions as in any manner whatever unreasonable and violative of the fundamental
right of the petitioners”.65 In an extreme case66 the Supreme Court, while upholding the validity of
the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 which confers exclusive power
on the Central Government to make and prosecute all claims for compensation arising out of the
Bhopal Gas Leak Disaster, inferred an implied obligation of the Government to give interim relief
to the victims or their dependants for their sustenance and maintenance. This obligation was
inferred, as according to the majority view, it was necessary to sustain the constitutionality of the
Act which had deprived the claimants, who were poor persons, to sue for damages or to enter into
compromise or settlement in respect of their claims.67 This obligation was said to be implicit in
the spirit of the Act and constituted ‘the major inarticulate premise’ upon which the Act
proceeded.68 It was further held that sections 9 and 10 of the Act, which empowered the
Government to frame a scheme for registration and processing of claims, and creation of a fund
for administration of the scheme and which contemplated payments to claimants before
adjudication or settlement of the claims by the court, ought to be meaningfully construed to
effectuate the implied obligation.69
When the powers of a Legislature undergo a change during the pendency of a legislative measure,
the construction of general words is made with reference to the powers of the Legislature existing
at the time when the process of law making is completed. This principle can be gathered from the
decision of the Federal Court,70 relating to the validity of the Hindu Women's Right to Property
Act, 1937. The Bill which became the Act had been passed by the Legislative Assembly before
1st April, 1937, and by the Council of State after that date, the said date being the date of
commencement of the Government of India Act, 1935, which brought in the change in the
legislative powers. At the time when the Bill was passed by the Assembly, the Legislature could
have dealt with any kind of property including agricultural lands but at the time when it was
passed by the Council of State and was assented to by the Governor General the powers as to
agricultural lands had been vested in the Governors' provinces exclusively. The question,
therefore, was whether in these circumstances the word ‘property’ could be construed as ‘property
other than agricultural lands’ and the Federal Court construed it in that way and held the law to be
intra vires.71
(d) Limitations of the Rule
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In applying the rule of construction of confining the general words to the field of legislative
competence, the limitations of this doctrine must also be kept in view. In the words of Gwyer,
C.J.: “If the restriction of the general words to purposes within the power of the Legislature would
be to have an Act with nothing or next to nothing in it or an Act different in kind, and not merely
in degree, from an Act in which the general words were given the wider meaning then it is plain
that the Act as a whole must be held invalid, because in such circumstances it is impossible to
assert with any confidence that the Legislature intended the general words which it has used to be
construed only in the narrower sense. If the Act is to be upheld, it must remain even when a
narrower meaning is given to the general words, an Act which is complete, intelligible and valid
and which can be executed by itself.72 So, the rule applies unless the restricted meaning of the
words makes the legislation incomplete, unintelligible or unmeaning.73 The rule will not apply
when the offending words can reasonably have only one meaning, e.g., when the restricted
meaning makes them usesless or redundant.74
Regulation 9(b), made under the Delhi Road Transport Authority Act, 1950, conferring
unrestricted power to terminate the services of a permanent or confirmed employee and expressed
in unambiguous terms, was not read down to save it and was declared ultra vires offending
Article 14 and
21 of the
Constitution 75
. It was held by the majority that when the provision in question is cast
in a definite and unambiguous language or when the remaking of the provision will lead to its
distortion or when extensive additions or alterations will be needed to save it, the rule will have
no application and the court will have no option but to declare the provision ultra vires.76 But
sections 7 and 8 of the Chhota Nagpur Tenance Act, 1908 which provide for succession of certain
classes of tribal tenants to ‘descendants in the male line’ or ‘heirs male in the line’ and do not
provide any right to any female were construed to protect the right of livelihood from the land of
the dependant family females of the deceased male holder spelled out from
Article 21 of the Constitution . On this basis it was held that “the exclusive right of
male succession conceived of in sections 7 and 8 has to remain in suspended animation so long as
the right of livelihood of female descendants of the last male holder remains valid and in
vogue.”77
In its effort to save laws from being declared invalid the court sometimes appears to exhibit
judicial ‘heroics’78 in recasting them. Rule 7 of the Rules made by the Ahmedabad Municipal
Corporation for admission to the Municipal Medical College defines ‘A local student’ ‘as a
student who has passed HSC/New SSC examination and the qualifying examination from any of
the High Schools or Colleges situated within the Ahmedabad Municipal limits’. The Rules reserve
15% of the seats for all India candidates and the rest of the seats are reserved for local students as
defined in Rule 7, the object being to provide medical education to the students of Ahmedabad.
Rule 7 was, however, found to be prima facie discriminatory in two ways. First that permanent
resident students of Ahmedabad, who for fortuitous circumstances happened to acquire
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qualifications from institutions within the limits of the Ahmedabad Development Authority but
outside the municipal limits, were not eligible for admission. Secondly, the Rule created an
artificial distinction from amongst students who were residents of Ahmedabad city and those who
may not be the residents of Ahmedabad city but who studied in educational institutions situated
within the Ahmedabad Municipal Corporation limits.79 To meet these lacunae in Rule 7 and to
avoid declaring it invalid for violating
Article 14 of the Constitution , it was judicially recast as follows: “Local student
means a student who has passed HSC/New SSC examination from any of the High Schools or
Colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent
resident student of Ahmedabad who acquires the above qualifications from any of the High
Schools or Colleges situated within Ahmedabad Urban Development Authority.”80 In another
case81 a rule of sixlines (as printed in J.T.)82 providing for cessation of membership of a society on
non-payment of membership fee in advance by march for a year was “read down” and recast into
a rule consisting of thirty three lines (as printed in J.T.)83 to provide opportunity to the member to
prove that the fee was payed in time or that there was sufficient cause for non-payment in time.
This was done to avoid the rule being declared void for unreasonableness. Difference of opinion
may arise on the question whether a particular provision should be read down or struck down.
This is illustrated by the decision of the
constitution bench in 20th Century Finance Corporation Ltd. v. State of
Maharashtra. 20th Century Finance Corporation Ltd. v. State of Maharashtra.
84 The case deals with various State Acts which levied sales tax on the transfer of any right to use
any goods for any purpose for cash, deferred payment or other valuable consideration as
permitted by Article 366 [29A(d)] of the
constitution . These Acts contained provisions that the transfer of the right to use
goods shall be deemed to have taken place in the State imposing the tax if the goods are in that
State at the time of their use irrespective of the place where the agreement for such transfer of the
right was made. These deeming provisions fixing the situs of sale in every case merely on the
presence of the goods at the time of their use offended the constitutional provisions which did not
enable the states to tax outside sales, or the sales in the course of import or export, or interstate
sales. The majority judges did not strike down these provisions and read them down not to apply
to such sales85 but judges in the minority struck them down on the ground that their presence was
likely to result in confusion.86
(e) Severability
If the enactment cannot be saved by construing it consistent with its constitutionality, it may be
seen whether it can be partly saved. When the Act is held to be in part inconsistent with the higher
law in the
Constitution , it can be partly saved if the test of severability is satisfied. The doctrine
of severability was considered by the Supreme Court in RMD Chamarbaugwala v. Union of
India, RMD Chamarbaugwala v. Union of India, 87 where
Venkatrama Aiyyar, J ., speaking for the court observed that “when a statute is in part void, it will
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be enforced as against the rest, if that is severable from what is invalid”.88 The court also
summarised the rules of construction for determining severability, essentially from American
authorities, into the following seven propositions:
“1. In determining whether the valid parts of a statute are separable from the invalid parts thereof,
it is the intention of the legislature that is the determining factor. The test to be applied is whether
the legislature would have enacted the valid part if it had known that the rest of the statute was
invalid. 2. If the valid and invalid provisions are so inextricably mixed up that they cannot be
separated from one another, then the invalidity of a portion must result in the invalidity of the Act
in its entirety. On the other hand, if they are so distinct and separate that after striking out what is
invalid, what remains is in itself a complete code independent of the rest, then it will be upheld
notwithstanding that the rest has become unenforceable. 3. Even when the provisions which are
valid are distinct and separate from those which are invalid, if they all form part of a single
scheme which is intended to be operative as a whole, then also the invalidity of a part will result
in the failure of the whole. 4. Likewise, when the valid and invalid parts of a statute are
independent and do not form part of a scheme but what is left after omitting the invalid portion is
so thin and truncated as to be in substance different from what it was when it emerged out of the
legislature, then also it will be rejected in its entirety. 5. The separability of the valid and invalid
provisions of a statute does not depend on whether the law is enacted in the same section or
different section; it is not the form, but the substance of the matter that is material, and that has to
be ascertained on an examination of the Act as a whole and of the setting of the relevant provision
therein. 6. If after the invalid portion is expugned from the statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it must be struck
down as void, as otherwise it will amount to judicial legislation. 7. In determining the legislative
intent on the question of separability, it will be legitimate to take into account the history of the
legislation, its object, the title and the preamble to it.”89
Applying these principles to the definition of ‘prize competition’ in section 2(d) of the Prize
Competition Act , 1955 as meaning ‘any competition’ ‘in which prizes are offered for
the solution of any puzzle based upon the building up, arrangement, combination or permutation
of letters, words or figures’, the court held that even if the regulatory provisions of the Act were
invalid in respect of competitions in which success depends to a substantial extent on skill, the
Act will still apply to competitions of a gambling character for the two types of competitions
formed two distinct and separate categories and as one can be in no doubt that Parliament would
have still enacted the law even if it had known that it would fail as regards competitions involving
skill.90 The test is not of textual severability but of substantial severability which permits even
modification of the text in order to achieve severance but “this can be only done when the court is
satisfied that it is affecting no change in the substantial purpose and effect of the impugned
provision”.91
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4. OPERATION CONTROLLED ON CONSIDERATIONS OF

TERRITORIAL NEXUS: PRESUMPTION AGAINST EXCEEDING TERRITORIAL
POWERS
(a) Principle of territorial nexus
(i) General.—In case of Legislatures which may for convenience be called non-sovereign
Legislatures like those of Colonies, Australian States or Canadian Provinces, it has been
said that they are incompetent to legislate with extra-territorial effect.1 This is only a
convenient mode of stating that a law made by such a Legislature must bear a real
territorial connection with the subject-matter with which it is dealing. Before the Statute of
Westminster, 1931, the Dominion Parliaments were also subject to the same limitation.
This principle or rule forbidding extra - territorial legislation has been characterised “as a
doctrine of somewhat obscure extent”.2 The obscurity lies in defining by any exact
formula the territorial nexus which will be sufficient for holding the legislation intra vires.
“Any connection” which is “relevant” or “real” with the exercise of the power of the State
concerned has been held to be sufficient3 and at times stress has been mainly laid on the
topic of legislation committed to the Legislature.4 But it is also equally well established by
high authority that “a connection which is too remote” or which is “completely irrelevant”
will not be enough for holding the legislation intra vires.5
By
Customs Act of Canada (1927) the Dominion Legislature of Canada
authorised seizure of vessels and cargo hovering in territorial waters of Canada within
twelve marine miles from the coast. The Act was challenged as ultra vires, the powers
of Dominion Parliament as it was designed to operate beyond the shores or beyond a
marine league from the coast. In holding the Act intra vires, the Privy Council,6
although accepting as the general principle that States can legislate effectively only for
their own territories observed: “It is maintained that it (the Dominion Legislature) is
debarred from introducing into such (customs) legislation any provision designed to
operate beyond its shores or at any rate beyond a marine league from the coast. In their
Lordships' opinion the Parliament of Canada is not under any such disability. Once it is
found that a particular topic of legislation is among those upon which the Dominion
Parliament may competently legislate—their Lordships think no reason to restrict the
permitted scope of such legislation by any other consideration than is applicable to the
Legislature of a fully sovereign State.7
Three cases noticed below8 bring into bold relief the contrast between a connection
which is real or relevant to support a legislation and a connection which is too remote
or irrelevant for that purpose. In each of these cases, the competence of the Legislature
to enact the law depended upon section 5 of the New South Wales
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Constitution Act which provides: The Legislature shall subject to

the provisions of the Commonwealth of Australia
Constitution Act have power to make laws for the peace, welfare
and good Government of New South Wales in all cases whatsoever. The cases bring
out the principle that legislation which has no relevant territorial connection with New
South Wales falls outside the power conferred by this section.
The first case9 dealt with a provision of the Stamp Duties Act of New South Wales
which imposed death duty on shares of any company, registered or incorporated within
or without New South Wales, belonging to a deceased person; provided the company
was carrying on business in New South Wales. The deceased in this case had died
resident and domiciled outside New South Wales, and the company, in which he had
shares, was incorporated out of, and had no share register within that State. The shares,
therefore, could not be regarded as situate in New South Wales and as the enactment
was not confined to companies whose sole business was in that State, what was taxed
was not the advantage to the deceased from the business of the company within that
State, but the whole value of shares which might have been due in part or entirely to
operations conducted outside the State. The High Court of Australia by a majority
decision held the enactment to be beyond the competence of New South Wales, as the
Legislature in taxing the shares out of the jurisdiction of the State had, to quote the
judgment, adopted a connection which was too remote to entitle its enactments to the
description a law ‘for the peace, welfare and good Government of New South Wales';10
or to state the matter in another way, although some connection between the
shareholder and New South Wales could be discovered in the existence therein of part
of the company's undertaking, the enactment went beyond legislating in respect of that
connection.11
In the second case,12 it was held by the High Court of Australia that the imposition of
Income-tax on a foreign company in respect of interest on money secured by mortgage
on property in New South Wales, was within the constitutional power of the State
Legislature. On the question of necessity of territorial nexus Latham, C.J. said: “The
circumstances in respect of which the law operates must be something which really
appertains to New South Wales.”13 In the same case, Dixon, J. observed: “But it is
within the competence of the State Legislature to make any fact, circumstance,
occurrence or thing in or connected with the territory the occasion of the imposition
upon any person concerned therein of a liability to taxation or of any other liability.”14
Both these decisions and the passages from them quoted above15 were approved by the
Privy Council in the third case which also arose from New South Wales.16 The
question in this case was as to the validity of death duties levied on the properties
situate within and outside the State of New South Wales in which the deceased, who
died domiciled within the State, had only a life interest by virtue of a will of a previous
owner. The Privy Council affirming the decision of the New South Wales Supreme
Court held that the Act in so far as it levied death duty on property situate within the
State was valid and in so far as it levied the duty on property situate outside the State,
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in which the deceased had only a life estate, was invalid and that the fact of domicile of
the deceased being in New South Wales was an insufficient nexus to support such a
levy. So far as the duty levied on property situate within the State was concerned, Lord
Keith observed: “The presence of property within a State's jurisdiction has always been
regarded as a cogent reason for recognising the right and power to tax that property.
The property enjoys the protection of the State's Law and, in their Lordships' judgment,
fiscal legislation taxing that property can be regarded as a law for peace, welfare and
good Government of that State.17 The decision further shows that in respect of property
situate within the State, it is immaterial whether the holder of the life estate dies
domiciled outside the State or the remaindermen are domiciled outside the State; and
that the existence within the State of the property is sufficient nexus for exercising
taxing power of the State. With regard to property situate outside the State, in rejecting
the contention that the domicile of the holder of life estate was a sufficient nexus, Lord
Keith stated: “The case is not that of a deceased dying possessed of personal estate, or
a case of a deceased who has given away property shortly before his death without
valuable consideration. The deceased's only interest was a limited interest ceasing on
her death, and it is not her estate that is brought into charge—. The domicile of a
deceased within New South Wales at the date of his death is, in their Lordships'
judgment, a quite insufficient ground by itself to make good the lack of any other
connection with the State.”18
(ii) Legislation under the Government of India Act, 1935.—, by section 99(1), the Federal
Legislature was empowered to ‘make laws for the whole or any part of British India’ and
Provincial Legislatures were empowered to ‘make laws for the Province or any part
thereof’. By section 99(2) certain matters were enumerated, and it was provided that no
Federal law shall, on the ground that it would have extra-territorial operation, be deemed
to be invalid in so far as it applied to those enumerated matters. Thus both the Federal
[except in respect of matters falling under section 99(2)] and the Provincial Legislatures
were subject to the rule forbidding extra - territorial legislation in the sense that presence
of a ‘sufficient’ or ‘real’ territorial connection with British India in respect of Federal laws
and with the Province concerned in respect of Provincial laws, was necessary to bring a
law within their legislative competence.
A leading judgment of the Privy Council relating to Income-tax law made by the
Centre may here be noticed.19 By an amendment in 1935, section 4A was introduced in
the
Indian Income-tax Act, 1922 , which made a company resident in
India for purposes of the Act, if its income arising in British India in the particular year
exceeded its income arising outside British India in that year and as a result thereof a
company, although incorporated outside British India and although managed
exclusively from outside, became liable to be assessed to income-tax in British India
on its entire income including that part of its income which arose outside British India.
The validity of this provision was upheld by the Privy Council. Lord Uthwatt said:
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There is no rule of law that the territorial limits of a subordinate Legislature define the
possible scope of its legislative enactments or mark the field open to its vision. The
ambit of the powers possessed by subordinate Legislature depends upon the proper
construction of the statute conferring those powers. No doubt the enabling statute has
to be read against the background that only a defined territory has been committed to
the charge of the Legislature. Concern by a subordinate Legislature with affairs or
persons outside its own territory may, therefore, suggest a query whether the
Legislature is in truth minding its own business. It does not compel the conclusion that
it is not.20 Proceeding further, Lord Uthwatt observed: The resulting general conception
as to the scope of Income-tax is that given a sufficient territorial connection between
the person sought to be charged and the country seeking to tax him Income-tax may
properly extend to that person in respect of his foreign income.21 The Federal Court of
India also applied the same test in judging the vires of Income-tax legislation.22
It may further be noticed that if sufficient territorial connection exists, the legislation
will be valid and it will be entirely immaterial to see whether the liability imposed is
proportionate or disproportionate to the territorial connection. “But it is of no
importance upon the question of validity”; pointed out Dixon, J. in Broken Hill's case23
“that the liability imposed is, or may be altogether disproportionate to the territorial
connection”. This principle was accepted by the Federal Court of India.24 Spens, C.J.,
after citing Dixon, J. observed: “If some connection exists, the Legislature is not
compelled to measure the taxation by the degree of benefit received in particular cases
by the tax-payer. This affects the policy and not the validity of legislation.”25
By section 6 of the Independence Act, 1947, the Legislature of the Dominion of India
was conferred full power to make laws for that Dominion including laws having extra-
territorial operation. The position of the Provinces, however, still remained the same.
In this respect, therefore, there arose a close similarity between the Dominion of India
and other self-governing Dominions such as Canada and Australia. The result of
section 6 of the India Independence Act, was the same as that produced by section 3 of
the Statute of Westminster, 1931. The laws made by the Dominion Legislature in India
thereafter were not open to challenge for want of a territorial nexus or on the ground of
any difficulty as to their effective enforcement. In an appeal arising from Canada, the
Privy Council dealt with the effect of section 3 of the Statute of Westminster, and
pointed out that “courts of the country must enforce the law with the machinery
available to them; and they are not entitled to question the authority of the Dominion
Legislature in making a law which is extra-territorial.”26 Their Lordships approved of a
passage from the judgment of Rand, J. wherein he said: Within the State, however, it
becomes an obligatory rule to be enforced whenever enforcement is feasible. The
specific investment of extra - territorial power by section 3 of the Statute of 1931, was
designed no doubt to remove the generally accepted limitation of colonial legislative
jurisdiction, a limitation which the courts of the colony itself were bound to
recognise,27 and any such jurisdictional inadequacy no longer hampers the legislative
freedom of the Dominion. Within its field there is now a legislative sovereignty.28
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(iii)Legislation under the

Constitution of India .—The
Constitution , as regards the Union Parliament, makes it clear that ‘No
law made by Parliament shall be deemed to be invalid on the ground that it would have
extra - territorial operation’.29 No question, therefore, can possibly arise about any
legislation by Parliament being questioned on the ground that it has extra - territorial
operation. Even though the legislation may not be effectively enforceable because it may
deal with objects or persons beyond the territories of the Republic, yet no court within the
Republic can refuse enforcement of the legislation by Parliament on the ground that it is
invalid for want of a territorial nexus. The position, thus in this respect, is exactly the same
as that of British Parliament or of Dominion Parliaments after the Statute of Westminster,
1931.30
As regards the States in the Republic, the

Constitution does not bring about any change from the position of the Provinces
under the Government of India Act, 1935; and the power of State Legislatures ‘to make laws for
the whole or any part of the State’31 leaves it open to scrutiny whether a particular law is really for
the State enacting it. Since “the laws which a State is empowered to make must be for the purpose
of that State,”32 the laws enacted by State Legislatures “cannot in the absence of a territorial nexus
have any extra-territorial operation.”33 The doctrine of territorial nexus has, therefore, been
applied to State Acts under the
Constitution . In the words of S.R. Das, C.J.I.: “Sufficiency of the territorial
connection involves a consideration of two elements, namely: (a) the connection must be real and
not illusory; and (b) the liability sought to be imposed must be pertinent to that connection.”34 If
the nexus is rational on a consideration of the aforesaid two elements, any further examination of
the sufficiency of nexus cannot be a matter of adjudication before the court.35
The general principle regarding sales tax legislation of the States under Article 246(3) read with
Entry 54 of List II Schedule VII of the
Constitution was laid down by Patanjali Shastri, C.J.I. in State of
Bombay v. United Motors(India) Ltd State of Bombay v. United Motors(India) Ltd
. 36 The Chief Justice said: “The Legislature of any State has under these
provisions, the exclusive power to make laws ‘for such State or any part thereof’ with respect to
taxes on the sale or purchase of goods other than newspaper. The expression ‘for such State or
any part thereof’ cannot, in our view, be taken to import into Entry 54 the restriction that the sale
or purchase referred to must take place within the territory of the State. All that it means is that
the laws which a State is empowered to make must be for the purpose of that State.” The Privy
Council in Wallace Brothers & Co. Ltd. v. C.I.T., Bombay, Wallace
Brothers & Co. Ltd. v. C.I.T., Bombay, 37 in dealing with
the competency of the Indian Legislature to impose tax on the income arising abroad to a non-
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resident foreign company, pointed out that the constitutional validity of the relevant statutory
provisions did not turn on the possession by Legislature of extra-territorial powers but on the
existence of a sufficient territorial connection between the taxing State and what it sought to tax.
In the case of sales tax, “it is not necessary that the sale or purchase should take place within the
territorial limits of the State in the sense that all the ingredients of sale like the agreement to sell,
the passing of title, delivery of the goods etc., should have a territorial connection with the State.
Broadly speaking local activities of buying or selling carried on in the State in relation to local
goods would be sufficient basis to sustain the taxing power of the State, provided of course, such
activities ultimately resulted in a concluded sale or purchase to be taxed.”38 A further challenge to
the application of the nexus theory to sales tax legislation was rejected by the Supreme Court in
Tata Iron and Steel Co. v. Bihar State. Tata Iron and Steel Co. v. Bihar State.
39 S.R. Das, C.J.I. delivering the majority opinion, referred to the decisions of the
Privy Council,40 Federal Court41 and High Court of Australia,42 and approved of the principle of
‘any connection’ which is real being sufficient to sustain the legislation and also the principle that
it was immaterial on the question of validity that the liability imposed is or may be altogether
disproportionate to the territorial connection. It was further pointed out that although the tax was
on a completed sale, one or more of the several ingredients constituting a sale could furnish the
connection between the taxing State and the sale. Existence of goods within the State at the time
of contract of sale and in case of a sale by producer or manufacturer, the production or
manufacture of the goods in the State were held to be sufficient nexus to sustain the legislation
impugned in that case.43 The existence of ‘any’ territorial connection though generally sufficient
for legislative competence of States is not sufficient for transgressing the ban for taxing sales in
the course of import or export imposed by Article 286as also for taxing interstate sales.44
Legislation pertaining to taxes on gambling under Entry 62 of List II was also sustained by the
Supreme Court by adopting the nexus theory.45 A company incorporated in the State of Mysore
conducted and ran cross-words prize competition through agents and depots established in the
State of Bombay and by circulating a newspaper in that State although the newspaper was printed
and published outside the State of Bombay. Holding the tax levied by the State of Bombay valid,
S.R. Das, C.J.I., said: “The standing invitations, the filling up the forms and the payment of
money, take place within the State which is seeking to tax only the amount received from the
petitioners from the State of Bombay.” The tax is on gambling although collected from the
promoters. All these, we think constitute sufficient territorial nexus which entitles the State of
Bombay to impose a tax on the gambling that takes place within its boundaries and the law cannot
be stuck down on the ground of extra - territoriality.46
A further illustration of application of nexus theory to taxing laws is found in imposition of taxes
on goods carried by road or inland waterways, [Entry 56, List II]. Tea carried by producers in
West Bengal, though the starting point and the point of destination were both in West Bengal, had
to traverse for a very short distance of a mile and half on the inland waterways of the State of
Assam, but this was held to give a rational nexus for the State of Assam to tax the goods.47 In
holding the tax valid, Gajendragadkar, J. observed: “Whether the goods are carried for a long
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distance or a short distance cannot affect the legislative competence of the Legislature—.” The
nexus in question must be rational but it would be impossible to accede to the argument that
sufficiency of nexus can be a matter for adjudication of the court. In the present case, undoubtedly
tea has been carried over a part of inland waterways in Assam and that satisfies the test of
nexus.48
The nexus theory was also applied by the Supreme Court in upholding the validity of the Bihar
Hindu Religious Trust Act, 1951, which applies to all trusts in Bihar any property of which is in
that State.49 Negativing the argument that the Act could not apply to that property of the trust
which was outside the State of Bihar, S.K. Das, J. said: “It cannot be disputed that if the religious
endowment is itself situated in Bihar and the trustees function there, the connection between the
religious institution and the property appertaining thereto is real and not illusory.50 It may,
however, be noticed that this case shows that if the trust were situate outside a State, that State
cannot seek to legislate in respect of administration of such trust simply on the nexus of existence
of a portion of the trust property in that State.” This view has been confirmed by a later decision
of the Supreme Court,51 and it has been held that a State cannot legislate for administration of a
trust which is not situate within that State even though a portion of the trust property is situate
within it.
Nexus theory was again applied in upholding the validity of section 6(3A) of the Gujarat Ceiling
Act 1960 enacted by the Gujarat Legislature.52 This provision took into account land held in any
other part of India for computation of permissible ceiling area of land in the State of Gujarat. The
Act was held to be valid and it was held that mere consideration of some factors which exist
outside the State would not make the law extra territorial.53
But legislation of one State essentially directed to properties will, it appears, have no application
in respect of properties in another State. On this principle a law passed by the Madras Legislature
that every sthanam shall be deemed and shall remain deemed always to have been properties
belonging to tarward was held not to apply to sthanam properties in the quondam Cochin State,
although they were held by the same sthanee who held other sthanams in the Madras State.54 On
the same principle the provisions of the Karnataka Contract Carriages (Acquisition) Act, 1976
was construed not to authorise acquisition of a vehicle kept and registered in or plying on an
initial permit granted by another State. It was also held that the Act could not authorise
acquisition of that portion of an inter-State permit which was for a route in another State and was
effective by virtue of being countersigned in that State.55 It has also been held that Entry 17 in the
State List (water, that is to say, water supplies, irrigation and canals, drainage and embankments,
water storage and water power—) does not authorise a state to pass legislation with respect to or
affecting any aspect of the waters of an inter-state river beyond its territory.56 On this view it was
held that the Karnataka Cauvery Basin Irrigation Protection Ordinance promulgated by the State
of Karnataka, which vested in the State Government an absolute power to appropriate any
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quantity of water from the Cauvery river and its tributaries, was unconstitutional being
extraterritorial for the effect of the Ordinance was to affect the flow of the waters of the river
Cauvery into the territory of Tamil Nadu and Pondicherry, the lower riparian states.57
The Gujarat Legislature acting under Entries 22 (Industrial and Labour Disputes) 24 (welfare of
labour) and 20 (economic and social planning) of List III applied the Bombay Relief
Undertakings (Special Provisions) Act, 1958 with certain amendments to the State of Gujarat,
Section 4(1)(IV), of this Act enacted that the State Government may by notification direct that
‘any right, privilege, obligation or liability accrued or incurred before the undertaking was
declared a relief undertaking and any remedy for the enforcement thereof shall be suspended and
all proceedings relative thereto pending before any court, tribunal, officer or authority shall be
stayed’. In construing this provision it was held that though the Gujarat Legislature could confer
an immunity upon an undertaking declared to be a relief undertaking effective within the State of
Gujarat, it could not extend the immunity so as to suspend obligations and liabilities incurred
outside the state and to stay suits and proceedings instituted in respect of those liabilities outside
the State.58
A law of one State may in certain circumstances have to be recognised and given effect to by
courts in another State; but that by itself will not make such law extra-territorial. This principle
can be illustrated by reference to a decision of the Supreme Court, where execution by a
transferee court in Bihar of an order made by a special Judge of Uttar Pradesh under the U.P.
Encumbered Estates Act, 1934, which was deemed to be decree of a civil court under the
provisions of the said Act, was held to be valid; and it was held that the transferee court in Bihar
has to take notice of the U.P. law for determining whether what was transferred to it for execution
is a decree or not under the
Civil Procedure Code .59
(b) Rule of construction
It may thus be taken as settled that laws enacted by Legislatures having no extra-territorial powers
of legislation like those of colonies, Australian States, Canadian Provinces,60 and States in the
Indian Republic61 must for their validity satisfy the test of real territorial nexus. In its application
as a rule of construction, the principle is that if on one construction the statute offends the rule
forbidding extra-territorial legislation, and if, by another construction, which may be open, such a
result is avoided, the latter construction will be preferred.62 Indeed the principle is a corollary of
the more general rule that a Legislature is presumed not to have exceeded its constitutional
powers and a construction consistent with those powers is to be put upon the laws enacted by the
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Legislature.63
In a well-known case,64 the Legislature of New South Wales had enacted a law to the effect:
‘whosoever being married, marries another person during the life of the former husband or wife,
wheresoever such second marriage take place, shall be liable to penal servitude for seven years'.
The appellant in that case had married within the colony and contracted a bigamous marriage in
America. Having been convicted within the colony he went up in appeal to the Privy Council and
contended that the Act on its true construction was limited to offences committed within the
jurisdiction of the local Legislature as upon any other construction, the statute will be ultra vires.
In accepting this contention, the Privy Council observed that if the statute was construed upon the
bare words, any person married to any other person, who married a second time anywhere in the
habitable globe, was amenable to the criminal jurisdiction of New South Wales, if he could be
caught in that colony. But said Lord Halsbury: “That seems to their Lordships to be an impossible
construction of the statute: the colony can have no such jurisdiction, and their Lordships do not
desire to attribute to the colonial Legislature an effort to enlarge their jurisdiction to such an
extent as would be inconsistent with the powers committed to a colony.”65 Proceeding further
Lord Halsbury observed: “The more reasonable theory to adopt is that the language was used,
subject to the well-known and well - considered limitation that they were only legislating for
those who were actually within their jurisdiction and within the limits of the colony.”66
In another case in which certain provisions of an

Insurance Act passed by the Ontario Legislature were challenged as ultra vires, the
Privy Council said: The terms of the statute as a whole, are in their Lordships' judgment, capable
of receiving a meaning according to which its provisions, whether enabling or prohibitive, apply
only to persons and acts within the territorial jurisdiction of the province. In their opinion it ought
to be interpreted in consonance with the presumption which imputes to the Legislature an
intention of limiting the direct operation of its enactments to such persons or acts.67
Similarly, in a statute of the State of Victoria the word ‘mortgage’ though defined in general
terms wide enough to cover any mortgage of any land anywhere in the world” was restricted by
construction to Victorian mortgages as to hold otherwise would have been to attribute to the
Victorian Legislature an intention to legislate in regard to matters outside its territorial
jurisdiction.68
A further illustration of the principle can be seen in another Privy Council decision69 relating to
the construction of the word ‘employer’ in the Manitoba Special
Income-tax Act , 1933. In sections 4, 5 and 6 of the Act where the duties of deduction
of Income-tax, of accounting, of making returns and of keeping records were imposed under
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penalties on ‘every employer’, the word ‘employer’ was held on construction not to apply to any
employer outside the province, as such employers were not subject to the legislative jurisdiction
of the province of Manitoba for imposing any such duty or penalty.70 But the word ‘employer’ in
section 7 of the same Act where a duty was imposed on an employee within the province to pay
the tax on receiving wages without the tax being deducted by ‘his employer’, was construed as
referring to every employer wherever or whoever he may be, the reason being that this section did
not seek to impose any duty on employers and was not ultra vires of the Provincial Legislature
even on a wider construction of the word ‘employer’.71
The principle was applied by the Supreme Court in upholding the validity of the Bihar Hindu
Religious
Trusts Act , 1951.72 The Act by section 3 provides: ‘This Act shall apply to all
religious trusts, whether created before or after the commencement of the Act any part of the
property of which is situated in the State of Bihar’. The argument was that the Act applied to
every religious trust whether within or outside the State if any part of the property of the trust was
in the State of Bihar, and the Act was ultra vires as it affected trusts outside the State. Negativing
this argument, the Supreme Court construed the Act consistent with the presumption of
constitutionality, and held that the Act applied to trusts “which are situate in the State of Bihar
and any part of the property of which is in that State” making these two conditions cumulative.73
Similarly, the definition of public trust in section 2(4) of the Madhya Pradesh Public
Trusts Act , 1951, has been confined by construction to public trusts situate in the
State of Madhya Pradesh.74 These cases were referred to in interpreting
section 1(5) of the Employees State Insurance Act, 1948 . Section 1(4) applies the Act
in the first instance to all factories and by section 1(5) provision is made for extending the Act to
any other establishment by a notification of the appropriate Government. By a notification, the
Government of Andhra Pradesh, which was the appropriate Government, extended the Act to
Road Motor Transport Establishments. It was held that such a notification applied the Act to the
Transport Corporation of India which had its head office or principal establishment in Andhra
Pradesh and to all its branches in that State as also to all its branches outside the State which had
functional integrality with the activities of the main establishment and were directly under the
control and supervision of the main establishment and that such an interpretation did not give the
notification any extra-territorial operation.75
5. OTHER RELEVANT CONSIDERATIONS RELATING TO

OPERATION
(a) Presumption that Legislation is territorial
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Even when the legislative competence is not restricted on considerations of territorial nexus, it is
presumed that statutes are not intended, in the absence of contrary language or clear implication,
to operate on events taking place or persons outside the territories to which the statutes are
expressed to apply.76 Thus there is a general principle applicable to Income-tax Acts that either
the source from which the taxable income is derived should be within the territorial limits of the
country imposing the tax or the person whose income is to be taxed should be resident there.77
Section 10 of the Carriage by Air Act , 1961, enacted to give effect to the Hague
Convention, empowered making of delegated legislation by order in council to apply the
provisions of the Act with adaptations and modifications as may be specified to carriage by air (to
which the convention did not apply) of such description as may be specified in the order. In
conformity with the rule against giving extra - territorial effect to legislation, section 10 was
construed as authorising legislation limited to carriage wholly within the United Kingdom or non-
convention carriage involving a place of departure or destination or an agreed stopping place in
the United Kingdom or other British territory; and as not authorising legislation in respect of a
contract of carriage made and to be performed wholly within the territory of a single foreign State
or between two foreign States.78
The
Code of Criminal Procedure 1898,, extends to the whole of India, and therefore, the
words ‘last resided’ in section 488(8) of the Code were construed to mean last resided in the
territories of India.79 Similarly, section 77 of the Estate Duty Act, 1953, which empowers a
person, required to pay estate duty in respect of property of some other person, to sell such
property to raise the amount of the duty has been construed as not authorising sale of property
belonging to a person domiciled outside India.80
The
Monopolies and Restrictive Trade Practices Act, 1969 extends to the whole of India
except the State of Jammu and Kashmir. The Act has no extra-territorial operation. Therefore, the
MRTP Commission cannot exercise jurisdiction in respect of goods outside India until they are
imported into India. But the Act also recognises ‘effect doctrine’ and if any agreement executed
outside India has the effect of eliminating competition or competitor of the sale of goods in India
and the same is prejudicial to public interest the commission has jurisdiction to enquire into it.81
In other words, if the agreement executed outside India has resulted in a restrictive trade practice
in India, the commission will have jurisdiction.82
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(b) Operation as to foreigners: Regard to principles of International Law in

that respect
The presumption that a statute is not intended to apply to persons outside the territories of the
State enacting it, is particularly strong in case of foreigners, for as to them the normal
presumption is further strengthened by another presumption that the Legislature intends to respect
the rules of International Law.83 Without anything more Indian statutes are ineffective against
foreign property and foreigners outside the jurisdiction.84
Dealing with a case under bankruptcy legislation, James, L.J. stated: “the broad general universal
principle that: English legislation, unless the contrary is expressly enacted or so plainly implied as
to make it the duty of an English court to give effect to an English statute, is applicable only to
English subjects or to foreigners who by coming into this country, whether for a long or a short
time, have made themselves during that time subject to English jurisdiction. Every foreigner who
comes into this country, for however a limited time, is, during his residences here within the
allegiance of the Sovereign, entitled to the protection of the Sovereign and subject to all the laws
of the Sovereign. But, if a foreigner remains abroad, if he has never come into this country at all,
it seems—impossible to imagine that the English Legislature could have ever intended to make
such a man subject to a particular English legislation.”85 But the rule so stated is merely a rule of
construction for example: “British tax liability has never been exclusively limited to British
subjects and foreigners resident within the jurisdiction.”86
In the words of Lord Selborne, no territorial legislation can give jurisdiction which any foreign
court ought to recognise against foreigners, who owe no allegiance or obedience to the Power
which so legislates.87 It was, therefore, held that a decree obtained in absentem against a non -
resident foreigner in a personal action was an absolute nullity and will be so regarded by the
courts of every nation except (when authorised by special local legislation) in the country of the
forum by which it was pronounced.88 The Supreme Court has, however, held that such a decree is
not a nullity if it is authorised by the law of the country where it is passed; and that it may be
more appropriate to say that the decree is not executable in courts of other countries.89 The non-
executability of a decree of a foreign court, which is valid according to the law of the country
where it is passed, is merely a matter of procedure and when the place where the decree is passed
and the place where it is sought to be executed become subsequently part of the same country
governed by the same procedural law there would be no impediment in the execution of the
decree in accordance with that law.90
A foreign judgment obtained in a personal action to have extra-territorial validity must satisfy at
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least one of the following conditions: (i) The defendant was a subject of the foreign country; (ii)
The defendant was resident in the foreign country at the time when the action was begun against
him; (iii) The defendant was served with process while temporarily present in the foreign country
for even a short period; (iv) The defendant in his character as plaintiff in the foreign action
himself selected the forum where the judgment was given against him; (v) The defendant
voluntarily appeared; (vi) The defendant had contracted to submit to the jurisdiction&
of the foreign court.1 When a defendant voluntarily submitted to the jurisdiction in respect of a
claim in the foreign proceedings, he could also be taken to have submitted to jurisdiction of the
foreign court in respect of claims arising out of the same subject matter and to related claims.2
The presence of a foreign defendant who appears under protest to contest jurisdiction cannot be
considered as conferring jurisdication on the court to take action.3 A foreign judgment in a
personal action to be conclusive in India has to be on merits.4 But where the subject-matter is a
res so situated as to be within lawful control of the State, the courts of that State have generally
jurisdiction to decide about it.5 The courts of a country generally impose a threefold restriction
upon the exercise of their jurisdiction: (1) Jurisdiction in res (binding not only the parties but the
world at large) by a court over res outside the jurisdiction will not be exercised, because it will
not be recognised by other courts; (2) The court will not deal directly or indirectly with title to
immovable property outside the jurisdiction of the State from which it derives its authority; and
(3) The court will not assist in the enforcement within its jurisdiction of foreign penal or revenue
law.6 It has, therefore, been held that a court in India has no jurisdiction to refer to arbitration a
claim to immovable property situate in Burma.7
The courts in England will disregard a foreign law, on grounds of public policy, if it is against
basic principles of justice and fairness applied in administration of justice by English courts, e.g.,
against a fundamental principle of international law judged by contemporary standards.8
Under Art. 16(1) of the Convention on Jurisdiction and the Enforcement of Judgments in Civil
and Commercial Matters, 1968 (the Brussels Convention), enforced in the United Kingdom by the
Civil Jurisdiction and Judgments Act, 1982, in proceedings which have as their object rights in
rem in immovable property or tenancies of immovable property, the court of the State in which
the property is situated have exclusive jurisdiction. Interpreting Article 16(1), it has been held by
the Court of Justice of the European Communities that for the Article to apply the action must be
based on a right in rem and not a right in personam, save in the case of an exception concerning
tenancies.9 It was, therefore, ruled that an action brought in England by a father against his son
that a flat in France in the name of the son was held by him for the exclusive benefit of the father
and the son was under a duty to execute documents necessary to convey ownership of the flat to
the father, was not barred by Article 16(1).10
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But regard to the International Law is possible only when the municipal law does not provide
contrary to it. As stated by Lord Esher, M.R.: “The question whether courts of a nation will or
will not entertain jurisdiction of any dispute is to be determined exclusively by the nation itself,
i.e. by its municipal law. If by express legislation the courts are directed to exercise jurisdiction,
the courts must obey. If there is a proper inference to the same effect, the result is the same.”11The
Code of Civil Procedure, 1908 , permits a personal action to be filed in a court within
whose jurisdiction ‘the cause of action wholly or partly arises', and it has been held that a suit can
be entertained by an Indian court against a non-resident foreigner if cause of action for the suit
arises within the local limits of the Indian court.12 The principles of International Law are
administered by the municipal courts only at the sufferance of municipal law and they can be
pressed in aid to limit the apparent generality of municipal legislation when it is ambiguous or
when there is doubt as to it meaning13 for it is highly unlikely that Parliament intends to require
the courts to act contrary to International Law unless the clear language of the statute compels
such a conclusion;14 but when the language of municipal legislation is clear it cannot be restricted
in operation by referring to the principles of International Law; and the courts are bound to give
effect to the legislation of their State in spite of it being contrary to or inconsistent with any
principle of International Law, and in spite of there being difficulties regarding the effective
enforcement of their decrees or orders.15
As regards foreign states or sovereigns the modern trend is to apply the restrictive theory of
immunity and to distinguish between acts jure imperii and acts jure gestionis and to restrict the
immunity to the former.16 In U.K. the matter is now governed by the State Immunity Act, 1978.17
In India, as provided in
section 86 of the Code of Civil Procedure , a foreign state cannot be sued except with
the consent of the Central Government certified in writing by a Secretary to that Government.
Consent to sue cannot be given unless it appears to the Central Government that the foreign state:
(a) has instituted a suit in the court against the person desiring to sue it; or (b) by itself or another,
trades within the local limits of the jurisdiction of the court; or (c) is in possession of immovable
property situate within those limits and is to be sued with reference to such property or money
charged thereon; or (d) has expressly or impliedly waived the privilege accorded to it. The
immunity under section 86 also covers foreign corporations which are state owned and are like
government departments.18 Having regard to the modern trend of taking a restricted view of state
immunity, the Supreme court has ruled that consent to sue should generally be granted if
conditions of the section are satisfied.19
(b1) Regard to International agreements or conventions and International

Law20
The power of entering into a treaty or international agreement or convention is a sovereign power
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of the State and this power in India is exercised by the President as a part of the Executive power
of the Union under
Article 73 of the Constitution and does not need the necessity of legislative backing
21
for its exercise. A change in the form of Government of a contracting State does not put an end
to its treaties, therefore, treaties entered into by the British Government prior to 15-8-1947 or 26-
1-1950 on behalf of India are still subsisting and operative.22 But the terms of a treaty or
convention do not form part of the municipal law unless they are enforced directly by legislation
enacted by Parliament under Article 253 and Entries 10 and 14 of List I of the Seventh Schedule
or by delegated legislation made under it.23 But rules of international law or even specific treaty
obligations by themselves do not restrict the legislative power of Parliament. The well settled
interpretation of an existing law is not affected by subsequent ratification of an international treaty
on grounds of inconsistency with it unless the legislature modifies the law to bring it in accord
with treaty obligations.24 Therefore, if the terms of a statute are clear and unambiguous, they must
be given effect to whether or not they carry out the State's treaty obligations, for the sovereign
power of legislation extends to breaking treaties and any remedy for a breach of an international
obligation lies in a forum other than the State's Municipal Courts.25 If the terms of the legislation
are not clear, however, and are reasonably capable of more than one meaning, the treaty itself
becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in
breach of International Law, including therein specific treaty obligation; and if one of the
meanings which can reasonably be ascribed to the legislation is consonant with the treaty
obligations and another or others are not the meaning which is consonant is to be preferred.26 This
is all the more relevant in India for
Article 51(c) of the Constitution lays down as one of the directive principles of State
Policy that “the State shall endeavour to foster respect for International Law and treaty obligations
in the dealings of organised people with one another”. This directive though not enforceable by
courts can be kept in view in interpreting other parts of the
Constitution and statutes made under it which are reasonably capable of more than
one meaning.27 Indeed, it has been said that “the courts are under an obligation to give due regard
to international conventions and norms for construing domestic laws more so when there is no
inconsistency between them and there is a void in domestic law.”28 The proclamation on the Full
Participation and Equality of People with Disabilities in the Region, to which India is a signatory,
which was adopted in 1992 at a meeting held in Beijing by the Economic and Social Commission
for Asian and Pacific Region, was used for applying the Persons with Disabilities (Equal
Opportunities Protection of Rights and Full Participation) Act, 1995 and in directing the Indian
Airlines to grant to persons suffering from locomotor disability to the extent of 80% the same
concession which the Airlines was giving to those suffering from blindness.29Article 13 of the
Universal Declaration of Human Rights which declares that everyone has a right to freedom of
opinion and expression ‘regardless of frontiers' was referred to in holding that the right of
freedom of speech and expression guaranteed by Article 19(1)(a) of the
Constitution is not restricted to the territory of India.30 And, Article 11 of the
International Covenant on Civil and Political Rights, which provides that no one shall be
imprisoned merely on the ground of inability to fulfil a contractual obligation has greatly
influenced the court in giving a limited meaning to section 51 and order 21 Rule 37 of the
Code of Civil Procedure .31Article 9(5) of the same covenant which says that “any
one who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation” has been referred to in support of the view that damages can be allowed under
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Articles 32 and
226 of the
Constitution 32
for violation of the Fundamental Right in Article 21. Article 6(1) of the
European Convention on Human Rights and Fundamental Freedoms which provides for right to a
fair trial by an independent and impartial tribunal was recently referred to for deducing the same
right from
Article 14 of the Constitution 33
. The international convention on the Rights of Child
accepted by India, which aims at protecting not merely the child's social and political rights but
also extends protection to child's economic, social, cultural and humanitarian rights, was referred
to while interpreting the
Child Labour (Prohibition and Regulation) Act, 1986 34
. In a case where guidelines
were issued to prevent sexual harassment of women and to enable gender equality in employment,
the court referred to Articles 11, 24 and general recommendations 22, 23 and 24 in that respect of
the Convention on the Elimination of All Forms of Discrimination against women and observed:
“Any International Convention not inconsistent with the Fundamental Rights and in harmony with
its spirit must be read into these provisions (
Articles 14 ,
15 ,
19 and
21 of the
Constitution ) to enlarge the meaning and content thereof, to promote the object of
constitutional guarantee”.35 The aforesaid convention on the Elimination of All Forms of
Discrimination against women which was ratified by India in June 1993 was also relied upon in
construing
section 6 of the Hindu Minority and Guardianship Act 1956 and in holding that
mother's right of guardianship as a natural guardian of minor's person or property does not arise
only after the lifetime of the father but can arise during his lifetime also.36Article 11 of the same
convention was also relied upon in interpreting the Maternity Benefits Act, 1951 and it was also
said that the principles contained in Article 11 have to be read into the contract of service between
the Delhi Municipal Corporation and the women employees.37Article 1 of the Declaration on the
Right to Development adopted by the World Conference on Human Rights and Article 18 of the
International Covenant on Civil and Political Rights, 1966 were relied upon in support of the
decision that section 118 of the Succession Act, 1925 which imposes restrictions on christians
alone in the matter of making bequests for religious and charitable purposes is violative of
Article 14 of the Constitution .38 If States are parties to a convention which permits a
foreigner when sentenced to imprisonment for a crime to be transferred to the State of which he is
the citizen for serving out the sentence on humanitarian grounds, it may not be proper to detain
him under a preventive detention law instead of prosecuting him for a criminal offence as that will
deprive him of the beneficial provisions of the convention of being transferred to his home
State.39 But unless Parliament enacts a law to enforce the provisions of an International
Convention or Treaty, the convention or the treaty does not become part of the country's domestic
law and its provisions cannot be directly applied by the courts.40 The common law as also section
78 of the Police and Criminal
Evidence Act of the United Kingdom permits relevant evidence to be admitted in a
criminal trial even though it was improperly or unlawfully obtained unless the court rules it out on
the ground of having an adverse effect on the fairness of the trial. Article 8 of the European
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Convention for the Protection of Human Rights and Fundamental Freedoms to which U.K. is a
party, briefly stated, provides for right to privacy. The House of Lords, before the convention was
enforced as law in U.K., held that in spite of the convention, tape recorded conversation, obtained
by installing electronic listening device in a private house without the knowledge of owner or
occupier was admissible in the trial as the trial court in its discretion did not exclude it on the
ground that it would have adverse effect on the fairness of the trial.41 But if a convention
incorporates principles derived from the common law of nations as embodying the felt necessities
of the international trade they may be applied as common law of India even if the convention has
not been adopted by legislation.42
The Supreme Court in some of its judgments43 has referred to objectives of the judiciary
formulated in the Beijing statement of Principles of the Independence of the judiciary in Law Asia
region which were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995
and has also drawn some inspiration from them. These objectives are : “(a) to ensure that all
persons are able to live securely under the Rule of law; (b) to promote within the proper limits of
the judicial function, the observance and the attainment of human rights and to administer the law
impartially among persons and between persons and the State”. It is extremely doubtful if the
judges can enlarge their jurisdiction by decisions taken and agreed to by them in an international
conference of judges. Further, the objectives formulated at Beijing do not really go beyond what
is contemplated by the oath which a judge in India takes at the time of entering upon his office to
perform the duties of his office without fear or favour, affection or ill will and to uphold the
Constitution and the laws.
In a judicial colloquim held at Bangalore in December, 1998 certain principles 22 in number,

known as ‘Bangalore Principles'44 were formulated. Principle No. 2 declares: “It is the vital duty
of-judiciary-to interpret and apply national constitutions and ordinary legislation in harmony with
international human rights codes and customary international law, and to develop the common
law in the light of the values and principles enshrined in international human rights law.” The
comment relating to Beijing statement of Principles also applies to Bangalore Principles.
A survey of the Indian cases will show that International Law and International Conventions have
been used not only for interpretation of statutes but also for interpretation of the
Constitution 45 which has been facilitated because of Art. 51C and
incorporation of fundamental rights in the

Constitution . In Australia although recourse to international law can be taken for
interpretation of statutes, the High Court has so far not accepted the position that the international
law or international conventions can be used for interpretation of the Australian
Constitution .46
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The High Court of Australia in Minister of State for Immigration and Ethnic Affairs v. Teoh,
Minister of State for Immigration and Ethnic Affairs v. Teoh,
(1995) 183 CLR 273 , appears to have taken the view that the entry
into a treaty may give rise to a legitimate expectation that administrative decision makers will
make decisions consistent with the treaties ratified by Australia. This view was resented by
politicians and Bills were introduced to overturn it.47 The Australian case and the criticism that it
invited were noticed by the Supreme Court in Punjab Communications Ltd. v.
Union of India. Punjab Communications Ltd. v. Union of India.
48 In England also the benefit of Article 31 of the convention on the Status of Refugees, which
was not incorporated into English Law, was held to be available, in accordance with the
developing doctrine of legitimate expectation, to prevent imposition of penalties on the refugees
who present themselves without delay to the authorities and show good cause for their illegal
entry or presence.49 But the benefit of a provision in a convention, which has been enacted into
law, has not been allowed on the doctrine of legitimate expectation when the provision was yet to
come into force as part of the law on a notification issued by the executive Government.50
Though the courts will strive when they can to interpret statutes as conforming with the
obligations under the convention, they are nevertheless bound to give effect to statutes which are
free from ambiguity in accordance with their terms even if those statutes may be in conflict with
the convention.51 Further, the rule that the Legislature does not intend to depart from inter-State
agreements does not furnish any useful aid when the agreement is about taxation which, by its
own terms, is subordinated to the approval of the respective Legislatures of the States concerned
and persists only so long as its terms are maintained in force as law by those Legislatures.52
(b2) Acts passed to give effect to international treaties and conventions
The interpretation of international treaties and conventions is governed by Articles 31 and 32 of

the Vienna Convention on the Law of Treaties of 1969. The convention in terms applies to the
treaties concluded after it came into force but as Articles 31 and 32 do no more than codify
already existing public international law53 they have been referred even for interpreting treaties
and conventions concluded earlier.54 These Articles read as follows:55
Article 31: General rule of Interpretation
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“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes: (a) any agreement relating to the treaty which
was made between all the parties in connection with the conclusion of the treaty; (b) any
instrument which was made by one or more parties in connection with the conclusion of
the treaty and accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account together with the context: (a) any subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its
provisions; (b) any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation; (c) any relevant rules of
international law applicable in the relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.”
Article 32: Supplementary means of interpretation
“Recourse may be had to supplementary means of interpretation, including the preparatory work
of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting
from the application of article 31, or to determine the meaning when the interpretation according
to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is
manifestly absurd or unreasonable.”
When statutes are enacted to give effect to a treaty or convention, Articles 31 and 32 of the
Vienna Convention become relevant also for interpretation of such statutes.56 The rule stated by
the House of Lords is that if there be any difference between the language of the statutory
provision and that of the corresponding provision of the convention, the statutory language should
be construed in the same sense as that of the convention if the words of the statute are reasonably
capable of bearing that meaning.57 “The court must search untramelled by notions of its national
legal culture, for the true, autonomous and international meaning of the treaty. And, there can
only be one true meaning.”58 It has further been held that the correct approach in construing a
United Kingdom statute which incorporates and gives effect to a European convention is to
interpret the English text as set out in the statute in the normal manner appropriate for
interpretation of an international convention, unconstrained by technical rules of English law or
by legal precedent but on broad principles of general acceptation.59
The same method was adopted in construing the
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carriage by Air Act , 1961 which was enacted to give effect to the Warsaw
Convention. The Act sets out the convention in a schedule in two parts. Part I sets out the English
text and Part II, the French text. In case of inconsistency, the Act says that the French text is to
prevail. The House of Lords held that in dealing with such an Act, a purposive construction
should be applied and reference could be made to the opinion of international jurists as also to
travaux preparatoires of the convention in a limited sense.60 The court also noticed that this
practice was consistent with Articles 31 and 32 of the Vienna Convention on the Law of
Treaties.61 In considering claims by passengers of an international flight which were outside the
Warsaw Convention and were based on common law for personal injury, the House of Lords held
that the claims were not maintainable having regard to the objects and structure of the convention
which was intended to be exclusive also of any resort to the rules of domestic law.62 In the words
of Lord Hope: “The language used and the subject matter with which it deals demonstrate that
what was sought to be achieved was a uniform international code, which could be applied by
courts of all the High Contracting Parties without reference to the rules of their own domestic
law.”63 A question arose in this case64 whether mental injury such as stress and psychological
damage were bodily injury within Article 17 of the Convention65 for which damages could be
allowed but that question was not decided as the claims were outside the Convention because of
lapse of time and other reasons. That question however, arose for decision in a later case.66
Consistent with the principle that the Convention should as far as possible be given a common
construction in all jurisdictions and giving more importance to American decisions because of the
United States being a large participant in carriage by air, the House of Lords held that when a
mental injury or illness lacked a physical cause or origin it could not constitute a ‘bodily injury’
redressable under Article 17 but that expression did cover physical manifestations of a mental
injury, e.g., peptic ulcer and psychiatric disorders arising from injury to brain or nervous system
which are as much part of the body as any other part.67 The word ‘accident’ in Article 17 of the
convention has also been construed in the light of the decision of the United States' Supreme
Court in Air Frans v. Saks, Air Frans v. Saks,
68 to comprise of two elements: “There must be an event, (2), the event must be
unusual, unexpected or untoward.”69 On this analysis it was held that the existence of permanent
integral features of the aircraft such as cramped seating, alterations of air pressure, atmosphere
and temperature or the subjecting of passengers to carriage in aircraft with those features were not
capable of amounting to events that satisfied the first limb of the definition of an accident and the
passengers suffering deep veinthrombosis (DVT) because of these reasons were not entitled to
damages.70
The explanatory report published, along with the text of the Convention on the transfer of
sentenced persons, by the committee by whom the Convention was drawn up was admitted as an
aid to construction as part of travaux preparatoires to resolve any doubt as to the meaning of the
Convention.71
But if the words used in the Convention and the Act have no internationally acceptable meaning,
their meaning may be derived by recourse to the legislative history and the acceptable meaning
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according to the English law; and assistance may also be taken of the meaning of those words in
the country in respect of which the application of the Act is called for in a particular case.72
Dealing with Asylum and Immigration Appeals Act, 1993 and Immigration Rules, 1994 which
give effect to the Convention relating to the Status of Refugees, 1951 as amended by the 1967
Protocol, and in interpreting the expression ‘non-political crime’ as it appears in Article 1F of the
Convention (which sets out circumstances, including commission of a serious non-political crime,
which disentitles the asylum seeker to take the benefit of the convention), it was observed: “In a
case concerning an international convention, it is obviously desirable that decisions in different
jurisdictions should, so far possible, be kept in line with each other.”73 The House of Lords,
therefore, referred not merely to the English authorities but also to the American, Canadian and
other authorities and held that a crime of detonating a bomb at an airport by a member of a
political organisation to overthrow the Government of Algeria was a serious non-political crime
as it involved indiscriminate injury to innocent persons and such a person could not be given
political asylum in the United Kingdom.74 The asylum seeker for taking benefit of the same
convention has to qualify as a ‘refugee’ which as defined in Article 1A(2)is a person who ‘owing
to well grounded fear of being persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of the protection of that country. Two
women from Pakistan, who had been driven out by their husbands from their homes and who
were being falsely accused of adultery and immorality sought the benefit of the convention by
claiming that they were members of ‘a particular social group’ for women as a class were
discriminated against in Pakistan in matters of fundamental human rights and they would be
unprotected by the State and face risk of criminal proceedings and severe punishment if forced to
return to Pakistan. After referring to cases and practices from United States, Australia, Canada
Newzealand and European countries, which are not uniform, and the broad objective of the
convention reflected in its preamble, viz., to counteract discrimination in enjoyment of
fundamental rights, the House of Lords took a liberal view of the expression ‘a particular social
group’ and held that women could themselves constitute a social group if they lived in a society
such as Pakistan where they were discriminated against on the ground of sex in the matter of
protection of human rights although Article 1A(2) does not specially refer to persecution for the
reasons of sex along with race, religion, nationality and political opinion.75 The court also applied
the ejusdem generis rule in construing the expression ‘a particular social group’.76
In construing the Child Abduction and Custody Act 1985 which makes the Convention on the
Civil Aspects of International Child Abduction, 1980’ part of the law of England and sets it out in
a schedule, the House of Lords held that the English law concepts of ‘acquiescence’, which are
not to be found in the Convention or in the general law of all developed countries, have no
application to the proper construction of the word ‘acquiescence’ occurring in Article 13 of the
Convention.77 The reasoning on which this conclusion was reached is that “an international
convention, expressed in different languages and intended to apply to a wide range of differing
legal systems, cannot be construed differently in different jurisdictions. The convention must have
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the same meaning and effect under the laws of all contracting States.”78
While interpreting the word ‘counter claim’ in Article 11 of the Convention on Jurisdiction and
the Enforcement of Judgments in Civil and Commercial Matters 1968 (the Brussels Convention)
entered into between members states of the European Economic Community, which is enforced in
England by the Civil Jurisdiction and Judgments Act, 1982 and forms Sch. 1 to the Act, the House
of Lords did not straightaway accept the argument that the word in question was derived from the
Belgian Judicial Code where ‘counterclaim’ was permitted only against original plaintiff and not
against new parties observing that “the primary search must be for an objective and independent
interpretation capable of accommodating the needs of a diversity of national legal systems”79
although ultimately by contextual interpretation, it was held that counterclaim in Article 11 was
restricted to counterclaim against original plaintiff and did not include counterclaim against new
parties.80
The High Court of Australia holds that “if a statute transposes the text of a treaty or a provision of
a treaty into the statute so as to enact it as part of domestic law, the prima facie legislative
intention is that the transposed text should bear the same meaning in the domestic statute as it
bears in the treaty.”81 Therefore, “the rules applicable to the interpretation of treaties must be
applied to the transposed text and the rules generally applicable to the interpretation of domestic
statutes give way”.82 Treaties as earlier noticed are interpreted according to Articles 31 and 32 of
the Vienna Convention.83 These Articles have been interpreted to require a holistic approach
which means “a consideration of both the text and the object and purposes of the treaty to
ascertain its true meaning.”84 In order to ascertain the object and purpose, apart from the text,
assistance may be obtained from extrinsic sources. “The form in which a treaty is drafted, the
subject to which it relates, the mischief that it addresses, the history of its negotiation and
comparison with earlier or amending instruments relating to the same subject may warrant
consideration in arriving at the true interpretation of its text.”85
An international convention and the Act passed to give effect to it may also have to be construed
consistent with Customary International Law. For example, Article 6 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms enforced in the United Kingdom
by the Human Rights Act 1998, which requires contracting States to maintain fair and public
judicial processes and forbids them to deny any individual access to those processes for
enforcement of civil rights, has been construed not to affect the limitation of jurisdiction on the
ground of State immunity, which is a creature of customary international law and follows from
the equality of sovereign States.86
The principles stated above have also been followed by the Supreme Court of India and statutes
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enacted for giving effect to international conventions are construed as far as possible consistent
with the terms of the convention and assistance can also be taken from the relevant branch of the
International Law for it is almost accepted that the rules of customary International Law which
are not contrary to the municipal law are deemed to have been incorporated in the domestic law.87
Thus ‘Sustainable Development’ as a balancing concept between ecology and development,
which has been accepted as a part of the customery International Law and the ‘Precautionary
Principle’ and the ‘Polluter Pays Principle’ which are its essential features were used for
construing the functions of the authority under
section 3(3) of the Environment (Protection) Act, 1986 which was enacted to give
effect to the decisions taken at the United Nations Conference on Human Environment at
Stockholm.88
In construing the expression ‘public policy’ in section 7(1)(b)(ii) of the

Foreign Awards (Recognition and Enforcement) Act, 1961 which was enacted for
giving effect to the New York Convention (1958) assistance was taken from terms of the
convention and the meaning of ‘public policy’ as understood in the private International Law.89
The expression ‘public policy’ was in this manner construed as restricted to fundamental policy of
Indian law, interests of India and justice or morality. It was, therefore, held that mere
contravention of Indian law did not attract any bar to the enforcement of foreign award.90 The
word ‘commercial’ in section 3 of the same Act was liberally construed to include contracts for
consultancy services to promote speedy settlement of disputes arising in international trade and
recourse was also taken to the meaning of the word ‘commercial’ in the Model Law prepared by
the United Nations Commission on International Trade Law (UNCITRAL).91 But, while
interpreting the same Act, the Court by majority, it is submitted, took an unduly restricted view of
the meaning of ‘submission’ in section 3 on the ground that there was no ambiguity92 though fully
realising that by taking this view the purpose and object of the convention will not be fully carried
out93 and that an English authority94 had taken a contrary view on identical language in the
corresponding English Act. Further, though in drafting the
Arbitration and Conciliation Act, 1996 UNCITRAL Model Law and Rules were
taken into account but as the two are not identically worded different meaning of a provision in
the Act may have to be adopted from the corresponding provision in the Model Law. For
example, it was held by a
constitution bench that the power of the Chief Justice in the matter of appointment of
arbitrators under section 11 is not a power exercisable by a court or tribunal and is not appealable
under
Article 136 of the constitution though in the Model Law that power is exercised by a
1
court. But this view was later overruled by a larger bench and it was held that the power of the
Chief Justice was a judicial power.2 The case also points out the issues which the Chief Justice
may have to decide at that stage, for example he has to decide whether the party approaching has
approached the right High Court, whether there is an arbitration agreement, whether the person
approaching is a party to the agreement and whether the claim is still a live issue and not dead.3
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A law enacted to implement an International Convention may make suitable changes to suit local
conditions. Therefore, the
Wild Life Protection Act, 1972 as amended in 1991 and 2003 enacted in furtherance
of the Convention on International Trade in Endangered Species of Wild Fauna and Flora
(CITES) imposing complete ban on trade in Ivory including imported African Ivory to protect
Indian elephant cannot be faulted as unreasonable though limited trade has been allowed for
certain African elephant population by changes made in CITES.4
Section 21 of the Extradition Act, 1962 (as amended in 1993) enacted to give effect
to extradition treaties has to be construed consistent with the treaties and the principle of
International Law known as the principle of ‘speciality’ which is to the effect that the State to
which a person has been extradited cannot without the consent of the requisitioned State try a
person extradited save for the offence for which he was extradited or any lesser offence disclosed
by the facts proved for the purposes of securing his surrender or return; or the offence in respect
of which the foreign state has given its consent.5
More recently while interpreting Rule 14(d) of the Customs Tariff (Identification, Assessment,
and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury)
Rules, 1995, which provides that if the Designated Authority determines that the volume of the
dumped imports actual or potential from a particular country accounts for less than 3% of the
imports of the like product, he shall terminate the proceedings immediately, the court6 relied upon
Article 5.8 of the Agreement on Implementation of Article VI of GATT (General Agreement on
Tariff and Trade), which is the basis for imposition of anti-dumping duty under
section 9A of the Customs Act , and to which India is a party. The Customs Excise
and Gold (Control) Appellate Tribunal (CEGAT) had held that the word ‘volume’ in the context
of Rule 14 meant value. In overruling this interpretation the court quoted Article 5.8 of the
Agreement which makes it clear that the de minimis rule for termination of proceedings as far as
the price is concerned is when the margin or the difference between the export price of the article
and the normal value, is less than 2%, in other words, when the exporter is selling the goods in
India at almost the same price that it does in its country. As far as the quantity is concerned, de
minimis rule applies if the export accounts for less than 3% of the total imports of the like article
in India which is treated as too trivial for the law and is ignored. It was, therefore, held that when
Rule 14(d) says that the investigation must be terminated if the volume of the dumped imports is
less than 3% of the imports of the like product, it must mean that the quantity of dumped imports
must account for less than 3% of the total imports.7
But when the language of the Indian Act is clear, its meaning cannot be affected by international
declarations or United Nations' resolutions to which India is a party and has to be given effect to.
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It was so held in deciding that a retired police officer ‘having knowledge of, or practical
experience in the matters relating to human rights' can be appointed a member of the National
Human Rights Commission being qualified to be so appointed under
section 3(2)(d) of the Protection of Human Rights Act , 1994 and his appointment
cannot be challenged on the basis of Paris Principles regarding the protection of human rights,
subsequently endorsed by the U.N. General Assembly.8
(c) Operation as to crimes
Apart from statute and international crimes,9 the general principle of criminal jurisprudence is that
the quality of an act depends on the law of the place where it is done.10 It has been said that “all
crime is local” and “the jurisdiction over the crime belongs to the country where the crime is
committed”.11 A State exercises jurisdiction to punish all criminal acts against its laws done
within its territories by its subjects or aliens, and jurisdiction may also be exercised by proper
legislation to punish criminal acts of subjects wherever done. The power to legislate for subjects
wherever they may be, is supported on the basis of allegiance of the subject to the sovereign.12
But as regards foreigners “no proposition of law can be more incontestable or more universally
admitted that, according to general law of nations, a foreigner, though criminally responsible to
the law of nation not his own, for acts done by him while within the limits of its territory, cannot
be made responsible to its law for acts done beyond such limits”.13 These principles have given
rise to a rule of construction which, as explained by Lord Simonds, means: “A statute creating an
offence and imposing a penalty for it, should be so construed as to apply only to those persons
who by virtue of residence or, in some cases, citizenship or nationality, are regarded as subject to
the jurisdiction of the State which has enacted the statute.”14 In other words there is a presumption
that a statute creating a criminal offence does not, in the absence of clear and specific words to the
contrary, make an act done by a foreigner outside the territorial jurisdiction of the State an offence
triable in a criminal court of the State.15 It also follows that the same principle will apply to a
section in a statute conferring power to make delegated legislation.16 In the absence of express
words power to make delegated legislation making acts done by a foreigner outside the State a
criminal offence triable by State Courts cannot be inferred.17
This rule of construction will, however, not apply if restriction of the general words to citizens
and residents will “largely stultify the purpose and effect” of the statute.18 Again there is no
presumption that any reference in an Act of Parliament to the doing of any act is to be understood
as excluding the doing of that act within the territories of another State, the presumption only is
that an Act of British Parliament does not make anything done within the territories of another
State an offence punishable by English courts.19 In construing the Obscene Publications Act, 1959
which extends to England and Wales and which authorises seizure of obscene articles kept for
publication for gain, it was held that even obscene articles meant for publication in foreign
country when found in England could be seized and that this construction did not bring in any
Mr.Srikanth -
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element of extra-territoriality.20 Similarly in construing section 4(1)of the Explosives Substances

Act, 1883, which makes it an offence to make or possess explosive substances in such
circumstances as to give rise to a reasonable suspicion that they were not made or possessed for a
lawful object, it was held that the ‘lawful object’ specified therein is not confined to a purpose
which takes place in the United Kingdom and the lawfulness of which is to be determined by the
English law and the section will cover a person who made or possessed explosives for unlawful
use in a foreign country.21 Further, the general rule that a criminal statute of a State does not apply
to outside foreigners is subject to certain exceptions. If a foreigner, though outside the territories
of a State, has continued to seek its protection he may become liable for punishment like any
other subject of the State for acts against the laws of the State, though done outside its territories.
Thus an American citizen who left England, on a British passport describing himself a British
subject, and who went to Germany and during the war broadcast from that country propaganda
against the British, was convicted of high treason in England.22 It was held that the person
concerned though a foreigner began to owe allegiance to the King by his presence in England and
he continued this duty of allegiance even after he left England by obtaining a British passport
describing himself a British subject; and that it was immaterial that he had obtained the passport
by misrepresentation, or that he was not in law a British subject.23 Again, in certain cases, acts
done outside the territories of a State, may be regarded as acts done within the State, although the
person who did the act may be outside the territory. “for instance, a person who being abroad
procures an innocent agent or uses the post office to commit a crime in England is deemed to
commit an act in England. If a person, being outside England, initiated an offence, part of the
essential elements of which take effect in England, he is amenable to English Jurisdiction. It
appears that even though the person who has initiated such an offence is a foreigner, he can be
tried if he subsequently comes to England.24 Similarly a conspiracy entered into outside for
committing an unlawful act in England, can be tried there if it is wholly or partly performed
there.25 In the case of what is a result crime in English law, the offence is committed in England
and justiciable by an English court if any part of the proscribed result takes place in England.26
The same principle applies in case of an attempt to commit a result crime. If the intended
consequences forming part of the crime would have taken place in England had the crime been
complete, the accused can be punished in England even though all the acts constituting the
attempt took place in a foreign country.27 But when a foreigner committing an offence in England
and leaving United Kingdom is brought within the territorial jurisdiction of an English court by
forcibly abducting him in violation of international law and in disregard of extradition procedure
to which the police or other executive authorities in United Kingdom were a knowing party, the
court will stay the prosecution as an abuse of the process of the court and release the prisoner.28 In
deciding the question of stay the court will also weigh two competing public interests: one that
those engaged in grave offences should be tried and the other that an impression should not be
conveyed that the end justifies the means. Thus more latitude is given to police and other law
enforcement agencies to plan penetration of drug dealing organisations for bringing to trial those
engaged in illicit drug trade.29
The
Indian Penal Code, 1860 , extends to the whole of India and enacts that “every
person shall be liable to punishment under this Code and not otherwise for every act or omission
Mr.Srikanth -
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contrary to the provisions thereof, of which he shall be guilty within India” (section 2), By section
4, the Code has been given extra-territorial operation and “the provisions of the Code apply also
to any offence committed by: (1) any citizen of India in any place without and beyond India; (2)
any person on any ship or aircraft registered in India wherever it may be”. A person, therefore,
who commits an act contrary to the Code outside the territory of India (not in any ship or aircraft
registered in India) will not be amenable to the Indian criminal jurisdiction and will not be liable
to punishment under the Code, if, at the time of commission of the act, he was not a citizen of
India even if he subsequently acquires the status of an Indian citizen.30 But it is not essential in
every case that a foreigner should be corporeally present within Indian territories at the time of the
commission of the offence for making him liable under the Code for an offence committed within
India. Thus if a foreigner initiates an offence from outside the territories of India, he can be
punished for an offence committed within India if the essentials of the offence occur within
India.31 It was, therefore, held that a Pakistani national, who from Karachi made false and
dishonest representations by letters, telegrams and trunkcalls to the complainant at Bombay, who,
on the faith of these representations, paid money to the accused's agent at Bombay, could be
prosecuted and punished for the offence of cheating under the
Penal Code by the courts in India.32 Further, a foreigner can be detained in India not
only for facilitating his expulsion,33 but also for preventing him from going to a foreign country,
and from there to continue to indulge in activities prejudicial to the security and integrity of
India.34
For inquiry into and trial of offences committed outside India but made amenable to Indian
Jurisdiction by
section 4 of the Penal Code 35
a court of the place ‘at which he may be found’ in
India will have jurisdiction as provided in
section 188 of the Code of Criminal Procedure but previous sanction of the Central
Government is necessary. But such a permission may not be necessary when the overt acts outside
India are committed in furtherance of a conspiracy hatched within India. A conspiracy to cheat the
Punjab National Bank at Chandigarh between certain persons including a non-resident Indian
based at Dubai was hatched at Chandigarh culminating in cheating the Bank at Chandigarh. On an
objection that permission of the Central Government was necessary, it was held that conspiracy
being a continuing offence all the offences resulting from the overt acts whether committed at
Dubai or Chandigarh could be tried in India at Chandigarh without obtaining permission of the
Central Government.36
(d) International Crimes
The international law recognises certain international crimes as crimes of universal jurisdiction.
Such a crime comes under the jurisdiction of all States wherever it be committed and all States are
entitled to apprehend and punish the offenders.37 This jurisdiction applies traditionally to
Mr.Srikanth -
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international crimes of piracy, and war crimes.38
After the second world war and the Nuremberg trials in respect of Nazi atrocities, international
law has recognised many other international crimes. This has been done by international treaties
and conventions adopted into domestic law by legislation by the contracting States enabling them
to try these crimes even in cases where such crimes were not committed by their nationals or
within their geographical boundaries thus giving rise to the principle of universality limited
among the contracting States. Some examples of such legislation by the Indian Parliament are the
Anti Apartheid (United Nations Convention) Act, 1981 which gives effect to the international
convention on the suppression and punishment of the crime of Apartheid; the
Anti-Hijacking Act, 1982 , which gives effect to the convention for the suppression of
unlawful seizure of aircraft known as the Hague Convention, 1970; and the Suppression of
Unlawful Act Against the Safety of Civil Aviation Act, 1982, which gives effect to the
convention for the suppression of unlawful act against the safety of civil aviation known as the
Montreal Convention, 1971.
Can courts of a country, which has ratified an International Convention creating an international
crime but which has not implemented the convention by enacting a law, take cognizance of the
international crime? Such a question recently arose before the Federal Court of Australia in
relation to genocide which has not been made a crime by Australian legislation although Australia
has ratified the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. By
majority, the Federal Court of Australia held that the crime was not cognizable by Australian
courts.39 In India, unlike in England, all offences are statutory and the common law in India does
not by itself recognise any offence.40 Therefore, the view taken by the Federal Court of Australia
will apply with stronger reason for India.
Even in England the courts now cannot create new criminal law offences and statute is now the
sole source of new crimes. Therefore, even if a convention or International Law recognizes a
crime which has not been made a crime by legislation it would not be recognized as a crime
punishable by courts in England. It was so held by the House of Lords in R. v.
Jones R. v. Jones 41 in the context of the International crime of
‘aggression’ which has been recognized in customary international law ever since 1945, but has
not yet been assimilated in English domestic law by statute. On this reasoning the plea of
protestors causing damage that they were acting for prevention of ‘crime’ of aggression by the
United Kingdom on Iraq and had a valid defence under section 3 of the Criminal Law Act 1967
was rejected.
One international crime recently considered by the House of Lords42 is torture by a public official
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or a person acting in public capacity regulated by the Convention against Torture and Other Cruel
and Inhuman or Degrading Treatment or Punishment 1984 (the Torture Convention) and
implemented in the United Kingdom by section 134(1) of the Criminal Justice Act, 1988. Senator
Pinochet was Head of State of Chile between 1973 to March 1990. During this period appalling
acts of barbarism were committed in Chile and elsewhere allegedly in pursuance of a conspiracy
to which Pinochet was a party at his instigation and with his knowledge. In 1998 when Pinochet
came to the United Kingdom for medical treatment, judicial authorities in Spain sought to
extradite him to stand trial in Spain on a large number of charges most of which occurred in Chile
and had no connection with Spain. 110 or more States including Chile, Spain and the United
Kingdom are parties to the Torture Convention.43 The House of Lords in disposing of the appeal
in the extradition case held that Pinochet could be extradited to Spain in respect of acts of torture
committed after the convention was enforced in U.K. by the Criminal Justice Act, 1988. It was
also held that Pinochet had no immunity as former Head of State in respect of acts of torture
committed after ratification of the convention by Spain, Chile and the United Kingdom.
Inspite of the decision of the House of Lords, Pinochet was not extradited to Spain by the
Government of the United Kingdom and was allowed to return to Chile for reasons of health. But
his misery did not end even thereafter, and he faced investigations in many cases in Chile also.44
The case of Pinochet drew global attention to the international crime of Torture and to the fact
that even a Head of State committing the offence can be made answerable for it. The case was
also important for it was the first time that a decision of the House of Lords was reviewed and set
aside and the case reheard on the ground that one of the Law Lords, who first heard the case, was
automatically disqualified from hearing the case on the ground of bias as he had such links with
one of the parties (Amnesty International) that the decision led to the promotion of a cause in
which both were involved.45
As an extension of Pinochet, it has been held by the Court of Appeal in Jones v.

Ministry of Interior of Saudi Arabia Jones v. Ministry of Interior of Saudi Arabia
46 that in an action for damages for acts of torture committed in a foreign State, the State alone
will have immunity but the officials responsible for torture will not have any immunity. In this
case, the claimants who were British and Canadian nationals alleged that they were systematically
tortured while they were imprisoned in Saudi Arabia. They claimed damages against the Kingdom
of Saudi Arabia and the officials allegedly responsible for the torture. Saudi Arabia is also a party
to the Torture Convention. The Court of Appeal held that the Kingdom of Saudi Arabia was
entitled to State immunity under the State Immunity Act, 1978 but the officials who were
responsible for the torture or even a former head of State could not be allowed State immunity
whether under the Act or the international law after torture constituted an international crime
under the Torture Convention.47 The reasoning is that as the States were obliged to ensure under
Article 14(1) of the Convention that victims obtained legal redress, the acts of torture could not be
treated as the exercise of any function of the State to attract immunity in criminal or civil
proceedings against individuals.48 But in appeal the House of Lords49 reversed the decision of the
Court of Appeal. It was held that though the Torture Convention had established a universal
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criminal jurisdiction it did not provide for universal civil jurisdiction and Article 14 of the
Convention required a private right of action only for acts of torture committed in territory under
the jurisdiction of the forum state. There was also no evidence nor any consensus of judicial or
learned opinion that states had recognized or given effect to an international law obligation to
exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of
international law. Therefore, the immunity enacted by the State Immunity Act 1978, both in
favour of the State and Officials acting for the State remained unaffected.
An important recent development50 in the context of international crimes is the establishment of a

permanent International Criminal Court (ICC) by the Rome Statute which became effective on 1st
July 2002 after its ratification by sixty states. The court was inaugurated on March 11, 2003 after
swearing in of 18 judges at the Hague. The ICC will exercise jurisdiction in respect of crime of
genocide, crimes against humanity, war crimes and the crime of aggression. All these crimes
except the crime of aggression are defined in the statute in Articles 6, 7 and 8. The crime of
aggression is yet to be defined in accordance with Articles 121 and 123 of the statute. The ICC's
jurisdiction is complimentary and it does not replace the national criminal justice systems. India
and Pakistan are not parties to the Rome Statute. It is yet to be seen how effective the court will
be. Questions have been raised relating to the court's independence because of the role of the
Security Council in influencing its functioning.51
20 See Chapter 1, title 4 “Statute to be construed to make it effective and workable”, p. 43.
21 Chiranjitlal Chowdhury v. Union of India, Chiranjitlal Chowdhury v. Union of

India,
AIR 1951 SC 41 [
LNIND 1950 SC 55 ], p. 45 :
1950 SCR 869 [
LNIND 1950 SC 55 ]; State of Bombay v. F.N. Balsara, State of Bombay v. F.N.
Balsara,
AIR 1951 SC 318 [
LNIND 1951 SC 42 ], p. 326 :
1951 SCR 682 [
LNIND 1951 SC 42 ]; Kanaiya-lal v. Indumati, Kanaiya-lal v. Indumati,
AIR 1958 SC 444 [
LNIND 1958 SC 15 ], p. 447 :
1958 SCR 1394 [
LNIND 1958 SC 15 ]; Mohd Hanif Quareshi v. State of Bihar, Mohd Hanif
Quareshi v. State of Bihar,
AIR 1958 SC 731 [
LNIND 1958 SC 58 ], pp. 740, 744 :
1959 SCR 629 [
LNIND 1958 SC 58 ]; Kerala Educa-tion Bill, In re, Kerala Educa-tion Bill, In
re,
AIR 1958 SC 956 , p. 972 :
1959 SCR 995 ; Motilal v. S.P. Sahi, Motilal v. S.P. Sahi,
AIR 1959 SC 942 [
LNIND 1959 SC 51 ], p. 947 : 1959 Supp (2) SCR 563; Hamdard Dawakhana v. Union of India,
Mr.Srikanth -
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Hamdard Dawakhana v. Union of India,

AIR 1960 SC 554 [
LNIND 1959 SC 230 ], p. 569 :
(1960) 2 SCR 671 [
LNIND 1959 SC 230 ]; Waverley Jute Mills v. Raymon & Co., Waverley Jute
Mills v. Raymon & Co.,
AIR 1963 SC 90 [
LNIND 1962 SC 587 ], p. 96 :
(1963) 3 SCR 209 [
LNIND 1964 SC 416 ]; Sub Divl. Magistrate v. Ramkali, Sub Divl. Magistrate
v. Ramkali,
AIR 1968 SC 1 [
LNIND 1967 SC 229 ], p. 3 :
(1968) 1 SCR 205 [
LNIND 1967 SC 229 ]; State of Bihar v. Bihar Distillery Ltd., State of Bihar v.
Bihar Distillery Ltd.,
AIR 1997 SC 1511 [
LNIND 1996 SC 2869 ], p. 1519 :
1997 (2) SCC 453 [
State of U.P.,
AIR 1999 SC 1867 [
LNIND 1999 SC 517 ], p. 1907 :
(1999) 9 SCC 700 [
LNIND 1999 SC 517 ]; Union of India v. Elphinstone Spinning & Weaving Co.,
Union of India v. Elphinstone Spinning & Weaving Co.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ]:
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 733 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ].
22 Shell Company of Australia v. Federal Commissioner of Taxation, Shell Company

of Australia v. Federal Commissioner of Taxation,
(1931) AC 275 , p. 298 (PC); referred to in Suntharalingam v. Inspector of Police,
Suntharalingam v. Inspector of Police,
(1971) 3 WLR 896 , p. 893 (PC); Union of India v. Ephinstone Spinning & Weaving Co., supra.
Union of India v. Ephinstone Spinning & Weaving Co., supra.
23 Saghir Ahmad v. State of U.P., Saghir Ahmad v. State of U.P.,

AIR 1954 SC 728 [
LNIND 1954 SC 128 ], p. 738 :
1955 (1) SCR 707 [
LNIND 1954 SC 128 ]; Khyerbari Tea Co. v. State of Assam, Khyerbari Tea Co.
v. State of Assam,
AIR 1964 SC 925 [
LNIND 1963 SC 295 ], pp. 938, 939 :
1964 (5) SCR 975 [
LNIND 1963 SC 295 ].
24 In Kantilal Babulal and Bros. v. H. C. Patel, Kantilal Babulal and Bros. v. H. C. Patel,
AIR 1968 SC 445 [
LNIND 1967 SC 288 ], p. 449 (para 12) :
(1968) 1 SCR 735 [
LNIND 1967 SC 288 ], similar rule was applied in the context of Article 19(1)(f). And, in
Harichand Sarda v. Mizo District Council, Harichand Sarda v. Mizo District Council,
AIR 1967 SC 829 [
LNIND 1966 SC 277 ], p. 832 : (1967) 1 SRC 1012 ; Md. Faruk v. State of Bihar,
Md. Faruk v. State of Bihar,
AIR 1970 SC 93 [
Mr.Srikanth -
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LNIND 1969 SC 148 ], p. 96 :

(1969) 1 SCC 853 [
LNIND 1969 SC 148 ]; Vra-jlal M. & Co. v. State of M.P., Vra-jlal M. & Co. v.
State of M.P.,
AIR 1970 SC 129 [
LNIND 1969 SC 186 ], p. 135 :
(1969) 2 SCC 248 [
LNIND 1969 SC 186 ]; Sukhnandan Saran Dinesh Kumar v. Union of India,
Sukhnandan Saran Dinesh Kumar v. Union of India,
AIR 1982 SC 902 [
LNIND 1982 SC 57 ], p. 911 :
(1982) 2 SCC 150 [
LNIND 1982 SC 57 ], the observations are general though the cases relate to Article 19(1)(g). In
Union of India v. Elphinstone Spinning & Weaving Co. supra., Union of India v. Elphinstone Spinning & Weaving
Co. supra., also the observations are general but the case relates to Articles 14 and 19(1)(g).
25 Welfare Association A.R.P. Maharashtra v. Ranjit P. Gohil, Welfare Association

A.R.P. Maharashtra v. Ranjit P. Gohil,
AIR 2003 SC 1266 [
LNIND 2003 SC 218 ], p. 1278 :
(2003) 9 SCC 1266 . See further Hindustan Lever v. State of Maharashtra,
Hindustan Lever v. State of Maharashtra,
AIR 2004 SC 326 , p. 329 (para 34 :
(2004) 9 SCC 438 ; Dhram Dutt v. Union of India, Dhram Dutt v. Union of
India,
AIR 2004 SC 1295 [
LNIND 2003 SC 1025 ], p. 1313 (para 43) :
(2004) 1 SCC 712 [
LNIND 2003 SC 1025 ].
26 See pp. 425-27.
27 Khyerbari Tea Co. v. State of Assam, Khyerbari Tea Co. v. State of Assam,
AIR 1964 SC 925 [
LNIND 1963 SC 295 ], p. 938 :
1964 (5) SCR 975 [
LNIND 1963 SC 295 ]. See also Amrit Banaspati Co. Ltd. v. Union of India,
Amrit Banaspati Co. Ltd. v. Union of India,
1995 (1) Scale 809 :
AIR 1995 SC 1340 [
LNIND 1995 SC 232 ]:
(1995) 3 SCC 335 [
LNIND 1995 SC 232 ].
28
(2005) 8 SCC 534 [
LNIND 2005 SC 856 ].
29 Ibid, para 58.
30 Ibid, para 71.
31 Ibid, para 75.
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32 Blackwood v. Reg, Blackwood v. Reg,

(1882) 8 AC 81 , p. 98 (PC); Macleod v. A-G of New South Wales, Macleod
v. A-G of New South Wales,
(1891) AC 455 : 62 LJ PC 44 : 68 LT 326 (PC); United States v. Delware,
United States v. Delware, (1909) 213 US 366, pp. 407, 408; Hindu Women's Right to Property Act, In re Hindu
Women's Right to Property Act, In re
AIR 1941 FC 72 , p. 75; Express Newspapers Ltd. v. Union of India, Express
Newspapers Ltd. v. Union of India,
AIR 1958 SC 578 [
LNIND 1958 SC 25 ], p. 623 :
1959 SCR 12 [
LNIND 1958 SC 25 ]; State of Bihar v. Charusiladasi, State of Bihar v.
Charusiladasi,
AIR 1959 SC 1002 [
LNIND 1959 SC 56 ], p. 1010 : 1959 Supp (2) SCR 601; Kedarnath v. State of Bihar,
Kedarnath v. State of Bihar,
AIR 1962 SC 955 [
LNIND 1962 SC 519 ], p. 969 : 1959 Supp (2) SCR 769; Anant Prasad v. State of Andhra
Pradesh, Anant Prasad v. State of Andhra Pradesh,
AIR 1963 SC 853 [
LNIND 1962 SC 354 ], p. 859 : 1959 Supp (1) SCR 844; Govindlalji v. State of Rajasthan,
Govindlalji v. State of Rajasthan,
AIR 1963 SC 1638 [
LNIND 1963 SC 8 ], p. 1655 :
(1964) 1 SCR 561 [
LNIND 1963 SC 8 ]; New India Sugar Mills v. Commr. of Sales Tax, New India
Sugar Mills v. Commr. of Sales Tax,
AIR 1963 SC 1207 , p. 1213 : 1963 Supp (2) SCR 459; R.L. Arora v. State of Uttar Pradesh,
R.L. Arora v. State of Uttar Pradesh,
AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], p. 1238 :
(1964) 6 SCR 784 [
LNIND 1964 SC 31 ]; Life Insurance Corporation of India v. S.V. Oak, Life
Insurance Corporation of India v. S.V. Oak,
AIR 1965 SC 975 [
LNIND 1964 SC 243 ], p. 980 :
(1965) 1 SCR 403 [
LNIND 1964 SC 243 ]; Corporation of Calcutta v. Liberty Cinema,
Corporation of Calcutta v. Liberty Cinema,
AIR 1965 SC 1107 [
LNIND 1964 SC 354 ], pp. 1113, 1114 :
(1965) 2 SCR 477 [
LNIND 1964 SC 354 ]; Venkataraman & Co. v. State of Madras, Venkataraman
& Co. v. State of Madras,
AIR 1966 SC 1089 [
LNIND 1965 SC 262 ], pp. 1104, 1105 :
(1966) 2 SCR 229 [
LNIND 1965 SC 262 ]; Johrimal v. Director of C. & H., Punjab, Johrimal v.
Director of C. & H., Punjab,
AIR 1967 SC 1568 [
LNIND 1967 SC 95 ], p. 1574 :
(1967) 3 SCR 286 [
LNIND 1967 SC 95 ]; Shah & Co., Bombay v. State of Maharashtra, Shah &
Co., Bombay v. State of Maharashtra,
AIR 1967 SC 1877 [
LNIND 1967 SC 122 ], p. 1883 :
(1967) 3 SCC 466 ; Vrijlal M. & Co. v. State of M.P., Vrijlal M. & Co. v. State
of M.P.,
AIR 1970 SC 129 [
LNIND 1969 SC 186 ], p. 135 :
(1969) 2 SCC 248 [
LNIND 1969 SC 186 ] :
(1967) 3 SCR 466 [
LNIND 1967 SC 122 ]; T.S. Mankad v. State of Gujarat, T.S. Mankad v. State of
Gujarat,
AIR 1970 SC 143 [
Mr.Srikanth -
Page 44 of 79
LNIND 1969 SC 158 ], p. 146 :

(1969) 2 SCC 120 [
LNIND 1969 SC 158 ]; Jothi Timber Mart v. Calicut Municipality, Jothi Timber
Mart v. Calicut Municipality,
AIR 1970 SC 264 [
LNIND 1969 SC 218 ], p. 266 :
(1969) 2 SCC 348 [
LNIND 1969 SC 218 ]; Rayala Corporation v. Director of Enforcement, Rayala
Corporation v. Director of Enforcement,
AIR 1970 SC 494 [
LNIND 1969 SC 219 ], p. 499 :
(1969) 2 SCC 412 [
LNIND 1969 SC 219 ]; State of Kerala v. Krishnan Nayar, State of Kerala v.
Krishnan Nayar,
AIR 1978 SC 747 [
LNIND 1978 SC 46 ], p. 759 :
(1978) 1 SCC 552 [
LNIND 1978 SC 46 ]; Sita Ram v. State of U.P., Sita Ram v. State of U.P.,
AIR 1979 SC 745 [
LNIND 1979 SC 65 ]:
(1979) 2 SCC 656 [
LNIND 1979 SC 65 ]; Winifred Ross v. Ivy Fonesca, Winifred Ross v. Ivy
Fonesca,
(1984) 1 SCC 288 [
LNIND 1983 SC 367 ], pp. 292, 293, 295 :
AIR 1984 SC 458 [
Tulsiram Patel,
(1986) 3 SCC 398 [
LNIND 1986 SC 132 ], p. 484 :
AIR 1986 SC 1541 [
LNIND 1986 SC 132 ]; Olga Tellis v. Bombay Municipal Corporation, Olga
Tellis v. Bombay Municipal Corporation,
(1985) 3 SCC 545 [
LNIND 1985 SC 215 ], p. 581 :
AIR 1986 SC 180 [
LNIND 1985 SC 215 ]. Anirudha Ramkrishna Karlekar v. Janakibai R. Bedekar,
Anirudha Ramkrishna Karlekar v. Janakibai R. Bedekar,
AIR 1991 SC 503 [
LNIND 1991 SC 52 ], p. 505 :
(1991) 1 SCC 649 [
LNIND 1991 SC 52 ]; Hotel Balaji v. State of Andhra Pradesh, Hotel Balaji v.
State of Andhra Pradesh,
AIR 1993 SC 1048 [
LNIND 1992 SC 758 ], p. 1078 :
(1992) 6 JT 182 [
LNIND 1992 SC 758 ] : 1993 Supp (4) SCC 536; Githa Hariharan v. Reserve Bank of India,
Githa Hariharan v. Reserve Bank of India,
JT 1999 (1) SC 524 [
LNIND 1999 SC 165 ], p. 529 : 1999 AIR SC 1149 ; B.R. Enterprises v. State of U.P.,
B.R. Enterprises v. State of U.P.,
AIR 1999 SC 1867 [
LNIND 1999 SC 517 ], pp. 1906, 1907 :
(1999) 9 SCC 700 [
LNIND 1999 SC 517 ]; Union of India v. Elphinstone Spinning and Weaving Co. Ltd.,
JT 2001 (1) SC 536 [
LNIND 2001 SC 2915 ], p. 553 :
AIR 2001 SC 724 [
LNIND 2001 SC 2915 ], p. 733 :
(2001) 4 SCC 139 [
LNIND 2001 SC 2915 ]; Daniel Latif v. Union of India, Daniel Latif v. Union of
India,
AIR 2001 SC 3958 [
LNIND 2001 SC 2181 ], p. 3972 :
Mr.Srikanth -
Page 45 of 79
(2001) 7 SCC 740 [

LNIND 2001 SC 2181 ].
33 Northern Securities Company v. United States, Northern Securities Company v.

United States, 193 US 197, p. 400 (The Mind and Faith of Justice Holmes, edited by Maxlerner, p. 224).
34 Colman v. v Colman v. v
(1897) 1 QB 396 , p. 396; D’Emden v. Pedder, D’Emden v. Pedder,
(1904) CLR 91 , pp. 119, 120;
AIR 1941 FC 72 , p. 75. See further Chapter 12, p. 956.
35 For limitations of the rule, see p. 568.
36 See cases in note 32, supra. See further New Delhi Municipal Committee v. State of Pubjab,
New Delhi Municipal Committee v. State of Pubjab,
AIR 1997 SC 2847 [
LNIND 1996 SC 2181 ], pp. 2901 to 2904 :
(1997) 7 SCC 339 [
LNIND 1996 SC 2181 ].
37 A.G. of Gambia v. Momodon Jobe, A.G. of Gambia v. Momodon Jobe,

(1984) AC 689 , p. 702 (PC); Hector v. Attorney-General of Antique and Barbuda,
Hector v. Attorney-General of Antique and Barbuda,
(1990) 2 All ER 103 , p. 107 :
(1990) 2 AC 312 (PC).
38 Hindu Women's Right to Property Act, supra, In re, Hindu Women's Right to
Property Act, supra, In re, reaffirmed in Umayal Singh Achi v. Lakshmi Achi, Umayal Singh
Achi v. Lakshmi Achi,
AIR 1945 FC 28 : 1945 FC R 1.
39
AIR 1941 FC 72 , p. 75.
40 Ibid.
41 Kedarnath v. State of Bihar, Kedarnath v. State of Bihar,

AIR 1962 SC 955 [
LNIND 1962 SC 519 ]: 1962 Supp (2) SCR 769.
42 Bal Gangadhar Tilak v. Queen Empress, Bal Gangadhar Tilak v. Queen Empress,
ILR 22 Bom 528 (PC); Annie Besant v. A-G of Madras, Annie Besant v. A-G of Madras,
AIR 1919 PC 31 : 46 IA 176; Emperor v. Sadasiv Narain, Emperor v. Sadasiv
Narain,
AIR 1947 PC 84 . See further a decision in an appeal from West Africa relating to section 330,
Criminal Code of Gold Coast Colony, Wallace-Johnson v. R., Wallace-Johnson v. R.,
(1940) 1 All ER 241 (PC).
Mr.Srikanth -
Page 46 of 79
43 Niharendra Dutt v. Emperor, Niharendra Dutt v. Emperor,

AIR 1942 FC 22 .
44 Kedarnath v. State of Bihar, Kedarnath v. State of Bihar,

AIR 1962 SC 955 [
LNIND 1962 SC 519 ]: 1962 Supp (2) SCR 769.
45 Ibid, p. 969. Compare R. (on the application of Rusbridger) v. Attorney General,

Compare R. (on the application of Rusbridger) v. Attorney General,
(2003) 3 All ER 784 (HL) (construction of section 3 of the Treason Felony Act 1848 after
enforcement of the Human Rights Act, 1998).
46
AIR 1967 SC 1110 [
LNIND 1966 SC 214 ], p. 1117 (para 18) :
(1967) 1 SCR 190 [
LNIND 1966 SC 162 ]. This criticism is also referred with approval in the minority judgment of
AHMADI, C.J.I., for himself and three other judges in New Delhi Municipal Committee v. State of Punjab, New
Delhi Municipal Committee v. State of Punjab,
AIR 1997 SC 2847 [
LNIND 1996 SC 2181 ], p. 2883 (para 113) :
(1997) 7 SCC 339 [
LNIND 1996 SC 2181 ].
47
AIR 1978 SC 1675 [
LNIND 1978 SC 215 ]:
(1978) 4 SCC 494 [
LNIND 1978 SC 215 ].
48
AIR 1963 SC 1207 , p. 1213 : 1963 Supp (2) SCR 459.
49 Gita Hariharan v. Reserve Bank of India, Gita Hariharan v. Reserve Bank of India,
JT 1999 (1) SC 524 [
LNIND 1999 SC 165 ], p. 529 :
AIR 1999 SC 1149 [
LNIND 1999 SC 165 ], p. 1152 :
(1999) 2 SCC 228 [
LNIND 1999 SC 165 ].
50 New Delhi Municipal Committee v. State of Punjab, New Delhi Municipal

Committee v. State of Punjab,
AIR 1997 SC 2847 [
LNIND 1996 SC 2181 ], p. 2904 :
(1997) 7 SCC 339 [
LNIND 1996 SC 2181 ].
51
AIR 1963 SC 1638 [
LNIND 1963 SC 8 ], pp. 1655, 1664 :
1964 (1) SCR 561 [
LNIND 1963 SC 8 ].
Mr.Srikanth -
Page 47 of 79
52 R.L. Arora v. State of U.P., R.L. Arora v. State of U.P.,

AIR 1964 SC 1230 [
LNIND 1964 SC 31 ], p. 1238 :
1964 (6) SCR 784 [
LNIND 1964 SC 31 ].
53
AIR 1993 SC 844 [
LNIND 1992 SC 736 ], p. 848 :
(1993) 1 SCC 333 [
LNIND 1992 SC 736 ].
54 T.S. Mankad v. State of Gujarat, T.S. Mankad v. State of Gujarat,

AIR 1970 SC 143 [
LNIND 1969 SC 158 ], p. 146 :
(1969) 2 SCC 120 [
LNIND 1969 SC 158 ].
55
AIR 1964 SC 600 [
LNIND 1963 SC 282 ]:
1964 (5) SCR 683 [
LNIND 1963 SC 282 ].
56 T.S. Mankad v. State of Gujarat, supra, T.S. Mankad v. State of Gujarat, supra, p.
146. See further N.C. Dalwadi v. State of Gujarat, N.C. Dalwadi v. State of Gujarat,
(1987) 3 SCC 611 [
LNIND 1987 SC 516 ], p. 620 :
AIR 1987 SC 1933 [
LNIND 1987 SC 516 ](A power to retire a government servant after the age of 55 and before the
age of superannuation of 58 conferred in wide terms by a service rule was held to be exercisable only ‘in public interest’ and these
words of restriction were read by implication in the rule for otherwise the rule would have contravened
Article 311(2) of the Constitution ). But see Senior Supdt. of Post Office v. Izhar Hussain,
Senior Supdt. of Post Office v. Izhar Hussain,
AIR 1989 SC 2262 [
LNIND 1989 SC 396 ]:
(1989) 4 SCC 318 [
LNIND 1989 SC 396 ] (words of restriction ‘in public interest’ were not read and the rule was
declared invalid. Dalwadi's case was not cited).
57 State of Punjab v. Kailash Nath, State of Punjab v. Kailash Nath,

AIR 1989 SC 558 : 1989 (1) SCC 321.
58 BR Enterprises v. State of U.P., BR Enterprises v. State of U.P.,

AIR 1999 SC 1867 [
LNIND 1999 SC 517 ], pp. 1910, 1911 :
(1999) 9 SCC 700 [
LNIND 1999 SC 517 ].
59 State of Punjab v. Associated Hotels of India Ltd., State of Punjab v. Associated

Hotels of India Ltd.,
1972 (2) SCR 937 [
LNIND 1972 SC 5 ] :
Mr.Srikanth -
Page 48 of 79
(1972) 1 SCC 472 [

LNIND 1972 SC 5 ] :
AIR 1972 SC 1131 [
LNIND 1972 SC 5 ]; Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi,
Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi,
1978 (4) SCC 361 :
1980 (2) SCC 167 [
LNIND 1979 SC 503 ].
60 K. Damodarasamy Naidu and Bros. v. The State of Tamil Nadu, K. Damodarasamy

Naidu and Bros. v. The State of Tamil Nadu,
JT 1999 (8) SC 309 [
LNIND 1999 SC 922 ], p. 319 :
AIR 1999 SC 3909 [
LNIND 1999 SC 922 ], pp. 3915, 3916 :
(2000) 1 SCC 521 .
61 Ibid.
62 See text and notes 38 to 61, pp. 561 to 566.
63 Express Newspapers Ltd. v. Union of India, Express Newspapers Ltd. v. Union of

India,
AIR 1958 SC 578 [
LNIND 1958 SC 25 ]:
1959 SCR 12 [
LNIND 1958 SC 25 ]; Corporation of Calcutta v. Liberty Cinema, Corporation
of Calcutta v. Liberty Cinema,
AIR 1965 SC 1107 [
LNIND 1964 SC 354 ], p. 1114 :
1965 (2) SCR 477 [
LNIND 1964 SC 354 ]. (‘Fee’ construed as ‘tax’); State of Kerala v. M.K. Krishnan Nayar,
State of Kerala v. M.K. Krishnan Nayar,
AIR 1978 SC 747 [
LNIND 1978 SC 46 ], p. 759 :
(1978) 1 SCC 552 [
LNIND 1978 SC 46 ].
64
AIR 1958 SC 578 [
LNIND 1958 SC 25 ]:
1959 SCR 12 [
LNIND 1958 SC 25 ].
65 Ibid, p. 623.
66 Charan Lal Sahu v. Union of India, Charan Lal Sahu v. Union of India,
AIR 1990 SC 1480 [
LNIND 1989 SC 639 ]:
1990 (1) SCC 613 [
LNIND 1989 SC 639 ].
67 Ibid, p. 1536.
Mr.Srikanth -
Page 49 of 79
68 Ibid.
69 Ibid.
70 Umayal Singh Achi v. Lakshmi Achi, Umayal Singh Achi v. Lakshmi Achi,
AIR 1941 FC 28 , p. 31. Hindu Women's Right to Property Act, In re, Hindu
Women's Right to Property Act, In re,
AIR 1941 FC 72 , p. 75.
71 Umayal Singh Achi v. Lakshmi Achi, Umayal Singh Achi v. Lakshmi Achi,
AIR 1941 FC 28 , p. 31.
72 Hindu Women's Right to Property, In re, Hindu Women's Right to Property, In re,
Act,
AIR 1941 FC 72 , p. 77.
73 Venkatraman & Co. v. State of Madras, Venkatraman & Co. v. State of Madras,
AIR 1966 SC 1089 [
LNIND 1965 SC 262 ], p. 1105 :
1966 (2) SCR 229 [
LNIND 1965 SC 262 ].
74 State of Punjab v. Prem Sukhdas, State of Punjab v. Prem Sukhdas,

AIR 1977 SC 1640 [
LNIND 1977 SC 164 ], p. 1642 :
(1977) 2 SCC 774 [
LNIND 1977 SC 164 ]; Commissioner of Wealth Tax v. Hasmatunnisa Begum,
Commissioner of Wealth Tax v. Hasmatunnisa Begum,
AIR 1989 SC 1024 [
LNIND 1989 SC 29 ], p. 1030 : 1989 Supp (2) SCC 43; Hector v. Attorney-General of Antiqua
and Barbuda, Hector v. Attorney-General of Antiqua and Barbuda,
(1990) 2 All ER 103 , p. 107 :
(1990) 2 WLR 606 :
(1990) 2 SC 312 (PC); M.P. Cement Manufacturer's Association v. State of M.P.,
M.P. Cement Manufacturer's Association v. State of M.P.,
(2004) 2 SCC 249 , p. 260 :
(2003) 10 Scale 547 [
LNIND 2003 SC 1061 ].
75 Delhi Transport Corpn. v. DTC Mazdoor Congress, Delhi Transport Corpn. v. DTC
Mazdoor Congress,
AIR 1991 SC 101 [
LNIND 1990 SC 824 ]: 1991 Supp (1) SCC 600.
76 Ibid.
77 Madhu Kishwar v. State of Bihar, Madhu Kishwar v. State of Bihar,

AIR 1996 SC 1864 [
LNIND 1996 SC 807 ], p. 1884 :
(1996) 5 SCC 230 .
Mr.Srikanth -
Page 50 of 79
78 Denning, approach called ‘heroics’ by House of Lords and Beg, C.J., see text and notes 34 and 41, p. 70.
79 Ahmedabad Municipal Corporation v. Nilaybhai R. Thakore, Ahmedabad Municipal

Corporation v. Nilaybhai R. Thakore,
JT 1999 (8) SC 244 [
LNIND 1999 SC 1525 ], pp. 249, 250 :
AIR 2000 SC 114 [
LNIND 1999 SC 1525 ], p. 117 :
(1999) 8 SCC 139 [
LNIND 1999 SC 1525 ].
80 Ibid, p. 252 (JT), p. 118 (AIR).
81 Hyderabad Karnataka Education Society v. Registrar of Societies, Hyderabad

Karnataka Education Society v. Registrar of Societies,
JT 1999 (9) SC 482 [
LNIND 1999 SC 1103 ]:
AIR 2000 SC 301 [
LNIND 1999 SC 1103 ]:
(2000) 1 SCC 566 [
LNIND 1999 SC 1103 ].
82 Ibid, rule 7A, p. 491 (JT), pp. 307, 308 (AIR).
83 Ibid, p. 499 (JT) : p. 312 (AIR).
84
JT 2000 (7) SC 177 [
LNIND 2000 SC 867 ]:
(2000) 6 SCC 12 [
LNIND 2000 SC 867 ] :
AIR 2000 SC 2436 [
LNIND 2000 SC 867 ].
85 Ibid, p. 209.
86 Ibid, p. 234.
87
AIR 1957 SC 628 [
LNIND 1957 SC 37 ]:
1957 SCR 930 .
88 Ibid, p. 636.
89 Ibid, pp. 636, 637.
Mr.Srikanth -
Page 51 of 79
90 Ibid, p. 637. See further for test of severability Sawai Bhawani Singh v. State of Rajasthan, Sawai
Bhawani Singh v. State of Rajasthan,
1996 (1) Scale 733 [
LNIND 1996 SC 286 ], pp. 738, 739:
1996 (3) SCC 105 [
LNIND 1996 SC 286 ].
91 DPP v. Hutchinson, DPP v. Hutchinson,

(1990) 2 All ER 836 , p. 845 (HL); Commissioner of Police v. Davis,
Commissioner of Police v. Davis,
(1993) 4 All ER 476 , p. 487 :
(1994) 1 AC 283 :
(1993) 3 WLR 846 (PC).
1 Macleod v. A.G. of New South Wales, Macleod v. A.G. of New South Wales,
(1891) AC 455 : 60 LJ PC 55 (PC); Bressard v. Smith, Bressard v. Smith,
(1925) AC 371 (PC); London and South American Investment Trust v. British Tobacco Co.
(Australia), London and South American Investment Trust v. British Tobacco Co. (Australia),
(1927) 1 Ch 107 ; Commissioner of Stamp Duties (NSW) v. Millar,
Commissioner of Stamp Duties (NSW) v. Millar,
(1932) 48 CLR 618 ; Provincial Treasurer of Alberta v. Kerr, Provincial
Treasurer of Alberta v. Kerr,
(1933) AC 710 (PC); Johnson v. Commissioner of Stamp Duties, Johnson v.
Commissioner of Stamp Duties,
(1956) 1 All ER 502 , pp. 509, 510 (PC).
2 British Coal Corporation v. R., British Coal Corporation v. R.,

(1935) AC 500 :
(1935) All ER Rep 139 , p. 146 (PC) (Lord Sankey, L.C.).
3 Broken Hill South Ltd. v. Commissioner of Taxation (NSW), Broken Hill South Ltd.
v. Commissioner of Taxation (NSW),
(1937) 56 CLR 337 , pp. 361, 375; referred to in G-G in Council v. Raleigh Investment Co.,
G-G in Council v. Raleigh Investment Co.,
AIR 1944 FC 51 , p. 58; A.H. Wadia v. C.I.T., Bombay, A.H. Wadia v. C.I.T.,
Bombay,
AIR 1949 FC 18 , pp. 24, 37; Tata Iron and Steel Co. v. State of Bihar, Tata
Iron and Steel Co. v. State of Bihar,
AIR 1958 SC 452 [
LNIND 1958 SC 13 ], p. 459 :
1958 SCR 1355 [
LNIND 1958 SC 13 ].
4 Croft v. Dunphy, Croft v. Dunphy,

(1933) AC 156 (PC) :
AIR 1933 PC 16 , p. 18; referred to in Wallace Brothers v. CIT, Bombay,
Wallace Brothers v. CIT, Bombay,
AIR 1948 PC 118 , p. 120.
5 Commr. of Stamp Duties (NSW) v. Millar, Commr. of Stamp Duties (NSW) v. Millar,
(1932) 48 CLR 618 , p. 642; Johnson v. Commissioner of Stamp Duties,
Johnson v. Commissioner of Stamp Duties,
(1956) 1 All ER 502 , pp. 509, 510 (PC); State of Bihar v. Charusiladasi, State
of Bihar v. Charusiladasi,
Mr.Srikanth -
Page 52 of 79
AIR 1959 SC 1002 [

6 Croft v. Dunphy, Croft v. Dunphy,

(1933) AC 156 (PC) :
AIR 1933 PC 16 .
7 Ibid, p. 18, For a case of mandated territory, see Naim Malvan v. A-G of Palestine,
Naim Malvan v. A-G of Palestine,
AIR 1948 PC 186 .
8 Commissioner of Stamp Duties (NSW) v. Millar, Commissioner of Stamp Duties

(NSW) v. Millar,
(1932) 48 CLR 618 ; Broken Hill South Ltd. v. Commr. of Taxation (NSW),
Broken Hill South Ltd. v. Commr. of Taxation (NSW),
(1937) 56 CLR 337 ; Johnson v. Commr. of Stamp Duties (NSW), Johnson v.
Commr. of Stamp Duties (NSW),
(1956) 1 All ER 502 (PC).
N.B.— In 1986 the Parliaments of the United Kingdom and the Commonwealth of Australia passed
the Australia Acts which provide: “2(1). It is hereby declared and enacted that the legislative powers of the Parliament of each State
include full power to make laws for peace, order and good Government of that State that have extra-territorial operation. It has been
held that section 2(1) merely codifies the nexus rule and does not bring about any change; Union Steamship Co. of Australia Ltd. v.
King, Union Steamship Co. of Australia Ltd. v. King, (1988) 62 ALJR 645. The law still is that legislation of a
State Parliament (should be held valid if there is any real connection—even a remote or general connection—between the subject
matter of the legislation and the State.) This proposition does not deny that there may remain the question about what is meant in a
particular case by (real connection): Mobil Oil Australia Pty. Ltd. v. Victoria, Mobil Oil Australia Pty. Ltd. v.
Victoria, (2002) 76 ALJR 926, p. 936.
9 Commr. of Stamp Duties (NSW) v. Millar, Commr. of Stamp Duties (NSW) v. Millar,
(1932) 48 CLR 618 .
10 Ibid.
11 Ibid.
12 Broken Hill South Ltd. v. Commr. of Taxation (NSW), Broken Hill South Ltd. v.
Commr. of Taxation (NSW),
(1937) 56 CLR 337 .
13 Ibid, p. 358.
14 Ibid, p. 375.
15 See text and notes 9 to 14, supra.
16 Johnson v. Commr. of Stamp Duties, Johnson v. Commr. of Stamp Duties,

(1956) 1 All ER 502 (PC).
Mr.Srikanth -
Page 53 of 79
17 Ibid, p. 509.
18 Ibid, pp. 510, 511.
19 Wallace Bros. v. CIT, Bombay, Wallace Bros. v. CIT, Bombay,

AIR 1948 PC 118 : (1948) 161 ITR 240 (PC). See further Trinidad Lake Asphalt Operating
Co. Ltd. v. Trinidad & Tobago Income-tax Commrs., Trinidad Lake Asphalt Operating Co. Ltd. v. Trinidad &
Tobago Income-tax Commrs.,
(1945) 1 All ER 9 , pp. 10, 11 (PC).
20 Wallace Bros. v. CIT, Bombay, Wallace Bros. v. CIT, Bombay,

AIR 1948 PC 118 , p. 120 (para 13) :
(1948) 161 ITR 240 (PC).
21 Ibid, (para 17).
22 G.G. in Council v. Raleigh Investment Co., G.G. in Council v. Raleigh Investment

Co.,
AIR 1944 FC 51 ; Wallace Brothers v. C.I.T., Bombay, Wallace Brothers v.
C.I.T., Bombay,
AIR 1945 FC 9 ; A.H. Wadia v. C.I.T., Bombay, A.H. Wadia v. C.I.T., Bombay,
AIR 1949 FC 18 .
23 Broken Hill South Ltd. v. Commr. of Taxation, Broken Hill South Ltd. v. Commr. of
Taxation,
(1937) 56 CLR 337 , p. 357.
24 G.G. in Council v. Raleigh Investment Co. Ltd., G.G. in Council v. Raleigh

Investment Co. Ltd.,
AIR 1944 FC 51 : 1944 FCR 229.
25 G.G. in Council v. Raliegh Investment Co. Ltd., G.G. in Council v. Raliegh

Investment Co. Ltd.,
AIR 1944 FC 51 , p. 58 :
1944 FCR 229 ; referred to in A.H. Wadia v. CIT, Bombay, referred to in A.H.
Wadia v. CIT, Bombay,
AIR 1949 FC 18 , p. 24 (KANIA, C.J.I.).
26 British Columbia Electric Railway Co. Ltd. v. King, British Columbia Electric
Railway Co. Ltd. v. King,
AIR 1946 PC 180 . See further British Coal Corporation v. R., British Coal
Corporation v. R.,
(1935) AC 500 :
(1935) All ER Rep 139 (PC)and A.G. for Ontario v. A.G. for Canada, A.G. for
Ontario v. A.G. for Canada,
(1947) AC 127 :
(1947) 1 All ER 137 (PC); in these two cases legislations abolishing appeals to Privy Council
were upheld.
Mr.Srikanth -
Page 54 of 79
27 Mcleod v. Att. Gen., New South Wales, Mcleod v. Att. Gen., New South Wales,
(1891) AC 455 : 60 LJ PC 55 : 65 LT 321 (PC).
28 British Columbia Electric Rly. Co. Ltd. v. King, British Columbia Electric Rly. Co.
Ltd. v. King,
AIR 1946 PC 180 , p. 184.
29 Article 245 (2),

Constitution of India . But some nexus with India may still be necessary. See the observations in Electronics
Corporation of India Ltd. v. Commissioner of Income Tax, Electronics Corporation of India Ltd. v. Commissioner
of Income Tax,
AIR 1989 SC 1707 [
LNIND 1989 SC 285 ]: 1989 Supp (2) SCC 642, where the question of validity of section
9(1)(vii) of the
Income-tax Act, 1961 was referred to a Constitutional Bench.
30 See text and notes 26 and 28, supra.
31 Article 245(1)and
Article 246(3), Constitution of India .
(India) Ltd.,
AIR 1953 SC 252 [
LNIND 1953 SC 42 ], p. 256:1053, 1069.

Chamarbaugwala,
AIR 1957 SC 699 [
LNIND 1957 SC 38 ], p. 711 :
1957 SCR 874 [
LNIND 1957 SC 37 ]. See Further R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass
Works, R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works,
AIR 1993 SC 2094 [
LNIND 1993 SC 1144 ], p. 2102 :
1993 (2) SCC 130 [
LNIND 1993 SC 1144 ].

Chamarbaugwala,
AIR 1957 SC 699 [
LNIND 1957 SC 38 ], p. 714 :
1957 SCR 874 [
LNIND 1957 SC 37 ]; referred to in Tata Iron and Steel Co. v. Bihar State, Tata
Iron and Steel Co. v. Bihar State,
AIR 1958 SC 452 [
LNIND 1958 SC 13 ], p. 461 :
1958 SCR 1355 [
LNIND 1958 SC 13 ]; State of Bihar v. Charusiladasi, State of Bihar v.
Charusiladasi,
AIR 1959 SC 1002 [
LNIND 1959 SC 56 ], p. 1010 : 1959 Supp (2) SCR 601; Shrikant Bhalchandra Karulkar v. State
of Gujarat, Shrikant Bhalchandra Karulkar v. State of Gujarat,
JT 1994 (5) SC 91 , p. 94 :
1994 (5) SCC 459 (2). See further State of A.P. v. National Thermal Power Corporation
Mr.Srikanth -
Page 55 of 79
Ltd., State of A.P. v. National Thermal Power Corporation Ltd.,

AIR 2002 SC 1895 [
LNIND 2002 SC 311 ], p. 1911 :
(2002) 5 SCC 203 [
LNIND 2002 SC 311 ].
AIR 1964 SC 925 [
LNIND 1963 SC 295 ], p. 942 :
1964 (5) SCR 975 [
LNIND 1963 SC 295 ].
36
AIR 1953 SC 252 [
LNIND 1953 SC 42 ], p. 256 :
1953 SCR 1069 [
LNIND 1953 SC 42 ].
37
AIR 1948 PC 118 ; See text and notes 19 to 21, supra.
(India) Ltd.,
AIR 1953 SC 252 [
LNIND 1953 SC 42 ], p. 256 :
1953 SCR 1069 [
LNIND 1953 SC 42 ]. See also Poppatalal Shah v. State of Madras,
Poppatalal Shah v. State of Madras,
AIR 1953 SC 274 [
LNIND 1953 SC 38 ]:
1953 SCR 677 [
LNIND 1953 SC 38 ].
39
AIR 1958 SC 452 [
LNIND 1958 SC 13 ], pp. 459 to 462 :
1958 SCR 1355 [
LNIND 1958 SC 13 ]. Followed in Tikaram & Sons v. Commr. of Sales Tax,
Tikaram & Sons v. Commr. of Sales Tax,
AIR 1968 SC 1286 [
LNIND 1968 SC 80 ]:
1968 (3) SCR 512 [
LNIND 1968 SC 80 ].
40 Wallace Brothers v. Commissioner of Income-tax, Bombay, Wallace Brothers v.

Commissioner of Income-tax, Bombay,
AIR 1948 PC 118 . See text and notes 19 to 21, supra.
41 G.G. in Council v. Raleigh Investment Co., G.G. in Council v. Raleigh Investment

Co.,
AIR 1944 FC 51 : 1944 FCR 229; A.H. Wadia v. Commissioner of Income tax, Bombay,
A.H. Wadia v. Commissioner of Income tax, Bombay,
AIR 1949 FC 18 : 17 ITR 63.
Mr.Srikanth -
Page 56 of 79
42 Trustees, Executors & Agency Co. Ltd. v. Federal Commissioner, Trustees,

Executors & Agency Co. Ltd. v. Federal Commissioner,
(1933) 49 CLR 220 ; Wangmue Rangitikei Electric Power Board v. Australian Mutual Provident
Society, Wangmue Rangitikei Electric Power Board v. Australian Mutual Provident Society,
(1934) 50 CLR 581 ; Broken Hill South Ltd. v. Commr. of Taxation Broken Hill
South Ltd. v. Commr. of Taxation (NSW),
(1937) 56 CLR 337 .
43 Tata Iron & Steel Co. v. Bihar State, Tata Iron & Steel Co. v. Bihar State,
AIR 1958 SC 452 [
LNIND 1958 SC 13 ], pp. 459 to 462 :
1958 SCR 1355 [
LNIND 1958 SC 13 ]. Followed in Tikaram & Sons v. Commissioner of Sales Tax,
Tikaram & Sons v. Commissioner of Sales Tax,
AIR 1968 SC 1286 [
LNIND 1968 SC 80 ]:
1968 (3) SCR 512 [
LNIND 1968 SC 80 ].
44 20th Century Finance Corporation Ltd. v. State of Maharashtra, 20th Century

Finance Corporation Ltd. v. State of Maharashtra,
AIR 2000 SC 2436 [
LNIND 2000 SC 867 ], pp. 2448, 2449 :
(2000) 6 SCC 12 [
LNIND 2000 SC 867 ]; State of A.P. v. National Thermal Power Corporation Ltd.,
State of A.P. v. National Thermal Power Corporation Ltd.,
AIR 2002 SC 1895 [
LNIND 2002 SC 311 ], pp. 1911, 1912 :
(2002) 5 SCC 203 [
LNIND 2002 SC 311 ].

Chamarbaugwala,
AIR 1957 SC 699 [
LNIND 1957 SC 38 ]:
1957 SCR 874 [
LNIND 1957 SC 37 ].
46 Ibid, p. 712.
AIR 1964 SC 925 [
LNIND 1963 SC 295 ]:
1964 (5) SCR 975 [
LNIND 1963 SC 295 ].
48 Ibid, p. 942.
49 State of Bihar v. Charusiladasi (Smt.), State of Bihar v. Charusiladasi (Smt.),

AIR 1959 SC 1002 [
LNIND 1959 SC 56 ]: 1959 Supp (2) SCR 601.
50 Ibid, pp. 1010, 1011.
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Page 57 of 79
51 Anant Prasad v. State of Andhra Pradesh, Anant Prasad v. State of Andhra

Pradesh,
AIR 1963 SC 853 [
52 Shrikant Balchandra Karulkar v. State of Gujarat, Shrikant Balchandra Karulkar v.

State of Gujarat,
JT 1994 (5) SC 91 : 1994 (5) SCC 459 (2).
53 Ibid, p. 96.

AIR 1960 SC 1080 [
LNIND 1960 SC 436 ], p. 1085 :
1960 (3) SCR 887 [
LNIND 1960 SC 436 ].
55 State of Karnataka v. Rangnatha Reddi, State of Karnataka v. Rangnatha Reddi,

AIR 1978 SC 215 , p. 231 :
(1977) 4 SCC 471 . Even under the international law a Sovereign State cannot by legislation
change title to a property situate in a different State; thus compulsory acquisition of property to be recognised must be limited to
properties within the State: Williams and Humbert Ltd. v. W.P. and Trade Marks (Jersey) Ltd., Williams and
Humbert Ltd. v. W.P. and Trade Marks (Jersey) Ltd.,
(1986) 1 All ER 129 , p. 133 :
1986 AC 368 :
(1986) 2 WLR 24 (HL).
56 In the matter of Cauvery Water Disputes Tribunal,

AIR 1992 SC 522 [
LNIND 1991 SC 1022 ]: 1993 Supp (1) SCC 96 (2) :
1991 (4) JT 361 .
57 Ibid, pp. 544, 550, 552.
58 R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works, R.S.D.V. Finance Co.
Pvt. Ltd. v. Shree Vallabh Glass Works,
AIR 1993 SC 2094 [
LNIND 1993 SC 1144 ], p. 2102 :
1993 (2) SCC 130 [
LNIND 1993 SC 1144 ].
59 S.K. Sahgal v. Kishore Kumar, S.K. Sahgal v. Kishore Kumar,

AIR 1959 SC 809 [
LNIND 1959 SC 32 ]: 1959 Supp (2) SCR 364. But if because of a statute law of the state in
which the transferee court is located, the execution of decrees against the judgment-debtor is suspended, the execution of
thetransferred decree will also remain suspended; Binod Mills Co. Ltd. v. Suresh Chandra Mahavir Prasad Mantri,
Binod Mills Co. Ltd. v. Suresh Chandra Mahavir Prasad Mantri,
(1987) 3 SCC 99 [
LNIND 1987 SC 462 ] :
Mr.Srikanth -
Page 58 of 79
AIR 1987 SC 1739 [

LNIND 1987 SC 462 ].
60 See title 4(a)(i) ‘General’, ante.
61 See title 4(a)(iii) ‘Legislation under the

Constitution of India ’, ante.
62 See cases discussed in text and notes 64 to 75, pp. 585-587, infra.
63 See title 3, ‘Operation Controlled on considerations of constitutionality’; Presumption against excess

of constitutional powers; supra.
64 Macleod v. Att. General, of New South Wales, Macleod v. Att. General, of New
South Wales,
(1891) AC 455 : 60 LJPC 55 : 65 LT 321 (PC).
65 Ibid, p. 457.
66 Ibid, p. 459, Cf. Sussex Peerage case, 8 ER 1034 (HL); and Trial of Earl Russel,
(1901) AC 446 .
67 A.G. for Ontario v. eciprocal Insurers, A.G. for Ontario v. eciprocal Insurers,
(1924) AC 328 , p. 345 (PC).
68 Mount Albert Borough Council v. Australian Temperance & General Mutual Life Assurance Society
Ltd., Mount Albert Borough Council v. Australian Temperance & General Mutual Life Assurance Society Ltd.,
(1937) 4 All ER 206 , pp. 216, 217 :
1938 AC 224 (PC).
69 Forbes v. A.G. of Manitoba, Forbes v. A.G. of Manitoba,

(1937) 1 All ER 249 (PC).
70 Ibid, pp. 255, 256.
71 Ibid, p. 256.
72 State of Bihar v. Charusiladasi, State of Bihar v. Charusiladasi,

AIR 1959 SC 1002 [
LNIND 1959 SC 56 ]: 1959 Supp (2) SCR 601.
73 Ibid, p. 1010. See further, State of Bihar v. Bhabapritnanda Ojha, State of Bihar v. Bhabapritnanda
Ojha,
AIR 1959 SC 1073 [
Mr.Srikanth -
Page 59 of 79
LNIND 1959 SC 52 ]:
1959 (2) SCR 624 .
74 Anant Prasad v. State of Andhra Pradesh, Anant Prasad v. State of Andhra

Pradesh,
AIR 1963 SC 853 [
75 Transport Corporation of India v. Employees State Insurance Corpn., Transport

Corporation of India v. Employees State Insurance Corpn.,
JT 1999 (9) SC 15 , pp. 34, 35 :
(2000) 1 SCC 332 [
LNIND 1999 SC 1503 ] :
AIR 2000 SC 238 [
LNIND 1999 SC 1503 ].
76 Jagir Kaur v. Jaswant Singh, Jagir Kaur v. Jaswant Singh,

AIR 1963 SC 1521 [
LNIND 1963 SC 40 ], p. 1525 :
(1964) 2 SCR 73 [
LNIND 1963 SC 40 ]; CIT, Kerala v. Malayalam Plantation, CIT, Kerala v.
Malayalam Plantation,
AIR 1964 SC 1722 [
LNIND 1964 SC 133 ], p. 1725 :
(1964) 7 SCR 693 [
LNIND 1964 SC 133 ]. See further A.G. of the Province of Alberta v. Huggard Assets Ltd.,
A.G. of the Province of Alberta v. Huggard Assets Ltd.,
(1953) 2 All ER 951 , pp. 956, 957 :
1953 AC 420 (PC); CEB Draper v. Edward Turner, CEB Draper v. Edward
Turner,
(1964) 3 All ER 148 , pp. 150, 152 :
(1965) QB 424 (CA) (An Act of the United Kingdom Parlia-ment unless it provides
otherwise applies to the whole of United Kingdom and to nothing outside the United Kingdom. It was therefore held that the words
‘On the sale’ in section 2(2) of the Fertilisers and Feeding Stuffs Act, 1926 (16 & 17 G 5, c 45), did not apply to sale of goods
which took place outside the United Kingdom). But, as held in BBC Enterprises Ltd. v. Hi Tech Extravision Ltd.,
BBC Enterprises Ltd. v. Hi Tech Extravision Ltd.,
(1991) 3 WLR 1 , p. 8 (HL), there is no presumption that the Act will not apply to conduct or
events tak-ing place within United Kingdom which have consequential effects outside United Kingdom. See further R (on the
application of Al-S Keini) v. Secretary of State, R (on the application of Al-S Keini) v. Secretary of State,
(2007) 3 All ER 685 (HL) discussed at p. 470, supra.
77 Dawson v. Inland Revenue Commissioners, Dawson v. Inland Revenue

Commissioners,
(1988) 3 All ER 753 , p. 758 :
(1989) 2 WLR 481 (CA).
78 Holmes v. Bangladesh Biman Corp., Holmes v. Bangladesh Biman Corp.,

(1989) 1 All ER 852 :
(1989) 2 WLR 858 (HL).
79 Jagir Kaur v. Jaswant Singh, Jagir Kaur v. Jaswant Singh,

AIR 1963 SC 1521 [
LNIND 1963 SC 40 ], p. 1525 :
1964 (2) SCR 73 [
LNIND 1963 SC 40 ].
Mr.Srikanth -
Page 60 of 79
80 C.I.T., Kerala v. Malayalam Plantation, C.I.T., Kerala v. Malayalam Plantation,

AIR 1964 SC 1722 [
LNIND 1964 SC 133 ], p. 1725 :
1964 (7) SCR 693 [
LNIND 1964 SC 133 ]. See Further Gwalior Dugdh Sangh Sahakari Ltd. v. G.M. Govt.
Milk Scheme Nagpur, Gwalior Dugdh Sangh Sahakari Ltd. v. G.M. Govt. Milk Scheme Nagpur,
(2003) 7 SCC 529 [
LNIND 2003 SC 693 ] (Provision for reference of dispute to Registrar under section 64 M.P.
Co-operative Societies Act , 1960 does not apply to the dispute relating to a contract which was entered outside
Madhya Pradesh).
81 Haridas Exports v. All India Float Glass Mfrs. Association, Haridas Exports v. All
India Float Glass Mfrs. Association,
AIR 2002 SC 2728 [
LNIND 2002 SC 444 ], pp. 2739, 2741 :
(2002) 6 SCC 600 [
LNIND 2002 SC 444 ].
82 Man Roland Druckimachinen A.G. v. Multi Colour Offset Ltd., Man Roland
Druckimachinen A.G. v. Multi Colour Offset Ltd.,
(2004) 7 SCC 447 [
LNIND 2004 SC 516 ], p. 458.
83 General Iron Screw Collier Co. v. Schuramanns, General Iron Screw Collier Co. v.
Schuramanns, 70 ER 712, p. 716 (Page Wood V.C.); Grant v. Anderson & Co., Grant v. Anderson & Co.,
(1892) 1 QB 108 , p. 112 (Lord Coleridge, C.J.); Wallace v. A.G. Wallace v.
A.G. ; Jeeves v. Shadwell, Jeeves v. Shadwell,
(1865) LR 1 Ch 1, p. 9 (Lord Cranworth, L.C.); Philipson Stow v. IRC,
Philipson Stow v. IRC,
(1960) 3 All ER 814 , p. 821 (HL).
84 Brithis India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries,

Brithis India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries,
(1990) 3 SCC 481 [
LNIND 1990 SC 150 ]; World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd.,
World Tanker Carrier Corporation v. SNP Shipping Services Pvt. Ltd.,
JT 1998 (3) SC 468 [
LNIND 1998 SC 461 ], p. 476 :
AIR 1998 SC 2330 [
LNIND 1998 SC 461 ]:
1998 (5) SCC 310 [
LNIND 1998 SC 461 ].
85 Ex parte Blain,
(1879) 12 Ch D 522 , p. 526; referred to in Cooke v. Vogeler (Charles A) Co.,
referred to in Cooke v. Vogeler (Charles A) Co.,
(1901) AC 102 :
(1900-03) All ER Rep 660 , pp. 663, 664, 666 (HL); Dulles’ Settlement Trust, IN RE.
Dulles’ Settlement Trust, IN RE. Dulles v. Vidler, Dulles v. Vidler,
(1950) 2 All ER 1013 , p. 1014 :
(1951) 1 Ch 842 (CA). Holmes v. Bangladesh Biman Corp., Holmes v.
Bangladesh Biman Corp.,
(1989) 1 All ER 852 , pp. 857, 872 :
(1989) 2 WLR 481 (HL).
Mr.Srikanth -
Page 61 of 79
86 Clark (Inspector of Taxes) v. Oceanic Contractors Inc., Clark (Inspector of Taxes)

v. Oceanic Contractors Inc.,
(1883) 1 All ER 133 (HL), p. 138; Agassi v. Robinson (Inspector of Taxes),
Agassi v. Robinson (Inspector of Taxes),
(2006) 3 All ER 97 (HL), p. 104 (para 16).
87 Sirdar Gurdial Singh v. Raja of Faridkot, Sirdar Gurdial Singh v. Raja of Faridkot,
ILR 22 Cal 222, p. 238 (PC); Moloji Narsingh Rao v. Shankar Saran, Moloji Narsingh Rao v. Shankar Saran,
AIR 1962 SC 1737 [
LNIND 1962 SC 199 ], p. 1742 :
1963 (2) SCR 577 [
LNIND 1962 SC 199 ].
88 Ibid.
89 Lalji Raja & Sons v. Hansraj Nathuram, Lalji Raja & Sons v. Hansraj Nathuram,
AIR 1971 SC 974 [
LNIND 1971 SC 141 ], p. 977 :
(1971) 1 SCC 721 [
LNIND 1971 SC 141 ].
90 Ibid, Narhari Shivram Shet Narvekar v. Pannalal Umediram, Ibid, Narhari Shivram
Shet Narvekar v. Pannalal Umediram,
AIR 1977 SC 164 [
LNIND 1976 SC 15 ]:
(1976) 3 SCC 203 [
LNIND 1976 SC 15 ].
1 Halsbury'S Laws of England, Vol. VII (3rd Edition), pp. 144, 145, (para 257); Moloji Narsingh Rao v. Shankar Saran,
Moloji Narsingh Rao v. Shankar Saran,
AIR 1962 SC 1737 [
LNIND 1962 SC 199 ], p. 1741 :
(1963) 2 SCR 577 [
LNIND 1962 SC 199 ]. For jurisdiction over a Stateless infant, see P (GE) (an infant), Re,
P (GE) (an infant), Re,
(1964) 3 All ER 977 (CA).
2 Murthi v. Sivajoti, Murthi v. Sivajoti,

(1999) 1 All ER 721 (CA).
3 World Tanker Carrier Corporation v. SNP Shiping Services Pvt. Ltd., World Tanker
Carrier Corporation v. SNP Shiping Services Pvt. Ltd.,
JT 1998 (3) SC 468 [
LNIND 1998 SC 461 ], p. 482 :
AIR 1998 SC 2330 [
LNIND 1998 SC 461 ]:
(1998) 5 SCC 310 [
LNIND 1998 SC 461 ] (case of a limitation action under Part XA of the
Merchant Shipping Act, 1958 filed in the Bombay High Court under its Admirality jurisdiction).
4 International Woolen Mills v. Standard Wool (UK) Ltd., International Woolen Mills
v. Standard Wool (UK) Ltd.,
AIR 2001 SC 2134 [
Mr.Srikanth -
Page 62 of 79
LNIND 2001 SC 1066 ]:

(2001) 2 SCC 642 [
LNIND 2001 SC 282 ].
5 Ingenohl v. Wing On & Co., Ingenohl v. Wing On & Co.,

AIR 1928 PC 83 , p. 85.
6 Vishwanathan v. Abdul Wajid, Vishwanathan v. Abdul Wajid,

AIR 1963 SC 1 [
LNIND 1962 SC 226 ], p. 16 :
1963 (3) SCR 22 [
LNIND 1962 SC 226 ].
7 Nachiappa v. Subramaniam, Nachiappa v. Subramaniam,

AIR 1960 SC 307 [
LNIND 1959 SC 204 ]:
1960 (2) SCR 209 [
LNIND 1959 SC 204 ].
8 Kuwait Airways Corp. v. Iraqi Airways Co. (No. 3), Kuwait Airways Corp. v. Iraqi
Airways Co. (No. 3),
(2002) 3 All ER 209 , pp. 216 to 218 (HL).
9 Webb v. Webb, Webb v. Webb,

(1994) 3 All ER 911 , p. 930 (CJEC).
11 Compania de Mozambique v. British South Africa Co., Compania de Mozambique v.

British South Africa Co.,
(1892) 2 QBD 358 , p. 394.
12 Girdhar Damodar v. Kassigar Hiragar, Girdhar Damodar v. Kassigar Hiragar,

(1893) ILR 17 Bom 662, p. 666; approved in Annamali Chetty v. Murugesa Chetty,
Annamali Chetty v. Murugesa Chetty,
(1903) ILR 26 Mad 544, p. 552 (PC). See further Vishwanathan v. Abdul Wajid,
Vishwanathan v. Abdul Wajid,
AIR 1961 SC 1 [
LNIND 1960 SC 188 ], p.16 (paras 18 and 20) :
(1962) 1 SCR 929 [
LNIND 1961 SC 176 ]; Lalji Raja & Sons v. Hansraj Nathuram, Lalji Raja &
Sons v. Hansraj Nathuram,
AIR 1971 SC 974 [
LNIND 1971 SC 141 ], p. 977 :
(1971) 1 SCC 721 [
LNIND 1971 SC 141 ].
13 A statute, if possible should be construed to promote the rights included in the Universal Declaration of Human
Rights: R. v. Secretary of State, R. v. Secretary of State,
(1975) 3 All ER 497 , p. 511 (CA).
14 Alcan Ltd. v. Republic of Colombia, Alcan Ltd. v. Republic of Colombia,

(1984) 2 All ER 6 , pp. 9, 10 (HL).
Mr.Srikanth -
Page 63 of 79
15 Theophile v. Solicitor General, Theophile v. Solicitor General,

(1950) 1 All ER 405 , pp. 407, 408 (HL); Collco Dealings Ltd. v. IRC, Collco
Dealings Ltd. v. IRC,
(1961) 1 All ER 762 (HL), p. 765; Gramophone Co. of India Ltd. v. Bir Bahadur Pandey,
Gramophone Co. of India Ltd. v. Bir Bahadur Pandey,
(1984) 2 SCC 534 [
LNIND 1984 SC 51 ], pp. 540, 541 :
AIR 1984 SC 667 [
LNIND 1984 SC 51 ].
16 Philipine Admiral (owners) v. Wallen Shipping (Hongkong) Ltd., Philipine Admiral

(owners) v. Wallen Shipping (Hongkong) Ltd.,
(1976) 1 All ER 78 (PC); Congreso Del Partido,
(1983) AC 244 (HL).
17 The immunity under the Act covers anything done in the exercise of ‘sovereign authority’. Thus acts in exercise of
statutory authority are not protected; see Kuwait Airways Corp. v. Iraqi Airways Co., Kuwait Airways Corp. v.
Iraqi Airways Co.,
(1995) 3 All ER 694 :
(1995) 1 WLR 1147 : (1995) 2 Lloyd's 317 (HL).
18 Veb Deautfracht Seereederei Rostock (D.S.P. Lines) a Department of the German Democratic
Republic v. New Central Jute Mills Co. Ltd., Veb Deautfracht Seereederei Rostock (D.S.P. Lines) a Department of
the German Democratic Republic v. New Central Jute Mills Co. Ltd.,
AIR 1994 SC 516 : 1994 (1) SCC 282.
19 Harbhajan Singh Dhalla v. Union of India, Harbhajan Singh Dhalla v. Union of

India,
AIR 1987 SC 9 [
LNIND 1986 SC 420 ]:
1986 (4) SCC 678 [
LNIND 1986 SC 420 ]; Shanti Prasad Agarwalla v. Union of India, Shanti
Prasad Agarwalla v. Union of India,
AIR 1991 SC 814 [
LNIND 1962 SC 6 ]: 1991 Supp (2) SCC 296.
20 ustice S.B. Sinha ‘A Contextualised Look at the Application of the International Law : The Indian Approach’, 2004
AIR Journal 33.
21 Union of India v. Azadi Bachao Andolan, Union of India v. Azadi Bachao Andolan,
AIR 2004 SC 1107 [
LNIND 2003 SC 853 ], 1119 : 2003 Supp (2) SCC 205. (India Mauritius Double Taxation
Avoidance Agreement. Grant of specific exemption in terms of the Agreement by Parliament not necessary.
Section 9 of the Income Tax Act empowers the Central Government to issue a notification for implementation of
the Agreement). See further DTI (International Taxation) Mumbai v. Morgan Stanley & Co. Inc., DTI
(International Taxation) Mumbai v. Morgan Stanley & Co. Inc.,
(2007) 7 SCC 1 [
LNIND 2007 SC 838 ] (Indo-US Double Taxation Avoidance Agreement. What constitutes
service Permanent Establishment (PE) of a US company in India).
22 Suman Sood v. State of Rajasthan, Suman Sood v. State of Rajasthan,

(2007) 5 SCC 634 [
LNIND 2007 SC 647 ] (paras 22, 23) :
Mr.Srikanth -
Page 64 of 79
(2007) 5 SLT 522 :

(2007) 7 JT 101 :
(2007) 9 JT 453 . (The extradition treaty between India and United States of America entered in
the year 1931 is still operative).
23 Ibid., pp. 1121, 1122.
24 Sakshi v. Union of India, Sakshi v. Union of India,

(2004) 5 SCC 518 [
LNIND 2004 SC 657 ], pp. 534 (para 15) :
AIR 2004 SC 3566 [
LNIND 2004 SC 657 ].
25 Saloman v. Commr. of Customs and Excise, Saloman v. Commr. of Customs and

Excise,
(1966) 3 All ER 871 , p. 875 (CA). See further, R v. Lyons, R v. Lyons,
(2002) 4 All ER 1029 , p. 1040 (HL).
26 Saloman v. Commr. of Customs and Excise, Saloman v. Commr. of Customs and

Excise,
(1966) 3 All ER 871 , p. 875 (CA); Kubic Dariusz v. Union of India, Kubic
Dariusz v. Union of India,
AIR 1990 SC 605 [
LNIND 1990 SC 25 ], p. 615 :
AIR 1990 SC 605 [
LNIND 1990 SC 25 ]; Chairman Railway Board v. Chandrima Das, Chairman
Railway Board v. Chandrima Das,
AIR 2000 SC 988 [
LNIND 2000 SC 182 ], p. 997 :
(2000) 2 SCC 465 [
LNIND 2000 SC 182 ]. See further Benin v. Whimster, Benin v. Whimster,
(1975) 3 All ER 706 , p. 712 (CA); R. v. Chief Immigration Officer, Heathrow Airport, Ex parte,
Salamat Bibi, R. v. Chief Immigration Officer, Heathrow Airport, Ex parte, Salamat Bibi,
(1976) 3 All ER 843 , p. 847 (CA); A.G. v. B.B.C., A.G. v. B.B.C.,
(1980) 3 All ER 161 , p. 176 :
(1980) 3 WLR 109 (HL); R. v. v. Crown Court at Southwark, R. v. v. Crown
Court at Southwark,
(1989) 3 All ER 673 , pp. 677, 678 (QBD); Brind v. Secretary of State, Brind v.
Secretary of State,
(1999) 1 All ER 720 , pp. 722, 723 (HL); R. v. Lyons, R. v. Lyons,
(2002) 4 All ER 1029 , p. 1040 (HL).
27 Peoples Union for Civil Liberties v. Union of India, Peoples Union for Civil
Liberties v. Union of India,
AIR 1997 SC 568 [
LNIND 1996 SC 2173 ], p. 575 :
1997 (1) SCC 301 (Telephone tapping permitted by
section 5(2) of the Indian Telegraph Act, 1885 was severely regulated by directions of the court having regard to
right to privacy implicit in Article 21 and recognised by Article 17 of International Covenant on Civil and Political Rights 1966 as
also by Article 12 of Universal Declaration of Human Rights 1948); Nair Service Society v. State of Kerala, Nair
Service Society v. State of Kerala,
(2007) 4 SCC 1 [
LNIND 2007 SC 226 ] (para 33) :
(2007) 3 SLT 730 :
(2007) 6 JT 103 . (Relevance of International law in interpreting domestic legislation “in a grey
area cannot be lost sight of.”)
Mr.Srikanth -
Page 65 of 79
28 Apparel Export Promotion Council v. A.K. Chopra, Apparel Export Promotion

Council v. A.K. Chopra,
JT 1999 (1) SC 61 [
LNIND 1999 SC 33 ], p. 74 :
AIR 1999 SC 625 [
LNIND 1999 SC 33 ], p. 634 :
(1999) 1 SCC 579 . See further Githa Hariharan v. Githa Hariharan Githa
Hariharan v. Githa Hariharan
JT 1999 (1) SC 524 [
LNIND 1999 SC 165 ], p. 532 : 1999 AIR SC 1149 :
(1999) 2 SCC 228 [
LNIND 1999 SC 165 ].
29 Javed Abidi v. Union of India, Javed Abidi v. Union of India,

AIR 1999 SC 512 [
LNIND 1998 SC 1221 ], p. 514 :
(1999) 1 SCC 467 [
LNIND 1998 SC 1221 ] see further pp. 825, 826, post, for use of international conventions for
construing welfare legislations.

AIR 1978 SC 597 [
LNIND 1978 SC 25 ], p. 637 :
(1978) 1 SCC 248 [
LNIND 1978 SC 25 ].
31 Jolly George Verghese v. Bank of Cochin, Jolly George Verghese v. Bank of

Cochin,
AIR 1980 SC 470 [
LNIND 1980 SC 48 ]:
1980 (2) SCC 360 [
LNIND 1980 SC 48 ].
32 Nilabati Behra v. State of Orissa, Nilabati Behra v. State of Orissa,

AIR 1993 SC 1960 [
LNIND 1993 SC 1167 ]:
(1993) 2 SCC 746 [
LNIND 1993 SC 1167 ]; Peoples Union for Civil Liberties v. Union of India,
Peoples Union for Civil Liberties v. Union of India,
AIR 1997 SC 1203 [
LNIND 2003 SC 1103 ], pp. 1207, 1208 :
(1997) 3 SCC 433 [
LNIND 2003 SC 1103 ]. (“The provisions of the covenant, which elucidate and go to effectuate
the Fundamental Rights guaranteed by our
constitution can certainly be relied upon by courts as facets of those Fundamental Rights and enforceable as
such”).
33 Dwarka Prasad Agarwala v. B.D. Agarwala Dwarka Prasad Agarwala v. B.D.

Agarwala
(2003) 6 SCC 230 [
LNIND 2003 SC 542 ], pp. 245, 246 :
AIR 2003 SC 2686 [
LNIND 2003 SC 542 ][The court may have more appropriately referred to Article 14 of the
International Covenant on Civil and Political Rights, 1966 to which India is a party and which also forms part of the definition of
Human Rights in section 2(d) read with section 2(f), of the
Protection of Human Rights Act, 1993 . Article 14 (quoted in N.B. 2, p. 709) is similarly worded as Article 6(1) of
the European Convention which is quoted at p. 468 (note 48)].
Mr.Srikanth -
Page 66 of 79
34 M.C. Mehta v. State of Tamil Nadu, M.C. Mehta v. State of Tamil Nadu,
AIR 1997 SC 699 [
LNIND 1996 SC 2094 ], pp. 705, 706 :
(1996) 6 SCC 756 [
LNIND 1996 SC 2094 ]. See further, for this case text and note 23, p. 825, post.
35 Vishaka v. State of Rajasthan, Vishaka v. State of Rajasthan,

AIR 1997 SC 3011 [
LNIND 1997 SC 1081 ], p. 3014 :
1997 (6) SCC 241 [
LNIND 1997 SC 1081 ].
36 Githa Hariharan v. Reserve Bank of India, Githa Hariharan v. Reserve Bank of

India,
AIR 1999 SC 1149 [
LNIND 1999 SC 165 ]:
JT 1999 (1) SC 524 [
LNIND 1999 SC 165 ], p. 532 :
(1999) 2 SCC 228 [
LNIND 1999 SC 165 ].
37 Municipal Corporation of Delhi v. Female Workers (Muster Roll), Municipal

Corporation of Delhi v. Female Workers (Muster Roll),
AIR 2000 SC 1274 [
LNIND 2000 SC 449 ], p. 1283 :
(2000) 3 SCC 224 [
LNIND 2000 SC 449 ].
38 John Vallamattom v. Union of India, John Vallamattom v. Union of India,

(2003) 6 SCC 611 [
LNIND 2003 SC 565 ], p. 624 :
AIR 2003 SC 2902 [
LNIND 2003 SC 565 ].
39 Kubic Dariusz v. Union of India, Kubic Dariusz v. Union of India,

AIR 1990 SC 605 [
LNIND 1990 SC 25 ], p. 615 :
1990 (1) SCC 568 [
LNIND 1990 SC 25 ].
40 M. v. H., M. v. H.,
(1988) 3 All ER 5 , pp. 15, 16 (HL); Maclaine Watson &*& Co. Ltd. v. Department of Trade and
Industry, Maclaine Watson &*& Co. Ltd. v. Department of Trade and Industry,
(1989) 3 All ER 523 (HL).
41 R. v. Khan (Sultan), R. v. Khan (Sultan),

(1996) 3 All ER 289 :
(1997) AC 558 :
(1996) 3 WLR 162 (HL). See further R. v. P., R. v. P.,
(2001) 2 All ER 58 (HL) (similar view taken after the convention became law under the Human
Rights Act, 1998).
Mr.Srikanth -
Page 67 of 79
42 M.V. Elisabeth v. Harvan Investment & Trading Pvt. Ltd. Goa, M.V. Elisabeth v.
Harvan Investment & Trading Pvt. Ltd. Goa,
AIR 1993 SC 1014 [
LNIND 1992 SC 194 ], p. 1036 :
(1992) 2 JT 65 [
LNIND 1992 SC 194 ] : 1993 Supp (2) SCC 433.
43 Vishaka v. State of Rajasthan, Vishaka v. State of Rajasthan,

AIR 1997 SC 3011 [
LNIND 1997 SC 1081 ]:
1997 (6) SCC 241 [
LNIND 1997 SC 1081 ]; Vineet Narain v. Union of India, Vineet Narain v.
Union of India,
JT 1997 (10) SC 247 , p. 290 :
AIR 1998 SC 889 [
LNIND 1997 SC 1657 ], p. 916 :
(1998) 1 SCC 226 [
LNIND 1997 SC 1657 ].
44 Anthony Lester, “The Bangalore Principles’, Constitutionalism Human Rights and the Rule of Law (Essays in the
honour of Soli J. Sorabjee), p. 48 (Universal Law Publishing Co.).
45 See cases in notes 27 to 39, pp. 595 to 597.
46 Polites v. The Commonwealth, Polites v. The Commonwealth,

(1945) 70 CLR 60 . See further Al-Katale v. Godown, Al-Katale v. Godown,
(2004) 7 SALJR 1099, pp. 1112, 1128, for opposing views on this question by Mc Hugh J. and Kirby J. In his Grotius Lecture for
the American Society of International Law (April, 2005) Kirby J has referred to this controversy.
47 Stephen Bouwhuis, ‘International Law by the Back Door’,

(1998) 72 ALJ 794
48
AIR 1999 SC 1801 [
LNIND 1999 SC 484 ], p. 1812 :
(1999) 4 SCC 727 [
LNIND 1999 SC 484 ].
49 R. v. Uxbridge Magistrates, R. v. Uxbridge Magistrates,

(1999) 4 All ER 520 (QBD). For doctrine of legitimate expectation see further pp. 431 to 432,
ante.
50 R. v. Director of Public Prosecutions exparte Kebeline, R. v. Director of Public

Prosecutions exparte Kebeline,
(1999) 4 All ER 801 , pp. 811, 825, 833 (HL).
51 M. v. H., supra. M. v. H., supra. .
52 Collco Dealings Ltd. v. IRC, Collco Dealings Ltd. v. IRC,

(1961) 1 All ER 762 , p. 768 :
Mr.Srikanth -
Page 68 of 79
(1981) AC 251 :
(1980) 3 WLR 209 (HL); Woodent v. IRC, Woodent v. IRC,
(1970) 2 All ER 801 , p. 808 (PC).
53 Fothergill v. Monarch Airlines, Fothergill v. Monarch Airlines,

(1980) 2 All ER 696 , p. 707 (HL) (LORD DIPLOCK).
54 Ibid.
55 See Sepet v. Secretary of State for the Home Department, Sepet v. Secretary of
State for the Home Department,
(2003) 3 All ER 304 , pp. 309, 310 (HL).
56 R. v. Secretary of State for the Home Department exparte Adan, R. v. Secretary of

State for the Home Department exparte Adan,
(1999) 4 All ER 774 , p. 785 (CA); Applicant v. Minister for Immigration,
Applicant v. Minister for Immigration, (1997) 71 ALJR 381, p. 383.
57 Jade
(1976) 1 All ER 920 , p. 924 (HL); Garland v. British Rail Engineering Ltd.,
Garland v. British Rail Engineering Ltd.,
(1979) 3 All ER 897 , p. 903 (HL); Garland v. British Rail Engineering Ltd.,
Garland v. British Rail Engineering Ltd.,
(1982) 2 All ER 402 , p. 415 :
(1983) 2 AC 751 :
(1982) 2 WLR 918 (HL); Kuwait Minister of Public Works v. Sir Frederick Snow,
Kuwait Minister of Public Works v. Sir Frederick Snow,
(1984) 1 All ER 733 , p. 738 (HL); Antonis Plemos,
(1985) 1 All ER 895 , p. 703 (HL); Marshall v. Southampton A.H.A., Marshall
v. Southampton A.H.A.,
(1986) 2 All ER 584 (CJEC), p. 592 (AG). But see Katikuro of Bunganda v. Attorney
General, Katikuro of Bunganda v. Attorney General,
(1960) 3 All ER 849 , p. 855 (PC).
58 R. (on the application of Mullen) v. Secretary of State for the Home Department, R.
(on the application of Mullen) v. Secretary of State for the Home Department,
(2004) 1 All ER 65 , p. 84 (LORD STEYN)[construction of section 133 of the Criminal Justice
Act, 1985 which gives effect to Article 14(6)of the International Covenant on Civil and Political Rights, 1966].
59 James Buchanon & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd., James
Buchanon & Co. Ltd. v. Babco Forwarding & Shipping (U.K.) Ltd.,
(1977) 3 All ER 1048 :
(1978) AC 141 :
(1977) 3 WLR 907 (HL); Hollandia,
(1982) 3 All ER 1141 , p. 1145 (HL). See further C. v. C., C. v. C.,
(1989) 2 All ER 465 :
(1989) 1 WLR 654 (CA); Sepet v. Secretary of State for the Home Department,
Sepet v. Secretary of State for the Home Department,
(2003) 3 All ER 304 , pp. 309, 310 (HL).
60 Fothergill v. Monarch Airlines, Fothergill v. Monarch Airlines,

(1980) 2 All ER 696 :
(1981) AC 251 :
Mr.Srikanth -
Page 69 of 79
(1980) 3 WLR 209 (HL); see further Effort Shipping Co. Ltd v. Linden Management SA,
Effort Shipping Co. Ltd v. Linden Management SA,
(1998) 1 All ER 495 , p. 509 (HL) (Travaux preparatories to be admissible should clearly and
indisputably point to a definite legal intention); H, IN RE. H, IN RE.
(2000) 2 All ER 1 , p. 24 (HL)(Purposive construction); Burke, IN RE. Burke,
IN RE.
(2000) 3 All ER 481 , p. 486 (HL) (Liberal construction according to its language, object and
intent); Horvath v. Secretary of State for the Home Department, Horvath v. Secretary of State for the Home
Department,
(2000) 3 All ER 577 , p. 580 (HL) (Broad meaning in the light of the purposes and as far as
possible uniformly by national courts of all covenanting states).
61 Fothergill v. Monarch Airlines, supra, Fothergill v. Monarch Airlines, supra, p.

706, 707.
62 Sidhu v. British Airway, plc., Sidhu v. British Airway, plc.,

(1997) 1 All ER 193 :
(1997) AC 430 :
(1997) 2 WLR 26 (HL).
63 Ibid, p. 212.
64 Ibid, p. 201.
65 Article 17: ‘The carrier is liable for damage sustained in the event of death or wounding of a passenger or any other
bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the
course of any of the operations of embarking or disembarking’.
66 Morris v. KLM Royal Dutch Airlines, Morris v. KLM Royal Dutch Airlines,
(2002) 2 All ER 565 (HL).
67 Ibid pp. 568, 569, 613, 622, 623. In this case the claimant was indecently assaulted by a fellow
passenger while she was sleeping. She suffered mental injury but not physical injury and so was not found entitled to any damages.
68 (1985) 470 US 392.
69 Deep Vein Thrombosis and Air Travel Group Litigation, IN RE. Deep Vein
Thrombosis and Air Travel Group Litigation, IN RE.
(2004) 1 All ER 445 , p. 452, para 23 (CA). Same view has been taken by the High Court of
Australia in Povey v. Quantas Airways Ltd., Povey v. Quantas Airways Ltd., (2005) 79 ALJR 1215.
70 Ibid.
71 Read v. Secretary of State for the Home Department, Read v. Secretary of State for
(1988) 3 All ER 993 , p. 999 (HL). See further Ji Mac William Co. Inc. v. Mediterranian
Shipping Co. SA The Rafaela SA, Ji Mac William Co. Inc. v. Mediterranian Shipping Co. SA The Rafaela SA,
(2003) 3 All ER 359 , pp. 389 to 394(use made of travaux preparators for interpreting Hague
Rules given effect to in U.K. by the carriage of goods by Sea Act, 1971).
Mr.Srikanth -
Page 70 of 79
72 State of Norway's Applications (Nos. 1 and 2), Re, State of Norway's Applications
(Nos. 1 and 2), Re,
(1989) 1 All ER 745 (HL).
73 T. v. Secretary of State for the Home Department, T. v. Secretary of State for the
Home Department,
(1996) 2 All ER 865 , p. 891 :
(1996) AC 742 :
(1996) 2 WLR 766 (HL).
74 Ibid.
75 R v. Immigration Appeal Tribunal, R v. Immigration Appeal Tribunal,

(1999) 2 All ER 545 (HL). For a somewhat similar Australian case see Minister for Immigration
and Multicultural Affairs v. Khawar, Minister for Immigration and Multicultural Affairs v. Khawar, (2002) 76
ALJR 667. See further Horvath v. Secretary of State for the Home Department, Horvath v. Secretary of State
(2000) 3 All ER 577 , p. 581 (HL) which holds that Article 1A(2) of the convention extended
protection to persons who feared persecution by non-state agents where the State was not complicit but was unable or unwilling to
afford protection, a view not held in France and Germany but shared by majority of contracting States including United States and
Canada. See further on the same point R. v. Secretary of State for the Home Department exparte Adam., R. v.
Secretary of State for the Home Department exparte Adam.,
(2001) 1 All ER 593 (HL). For evidence to show likelyhood of persecution for convention
reason: see R. v. Secretary of State for the Home Department, exp. Sivkumaran R. v. Secretary of State for the
Home Department, exp. Sivkumaran
(1988) 1 All ER 193 :
(1988) AC 958 :
(1988) 3 SJ 22 (HL); Karanakaran v. Secretary for the State for the Home Department,
Karanakaran v. Secretary for the State for the Home Department,
(2000) 3 All ER 449 (CA); Minister for Immigration and Multicultural Affairs v. Ibrahim,
Minister for Immigration and Multicultural Affairs v. Ibrahim, (2000) 74 ALJR 1556 (Australia) (Fear of persecution due to civil
unrest may not be enough); Sepet v. Secretary of State for the Home Department Sepet v. Secretary of State for the
Home Department
(2003) 3 All ER 304 (HL) (Fear of persecution on conscientious objection to military service not
enough); R. (on the application of Sivakumar) v. Secretary of State for the Home Department, R. (on the
application of Sivakumar) v. Secretary of State for the Home Department,
(2003) 2 All ER 1097 (HL) (case relating to a Tamil from Jafna who was tortured by army and
police of Shri Lanka on the suspicion that he belonged to LTTE); Applicants v. Minister for Immigration and multicultural affairs,
Applicants v. Minister for Immigration and multicultural affairs, (2004) 78 ALJR 854 (meaning of ‘particular social group’. Threat
of forcible recruitment in Afghanistan by Taliban whether persecution of applicant and whether able bodied men in Afghanistan
constituted particular social group); Appellants S 395 and S 396/2002 v. Minister for Immigration and Multicultural Affairs,
Appellants S 395 and S 396/2002 v. Minister for Immigration and Multicultural Affairs, (2003) HCA 71 (Australia) (persecution in
Bangladesh on the ground that the refugee was homosexual); NAGV and NAGW of 2002 v. Minister for Immigration and
Multicultural and Indigenous Affairs, NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural
and Indigenous Affairs, (2005) 79 ALJR 609 (A ‘refugee’ lawfully in Australia may be entitled to a ‘protection visa’); K. v.
Secretary of State, K. v. Secretary of State,
(2007) 1 All ER 671 (HL) (membership of a family could constitute membership of a particular
social group. Further, all indigenous females in Sierra Lone or all Sierra Leonian women would constitute a particular social group
for purposes of Art. 1A(2) of the Convention).
A person who fails in his effort to seek an asylum in a country in accordance with the convention on the status of
Refugees 1951 as amended by the 1967 Protocol, may possibly still resist his expulsion or deportation on the ground of
apprehended violation of human rights under the International Covenant on Civil and Political Rights, 1966 or the corresponding
European convention: R. (on the application of Ullah) v. Special Adjudicator, R. (on the application of Ullah) v.
Special Adjudicator,
(2004) 3 All ER 785 (HL); R. (on the application of Razgar) v. Secretary for the Home
Department, R. (on the application of Razgar) v. Secretary for the Home Department,
(2004) 3 All ER 821 (HL).
Mr.Srikanth -
Page 71 of 79
The courts have developed the principle of relocation which means that a person will not qualify as a refugee if,
though suffering well founded fear of persecution in one part of his country, he could be returned to another part of the country, the
place of relocation, in which the circumstances are such that he would not have a well founded fear of being persecuted, provided
that he should not be returned if it would be unduly harsh or unreasonable to expect him to relocate in that particular place: Tanuzi
v. Secretary of State for the Home Department, Tanuzi v. Secretary of State for the Home Department,
(2006) 3 All ER 305 (HL) (paras 8, 63).
76 See pages 479, 480, ante.
77 H (minor), Re, H (minor), Re,

(1997) 2 All ER 225 (HL).
78 Ibid, p. 234, see further Ismail IN RE. Ismail IN RE.

(1998) 3 All ER 1007 , p. 1011 (HL) (Extradition treaties and extradition statutes ought to be
accorded a broad and generous construction so far as the text permits to facilitate extradition and not solely from the perspective of
English criminal procedure.)
79 Jordan Grand Prix Ltd. v. Baltic Insurance Group, Jordan Grand Prix Ltd. v. Baltic
Insurance Group,
(1999) 1 All ER 289 , p. 294 (HL). In the context of IPR development in India, Lahoti C.J. I has
extrajudicially commended this approach for interpreting treaties relating to IPR rights so as to protect our economy and
commercial world:
(2004) 8 SCC 5 (J).
80 Ibid p. 295. See further Canada Trust Co. v. Stolzenberg, Canada Trust Co. v.
Stolzenberg,
(2000) 4 All ER 481 (HL) (construction of the word ‘sued’ in Articles 2 and 6 of the Lugano
Convention enforced by the same Act as the Brussels Convention).
81 Applicant v. Minister for Immigration, Applicant v. Minister for Immigration,

(1997) 71 AL JR 381, p. 383.
82 Ibid.
83 Ibid, p. 395.
84 Ibid, p. 383.
85 Ibid, see further Phonographic Performance Co. of Australia v. Federation of Australian Commercial
Television Station Phonographic Performance Co. of Australia v. Federation of Australian Commercial Television
Station (1998) 72 ALJR 924, p. 930 (An international convention can be used to interpret a statute intended to give effect to the
convention even if the statute is enacted before ratification of the convention); Morrison v. Peacock, Morrison v.
Peacock, (2002) 76 ALJR 545 [construction of the Marine Pollution Act, 1973 (NSW) which gave effect to the 1973 convention on
the subject].
86 Holland v. Lampen Wolfe, Holland v. Lampen Wolfe,

(2000) 3 All ER 833 , p. 847 (HL).
Mr.Srikanth -
Page 72 of 79
87 Vellore Citizens Welfare Forum v. Union of India, Vellore Citizens Welfare Forum
v. Union of India,
AIR 1996 SC 2715 [
LNIND 1996 SC 1344 ], pp. 2720, 2722 :
1996 (5) SCC 647 [
LNIND 1996 SC 1344 ].
88 Ibid, p. 2726. These principles mentioned in Vellore judgment have been further explained in: A.P.
Pollution Control Board v. Prof. M.V. Nayudu (Retd.), A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.),
JT 1998 (1) SC 162 , pp. 173-180 :
AIR 1999 SC 812 [
LNIND 1999 SC 65 ], pp. 819-23 :
(1999) 2 SCC 718 [
LNIND 1999 SC 65 ]; T.N. Godavarman Tirumalpad v. Union of India, T.N.
Godavarman Tirumalpad v. Union of India,
AIR 2003 SC 724 [
LNIND 2002 SC 676 ], pp. 737, 738 :
(2002) 10 SCC 606 [
LNIND 2002 SC 676 ]. See further for use of Stockholm convention for construction of the
environment (Protection) Act, 1986 , Essar Oil Ltd. v. Halar Utkarsh Samiti, Essar Oil Ltd. v.
Halar Utkarsh Samiti,
(2004) 2 SCC 392 [
LNIND 2004 SC 75 ], pp. 400, 405, 406 (need to balance economic and social needs with
environmental considerations); Intellectual Forum Tirupathi v. State of A.P., Intellectual Forum Tirupathi v. State
of A.P.,
(2006) 3 SCC 549 [
LNIND 2006 SC 119 ] :
AIR 2006 SC 1350 [
LNIND 2006 SC 119 ](need to balance development needs with conservation of natural
resources — public water tanks in this case).
89 Renusagar Power Co. Ltd. v. General Electric Co., Renusagar Power Co. Ltd. v.
General Electric Co.,
AIR 1994 SC 860 : 1994 Supp. (1) SCC 644.
90 Ibid. See further Smita Conductors Ltd. v. Euro Alloys Ltd., Smita Conductors
Ltd. v. Euro Alloys Ltd.,
AIR 2001 SC 3726 [
LNIND 2001 SC 1928 ], p. 3734 :
(2001) 7 SCC 728 [
LNIND 2001 SC 1881 ] (The expression ‘agreement in writing’ in section 2(a) construed in the
light of Article II of the Convention to include an agreement arrived at by exchange of letters).
91 R. M. Investment & Trading Co. Pvt. Ltd. v. Boeing & Co., R. M. Investment &
Trading Co. Pvt. Ltd. v. Boeing & Co.,
AIR 1994 SC 1136 : (1994) 2 SCC 406. See further Shah v. Presiding Officer,
Shah v. Presiding Officer,
AIR 1978 SC 12 [
LNIND 1977 SC 293 ], p. 17 :
(1977) 4 SCC 384 [
LNIND 1977 SC 293 ] (Reference to Maternity Protection Convention for construing the
Maternity Benefit Act 1961 ); Sundaram Finance Ltd. v. NEPC India Ltd., Sundaram Finance Ltd.
v. NEPC India Ltd.,
JT 1999 (1) SC 49 [
LNIND 1999 SC 26 ], pp. 53-55 :
AIR 1999 SC 565 [
LNIND 1999 SC 26 ], pp. 569, 570 :
(1999) 2 SCC 479 [
Mr.Srikanth -
Page 73 of 79
LNIND 1999 SC 26 ] (use of UNCITRAL Model Law for interpreting

section 9 of the Arbitration and Conciliation Act, 1996 ); Dadu v. State of Maharashtra, Dadu v.
State of Maharashtra,
AIR 2000 SC 3203 [
LNIND 2000 SC 1340 ], pp. 3210, 3211 :
(2000) 8 SCC 437 [
LNIND 2000 SC 1340 ] (United Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances 1988 considered in interpreting section 32A added in 1988 in
NDPS Act, 1985 ).
92 V. O. Tractoroexport Moscow v. Tarapore & Company, V. O. Tractoroexport

Moscow v. Tarapore & Company,
1969 (3) SCC 562 [
LNIND 1969 SC 438 ] :
AIR 1971 SC 1 [
LNIND 1969 SC 438 ].
93 Ibid, p. 572 (SCC). For this case see also p. 57, ante.
94 T.B. & S. Batchelor & Co. Ltd. v. Owner of S.S. Merak, T.B. & S. Batchelor & Co.
Ltd. v. Owner of S.S. Merak,
(1965) 1 All ER 230 (CA).
1 Konkan Railway Corporation Ltd. v. Ram Construction P. Ltd., Konkan Railway

Corporation Ltd. v. Ram Construction P. Ltd.,
AIR 2002 SC 778 [
LNIND 2002 SC 84 ], p. 786 :
(2002) 2 SCC 388 [
LNIND 2002 SC 84 ].
2 SBP & Co. v. Patel Engineering Ltd., SBP & Co. v. Patel Engineering Ltd.,
(2005) 8 SCC 618 [
LNIND 2005 SC 851 ] :
AIR 2006 SC 450 [
LNIND 2005 SC 851 ]. For criticism of this case, see O.P. Malhotra and Indu Malhotra ‘The
Law and Practice of Arbitration and Conciliation’ 2nd edition, p. 557.
3 SBP & Co. v. Patel Engineering Ltd., SBP & Co. v. Patel Engineering Ltd., supra
para 39. See further Shree Ram Mills Ltd. v. Utility Premises (P) Ltd., Shree Ram Mills Ltd. v. Utility Premises
(P) Ltd.,
(2007) 4 SCC 599 [
LNIND 2007 SC 364 ] (para 27), pp. 607, 608 :
(2007) 4 JT 501 . By para 46 of SBP & Co. case prior orders and proceedings have been saved
and are still governed by Konkan Railway case: Maharshi Dayanand University v. Anand Co-op. Society Ltd.,
Maharshi Dayanand University v. Anand Co-op. Society Ltd.,
(2007) 5 SCC 295 [
LNIND 2007 SC 529 ] (para 12) :
(2007) 5 SLT 99 :
(2007) 6 JT 175 .
4 Indian Handicrafts Emporium v. Union of India, Indian Handicrafts Emporium v.

Union of India,
AIR 2003 SC 3240 [
LNIND 2003 SC 718 ], p. 3256 :
Mr.Srikanth -
Page 74 of 79
(2003) 7 SCC 589 [

LNIND 2003 SC 718 ].
5 Daya Singh Lahotia v. Union of India, Daya Singh Lahotia v. Union of India,
AIR 2001 SC 1716 [
LNIND 2001 SC 984 ], p. 1718 :
(2001) 4 SCC 516 [
LNIND 2001 SC 984 ]; Suman Sood v. State of Rajasthan, Suman Sood v. State
of Rajasthan,
(2007) 5 SCC 634 [
LNIND 2007 SC 647 ] (paras 31 to 33) :
(2007) 7 JT 101 :
(2007) 5 SLT 522 . See further a recent Australian case Truong v. The Queen,
Truong v. The Queen, (2004) 78 ALJR 473 (The appellant was surrendered for trial in Australia bythe United Kingdom for the
offences of conspiracy to kidnap and conspiracy to murder and his trial and conviction for the offences of kidnapping and murder
on the same facts was not held to be against the extradition treaty or principle of speciality). The principle of specialty as enacted in
section 95(4) of the Extradition Act 2003 (U.K.) provides that the person extradited can be tried, in the country to
which he is extradited for the following offences: (a) the offence in respect of which he is extradited; (b) an extradition offence
disclosed by the same facts as that offence other than one in respect of which a sentence of death could be imposed; (c) an
extradition offence in respect of which the Secretary of State consents to the person being dealt with; (d) an offence in respect of
which the person waives the right to be dealt with. See on this point Welsh v. Secretary of State for the Home Department, (2006)
Welsh v. Secretary of State for the Home Department, (2006)
(2006) 3 All ER 204 (QBD). According to High Court of Australia extradition, even of an
Australian citizen, to a foreign country is removal by an executive act undertaken with legislative authority, it is not removal by
judicial authority though it is subject to judicial review and no extradition treaty is essential for validity of a law providing for
extradition of fugitive offenders: Vasiljkovic v. Commonwealth, Vasiljkovic v. Commonwealth, (2005) 80 ALJR
1399.
6 S & S Enterprise v. Designated Authority, S & S Enterprise v. Designated Authority,

(2005) 3 SCC 337 [
LNIND 2005 SC 164 ], p. 340.
7 Ibid, p. 341.
8 People’s Union for Civil Liberties v. Union of India, People’s Union for Civil
Liberties v. Union of India,
AIR 2005 SC 2419 [
LNIND 2005 SC 53 ], p. 2426.
9 For international crimes see title 5(d), p. 616.
10 A.G. for Colony of Hongkong v. Kwok-a-Singh, A.G. for Colony of Hongkong v.

Kwok-a-Singh,
(1873) LR 5 PC 173, p. 199 (MEL-LISH, L.J.).
11 Macleod v. A.G. of NSW, Macleod v. A.G. of NSW,

(1891) AC 455 , p. 458 : 60 LJPC 55 : 65 LT 321 (PC) (Lord Halsbury); Reg. v. Treacy,
Reg. v. Treacy,
(1971) 2 WLR 112 , p. 116 (HL); Kubic Dariusz v. Union of India, Kubic
Dariusz v. Union of India,
AIR 1990 SC 605 [
LNIND 1990 SC 25 ], p. 615. Macleod’s case has been distinguished in Nasiruddin Khan v. State
of Bihar, Nasiruddin Khan v. State of Bihar,
AIR 1973 SC 186 : (1973) 3 SCC 99.
Mr.Srikanth -
Page 75 of 79
12 Sussex Peerage case, (1844) 11 Cl & Fin 85, p. 146 (HL) (Tindal, C.J.) : 8 ER 1034, p. 1058. See further Trial of Earl
Russel,
(1901) AC 446 .
13 Keyn,
(1876) 2 Ex D 63 , p. 160 (Cockburn, C.J.).
14 Naim Malvan v. Director of Public Prosecutions, Naim Malvan v. Director of

Public Prosecutions,
AIR 1948 PC 186 , p. 190.
15 Air India v. Wiggins, Air India v. Wiggins,

(1980) 2 All ER 593 :
(1980) 1 WLR 815 (HL).
N.B.—But foreigners who are permanently resident may by legislation be bracketed with citizens for
extra-territorial offences in certain sensitive areas. For example, Australia has enacted Crimes (Child Sex Tourism) Amendment
Act 1994, which makes it an offence for Australian citizens or residents to engage in sexual intercourse or acts of inde-cency with
minors outside the country; see (1997) 71 ALJ, 108 (International Focus). see further Tim Macintosh, ‘Exploring the Boundaries:
The Impact of the Child Sex Tourism Legislation’,
(2000) 74 ALJ 613 . The validity of the legislation has been uphold: XYZ v. Commonwealth,
(2006) 80 ALJR 1036 (The judgment points out that similar legisla-tion has been enacted by 34 countries).
16 Ibid.
17 Ibid.
18 Air India v. Wiggins, Air India v. Wiggins,

(1980) 2 All ER 593 :
(1980) 1 WLR 815 (HL).
19 Lawson v. Fox, Lawson v. Fox,

(1974) 1 All ER 783 , pp. 785, 786 (HL).
20 Gold Star Publications v. Director of Public Prosecutions, Gold Star Publications v.

Director of Public Prosecutions,
(1981) 2 All ER 257 :
(1981) 1 WLR 732 (HL).
21 R. v. Berry, R. v. Berry,
(1984) 3 All ER 1008 :
(1985) AC 246 :
(1984) 3 WLR 1274 (HL).
22 Joyce v. Director of Public Prosecutions, Joyce v. Director of Public Prosecutions,

(1946) 1 All ER 186 (HL) .N.B.—Principle applied for exercise of jurisdiction over an alien
infant for wardship jurisdiction, see P (GE) (an infant), Re, P (GE) (an infant), Re,
(1964) 3 All ER 977 (CA).
Mr.Srikanth -
Page 76 of 79
23 Joyce v. Director of Public Prosecutions, Joyce v. Director of Public Prosecutions,

(1946) 1 All ER 186 (HL).
24 HALSBURY'S Laws of England, Vol. 10 (3rd Edition), p. 316, quoted in Mobarik Ali Ahmad v. State of Bombay,
Mobarik Ali Ahmad v. State of Bombay,
AIR 1957 SC 857 [
LNIND 1957 SC 81 ], p. 868 :
1958 SCR 328 [
LNIND 1957 SC 81 ]; Regina v. Baxter, Regina v. Baxter,
(1971) 2 WLR 1138 , p. 1147 (CA). See further G. WILLIAMS: Venu and the ambit of
Criminal Law, (1965) 81 Law Quarterly Review, pp. 276, 518. Also see Reg v. Treacy, Reg v. Treacy,
(1971) 2 WLR 112 , pp. 124, 127 (HL). The rules of international comity do not call for more
than that each sovereign State should refrain from punishing persons for their conduct within the territory of another sovereign
State when that conduct has had no harmful consequences within the territory of the State which imposes the punishments. (LORD
DIPLOCK)
25 Director of Public Prosecution v. Doot, Director of Public Prosecution v. Doot,

(1973) 1 All ER 940 (HL).
26 Secretary of State for Trade v. Markus, Secretary of State for Trade v. Markus,
(1975) 1 All ER 958 , p. 966 (HL).
27 Director of Public Prosecutions v. Stone House, Director of Public Prosecutions v.

Stone House,
(1977) 2 All ER 909 , p. 916 :
(1978) AC 55 :
(1977) 3 WLR 143 (HL); R. v. Latif, R. v. Latif,
(1996) 1 All ER 353 , p. 365 :
(1996) 1 WLR 104 (HL). For offences committed by British subjects in a foreign ship to which
they do not belong, see R. v. Kelly, R. v. Kelly,
(1981) 2 All ER 1098 (HL).
28 Bennet v. Horsenferry Road Magistrate's Court, Bennet v. Horsenferry Road

Magistrate's Court,
(1993) 3 All ER 138 :
(1994) 1 AC 42 (HL). Same view has been taken in New Zealand and South Africa : Moevao v.
Dept. of Labour, Moevao v. Dept. of Labour, (1980) 1 NZLR 464 ; SV. Ebrahim, 1991(2) SA 553. The U.S.
Supreme Court by majority has taken a contrary view : US v. Alvarez Machain, US v. Alvarez Machain, (1992)
119 L. Ed 2 d 441.
29 R. v. Latif, R. v. Latif,
(1996) 1 All ER 353 , pp. 359, 361 :
(1996) 1 WLR 104 (HL); Liangsiriprasert v. U. S. Government,
Liangsiriprasert v. U. S. Government,
(1990) 2 All ER 866 , p. 872 (HL).
30 Central Bank of India Ltd. v. Ramnarain, Central Bank of India Ltd. v. Ramnarain,
AIR 1955 SC 36 [
LNIND 1954 SC 239 ]:
1955 (1) SCR 697 [
LNIND 1954 SC 126 ].
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31 Mobarik Ali Ahmad v. State of Bombay, Mobarik Ali Ahmad v. State of Bombay,
AIR 1957 SC 857 [
LNIND 1957 SC 81 ]:
1958 SCR 328 [
LNIND 1957 SC 81 ].For cases of attempt to cheat, see Reg v. Baxter, Reg v.
Baxter,
(1971) 2 WLR 1138 (CA); Director of Public Prosecutions v. Stone House,
Director of Public Prosecutions v. Stone House,
(1977) 2 All ER 909 :
(1978) AC 55 :
(1977) 3 WLR 143 (HL).
32 Mobarik Ali Ahmad v. State of Bombay, supra Mobarik Ali Ahmad v. State of
Bombay, supra .
33 Hans Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta, Hans

Muller of Nuremberg v. Superintendent, Presidency Jail, Calcutta,
AIR 1955 SC 367 [
LNIND 1955 SC 14 ]:
(1955) 1 SCR 1284 [
LNIND 1955 SC 14 ].
34 Giani Bakshish Singh v. Government of India, Giani Bakshish Singh v. Government

of India,
AIR 1973 SC 2667 [
LNIND 1973 SC 275 ], p. 2671 :
(1973) 2 SCC 688 [
LNIND 1973 SC 275 ].
35 Om Hemrajani v. State of U.P., Om Hemrajani v. State of U.P.,

(2005) 1 SCC 617 [
LNIND 2004 SC 118 ] (word ‘found’ has been given very extensive interpretation. Any court
before whom the accused appears or is produced will have jurisdiction).
36 Ajay Agarwala v. Union of India, Ajay Agarwala v. Union of India,

AIR 1993 SC 1637 [
LNIND 1993 SC 431 ], p. 1648 :
(1993) 3 SCC 609 [
LNIND 1993 SC 431 ].
37 S.K. KAPOOR, International Law, 12th Edition p. 210.
38 Ibid, p. 689.
39 Nulyarimma v. Thompson, Nulyarimma v. Thompson, (1999) FCA 1192 discussed

by RYSARD PIOTROWICZ in International Focus,
(2000) 74 ALJ 738 .
40 SETALVAD, The Common Law in India, p. 139.
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41
(2006) 2 All ER 741 (HL).
42 R v. Bow Street, Metropolitan Stipendary Magistrate, exparte Pinochet Ugarte, R v.

Bow Street, Metropolitan Stipendary Magistrate, exparte Pinochet Ugarte,
(1999) 2 All ER 97 (HL) .N.B. 1.—Art. 1 of the Torture Convention sets out internationally
agreed definition of torture which as adopted in U.K. by section 134(2)of the Criminal Justice Act, 1988 reads: “A public official or
person acting in an official capacity, whatever his nationality, commits the offence of torture if in the United Kingdom or elsewhere
he intentionally inflicts pain or suffering on another in the performance or purported performance of his official duties.” It is
immaterial whether the pain or suffering is physical or mental. N.B. 2.—Another international crime considered in the case, though
not applied against Pinochet, was Hostage Taking which is governed by the International Convention against the Taking of
Hostages, 1979 applied in U.K. by the Taking of Hostages Act, 1982. Section 1(1)of this Act defines the offence as under: “A
person, whatever his nationality, who, in the United Kingdom or elsewhere—(a) detains any other person (the hostage) and (b) in
order to compel a State, international government organisation or person to do or to abstain from doing any act, threatens to kill,
injure or continue to detain the hostage, commits an offence.”
43 India signed the Convention in 1997.
44 Pinochet died on Dec. 11, 2006. He left a dubious legacy. Hated for the cruelty of his regime, he received popularity
with many Chileans possibly because of the success of his initial economic policies which turned Chile into the richest country in
Latin America. Hindustan Times Dec. 13, 2006.
45 R. v. Bow Street Metropolitan Stipendary Magistrate, exparte Pinochet Ugarte, R. v.

Bow Street Metropolitan Stipendary Magistrate, exparte Pinochet Ugarte,
1999) 1 All ER 577 (HL).
46
(2005) 2 WLR 808 .
47 Ibid, pp. 862 to 864.
48 Ibid. For comments see (2005) 121 Law Quarterly Review 353.
49 Jones v. Ministry of Interior of the Kingdom of Saudi Arabia, Jones v. Ministry of

Interior of the Kingdom of Saudi Arabia,
(2007) 1 All ER 103 .
50 Justice C STEYTLER, International Criminal Court,

(2002) 76 ALJ 469 ; Soli J. Sorabjee International Criminal Court, The Times of India, March
17, 2003.
51 Rakesh Bhatnagar : ‘UNSC's role in ICC Charter Objectionable’. The Times of India, Sept. 7, 2004; International
Court needs to come out of UN control’, The Times of India Nov. 30, 2004. See further, Report of the Berlin Conference (2004) of
International Law Association relating to International Criminal Court. (The report discusses in detail Article 16 of the Rome
Statute and the Security Council's resolutions pursuant to that Article as also Article 98 of the Rome Statute and the ‘bilateral
impunity agreements’ made under it.)
Mr.Srikanth -
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End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 7
Expiry and Repeal of Statutes
1. PERPETUAL AND TEMPORARY STATUTES
A statute is either perpetual or temporary. It is perpetual when no time is fixed for its duration,1
and such a statute remains in force until its repeal which may be express or implied.2 A perpetual
statute is not perpetual in the sense that it cannot be repealed; it is perpetual in the sense that it is
not abrogated by efflux of time or by non-user.3 A statute is temporary when its duration is only
for a specified time,4 and such a statute expires on the expiry of the specified time unless it is
repealed earlier. Simply because the purpose of a statute, as mentioned in its preamble, is
temporary, the statute cannot be regarded as temporary when no fixed period is specified for its
duration.5 The Finance Acts which are annual Acts are not temporary Acts and they often contain
provisions of a general character which are of a permanent operation.6 A cessation of transitional
legislative power has also no effect on the continuance of a perpetual Act enacted during the
continuance of that power.7 The duration of a temporary statute may be extended by a fresh
statute or by exercise of a power conferred under the original statute.8 When the life of a
temporary Act is merely extended, it cannot be said that a new law has been enacted; but if the
extension is accompanied by any substantial amendment, it would not be a case of mere
extension.9 It appears that after a temporary statute expires, it cannot be made effective by merely
amending the same. The only apt manner of reviving the expired statute is by re-enacting a statute
in similar terms or by enacting a statute expressly saying that the expired Act is herewith
revived.10
2. EFFECT OF EXPIRY OF TEMPORARY STATUTES
When a temporary Act expires,

section 6 of the General Clauses Act, 1897 11
, which in terms is limited to repeals,
12
has no application. The effect of expiry, therefore, depends upon the construction of the Act
itself. The leading authority on the point is the dicta of Park, B, in Steavenson v.
Oliver Steavenson v. Oliver Steavenson v. Oliver : 13 “The extent of
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the restrictions imposed and the duration of its provisions, are matters of construction.”
(a) Legal proceedings under expired statute
A question often arises in connection with legal proceedings in relation to matters connected with
a temporary Act, whether they can be continued or initiated after the Act has expired. The answer
to such a question is again dependent upon the construction of the Act as a whole.14 The
Legislature very often enacts in the temporary Act a saving provision similar in effect to
section 6 of the General Clauses Act, 1897 .15 But in the absence of such a provision
the normal rule is that proceedings taken against a person under a temporary statute ipso facto
terminate as soon as the statute expires.16 A person, therefore, cannot be prosecuted and convicted
for an offence against the Act after its expiration in the absence of a saving provision; and if a
prosecution has not ended before the date of expiry of the Act, it will automatically terminate as a
result of the termination of the Act.17 Contrary dicta, in this respect both by the Chief Baron Lord
Abinger and Alderson, B. in Steavenson v. Oliver Steavenson v. Oliver
Steavenson v. Oliver 18 have not been accepted as correct.19
Certain State Acts imposed cess or other taxes on minerals which were declared void in different
cases by the Supreme Court. Thereafter Parliament enacted the
Cess and other Taxes on Minerals (Validation) Act, 1992 which included the said
Acts in a Schedule. Section 2 of the Validation Act provides: “The laws specified in the Schedule
to this Act shall be, and shall be deemed always to have been, as valid as if the provisions
contained therein relating to cess or other taxes on minerals had been enacted by Parliament and
such provisions shall be deemed to remain in force upto the 4th day of April 1991”. The question
before the Supreme Court in District Mining Officer v. Tata Iron and Steel Co.
District Mining Officer v. Tata Iron and Steel Co. District Mining Officer v. Tata
Iron and Steel Co. 20 was whether because of the Validation Act the States were
entitled to retain only the cess and taxes already collected before 4th April, 1991 or whether they
were also entitled to collect the cess and taxes due upto 4th April 1991 but not collected till that
date. In holding that the Validation Act did not enable the States to collect the cess and taxes not
collected till 4th April 1991, one of the reasons given by the Court was that the effect of section 2
was that the Acts invalidated became temporary statutes expiring on 4th April, 1991 and as there
was no saving clause in the Validation Act and as
section 6 of the General Clauses Act had no application to expiry of a temporary
statute there could not be recovery and collection of cess and taxes which may have become due
but were not collected till 4th April, 1991.21
The Defence of India Act, 1939, was enacted in exercise of the powers conferred on the Central
Legislature under section 102 of the Government of India Act, 1935. Section 1(4) of the Defence
of India Act provided that the Act, shall remain in force during the continuance of the war and for
a period of six months thereafter. The war came to an end on 1st April, 1946, and the Act expired
on 30th September,1946. By Ordinance No. XII of 1946, section 1(4) of the Defence of India Act,
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was amended on 30th March, 1946, and a saving clause similar in terms as
section 6 of the General Clauses Act was added. By Act II of 1948, Ordinance No.
XII of 1946 was repealed from 5th of January, 1948, and this repeal was subject to a saving clause
preserving the effect or consequence of anything already done or suffered or any obligation or
liability acquired or incurred or any remedy or proceeding in respect thereof. Sub-section (4) of
section 102 of the Government of India Act, 1935, had provided that a law made by the Federal
Legislature which it could not have made but for a Proclamation of Emergency shall cease to have
effect on the expiration of a period of six months after the proclamation had ceased to operate,
except as respects things done or omitted to be done. The Government of India Act was repealed
by
Article 395 of the Constitution but without any saving clause and
section 6 of the General Clauses Act has no application to this repeal. On 16th
January, 1950, a prosecution was commenced against a person for infringing during the years
1943-45 the provisions of Non - ferrous Metals Control Order, 1942, an order made under the
Defence of India Rules which were framed under the Defence of India Act. The proceedings were
pending when the
Constitution came into force and repealed the Government of India Act. A question,
therefore, arose whether the prosecution could be continued or whether it automatically
terminated. It was held that the saving clause added by Ordinance No. XII of 1946 to the Defence
of India Act, ceased to be effective because of the repeal of the Ordinance by Act II of 1948, and
the saving clause contained in this Act was of no avail as nothing was done under the repealed
Ordinance in respect of which the saving clause could operate. It was further held that the saving
contained in section 102 of the Government of India Act also became ineffective after its repeal
by the
Constitution . On this analysis, after 26th January, 1950, there existed no saving
provision to continue the prosecution of an offender for an offence under the Defence of India Act
which had expired on 30th September, 1946, and the Supreme Court applied the normal rule that
the offender could not be prosecuted after expiry of the Act.22 This decision of the Supreme
Court23 may be compared with an earlier case of the Federal Court24 relating again to a
prosecution for violation of an order (Iron and Steel Order, 1941) made under the Defence of
India Act. In the Federal Court case,25 the offence was committed in 1943, and the prosecution
was started in February, 1946. The prosecution was still pending when the Defence of India Act
expired on 30th September, 1946. One of the questions raised before the Federal Court, was
whether the prosecution terminated after expiry of the Act. The matter came up before the court at
a time when both the savings, one inserted by Ordinance No. 12 of 1946, and the other contained
in section 102(4) of the Government of India Act were in force and following the decision of the
House of Lords in Wicks v. Director of Public Prosecutions, Wicks v. Director of
Public Prosecutions, Wicks v. Director of Public Prosecutions,
26 the Federal Court held that the prosecution could be continued.27
In Wicks' case28 the appellant Wicks was tried and convicted for violating in 1943-44 the Defence
(General) Regulations, 1939, made under the Emergency Powers (Defence) Act, 1939. The trial
took place in May, 1946, when the Emergency Powers (Defence) Act had come to an end because
of its expiry in February, 1946. Section 11(1) of the Act (as amended) read: ‘Subject to the
provisions of the section, this Act shall continue in force until the expiration of the period of six
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months beginning with the twenty-fourth day of August, 1945, and shall then expire’. Section
11(3) provided: ‘The expiry of the Act shall not affect the operation thereof as respects things
previously done or omitted to be done’. The question in the case was whether these words in
section 11(3) authorised the prosecution and conviction of the offender notwithstanding the
expiration of the Act. The Court of Criminal Appeal accepted the principle that “but for the
provisions in section 11(3) it could hardly be contended that a person could be convicted of an
offence against the Act after its expiration.29 As to the effect of section 11(3) it was contended
that the sub-section operated only on matters past and completed while the Act was in force.
Refuting this argument the court said: “While, no doubt it does cover completed acts or
transactions, we think the language is wide enough to make provisions of the Act apply, or, in the
language of the section, to operate, in respect of any act done before the expiration, even though
not perfected or completed till afterwards.”30 And proceeding further, it was observed: “We are
bound to construe the sub-section as meaning that the expiration of the Act is not to affect the
liability or punishment incurred under the enactment or the prosecution of legal proceedings for
the purpose of inflicting that punishment.”31 The same question was again agitated in the House
of Lords. In affirming the decision of the Court of Criminal Appeal, Viscount Simon in the
leading judgment observed: “It is clear that Parliament did not intend sub-section (3) to expire
with the rest of the Act; and that its presence in the statute preserves the right to prosecute after
the date of expiry.”32 The decision in this case has also been accepted in India.33
But in Rayala Corporation v. Director of Enforcement, Rayala Corporation v.

Director of Enforcement, Rayala Corporation v. Director of Enforcement,
34 the case of Wicks 35 was distinguished. Rule 132A of the Defence of
India Rules, 1962, which related to the prohibition of dealings in foreign exchange was by the
Amendment Rules, 1965, ‘omitted except as respects things done or omitted to be done under that
rule’. The question before the Supreme Court in Rayala Corporation case36 was whether a
prosecution in respect of contravention of Rule 132A could be commenced after the Rule was
omitted. The Supreme Court answered the question in the negative, holding that initiation of a
new proceeding will not be a thing done or omitted to be done under the rule but a new act of
initiating a proceeding after the rule had ceased to exist. Wick's case37 was distinguished on the
ground that the saving clause in that case was much wider and also saved the ‘operation’ of the
expired Act ‘as respects things previously done or omitted to be done’. It is submitted that the
distinction drawn is unreal. The words ‘omitted except as respects things done’ etc., themselves
indicate that the rule was not omitted for things already done and continued in operation in respect
thereof. This saving clause, it is submitted, was of the same scope and effect as the saving clause
in Wick's case.38
Article 352 of the Constitution provides for proclamation of emergency in case of

war or external aggression or armed rebellion. Article 358 suspends the fundamental rights under
Article 19 and Article 359 enables the President to suspend enforcement of other fundamental
rights except Articles 20 and 21 during the period of emergency. The result is that a law made
during the emergency even if violative of any fundamental right (except Articles 20 and 21) is not
open to challenge on that ground. But such laws ‘cease to have effect - except as respects things
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done or omitted to be done’ during their operation after the proclamation of emergency is
withdrawn. During the period of emergency, when the fundamental right under Article 22 was
suspended by an order of the President under Article 359, Parliament added section 12A in the
Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA). This
section which was to have effect only during the period of emergency enabled detention in
violation of clauses (4) and (5) of Article 22. Detention orders passed under section 12A of
COFEPOSA were withdrawn after the Emergency when the section itself expired. But such
orders were made the foundation for taking action under the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMA). In proceedings to challenge the notices under SAFEMA it was contended that the
detention orders under section 12A of COFEPOSA were void being violative of fundamental
right under Article 22 and could not be relied upon for SAFEMA. This contention was negatived
on the ground that the detention orders under section 12A COFEPOSA were ‘things done’ under
that section and could not be treated to be void after expiry of section 12A because of the saving
clause 1A of Article 359 ‘as respects things done or omitted to be done’ during the period section
12A was in operation.39
It has been held that an offence which is triable under the general law as a warrant case, and
which became triable as a summons case under a temporary statute, could not be tried as a
summons case after expiry of the statute, even though the trial had begun during the period when
the statute was effective.40 It has also been held that if offences under the expired Act could be
tried only by special courts constituted under it, the offences could not be tried after the expiry of
the Act if the special courts are abolished, although they could have been continued to function
for trial of offences committed before the expiry of the Act.41 But offences which are punishable
under the ordinary laws but were being tried by special courts, being connected with the offences
under the expired Act, could still be tried by ordinary courts without the necessity of a de novo
trial.42 An appeal under a temporary statute pending at the time of the expiry of the statute will in
the absence of a saving clause automatically terminate.43
(b) Notifications, Orders, Rules, etc. made under temporary statute
When a temporary Act expires, the normal rule is that any appointment, notification, order,
scheme, rule, form or bye-law made or issued under the Act 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; the reason being that
section 24 of the General Clauses Act, 1897 , does not apply to such a situation.44
Similarly, a person's detention under a temporary statute relating to preventive detention will
automatically come to an end on the expiry of the statute.45
(c) Expiry does not make the statute dead for all purposes
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But a temporary statute, even in the absence of a saving provision like

section 6 of the General Clauses Act , is not dead for all purposes. As already stated
the question is essentially one of construction of the Act.46 The nature of the right and obligation
resulting from 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.47 Thus, 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.48
Under section 4 of VI Geo. 4, c. 133, every person who held a commission or warrant as surgeon
or assistant surgeon became entitled to practice as an apothecary without having passed the usual
examination. This statute was temporary and expired on 1st August, 1826. It was held that a
person who had acquired a right to practice as an apothecary under the Act without passing the
usual examination was not deprived of that right on expiration of the Act.49
Certain elections to the Cuttack Municipality were held to be invalid by the High Court because
of defective electoral rolls. The Governor of Orissa, however, in the exercise of his powers under
Article 213 of the Constitution promulgated an Ordinance validating the electoral
rolls as also the elections and declaring that any order of the court holding the electoral rolls and
the elections invalid shall be deemed to be and always to have been of no legal effect. The
Ordinance lapsed on April 1, 1959. It was contended thereafter that the invalidity of the election
which had been cured by the Ordinance revived on its expiry. In overruling the contention
Gajendragadkar, J. observed: “In our opinion having regard to the object of the Ordinance and to
the rights created by the validating provisions, it would be difficult to accept the contention that as
soon as the Ordinance expired, the validity of the elections came to an end and their invalidity
was revived. The rights created by this Ordinance are in our opinion, very similar to the rights
with which the court was dealing in the case of Steavenson;50 and they must be held to endure and
last even after the expiry of the Ordinance. The Ordinance has in terms provided that the order of
the court declaring the elections to Cuttack Municipality to be invalid shall be deemed to be and
always to have been of no legal effect whatever, and that the said elections are thereby validated.
That being so, the said elections must be deemed to have been validly held under the Act and the
life of the newly elected municipality would be governed by the relevant provisions of the Act,
and would not come to an end as soon as the Ordinance expires.”51 This case was followed in
holding that the posts of part-time village officers abolished by Ordinance No.1 of 1984
promulgated by the Governor of Andhra Pradesh did not revive on the expiry of the Ordinance.52
A decision of the Privy Council,53 in an appeal from Ontario, also illustrates that a temporary Act,
after its expiry is not to be treated for all purposes as if it had never been enacted. In that case the
power of the Canadian Radio Broadcasting Commission to acquire existing private stations by
lease was curtailed by a temporary Act, in that the power was expressly made subject to the
approval of the Governor in Council. A lease obtained by the Commission during the currency of
the temporary Act, was challenged after the expiry of the Act in a legal proceeding, on the ground
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that the lease was invalid being not in accordance with the approval of the Governor in Council as
required by the expired Act. This plea, though resisted on the ground that it could not be raised
after expiry of the Act, was sustained by the Privy Council on the view that the temporary Act
was not for all purposes to be treated as if it had never been enacted.54
(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, in terms are limited to cases of repeals of a repealing enactment
and have no application to a case of expiry of a repealing Act. As regards the
General Clauses Act, 1897 ,, which corresponds to section 38(2)(a) of the
Interpretation Act, is also in terms limited to repeals; and therefore has no application on expiry of
a repealing statute.55 But in
section 7 of the General Clauses Act , which corresponds to section 11(1) of the
Interpretation Act, the language is slightly different. However, having regard to the context and
the setting of the section it appears also to be inapplicable to a case of expiry of a repealing
statute. The answer, therefore, to the question, whether a statute which is repealed by a temporary
statute revives on the expiry of the repealing statute, will depend upon the construction of the
repealing statute. As regards the effect of the repealing of an earlier Act made by a temporary Act,
observed Gajendragadkar, J. “the intention of the temporary Act in repealing the earlier Act will
have to be considered, and no general or inflexible rule in that behalf can be laid down.”56 As was
stated by Ellenborough, C.J.: “A law, though temporary in some of its provisions, may have a
permanent operation in other respects. The statute 26 Geo. 3, c. 108 professes to repeal the statute
19 Geo. 2, c. 35, absolutely, though its own provisions, which it substituted in place of it, were to
be only temporary.”57 Following these principles, it was held that the Jind State Civil Service
Regulations, 1945 which were repealed by Pepsu Ordinance No. 16 of Samvat 2005 did not
revive after six months when the Ordinance expired for the intention in repealing the Regulations
was to repeal them absolutely.58 Similarly Rule 49 of the U.P. Sugarcane (Regulation of Supply
and Purchase) Rules substituted by the Amendment Rules 1992 (which were to have effect from
1-10-1991 to 30-9-1992) in place of the then existing Rule 49 was held to repeal the existing rule
absolutely which was not revived after the expiry of the substituted rule.59
If the repealing section in a temporary statute on construction, is held to expire with the expiry of
the Act, the repeal will be construed only as a temporary repeal. Section 1 of Statute 46 Geo. 3
repealed the provisions of Statute 42 Geo. 3 and substituted some other provisions. Section 14 of
the repealing Act provided that the Act shall continue in force till a certain period. It was held that
‘the Act’ referred to in section 14 included whole of the Act and incorporating section 1 with
section 14, the repeal expired with the expiry of the Act reviving the operation of the earlier Act.60
In the Privy Council case already noticed,61 there are observations to the effect that a repeal by a
temporary Act is prima facie only a temporary repeal resulting in revival of the repealed
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provisions after the expiry of the repealing Act. Those observations may here be quoted: “The
result is that on 31st March, 1936, the temporary legislation contained in the first Act of 1933
repealing provisions of the principal Act of 1932 and substituting other provisions came to an end
not by the repeal of the temporary legislation but by the efflux of the prescribed time. No
question, as to the revival of the temporary repealed provisions of the principal Act of 1932 by the
repeal of repealing legislation, arises. The repeal, effected by the temporary legislation, was only
a temporary repeal. When by the fiat of Parliament the temporary repeal expired, the original
legislation automatically resumed its full force. No enactment of it was required.”62
But when a permanent Ordinance imposing a cess on coal was repealed by a temporary Ordinance
which specifically applied the provisions of
section 6, General Clauses Act , it was held that the provisions of the repealed
Ordinance, which were continued for enforcing the right acquired and obligations incurred before
the repeal, did not expire with the expiry of the repealing Ordinance.63 It seems to have been
assumed in this case that the repeal, though brought about by a temporary Ordinance, was a
permanent repeal.
3. POWER TO REPEAL IS CONSISTENT WITH POWER TO ENACT AND

IS NOT CONTROLLED BY PREVIOUS LEGISLATION : REPEAL MAY BE EXPRESS
OR IMPLIED
A power to make a law with respect to the topics committed to Parliament or State Legislatures
carries with it a power to repeal a law on those topics. Subject to any constitutional restriction, the
general rule is that “the power of a legislative body to repeal a law is co-extensive with its power
to enact such a law,” and a Legislature which has no power to enact a law on a particular subject-
matter has also no power to repeal the same.64 A Legislature, however, has no power to bind itself
or its successor as to the course of future legislation for to acknowledge such a power will mean
that a Legislature can curtail its own or its successor's powers which are conferred by the
Constitution and which cannot be restricted or taken away except by an amendment
of the
Constitution . It is an anxiom of British Constitutional law that “Acts of Parliament
derogatory from the subsequent Parliament bind not.”65 “Because the Legislature, being in truth
the sovereign power, is always of equal, always of absolute authority: it acknowledges no superior
upon earth, which the prior Legislature must have been, if its Ordinances could bind a subsequent
Parliament.”66 It follows as a logical result that provisions in a statute that it cannot be repealed
expressly67 or impliedly,68 are of no legal effect. What Parliament has done Parliament can
undo.69
The Acquisition of Land (Assessment of Compensation) Act, 1919, in section 7 laid down: ‘The
provisions of the Act or Order by which the land is authorised to be acquired, or of any Act
incorporated therewith, shall in relation to the matters dealt with in this Act, have effect subject to
this Act, and so far as inconsistent with this Act those provisions shall cease to have or shall not
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have effect’. The Housing Act, 1925, in codifying all the Housing Acts inserted certain provisions
as to compensation inconsistent with the provisions in the Act of 1919. It was contended before
the Court of Appeal that the effect of section 7 of the Act of 1919 was that inconsistent provisions
in the Act of 1925 were to have no effect. In countering this argument Maugham, L.J., observed:
“It seems to me plain that the Legislature is unable, according to our
Constitution , to bind itself as to the form of subsequent legislation—; it is impossible
for Parliament to say that in a subsequent Act of Parliament dealing with this subject-matter there
shall never be an implied repeal. If Parliament chooses, in a subsequent Act, to make it perfectly
plain that the previous one is being to some extent repealed or abrogated, that must have effect,
because it is the will of the Legislature.”70
Similarly, if a general Act says that its provisions shall apply unless ‘expressly excluded’ by any
special law, it does not mean that the exclusion must be by express words; and exclusion by
necessary implication will be equally effective.71
Section 29 of the Limitation Act, 1963 , provides that sections 4 to 24 of the Act shall
apply only in so far as they are not ‘expressly excluded’ by special or local law. In holding that
section 5 of the Act does not apply to election petitions presented to the High Court under
section 80A of the Representation of the People Act, 1951 , as amended by Act 47 of
1966, the Supreme Court observed that “even in a case where the special law does not exclude the
provisions of
sections 4 to
24 of the
Limitation Act by an express reference, it would none the less be open to the court to
examine whether and to what extent the nature of those provisions, or the nature of the subject-
matter and scheme of the special law, exclude their operation”.72
An Act, therefore, may be repealed by a later “distinct and repealing enactment or an enactment
inconsistent and irreconcilable therewith”.73 In other words no repeal can be brought about
“unless there is an express repeal of an earlier Act by the later Act, or unless the two Acts cannot
stand together”.74 A repeal may thus be by express words of a later statute, or may be implied on
considerations of inconsistency, or irreconcilability of the provisions of an earlier statute, with
those of a later statute. A power ‘to amend or repeal’ will, therefore, imply a power to amend or
repeal by implication, i.e., by making inconsistent laws.75 A repeal, express or implied, cannot be
brought about by subordinate legislation, since a power to repeal cannot be delegated either by
Union Parliament or by State Legislatures.76 A minister's speech in Parliament announcing the
Government's decision to abolish a cess levied under an Act of Parliament is entirely in effective
to abolish the cess until the decision is embodied in another Act of Parliament repealing the
earlier Act.77
The doctrine of implied repeal discussed above has undergone a change in the English law. It has
now been judicially recognised that its application is limited to ordinary statutes and that it does
not apply to constitutional statutes meaning thereby statutes which condition the legal relationship
between citizen and state of which the recent examples of Acts of British Parliament are the
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European Communities Act, 1972, the Human Rights Act, 1998, the Scotland Act, 1998 and the
Government of Wales Act, 1998.78 In India the
Constitution of India can be amended only by a
Constitution Amendment Act passed in accordance with
Article 368 of the Constitution and which does not affect its basic structure.79
4. EXPRESS REPEAL
The use of any particular form of words is not necessary to bring about an express repeal.80 All
that is necessary is that the words used show an intention to abrogate the Act or provision in
question. The usual form is to use the words ‘is or are hereby repealed’ and to mention the Acts
sought to be repealed in the repealing section or to catalogue them in a Schedule. The use of
words ‘shall cease to have effect’, is also not uncommon. When the object is to repeal only a
portion of an Act words ‘shall be omitted’ are normally used.81 The legislative practice in India
shows that ‘omission’ of a provision is treated as amendment82 which signifies deletion of that
provision and is not different from repeal.83 It has been held that “there is no real distinction
between repeal and an amendment.”84 It has also been held that “where a provision of an Act is
omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially
covers the field occupied by the repealed provision with certain modification, in that event such
re-enactment is regarded having force continuously and the modification or changes are treated as
amendment coming into force with effect from the date of enforcement of re-enacted provision.”85
When a Central Act has been adopted under Article 252 by a State by a resolution passed by the
House or Houses of the Legislature of the State, the amendment or repeal of the Central Act by
Parliament does not affect its continuance as a State Act unless the Central amending or repealing
Act is also adopted under Article 252 by the State by a resolution of the House or Houses of the
Legislature.86
Substitution of a provision results in repeal of the earlier provision and its replacement by the new
provision.87 Substitution thus combines repeal and fresh enactment. Therefore, when a new
provision is ‘substituted’ in place of or is made in supersession of an existing provision, the
declaration of invalidity of the new provision on the ground of want of competence will also
invalidate the repeal; but if the declaration of invalidity is on other grounds, e.g., arbitraryness or
violation of fundamental rights, the repeal, speaking generally will be effective although the new
provision is declared invalid unless from the totality of circumstances and the context it is found
that there was no intention to repeal in the event of the new provision being struck down.88 In
Shambhu Dayal v. State of Uttar Pradesh Shambhu Dayal v. State of Uttar Pradesh
Shambhu Dayal v. State of Uttar Pradesh ,89 it was held that the
amending Act 49 of 1964 which substituted new sections 8 and 9 in the
Prevention of Food Adulteration Act, 1954 had not the effect of repealing the
original sections 8 and 9 and therefore, the appointment of Food Inspector under the original
section 9 continued. It is submitted that the decision though correct is based on wrong reasoning.
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The
effect of the
amending Act was to repeal the original sections 8 and 9 and to enact the new
sections 8 and 9 in their place. But the appointment of Food Inspector under the old section
continued to be valid as if made under the new provision in view of
section 24 of the General Clauses Act, 1897 . The question whether a substituted
provision is prospective or retrospective will depend on its construction. When it is clarificatory
or supplies an obvious omission it would be construed as retrospective.1
An
amending Act which limits the area of operation of an existing Act by modifying the
extent clause, results in partial repeal of the Act in respect of the area over which its operation is
excluded.2
The Legislature sometimes does not enumerate the Acts sought to be repealed, and only says that
‘all provisions inconsistent with this Act’ are hereby repealed. With respect to such a repealing
provision, it has been said that it merely substitutes for the uncertainty of the general law an
express provision of equal uncertainty;3 and in determining whether a particular earlier provision
is repealed by such a repealing provision on the ground of inconsistency with it, the same
principles which are applicable in determining a question of implied repeal have to be applied.4
Another equally uncertain formula is when the later Act provides that a particular earlier Act
‘shall to the extent necessary to give effect to the provisions of this Act be deemed to have been
repealed or modified.’ Such a formula is used in section 13 of the Madras City Tenants Protection
Act, 1922 to restrict the application of the
Transfer of Property Act . The Supreme Court on analysing the provision of the
Madras Act, especially section 9, held that determination of tenancy by forfeiture as envisaged by
section 111(g) of the Transfer of Property Act must be deemed to have been repealed
or modified for “its applicability by itself will nullify and make section 9 inoperative.”5 Thus here
also the principles applicable in determining a question of implied repeal become relevant. In
certain Acts passed in India which had the effect of extending to Part B and certain Part C States,
numerous laws of the Union, the repealing section was expressed to repeal ‘any law
corresponding to any of the Acts or Ordinance extended’.6 This device was adopted because
Parliament was not in a position to know with any exactness the laws in force in those States
which were formerly ‘Indian States'. In interpreting these provisions the Supreme Court has
observed that “where the Act repealed provides substantially for all matters contained in the Act
effecting 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”.7 There will, however, be no ‘correspondence’ and
therefore no repeal, where the two Acts are substantially of differing scopes.8 But if the Act
extended covers the entire subject of the earlier Act and also deals with other subjects, the earlier
Act will still be the corresponding Act and shall stand repealed.9 It is also possible that there may
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be a partial correspondence resulting in partial repeal.10
5. IMPLIED REPEAL
(a) General
There is a presumption against a repeal by implication; and the reason of this rule 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.11 When the new Act contains a repealing section
mentioning the Acts which it expressly repeals, the presumption against implied repeal of other
laws is further strengthened on the principle expressio unius est exclusio alterius.12 Further, the
presumption will be comparatively strong in case of virtually contemporaneous Acts.13 The
continuance of existing legislation, in the absence of an express provision of repeal, being
presumed, the burden to show that there has been a repeal by implication lies on the party
asserting the same.14 The presumption is, however, rebutted and a repeal is inferred by necessary
implication when the provisions of the later Act are so inconsistent with or repugnant to the
provisions of the earlier Act “that the two cannot stand together”.15 But, if the two may be read
together and some application may be made of the words in the earlier Act, a repeal will not be
inferred.16 Thus the
Prevention of Food Adulteration Act, 1954 and Rules made thereunder relating to
vinegar were not held to be impliedly repealed by the
Essential Commodities Act, 1955 and the Fruit order made thereunder although both
contained regulatory provisions and laid down certain standards of quality and composition for
vinegar for it was not possible to say that the two could not stand together.17 In the words of the
court: “If the Adulteration Act or rules impose some restrictions on the manufacturer, dealer or
seller of vinegar then they have to comply with them irrespective of the fact that the fruit order
imposes lesser number of restrictions in respect of these matters. The former do not render
compliance with the latter impossible, nor does compliance with the former necessarily and
automatically involve violation of the latter.”18 The Supreme Court has indicated that the test
applied 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: “(1) Whether there is direct conflict between the two provisions;
(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-
matter replacing the earlier law; (3) Whether the two laws occupy the same field.”19 The doctrine
of implied repeal is based on the theory that the Legislature, which is presumed to know the
existing law, did not intend to create any confusion by retaining conflicting provisions and,
therefore, when the court applies the doctrine, it does no more than give effect to the intention of
the Legislature by examining the scope and the object of the two enactments and by a comparison
of their provisions.20 The matter in each case is one of construction and comparison of the two
Acts. “But in a conceivable case, the very existence of two provisions may by itself, and without
more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a
complete code with respect to the same matter. In such a case the actual detailed comparison of
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the two sets of provisions may not be necessary.”21
After referring to the principles set out in the preceding paragraph, the Supreme Court in
State of M.P. v. Kedia Leather and Liquor Ltd. State of M.P. v. Kedia Leather and Liquor Ltd.
State of M.P. v. Kedia Leather and Liquor Ltd. 22 came to the conclusion that
section 133, Criminal Procedure Code, 1973 was not impliedly repealed by the
Water (Prevention and Control of Pollution) Act, 1974 . The principles stated above
were reiterated in Kishorebhai Khamanchand Goyal v. State of Gujarat,
Kishorebhai Khamanchand Goyal v. State of Gujarat, Kishorebhai Khamanchand
Goyal v. State of Gujarat, 23 where it was held that the
Bombay Shops and Establishment Act, 1948 (State Act) was not overridden by the
Motor Transport Workers Act, 1961 (Central Act) by reason of repugnancy. Implied
repeal affects not only legislative enactments but statutory rules and even directions of the court
pending legislation on the subject which are inconsistent with the provisions of the new Act.24
The general principle that there is a strong presumption against implied repeal recently came up
for consideration before the High Court of Australia in Shergold v. Tanner
Shergold v. Tanner Shergold v. Tanner 25 In
a joint judgment the court (Gleeson, C.J., Mchugh, Gummow, Kirby and Hayne JJ.) quoted with
approval the following observations of Gaudron J. in Saraswati v. The Queen:
Saraswati v. The Queen: Saraswati v. The Queen: 26
“It is a basic rule of construction that in the absence of express words, an earlier statutory
provision is not repealed, altered or derogated from by a later provision unless an intention to that
effect is necessarily to be implied. There must be very strong grounds to support that implication,
for there is a general presumption that the legislature intended that both provisions should operate
and that, to the extent that they would otherwise overlap, one should be read as subject to the
other.” The joint judgment in Shergold27 also summarised the opinions expressed in
an earlier case Butler v. Attorney General, Butler v. Attorney General,
Butler v. Attorney General, 28 as follows: “In Butler Kitto J. expressed the question
as being whether the two items of legislation could stand or live together. In the same case
Fullagar J. spoke of ‘contrariety’, Tayolor J. of ‘direct conflict’ and Windeyer J. asked whether
the two statutes were clearly and indisputably contradictory displaying such repugnancy that they
could not be reconciled.”29
If a prior law provides both for right and remedy and a later general law undoubtedly replaces the
right, the remedy of the prior law must also be taken to have been impliedly repealed. On this
reasoning the provisions of the Portugese Civil Code applicable in the State of Goa regulating
contracts and remedies as also providing for limitation were taken to be impliedly repealed by
extension of the
Indian Contract Act , the
Negotiable Instruments Act and the Indian
Limitation Act to Goa. 30
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A recital in a later Act that it was not repealing an earlier Act will be of no avail if the later Act
enacted a provision which was quite contrary to the earlier Act; and the earlier Act would stand
repealed as effectively as if it had been expressly repealed.31 A repeal by implication is just as
effective as by express words.32
Section 6 of the General Clauses Act applies also to implied repeals.33
(b) Prior particular law and later general law
As an application of the above principles a prior particular or special law is not readily held to be
impliedly repealed by later general enactment.34 The particular or special law deals only with a
particular phase of the subject covered by the general law and, therefore, a reconciliation is
normally possible between a prior particular Act and a later general Act, and so the particular Act
is construed as an exception or qualification of the general Act. To quote the words of Lord
Philimore: “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 covering 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 a 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 a later Act are capable of reasonable and
sensible application without extending them to subjects specially dealt with by earlier legislation,
that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from
merely by force of such general words, without any indication of a particular intention to do so.”35
The principle has been accepted by the Supreme Court and has been expressed by Mudholkar, J.
as follows: “A general statute 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, where it 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.”36 A
law applicable to a locality or to a class of cases or individuals is a special law as distinguished
from a general law which applies to the whole community.37 A law which is essentially general in
nature may contain special provisions on certain matters and in respect of these matters it would
be classified as a special law.38 If the general law by its own terms recognises the existence or
continuance of special law on the subject, no question of inconsistency with or repeal of the
special law can arise. Thus,
section 5 of the Code of Criminal Procedure, 1973 , recognises the continuance of
special form of procedure under any law for the time being in force and hence it was held that the
Haryana Childrens Act, 1974, which came into force on 1st March, 1974, was not repealed by the
Code which came into force on 1st April, 1974.39 But if the intention of the later general law is
clear to repeal or modify a prior particular law, the general law will prevail over the particular
law.40
The provisions of a Municipal Act which empowered a Municipal authority to provide for bus
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stands, were not held to be repealed by a subsequent

Motor Vehicles Act , which empowered the Government or its delegate to do the
same. The reasons for this conclusion were mainly twofold: (1) that the Municipal Act was a
special law applying to Municipal areas, and the
Motor Vehicles Act was a general law applying to all areas in general; and (2) that
both the provisions were enabling ones and there could be no question of conflict till the authority
in the later Act also provided for bus stands for the same areas for which bus stands had already
been provided under the Municipal Act.41
On the same principle it was held that a provision in the

Bengal Ghatwali Lands Act, 1859 , enabling the Court of Wards to grant leases of
Ghatwali Land in perpetuity for erection of dwelling houses and certain other purposes was not
affected by the Court of Wards Act, 1870, which enacted that no lease in respect of land under the
management of the Court of Wards shall except under the sanction of the Board of Revenue, be
given for a term exceeding 10 years nor beyond the expiration of the ward's minority.42
Similarly
section 36(4) of the Industrial Disputes Act, 1947 , which provides that a party cannot
be represented by a legal practitioner before a Labour Court, Tribunal or National Tribunal except
with the consent of the other parties and with the leave of the Labour Court, Tribunal or National
Tribunal is not affected by
section 30 of the Advocates Act, 1961 which provides that every advocate shall be
entitled as of right to practise in all courts and before any tribunal.43
By applying the same principle it was held that the

Industrial Employment (Standing Orders) Act, 1946 is a special Act dealing with the
conditions of service of workmen in industrial establishments and, therefore, the standing orders
made under the Act were not abrogated, by the regulations [except when notified under section
13(B)] relating to conditions of service made under the
Electricity (Supply) Act, 1948 , which is a special Act for development of Electricity
but which contains a general provision for making regulations regarding the conditions of service
of the employees of the Electricity Boards.44
And, similarly the

Industrial Disputes Act, 1947 has been held to be a special statute in matters of
settlement of Industrial Disputes and the bonus payable to workmen under a settlement cannot be
affected by a regulation made under
section 49 of the Life Insurance Corporation Act, 1956 . 45
Where, however, the intention to supersede the special law is clearly evinced the later general law
will prevail over the prior particular law, for the principle that a prior special law is not presumed
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to be repealed is only a principle of construction, and there is no rule of law to prevent repeal of a
special law by a later general statute.46 So a later general law may abrogate a prior special law by
express repeal or by making provisions which are inconsistent with it.47 But a prior special law
cannot be taken to be repealed merely by presence of a non obstante clause in the later general
law; the non obstante clause can be given an overriding effect only when there is a clear
inconsistency between the two laws.48
The principle that a prior particular or special law may be abrogated by a later general law if that
intention be clearly evinced was applied in holding that note 3, added in 1992 to the Kerala State
Subordinate Service Rules, providing that the number of vacancies to be filled in from direct
recruits and transferees should be decided by applying the fixed ratio or percentage to the cadre
strength whenever a ratio or percentage is fixed for different method of recruitment and not to the
vacancies existing at that time, will prevail over prior special provision in the Kerala Agricultural
and Income-tax and Sales-tax Services Rules which contemplated that the percentage or ratio
should be fixed by taking into account the successive substantive vacancies arising at a particular
time. The italicised words of Note 3 made the intention clear to apply it to all services. The object
and reasons for introducing Note 3 contained in the Explanatory memorandum also supported that
conclusion.49
(c) Prior general law and later particular law
A prior general Act may be affected by a subsequent particular or special Act,50 if the subject-
matter of the particular Act prior to its enforcement was being governed by the general provisions
of the earlier Act.51 In such a case the operation of the particular Act may have the effect of
partially repealing the general Act,52 or curtailing its operation,53 or adding conditions to its
operation for the particular cases.54 The distinction may be important at times for determining the
applicability of those provisions of the
General Clauses Act, 1897 , (Interpretation Act, 1889 of U.K. now Interpretation Act,
1978) which apply only in case of repeals.
By section 25 of the Private Street Works Act, 1892, it was provided that certain sections,
including section 150, of the Public Health Act, 1875, were not to apply to any district in which
the Act of 1892 may be adopted. After adoption of the 1892 Act to an area a question arose
whether a prior notice issued under section 150 of the 1875 Act could continue to be effective.
The answer depended upon the applicability of section 38(2) of the Interpretation Act, 1889,
(corresponding to
section 6 of the General Clauses Act, 1897 ), which applies only in case of repeals.
The Court of Appeal held that the notice under section 150 of the earlier Act continued to be valid
in respect of the area where the later Act was brought into force.55 Lindley, L.J. observed: “I
cannot help thinking that when section 150 by force of section 25 ceases to apply to this district as
from August 1, 1897, that is a repeal of section 150 as from that day so far as regards this
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district”.56
Section 80 of the Railways Act , 1890, substituted in 1961, provides 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 may be brought. It was held that the said section was a special provision and a self
contained code 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 57
. It is submitted that the better view
may be to hold it a case of by-passing of the general law on matters covered by the special law58
or as observed by the Supreme Court in a later case59 the principle applied was that “a special
subsequent legislation which is a code in itself excludes the general law on the subject.”
In Municipal Board, Bareilly v. Bharat Oil Co., Municipal Board, Bareilly v.

Bharat Oil Co., Municipal Board, Bareilly v. Bharat Oil Co.,
60 the State Government had framed rules regulating the levy of octroi in general by
all municipalities. Thereafter, rules were framed by the State Government for levy of octroi by the
Bareilly municipality expressly providing that the new rules will apply in supersession of the
existing rules. It was held that there was deemed repeal of the earlier rules in respect of Bareilly
municipality.
By section 4 of the Bihar

Finance Act (Act 5 of 1981), provision was made for levy of purchase tax on goods
in general. Provision was also made for levy of purchase tax on sugarcane later by section 49 of
the Bihar Sugarcane (Regulation of Supply and Purchase) Act (Act 37 of 1982) which was a
special Act for the control of the activities of production, supply and regulation of sugarcane
including the levy of purchase tax. In so far as the activity of levy of purchase tax on sugarcane
was concerned both the Acts operated in the same field. As the Sugarcane Act was a special Act
the rule that ‘general provision should yield to special provision’ was applied and it was held that
purchase tax on sugarcane could be levied only under the sugarcane Act and not under the
Finance Act .61 On the same principle it was also held in another case that dealings in
sugarcane were exclusively regulated by the Sugarcane Act and its provisions excluded the
operation of the Bihar Agricultural Produce Markets Act, 1980 which was a general Act for
regulating sale and purchase of all types of agricultural produce.62
By section 3 of the Essential Supplies (Temporary Powers) Act, 1946, the Central Government
was given powers to issue orders regulating or prohibiting the production, supply and distribution
of essential commodities and trade and commerce therein. By section 6 of the Act any order under
section 3 was to have effect notwithstanding anything inconsistent therewith contained in any
other enactment. The High Court of Madhya Pradesh took the view that by virtue of section 6, the
orders issued under section 3, in so far as they were inconsistent with prior general law, repealed
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the same by implication in respect of the essential commodity dealt with by them. The Supreme
Court differing from the High Court pointed out: “Section 6 does not either expressly or by
implication repeal any of the provisions of pre-existing laws; neither does it abrogate them. Those
laws remain untouched and unaffected so far as the statute book is concerned. The repeal of a
statute means as if the repealed statute was never on the statute book. It is wiped out from the
statute book. The effect of section 6 certainly is not to repeal any one of those laws or abrogate
them. Its object is simply to by-pass them where they are inconsistent with the provisions of the
Essential Supplies (Temporary Powers) Act, 1946, or the orders made thereunder. In other words,
the orders made under section 3 would be operative in regard to the essential commodity—
wherever there is repugnancy with the existing laws and to that extent the existing laws with
regard to those commodities will not operate. By-passing a certain law does not necessarily
amount to repeal or abrogation of that law. That law remains unrepealed but during the
continuance of the order made under section 3, it does not operate in that field for the time being.
The ambit of its operation is thus limited without there being any repeal of any one of its
provisions.”63 This case also decides that if the provisions of the later special statute or orders
issued thereunder are supplementary to the provision of the prior general Act, no conflict arises,
and there is no supersession of the general Act.64
By Act 27 of 1950, as amended by Act 1 of 1954, the Bihar Legislature added section 64A in the
Motor Vehicles Act , 1939, which confers power on the State Government to revise
an order passed by any authority or officer in any proceeding under Chapter IV of the Act.
Parliament also by Central Act 100 of 1956, added section 64A in the
Motor Vehicles Act which empowers the State Transport Authority to revise an order
made by a Regional Transport Authority in a case in which no appeal lies. Construing the two
sections, viz., Bihar section 64A and Central section 64A, it was held by the Supreme Court,65 that
the Bihar section being more general and wider in application, was not impliedly repealed by the
Central section which was more limited in application. It was pointed out that the power of
revision under Bihar section 64A, even after the insertion of Central section 64A, would be
available in case of appealable orders, after the appeal is decided by the appellate authority, and in
case of non-appealable orders after the revision is decided under Central section 64A. Thus an
implied repeal in this case was not inferred because the general provision of Bihar section 64A
could be given effect to even after the enactment of Central section 64A as the effect of the
Central section was merely to curtail the operation of the Bihar section to the extent and up to the
stage the Central section provided for revisions.
A general Act's operation may be curtailed by a later Special Act even if the general Act contains
a non obstante clause.66 The curtailment of the general Act will be more readily inferred when the
later Special Act also contains an overriding non obstante provision.67
Section 446(1) of the Companies Act 1956 (Act 1 of 1956) provides that when the
winding up order is passed or the official liquidator is appointed as a provisional liquidator, no
suit or other legal proceeding shall be commenced, or if pending at the date of winding up order
shall be proceeded with against the company except by leave of the court. Under section 446(2),
the company court, notwithstanding anything contained in any other law for the time being in
force is given jurisdiction to entertain any suit, proceeding or claim by or against the company
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and decide any question of priorities or any other question whatsoever, whether of law or fact,
which may relate to or arise in the course of the winding up. The
Life Insurance Corporation Act, 1956 (Act 31 of 1956) constituted a Tribunal and
section 15 of the Act enabled the Life Insurance Corporation to file a case before the tribunal for
recovery of various amounts from the erstwhile Life Insurance Companies in certain respects.
Section 41 of the LIC Act conferred exclusive jurisdiction on the tribunal in these
matters. On examination of these Acts, it was held that the provisions conferring exclusive
jurisdiction on the tribunal being provisions of the special Act, i.e., the
LIC Act prevailed over the aforesaid provisions of the general Act, viz., the
Companies Act which is an Act relating to companies in general and, therefore, the
tribunal had jurisdiction to entertain and proceed with a claim of the Life Insurance Corporation
against a former insurer which had been ordered to be wound up by the company court.68 This
case was followed in giving to the provisions of the
Recovery of Debts due to Banks and Financial Institutions Act 1993 (
RDB Act ) overriding effect over the provisions of the
Companies Act, 1956 . The
RDB Act constitutes a tribunal and by sections 17 and 18 confers upon the tribunal
exclusive jurisdiction to entertain and decide applications from the banks and financial institutions
for recovery of debts (defined to mean any liability which is claimed as due). The Act also lays
down the procedure for recovery of the debt as per the certificate issued by the tribunal. The
provisions of the
RDB Act , which is a special Act, were held to prevail over
sections 442 ,
446 ,
537 and other sections of the
Companies Act which is a general Act, more so because
section 34 of the RDB Act gives over-riding effect to that Act by providing that the
provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained
in any other law for the time being in force.’69 A number of other cases where both the competing
Acts contain non obstante clauses have already been discussed earlier in Chapter 5.70
(d) Affirmative enactments
One affirmative enactment is not easily taken as repealed by another later affirmative enactment.71
The rule was stated in Foster's case72 that: “This Act—is all in the affirmative, and therefore, shall
not abrogate 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: (1) in
quality, scil, 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 latter negative,73 (2) In matter, although both are
affirmative”. (Foster's case supra). Therefore, the contrariety between two affirmative enactments
results only when they are irreconcilable in matter and when the new affirmative words are such
as by their necessity import a contradiction of the earlier.74 So, if the later affirmative enactment
does not imply a negative it will not be construed as impliedly repealing an earlier affirmative
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enactment.75
A temporary Act, the Punjab Damaged Areas Act, 1947, expired on August 15, 1949. In the
meantime the East Punjab Damaged Areas Act, 1949, was enacted covering the same subject -
matter and came into force from April, 1949. This later Act did not contain any express provision
repealing the earlier Act. In 1948, a notification had been issued under the earlier Act declaring a
certain area a ‘damaged area’. After the expiry of the earlier Act, a question arose whether the
notification under it could be deemed to be a notification under the later Act by virtue of section
22 of the Punjab
General Clauses Act which applies only in case of repeals. The argument was that by
reason of the very existence of the enactments of 1947 and 1949 on the Statute Book in terms
identical with each other, the earlier statute was impliedly repealed. Repelling the argument
Ayyanger, J. observed: “Where two enactments are entirely affirmative and identical no question
of inconsistency could arise. Where the operative terms of the two enactments are identical and
the enactments so as to speak run parallel to each other, there would be no scope for the
application of the doctrine of implied repeal.”76 Similarly, it has been held that the Punjab Public
Premises and Land (Eviction and Rent Recovery) Act, 1959, which provided a speedier remedy
for eviction of persons in unauthorised occupation of Government premises and lands, did not
take away the right of the Government to file suits in the normal Courts according to the
Code of Civil Procedure, 1908 , for eviction of such persons.77 On the same principle
conferral of similar powers under two enactments at different levels does not result in implied
repeal of the prior enactment.78 So it was held that power conferred by
section 22B of the Electricity Act , 1910, which was introduced in 1959, to regulate
supply of electricity for securing equitable distribution of energy did not take away a similar
power conferred on the Board by
section 49 of the Electricity (Supply) Act, 1948 79
. And, on the same principle it was
held that where higher rate of price of an essential commodity was fixed by a notification issued
by the Central Government under an order made under the
Essential Commodities Act, 1955 , the State Government was competent to issue an
order under the Defence of India Rules clarifying that the higher rate could not be charged in
respect of the stock already existing since prior to the upward revision of the rate.80 It was
observed that there is no legal bar to creating two sources of power to achieve the same purpose
and that there was no real inconsistency as the order of the State was supplementary to the
notification issued by the Centre and as the obedience to the State's order did not involve any
disobedience to or contravention of the Centre's notification.81 But 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. So rules made by the State Government under an Ordinance
levying octroi for benefit of the municipality were deemed to be impliedly repealed when the
municipality made rules and bylaws imposing octroi at an enhanced rate under the Municipalities
Act.82
(e) Laws defining offences and penalties
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If a later statute again describes an offence created by an earlier statute and imposes a different
punishment, or varies the procedure, the earlier statute is repealed by implication.83 “If a statute
deals with a particular class of offences”, said Martin, B, “and a subsequent Act is passed which
deals with precisely the same offences, and a different punishment is imposed by the later Act, I
think that, in effect, the Legislature has declared that the new Act shall be substituted for the
earlier Act”.84 The principle, however, has no application where the offence described in the later
Act is not the same as described in the earlier Act, i.e., when the essential ingredients of the two
offences are different.85
Section 26 of the General Clauses Act 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.
Article 20(2) of the Constitution directs that no person shall be prosecuted and
punished for the same offence more than once. Both these provisions apply only when the two
offences which form the subject of prosecution or prosecutions are the same, i.e., the ingredients
which constitute the two offences are the same. If the offence under the two enactments are
distinct and not identical, none of these provisions will apply.86 The construction placed upon
section 26 of the General Clauses Act that it applies only when the offences
described in the two enactments are identical very much limits its operation, for in most cases
where a subsequent enactment will describe an offence identical in terms with an earlier
enactment, the earlier enactment will be deemed to be repealed on principles stated in the
preceding paragraph. It is submitted that the emphasis in the opening words of section 26 is not
upon the identity of offences but upon the identity of act or omission constituting the offence.87
6. CONSEQUENCES OF REPEAL
(a) General
Under the common law rule the consequences of repeal of a statute are very drastic. Except as to
transactions past and closed, a statute after its repeal is as completely obliterated as if it had never
been enacted. The effect is to destroy all inchoate rights and all causes of action that may have
arisen under the repealed statute.88 Therefore, leaving aside the cases where proceedings were
commenced, prosecuted and brought to a finality before the repeal, no proceeding under the
repealed statute can be com-menced or continued after the repeal.89 Another result of repeal under
the common law rule is to revive the law in force at the commencement of the repealed statute.
Thus if one statute is repealed by a second which in turn
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is repealed by a third, the effect is to revive the first statute unless a contrary intention is indicated
in the third statute.1 The confusion resulting from all these consequences gave rise to the practice
of inserting saving clauses in repealing statutes, and later on, to obviate the necessity of inserting
a saving clause in each and every repealing statute a general provision was made in section 38(2)
of the Interpretation Act, 1889.2 Similar provision is made in India in section 6 of the Central
General Clauses Act, 1897 (Act X of 1897)3 as also in corresponding State
legislations.
Since repeal of a law takes effect from the date of repeal and the law repealed remains in
operation for the period before its repeal without assistance of any saving clause for transactions
past and closed, it can be retrospectively amended to affect such transactions even after its repeal.
Thus when Rule B made under
Article 309 of the Constitution substitutes Rule A, which in effect means that A is
repealed and B is enacted in its place, A can be amended retrospectively for the period during
which it was in operation to validate transactions past and closed. In the case4 from which the
above principle is deduced, a rule permitted compulsory retirement of a Government servant by
paying three months salary. This rule was later repealed by substituting another rule in its place.
During the period the earlier rule was in operation, a Government servant was retired on payment
of an amount as salary but which was found on calculation later to be a little short of three months
salary making the retirement invalid. The rule was after its repeal retrospectively amended for the
period it was in operation to enable the Government to retire a Government servant forthwith
without paying him three months salary but entitling him to claim three months salary after
retirement. This amendment was held to be valid and effective to validate the retirement of the
Government servant concerned.
Section 6 of the General Clauses Act applies to all types of repeals. The section
applies whether the repeal be express or implied, entire or partial6 or whether it be repeal
5
simpliciter or repeal accompanied by fresh legislation.7 The section also applies when a temporary
statute is repealed before its expiry,8 but it has no application when such a statute is not repealed
but comes to an end by expiry.9 The section on its own terms is limited to a repeal brought about
by a Central Act or Regulation. A rule made under an Act is not a Central Act or regulation and if
a rule be repealed by another rule,
section 6 of the General Clauses Act will not be attracted. It has been so held in two
Constitution Bench decisions.10 The passing observation in these cases11 that
“section 6 only applies to repeals and not to omissions” needs reconsideration for omission of a
provision results in abrogation or obliteration of that provision in the same way as it happens in
repeal. The stress in these cases was on the question that a ‘rule’ not being a Central Act or
Regulation, as defined in the
General Clauses Act , omission or repeal of a ‘rule’ by another ‘rule’ does not attract
section 6 of the Act and proceedings initiated under the omitted rule cannot continue unless the
new rule contains a saving clause to that effect. The cases imply abrogation or obliteration of the
omitted rule in the same way as would have happened in case of its repeal.12 In
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General Finance Co. v. Assistant Commissioner of Income-tax, General Finance Co. v. Assistant
Commissioner of Income-tax, General Finance Co. v. Assistant Commissioner of
Income-tax, 13 the question before a three judge bench of
the Supreme Court was as to the effect of omission of
section 276-DD of the Income-tax Act, 1961 from 1-4-1989 on a prosecution pending
for its violation. Following the two
Constitution Bench decisions discussed above, it was held that neither the
prosecution could be continued nor could punishment be imposed for
section 6 of the General Clauses Act was inapplicable to omissions. Although the
court found the submission for referring the matter to a larger bench forceful, it did not accede to
that request for it did not find the case an appropriate one for that purpose as the cases pending in
relation to 276-DD were few.
Though by
Article 367 of the Constitution the
General Clauses Act has been made applicable for interpretation of the
Constitution , it has been held that section 6 is not applicable to the repeal brought
about by the
Constitution 14
itself, on the reasoning that the
Constitution is not a Central Act or Regulation.15 The judgment of the High Court in
16
the last mentioned case, which was approved by the Supreme Court shows that if a statute
enacted by the British Parliament and applicable to India is repealed by a Central Act,17
section 6 of the General Clauses Act will apply for the section applies to a repeal of
‘any enactment’. 18 It has also been held that if a pre-
Constitution law is repealed by the President under
Article 372(2) of the Constitution , the repeal will attract the operation of
section 6 of the General Clauses Act 19
. The principles of the section have also been
applied when a State legislation is overridden for reasons of repugnancy by a later Union
legislation.20
The meaning of repeal in the context of provisions like

sections 6 and
7 of the
General Clauses Act is well brought out in section 8A of the Acts Interpretation Act,
1901 of the Commonwealth of Australia in which sections 7 and 8 correspond to sections 6 and 7
of the Indian Act. Section 8A of the Australian Act provides: “A reference in section 7 or 8 to the
repeal of an Act or of a part of an Act includes a reference to: (a) repeal effected by implication;
(b) the abrogation or limitation of the effect of the Act or part; and (c) the exclusion of the
application of the Act or part to any person, subject matter or circumstances.”21 It may be
worthwhile to consider inclusion of a similar definition in the Indian Act.
(b) Revival
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The common law rule of revival has been abrogated by sections 6(a) and 7 of the
General Clauses Act, 1897 .22 The result, therefore, is that if one Act is repealed by a
second which again is repealed by a third, the first Act is not revived unless the third Act makes
an express provision to that effect.23 As regards revival of enactments section 6(a) covers what is
more emphatically declared by section 7, but the latter is limited in operation to enactments;
whereas the former is wider in operation and will prevent the revival of many other matters, e.g.
the revival of a void24 or of common law.25 When a provision is repealed by substitution of
another provision in its place and the Act making the substitution is declared invalid, the question
of revival of the original provision requires consideration of whether the Act has been declared
invalid for want of legislative competence or on other grounds.26
(c) Saving of rights acquired
The effect of clauses (c) to (e) of

section 6, General Clauses Act is, speaking briefly, to prevent the obliteration of a
statute in spite of its repeal to keep intact rights acquired or accrued and liabilities incurred during
its operation and permit continuance or institution of any legal proceedings or recourse to any
remedy which may have been available before the repeal for enforcement of such rights and
liabilities.27 Thus, offences committed during the continuance of a statute can now be prosecuted
and punished even after its repeal, a course which would not have been possible under the
common law rule of complete obliteration of a repealed statute. It must, however, be noticed that
‘any investigation, legal proceeding or remedy’ saved by clause (e) is only in respect of any right
and privilege ‘acquired’ or ‘accrued’ and any obligation, liability, penalty, forfeiture or
punishment ‘incurred’ within the ambit of clauses (c) and (d) of section 6.28 In respect of other
matters though ‘anything done’ under the statute will not be invalidated after its repeal by virtue
of clause (b) of section 6, but it will be rendered abortive if no right was acquired or had accrued
and no liability had been incurred prior to repeal.29 Further, the saving of rights and liabilities is in
respect of those rights and liabilities which were acquired or incurred under a repealed statute and
not under the general law which is modified by a statute.30 In respect of rights and liabilities
acquired or incurred under the general law which is modified by a statute the inquiry should be as
to how far the statute is retrospective.31 And when a Code dealing with procedure is repealed and
replaced by a new Code, the new Code would speaking generally apply for investigations or trials
pending under the old Code for no person has a vested right in any matter of procedure,32 unless
the new Code by an express saving clause preserves the continuance of the old Code for pending
investigations and trials.33
The distinction between what is, and what is not a right preserved by the provisions of
section 6, General Clauses Act is often one of great fineness.34 What is unaffected by
the repeal of a statute is a right acquired or accrued under it and not a mere “hope or expectation
of”, or liberty to apply for, acquiring a right.35 A distinction is drawn between a legal proceeding
for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. The
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former is saved whereas the latter is not. In construing identical provisions of section 10 of the
Hong Kong Interpretation Ordinance, Lord Morris speaking for the Privy Council observed: “It
may be, therefore, that under some repealed enactment, a right has been given, but that, in respect
of it, some investigation or legal proceeding is necessary. The right is then unaffected and
preserved. It will be preserved even if a process of quantification is necessary. But there is a
manifest distinction between an investigation in respect of a right and an investigation which is to
decide whether some right should be or should not be given. On a repeal the former is preserved
by the Interpretation Act. The latter is not.”36 The Lord Chancellor's (Lord Herschell's)
observations in an earlier Privy Council case, that “mere right to take advantage of an enactment
without any act done by an individual towards availing himself of that right cannot properly be
deemed a right accrued”,37 are not to be understood as supporting the view that if steps are taken
under a statute for acquiring a right, the right accrues even if the steps taken do not reach the stage
when the right is given,38 nor do the said observations support the view that if no steps are taken
for enforcement of a right come into existence, the right is not an accrued right.39 As explained by
Sinha, C.J. the observations of Lord Herschell are only authority for the proposition that “the
mere right, existing at the date of a repealing statute to take advantage of provisions of the statute
repealed is not a right accrued”.40 Inchoate or contingent rights and liabilities, i.e., rights and
liabilities which have accrued but which are in the process of being enforced or are yet to be
enforced are unaffected for clause (c) clearly contemplates that there will be situations when an
investigation, legal proceeding or remedy may have to be continued or resorted to before the right
or liability can be enforced.41 Such a right or liability is not merely a ‘hope’ which is destroyed by
the repeal.42 It must also be noticed that the object of clause (c) is to preserve rights and privileges
acquired and accrued on the one side, and the corresponding obligation or liability incurred on the
other side, so that if no right had accrued under the repealed statute there is no question of any
liability being preserved.43 Further, although the application of section 6(1)(d) is confined to the
criminal field, the words ‘obligation or liability’ in section 6(1)(c) are not restricted to a civil
obligation or liability and these words also cover an obligation or liability enforceable under the
criminal law.44
The question whether a right was acquired or a liability incurred under a statute before its repeal
will in each case depend on the construction of the statute and the facts of the particular case. The
central issue in considering this question in a controversial case will generally be whether the
steps that remained to be taken under the repealed statute were steps necessary for acquiring a
right or incurring a liability or whether they were steps required merely for enforcing a right or
liability (at least contingent) that had come into existence.
A control of Pollution Act empowered a local authority to serve a notice requiring abatement of a
nuisance within a stated time and making a person served with the notice and contravening its
provisions liable for a criminal offence. After service of a notice but before its expiry the Act was
repealed. It was held that the effectiveness of the notice was continued under clause (b) and
obligation to comply with it was preserved by clause (c) of section 16(1) of the Interpretation Act,
1978 [corresponding to clauses (b) and (c) of
section 6 of the General Clauses Act ] and that a person contravening the notice after
repeal of the Act was liable to be punished for the offence under the repealed Act.45 Here the
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obligation to comply with the notice enforceable by recourse to criminal law was held to be a real
and continuing obligation which accrued on service of the notice.
Provisions contained in a Public Health Act, which entitled a local authority to give notice to the
frontagers in a street to execute certain works within a certain period and empowered the local
authority, in the event of default of the frontagers, to execute the works themselves and to recover
the expenses from the frontagers, were construed as conferring a right on the local authority on
default of the frontagers after notice, which would be preserved even if the enactment was
repealed after default of the frontagers and before any work was done by the local authority.46
The right of a tenant of an agricultural holding to recover compensation under an Act from his
landlord who served a notice to quit in view of an intended sale of the holding was held to have
arisen on service of the notice by the landlord.47 The Act also required the tenant to give notice of
his intention to claim compensation within two months of the service of the notice by the landlord
and to make his compensation claim within three months of quitting the holding. The tenant
complied only with the first condition of service of notice of his intention to claim compensation
before the Act was repealed, yet it was held that the tenant had acquired the right to receive
compensation by the fact of his landlord having given a notice to quit in view of sale and the right
was enforceable even after repeal of the Act. According to Scrutton, L.J., the steps required to be
taken by the tenant were not for acquisition of the right but for its enforcement.48 According to
Atkin, L.J., those steps related to accrual of the right which had been acquired.49 The distinction
drawn by Atkin L.J., between acquisition and accrual of a right was referred to recently in
Chief Adjudication Officer v. Maguire, Chief Adjudication Officer v. Maguire,
Chief Adjudication Officer v. Maguire, 50 but the majority
did not accept this distinction. This case related to the Special Hardship Allowance (SHA)
payable as a disablement benefit, resulting from industrial injury, under the Social Security Act,
1975 which was replaced by the Reduced Farming Allowance (RFA) from 1st October 1986 by
the Social Security Act, 1986 which repealed the 1975 Act. The claimant in this case suffered the
industrial injury in April 1985 but he did not make a claim for SHA as required by the 1975 Act
before its repeal. The question in the case was whether the claimant was entitled to SHA for the
period between 1st April, 1985 and 1st October 1986. The Court of Appeal held that he was so
entitled as he had an acquired right and what had remained was only enforcement of that right.
Simon Brown L.J., who delivered the main judgment did not find any distinction between an
‘acquired’ or ‘accrued’ right. He pointed out that in certain of the saving legislations reference
was made to only one of these expressions and the court is really concerned with only one
question: has the claimant established that at the time of repeal he had a right51 Clarke, L.J.,
agreed with this view and said that it was not desirable to introduce narrow distinctions between
‘acquired’ rights and ‘accrued’ rights.52 Wallace, L.J., however was inclined to agree with the
distinction made by Atkin, L.J.53 It is submitted that as pointed out by Simon Brown, L.J., the two
expressions are generally used in saving legislations to convey the same idea and are not mutually
exclusive. Yet a possible distinction may be made between cases where some step, after the Act
comes into force, is needed to be taken by the claimant for getting the right and cases where the
Act, without anything being further done by the claimant, confers the right. In the former class of
cases, it would be a right acquired after the necessary step is taken whereas in the latter class of
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cases it would be a right accrued by mere force of the Act.
The right of an injured third party to recover damages against the insurers of a motor vehicle will
be an accrued right on the happening of the accident resulting in the injury and will be
enforceable against them even after repeal of the enactment creating the liability, even though the
process of quantification is not complete before the repeal.54
The right of a tenant, who has the land for a certain number of years and who has personally
cultivated the same for that period ‘to be deemed to be a protected tenant’ under the provisions of
a statute has been held to be an accrued right which will survive the repeal of the statute.55
Similarly, a right conferred by an Act that every lease shall be deemed to be for a period of ten
years, is a right acquired and will be unaffected by repeal of the Act.56 But the so-called right of a
statutory tenant to protection against eviction under a Control of Eviction Act is mere advantage
and not a right in the real sense and does not continue after repeal of the Act.57 Similarly on the
reasoning that the right of a tenant to get standard rent fixed and not to pay contractual rent in
excess of standard rent under a Rent Control Act is only a protective right and not a vested right,
it has been held that when during the pendency of an application for fixation of standard rent, the
Act is amended and it ceases to apply to the premises in question, the application is rendered
incompetent and has to be dismissed as infructuous.58
The right of a landlord to file a suit for ejectment under a Control of Eviction Act against a tenant
without terminating the tenancy by a quit notice on the ground that the tenant had sublet the
premises, conferred by an Act, was held to be an accrued right which survived the repeal of the
Act.59 In cases where a suit or proceeding for eviction is pending when the Act ceases to apply,
the landlord will have the option of either proceeding with the suit or proceeding or to withdraw it
and file a fresh suit under the general law after giving quit notice.60
A right to purchase an electricity undertaking on expiration of its period of licence by giving two
years prior notice conferred by original
section 7 of the Electricity Act , 1910, was held to be a right accruing after notice of
option, and therefore, unaffected by repeal of the section before expiry of the licence.61
Provision made by Rule 30 of the Displaced Persons (Compensation and Rehabilitation) Rules,
1955 that where the property is in the occupation of more persons than one, it shall be offered to
the person whose gross compensation is the highest was construed to confer a substantive right
and it was held that the repeal of the rule did not affect pending actions.62
The liability to take insurance policy for the full value of the factory or goods under the
Emergency Risks (Factories) Act, 1962 and the Emergency Risks (Goods) Act, 1962 was absolute
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and could be enforced after the expiry of these Acts on revocation of proclamation of emergency
issued in connection with the Chinese aggression even though the full value of the factory or
goods was determined by the authorised officer under these Acts after their expiry.63
The right of the State to take over land of a landholder in excess of the ceiling area prescribed by
a Ceiling Act with reference to an appointed date is an accrued right which survives the repeal of
the Act before quantification of the surplus area.64
The right of an establishment to be exempt from the provisions of the Employees Provident Funds
and Miscellaneous Provisions Act, 1952 during the infancy period of three years by virtue of
section 16(1)(d) of the Act has been held to be a vested right which remained unaffected by
omission of section 16(1)(d) by a later ordinance.65
The liability of a landholder not to cut trees in a forest declared to be a reserved forest under
Chhota Udepur Forest Rules, 1934 was held to survive after repeal of the rules by application of
the Forest Act, 1927 to Chhota Udepur under the Application of Laws Order, 1948.66
A marriage performed during the continuance of a prior marriage and void being in contravention
of Madras Act XXII of 1933 was not validated on repeal of the Madras Act by the Kerala Act 30
of 1976.67
The option given to a grantee to make additional purchases of Crown land on fulfilment of certain
conditions under the provisions of the statute, was held to be not an accrued right when the statute
was repealed before the exercise of the option.68
A privilege to get an extension of a licence under an enactment is not an accrued right and no
application can be filed after the repeal of the enactment for renewal of the licence.69
The right of a Crown lessee to obtain vacant possession from his tenants on grant of a rebuilding
certificate by the Governor which he could grant at his absolute discretion has been held to be not
an accrued right before the grant of the certificate, and therefore, when the statute making these
provisions was repealed before the grant of the certificate, it was held that proceedings taken
before the repeal for getting the certificate became abortive and could not be continued
thereafter.70
The right of dependants to claim compensation on the death of a workman under a

Workmen's Compensation Act accrues on workman's death and not at the time when
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the injury resulting in death is caused. Therefore, when the law is changed after injury but before
death providing for enhanced compensation, it is not open to the employer to contend that he had
incurred the liability when the injury was caused and was not liable to pay enhanced
compensation. The right of dependants and the liability of the employer towards them arises at the
same time, i.e., at the happening of the death of the workman.71
The non-executability of a valid decree passed by a British Indian Court in 1949 under the
Code of Civil Procedure, 1908 , in Madhya Bharat, where another
Civil Procedure Code was applicable, was held to be not an accrued right but a mere
procedural advantage which came to an end after extension of the Code of 1908 to Madhya
Bharat and repeal of the corresponding Code in force there.72
The right of a judgment-debtor against whom a decree for specific performance of sale of shares
was passed, to apply for rescission of the decree under
section 35 of the Specific Relief Act , 1877, on default of the decree-holder in
payment of money, was held to be not an accrued right when no default had taken place before
repeal of the Act by the
Specific Relief Act, 1963 73
. Relief was, however, granted in the exercise of inherent
powers on general principles.
The right or privilege to claim benefit of condonation of delay is not an accrued right under a
repealed provision when the delay had not occurred before the repeal of the said provision.74
The right of pre-emption conferred by an Act is a remedial right or in other words a right to take
advantage of an enactment for acquiring a right to land or other property and cannot be said to
have been acquired or accrued until a decree is passed and does not survive if the Act is repealed
before passing of the final decree.75
The right of a Government servant to be considered for promotion in accordance with existing
rules is not a vested right and does not survive if the Government takes a policy decision not to
fillup the vacancy pending revision of the rules and the revised rules which repeal the existing
rules do not make him eligible for promotion.76
Repeal of an Act providing for tenure appointment to a post has the effect of abolishing the post
and terminating the tenure of the incumbent of the post whose right to continue on the post for his
full term or to get compensation for loss of the remaining period is not preserved by
section 6 of the General Clauses Act .77 But if the Act deprives the incumbent even to
seek any other employment in future, he would be entitled to compensation for the loss of the
remaining period of his service.78
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General savings of rights accrued, and liabilities incurred under a repealed Act by force of
section 6, General Clauses Act , are subject to a contrary intention evinced by the
repealing Act. In case of a bare repeal, there is hardly any room for a contrary intention;80 but
79
when the repeal is accompanied by fresh legislation on the same subject, the provisions of the
new Act will have to be looked into to determine whether and how far the new Act evinces a
contrary intention affecting the operation of
section 6, General Clauses Act 81
. “The line of enquiry would be, not whether the
new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to
destroy them,”82 for, unless such an intention is manifested by the new Act, the rights and
liabilities under the repealed Act will continue to exist by force of
section 6, General Clauses Act . It is the repealing Act and not the Act repealed
which is to manifest the contrary intention so as to exclude the operation of section 6.83 The
silence of the repealing Act is consistent and not inconsistent with section 6 applying.84 Another
line of approach may be to see as to how far the new Act is retrospective in operation.85 When, a
saving clause in a new Act is comprehensively worded and is detailed, it may be possible to infer
that it is exhaustive and expresses an intention not to call for the application of
section 6, General Clauses Act .86 But normally a saving provision is not exhaustive
of the rights and obligations saved or of the rights that survive the repeal and so the rights and
obligations not expressly saved by the saving clause survive by recourse to
section 6 of the General Clauses Act .87 A provision in the repealing Act (which also
enacts a new law) that the provisions of the new law ‘shall have effect notwithstanding anything
inconsistent contained in any other law for the time being in force’ does not show a contrary
indication to displace the application of
section 6 of the General Clauses Act for the repealed law deemed to be in force for
enforcement of accrued rights and liabilities by virtue of that section is not a law ‘for the time
being in force’.88
Section 81 of the Foreign Exchange Regulation Act, 1973 repealed the

corresponding Act of 1947 and provided that ‘anything done—under the Act hereby repealed
shall, in so far it is not inconsistent with the provisions of this Act, be deemed to have been done
or taken under the corresponding provisions of this Act’. Interpreting this section, it was held that
section 81(2) did not evince a contrary intention to exclude
section 6 of the General Clauses Act and that section 81(2), empowers to effectuate
the liabilities, penalties etc., incurred during the period when the repealed Act was in force, as if
they have been in existence and amenable to be pursued under the new Act or under the repealed
Act by force of
. It is submitted that the effect of a provision
like section 81(2) would be to apply the remedial and procedural provisions of the new Act for
enforcing the rights and liabilities accrued and incurred under the repealed Act and not the
substantive provisions of the new Act. Acts done which incur a liability under the repealed Act,
e.g. acts constituting a crime, are not ‘anything done under the Act’ but in violation thereof and
cannot be deemed to have been done under the new Act by recourse to section 81.
Mr.Srikanth -
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A tax exemption granted by a notification under an Act permanently may survive repeal of the
Act even though there be no corresponding provision in the repealing Act under which it could
continue.90Section 3 of the Tamil Nadu Electricity (Taxation on Consumption) Act, 1962
provided for levy of electricity tax on consumption of electricity. Section 13 empowered the
Government to exempt by notification any specified class of persons from payment of electricity
tax. By a notification issued in 1996 under Section 13, the Government exempted certain
industries permanently from electricity tax on the consumption of self-generated electrical energy
for captive generation. The 1962 Act was repealed by T.N. Tax on Consumption or Sale of
Electricity Act, 2003 . Section 3 of the 2003 Act imposed electricity tax on the
electricity sold or consumed. Section 14 of the 2003 Act did not provide for grant of exemption of
tax on consumption of electricity though it provided for exemption of tax on electricity sold for
consumption. It was, therefore, not a corresponding provision under which the notification of
exemption under the 1962 Act could be read and continued by reason of the saving clause in
Section 20(2) similar in terms to
Section 24 of the General Clauses Act . But it was held that the exemption granted
under the 1962 Act from tax on consumption of electricity was a ‘thing duly done’ and the
exemption ‘a right or privilege acquired’ respectively under clauses (b) and (c) of Section 20(1),
which corresponds to
Section 6 of the General Clauses Act except that it does not contain the words
‘unless a different intention appears' which occur in Section 6, and they survived the repeal of the
1962 Act. The right of exemption granted to the industries permanently by the notification, the
court said, was a vested right, permanence meant unless altered by statute and the notification
would continue to govern unless the same is repealed.91 The court declined to read by implication
the words ‘unless a different intention appears' in section 20(1) and in the absence of these words
found no conflict between sections 20(1) and 20(2).92 As the industries had invested huge
sums in establishing their factories on the faith of the exemption notification the doctrines of
promissory estoppel1 and legitimate expectation2 were also used for continuing the exemption.
Inchoate acts done under an Act, before maturing into a right or liability cannot survive the repeal
of the Act followed by fresh legislation containing a saving clause to preserve ‘anything done
etc.’ under the repealed Act so as to continue under the corresponding provisions of the new Act
‘in so far—not inconsistent with its provisions' if on comparison relevant provisions of the two
Acts are found to be inconsistent.3 Dealing with a similar provision in
section 217(2)(a) of the Motor Vehicles Act, 1988 which repealed the Act of 1939
the Supreme Court in Gajraj Singh v. State Transport Appellate Tribunal Gajraj
Singh v. State Transport Appellate Tribunal Gajraj Singh v. State Transport
Appellate Tribunal 4 observed: “If analogous provision in the repealed Act does
not find place in the Act (1988 Act) the rights acquired or accrued thereunder would not continue
under the Act unless fresh rights are acquired under the Act.”5 It is submitted that these
observations do not mean that the rights accrued or acquired under the repealed Act are
annihilated. If there be no analogous provision in the repealing Act, the rights acquired under the
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repealed Act would continue under that Act by virtue of

section 6 of the General Clauses Act unless the repealing Act shows a contrary
intention to exclude the operation of section 6. The question in Gajraj Singh's case, in the context
of which the above observations were made, was whether a stage carriage permit granted under
the repealed Act could be held to be a permit granted under the repealing Act by virtue of section
217(2)(a) and the answer was rightly given in the negative as the provisions in the two Acts
relating to grant of permit are materially different. Such a permit as further rightly held by the
court is expressly continued to be effective under section 217(2)(b) for the period for which it
would have been effective under the repealed Act.6 Even if there would have been no express
provision like section 217(2)(b) the permit would have continued to be effective for the same
period by virtue of
section 6 of the General Clauses Act , the application of which is saved by section
217(4). The reason is that the right acquired by grant of the permit was to ply the stage carriage
covered by the permit for the full duration of the permit. This right was unaffected by repeal of
the 1939 Act by operation of
section 6(c) of the General Clauses Act .
The
Motor Vehicles Act , 1939 in section 58(2) provided for preferential consideration of
an application for renewal of a permit as against fresh applicants, other conditions being equal.
There is no corresponding provision of this nature in the
Motor Vehicles Act , 1998. This right of preferential consideration of a renewal
application could accrue or arise only on making of an application for renewal. Therefore, if no
application for renewal was pending when the 1939 Act was repealed, there could be no question
of preferential right of renewal of a permit.7 A permit holder whose permit granted under the 1939
Act expired after coming into force of the 1988 Act could not claim any preferential right of
renewal and his remedy was to apply for a fresh permit under the new Act8 except in cases of a
permit of a named operator saved and continued under a nationalisation scheme as such schemes
amount to law and are preserved by the repealing section 217(2)(a).9 But in a case where an
application for renewal was pending under section 58 of the 1939 Act when it was repealed by the
1988 Act, it would be treated to be an application for enforcement of an accrued right for
preferential consideration for renewal and will be determined according to the provisions of the
repealed Act.10
Punjab Ordinance No. 7 of 1948, made provision for the registration of land claims of the East
Punjab refugees. Section 7 of the Ordinance made it an offence for any person to submit with
regard to his claim under the Act, any information which was false. On 1st April, 1948, this
Ordinance was repealed and Act 12 of 1948 was passed by the East Punjab Legislature re-
enacting all the provisions of the repealed Ordinance. A claim was filed when the Ordinance was
in force. The claim contained information which was false and constituted an offence under
section 7. In a prosecution begun after repeal of the Ordinance, it was held that the repealing Act
did not evince an intention to destroy the liability under the Ordinance and the offender could be
prosecuted and punished on principles contained in
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section 6 of the General Clauses Act .11
It has been held that the

Companies Act, 1956 , which repealed the earlier Act of 1913, did not evince an
intention to destroy the rights created under section 153C of the repealed Act and a proceeding
pending at the time of repeal in respect thereof could be continued as if the new Act had not been
passed.12
Central Ordinance No. 27 of 1949 was repealed and replaced by Central Act 31 of 1950. The Act
in section 58 contained the following provision: ‘The repeal by this Act of the Administration of
Evacuee Property Ordinance, 1949 (27 of 1949) shall not affect the previous operation thereof,
and subject thereto, any thing done or any action taken in the exercise of any power conferred by
or under the Ordinance, shall be deemed to have been done or taken in the exercise of the powers
conferred by or under this Act, as if this Act were in force on the day on which such thing was
done or action was taken’. In construing this section the Supreme Court pointed out that the
section provided for the operation of the previous law in the first part and in negative terms, as
also for the operation of the new law in the other part and in positive terms; and thus, the section
was self-contained and indicative of an intention to exclude the application of
section 6, General Clauses Act .13 The deeming provision in the second part of
section 58 is “contrary to what is contemplated under
section 6, General Clauses Act ”,14 and it was held that the scheme underlying
section 58 is that “every matter to which the new Act applies has to be treated as arising, and to be
dealt with, under the new law except in so far as certain consequences have already ensued or acts
have been completed prior to the repeal, to which it is the old law that will apply”.15 The above
view of section 58 was approved by the
Constitution Bench decision in Bishambhernath Kohli v. State of
Uttar Pradesh, Bishambhernath Kohli v. State of Uttar Pradesh, Bishambhernath
Kohli v. State of Uttar Pradesh, 16 where it was held that a revision against an
order passed by the Deputy Custodian under the repealed ordinance could be entertained and
decided by the Custodian General under the new Act. These cases17 were followed in construing
section 30(2) of the Prevention of Corruption Act, 1988 which repealed the earlier
Act of 1947. The saving contained in section 30(2) of the 1988 Act reads: ‘Notwithstanding such
repeal but without prejudice to
section 6 of the General Clauses Act, 1897 (10 of 1897) anything done or any action
taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall,
in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or
taken under or in pursuance of the corresponding provision of this Act.’ Construing the saving
contained in section 30(2), it was held18 that a special judge, appointed under section 3 of the
1988 Act to try offences punishable under the said Act, could also take cognizance of an offence
committed under the 1947 Act on a report filed before him after repeal of that Act for the legal
fiction contained in the last part of section 30(2) expresses a different intention to that in
section 6(e) of the General clauses Act which enables institution and continuation of
legal proceedings under the repealed Act as if the repealing Act had not been passed. In another
case19 where also the offence was committed when the 1947 Act was in force but the conviction
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of the accused by the special judge was entered after repeal of the 1947 Act, it was held that the
provisions relating to appeal and revisions in the 1988 Act would apply and in view of section
19(3)(a) of this Act no conviction could be set aside in appeal for want of sanction unless the
Court was of the view that a failure of justice has been occasioned thereby.20
The Bombay Agricultural Debtors Act, 1939, was repealed and replaced by the Bombay
Agricultural Debtors Relief Act, 1947. The repealing section in the new Act provided that the
proceedings original and appellate pending under the repealed Act were to be continued and
disposed of as if instituted under the new Act. It was held that the new Act applied both, the
substantive as well as procedural provisions, to pending proceedings.21
Section 85(1) of the Arbitration and Conciliation Act, 1996 repeals three Acts
namely the Arbitration (Protocol and Convention) Act, 1937, the
Arbitration Act , 1940 and the
Foreign Awards (Recognition and Enforcement) Act, 1961 . Section 85(2)(a) enacts a
saving clause which provides: ‘Notwithstanding such repeal, the provisions of the said enactments
shall apply in relation to arbitral proceedings which commenced before this Act came into force
unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings
which commenced on or after this Act came into force.’ This Act came into force on January 25,
1996. In Thyssen Stahlunion GMBH v. Steel Authority of India, In Thyssen
Stahlunion GMBH v. Steel Authority of India, In Thyssen Stahlunion GMBH v.
Steel Authority of India, 22 the Supreme Court held that an
award made after the new Act came into force in an arbitration proceeding commenced under the
Arbitration Act , 1940 before the new Act came into force will be enforceable under
the 1940 Act and not under the new Act. This conclusion was reached by widely construing the
words ‘in relation to arbitral proceedings' in the saving clause to cover not only proceedings
before the arbitrator but also proceedings pending or required to be taken before the court for
enforcing the award. It was also held that in this view of the matter
section 6 of the General Clauses Act was inapplicable in such cases.23 But the court
later held that the right to have the award (though made after the new Act came into force)
enforced in accordance with the provisions of the 1940 Act was an accrued right and a contrary
conclusion would produce unjust results as the provisions of the two Acts were materially
different.24 The court also held that the words ‘unless otherwise agreed by the parties’ in the
saving clause would cover an agreement before the new Act came into force, therefore, in a case
where the parties had agreed in the arbitration agreement for application of the 1940 Act or any
statutory modification or re-enactment thereof, an award made in a pending arbitration proceeding
after the new Act came into force would be enforceable in accordance with the provisions of the
new Act.25 But in respect of a foreign award made after the new Act came into force in a pending
arbitration in a foreign country, the court held that the award could be enforced in India only
under the new Act and not under the
Foreign Awards (Recognition and Enforcement) Act, 1961 . In this connection the
court noticed that the 1961 Act did not contain any provision for regulating the arbitration
proceedings and contained provisions only for enforcing the awards which were not materially
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different from the provisions of the new Act and the saving clause in section 85(2) could not be
applied to such a case.26 It is submitted that the more correct view of the saving clause would
have been to hold that a foreign award made in a pending arbitration was enforceable under the
1961 Act and not under the new Act more so when, as the court noticed, the provisions of the two
Acts were not very much different and this view would not have led to any unjust results. Such a
construction apart from being consistent with the wide meaning given to the words ‘in relation to
arbitral proceedings’ to include even proceedings for enforcement of the award, would have given
due meaning to the word ‘enactments’ in the saving clause which in the context plainly includes
all the three Acts repealed by section 85(1) of the new Act.
With a view to give some protection to Thika tenants against eviction, the West Bengal
Legislature enacted the Calcutta Thika Tenancy Act, 1949. Under this Act the eviction of Thika
tenants was restricted to grounds specified in the Act and provision was made in section 28 for
rescinding or varying previous decrees of ejectment which had not been executed. A Thika tenant
against whom a decree for eviction had been made, applied under
section 28, pra ying that the decree be rescinded or varied in terms of that section.
The application, however, remained pending when Calcutta Thika Tenancy Amendment Act,
1953, came to be enacted. One of the amendments introduced by this Act was, that section 28 of
the original Act was omitted. Further, the
amending Act in section 1(2) enacted that the Act as amended shall apply and be
deemed to have always applied to all pending proceedings. It was held that
section 1(2) of the Amending Act showed a contrary intention for applicability of the
general savings contained in section 8 of the Bengal
General Clauses Act (similar to section 6), Central
General Clauses Act ) and that the right of a tenant to have a decree for ejectment
rescinded under section 28 of the Original Act was taken away by applying the Act as amended in
1953 to all pending proceedings.27
The
Delhi Rent Control Act, 1958 , repealed and replaced the
Delhi and Ajmer Rent Control Act, 1952 . The 1958 Act in section 57(2) enacted as
follows: “Notwithstanding such repeal all suits and other proceedings under the said Act pending
at the commencement of this Act, before any court or other authority shall be continued and
disposed of in accordance with the provision of the said Act, as if the said Act had continued in
force and this Act had not been passed: provided that in any such suit or proceeding for the
fixation of standard rent or for the eviction of a tenant from any premises to which section 54 does
not apply, the court or other authority shall have regard to the provisions of this Act.” A suit for
ejectment was filed when the 1952 Act was in force, on the ground that the tenant without
obtaining the consent of the landlord had before the commencement of the 1952 Act, sublet the
premises. When this suit was pending in revision before the High Court, the 1958 Act came into
force. This Act made radical changes in the previous Act and a sub-letting before the
commencement of 1952 Act was treated as lawful sub-letting if the sub-tenant was in occupation
of the premises at the commencement of the 1958 Act. The ground on which eviction was sought
ceased to be a good ground under the new Act and a question therefore arose as to how far the
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pending suit was affected by the new Act. In view of the provisions of section 57(2) of the new
Act, it was held that
had no application. The apparent conflict
between the substantive part of sub-section (2) section 57 and the proviso to it was resolved by
the rule of harmonious construction and it was decided that pending proceedings were to be
governed by the old Act; but in cases where the new Act had slightly modified or clarified the
previous provisions, these modifications and clarifications were to be applied.29 In the particular
case, therefore, it was held that the old Act continued to govern the proceedings.
The last mentioned case30 under the Delhi Rent Control Acts may be compared with a later
decision arising under the same Acts.31 In a suit for ejectment filed before the commencement of
the 1958 Act an application was made by the plaintiff-landlord under section 13(5) of the 1952
Act for an order to be made on the defendant tenant to deposit all the arrears of rent and future
monthly rent on the 15th of each month. An order was made as prayed for, but the tenant made
default and an application was made by the plaintiff for striking out the defence of the tenant.
Under section 13(5) of the 1952 Act the provision was that in default of the tenant ‘the court shall
order the defence against ejectment to be struck out’. In the 1958 Act, which came into force
during the pendency of the suit, the corresponding provision [section 15(7)], provides that the
controller may order the defence against eviction to be struck out. On the principles stated in the
last-mentioned case,32 it was held that the change introduced in the new Act conferring a
discretion in the matter of striking of defence was a slight modification, and the benefit of the new
provision was available to the defendant.33
7. SUBORDINATE LEGISLATION UNDER REPEALED STATUTE
As a consequence of the general principle that a statute after its repeal is as completely effaced
from the statute book as if it had never been enacted, subordinate legislation made under a statute
ceases to have effect after repeal of the statute.34 This result can be avoided by insertion of saving
clauses providing to the contrary.35 When a statute is repealed and re-enacted,
section 24 of the General Clauses Act, 1897 , provides for continuance of any
appointment, notification, Order, scheme, rule, form or bye-law made or issued under the repealed
statute in so far as it is not inconsistent with the provisions re-enacted. Such appointments,
notifications, Orders etc. are deemed to be made under the corresponding provisions of the new
statute and continue to be in force unless superseded by appointments, notifications, Orders, etc.,
made or issued under the new statute.36 Even if the subordinate legislation made under the
repealed statute was effective “as if enacted in the Act”, it will continue to be in force under the
provision re-enacted by virtue of
. But, as already stated, the continuance of
subordinate legislation under
section 24 of the General Clauses Act is subject to the qualification that it is not
inconsistent with the provision re-enacted.38 Further, section 24 is, on its own terms, limited to a
repeal of a Central Act or Regulation,39 and has no application when a State Act is expressly or
impliedly repealed by a Central Act, but in such cases unless the Central Act is retrospective
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benefit of
section 6 of the General Clauses Act is available in respect of things already done.40
8. QUASIREPEAL BY DESUETUDE
The English law does not recognise any doctrine that an Act of Parliament can come to an end by
desuetude or non-user. But this doctrine is recognised by Scottish law. As enunciated by Lord
Mackay, “desuetude requires for its operation a very considerable period, not merely of neglect
but of contrary usage of such a character as practically to infer such completely established habit
of the community as to set up a counter law to establish a quasi-repeal”.41 The doctrine of
desuetude was rejected by a three judge bench of the Supreme Court in State of
Maharashtra v. Narayan. State of Maharashtra v. Narayan. State of Maharashtra
v. Narayan. 42 But another three judge bench of the
Supreme Court recently in the Municipal Corporation for City of Pune v. Bharat
Forge Col. Ltd., Municipal Corporation for City of Pune v. Bharat Forge Col. Ltd.,
Municipal Corporation for City of Pune v. Bharat Forge Col. Ltd., 43 has
implanted this doctrine of Scottish law in Indian law without adverting to the earlier decision.
Hansaria J. speaking for the three judge bench observed: “We would think it would advance the
cause of justice to accept the application of doctrine of desuetude in our country also. Our soil is
ready to accept this principle: indeed, there is need for its implantation, because persons residing
in free India, who have assured fundamental rights including what has been stated in Article 21,
must be protected from their being say, prosecuted and punished for violation of a law, which has
become ‘dead letter’.”44 In this case a notification of 1881 issued under the
Cantonments Act , 1880 imposing octroi in Pune Cantonment was superseded and
impliedly repealed by two notifications issued in 1918 which were not in practice implemented at
any time and octroi continued to be recovered under the notification of 1818 in accordance with
the octroi rules enforced from time to time including the octroi rules of 1963. It was held that the
1918 notification stood quasi repealed by the time 1963 rules were framed and the continued
recovery of octroi under the notification of 1818 read with the rules of 1963 was legal. The
doctrine of quasi repeal will need further clarification. In the case before the Supreme Court, if
the 1818 notification was impliedly repealed by notifications of 1918, how could the 1818
notification come back to life after the 1918 notifications were quasi repealed by desuetude. Non-
user and contrary practice has to continue for a long time to bring about quasi repeal by
desuetude. Therefore, 1918 notifications could not be held to be still born or dead from their
inception by desuetude and must have had the effect of effectively repealing the 1818 notification.
The result reached by the Supreme Court implies that desuetude of a law A not only repeals it but
also revives the law B which was repealed by A. This will mean that
section 7 of the General Clauses Act does not apply to quasi repeal by desuetude.
The case of Bharat Forge Co. Ltd .45 and the doctrine of desuetude
were referred by a two judge bench in Cantonment Board, Mhow v. M.P. Road
State Transport Corporation Cantonment Board, Mhow v. M.P. Road State Transport
Corporation Cantonment Board, Mhow v. M.P. Road State Transport Corporation
Mr.Srikanth -
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46 and it was held that the necessary conditions for the doctrine's application were “to establish
that the statute in question has been in disuse for long and the contrary practice of some duration
has evolved.”47 The doctrine was not applied in this case as these conditions were not satisfied. In
this case also the earlier three judge bench case of Narayan48 was not noticed. It is
submitted that the doctrine of repeal by desuetude is controversial and in view of conflicting
decisions of three judge benches requires reconsideration by a larger bench. There are very useful
references and discussion on desuetude in a recent judgment of the Delhi High Court.49
1 Jotindranath v. Province of Bihar, Jotindranath v. Province of Bihar, Jotindranath

v. Province of Bihar,
AIR 1949 FC 175 , p. 178 :
1949 FCR 595 ;; District Mining Officer v. Tata Iron & Steel Co., District Mining Officer v.
Tata Iron & Steel Co., District Mining Officer v. Tata Iron & Steel Co.,
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ], p. 3155 :
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ].
2 See title 4 ‘Express Repeal’ and 5 ‘Implied Repeal’ in this Chapter.
3 Hebbert v. Purchas, Hebbert v. Purchas, Hebbert v. Purchas,

(1871) LR 3 PC 605, p. 650 (PC), Neither contrary practice nor disuse can repeal the positive
enactment of a statute (LORD HATHERLEY, L.C.); Metropolitan Police Commr. v. Hammond, Metropolitan Police Commr. v.
Hammond, Metropolitan Police Commr. v. Hammond,
(1964) 2 All ER 772 , p. 780 (HL), The mere passing of time does not warrant their being
ignored (LORD MORRIS); State of Maharashtra v. Narayan, State of Maharashtra v. Narayan, State of
Maharashtra v. Narayan,
AIR 1983 SC 46 [
LNIND 1982 SC 152 ], p. 52 :
(1982) 3 SCC 519 [
LNIND 1982 SC 152 ]. But see title 8 ‘Quasi repeal by desue-tude’.

AIR 1949 FC 175 : 1949 FCR 545.
5 Maganti v. State of Andhra Pradesh, Maganti v. State of Andhra Pradesh, Maganti

v. State of Andhra Pradesh,
AIR 1970 SC 403 [
LNIND 1969 SC 171 ], p. 404 :
(1969) 2 SCC 96 [
LNIND 1969 SC 171 ].
6 Madurai District Central Co-operative Bank Ltd. v. Third Income-tax Officer, Madurai, Madurai
District Central Co-operative Bank Ltd. v. Third Income-tax Officer, Madurai, Madurai District Central Co-
operative Bank Ltd. v. Third Income-tax Officer, Madurai,
AIR 1975 SC 2016 [
LNIND 1975 SC 235 ], p. 2021 :
(1975) 2 SCC 454 [
LNIND 1975 SC 235 ].
Mr.Srikanth -
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7 State of Assam v. K.B. Kurkalang, State of Assam v. K.B. Kurkalang, State of Assam
v. K.B. Kurkalang,
AIR 1972 SC 223 [
LNIND 1971 SC 590 ]:
(1972) 1 SCC 148 [
LNIND 1971 SC 590 ]. Ishwardas v. Union of India, Ishwardas v. Union of India,
Ishwardas v. Union of India,
AIR 1972 SC 1193 [
LNIND 1972 SC 97 ]:
(1972) 1 SCC 646 [
LNIND 1972 SC 97 ].
8 Inder Singh v. State of Rajasthan, Inder Singh v. State of Rajasthan, Inder Singh v.
State of Rajasthan,
AIR 1957 SC 510 [
LNIND 1957 SC 13 ]:
1957 SCR 605 [
LNIND 1957 SC 13 ].
9 Kaiser-I-Hind Pvt. Ltd. v. National Textiles Corporation, Kaiser-I-Hind Pvt. Ltd. v. National Textiles
Corporation, Kaiser-I-Hind Pvt. Ltd. v. National Textiles Corporation,
AIR 2002 SC 3404 [
LNIND 2002 SC 604 ], p. 3426 :
(2002) 8 SCC 182 [
LNIND 2002 SC 604 ].

AIR 1949 FC 175 : 1949 FCR 545. N.B.—This point has been left open in Inder Singh's case,
supra, Note 8. It has been held that an Act void for want of constitutionality is a still born law and its defect cannot be cured by an
amending Act : the proper course is to re-enact a new retrospective Act with suitable changes; Shama Rao v. Union
Territory, Pondicherry, Shama Rao v. Union Territory, Pondicherry, Shama Rao v. Union Territory, Pondicherry,
AIR 1967 SC 1480 [
LNIND 1967 SC 39 ], pp. 1488, 1489. This proposition will hold good even though the
Constitution Article which invalidated the enactment has itself been repealed: Abukhan v. Union of India, Abukhan
v. Union of India, Abukhan v. Union of India,
(1984) 1 SCC 88 , p. 90:
AIR 1983 SC 1301 .
11 Corresponding to section 38(2), Interpretation Act, 1899 (52 & 53 Vict. c 63).
12 Wicks v. Director of Public Prosecutions, Wicks v. Director of Public Prosecutions,

Wicks v. Director of Public Prosecutions,
(1947) 1 All ER 205 , p. 206 :
1947 AC 362 (HL); State of U.P. v. Jagmanderdas, State of U.P. v. Jagmanderdas,
State of U.P. v. Jagmanderdas,
AIR 1954 SC 683 [
LNIND 1954 SC 300 ], p. 684 Gopichand v. Delhi Administration, Gopichand v. Delhi
Administration, Gopichand v. Delhi Administration,
AIR 1959 SC 609 [
LNIND 1959 SC 8 ], p. 615; State of Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra
Kumar, State of Orissa v. Bhupendra Kumar,
AIR 1962 SC 945 [
13
(1841) 151 ER 1024 , pp. 1026, 1027; See further Spencer v. Hooten, Spencer v. Hooten,
Spencer v. Hooten,
(1920) 37 TLR 280 ; R. v. Ellis, R. v. Ellis, R. v. Ellis,
Mr.Srikanth -
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(1921) 125 LT 397 ; R. v. Wicks, R. v. Wicks, R. v. Wicks,

(1946) 2 All ER 529 , p. 531 ; State of Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra
Kumar, State of Orissa v. Bhupendra Kumar, supra. The question relating to effect of expiry may give rise to sharp
divergence of opinion; For example see Krishna Kumar Singh v. State of Bihar, Krishna Kumar Singh v. State of Bihar,
Krishna Kumar Singh v. State of Bihar,
JT 1998 (4) SC 58 [
LNIND 1998 SC 553 ]:
(1998) 5 SCC 643 [
LNIND 1998 SC 553 ] (case referred to larger bench).
14 R. v. Wicks, R. v. Wicks, R. v. Wicks,

(1946) 2 All ER 529 , pp. 531, 532.
15 Gopichand v. Delhi Administration, Gopichand v. Delhi Administration, Gopichand

v. Delhi Administration,
AIR 1959 SC 609 [
LNIND 1959 SC 8 ]: 1959 Supp (2) SCR 87; State of Orissa v. Bhupendra Kumar, State of
Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra Kumar,
AIR 1962 SC 945 [
LNIND 1961 SC 405 ], p. 953 : 1962 Supp (2) SCR 380; Wicks v. Director of Public
Prosecutions, Wicks v. Director of Public Prosecutions, Wicks v. Director of Public Prosecutions,
(1947) 1 All ER 205 , pp. 206, 207 :
1947 AC 362 (HL). For example see section 1(3) of TADA 1985 and section 1(4) TADA 1985,
State v. Gian Singh, State v. Gian Singh, State v. Gian Singh,
AIR 1999 SC 3450 [
LNIND 1999 SC 802 ], p. 3454 and Abdul Aziz v. State of West Bengal, Abdul Aziz v. State of
West Bengal, Abdul Aziz v. State of West Bengal,
1995 (5) Scale 169 :
AIR 1996 SC 3305 . Because of section 1(4) bail cannot be granted even after expiry of TADA
contrary to its provisions; Mohammad Iqbal Madar Sheikh v. State of Maharashtra, Mohammad Iqbal Madar Sheikh v. State of
Maharashtra, Mohammad Iqbal Madar Sheikh v. State of Maharashtra,
1996 (1) Scale 123 :
1996 (1) SCC 722 :
(1996) SCC (Cri) 202 .
16 S. Krishnan v. State of Madras, S. Krishnan v. State of Madras, S. Krishnan v. State

of Madras,
AIR 1951 SC 301 [
LNIND 1951 SC 35 ], p. 304 :
1951 SCR 621 [
LNIND 1951 SC 35 ]; State of U.P. v. Jagmanderdas, State of U.P. v. Jagmanderdas,
State of U.P. v. Jagmanderdas,
AIR 1954 SC 683 [
LNIND 1954 SC 300 ], p. 685 :
1954 Crlj 1736 ; Gopichand v. Delhi Administration, Gopichand v. Delhi Administration,
Gopichand v. Delhi Administration, supra, p. 615; State of Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra Kumar,
State of Orissa v. Bhupendra Kumar, supra, p. 953.
17 R. v. Wicks, R. v. Wicks, R. v. Wicks, supra, pp. 531, 532; State of U.P. v.

Jagmanderdas, State of U.P. v. Jagmanderdas, State of U.P. v. Jagmanderdas, supra; State of Orissa v. Bhupendra
Kumar, State of Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra Kumar, supra, p. 953.
18
(1841) 15 ER 1024 .
19 Spencer v. Hooten, Spencer v. Hooten, Spencer v. Hooten, (1920) 37 TLR, 280; R.

v. Ellis, R. v. Ellis, R. v. Ellis, (1921) 125 IT, 397; R. v. Wicks, R. v. Wicks, R. v. Wicks,
(1946) 2 All ER 529 , pp. 531, 532.
Mr.Srikanth -
Page 41 of 86
20
AIR 2001 SC 3134 [
LNIND 2001 SC 1542 ]:
(2001) 7 SCC 358 [
LNIND 2001 SC 1542 ].
21 P. 3155 overruling P. Kannadasan v. State of T.N., P. Kannadasan v. State of T.N., P.

Kannadasan v. State of T.N.,
AIR 1996 SC 2560 : (1996) 5 SCC 670.
22 State of U.P. v. Jagmanderdas, State of U.P. v. Jagmanderdas, State of U.P. v.

Jagmanderdas,
AIR 1954 SC 683 [
LNIND 1954 SC 300 ]:
1954 Cr LJ 1736 . See further Om Prakash v. State of Haryana, Om Prakash v. State of
Haryana, Om Prakash v. State of Haryana,
AIR 1970 SC 654 : (1970) 3 SCC 107.
23 Ibid.
24 J.K. Gas Plant Mfg. Co. v. Emperor, J.K. Gas Plant Mfg. Co. v. Emperor, J.K. Gas
Plant Mfg. Co. v. Emperor,
AIR 1947 FC 38 , pp. 46, 47 :
1947 FCR 141 .
25 Ibid.
26
(1947) 1 All ER 205 :
1947 AC 362 (HL), affirming R. v. Wicks R. v. Wicks R. v. Wicks
(1946) 2 All ER 529 (CCA).
Plant Mfg. Co. v. Emperor, supra.
28 Supra, note 26.
29 R. v. Wicks, R. v. Wicks, R. v. Wicks,

(1946) 2 All ER 529 , p. 532 (CCA).
30 Ibid.
31 Ibid, p. 533.
32 Wicks v. Director of Public Prosecutions, Wicks v. Director of Public Prosecutions,

Wicks v. Director of Public Prosecutions,
(1947) 1 All ER 205 , p. 207 :
(1947) AC 362 (HL).
Mr.Srikanth -
Page 42 of 86
Plant Mfg. Co. v. Emperor,
AIR 1947 FC 38 , pp. 46, 47 :
1947 FCR 141 ; Gopichand v. Delhi Administration, Gopichand v. Delhi Administration,
Gopichand v. Delhi Administration,
AIR 1959 SC 609 [
LNIND 1959 SC 8 ], p. 615 : 1959 Supp (2) SCR 87; State of Orissa v. Bhupendra Kumar, State
of Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra Kumar,
AIR 1962 SC 945 [
LNIND 1961 SC 405 ], p. 953 : 1962 Supp (2) SCR 380; Om Prakash v. State of Haryana, Om
Prakash v. State of Haryana, Om Prakash v. State of Haryana,
AIR 1970 SC 654 : (1970) 3 SCC 107.
34
AIR 1970 SC 494 [
LNIND 1969 SC 219 ], p. 504 :
(1969) 2 SCC 412 [
LNIND 1969 SC 219 ]; Followed in Lennart v. Director of Enforcement, Lennart v. Director of
Enforcement, Lennart v. Director of Enforcement,
AIR 1970 SC 549 [
LNIND 1969 SC 396 ], p. 553 :
(1970) 1 SCC 152 [
LNIND 1969 SC 396 ].
35 Supra, note 26.
36 Rayala Corporation v. Director of Enforcement, Rayala Corporation v. Director of Enforcement,

Rayala Corporation v. Director of Enforcement,
AIR 1970 SC 494 [
LNIND 1969 SC 219 ]:
(1969) 2 SCC 412 [
LNIND 1969 SC 219 ].
37 Supra, note 26.
38 Ibid.
39 Attorney General for India v. Amratlal Prajivandas, Attorney General for India v. Amratlal
Prajivandas, Attorney General for India v. Amratlal Prajivandas,
JT 1994(3) SC 583 : (1994) 5 SCC 54, pp. 603, 607, 608 :
AIR 1994 SC 2179 , pp. 2196, 2197. See further Gangadevi v. Union of India, Gangadevi v.
Union of India, Gangadevi v. Union of India,
1996 (7) Scale 389 [
LNIND 1996 SC 1591 ] :
1996 (6) SCC 40 ; Kesar Devi v. Union of India, Kesar Devi v. Union of India,
Kesar Devi v. Union of India,
(2003) 7 SCC 427 [
LNIND 2003 SC 613 ], p. 431 :
AIR 2003 SC 4195 [
LNIND 2003 SC 613 ]:
2003 SCC (Cri) 1652 ; Fatima Mohd. Amin v. Union of India, Fatima Mohd. Amin v. Union of
India, Fatima Mohd. Amin v. Union of India,
(2003) 7 SCC 436 .
40 Gopichand v. Delhi Administration, Gopichand v. Delhi Administration, Gopichand

v. Delhi Administration,
Mr.Srikanth -
Page 43 of 86
AIR 1959 SC 609 [

41 Bhaskar v. State, Bhaskar v. State, Bhaskar v. State,

JT 1999 (7) SC 355 [
LNIND 1999 SC 858 ], pp. 358-60 :
AIR 1999 SC 3539 [
LNIND 1999 SC 858 ], pp. 3541, 3542 :
(1999) 9 SCC 551 [
LNIND 1999 SC 858 ].
42 Ibid.See further State of Tamil Nadu v. Paramasiva Pandian, State of Tamil Nadu v. Paramasiva
Pandian, State of Tamil Nadu v. Paramasiva Pandian,
AIR 2001 SC 2972 [
LNIND 2001 SC 265 ], p. 2976 :
(2002) 1 SCC 15 [
LNIND 2001 SC 265 ].
43 Spencer v. Hooten, Spencer v. Hooten, Spencer v. Hooten,

(1920) 37 TLR 280 .
44 Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust, Trust Mai Lachhmi Sialkoti
Bradari v. Amritsar Improvement Trust, Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust,
AIR 1963 SC 976 [
LNIND 1962 SC 144 ], p. 979 :
(1963) 1 SCR 242 [
LNIND 1962 SC 144 ] (Case under section 22 of the Punjab
General Clauses Act ) :
1963 (1) SCR 242 [
LNIND 1962 SC 144 ].
45 S. Krishnan v. State of Madras, S. Krishnan v. State of Madras, S. Krishnan v. State

of Madras,
AIR 1951 SC 301 [
LNIND 1951 SC 35 ], p. 304 :
1951 SCR 621 [
LNIND 1951 SC 35 ].
46 See title 2, ‘Effect of Expiry of Temporary Statute’, text and note 13, p. 623.
47 State of Orissa v. Bhupendra Kumar, State of Orissa v. Bhupendra Kumar, State of

Orissa v. Bhupendra Kumar,
AIR 1962 SC 945 [
48 Ibid, p. 954.
49 Steavenson v. Oliver, Steavenson v. Oliver, Steavenson v. Oliver,

(1841) 151 ER 1024 .
50 Ibid.
Mr.Srikanth -
Page 44 of 86

AIR 1962 SC 945 [
52 T. Venkata Reddy v. State of Andhra Pradesh, T. Venkata Reddy v. State of Andhra Pradesh,
T. Venkata Reddy v. State of Andhra Pradesh,
(1985) 3 SCC 198 [
LNIND 1985 SC 106 ], pp. 213 to 215 :
AIR 1985 SC 724 [
LNIND 1985 SC 106 ].
53 Gooderham & Worts v. C.B. Corporation, Gooderham & Worts v. C.B. Corporation,
Gooderham & Worts v. C.B. Corporation,
AIR 1949 PC 90 .
54 Ibid, pp. 93, 94.
55 But see Om Prakash v. State of U.P., Om Prakash v. State of U.P., Om Prakash

v. State of U.P.,
AIR 1957 SC 458 [
LNIND 1957 SC 2 ], p. 463 :
1957 SCR 423 [
LNIND 1957 SC 2 ], where a contrary opinion is expressed.
It is submitted that the view expressed in this case of section 6 is not correct. The opening words of section 6 which
apply to all the clauses in section 6 are inapplicable to the case of expiry of a temporary statute (See text and note 12, p. 623) and it
seems impossible to give to them a different meaning for purposes of clause (a) alone. The said clause will, however, be attracted
when a repealing temporary statute is itself repealed. (See text and note 8, p. 658).

AIR 1962 SC 945 [
57 Warren v. Windle, Warren v. Windle, Warren v. Windle,

(1803) 102 ER 576 , p. 578 : 102 ER 576 (KB); referred to in Bhupendra Kumar's case, supra,
note 56. See further the observation of Ellenborough, C.J. in R v. Rogers, R v. Rogers, R v. Rogers,
(1809) 103 ER 891 , p. 893; which are to the following effect: “It is a question of construction of
every Act professing to repeal or interfere with the provisions of a former law, whether it operates as a total or a partial and
temporary repeal”. See further text and note 60, infra.
58 State of Haryana v. Amarnath Bansal, Haryana v. Amarnath Bansal, Haryana v. Amarnath Bansal,
1997 (1) Scale 343 [
LNIND 1997 SC 55 ], pp. 351, 352 :
AIR 1997 SC 718 [
LNIND 1997 SC 55 ], pp. 725, 726 :
(1997) 10 SCC 700 [
LNIND 1997 SC 55 ].
59 West U.P. Sugar Mills Association v. State of U.P., West U.P. Sugar Mills Association v. State of
U.P., West U.P. Sugar Mills Association v. State of U.P.,
AIR 2002 SC 948 [
LNIND 2002 SC 106 ]:
(2002) 2 SCC 645 [
LNIND 2002 SC 106 ].
Mr.Srikanth -
Page 45 of 86
60 R. v. Rogers, R. v. Rogers, R. v. Rogers,

(1809) 103 ER 891 , p. 893.
AIR 1949 PC 90 . See text and notes 53 and 54, supra.
AIR 1949 PC 90 , p. 94.
63 R.C. Jall v. Union of India, R.C. Jall v. Union of India, R.C. Jall v. Union of India,
AIR 1962 SC 1281 [
64 Ramkrishna v. Janpad Sabha, Ramkrishna v. Janpad Sabha, Ramkrishna v. Janpad

Sabha,
AIR 1962 SC 1073 [
LNIND 1962 SC 59 ], p. 1080 : 1962 Supp (3) 70 citing A.G. for Ontario v. A.G. for the
Dominion A.G. for Ontario v. A.G. for the Dominion A.G. for Ontario v. A.G. for the Dominion
(1896) AC 348 , p. 366 (PC); Karstinyeri v. The Commonwealth Karstinyeri v. The
Commonwealth Karstinyeri v. The Commonwealth (1998) 72 ALJR 722, p. 729 (Aust).
65 1 Bl Comm. 90. This proposition though sound in legal theory must give way to practical politics; for example, it is
impossible to imagine that the British Parliament could have ever repealed section 4 of the statute of Westminster, 1931 [
Blackburn v. Attorney General, Blackburn v. Attorney General, Blackburn v. Attorney General,
(1971) 1 WLR 1037 , p. 1040 (CA)] or can effectively repeal the corresponding section 1 of the
Australia Act, 1986 (U.K.) which provides that no Act of U.K. Parliament shall extend or be deemed to extend to the
commonwealth [ Sue v. Hill, Sue v. Hill, Sue v. Hill, (1999) 73 ALJR 1016, p. 1029 (para 64)]. It is also a
debatable question whether the British Parliament can lawfully abolish the House of Lords; see (1979) 95 LQR 36, 38. Even the
validity of the Parliament Act, 1949 which amended the Parliament Act, 1911 and which only reduces the period of delay when the
House of Lords does not approve a Bill is a matter of controversy; see Also Samuels, “Is the Parliament Act, 1949 valid’, (2003) 24
Statute Law Review 237. Search for a suitable building to accommodate the Supreme Court seems to be the cause of delay for
implementing this reform: Lord David Hope, ‘A Phoenix From the Ashes? Accommodating A New Supreme Court’, (2005) 121
LQR 253 -72. Reform is underway to abolish atleast the House of Lords’ judicial wing and to establish a new Supreme Court :
Nermon Bogdanor, ‘Our New
Constitution ’, The Law Quarterly Review 2004 (April) pp. 242, 243. Doubts about the validity of The Parliament
Act, 1949 have been dispelled by the House of Lords. The Parliament Act, 1911 prescribed the circumstances when ‘any public
Bill’ could be enacted without the consent of the House of Lords. This Act was enacted with the consent of the House of Lords. The
Parliament Act, 1949 was enacted according to the procedure laid down in the Act of 1911 without the consent of the House of
Lords. The Act of 1949 amended the 1911 Act by reducing the number of sessions in which a Bill had to pass the commons from
three to two and reducing from two to one the number of years which had to elapse before the consent of the Lords could be
dispensed with. The Hunting Act, 2004, which made it an offence to hunt a wild animal with a dog, was enacted according to the
procedure laid down in the Act of 1949. On a challenge to both the Parliament Act, 1949 and the Hunting Act, 2004, both were held
to be valid by the House of Lords: R. (on the application of ) Jackson v. Attorney General, R. (on the application of ) Jackson v.
Attorney General, R. (on the application of ) Jackson v. Attorney General,
(2005) 4 All ER 1253 (HL). (The argument that the Parliament Act of 1911 was delegated
legislation was rejected). For criticism, see Robin Cooke ‘A Controversial Retreat’, (2006) 122 LQR 224 -31. Further, it is now
accepted that the community law, i.e., EEC. Treaty enforced by the European Communities Act, 1972 prevails over anything
inconsistent in an English statute for section 2(4) of the Act provides that ‘any enactment passed or to be passed’ will take effect
subject to community law; R. v. Secretary of State for Transport, ex parte, Factortame Ltd., R. v. Secretary of State for Transport,
ex parte, Factortame Ltd., R. v. Secretary of State for Transport, ex parte, Factortame Ltd.,
(1990) 2 AC 85 ; (No. 2)
(1991) 1 AC 603 . After referring to these decisions which dealt with a British statute of 1988’
Prof. Wade comments: “The Parliament of 1972 has bound the Parliament of 1988. To that extent we have had a constitutional
revolution” : (1992) Public Law in Britain and India (Nambiyar Lectures) p. 8. There is a contrary view that the 1972 Act creates
only a rule of construction requiring express words to the contrary for displacing the community law and that there is no
constitutional revolution. See Allan ‘Parliamentary Sovereignty: Law Politics and Revolution’, (1997) 113 LQR 443. Wade's reply
Mr.Srikanth -
Page 46 of 86
to this argument is that such express provision would be quite inconsistent with the continued membership of the community and so
“while Britain remains in the community we are in a regime in which Parliament has bound its successors successfully, and which
is nothing if not revolutionary:” (1996) 112 LQR 568, p. 571. Action taken under a United Kingdom legislation which is in conflict
with community law may also give rise to state's liability to pay damages: R. v. Secretary of State for Transport, ex parte,
Factortame Ltd., R. v. Secretary of State for Transport, ex parte, Factortame Ltd., R. v. Secretary of State for
Transport, ex parte, Factortame Ltd.,
(1999) 4 All ER 906 (HL). See further K.J. Keith (Judge of the Supreme Court of Newzealand),
‘Sovereignty, at the beginning of the 21st Century: Fundamental or outmoded’, (2004) 63 Cambridge Law Journal 581.
66 Ibid.
67 Duke of Argyll v. IRC Duke of Argyll v. IRC Duke of Argyll v. IRC

(1913) 109 LT 893 , p. 895.
68 Ellen Street Estate Ltd. v. Minister for Health, Ellen Street Estate Ltd. v. Minister for Health,
Ellen Street Estate Ltd. v. Minister for Health,
(1934) 1 KB 590 ;
(1934) All ER Rep 385 , pp. 389, 390; Vauxhall Estates Ltd. v. Liverpool Corporation, Vauxhall
Estates Ltd. v. Liverpool Corporation, Vauxhall Estates Ltd. v. Liverpool Corporation,
(1932) 1 KB 733 .
69 Duke of Argyll v. IRC, Duke of Argyll v. IRC, Duke of Argyll v. IRC, supra.
70 Ellen Street Estates Ltd. v. Minister of Health, Ellen Street Estates Ltd. v. Minister of Health,
Ellen Street Estates Ltd. v. Minister of Health,
(1934) All ER Rep 385 , p. 390. See further Thoburn v. Sunderland City Council, Thoburn
v. Sunderland City Council, Thoburn v. Sunderland City Council,
(2002) 4 All ER 156 , pp. 177, 180 (QBD); Kumaon Motor Owners Union v. State of U.P.,
Kumaon Motor Owners Union v. State of U.P., Kumaon Motor Owners Union v. State of U.P.,
AIR 1966 SC 785 [
LNIND 1965 SC 252 ]:
(1966) 2 SCR 121 [
LNIND 1965 SC 252 ], (Construction of
section 68B of the Motor Vehicles Act , 1939 and section 43 of the Defence of India Act, 1962).
71 Hukumdev v. Lalitnarain, Hukumdev v. Lalitnarain, Hukumdev v. Lalitnarain,

AIR 1974 SC 480 [
LNIND 1973 SC 420 ], p. 490 :
(1973) 2 SCC 133 .
72 Ibid. For construction of

section 29(2) of the Limitation Act, 1963 , see Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, Mukri
Gopalan v. Cheppilat Puthanpurayil Aboobacker, Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker,
1995 (4) Scale 438 : 1995 AIR SCW 3389 :
AIR 1995 SC 2272 [
LNIND 1995 SC 693 ]:
(1995) 4 SCC 5 ; Union of India v. Popular Construction Co., Union of India v. Popular
Construction Co., Union of India v. Popular Construction Co.,
AIR 2001 SC 4010 [
LNIND 2001 SC 2234 ], pp. 4012, 4013 :
(2001) 8 SCC 470 [
LNIND 2001 SC 2234 ] (Special Act providing for extension for 3 days ‘but not thereafter’
construed to exclude
section 5 of the Limitation Act ); Gopal Sardar v. Karuna Sardar, Gopal Sardar v. Karuna Sardar,
Gopal Sardar v. Karuna Sardar,
(2004) 4 SCC 252 [
LNIND 2004 SC 294 ], p. 265 (para 13) :
Mr.Srikanth -
Page 47 of 86
AIR 2004 SC 3068 [

LNIND 2004 SC 294 ]. L.S. Synthetics Ltd. v. Fairgrowth Financial Services, L.S. Synthetics Ltd.
v. Fairgrowth Financial Services, L.S. Synthetics Ltd. v. Fairgrowth Financial Services,
AIR 2005 SC 1209 [
LNIND 2004 SC 897 ](paras 38, 39).
73 Ridsdale v. Clifton, Ridsdale v. Clifton, Ridsdale v. Clifton,

(1877) 36 LT 865 , p. 879 (PC); see further Kariapper v. Wijesinha, Kariapper v. Wijesinha,
Kariapper v. Wijesinha,
(1967) 3 All ER 485 , pp. 494, 495 (PC).
74 Mathraprasad & Sons v. State of Punjab, Mathraprasad & Sons v. State of Punjab,
Mathraprasad & Sons v. State of Punjab,
AIR 1962 SC 745 [
75 Kariapper v. Wijesinha, Kariapper v. Wijesinha, Kariapper v. Wijesinha,

(1967) 3 All ER 485 , pp. 494, 495 :
1968 AC 717 (PC); Standard Motors v. Kerala State, Standard Motors v. Kerala State,
Standard Motors v. Kerala State,
AIR 1969 SC 273 [
LNIND 1968 SC 179 ], p. 275 :
(1969) 1 SCR 464 [
LNIND 1968 SC 179 ].
76
Article 143 of Constitution of India and Delhi Laws Act, etc., In the matter of,
AIR 1951 SC 332 [
LNIND 1951 SC 40 ]; Rajnarayan v. Chairman, Patna Municipality, Rajnarayan v. Chairman,
Patna Municipality, Rajnarayan v. Chairman, Patna Municipality,
AIR 1954 SC 569 [
LNIND 1954 SC 102 ]:
(1955) 1 SCR 290 [
LNIND 1954 SC 102 ] (A power to modify in essential features any existing or future law cannot
be delegated).
But see Harishanker v. State of M.P., Harishanker v. State of M.P., Harishanker
v. State of M.P.,
AIR 1954 SC 465 [
LNIND 1954 SC 93 ]:
(1955) 1 SCR 380 [
LNIND 1954 SC 93 ] (when a law is merely overriden for certain purposes it is not a case of
repeal and such a power can be delegated).
77 B.K. Industries v. Union of India, B.K. Industries v. Union of India, B.K. Industries
v. Union of India,
AIR 1993 SC 2123 [
LNIND 1993 SC 365 ]:
1993 (2) JT 709 : 1993 Supp (3) SCC 621.
78 Thobwon v. Sunderland City Council, Thobwon v. Sunderland City Council,

Thobwon v. Sunderland City Council,
(2002) 4 All ER 156 , pp. 184, 185 (Laws LJ) (QBD).
79 See pp. 268-269, supra.
Mr.Srikanth -
Page 48 of 86
80 R v., Longmead, R v., Longmead, R v., Longmead, (1795) 2 Leach 694 : 168 ER 448
(“The Legislature when they intend to pass, to continue, or to repeal a law are not bound to use any precise form of words.”)
81 See HALSBURY'S Laws of England, 4th Edition Vol. 44, p. 604 (f.n. 4). In Rayala Corporation v.
Director of Enforcement, Rayala Corporation v. Director of Enforcement, Rayala Corporation v. Director of
Enforcement,
AIR 1970 SC 494 [
LNIND 1969 SC 219 ], p. 503 (para 15) :
(1969) 2 SCC 412 [
LNIND 1969 SC 219 ], which was followed in Kolhapur Canesugar Works Ltd. v. Union of
India, Kolhapur Canesugar Works Ltd. v. Union of India, Kolhapur Canesugar Works Ltd. v. Union of India,
AIR 2000 SC 811 [
LNIND 2000 SC 203 ], pp. 819, 820 :
(2000) 2 SCC 536 [
LNIND 2000 SC 203 ], and Shiv Shakti Co-op. Housing Society Nagpur v. Swaraj Developers,
Shiv Shakti Co-op. Housing Society Nagpur v. Swaraj Developers, Shiv Shakti Co-op. Housing Society Nagpur v.
Swaraj Developers,
AIR 2003 SC 2434 [
LNIND 2003 SC 454 ], p. 2443 :
(2003) 6 SCC 659 [
LNIND 2003 SC 454 ]; there are observations that omission of a provision is different from
repeal. It is submitted that this view is not correct and needs reconsideration on this point. See further, p. 658.
82 For example see sections 6(a), 13, 22(a), 52, 71, 72, 77 of the
Finance Act, 1999 and
section 6A of the General Clauses Act, 1897 .
83 Bhagat Ram Sharma v. Union of India, Bhagat Ram Sharma v. Union of India,
Bhagat Ram Sharma v. Union of India,
AIR 1988 SC 740 [
LNIND 1987 SC 761 ], p. 746 : (1988) Supp SCC 30.
84 Ibid.See further Attorney General (WA) v. Margret, Attorney General (WA) v. Margret,
Attorney General (WA) v. Margret, (2003) 78 ALJR 105, p. 113 (“The central meaning of ‘amend’ is to alter the legal meaning of
an Act or provision, short of entirely rescinding it, and the central meaning of ‘repeal’ is to rescind the Act or provision in question.
The cases, however, reveal that the words can be used in ways in which there appears to be overlapping in their meanings. Thus, if
a section is deleted it can be said that it has been repealed whilst the statute itself has been amended.” In this case the procedure
prescribed for amending an Act was held to apply also for its repeal).
85 CIT v. Venkateshwara Hatcheries, CIT v. Venkateshwara Hatcheries, CIT v.

Venkateshwara Hatcheries,
AIR 1999 SC 1225 [
LNIND 1999 SC 299 ], p. 1229 :
1999 (3) SCC 632 [
LNIND 1999 SC 299 ].
86 State of West Bengal v. Pronob Kr. Sur, State of West Bengal v. Pronob Kr. Sur,
State of West Bengal v. Pronob Kr. Sur,
AIR 2003 SC 2313 [
LNIND 2003 SC 400 ], p. 2319 :
(2003) 9 SCC 490 [
LNIND 2003 SC 400 ].
87 State of Rajasthan v. Mangilal Pindwal, State of Rajasthan v. Mangilal

Pindwal,
State of Rajasthan v. Mangilal Pindwal,
AIR 1996 SC 2181 , p. 2183 :
1996 (5) SCC 60 . See further West U.P. Sugar Mills Association v. State of U.P., West U.P.
Mr.Srikanth -
Page 49 of 86
Sugar Mills Association v. State of U.P., West U.P. Sugar Mills Association v. State of U.P.,
AIR 2002 SC 948 [
LNIND 2002 SC 106 ], p. 949 :
(2002) 2 SCC 645 [
LNIND 2002 SC 106 ]; Zile Singh v. State of Haryana, Zile Singh v. State of Haryana,
Zile Singh v. State of Haryana,
(2004) 8 SCC 1 [
LNIND 2004 SC 1050 ],p. 12 :
AIR 2004 SC 5100 [
LNIND 2004 SC 1050 ], p. 5106 (9th Edn., p. 565 of this book is referred); Government of India
v. India Tobacco Association, Government of India v. India Tobacco Association, Government of India v. India
Tobacco Association,
(2005) 7 SCC 396 [
LNIND 2005 SC 630 ] (para 25), p. 402 (9th edition, p. 565 of this book is referred.)
88 Indian Express Newspapers v. Union of India, Indian Express Newspapers v. Union of India,
Indian Express Newspapers v. Union of India,
(1985) 1 SCC 641 [
LNIND 1984 SC 337 ], pp. 708 to 710 :
AIR 1986 SC 515 [
LNIND 1984 SC 337 ]. In this case the court discussed its earlier cases and placed them in two
categories: (a) Where there was want of competence in enacting the new law; Koteshwar v. K. Rangappa Baliga & Co., Koteshwar
v. K. Rangappa Baliga & Co., Koteshwar v. K. Rangappa Baliga & Co.,
AIR 1969 SC 504 [
LNIND 1968 SC 378 ]:
(1969) 1 SCC 255 [
LNIND 1968 SC 378 ]; Mulchand v. Rajkot Municipality, Mulchand v. Rajkot Municipality,
Mulchand v. Rajkot Municipality,
AIR 1970 SC 685 [
LNIND 1969 SC 562 ]:
(1970) 3 SCC 884 ; Mohd. Shaukat Hussain Khan v. State of A.P., Mohd. Shaukat Hussain Khan
v. State of A.P., Mohd. Shaukat Hussain Khan v. State of A.P.,
AIR 1974 SC 1480 [
LNIND 1974 SC 178 ]:
(1974) 2 SCC 376 [
LNIND 1974 SC 178 ]; State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd.,
State of Maharashtra v. Central Provinces Manganese Ore Co. Ltd., State of Maharashtra v. Central Provinces
Manganese Ore Co. Ltd.,
AIR 1977 SC 879 [
LNIND 1976 SC 404 ]:
(1977) 1 SCC 643 [
LNIND 1976 SC 404 ]; (b) where the law was struck down on other grounds, B.N. Tiwari v.
Union of India, B.N. Tiwari v. Union of India, B.N. Tiwari v. Union of India,
AIR 1965 SC 1430 [
LNIND 1964 SC 348 ]:
(1965) 2 SCR 421 [
LNIND 1964 SC 348 ]; Firm Mehtab Majid & Co. v. State of Madras, Firm Mehtab Majid & Co.
v. State of Madras, Firm Mehtab Majid & Co. v. State of Madras,
AIR 1963 SC 928 [
LNIND 1962 SC 162 ]: 1963 Supp (2) SCR 435.
89
AIR 1979 SC 310 [
LNIND 1978 SC 337 ]:
1979 (1) SCC 202 [
LNIND 1978 SC 337 ].
1 Government of India v. India Tobacco Association, Government of India v. India Tobacco

Association, Government of India v. India Tobacco Association,
(2005) 7 SCC 396 [
LNIND 2005 SC 630 ] (para 25),p. 402, 403.
Mr.Srikanth -
Page 50 of 86
2 Ekambarappa v. EPTO, Ekambarappa v. EPTO, Ekambarappa v. EPTO,

AIR 1967 SC 1541 [
LNIND 1967 SC 175 ], p. 1543 :
1967 (3) SCR 864 [
LNIND 1967 SC 175 ].
3 Garnett v. Bradley, Garnett v. Bradley, Garnett v. Bradley,

(1878) 3 AC 944 , p. 965 :
(1874-80) All ER 648 (HL).
4 For example, see Nanakchandra v. Chandra Kishore, Nanakchandra v. Chandra Kishore,

Nanakchandra v. Chandra Kishore,
AIR 1970 SC 446 [
LNIND 1969 SC 209 ], p. 448 :
(1969) 3 SCC 802 [
LNIND 1969 SC 209 ] .The question in this case was whether
section 488 of the Code of Criminal Procedure , 1898, which provides for maintenance to children was inconsistent
with
section 20 of the Hindu Adoptions and Maintenance Act, 1956 , and was repealed in its application to Hindus by
section 4 of the Act.
5 Palani Ammal v. Viswanath Chettian, Palani Ammal v. Viswanath Chettian, Palani

Ammal v. Viswanath Chettian,
AIR 1998 SC 1309 [
LNIND 1998 SC 1131 ], p. 1320 :
1998 (3) SCC 654 [
LNIND 1998 SC 1131 ].
6 Part B
States Laws Act (Act 3 of 1951), section 6; Part C
States Laws Act (now called Union Territories Laws Act) (Act 30 of 1950), section 4.
7 Abdul Kadir v. State of Kerala, Abdul Kadir v. State of Kerala, Abdul Kadir v. State
of Kerala,
AIR 1962 SC 922 [
LNIND 1962 SC 27 ], p. 925 : 1962 Supp (2) SCR 741; Custodian of Evacuee Property v. Abdul
Shakoor, Custodian of Evacuee Property v. Abdul Shakoor, Custodian of Evacuee Property v. Abdul Shakoor,
AIR 1961 SC 1087 [
LNIND 1961 SC 67 ]:
(1961) 3 SCC 855 [
LNIND 1961 SC 67 ]; Harish Chandra v. State of M.P., Harish Chandra v. State of M.P.,
Harish Chandra v. State of M.P.,
AIR 1965 SC 932 [
LNIND 1964 SC 236 ], p. 936 (para 12) :
(1965) 1 SCR 323 [
LNIND 1964 SC 236 ]. But see Kaushi Ram v. State, Kaushi Ram v. State,
Kaushi Ram v. State,
AIR 1966 SC 805 [
LNIND 1961 SC 256 ]:
(1962) 2 SCR 942 [
LNIND 1961 SC 256 ] (In this case it was held that a Rubkar of Patiala State imposing Royalty
on manufacture of bricks was not repealed by extension of the Central Excises and Salt Act, 1944, on the reasoning that in this Act
there is no negative provision exempting unscheduled articles from Excise Duty). For meaning of the Expression ‘corresponding
provision’, see Jagir Singh v. Ranbir Singh, Jagir Singh v. Ranbir Singh, Jagir Singh v. Ranbir Singh,
AIR 1979 SC 381 [
LNIND 1978 SC 323 ], p. 386 :
(1979) 1 SCC 560 [
LNIND 1978 SC 323 ]. For meaning of the word ‘correspond’ see Gilligan, IN RE. Gilligan, IN
RE. Gilligan, IN RE.
(2000) 1 All ER 113 , p. 122, 125 (HL).
Mr.Srikanth -
Page 51 of 86
8 Anant Prasad v. State of A.P., Anant Prasad v. State of A.P., Anant Prasad v. State
of A.P.,
AIR 1963 SC 853 [
LNIND 1962 SC 354 ], pp. 859, 860 : (1963) Supp (1) SCR 844; Indian & C.P. Works v. State of
A.P., Indian & C.P. Works v. State of A.P., Indian & C.P. Works v. State of A.P.,
AIR 1966 SC 713 [
LNIND 1965 SC 246 ]:
(1966) 2 SCR 110 [
LNIND 1965 SC 246 ].
9 Mary Roy v. State of Kerala, Mary Roy v. State of Kerala, Mary Roy v. State of
Kerala,
(1986) 2 SCC 209 [
LNIND 1986 SC 44 ], pp. 214, 215 :
AIR 1986 SC 1011 [
LNIND 1986 SC 44 ].
10 Hyderabad Chemical and Pharmaceutical Works Ltd. v. State of A.P., Hyderabad Chemical and
Pharmaceutical Works Ltd. v. State of A.P., Hyderabad Chemical and Pharmaceutical Works Ltd. v. State of A.P.,
AIR 1964 SC 1870 [
LNIND 1964 SC 92 ], pp. 1871, 1872 :
1964 (7) SCR 376 [
LNIND 1964 SC 92 ].
11 Municipal Council, Palai v. T.J. Joseph, Municipal Council, Palai v. T.J. Joseph,
Municipal Council, Palai v. T.J. Joseph,
AIR 1963 SC 1561 [
LNIND 1963 SC 43 ], p. 1564 :
1964 (2) SCR 87 [
LNIND 1963 SC 43 ]; Tansukhrai v. Nilratan Prasad, Tansukhrai v. Nilratan Prasad,
Tansukhrai v. Nilratan Prasad,
AIR 1966 SC 1780 [
LNIND 1964 SC 300 ], p. 1782 :
1965 (2) SCR 6 [
LNIND 1964 SC 300 ]; Northern India Caterers (P) Ltd. v. State of Punjab, Northern India
Caterers (P) Ltd. v. State of Punjab, Northern India Caterers (P) Ltd. v. State of Punjab,
AIR 1967 SC 1581 [
LNIND 1967 SC 408 ], p. 1585 :
1967 (3) SCR 399 [
LNIND 1967 SC 408 ]; Delhi Municipality v. Shivshanker, Delhi Municipality v. Shivshanker,
Delhi Municipality v. Shivshanker,
AIR 1971 SC 815 [
LNIND 1971 SC 95 ]:
(1971) 1 SCC 442 [
LNIND 1971 SC 95 ], p. 445; Ratanlal Adukia v. Union of India, Ratanlal Adukia v. Union of
India, Ratanlal Adukia v. Union of India,
AIR 1990 SC 104 [
LNIND 2003 SC 686 ], p. 110 :
1989 (3) SCC 537 [
LNIND 1989 SC 343 ]; R.S. Raghunath v. State of Karnataka, R.S. Raghunath v. State of
Karnataka, R.S. Raghunath v. State of Karnataka,
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 90 :
(1992) 1 SCC 335 [
LNIND 1991 SC 516 ]; Union of India v. Venkatesan, Union of India v. Venkatesan,
Union of India v. Venkatesan,
AIR 2002 SC 1890 [
LNIND 2002 SC 310 ], p. 1895 :
(2002) 5 SCC 285 [
LNIND 2002 SC 310 ]; State of M.P. v. Kedia Leather and Liquor Ltd., State of M.P. v. Kedia
Leather and Liquor Ltd., State of M.P. v. Kedia Leather and Liquor Ltd.,
Mr.Srikanth -
Page 52 of 86
(2003) 7 SCC 389 [

LNIND 2003 SC 686 ], pp. 394, 395 :
(2003) SCC (Cri) 1642 :
AIR 2003 SC 3236 [
LNIND 2003 SC 686 ]. A repeal by implication will not be inferred merely from something
contained in the preamble of the Act, Maganti v. State of A.P., Maganti v. State of A.P., Maganti v. State of A.P.,
AIR 1970 SC 403 [
LNIND 1969 SC 171 ], p. 405 :
(1969) 2 SCC 96 [
LNIND 1969 SC 171 ].

(1878) 3 AC 944 , p. 965 :
(1874-80) All ER 648 (HL), (LORD Blackburn); Headland v. Coster, Headland v. Coster,
Headland v. Coster,
(1905) 1 KB 219 , p. 226 (CA); Chance, Re, Chance, Re, Chance, Re,
(1936) Ch 266 , p. 268. For applicability of this maxim in other cases see p. 82, ante.
13 Unnoda Persaud Mookerjee v. Kristo Coomar Moitra, Unnoda Persaud Mookerjee v. Kristo Coomar
Moitra, Unnoda Persaud Mookerjee v. Kristo Coomar Moitra,
(1872) 19 WR 5 , p. 7 (PC) (The two Acts were passed within a space of three days).
14 Lybbe v. Hart, Lybbe v. Hart, Lybbe v. Hart,

(1883) 29 Ch D 8 , p. 15.
15 Municipal Council, v. T.J. Joseph, Municipal Council, v. T.J. Joseph, Municipal

Council, v. T.J. Joseph,
AIR 1963 SC 1561 [
LNIND 1963 SC 43 ], p. 1562 :
(1964) 2 SCR 87 [
LNIND 1963 SC 43 ]; Trust Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust, Trust
Mai Lachhmi Sialkoti Bradari v. Amritsar Improvement Trust, Trust Mai Lachhmi Sialkoti Bradari v. Amritsar
Improvement Trust,
AIR 1963 SC 976 [
LNIND 1962 SC 144 ], p. 979; Mathra Prasad and Sons v. State of Punjab, Mathra Prasad and
Sons v. State of Punjab, Mathra Prasad and Sons v. State of Punjab,
AIR 1962 SC 745 [
LNIND 1961 SC 378 ], p. 748 : 1962 Supp (1) SCR 913; Kutner v. Phillips, Kutner v. Phillips,
Kutner v. Phillips,
(1891) 2 QB 267 , pp. 271, 272; Flannagan v. Shaw, Flannagan v. Shaw,
Flannagan v. Shaw,
(1920) 3 KB 96 , p. 105 (CA); Wallwork v. Fielding, Wallwork v. Fielding,
Wallwork v. Fielding,
(1922) 2 KB 66 , p. 94 (CA); R. v. National Arbitration Tribunal, Ex parte, (Bolton)
Corporation, R. v. National Arbitration Tribunal, Ex parte, (Bolton) Corporation, R. v. National Arbitration
Tribunal, Ex parte, (Bolton) Corporation,
(1941) 2 KB 405 , p. 415 (CA); Woodent v. IRC, Woodent v. IRC, Woodent v.
IRC,
(1970) 2 All ER 801 , p. 807 (PC); Suntharalingam v. Inspector of Police, Suntharalingam v.
Inspector of Police, Suntharalingam v. Inspector of Police,
(1971) 3 WLR 896 , p. 901 (PC). See further Delhi Municipality v. Shivshanker, Delhi
Municipality v. Shivshanker, Delhi Municipality v. Shivshanker,
AIR 1971 SC 815 [
LNIND 1971 SC 95 ]:
(1971) 1 SCC 442 [
LNIND 1971 SC 95 ],p. 446; Basti Sugar Mills v. State of U.P., Basti Sugar Mills v. State of
U.P., Basti Sugar Mills v. State of U.P.,
AIR 1979 SC 262 [
LNIND 1978 SC 232 ], p. 269 :
(1979) 2 SCC 88 [
LNIND 1978 SC 232 ]; M. Karunanidhi v. Union of India, M. Karunanidhi v. Union of India,
Mr.Srikanth -
Page 53 of 86
M. Karunanidhi v. Union of India,

AIR 1979 SC 898 [
LNIND 1979 SC 135 ], pp. 909, 910 :
(1979) 3 SCC 431 [
LNIND 1979 SC 135 ]; Dharangdhara Chemical Works v. Dharangdhara Municipality,
Dharangdhara Chemical Works v. Dharangdhara Municipality, Dharangdhara Chemical Works v. Dharangdhara
Municipality,
(1985) 4 SCC 92 [
LNIND 1985 SC 273 ], pp. 98, 99 :
AIR 1985 SC 1729 [
LNIND 1985 SC 273 ]; Yogendra Pal Singh v. Union of India, Yogendra Pal Singh v. Union of
India, Yogendra Pal Singh v. Union of India,
(1987) 1 SCC 624 [
LNIND 1987 SC 69 ], p. 641:
AIR 1987 SC 1015 [
LNIND 1987 SC 92 ]; Ratanlal Adukia v. Union of India, Ratanlal Adukia v. Union of India,
Ratanlal Adukia v. Union of India,
AIR 1990 SC 104 [
LNIND 2003 SC 686 ], p. 110 :
1989 (3) SCC 537 [
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 90 :
(1992) 1 SCC 335 [
LNIND 1991 SC 516 ]; A.K. Sabhapathy (Dr.) v. State of Kerala, A.K. Sabhapathy (Dr.) v. State
of Kerala, A.K. Sabhapathy (Dr.) v. State of Kerala,
AIR 1992 SC 1310 [
LNIND 1992 SC 338 ], pp. 1313, 1314 : 1992 Supp (3) SCC 147; Cantonment Board, Mhow v.
M.P. State Road Transport Corporation, Cantonment Board, Mhow v. M.P. State Road Transport Corporation,
Cantonment Board, Mhow v. M.P. State Road Transport Corporation,
AIR 1997 SC 2013 [
LNIND 1997 SC 676 ], p. 2019 :
1997 (4) JT 561 :
(1997) 1 SCC 450 .
16 A.G. v. Moore, A.G. v. Moore, A.G. v. Moore,

(1878) 3 Ex D 276 , p. 281 (BRETT, L.J.); Ratanlal Adukia v. Union of India, Ratanlal Adukia v.
Union of India, Ratanlal Adukia v. Union of India, supra; R.S. Raghunath v. State of Karnataka, R.S. Raghunath v.
State of Karnataka, R.S. Raghunath v. State of Karnataka, supra.
17 Delhi Municipality v. Shivshanker, Delhi Municipality v. Shivshanker, Delhi

Municipality v. Shivshanker,
AIR 1971 SC 815 [
LNIND 1971 SC 95 ]:
(1971) 1 SCC 442 [
LNIND 1971 SC 95 ].
18 Ibid, p. 451 of (1971)1 SCC. Similarly it has been held that

s. 33(1)(j) of the Monopolies and Restrictive Trade Practices Act, 1969 has not been affected by section 9A of the
Customs Tariff Act, 1975 and the Anti Dumping Rules made thereunder for the two operate in different and distinct spheres and the
question of implied repeal does not arise: Haridas Exports v. All India Float Glass Mfrs. Association, Haridas Exports v. All India
Float Glass Mfrs. Association, Haridas Exports v. All India Float Glass Mfrs. Association,
AIR 2002 SC 2728 [
LNIND 2002 SC 444 ], p. 2743 :
(2002) 6 SCC 600 [
LNIND 2002 SC 444 ].
AIR 1963 SC 1561 [
Mr.Srikanth -
Page 54 of 86
LNIND 1963 SC 43 ], p. 1565 :

(1964) 2 SCR 87 [
LNIND 1963 SC 43 ]. See further Tansukh Rai v. Nilratan Prasad Sahu, Tansukh Rai v.
Nilratan Prasad Sahu, Tansukh Rai v. Nilratan Prasad Sahu,
AIR 1966 SC 1780 [
LNIND 1964 SC 300 ], p. 1781 :
(1965) 2 SCR 6 [
LNIND 1964 SC 300 ]. Cf. Harish Chandra v. State of M.P., Harish Chandra v. State of M.P.,
AIR 1965 SC 932 [
LNIND 1964 SC 236 ], p. 937 (para 14) :
(1965) 1 SCR 323 [
LNIND 1964 SC 236 ]. If the two laws ‘operate in the same field’ without collision they cannot
be said to ‘occupy the same field’ and there will be no inconsistency and no implied repeal unless the later law intends to be an
exhaustive code. Further, it is the point of time of making the law and not its commencement in deciding which is the prior law and
which the later law for purposes of
Article 254 of the Constitution , Rishikesh (Pt.) v. Salma Begum, Rishikesh (Pt.) v. Salma Begum,
Rishikesh (Pt.) v. Salma Begum,
1995 (3) Scale 354 : 1995 AIR SCW 2476 :
1995(4) SCC 718 : 1995 All LJ 1336 ; Dodha Rangarao v. Rambhupal Prasad, Dodha
Rangarao v. Rambhupal Prasad, Dodha Rangarao v. Rambhupal Prasad,
(2004) 7 SCC 63 , p. 93 (para 42). When conditions of any particular service, e.g., fire services
are regulated by a law made by the Legislature under Article 309, rules made by the Governor under the proviso to that article
cannot operate in the field occupied by the legislative enactment and the rules made thereunder: A.B. Krishna v. State of Karnataka,
A.B. Krishna v. State of Karnataka, A.B. Krishna v. State of Karnataka,
JT 1998 (1) SC 613 [
LNIND 1998 SC 51 ], p. 617 :
AIR 1998 SC 1050 [
LNIND 1998 SC 51 ]:
1998 (3) SCC 495 [
LNIND 1998 SC 51 ].
AIR 1963 SC 1561 [
LNIND 1963 SC 43 ], p. 1564 :
(1964) 2 SCR 87 [
LNIND 1963 SC 43 ]; Delhi Municipality v. Shivshanker, Delhi Municipality v. Shivshanker,
AIR 1971 SC 815 [
LNIND 1971 SC 95 ]:
(1971) 1 SCC 442 [
LNIND 1971 SC 95 ], p. 446.
21 Ratan Lal Adukia v. Union of India, Ratan Lal Adukia v. Union of India, Ratan Lal
Adukia v. Union of India,
AIR 1990 SC 104 [
LNIND 2003 SC 686 ], p. 110 :
1989 (3) SCC 537 [
LNIND 1989 SC 343 ].
22
(2003) 7 SCC 389 [
LNIND 2003 SC 686 ], pp. 394, 395 :
AIR 2003 SC 3236 [
LNIND 2003 SC 686 ], pp. 3239, 3240
23
AIR 2004 SC 1006 [
LNIND 2003 SC 928 ], p. 1008 :
(2003) 8 JT 399 .
Mr.Srikanth -
Page 55 of 86
24 Union of India v. C. Dinakar, Union of India v. C. Dinakar, Union of India v. C.

Dinakar,
(2004) 6 SCC 118 [
LNIND 2004 SC 522 ], p. 125 (para 14) :
AIR 2004 SC 2498 [
LNIND 2004 SC 522 ].
25 (2002) 76 ALJR 808, p. 814.
26
(1991) 172 CLR 1 , p. 17.
27 (2002) 76 ALJR 808, p. 814.
28
(1961) 106 CLR 268 .
29 (2002) 76 ALJR 808, p. 814.
30 Syndicate Bank v. Prabha D. Naik, Syndicate Bank v. Prabha D. Naik, Syndicate

Bank v. Prabha D. Naik,
AIR 2001 SC 1968 [
LNIND 2001 SC 803 ], pp. 1973 to 1975 :
(2001) 4 SCC 713 [
LNIND 2001 SC 803 ].
31 Dobbs v. Grand Junction Waterworks Co., Dobbs v. Grand Junction Waterworks Co.,
Dobbs v. Grand Junction Waterworks Co.,
(1883) 9 AC 49 , p. 58 (HL) (LORD BLACKBURN).
32 Summers v. Holborn District Board of Works, Summers v. Holborn District Board of Works,
Summers v. Holborn District Board of Works,
(1893) 1 QB 612 , p. 617 (LORD COLERIDGE, C.J.).
33 State of Orissa v. M.A. Tulloch & Co., State of Orissa v. M.A. Tulloch & Co., State
of Orissa v. M.A. Tulloch & Co.,
AIR 1964 SC 1284 [
LNIND 1963 SC 191 ], p. 1294:
1964 (4) SCR 461 [
LNIND 1963 SC 191 ].
34 Unnoda Persaud Mookerjee v. Kristocoomar Moitra, Unnoda Persaud Mookerjee v. Kristocoomar

Moitra, Unnoda Persaud Mookerjee v. Kristocoomar Moitra,
(1872) 19 WR 5 , p. 7 (PC) Barker v. Edgar, Barker v. Edgar, Barker v. Edgar,
(1898) AC 748 , p. 754 (PC); Nicolle v. Nicolle, Nicolle v. Nicolle, Nicolle v.
Nicolle,
(1922) 1 AC 284 ,p. 290: 126 LT 777 (PC); Montreal Corporation v. Montreal Industrial Land
Co., Montreal Corporation v. Montreal Industrial Land Co., Montreal Corporation v. Montreal Industrial Land
Co.,
AIR 1932 PC 252 , p. 254; Municipal Council, Palai v. T.J. Joseph, Municipal Council, Palai v.
T.J. Joseph, Municipal Council, Palai v. T.J. Joseph,
Mr.Srikanth -
Page 56 of 86
AIR 1963 SC 1561 [

LNIND 1963 SC 43 ],p. 1565:
(1964) 2 SCR 87 [
LNIND 1963 SC 43 ]; Woodent v. IRC, Woodent v. IRC, Woodent v. IRC,
(1970) 2 All ER 801 , p. 807 (PC); Paradip Port Trust v. Their Workmen, Paradip Port Trust v.
Their Workmen, Paradip Port Trust v. Their Workmen,
AIR 1977 SC 36 [
LNIND 1976 SC 320 ], p. 44:
(1977) 2 SCC 337 ; U.P. State Electricity Board v. Harishanker, U.P. State Electricity Board v.
Harishanker, U.P. State Electricity Board v. Harishanker,
AIR 1979 SC 65 , p. 72:
(1978) 4 SCC 16 [
LNIND 1978 SC 209 ]; Ashoka Marketing Ltd. v. Punjab National Bank, Ashoka Marketing Ltd.
v. Punjab National Bank, Ashoka Marketing Ltd. v. Punjab National Bank,
AIR 1991 SC 855 [
LNIND 1990 SC 407 ], p. 877:
(1990) 4 SCC 406 ; R.S. Raghunath v. State of Karnataka, R.S. Raghunath v. State of Karnataka,
R.S. Raghunath v. State of Karnataka,
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], pp. 86, 87:
(1992)1 SCC 335 [
LNIND 1991 SC 516 ]; Cantonment Board, Mhow v. M.P. State Road Transport Corporation,
Cantonment Board, Mhow v. M.P. State Road Transport Corporation, Cantonment Board, Mhow v. M.P. State
Road Transport Corporation,
AIR 1997 SC 2013 [
LNIND 1997 SC 676 ], p. 2018:
1997 (4) JT 561 :
(1997) 9 SCC 450 [
LNIND 1997 SC 676 ]; Chandra Prakash Tiwari v. Shakuntala Shukla, Chandra Prakash Tiwari
v. Shakuntala Shukla, Chandra Prakash Tiwari v. Shakuntala Shukla,
AIR 2002 SC 2322 [
LNIND 2002 SC 396 ], pp. 2335-36:
(2002) 6 SCC 127 [
LNIND 2002 SC 396 ]. N.B.—The principle is based on the maxim— Generalia specialibus non
derogant.
35 Nicolle v. Nicolle, Nicolle v. Nicolle, Nicolle v. Nicolle,

(1922) 1 AC 284 , p. 290 (PC). See further Pratap Singh v. Man Mohan Dey, Pratap Singh
v. Man Mohan Dey, Pratap Singh v. Man Mohan Dey,
AIR 1966 SC 1931 [
LNIND 1966 SC 66 ], p. 1934:
(1966) 3 SCR 663 [
LNIND 1966 SC 66 ]; Krishna District Co-operative Marketing Society Ltd. v. N.V.
Purnachandra Rao, Krishna District Co-operative Marketing Society Ltd. v. N.V. Purnachandra Rao, Krishna
District Co-operative Marketing Society Ltd. v. N.V. Purnachandra Rao,
(1987) 4 SCC 99 [
LNIND 1987 SC 536 ], p. 110:
AIR 1987 SC 1960 [
LNIND 1987 SC 536 ]; A.B. Krishna v. State of Karnataka, A.B. Krishna v. State of Karnataka,
A.B. Krishna v. State of Karnataka,
JT 1998 (1) SC 613 [
LNIND 1998 SC 51 ], p. 617:
AIR 1998 SC 1050 [
LNIND 1998 SC 51 ], p. 1053:
(1998) 3 SCC 495 [
LNIND 1998 SC 51 ]; Chandra Prakash Tiwari v. Shakuntala Shukla, Chandra Prakash Tiwari
v. Shakuntala Shukla, Chandra Prakash Tiwari v. Shakuntala Shukla,
AIR 2002 SC 2322 [
LNIND 2002 SC 396 ], p. 2328 :
(2002) 6 SCC 127 [
LNIND 2002 SC 396 ].
Mr.Srikanth -
Page 57 of 86
AIR 1963 SC 1561 [

LNIND 1963 SC 43 ], p. 1565 :
1964 (2) SCR 87 [
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], pp. 86, 87 :
1992 (1) SCC 335 [
LNIND 1991 SC 516 ].
37 Justiniano Augusto De Piedade Barrets v. Antonio Vincente Da Fonseca, Justiniano Augusto De

Piedade Barrets v. Antonio Vincente Da Fonseca, Justiniano Augusto De Piedade Barrets v. Antonio Vincente Da
Fonseca,
AIR 1979 SC 984 [
LNIND 1979 SC 181 ], pp. 988, 989 :
(1979) 3 SCC 47 [
LNIND 1979 SC 181 ]; Kaushalya Rani v. Gopal Singh, Kaushalya Rani v. Gopal Singh,
Kaushalya Rani v. Gopal Singh,
AIR 1964 SC 260 [
LNIND 1963 SC 350 ], pp. 262, 263 :
1964 (4) SCR 982 [
LNIND 1963 SC 350 ].
38 Life Insurance Corporation v. D.J. Bahadur, Life Insurance Corporation v. D.J. Bahadur,
Life Insurance Corporation v. D.J. Bahadur,
AIR 1980 SC 2181 [
LNIND 1980 SC 442 ], p. 2200 :
1981 (1) SCC 315 [
LNIND 1980 SC 442 ]; Ashoka Marketing Ltd. v. Punjab National Bank, Ashoka Marketing Ltd.
v. Punjab National Bank, Ashoka Marketing Ltd. v. Punjab National Bank,
AIR 1991 SC 855 [
LNIND 1990 SC 407 ], p. 877 :
(1991) 4 SCC 406 [
LNIND 1991 SC 446 ]; Allahabad Bank v. Canara Bank, Allahabad Bank v. Canara Bank,
Allahabad Bank v. Canara Bank,
JT 2000 (4) SC 411 [
LNIND 2000 SC 2274 ], p. 434 :
AIR 2000 SC 1535 [
LNIND 2000 SC 2274 ], p. 1548 :
(2000) 4 SCC 406 [
LNIND 2000 SC 2274 ].
39 Rohtas v. State of Haryana, Rohtas v. State of Haryana, Rohtas v. State of Haryana,

AIR 1979 SC 1839 [
LNIND 1979 SC 310 ]:
(1979) 4 SCC 229 [
LNIND 1979 SC 310 ].
40 See text and notes 46 to 49, pp. 647, 648.
AIR 1963 SC 1561 [
LNIND 1963 SC 43 ], pp. 1565, 1566 :
1964 (2) SCR 87 [
LNIND 1963 SC 43 ] .For another example, see Union of India v. India Fisheries (Pvt.) Ltd., see
Union of India v. India Fisheries (Pvt.) Ltd., see Union of India v. India Fisheries (Pvt.) Ltd.,
AIR 1966 SC 35 [
LNIND 1965 SC 460 ]:
(1965) 3 SCR 697 . This case dealt with
Mr.Srikanth -
Page 58 of 86
sections 228 and

229 of the
Companies Act , 1913 and
section 49E of the Income-tax Act, 1922 . It was held that the provisions of the
Companies Act were special provisions.
42 Pratap Singh v. Man Mohan Dey, Pratap Singh v. Man Mohan Dey, Pratap Singh v.
Man Mohan Dey,
AIR 1966 SC 1931 [
LNIND 1966 SC 66 ]:
(1966) 3 SCR 663 [
LNIND 1966 SC 66 ].
43 Paradip Port Trust v. Their Workmen, Paradip Port Trust v. Their Workmen,
Paradip Port Trust v. Their Workmen,
AIR 1977 SC 36 [
LNIND 1976 SC 320 ], p. 44 :
(1977) 2 SCC 337 .
44 U.P. State Electricity Board v. Hari Shankar, U.P. State Electricity Board v. Hari Shankar,
U.P. State Electricity Board v. Hari Shankar,
AIR 1979 SC 65 : (1978) 4 SCC 16.
45 Life Insurance Corporation v. D.T. Bahadur, Life Insurance Corporation v. D.T. Bahadur,
Life Insurance Corporation v. D.T. Bahadur,
AIR 1980 SC 2181 [
LNIND 1980 SC 442 ], pp. 2202, 2203 :
(1981) 1 SCC 315 [
LNIND 1980 SC 442 ].
46 Dalmia Dadri Cement Co. Ltd. v. CIT, Dalmia Dadri Cement Co. Ltd. v. CIT,
Dalmia Dadri Cement Co. Ltd. v. CIT,
AIR 1958 SC 816 [
LNIND 1958 SC 65 ], p. 822 :
1959 SCR 729 [
LNIND 1958 SC 65 ]; Umaid Mills v. State of Rajasthan, Umaid Mills v. State of Rajasthan,
Umaid Mills v. State of Rajasthan,
AIR 1963 SC 953 [
47 Ajay Kumar Bannerjee v. Union of India, Ajay Kumar Bannerjee v. Union of India,
Ajay Kumar Bannerjee v. Union of India,
(1984) 3 SCC 126 , pp. 153, 154 :
AIR 1984 SC 1130 [
LNIND 1984 SC 88 ]; S. Prakash v. K.M. Kurian, S. Prakash v. K.M. Kurian, S.
Prakash v. K.M. Kurian,
AIR 1999 SC 2094 [
LNIND 1999 SC 550 ], pp. 2097 to 2099 :
(1999) 5 SCC 624 [
LNIND 1999 SC 550 ].
48 R.S. Raghunath v. State of Karnataka, R.S. Raghunath v. State of Karnataka, R.S.

Raghunath v. State of Karnataka,
AIR 1992 SC 81 [
LNIND 1991 SC 516 ], p. 89 :
(1992) 1 SCC 335 [
LNIND 1991 SC 516 ].
Mr.Srikanth -
Page 59 of 86
49 S. Prakash v. K.M. Kurian, S. Prakash v. K.M. Kurian, S. Prakash v. K.M. Kurian,

AIR 1999 SC 2094 [
LNIND 1999 SC 550 ], p. 2099 :
(1999) 5 SCC 624 [
LNIND 1999 SC 550 ].
50 For distinction between general Act and particular Act, see text and notes 35 to 38, p. 645.
51 Generalibus Specialia derogant.

For examples, see Damji v. LIC, Damji v. LIC, Damji v. LIC,
AIR 1966 SC 135 [
LNIND 1965 SC 120 ]:
(1965) 3 SCR 665 [
LNIND 1965 SC 120 ] [
Section 446 of the Companies Act (1 of 1956) is a general provision and
sections 15 and
41 of the
Life Insurance Corporation Act (31 of 1956) are special provisions, and therefore, on matters falling within the
latter, the Company Court has no jurisdiction even during the winding-up.] Punjab State Electricity Board v. Bassi Cold Storage,
Punjab State Electricity Board v. Bassi Cold Storage, Punjab State Electricity Board v. Bassi Cold Storage,
JT 1994(2) SC 682 , pp. 686, 687 :
AIR 1994 SC 2544 : 1994 Supp (2) SCC 124. [The general provisions of the
Arbitration Act , 1899 (now of 1940) are affected by section 52 of the Indian
Electricity Act , 1910, and only matters directed to be determined by arbitration between the consumer and the
licensee under the
Electricity Act can be referred for arbitration]. But operation of prior general law is not affected in respect of cases
not falling within the later particular law; for example, see Official Receiver v. Abdul Shakoor, Official Receiver v. Abdul Shakoor,
Official Receiver v. Abdul Shakoor,
AIR 1965 SC 920 [
LNIND 1964 SC 227 ], pp. 925, 926 :
(1965) 1 SCR 254 [
LNIND 1964 SC 227 ]; [Section 114, Illustration (c),
Evidence Act, 1872 and section 118, Negotiable Instrument Act, 1881].
52 Mirfin v. Attwood, Mirfin v. Attwood, Mirfin v. Attwood,

(1869) LR 4 QB 333 (LUSH & HAVES, JJ.); Heston & Isleworth Urban District Council v.
Grout, Heston & Isleworth Urban District Council v. Grout, Heston & Isleworth Urban District Council v. Grout,
(1897) 2 Ch 306 , p. 313 (CA) (LINDLEY, L.J.); Municipal Board, Bareilly v. Bharat Oil Co.,
Municipal Board, Bareilly v. Bharat Oil Co., Municipal Board, Bareilly v. Bharat Oil Co.,
AIR 1990 SC 548 [
LNIND 1989 SC 677 ]:
(1990) 1 SCC 311 [
LNIND 1989 SC 677 ].
53 Willaims, Re, Willaims, Re, Willaims, Re, Jones v. Williams, Jones

v. Williams, Jones v. Williams,
(1887) 36 Ch D 573 , p. 577 (NORTH, J.); Mirfin v. Attwood, Mirfin v. Attwood,
Mirfin v. Attwood, supra, p. 340 (HANNON, J.); Harishanker Bagla v. State of M.P., Harishanker Bagla v. State of M.P.,
Harishanker Bagla v. State of M.P.,
AIR 1954 SC 465 [
LNIND 1954 SC 93 ], p. 469 :
(1955) 1 SCR 380 [
LNIND 1954 SC 93 ].
Mr.Srikanth -
Page 60 of 86
54 Mount v. Taylor, Mount v. Taylor, Mount v. Taylor,

(1868) LR 3 CP 645; Mirfin v. Attwood, Mirfin v. Attwood, Mirfin v. Attwood,
supra, p. 340.
55 Heston & Isleworth Urban District Council v. Grout, Heston & Isleworth Urban District Council v.
Grout, Heston & Isleworth Urban District Council v. Grout,
(1897) 2 Ch 306 (CA).
56 Ibid, p. 313.
57 Ratan Lal Adukia v. Union of India, Ratan Lal Adukia v. Union of India, Ratan Lal
Adukia v. Union of India,
AIR 1990 SC 104 [
LNIND 2003 SC 686 ], pp. 108, 110, 111 :
1989 (3) SCC 537 [
LNIND 1989 SC 343 ].
59 Shriram Mandir Sansthan v. Vatsalabai, Shriram Mandir Sansthan v. Vatsalabai,

Shriram Mandir Sansthan v. Vatsalabai,
AIR 1999 SC 520 [
LNIND 1998 SC 1113 ], p. 524 :
(1999) 1 SCC 657 [
LNIND 1998 SC 1113 ] : (Special law providing its own code for inheritance of tenancies will
impliedly exclude the general law and tenancies not heritable under the special law will not be heritable under the general law).
60
AIR 1990 SC 548 [
LNIND 1989 SC 677 ]:
1990 (1) SCC 311 [
LNIND 1989 SC 677 ].
61 Gobind Sugar Mills Ltd. v. State of Bihar, Gobind Sugar Mills Ltd. v. State of Bihar,
Gobind Sugar Mills Ltd. v. State of Bihar,
AIR 1999 SC 3097 [
LNIND 1999 SC 707 ], p. 3100 :
(1999) 7 SCC 76 [
LNIND 1999 SC 707 ].
62 Belsund Sugar Co. Ltd. v. The State of Bihar, Belsund Sugar Co. Ltd. v. The State of Bihar,
Belsund Sugar Co. Ltd. v. The State of Bihar,
JT 1999 (5) SC 422 [
LNIND 1999 SC 663 ], pp. 450, 451 :
AIR 1999 SC 3125 [
LNIND 1999 SC 663 ], p. 3146 :
(1999) 9 SCC 620 [
LNIND 1999 SC 663 ].
63 Harishanker Bagla v. State of M.P., Harishanker Bagla v. State of M.P.,

Harishanker Bagla v. State of M.P.,
AIR 1954 SC 465 [
LNIND 1954 SC 93 ], p. 469 (para 12) :
1955 (1) SCR 380 [
LNIND 1954 SC 93 ].
Mr.Srikanth -
Page 61 of 86
64 Ibid, p. 469 (para 11).
65 Tansukh Rai v. Nilratan Prasad, Tansukh Rai v. Nilratan Prasad, Tansukh Rai v.
Nilratan Prasad,
AIR 1966 SC 1780 [
LNIND 1964 SC 300 ]:
1965 (2) SCR 6 [
LNIND 1964 SC 300 ].
66 Damji Valji Shah v. Life Insurance Corporation of India, Damji Valji Shah v. Life Insurance
Corporation of India, Damji Valji Shah v. Life Insurance Corporation of India,
AIR 1966 SC 135 [
LNIND 1965 SC 120 ]:
(1965) 3 SCR 665 [
LNIND 1965 SC 120 ].
67 Allahabad Bank v. Canara Bank, Allahabad Bank v. Canara Bank, Allahabad Bank
v. Canara Bank,
JT 2000 (4) SC 411 [
LNIND 2000 SC 2274 ]:
AIR 2000 SC 1535 [
LNIND 2000 SC 2274 ]:
(2000) 4 SCC 406 [
LNIND 2000 SC 2274 ].
68 Case in note 66, supra.
69 Case in note 67, supra. Followed in Unique Butyle Tube Industries P. Ltd. v. U.P. Financial Corporation, Unique
Butyle Tube Industries P. Ltd. v. U.P. Financial Corporation, Unique Butyle Tube Industries P. Ltd. v. U.P.
Financial Corporation,
(2003) 2 SCC 455 [
LNIND 2002 SC 857 ], pp. 460, 46 :
(2003) 113 Comp Cas 374 :
AIR 2003 SC 2103 [
LNIND 2002 SC 857 ].
70 pp. 361 to 364.
AIR 1963 SC 976 [
LNIND 1962 SC 144 ], p. 979 :
(1963) 1 SCR 242 [
LNIND 1962 SC 144 ].
72
(1615) 77 ER 1222 .
73 If the later Act is precise negative of whatever authority existed under an earlier Act, repeal shall be inferred;
Suntharalingam v. Inspector of Police, Suntharalingam v. Inspector of Police, Suntharalingam v. Inspector of
Police,
(1971) 3 WLR 896 , p. 901 (PC).
Mr.Srikanth -
Page 62 of 86

(1878) 3 AC 944 , p. 966 :
(1874-80) All ER 648 (HL) (Lord Blackburn).
75 Northern India Caterers (P) Ltd. v. State of Punjab, Northern India Caterers (P) Ltd. v. State of
Punjab, Northern India Caterers (P) Ltd. v. State of Punjab,
AIR 1967 SC 1581 [
LNIND 1967 SC 408 ], p. 1585 :
(1967) 3 SCR 399 [
LNIND 1967 SC 408 ].
AIR 1963 SC 976 [
LNIND 1962 SC 144 ], p. 979 :
(1963) 1 SCR 242 [
LNIND 1962 SC 144 ]. Compare— Harischandra v. State of M.P., Harischandra v. State of
M.P., Harischandra v. State of M.P.,
AIR 1965 SC 932 [
LNIND 1964 SC 236 ], p. 937 :
(1965) 1 SCR 82 [
LNIND 1964 SC 206 ], (two Control Orders achieving the same object but not identical in their
provisions held earlier Order stood repealed and replaced by the later Order).
77 Northern India Caterers (P) Ltd. v. State of Punjab, Northern India Caterers (P) Ltd. v. State of
Punjab, Northern India Caterers (P) Ltd. v. State of Punjab,
AIR 1967 SC 1581 [
LNIND 1967 SC 408 ], p. 1585 :
1967 (3) SCR 399 [
LNIND 1967 SC 408 ]. However, the view taken in this case was that the special procedure was
discriminatory and so the Act was void being in conflict with
Art. 14 of the Constitution . But this view has been later overruled in Maganlal Chhagganlal v. Municipal
Corporation of Greater Bombay, Maganlal Chhagganlal v. Municipal Corporation of Greater Bombay, Maganlal
Chhagganlal v. Municipal Corporation of Greater Bombay,
(1975) 1 SCR 1 [
LNIND 1974 SC 151 ] :
AIR 1974 SC 2009 [
LNIND 1974 SC 151 ].
78 See text and note 41, p. 641. See further (1984) (Supp) SCC 28, p. 57 :
AIR 1987 SC 1837 .
79 Adoni Cotton Mills Ltd. v. Andhra Pradesh Electricity Board, Adoni Cotton Mills Ltd. v. Andhra
Pradesh Electricity Board, Adoni Cotton Mills Ltd. v. Andhra Pradesh Electricity Board,
AIR 1976 SC 2414 [
LNIND 1976 SC 255 ], p. 2421 :
(1976) 4 SCC 68 [
LNIND 1976 SC 255 ].
80 Ramchandra Mawalal v. State of U.P., Ramchandra Mawalal v. State of U.P.,

Ramchandra Mawalal v. State of U.P., (1984) (Supp) SCC 28 :
AIR 1987 SC 1837 .
81 Ibid, pp. 57, 59, 61.
Mr.Srikanth -
Page 63 of 86
82 Dharangdhara Chemical Works v. Dharangdhara Municipality, Dharangdhara Chemical Works v.

Dharangdhara Municipality, Dharangdhara Chemical Works v. Dharangdhara Municipality,
(1985) 4 SCC 92 [
LNIND 1985 SC 273 ], pp. 99, 100 :
AIR 1985 SC 1729 [
LNIND 1985 SC 273 ].
83 Mitchell v. Brown, Mitchell v. Brown, Mitchell v. Brown,

(1859) 120 ER 909 , p. 912; Smith v. Benabo, Smith v. Benabo, Smith v.
Benabo,
(1937) 1 All ER 523 , p. 526 :
(1937) 1 KB 518 ; Zaverbhai v. State of Bombay, Zaverbhai v. State of Bombay,
Zaverbhai v. State of Bombay,
AIR 1954 SC 752 [
LNIND 1954 SC 123 ]:
(1955) 1 SCR 799 [
LNIND 1954 SC 123 ]; T. Barai v. Henry Ah Hoe, T. Barai v. Henry Ah Hoe, T.
Barai v. Henry Ah Hoe,
AIR 1983 SC 150 [
LNIND 1982 SC 190 ], p. 158 :
(1983) 1 SCC 177 [
LNIND 1982 SC 190 ]. The same principle was applied to levy of tax at an enhanced rate by a
different authority under a later enactment; Dharangdhara Chemical Works v. Dharangdhara Municipality, Dharangdhara
Chemical Works v. Dharangdhara Municipality, Dharangdhara Chemical Works v. Dharangdhara Municipality,
(1985) 4 SCC 92 [
LNIND 1985 SC 273 ], pp. 99, 100 :
AIR 1985 SC 1729 [
LNIND 1985 SC 273 ].
84 R v. Youle, R v. Youle, R v. Youle,

(1861) 158 ER 311 , pp. 315, 316.
85 Om Prakash v. State of U.P., Om Prakash v. State of U.P., Om Prakash v. State of

U.P.,
AIR 1957 SC 458 [
LNIND 1957 SC 2 ]:
(1957) SCR 423 [
LNIND 1957 SC 2 ]; M. Karunanidhi v. Union of India, M. Karunanidhi v. Union of India,
M. Karunanidhi v. Union of India,
AIR 1979 SC 898 [
LNIND 1979 SC 135 ], pp. 909, 910 :
(1979) 3 SCC 431 [
AIR 1983 SC 150 [
LNIND 1982 SC 190 ], p. 158 :
1983 (1) SCC 218 [
LNIND 1982 SC 199 ].
86 State of Madhya Pradesh v. Veereshwar Rao, State of Madhya Pradesh v. Veereshwar Rao,
State of Madhya Pradesh v. Veereshwar Rao,
AIR 1957 SC 592 [
LNIND 1957 SC 35 ]:
1957 SCR 868 ; State of Bombay v. S.L. Apte, State of Bombay v. S.L. Apte,
State of Bombay v. S.L. Apte,
AIR 1961 SC 578 [
LNIND 1960 SC 328 ]:
1961 (3) SCR 107 [
LNIND 1960 SC 328 ]; Bishambharnath v. State of U.P., Bishambharnath v. State of U.P.,
Bishambharnath v. State of U.P.,
AIR 1966 SC 573 [
Mr.Srikanth -
Page 64 of 86
LNIND 1965 SC 256 ], p. 578 :

(1966) 2 SCR 158 [
LNIND 1965 SC 256 ]; V.K. Agarwal v. Vasantraj Bhagwanji Bhatia, V.K. Agarwal v. Vasantraj
Bhagwanji Bhatia, V.K. Agarwal v. Vasantraj Bhagwanji Bhatia,
AIR 1988 SC 1106 [
LNIND 1988 SC 213 ], p. 1111 :
(1988) 3 SCC 467 [
LNIND 1988 SC 213 ]; State of Bihar v. Murad Ali Khan, State of Bihar v. Murad Ali Khan,
State of Bihar v. Murad Ali Khan,
AIR 1989 SC 1 , p. 8 :
1988 (4) SCC 655 [
LNIND 1988 SC 507 ]; A.A. Mulla v. State of Maharashtra, A.A. Mulla v. State of Maharashtra,
A.A. Mulla v. State of Maharashtra,
AIR 1997 SC 1441 , p. 1445 :
1996 (11) SCC 606 ; State of Rajasthan v. Hat Singh, State of Rajasthan v. Hat Singh,
State of Rajasthan v. Hat Singh,
(2003) 2 SCC 152 [
LNIND 2003 SC 7 ], pp. 158, 159 :
AIR 2003 SC 701 , pp. 704, 705.
87 See the observations in Delhi Municipality v. Shivshanker, Delhi Municipality v. Shivshanker,

AIR 1971 SC 815 [
LNIND 1971 SC 95 ], p. 822 :
(1971) 1 SCC 442 [
LNIND 1971 SC 95 ]. See also
section 403, Criminal Procedure Code , 1898 (now
section 300, Criminal Procedure Code, 1973 ) which bars the retrial of a person not only for the same offence but
also for any other offence based on the same facts; Thakurram v. State of Bihar, Thakurram v. State of Bihar,
Thakurram v. State of Bihar,
AIR 1966 SC 911 [
LNIND 1965 SC 336 ], p. 912 :
(1966) 2 SCR 740 [
LNIND 1965 SC 336 ]. But see V.K. Agarwal v. Vasantraj Bhagwanji Bhatia, V.K. Agarwal
v. Vasantraj Bhagwanji Bhatia, V.K. Agarwal v. Vasantraj Bhagwanji Bhatia, supra. In American law in the
context of double jeopardy guarantee, distinct statutory offences are treated as involving separate offences only if each provision
requires proof of an additional fact which the other does not and so where the same evidence suffices to prove both crimes, they are
the same for double jeopardy purposes: State of Bihar v. Murad Ali Khan, State of Bihar v. Murad Ali Khan, State
of Bihar v. Murad Ali Khan, supra, p. 7. In R v. J, R v. J, R v. J,
(2005) 1 All ER 1 (HL) the accused had sexual intercourse with a minor girl. He could be
prosecuted for this act for the offences of rape and indecent assault which prescribed the same sentence. He was not prosecuted for
rape and the period of limitation for prosecution expired. Thereafter, he was prosecuted for the offence of indecent assault as for
this offence there was no period of limitation. In quashing the conviction and sentence, the House of Lords held that on a true
construction the period of limitation prescribed by Parliament could not thus be circumvented.
88 Keshavan v. State of Bombay, Keshavan v. State of Bombay, Keshavan v. State of

Bombay,
AIR 1951 SC 128 [
LNIND 1951 SC 3 ], pp. 131, 132 :
1951 SCR 228 [
LNIND 1951 SC 3 ] (FAZAL ALI, J.), 134 (MAHAJAN, J.); State of Punjab v. Mohar Singh,
State of Punjab v. Mohar Singh, State of Punjab v. Mohar Singh,
AIR 1955 SC 84 [
LNIND 1954 SC 136 ], p. 87 (B.K. MUKHERJEA, J.) :
(1955) 1 SCR 893 [
LNIND 1954 SC 136 ]; Qudrat Ullah v. Bareilly Municipality, Qudrat Ullah v. Bareilly
Municipality, Qudrat Ullah v. Bareilly Municipality,
AIR 1974 SC 396 [
LNIND 1973 SC 374 ], p. 401 :
(1974) 1 SCC 202 [
LNIND 1973 SC 374 ]; State of Rajasthan v. Mangilal Pindwal, State of Rajasthan v. Mangilal
Pindwal, State of Rajasthan v. Mangilal Pindwal,
AIR 1996 SC 2181 , p. 2183 :
1996 (5) SCC 60 .
Mr.Srikanth -
Page 65 of 86

Bombay, supra; Mohan Raj v. Dimbeshwari Saikia, Mohan Raj v. Dimbeshwari Saikia, Mohan Raj v. Dimbeshwari
Saikia,
AIR 2007 SC 232 [
LNIND 2006 SC 945 ](para 23) :
(2007) 2 SLT 212 . This book, 10th edition p. 631 is referred.
1 Ameerun-Nissa-Begum v. Mehboob Begum, Ameerun-Nissa-Begum v. Mehboob Begum,

Ameerun-Nissa-Begum v. Mehboob Begum,
AIR 1955 SC 352 [
LNIND 1955 SC 173 ], p. 362.
2 See cases in footnote 88, supra. Section 38(2) of the Interpretation Act, 1899 is now section 16(1) of
the Interpretation Act, 1978.
3 Ibid.
4 State of Rajasthan v. Mangilal Pindwal, State of Rajasthan v. Mangilal Pindwal,

State of Rajasthan v. Mangilal Pindwal,
AIR 1996 SC 2181 , p. 2183 :
1996 (5) SCC 60 .
AIR 1964 SC 1284 [
LNIND 1963 SC 191 ], p. 1294 :
1964 (4) SCR 461 [
LNIND 1963 SC 191 ].
6 Ekambarappa v. EPTO, Ekambarappa v. EPTO, Ekambarappa v. EPTO,

AIR 1967 SC 1541 [
LNIND 1967 SC 175 ], p. 1543 :
1967 (3) SCR 864 [
LNIND 1967 SC 175 ].
7 Indira Sohanlal v. Custodian of EP, Indira Sohanlal v. Custodian of EP, Indira

Sohanlal v. Custodian of EP,
AIR 1956 SC 77 [
LNIND 1955 SC 85 ], p. 83 :
1955 (2) SCR 1117 [
LNIND 1955 SC 85 ]; State of Punjab v. Mohar Singh, State of Punjab v. Mohar Singh,
State of Punjab v. Mohar Singh,
AIR 1955 SC 84 [
LNIND 1954 SC 136 ], p. 88 :
(1955) 1 SCR 893 [
LNIND 1954 SC 136 ] (Unless the new legislation manifests a contrary intention); Bansidhar v.
State of Rajasthan, Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], p. 1618 :
1989 (2) SCC 557 [
LNIND 1989 SC 186 ]; Gajraj Singh v. State Transport Appellate Tribunal, Gajraj Singh v. State
Transport Appellate Tribunal, Gajraj Singh v. State Transport Appellate Tribunal,
(1997) 1 SCC 650 [
LNIND 1996 SC 1456 ] (para 24) :
AIR 1997 SC 412 [
LNIND 1996 SC 1456 ]; Southern Petrochemical Industries Co. Ltd v. Electricity Inspector and
Mr.Srikanth -
Page 66 of 86
E.T.I.O., Southern Petrochemical Industries Co. Ltd v. Electricity Inspector and E.T.I.O., Southern Petrochemical
Industries Co. Ltd v. Electricity Inspector and E.T.I.O.,
(2007) 5 SCC 447 [
LNIND 2007 SC 681 ] (para 88) :
AIR 2007 SC 1984 [
LNIND 2007 SC 681 ].
8 State of Punjab v. Mohar Singh, State of Punjab v. Mohar Singh, State of Punjab v.
Mohar Singh, supra, p. 87.
9 See title (2), “Effect of Expiry of Temporary Statutes”, text and note 12, p. 623.
10 Rayala Corporation v. Director of Enforcement, Rayala Corporation v. Director of Enforcement,

Rayala Corporation v. Director of Enforcement,
AIR 1970 SC 494 [
LNIND 1969 SC 219 ], p. 503 (para 15) :
(1969) 2 SCC 412 [
LNIND 1969 SC 219 ]; Kolhapur Cane Sugar Works Ltd. v. Union of India, Kolhapur Cane
Sugar Works Ltd. v. Union of India, Kolhapur Cane Sugar Works Ltd. v. Union of India,
AIR 2000 SC 811 [
LNIND 2000 SC 203 ], pp. 819, 820 :
(2000) 2 SCC 536 [
LNIND 2000 SC 203 ].
11 Cases in f.n. 10.
12 See further pp. 637, 638, ante.
13
AIR 2002 SC 3126 [
LNIND 2002 SC 543 ]:
(2002) 7 SCC 1 [
LNIND 2002 SC 543 ].
14 Article 395 repeals Indian Independence Act, 1947 and Government of India Act, 1935, but laws made thereunder are
continued under Art. 372.
15 Jugmender Das v. State, Jugmender Das v. State, Jugmender Das v. State,

AIR 1951 All 703 [
LNIND 1951 ALL 66 ], p. 708; affirmed in State v. Jugmender Das, State v. Jugmender Das,
State v. Jugmender Das,
AIR 1954 SC 683 [
LNIND 1954 SC 300 ], p. 686 :
1954 Crlj 1736 .
16 Ibid.
17 See
British Statutes (Application to India) Repeal Act, 1960 (Act LVII of 1960).
18 See pp. 657, 658, supra.
Mr.Srikanth -
Page 67 of 86

Bombay,
AIR 1951 SC 128 [
LNIND 1951 SC 3 ], p. 129 :
1951 SCR 228 [
LNIND 1951 SC 3 ].
AIR 1964 SC 1284 [
LNIND 1963 SC 191 ]:
(1964) 4 SCR 461 [
LNIND 1963 SC 191 ]; Deep Chand v. State of U.P., Deep Chand v. State of U.P.,
Deep Chand v. State of U.P.,
AIR 1959 SC 648 [
LNIND 1959 SC 3 ], pp. 668, 669; Kanthimathy Plantation Pvt. Ltd. v. State of Kerala,
Kanthimathy Plantation Pvt. Ltd. v. State of Kerala, Kanthimathy Plantation Pvt. Ltd. v. State of Kerala,
AIR 1990 SC 761 , p. 763 :
(1989) 4 SCC 650 [
LNIND 1989 SC 456 ]; K.S. Paripoornan v. State of Kerala, K.S. Paripoornan v. State of
Kerala, K.S. Paripoornan v. State of Kerala,
AIR 1992 SC 1488 , p. 1495 :
1992 (1) SCC 684 .
21 See Attorney General (QLD) v. Australian Industrial Relations Commission, Attorney General (QLD) v. Australian
Industrial Relations Commission, Attorney General (QLD) v. Australian Industrial Relations Commission, (2002)
76 ALJR 1502, 1514.
22 Cf. section 38(2) and section 11 of Interpretation Act, 1889 of U.K. now sections 15 and 16(1)(a) of the Interpretation
Act, 1978.
23 Ameer-un-Nissar Begum v. Mehboob Begum, Ameer-un-Nissar Begum v. Mehboob Begum,

Ameer-un-Nissar Begum v. Mehboob Begum,
AIR 1955 SC 352 [
LNIND 1955 SC 173 ], p. 362.
24 Coutes v. Diment, Coutes v. Diment, Coutes v. Diment,

(1951) 1 All ER 890 , pp. 895, 896.
25 CRAIES, Statutes Law, 7th Edition, page 355.
26 See text and note 88, p. 638, supra. See further Property Owners' Association v. State of Maharashtra, Property
Owners' Association v. State of Maharashtra, Property Owners' Association v. State of Maharashtra,
1996 (4) Scale 225 :
1996 (4) SCC 49 [
LNIND 1996 SC 886 ], where the question, whether Article 31C as it stood before
Constitution 42nd Amendment Act declared invalid in Minerva Mills and Waman Rao has revived, has been
referred to a
Constitution Bench. See further Property Owners' Association v. State of Maharashtra, Property Owners'
Association v. State of Maharashtra, Property Owners' Association v. State of Maharashtra,
AIR 2001 SC 1668 [
LNIND 2001 SC 2958 ]:
(2001) 4 SCC 455 [
LNIND 2001 SC 2958 ]. Where the matter has been referred to a bench of seven judges also on
the question of interpretation of Art. 39(b).
Mr.Srikanth -
Page 68 of 86
27 Gajraj Singh v. State Transport Appellate Tribunal, Gajraj Singh v. State Transport Appellate
Tribunal, Gajraj Singh v. State Transport Appellate Tribunal,
AIR 1997 SC 412 [
LNIND 1996 SC 1456 ], p. 421 :
(1997) 1 SCC 650 [
LNIND 1996 SC 1456 ] (The text in this book from 6th Edition, p. 413 is quoted); Gammon
India Ltd. v. Special Chief Secretary, Gammon India Ltd. v. Special Chief Secretary, Gammon India Ltd. v. Special
Chief Secretary,
(2006) 3 SCC 354 [
LNIND 2006 SC 103 ] (para 68) :
(2006) 2 JT 494 :
(2006) 2 SLT 317 (same passage from 10th edition p. 635 of this book is quoted).
28 Director of Public Works v. Ho Po Sang, Director of Public Works v. Ho Po Sang,

Director of Public Works v. Ho Po Sang,
(1961) 2 All ER 721 , p. 731 :
(1963) 3 WLR 39 (PC).

(1961) 2 All ER 721 , p. 732 :
(1963) 3 WLR 39 (PC), see Sonilal v. Kanhaiyalal, Sonilal v. Kanhaiyalal,
Sonilal v. Kanhaiyalal,
(1913) 19 IC 291 , p. 295 (PC); (An acknowledgment of liability which only extends limitation
is not a “thing done ” within the meaning of
section 6, General Clauses Act ). A saving clause that preserves the operation of a repealed Act for “things done or
omitted to be done ”, even in the absence of other savings as contained in
section 6 of the General Clauses Act , is liberally construed; Ram Parshad v. State of Punjab, Ram Parshad v. State
of Punjab, Ram Parshad v. State of Punjab,
AIR 1966 SC 1607 [
LNIND 1966 SC 43 ], p. 1610 :
(1966) 3 SCR 486 [
LNIND 1966 SC 111 ]. Such a saving clause has been interpreted to preserve the legal effects
and consequences of the things done though these effects and consequences project into post-repeal period; Universal Imports
Agency v. Chief Controller, Universal Imports Agency v. Chief Controller, Universal Imports Agency v. Chief
Controller,
AIR 1961 SC 41 [
LNIND 1960 SC 181 ]:
(1961) 1 SCR 305 [
LNIND 1960 SC 180 ]; Hasan Nurani v. Assistant Charity Commissioner, Hasan Nurani v.
Assistant Charity Commissioner, Hasan Nurani v. Assistant Charity Commissioner,
AIR 1967 SC 1742 [
LNIND 1966 SC 153 ]:
(1967) 1 SCR 110 [
LNIND 1966 SC 153 ]; Dharangdhara Chemical Works v. Dharangdhara Municipality,
Dharangdhara Chemical Works v. Dharangdhara Municipality, Dharangdhara Chemical Works v. Dharangdhara
Municipality,
(1985) 4 SCC 92 [
LNIND 1985 SC 273 ], p. 104 :
AIR 1985 SC 1729 [
LNIND 1985 SC 273 ]. So the saving clause permits prosecution of a person subsequent to repeal
for an offence committed during pre-repeal period; Wicks v. Director of Public Prosecutions, Wicks v. Director of Public
Prosecutions, Wicks v. Director of Public Prosecutions,
(1947) 1 All ER 205 (HL). It allows the continuity of regulations made under Article 357 even
after the expiry of the period mentioned in that Article; Ram Prashad v. State of Punjab, Ram Prashad v. State of Punjab,
Ram Prashad v. State of Punjab,
AIR 1966 SC 1607 [
LNIND 1966 SC 43 ]:
(1966) 3 SCR 486 [
LNIND 1966 SC 111 ]. But see M.S. Shivananda v. Karnataka State Road Transport
Corporation, M.S. Shivananda v. Karnataka State Road Transport Corporation, M.S. Shivananda v. Karnataka
State Road Transport Corporation,
Mr.Srikanth -
Page 69 of 86
AIR 1980 SC 77 [
LNIND 1979 SC 376 ], p. 81 :
(1980) 1 SCC 149 [
LNIND 1979 SC 376 ], where the expression ‘things done’ was narrowly construed as not to
include rights acquired. A saving clause preserving ‘liability incurred’ even in the absence of a specific saving preserving
‘punishment incurred’ will enable the punishment of the offender for a criminal offence; Kapurchand v. State of Bombay,
Kapurchand v. State of Bombay, Kapurchand v. State of Bombay,
AIR 1958 SC 993 , p. 995 :
1959 SCR 250 .
30 Rao Nihalkaran v. Ram Gopal, Rao Nihalkaran v. Ram Gopal, Rao Nihalkaran v.
Ram Gopal,
AIR 1966 SC 1485 [
LNIND 1966 SC 30 ], p. 1490 :
1966 (3) SCR 427 [
LNIND 1966 SC 30 ].
31 See Chapter 6, title 2(a)(ii), p. 494.
32 See Chapter 6, title 2(a)(iii), p. 498.
33 Natbar Parida v. State of Orissa, Natbar Parida v. State of Orissa, Natbar Parida v.
State of Orissa,
AIR 1975 SC 1465 [
LNIND 1975 SC 159 ], p. 1469 :
(1975) 2 SCC 220 [
LNIND 1975 SC 159 ].
Section 484(2)(a) of the Code of Criminal Procedure (1974) preserves the provisions of 1898 Code for pending
investigations and, therefore, an accused cannot claim his release under section 169 of the new Code in a pending investigation.
34 Free Lanka Insurance Co. v. Ranasinghe, Free Lanka Insurance Co. v. Ranasinghe,
Free Lanka Insurance Co. v. Ranasinghe,
(1964) 1 All ER 457 , p. 462 :
1964 AC 541 (PC); Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], p. 1621 :
1989 (2) SCC 557 [
LNIND 1989 SC 186 ].

(1961) 2 All ER 721 , p. 731 :
(1963) 3 WLR 39 (PC); Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
Bansidhar v. State of Rajasthan, supra; Gajraj Singh v. State Transport Appellate Tribunal, Gajraj Singh v. State Transport
Appellate Tribunal, Gajraj Singh v. State Transport Appellate Tribunal,
AIR 1997 SC 412 [
LNIND 1996 SC 1456 ], p. 426 :
(1997) 1 SCC 650 [
LNIND 1996 SC 1456 ].

(1961) 2 All ER 721 , p. 731 :
(1963) 3 WLR 39 (PC). Also referred to in Free Lanka Insurance Co. v. Ranasinghe, Free
Lanka Insurance Co. v. Ranasinghe, Free Lanka Insurance Co. v. Ranasinghe,
(1964) 1 All ER 457 , p. 462 :
Mr.Srikanth -
Page 70 of 86
1964 AC 541 (PC) [Interpretation of section 6(3). Ceylon Interpretation Ordinance, 1900]; Isha
Valimohamad v. Haji Gulam Mohamad, Isha Valimohamad v. Haji Gulam Mohamad, Isha Valimohamad v. Haji
Gulam Mohamad,
AIR 1974 SC 2061 [
LNIND 1974 SC 231 ], p. 2065 :
(1974) 2 SCC 484 [
LNIND 1974 SC 231 ]; M.S. Shivananda v. Karnataka State Road Transport Corporation, M.S.
Shivananda v. Karnataka State Road Transport Corporation, M.S. Shivananda v. Karnataka State Road Transport
Corporation,
AIR 1980 SC 77 [
LNIND 1979 SC 376 ], p. 81 :
(1980) 1 SCC 149 [
LNIND 1979 SC 376 ]; Kanaya Ram v. Rajender Kumar, Kanaya Ram v. Rajender Kumar,
Kanaya Ram v. Rajender Kumar,
(1985) 1 SCC 436 , p. 441 :
AIR 1985 SC 371 ; Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], p. 1623 :
(1989) 2 SCC 557 [
LNIND 1989 SC 186 ]; Vinod Gurudas Raikar v. National Insurance Co. Ltd., Vinod Gurudas
Raikar v. National Insurance Co. Ltd., Vinod Gurudas Raikar v. National Insurance Co. Ltd.,
AIR 1991 SC 2156 [
LNIND 1991 SC 435 ], p. 2159 :
(1991) 4 SCC 333 [
LNIND 1991 SC 435 ]; P.V. Mohammad Barmay Sons v. Director of Enforcement, P.V.
Mohammad Barmay Sons v. Director of Enforcement, P.V. Mohammad Barmay Sons v. Director of Enforcement,
AIR 1993 SC 1188 [
LNIND 1992 SC 537 ], p. 1192 :
(1992) 4 JT 565 [
LNIND 1992 SC 537 ]; Thyssen Stahlunion GMBH v. Steel Authority of India, Thyssen
Stahlunion GMBH v. Steel Authority of India, Thyssen Stahlunion GMBH v. Steel Authority of India,
JT 1999 (8) 66 , pp. 98, 108:
AIR 1999 SC 3923 [
LNIND 1999 SC 906 ], p. 3942; Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., Ambalal
Sarabhai Enterprises Ltd. v. Amrit Lal & Co., Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.,
AIR 2001 SC 3580 [
LNIND 2001 SC 1829 ], p. 3589 :
(2001) 8 SCC 397 [
LNIND 2001 SC 1829 ].
37 Abbot v. Minister of Land, Abbot v. Minister of Land, Abbot v. Minister of Land,

(1895) AC 425 , 431: 72 LT 113 (PC).

(1961) 2 All ER 721 , pp. 732, 733 (PC).
39 Sakharam v. Manikchand, Sakharam v. Manikchand, Sakharam v. Manikchand,

AIR 1963 SC 354 [
LNIND 1961 SC 186 ], pp. 356, 357. See further Hungerford Investment Trust v. Haridas
Mundhra, Hungerford Investment Trust v. Haridas Mundhra, Hungerford Investment Trust v. Haridas Mundhra,
AIR 1972 SC 1826 [
LNIND 1972 SC 147 ], p. 1832 :
(1972) 3 SCC 684 [
LNIND 1972 SC 147 ]; Lalji Raja & Sons v. Hansraj Nathuram, Lalji Raja & Sons v. Hansraj
Nathuram, Lalji Raja & Sons v. Hansraj Nathuram,
AIR 1971 SC 974 [
LNIND 1971 SC 141 ], p. 979 :
(1971) 1 SCC 721 [
LNIND 1971 SC 141 ]; Zoharabi v. Arjuna, Zoharabi v. Arjuna, Zoharabi v.
Arjuna,
AIR 1980 SC 101 , p. 102 :
Mr.Srikanth -
Page 71 of 86
(1980) 2 SCC 203 ; Kanaya Ram v. Rajender Kumar, Kanaya Ram v. Rajender Kumar,
Kanaya Ram v. Rajender Kumar,
(1985) 1 SCC 436 , p. 441 :
AIR 1985 SC 371 ; Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], pp. 1621, 1622; Thyssen Stahlunion GMBH v. Steel Authority of India,
Thyssen Stahlunion GMBH v. Steel Authority of India, Thyssen Stahlunion GMBH v. Steel Authority of India,
JT 1999 (8) 66 , p. 107, 108 :
AIR 1999 SC 3923 [
LNIND 1999 SC 906 ], pp. 3947, 3948 :
(1999) 9 SCC 334 [
LNIND 1999 SC 906 ].

supra.
41 Plewa v. Chief Adjudication Officer, Plewa v. Chief Adjudication Officer, Plewa v.

Chief Adjudication Officer,
(1994) 3 All ER 323 , p. 331 :
(1995) 1 AC 249 :
(1994) 3 WLR 317 (HL) (For this case see also text and note 70, p. 502).
42 Aitken v. South Hams District Council, Aitken v. South Hams District Council,
Aitken v. South Hams District Council,
(1994) 3 All ER 400 , p. 405 :
(1995) 1 AC 262 :
(1994) 3 WLR 33 (HL).
43 Ogden Industries Ltd. v. Lucas, Ogden Industries Ltd. v. Lucas, Ogden Industries
Ltd. v. Lucas,
(1969) 1 All ER 121 , p. 125 (PC).
(1994) 3 All ER 400 , p. 405 :
(1995) 1 AC 262 :
(1994) 3 WLR 33 (HL).
45 Ibid.
46 Heston and Isleworth Urban District Council v. Grout, Heston and Isleworth Urban District Council
v. Grout, Heston and Isleworth Urban District Council v. Grout,
(1897) 2 Ch 306 .
47 Hamilton Gell v. White, Hamilton Gell v. White, Hamilton Gell v. White,

(1922) 2 KB 422 : 127 LT 728 (CA).
48 Ibid, p. 430.
49 Ibid, p. 431.
Mr.Srikanth -
Page 72 of 86
50
(1999) 2 All ER 859 (CA).
51 Ibid, p. 868.
52 Ibid, p. 871
53 Ibid, p. 870.
54 Free Lanka Insurance Co. v. Ranasinghe, Free Lanka Insurance Co. v. Ranasinghe,
Free Lanka Insurance Co. v. Ranasinghe,
(1964) 1 All ER 457 , p. 462:
1964 AC 541 (PC).

AIR 1963 SC 354 [
LNIND 1961 SC 186 ]:
1962 (2) SCR 59 [
LNIND 1961 SC 186 ].
56 Hiralal v. Nagindas, Hiralal v. Nagindas, Hiralal v. Nagindas,

AIR 1966 SC 367 [
LNIND 1964 SC 38 ]:
1964 (6) SCR 773 [
LNIND 1964 SC 38 ]. For other vested rights in the context of landlord and tenant, see Ishverlal
v. Motibhai, Ishverlal v. Motibhai, Ishverlal v. Motibhai,
AIR 1966 SC 459 [
LNIND 1965 SC 186 ]:
1966 (1) SCR 367 [
LNIND 1965 SC 186 ].
57 Qudrat Ullah v. Bareilly Municipality, Qudrat Ullah v. Bareilly Municipality,

Qudrat Ullah v. Bareilly Municipality,
AIR 1974 SC 396 [
LNIND 1973 SC 374 ]:
(1974) 1 SCC 202 [
LNIND 1973 SC 374 ]. The same result will follow if the Act ceases to apply to certain tenancies
by an amendment made by the Legislature or by a notification issued by the Government in exercise of a power conferred by the
Act: D.C. Bhatia v. Union of India, D.C. Bhatia v. Union of India, D.C. Bhatia v. Union of India,
1995 (1) SCC 104 [
LNIND 1994 SC 969 ] : 1994 AIR SCW 5011 ; Parripati Chandra Shekhar Rao v. Alapati
Jalaiah, Parripati Chandra Shekhar Rao v. Alapati Jalaiah, Parripati Chandra Shekhar Rao v. Alapati Jalaiah,
1995 (3) Scale 197 :
AIR 1995 SC 1781 [
LNIND 1995 SC 576 ]:
(1995) 3 SCC 709 [
LNIND 1995 SC 576 ]. (Even pending proceedings will be affected); Ambalal Sarabhai
Enterprises Ltd. v. Amrit Lal & Co., Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., Ambalal Sarabhai
Enterprises Ltd. v. Amrit Lal & Co.,
AIR 2001 SC 3580 [
LNIND 2001 SC 1829 ]:
(2001) 8 SCC 397 [
LNIND 2001 SC 1829 ] (pending proceeding will be affected).
58 Vishwant Kumar v. Madanlal Sharma, Vishwant Kumar v. Madanlal Sharma,

Vishwant Kumar v. Madanlal Sharma,
Mr.Srikanth -
Page 73 of 86
AIR 2004 SC 1887 [

LNIND 2004 SC 355 ], pp. 1888, 1889 :
(2004) 4 SCC 1 [
LNIND 2004 SC 355 ].
59 Isha Valimohamad v. Haji Gulam Mohamad, Isha Valimohamad v. Haji Gulam Mohamad,
Isha Valimohamad v. Haji Gulam Mohamad,
AIR 1974 SC 2061 [
LNIND 1974 SC 231 ]:
(1974) 2 SCC 484 [
LNIND 1974 SC 231 ], pp. 490, 491 (This case also refers to the meaning of the word ‘privilege’
as used in section 6).
60 Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co., Ambalal Sarabhai Enterprises Ltd. v. Amrit
Lal & Co., Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Co.,
AIR 2001 SC 3580 [
LNIND 2001 SC 1829 ]:
(2001) 8 SCC 397 [
LNIND 2001 SC 1829 ].
61 Gujarat Electricity Board v. Shantilal, Gujarat Electricity Board v. Shantilal,

Gujarat Electricity Board v. Shantilal,
AIR 1969 SC 239 [
LNIND 1968 SC 197 ]:
1969 (1) SCR 580 [
LNIND 1968 SC 197 ].
62 Joint Secretary to the Government of India v. Khilluram, Joint Secretary to the Government of India
v. Khilluram, Joint Secretary to the Government of India v. Khilluram,
AIR 1975 SC 2275 [
LNIND 1975 SC 382 ], p. 2277 :
(1976) 1 SCC 88 [
LNIND 1975 SC 382 ].
63 Amadalavalasa Co-operative Agricultural & Industrial Society Ltd. v. Union of India,

Amadalavalasa Co-operative Agricultural & Industrial Society Ltd. v. Union of India, Amadalavalasa Co-
operative Agricultural & Industrial Society Ltd. v. Union of India,
AIR 1976 SC 958 [
LNIND 1975 SC 544 ]:
(1976) 2 SCC 934 [
LNIND 1975 SC 544 ]. [
Section 6 of the General Clauses Act was made applicable upon their expiry by section 1(3)) of the Acts] followed
in Andhra Pradesh State Electricity Board v. Union of India, Andhra Pradesh State Electricity Board v. Union of India,
Andhra Pradesh State Electricity Board v. Union of India,
AIR 1988 SC 1020 [
64 Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan, Bansidhar v. State

of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], pp. 1622, 1623 :
1989 (2) SCC 557 [
LNIND 1989 SC 186 ].
65 S.L. Srinivasa Jute Twine Mills (P.) Ltd. v. Union of India, S.L. Srinivasa Jute Twine Mills (P.) Ltd.
v. Union of India, S.L. Srinivasa Jute Twine Mills (P.) Ltd. v. Union of India,
(2006) 2 SCC 740 [
Mr.Srikanth -
Page 74 of 86
LNIND 2006 SC 98 ] :
(2006) 2 JT 397 :
(2006) 2 LLJ 225 [
LNIND 2006 SC 98 ].
66 Salchbhai Mulla Mohamadali v. State of Gujarat, Salchbhai Mulla Mohamadali v. State of Gujarat,
Salchbhai Mulla Mohamadali v. State of Gujarat,
AIR 1993 SC 335 [
LNIND 1991 SC 555 ], p. 339 :
1992 (1) SCC 742 [
LNIND 1991 SC 555 ].
67 PEK Kalliani Amma v. K. Devi, PEK Kalliani Amma v. K. Devi, PEK Kalliani
Amma v. K. Devi,
AIR 1996 SC 1963 [
LNIND 1996 SC 869 ]:
1996 (4) SCC 76 [
LNIND 1996 SC 869 ].
68 Abbot v. Minister of Lands, Abbot v. Minister of Lands, Abbot v. Minister of Lands,

(1895) AC 425 , 431 (PC).
69 Reynolds v. A.G. for Nova Scotia, Reynolds v. A.G. for Nova Scotia, Reynolds v.
A.G. for Nova Scotia,
(1896) AC 240 : 65 LJ PC 16 : 74 LT 108 (PC). See further Gajraj Singh v. State Transport
Appellate Tribunal, See further Gajraj Singh v. State Transport Appellate Tribunal, See further Gajraj Singh v.
State Transport Appellate Tribunal,
AIR 1997 SC 412 [
LNIND 1996 SC 1456 ], p. 422 :
(1997) 1 SCC 650 [
LNIND 1996 SC 1456 ] (The text in this book from 6th Edition, p. 418 is quoted).

(1961) 2 All ER 721 :
(1961) 3 WLR 39 :
1961 AC 901 (PC).
71 Ogden Industries Ltd. v. Lucas, Ogden Industries Ltd. v. Lucas, Ogden Industries
Ltd. v. Lucas,
(1969) 1 All ER 121 (PC).
72 Lalji Raja & Sons v. Hansraj Nathuram, Lalji Raja & Sons v. Hansraj Nathuram,
Lalji Raja & Sons v. Hansraj Nathuram,
AIR 1971 SC 974 [
LNIND 1971 SC 141 ]:
(1971) 1 SCC 721 [
LNIND 1971 SC 141 ].
73 Hungerford Investment Trust v. Haridas Mundhra, Hungerford Investment Trust v. Haridas

Mundhra, Hungerford Investment Trust v. Haridas Mundhra,
AIR 1972 SC 1826 [
LNIND 1972 SC 147 ], p. 1832 :
(1972) 3 SCC 684 [
LNIND 1972 SC 147 ].
Mr.Srikanth -
Page 75 of 86
74 Vinod Gurudas Raikar v. National Insurance Co. Ltd., Vinod Gurudas Raikar v. National Insurance
Co. Ltd., Vinod Gurudas Raikar v. National Insurance Co. Ltd.,
AIR 1991 SC 2156 [
LNIND 1991 SC 435 ], p. 2160 :
1991 (4) SCC 333 [
LNIND 1991 SC 435 ].
75 Nirmala Devi v. Renuka, Nirmala Devi v. Renuka, Nirmala Devi v. Renuka,

AIR 1973 MP 120 approved in Krishna Dass Agarwal v. Kanhaiyalal, Krishna Dass Agarwal v.
Kanhaiyalal, Krishna Dass Agarwal v. Kanhaiyalal,
AIR 1996 SC 3464 : 1996 (9) SCC 488.
76 Ramulu (Dr.) v. S. Suryaprakash Rao (Dr.), Ramulu (Dr.) v. S. Suryaprakash Rao (Dr.),
Ramulu (Dr.) v. S. Suryaprakash Rao (Dr.),
AIR 1997 SC 1803 [
LNIND 1997 SC 57 ], p. 1808 :
1997 (3) SCC 59 [
LNIND 1997 SC 57 ].
77 Sri Justice S.K. Roy v. State of Orissa, Sri Justice S.K. Roy v. State of Orissa, Sri
Justice S.K. Roy v. State of Orissa,
(2003) 4 SCC 21 [
LNIND 2003 SC 66 ], pp. 24, 25 :
AIR 2003 SC 924 [
LNIND 2003 SC 66 ].
78 Ibid.
79 Karam Singh v. Pratap Chand, Karam Singh v. Pratap Chand, Karam Singh v.
Pratap Chand,
AIR 1964 SC 1305 [
LNIND 1963 SC 206 ], p. 1309 (para 10) :
(1964) 5 SCR 647 [
LNIND 1963 SC 280 ]; Ishverlal v. Motibhai, Ishverlal v. Motibhai, Ishverlal v.
Motibhai,
AIR 1966 SC 459 [
LNIND 1965 SC 186 ], p. 466 :
1966 (1) SCR 367 [
LNIND 1965 SC 186 ].
80 By a subsequent statute a penal section in an earlier statute ceased to have effect and was also repealed. It was held
that even such a double repeal did not show a contrary intention and prevent prosecution for an offence committed before the
repeal; Commissioner of Police v. Simeon, Commissioner of Police v. Simeon, Commissioner of Police v. Simeon,
(1982) 2 All ER 813 :
(1983) 1 AC 234 :
(1982) 3 WLR 289 (HL).
Mohar Singh,
AIR 1955 SC 84 [
LNIND 1954 SC 136 ], p. 88 :
(1955) 1 SCR 833 ; Indira Sohanlal v. Custodian of E.P., Indira Sohanlal v. Custodian of E.P.,
Indira Sohanlal v. Custodian of E.P.,
AIR 1956 SC 77 [
LNIND 1955 SC 85 ], p. 83 :
(1955) 2 SCR 1117 [
Mr.Srikanth -
Page 76 of 86
LNIND 1955 SC 85 ]; Brihan; Maharashtra Sugar Syndicate v. Janardan, Brihan; Maharashtra

Sugar Syndicate v. Janardan, Brihan; Maharashtra Sugar Syndicate v. Janardan,
AIR 1960 SC 794 [
LNIND 1960 SC 394 ], p. 795 :
(1960) 3 SCR 85 [
LNIND 1960 SC 394 ]; Mahadeolal v. Administrator General of WB, Mahadeolal v.
Administrator General of WB, Mahadeolal v. Administrator General of WB,
AIR 1960 SC 936 [
LNIND 1960 SC 128 ], pp. 938, 939 (para 7) :
(1960) 3 SCR 578 [
LNIND 1960 SC 128 ]; State of Kerala v. N. Sami Iyer, State of Kerala v. N. Sami Iyer,
State of Kerala v. N. Sami Iyer,
AIR 1966 SC 1415 [
LNIND 1965 KER 284 ],pp. 1417, 1418; Jayantilal v. Union of India, Jayantilal v. Union of
India, Jayantilal v. Union of India,
AIR 1971 SC 1193 , p. 1196 :
(1972) 4 SCC 174 ; T. Barai v. Henry Ah Hoe, T. Barai v. Henry Ah Hoe, T.
AIR 1983 SC 150 [
LNIND 1982 SC 190 ], p. 156 :
(1983) 1 SCC 177 [
LNIND 1982 SC 190 ]; Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], p. 1619 :
(1989) 2 SCC 557 [
LNIND 1989 SC 186 ]; Manphul Singh Sharma v. Ahmedi Begum, Manphul Singh Sharma v.
Ahmedi Begum, Manphul Singh Sharma v. Ahmedi Begum,
JT 1994 (5) SC 49 , p. 53 :
(1994) 5 SCC 465 [
LNIND 1994 SC 1436 ]; D. Srinivasan v. The Commissioner, D. Srinivasan v. The
Commissioner, D. Srinivasan v. The Commissioner,
AIR 2000 SC 1250 [
LNIND 2000 SC 339 ], p. 1255 :
(2000) 3 SCC 548 [
LNIND 2000 SC 339 ] .For construction of a Saving Clause which opens with the words ‘Save as
expressly provided in this Act’, see S.N. Kamble v. Sholapur Municipality, S.N. Kamble v. Sholapur Municipality,
S.N. Kamble v. Sholapur Municipality,
AIR 1966 SC 538 [
LNIND 1965 SC 463 ]:
(1966) 1 SCR 618 [
LNIND 1965 SC 463 ]. For a saving clause which preserves old rights but applies new
procedure, see Ramchandra v. Tukaram, Ramchandra v. Tukaram, Ramchandra v. Tukaram,
AIR 1966 SC 557 [
LNIND 1965 SC 203 ]:
1966 (1) SCR 594 [
LNIND 1965 SC 203 ].
Mohar Singh,
AIR 1955 SC 84 [
LNIND 1954 SC 136 ], p. 88 :
(1955) 1 SCR 893 [
LNIND 1954 SC 136 ]; T.S. Baliah v. Rangachari, T.S. Baliah v. Rangachari,
T.S. Baliah v. Rangachari,
AIR 1969 SC 701 [
LNIND 1968 SC 381 ], p. 705 :
(1969) 3 SCR 65 [
LNIND 1968 SC 381 ]; Tiwari Kanhaiyalal v. Commissioner of Income-tax, Delhi, Tiwari
Kanhaiyalal v. Commissioner of Income-tax, Delhi, Tiwari Kanhaiyalal v. Commissioner of Income-tax, Delhi,
AIR 1975 SC 902 [
LNIND 1975 SC 113 ], p. 905 :
(1975) 4 SCC 401 ; State of Maharashtra v. Atmaram Sadashiv Dongarwar, State of
Maharashtra v. Atmaram Sadashiv Dongarwar, State of Maharashtra v. Atmaram Sadashiv Dongarwar,
AIR 1978 SC 1635 [
Mr.Srikanth -
Page 77 of 86
LNIND 1978 SC 193 ], p. 1641 :

(1978) 4 SCC 170 [
LNIND 1978 SC 193 ]; Mohd. Rashid Ahmal v. State, Mohd. Rashid Ahmal v. State,
Mohd. Rashid Ahmal v. State,
AIR 1979 SC 592 [
LNIND 1978 SC 393 ], p. 598 :
(1979) 1 SCC 596 [
LNIND 1978 SC 393 ]; M.S. Shivananda v. Karnataka State Road Transport Corporation, M.S.
Shivananda v. Karnataka State Road Transport Corporation, M.S. Shivananda v. Karnataka State Road Transport
Corporation,
AIR 1980 SC 77 [
LNIND 1979 SC 376 ], pp. 80, 81 :
(1980) 1 SCC 149 [
AIR 1983 SC 150 [
LNIND 1982 SC 190 ], p. 156 :
(1983) 1 SCC 177 [
LNIND 1982 SC 190 ]; Commissioner of Income-tax, U.P. v. Shah Sadiq and Sons,
Commissioner of Income-tax, U.P. v. Shah Sadiq and Sons, Commissioner of Income-tax, U.P. v. Shah Sadiq and
Sons,
(1987) 3 SCC 516 [
LNIND 1987 SC 390 ], p. 524 (para 14) :
AIR 1987 SC 1217 [
LNIND 1987 SC 390 ]; Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], p. 1619; Manphul Singh Sharma v. Ahmedi Begum, Manphul Singh
Sharma v. Ahmedi Begum, Manphul Singh Sharma v. Ahmedi Begum,
JT 1994 (5) SC 49 , p. 53
1994 (5) SCC 465 [
LNIND 1994 SC 1436 ]; Mohanraj v. Dimbeshwari Saikia, Mohanraj v. Dimbeshwari Saikia,
Mohanraj v. Dimbeshwari Saikia,
AIR 2007 SC 232 [
LNIND 2006 SC 945 ](para 24); Gammon India Ltd. v. Special Chief Secretary, Gammon India
Ltd. v. Special Chief Secretary, Gammon India Ltd. v. Special Chief Secretary,
(2006) 3 SCC 354 [
LNIND 2006 SC 103 ] (paras 52, 53); Southern Petrochemical Industries Co. Ltd. v. Electricity
Inspector and ETIO, Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO, Southern
Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO,
(2007) 5 SCC 447 [
LNIND 2007 SC 681 ] (para 84) :
AIR 2007 SC 1984 [
LNIND 2007 SC 681 ].
(1994) 3 All ER 400 , p. 406 :
(1995) 1 AC 264 :
(1994) 3 WLR 333 (HL) (a case under section 16 of the Interpretation Act, 1978 which
corresponds to
section 6 of the General Clauses Act ); Gammon India Ltd. v. Special Chief Secretary, Gammon India Ltd. v.
Special Chief Secretary, Gammon India Ltd. v. Special Chief Secretary, supra.
84 Ibid., Gammon India Ltd. v. Special Chief Secretary, Gammon India Ltd. v. Special Chief Secretary,
Gammon India Ltd. v. Special Chief Secretary, supra.
85 See Chapter 6, title 2 ‘Retrospective Operation’. See further M.S. Shivananda v. Karnataka State Road Transport
Corporation, M.S. Shivananda v. Karnataka State Road Transport Corporation, M.S. Shivananda v. Karnataka
State Road Transport Corporation,
AIR 1980 SC 77 [
LNIND 1979 SC 376 ], p. 81 :
Mr.Srikanth -
Page 78 of 86
1980 (1) SCC 149 [

LNIND 1979 SC 376 ].
86 Kalawati Devi v. CIT, Kalawati Devi v. CIT, Kalawati Devi v. CIT,

AIR 1968 SC 162 [
LNIND 1967 SC 171 ], p. 168 :
(1967) 3 SCR 833 [
LNIND 1967 SC 171 ]; ITO, Mangalore v. Damodar, ITO, Mangalore v. Damodar,
ITO, Mangalore v. Damodar,
AIR 1969 SC 408 [
LNIND 1968 SC 264 ], p. 412 :
(1969) 2 SCR 29 [
LNIND 1968 SC 264 ]. But see Tiwari Kanhaiyalal v. Commissioner of Income-tax, Tiwari
Kanhaiyalal v. Commissioner of Income-tax, Tiwari Kanhaiyalal v. Commissioner of Income-tax,
AIR 1975 SC 902 [
LNIND 1975 SC 113 ]:
(1975) 4 SCC 401 , which holds that the detailed savings contained in section 297,of the
Income-tax Act, 1961 are not exhaustive. Recourse in this case was taken to
section 6, General Clauses Act for holding that a person's liability for an offence under
section 52 of the Income-tax Act, 1922 continued even after its repeal. In Commissioner of Income-tax, U.P. v.
Shah Sadiq and Sons, Commissioner of Income-tax, U.P. v. Shah Sadiq and Sons, Commissioner of Income-tax,
U.P. v. Shah Sadiq and Sons,
(1987) 3 SCC 516 [
LNIND 1987 SC 390 ], p. 524 :
AIR 1986 SC 1217 .
Section 6 of the General Clauses Act was again applied to continue the right of set-off accrued under section
24(2)of the 1922 Act after its repeal by the 1961 Act.
87 Bansidhar v. State of Rajasthan, Bansidhar v. State of Rajasthan, Bansidhar v. State

of Rajasthan,
AIR 1989 SC 1614 [
LNIND 1989 SC 186 ], p. 1621 :
1989 (2) SCC 557 [
LNIND 1989 SC 186 ] .See further Tiwari Kanhaiyalal v. Commissioner of Income-tax, Tiwari
Kanhaiyalal v. Commissioner of Income-tax, Tiwari Kanhaiyalal v. Commissioner of Income-tax, supra and
Commissioner of Income-tax, U.P. v. Shah Sadiq and Sons, Commissioner of Income-tax, U.P. v. Shah Sadiq and Sons,
Commissioner of Income-tax, U.P. v. Shah Sadiq and Sons, supra. See for example M. Subbarao and Sons v. Yashodamma, M.
Subbarao and Sons v. Yashodamma, M. Subbarao and Sons v. Yashodamma,
AIR 2002 SC 3284 [
LNIND 2002 SC 588 ], p. 3286 :
(2002) 7 SCC 553 [
LNIND 2002 SC 588 ] (S. 70 of the Karnataka Rent Act 1961 and s. 6 of the Karnataka
General Clauses Act , 1899). See also an Australian case Dosset v. TKJ Nominees Pty. Ltd., Dosset v. TKJ
Nominees Pty. Ltd., Dosset v. TKJ Nominees Pty. Ltd., (2003) 78 ALJR 161.
88 Bansidhar v. State of Rajasthan, supra Bansidhar v. State of Rajasthan, supra

Bansidhar v. State of Rajasthan, supra pp. 1620, 1621.
89 P.V. Mohammad Barmay Sons v. Director of Enforcement, P.V. Mohammad Barmay Sons v.
Director of Enforcement, P.V. Mohammad Barmay Sons v. Director of Enforcement,
AIR 1993 SC 1188 [
LNIND 1992 SC 537 ],p. 1192 :
1992 (4) JT 565 [
LNIND 1992 SC 537 ] : 1993 Supp (2) SCC 724. See further Central Bureau of Investigation v.
Subodh Kumar Dutt, Central Bureau of Investigation v. Subodh Kumar Dutt, Central Bureau of Investigation v.
Subodh Kumar Dutt,
AIR 1997 SC 869 [
LNIND 1997 SC 68 ], p. 870 :
(1997) 10 SCC 567 [
Mr.Srikanth -
Page 79 of 86
section 30(2)of the Prevention of Corruption Act, 1988 which is similar to section 81(2)of
FERA, 1973 ).
90 Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO, Southern
Petrochemical Industries Co. Ltd. v. Electricity Inspector and ETIO, Southern Petrochemical Industries Co. Ltd. v.
Electricity Inspector and ETIO,
(2007) 5 SCC 447 [
LNIND 2007 SC 681 ] :
AIR 2007 SC 1984 [
LNIND 2007 SC 681 ].
91 Ibid, para 100.
92 Ibid, paras 92 to 96.
1 Ibid, para 131.
2 Ibid, para 132.
3 Ahmedabad Urban Development Authority v. Manilal Gordhandas, Ahmedabad Urban Development

Authority v. Manilal Gordhandas, Ahmedabad Urban Development Authority v. Manilal Gordhandas,
AIR 1996 SC 2804 [
LNIND 1996 SC 1438 ]:
1996 (11) SCC 482 [
LNIND 1996 SC 1438 ] (Plan of development submitted for approval of the Government under
the Bombay Town Planning Act, 1954. Pending approval, the Bombay Act repealed by section 124 of the Gujarat Planning and
Urban Development Act, 1976 containing a saving as mentioned in the text. The plan pending for approval at the time of repeal of
the Bombay Act could not be approved under the new Act as the provisions of the two Acts were inconsistent).
4
AIR 1997 SC 412 [
LNIND 1996 SC 1456 ]:
1997 (1) SCC 650 [
LNIND 1996 SC 1456 ].
5 Ibid, p. 424.
6 Ibid.
7 Ibid, p. 426.
8 Ibid, p. 427.
9 Ibid, pp. 428, 429.
10 Ibid, p. 430; Gurcharan Singh Baldev Singh v. Yeshwant Singh, Gurcharan Singh Baldev Singh v.
Yeshwant Singh, Gurcharan Singh Baldev Singh v. Yeshwant Singh,
AIR 1992 SC 180 [
LNIND 1991 SC 600 ],p. 183 :
Mr.Srikanth -
Page 80 of 86
1992 (1) SCC 428 [

LNIND 1991 SC 600 ].
Mohar Singh,
AIR 1955 SC 84 [
LNIND 1954 SC 136 ]:
1955 (1) SCR 893 [
LNIND 1954 SC 136 ].
12 Brihan Maharashtra Syndicate v. Janardan, Brihan Maharashtra Syndicate v. Janardan,

Brihan Maharashtra Syndicate v. Janardan,
AIR 1960 SC 794 [
LNIND 1960 SC 394 ]:
1960 (3) SCR 85 [
LNIND 1960 SC 394 ].
13 Indira Sohanlal v. Custodian of E.P., Indira Sohanlal v. Custodian of E.P., Indira

Sohanlal v. Custodian of E.P.,
AIR 1956 SC 77 [
LNIND 1955 SC 85 ]:
1955 (2) SCR 1117 [
LNIND 1955 SC 85 ].
14 Ibid.
15 Ibid, p. 85.
16
AIR 1966 SC 573 [
LNIND 1965 SC 256 ], p. 579 :
1966 (2) SCR 158 [
LNIND 1965 SC 256 ].
17 Cases in notes 13 and 16.
18 Nar Bahadur Bhandari v. State of Sikkim, Nar Bahadur Bhandari v. State of Sikkim,
Nar Bahadur Bhandari v. State of Sikkim,
AIR 1998 SC 2203 [
LNIND 1998 SC 573 ], pp. 2205, 2206 :
(1998) 5 SCC 39 [
LNIND 1998 SC 573 ].
19 Central Bureau of Investigation v. V.K. Sehgal, Central Bureau of Investigation v. V.K. Sehgal,
Central Bureau of Investigation v. V.K. Sehgal,
JT 1999 (8) SC 170 [
LNIND 1999 SC 1385 ], pp. 176, 177 :
(1999) 8 SCC 501 [
LNIND 1999 SC 1385 ].
20 Ibid.
Mr.Srikanth -
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21 Rambhai v. Dayabhai, Rambhai v. Dayabhai, Rambhai v. Dayabhai,

AIR 1967 SC 162 [
LNIND 1966 SC 114 ]: 1966 Supp SCR 146. For a saving clause that preserves rights and
liabilities accrued and incurred but requires the legal proceedings to be instituted, continued or enforced under the corresponding
provisions of the new Act, see E.V. Mathal v. Sub-Judge, Kottayam, E.V. Mathal v. Sub-Judge, Kottayam,
E.V. Mathal v. Sub-Judge, Kottayam,
AIR 1970 SC 337 [
LNIND 1969 SC 176 ], p. 339 :
(1969) 2 SCC 194 . And, for a Saving Clause which preserves rights and liabilities accrued and
incurred under the repealed Act but subject thereto requires anything done under the repealed Act to be deemed to have been done
under the new Act. See further STO, Jabalpur v. Hanuman Prasad, STO, Jabalpur v. Hanuman Prasad,
STO, Jabalpur v. Hanuman Prasad,
(1967) MPLJ 138 (SC) :
AIR 1967 SC 565 [
LNIND 1966 SC 250 ]:
(1967) 1 SCR 831 [
LNIND 1966 SC 250 ] and Commr. of Sales Tax, M.P. v. Amarnath Ajitkumar, Commr. of Sales
Tax, M.P. v. Amarnath Ajitkumar, Commr. of Sales Tax, M.P. v. Amarnath Ajitkumar,
AIR 1972 SC 38 [
LNIND 1971 SC 488 ]:
1972 (4) SCC 347 [
LNIND 1971 SC 488 ].
22
JT 1999 (8) SC 66 [
LNIND 1999 SC 906 ]:
AIR 1999 SC 3923 [
LNIND 1999 SC 906 ]:
(1999) 9 SCC 334 [
LNIND 1999 SC 906 ].
23 Ibid, pp. 103, 104 (JT) : pp. 3944, 3945 (AIR).
24 Ibid, pp. 107, 109, 110 (JT) pp. 3947, 3948 (AIR).
25 Ibid, p. 111 (JT) : 3949, 3950 (AIR). Followed in Delhi Transport Corporation Ltd. v. Rose
Advertising, Delhi Transport Corporation Ltd. v. Rose Advertising, Delhi Transport Corporation Ltd. v. Rose
Advertising,
(2003) 6 SCC 36 [
LNIND 2003 SC 446 ] :
AIR 2003 SC 2523 [
LNIND 2003 SC 446 ]. Distinguished in N.S. Nayak and Sons v. State of Goa, N.S. Nayak and
Sons v. State of Goa, N.S. Nayak and Sons v. State of Goa,
(2003) 6 SCC 56 [
LNIND 2003 SC 519 ]. See further Milkfood Ltd. v. GMC Ice Cream Ltd., Milkfood Ltd. v.
GMC Ice Cream Ltd., Milkfood Ltd. v. GMC Ice Cream Ltd.,
(2004) 7 SCC 288 [
LNIND 2004 SC 439 ], p. 315 :
AIR 2004 SC 3145 [
LNIND 2004 SC 439 ](section 21 of the 1940 Act will determine whether arbitration proceeding
had commenced before coming into force of the 1996 Act)
26 Ibid, pp. 113, 114 (JT) : 3951 (AIR). Affirmed in Fuerst Day Lauson Ltd. v. Jindal Exports Ltd.,
Fuerst Day Lauson Ltd. v. Jindal Exports Ltd., Fuerst Day Lauson Ltd. v. Jindal Exports Ltd.,
AIR 2001 SC 2193 : (2001) 6 SCC 356.
27 Mahadeolal v. Administrator General of W.B., Mahadeolal v. Administrator General of W.B.,

Mahadeolal v. Administrator General of W.B.,
AIR 1960 SC 936 [
Mr.Srikanth -
Page 82 of 86
LNIND 1960 SC 128 ]:

1960 (3) SCR 578 [
LNIND 1960 SC 128 ].
28 Karam Singh v. Pratap Singh, Karam Singh v. Pratap Singh, Karam Singh v. Pratap
Singh,
AIR 1964 SC 1305 [
LNIND 1963 SC 206 ], p. 1309 :
1964 (4) SCR 647 [
LNIND 1963 SC 206 ].
29 Ibid, p. 1310; followed in Manphul Singh Sharma v. Ahmedi Begum, Manphul Singh Sharma v.
Ahmedi Begum, Manphul Singh Sharma v. Ahmedi Begum,
JT 1994 (5) SC 49 , pp. 53, 54 :
1994 (5) SCC 465 [
LNIND 1994 SC 1436 ] :
(1994) 5 SCC 465 [
LNIND 1994 SC 1436 ].
Singh, supra.
31 V.K. Verma v. Radhey Shyam, V.K. Verma v. Radhey Shyam, V.K. Verma v. Radhey
Shyam,
AIR 1964 SC 1317 : 66 Punj LR 690. See further Brij Kishore v. Vishwa Mitter, Brij
Kishore v. Vishwa Mitter, Brij Kishore v. Vishwa Mitter,
AIR 1965 SC 1574 [
LNIND 1965 SC 3 ]:
1965 (2) SCR 705 [
LNIND 1965 SC 3 ]. (Though the court trying a pending suit has in some cases to take notice of
the new Act, the order passed by it remains an order under the old Act and appealable under it, Banta Singh v. Shanti Devi, Banta
Singh v. Shanti Devi, Banta Singh v. Shanti Devi,
AIR 1967 SC 1360 [
LNIND 1967 SC 58 ]) :
(1967) 3 SCR 597 ).
Singh,
AIR 1964 SC 1305 [
LNIND 1963 SC 206 ]:
1964 (4) SCR 647 [
LNIND 1963 SC 206 ].
34 Watson v. Winch, Watson v. Winch, Watson v. Winch,

(1916-17) All ER Rep 972 (KBD) :
(1916) 1 KB 688 ; Harish Chandra v. State of M.P., Harish Chandra v. State of M.P.,
AIR 1965 SC 932 [
LNIND 1964 SC 236 ], p. 938 :
(1965) 1 SCR 323 [
LNIND 1964 SC 236 ]. A saving clause which continues ‘any notification’ under a repealed Act
has been construed to continue rules made under a notification; State of Nagaland v. Ratan Singh, State of Nagaland v. Ratan
Singh, State of Nagaland v. Ratan Singh,
AIR 1967 SC 212 [
LNIND 1966 SC 77 ], p. 221 (para 22) :
Mr.Srikanth -
Page 83 of 86
(1966) 3 SCR 830 [

LNIND 1966 SC 77 ]. Saving of ‘anything duly done’ under the repealed Act will also preserve
the continuance of rules and bye-laws; Dharangdhara Chemical Works v. Dharangdhara Municipality, Dharangdhara Chemical
Works v. Dharangdhara Municipality, Dharangdhara Chemical Works v. Dharangdhara Municipality,
(1985) 4 SCC 92 [
LNIND 1985 SC 273 ], p. 104 :
AIR 1985 SC 1729 [
LNIND 1985 SC 273 ]. But in Air India v. Union of India, Air India v. Union of India,
Air India v. Union of India,
1995 (4) Scale 523 , p. 525 :
(1995) 4 SCC 734 [
LNIND 1995 SC 708 ], it has been observed by a two judge bench: “If subordinate legislation is
to survive the repeal of its parent statute the repealing statute must say so in so many words and by mentioning the title of the
subordinate legislation. We do not think that there is room for implying anything in this behalf.” It is submitted that these
observations are too widely stated as the earlier authorities of the Supreme Court (State of Nagaland case is a
Constitution Bench Decision) were not referred. Saving of ‘anything duly done’ and ‘any right or privilege
acquired’ may continue a notification granting exemption of tax permanently under the repealed Act even if there be no
corresponding provision in the repealing Act for grant of such an exemption: see text and notes 90 to 92, 1-2, pp. 672, 673.
35 Ibid.
36 State of Bombay v. Pandurang, State of Bombay v. Pandurang, State of Bombay v.

Pandurang,
AIR 1953 SC 244 [
LNIND 1953 SC 33 ], p. 246 :
1953 SCR 773 [
LNIND 1953 SC 33 ] (section 25 of Bombay Act which corresponds to section 24 of Central
Act).
N.B.—
(i) Section 24, General Clauses Act, 1897 is not declaratory of any common law rule and cases not
covered by it are governed by the rule stated in text and note 34, supra.
(ii) Rules etc. deemed to be made under a Statute either by virtue of
section 24, General Clauses Act or by a specific saving to that effect, stand on the same footing as rules
made under the statute and both can be amended, repealed or replaced by new rules made under it.[See Harish Chandra v.
State of M.P., Harish Chandra v. State of M.P., Harish Chandra v. State of M.P.,
AIR 1965 SC 932 [
LNIND 1964 SC 236 ], p. 937 :
(1965) 1 SCC 323 ; Neel v. State of W.B., Neel v. State of W.B.,
Neel v. State of W.B.,
AIR 1972 SC 2066 [
LNIND 1972 SC 309 ], pp. 2067, 2068 :
(1972) 2 SCC 668 [
LNIND 1972 SC 309 ]. (Notification issued under
section 15 of the Arms Act , 1878 continues under
section 4 of the Arms Act, 1959 )]. See further Dharangdhara Chemical Works v. Dharangdhara
Municipality, Dharangdhara Chemical Works v. Dharangdhara Municipality, Dharangdhara
Chemical Works v. Dharangdhara Municipality, supra.
37 Chief Inspector of Mines v. Karam Chand Thapar, Chief Inspector of Mines v. Karam Chand
Thapar, Chief Inspector of Mines v. Karam Chand Thapar,
AIR 1961 SC 838 [
LNIND 1961 SC 57 ], pp. 843-45 :
(1961) 2 SCR 962 [
LNIND 1960 SC 317 ]; Mohanlal v. State of W.B., Mohanlal v. State of W.B.,
Mohanlal v. State of W.B.,
AIR 1961 SC 1543 [
LNIND 1961 SC 183 ], p. 1545 (para 3) :
Mr.Srikanth -
Page 84 of 86
(1962) 2 SCR 36 [
LNIND 1961 SC 183 ].
38 Bhilai Steel Project v. Steel Workers' Union, Bhilai Steel Project v. Steel Workers' Union,
Bhilai Steel Project v. Steel Workers' Union,
AIR 1964 SC 1333 , p. 1336 (paras 10, 11) :
(1964) 5 SCR 354 [
LNIND 1963 SC 251 ], (the case related to section 25, M.P.
General Clauses Act which corresponds to section 24 of Central Act).
N.B.—
(i) A special saving clause continuing a ‘scheme prepared’ under the repealed Act will normally mean a completed scheme in
respect of which all the necessary steps under the repealed Act had been taken before its repeal; Indore Development
Authority v. Madanlal, Indore Development Authority v. Madanlal, Indore Development Authority v.
Madanlal,
AIR 1990 SC 1143 , p. 1147 :
1990 (2) SCC 334 .
(ii) But a special Saving Clause inserted in the re-enacting Statute may continue a Scheme framed under the repealed Act even if
it is inconsistent with the provisions re-enacted; Rajendraswami v. Commr. H.R. & C.E., Rajendraswami v. Commr. H.R. &
C.E., Rajendraswami v. Commr. H.R. & C.E.,
AIR 1965 SC 502 [
LNIND 1964 SC 179 ], p. 505 :
(1964) 8 SCR 252 [
LNIND 1964 SC 179 ]. A judicial order passed under a repealed statute may be
continued as if made under the provisions of the repealing statute although inconsistent with it; Jagir Singh v. Ranbir Singh,
Jagir Singh v. Ranbir Singh, Jagir Singh v. Ranbir Singh,
AIR 1979 SC 381 [
LNIND 1978 SC 323 ], p. 386 :
(1979) 1 SCC 560 [
LNIND 1978 SC 323 ].
(iii) Parliament may, by a saving clause inserted in the re-enacted statute, continue rules framed under the repealed statute which
were factually in force on the date of repeal even if their validity was seriously open to doubt; See Re Fletcher, Ex parte,
Fletcher v. Official Receiver, Re Fletcher, Ex parte, Fletcher v. Official Receiver, Re Fletcher, Ex
parte, Fletcher v. Official Receiver,
(1955) 2 All ER 592 (CA); Bihar Mines Ltd. v. Union of India, Bihar Mines
Ltd. v. Union of India, Bihar Mines Ltd. v. Union of India,
AIR 1967 SC 887 [
LNIND 1966 SC 227 ], p. 892 (para 22, minority judgment):
(1967) 1 SCR 707 [
LNIND 1966 SC 227 ]; Gujarat Pottery Works v. B.P. Sood, Gujarat Pottery
Works v. B.P. Sood, Gujarat Pottery Works v. B.P. Sood,
AIR 1967 SC 964 [
LNIND 1966 SC 228 ]:
(1967) 1 SCR 695 [
LNIND 1966 SC 228 ] (section 29 of the Mines & Mineral Act, 1957 continues
the rules made under the 1948 Act as if the new Act had been in force on the date when the rules were made). When an action
taken under an Ordinance is deemed to be taken under the corresponding provisions of the repealing Act, any question as to
validity of the Ordinance becomes academic and what is to be seen is the validity of Act : R.K. Garg v. Union of India, R.K.
Garg v. Union of India, R.K. Garg v. Union of India,
AIR 1981 SC 2138 [
LNIND 1981 SC 434 ]:
(1981) 4 SCC 675 [
LNIND 1981 SC 434 ].
39 Harish Chandra v. State of M.P., Harish Chandra v. State of M.P., Harish Chandra
v. State of M.P.,
AIR 1965 SC 932 [
LNIND 1964 SC 236 ], p. 938 :
1965 (1) SCR 323 [
LNIND 1964 SC 236 ].
Mr.Srikanth -
Page 85 of 86
40 Deepchand v. State of U.P., Deepchand v. State of U.P., Deepchand v. State of U.P.,

AIR 1959 SC 648 [
LNIND 1959 SC 3 ], pp. 668, 669 (para 35); State of Orissa v. M.A. Tulloch & Co., State of
Orissa v. M.A. Tulloch & Co., State of Orissa v. M.A. Tulloch & Co.,
AIR 1964 SC 1284 [
LNIND 1963 SC 191 ]:
1964 (4) SCR 461 [
LNIND 1963 SC 191 ].
41 Brown v. Magistrate of Edinburgh, Brown v. Magistrate of Edinburgh, Brown v.

Magistrate of Edinburgh,
1931 SLT 456 , p. 458. CRAIES Statute Law, 7th Edition, p. 7. See further SUTHERLAND,
Statutory Construction (5th Edition) Vol. 2, p. 647.
42
AIR 1983 SC 46 [
LNIND 1982 SC 152 ], p. 52 :
(1982) 3 SCC 519 [
LNIND 1982 SC 152 ], pp. 529, 530. Same view was taken by a two judge bench in State of U.P.
v. Hindustan Aluminium Corporation, State of U.P. v. Hindustan Aluminium Corporation, State of U.P. v.
Hindustan Aluminium Corporation,
AIR 1979 SC 1459 [
LNIND 1979 SC 240 ], p. 1473 :
(1979) 3 SCC 229 [
LNIND 1979 SC 240 ].
43
1995(2) Scale 245 :
AIR 1996 SC 2856 [
LNIND 1995 SC 369 ]:
(1995) 3 SCC 434 [
LNIND 1995 SC 369 ].
44 Ibid, p. 253 (Scale) : p. 2862 (AIR).
45 See note 43.
46
AIR 1997 SC 2013 [
LNIND 1997 SC 676 ]:
(1997) 9 SCC 450 [
LNIND 1997 SC 676 ].
47 Ibid, p. 2020.
48 See note 42.
49 Haryana State Lotteries v. Govt. of NCT Delhi, Haryana State Lotteries v. Govt. of NCT Delhi,
Haryana State Lotteries v. Govt. of NCT Delhi, CWP 1254 of 97 dated 17-7-1998 (LAHOTI J.).
Mr.Srikanth -
Page 86 of 86
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 8
Statutes Affecting the Crown or the State
1. THE RULE OF COMMON LAW
(a) General principles
The rule of English law is that no statute binds the Crown unless the Crown1 is named therein
either expressly or by necessary implication. The reason of the rule has been stated to be, that a
statute is presumed to be enacted for the subjects and not for the King. In the words of Plowden:
“It is to be intended that when the King gives his assent he does not mean to prejudice himself or
to bar himself of his liberty and his privileges, but he assents that it be a law among his subjects”.2
A modern statement of the rule is found in a passage from the judgment of Lord Du Parcq which
is as follows: “The maxim of the law in early times was that no statute bound the Crown unless
the Crown was expressly named therein ‘Roy n'est lie per ascun statute, si il ne soit expressment
nosme’. But the rule so laid down is subject to at least one exception. The Crown may be bound,
as has often been said ‘by necessary implication’. If, that is to say, it is manifest from the very
terms of the statute, that it was the intention of the legislature that the Crown should be bound,
then the result is the same as if the Crown had been expressly named. It must, then be inferred
that the Crown, by assenting to the law, agreed to be bound by its provisions.”3
Whatever may have been the historical origin of the rule, whether based on immunity by royal
prerogative or otherwise, there is a consensus of judicial opinion that the rule as at present known
is merely a rule of construction.4 As observed by Lord Macdermott: “The appropriate rule—is
that, in an Act of Parliament general words shall not bind the Crown to its prejudice unless by
express provision or necessary implication. That, however, is, and has long been regarded as a
rule of construction”.5
Mr.Srikanth -
Page 2 of 26
After a review of the earlier cases Lord Keith speaking for the House of Lords stated the rule of
construction as follows: “The crown is not bound by any statutory provision unless there can
somehow be gathered from the terms of the relevant Act an intention to that effect. The crown can
be bound only by express words or necessary implication”.6
The rule has been applied in the colonies and the Commonwealth7 in the sense that “the executive
Government of the State is not bound by statute unless that intention is apparent”.8 The rule has
also been applied in America as a rule of construction.9
The reason, that laws are prima facie made for the subjects and not for the King, which Plowden
gave as a basis of the rule,10 is regarded now-a-days even in England as an overstatement.11 The
rule exempting the State from the operation of general provisions of a statute has been reasoned in
America on the basis of a policy to preserve for the public the efficient, unimpaired functioning of
Government.12
Attempts have been made in early authorities to lay down certain categories as to when the Crown
is bound although not specifically named. Lord Coke indicated three kinds of statutes which
bound the King without specially naming him: (1) Statutes for maintenance of religion, learning
and the poor, (2) Statutes for supression of wron, and (3) Statutes that tend to perform the will of
a founder or donor.13 Similarly, in Bacon's Abridgment it is stated that “where an Act of
Parliament is made for the public good, the advancement of religion and justice, and to prevent
injury and wrong, the King shall be bound by such Act, though not particularly named therein”.14
These generalisations have not met the approval of modern writers,15 and it has been said that “the
question whether the Crown is bound by a statute, in which express provision is not made, is
treated today as one to be answered by reference purely to the provisions of the statute in question
or the Code, of which it forms part”.16 Further, the statement in Bacon's Abridgment laying down
an exception regarding statutes made for the public good has been authoritatively held to be
erroneous.17 There are a series of decisions on Acts which are clearly for the public benefit, in
which the courts have held that the Crown was not affected, not being specially named or brought
in by necessary implication.18 The reason for not drawing a distinction between statutes enacted
for the public good and other statutes is that statutes of a modern State whether they be directed
for imposition of taxes or for safeguarding the health of the community or for any other purpose
are all, at least in theory, enacted for public good.19 By way of another qualification of the rule it
has sometimes been said that the Crown can take advantage of a statute unless prohibited to do so
by express words or necessary implication, even though it may not be bound by it. This
qualification has, however, very slender authority.20
Mr.Srikanth -
Page 3 of 26
The method of application of the rule is, that if the Crown is not expressly named, a general word
capable of including the Crown is, as a matter of construction, read as excluding it, unless the
statute by necessary implication manifests an intention to the contrary.21 The word ‘person’ which
is capable of including the Crown will thus be read as excluding it,22 unless the statute by
necessary implication manifests contrary intention.23 To avoid impairment of the rights of the
Crown the application of the rule of construction enables the court to read an exemption in its
favour.24 Rent Restriction Acts which ‘apply to a house let’ will be read as not applying where the
Crown is the landlord or the tenant,25 and a tax imposed on every ‘occupier’ of property will be
read as excluding any liability when property is in occupation of Crown or for Crown purposes.26
The only safe rule, which may be valid in all cases, to decide whether a given statute binds the
Crown by “necessary implication”, is to read the statute as a whole and to see whether it is
manifest from the very terms of the statute, that it was the intention of the Legislature that the
Crown should be bound.27
The presumption, that the Crown is not bound by a statute, is not rebutted by merely showing that
the legislation in question cannot operate with reasonable efficiency unless the Crown is held to
be bound,28 or, by showing that there are express provisions in the legislation saving certain rights
of the Crown.29
In Bombay Province v. Bombay Municipal Corporation Bombay Province v.

Bombay Municipal Corporation ,30 the question was whether the provisions of the Bombay
Municipal Act, 1888, which authorised the Commissioner to carry water-mains and municipal
drains ‘through or under any land whatsoever within the city’, were applicable in respect of
Government land within the city. The Bombay High Court in arriving at the conclusion that even
Government land within the city was subject to the statutory power of the Corporation to carry
water-mains, observed that if it can be shown that legislation “cannot operate with reasonable
efficiency” unless the Crown is bound, that would be sufficient reason for saying that the Crown
is bound by necessary implication. In overruling the decision of the Bombay High Court, the
Privy Council said that “to interpret the principle in the sense put upon it by the High Court would
be to whittle it down and they cannot find any authority which gives any support to such an
interpretation”.31 Another argument addressed was, that there were certain express references to
the Crown in other parts of the Act, and certain exemptions from the municipal laws in the
Government Building Act, 1899, which showed that the Crown was bound, otherwise the
exemptions would be unnecessary. In answer to this, the Privy Council said: “This is not an
unfamiliar argument, but, as has been said many times, such provisions may often be inserted in
one part of an Act, or in a later General Act, ex abundanti cautela”.32
Mr.Srikanth -
Page 4 of 26
The presumption that the Crown or the State is not bound would be rebutted and an intention to
bind would be clearly made out if it could be shown from the terms of the statute taken as a whole
that the purpose of the statute would be “wholly frustrated”;33 or, “the legislation would be
unmeaning”34 unless the Crown or the State were held to be bound.
The Privy Council in considering how far the purpose of a statute is a relevant factor in
determining whether the Crown is bound by necessary implication, laid down as follows: “The
apparent purpose of the statute is one element, and may be an important element, to be considered
when an intention to bind the Crown is alleged. If it can be affirmed that, at the time when the
statute was passed and received the royal sanction, it was apparent from its terms that its
beneficent purpose must be wholly frustrated unless the Crown were bound, then it must be
inferred that the Crown has agreed to be bound. When the court is asked to draw this inference, it
must always be remembered that, if it be the intention of the Legislature that the Crown shall be
bound, nothing is easier than to say so in plain words.”35
The decision of the Privy Council in the case of Bombay Province v. Bombay Municipal
Corporation Bombay Province v. Bombay Municipal Corporation ,36 was fully
accepted by the House of Lords in Lord Advocate v. Dumbarton District Council
Lord Advocate v. Dumbarton District Council .37 In this case the contractors employed by the
Ministry of Defence, with the approval of the relevant crown agency, while carrying on certain
work on crownland adjoining a highway, encroached upon a part of the highway. The local
highway authority and the local planning authority claimed by notices issued by them that the
encroachment on the Highway and the work undertaken were contrary to the provisions of the
Roads (Scotland) Act, 1947 and the Town and Country Planning (Scotland) Act, 1972. The House
of Lords held that the Crown was not bound by these Acts, on the basis of the rule that the Crown
is not bound by an Act unless named therein expressly or by necessary implication.
In spite of the rule, the immunity of the Crown has been affected by other factors. Section 1 of the
Crown Proceedings Act, 1947 enables the Crown to be sued directly in those situations where
prior to the Act a claim might have been enforced by petition of right. Section 2 in general
permits actions to be brought against the Crown in respect of torts committed by its servants or
agents for any breach of its duties which gave rise to a tortious liability (including a breach of
statutory duty where the breach created a cause of action).38 The prerogative writs could not be
issued against the Crown and originally this difficulty could not be avoided by bringing the
proceedings against a minister of the Crown. But where a duty was imposed by statute for the
benefit of the public upon a particular minister, so that he was under an obligation to perform that
duty in official capacity, then orders of mandamus and prohibition were granted against the
minister. After the introduction of the procedure of judicial review in 1977 by Order 53 RSC and
thereafter by the Supreme Court Act, 1981, declaration and injunction including an interim
injunction can also be granted against a minister in his official capacity and he can be found to be
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in contempt in failing to comply with the injunction.39 Further, the concept of State under the
community law which binds the Crown has been expanding. Directives under the community law
which a citizen can rely against the State can also be relied upon in a claim for damages against a
body, whatever its legal form, which has been made responsible, pursuant to a measure adopted
by the State, for providing a public service under the control of the State and which has for that
purpose special powers beyond those which result from the normal rules applicable in relations
between individuals.40 However, there are certain areas which are not open to judicial review and
where the Crown is not answerable in courts. For example, the treaty making power in U.K. rests
not in the courts, but in the Crown, that is, Her Majesty acting on the advice of ministers. When
Her ministers negotiate and sign a treaty, they act on behalf of the country as a whole. Their
action in so doing cannot be challenged or questioned in the courts.41
Although the rule still holds the field in England, it has not escaped criticism. Glanville L.
Williams in his book on ‘Crown Proceedings’, (1948) pp. 53 and 54, criticised the rule as follows:
“The rule originated in the Middle Ages when it had perhaps some justification. Its survival,
however, is due to little but vis inertiae. The chief objection to the rule is its difficulty of
application—. With the great extension in the activities of the State and the number of servants
employed by it, and with the modern idea, expressed in the Crown Proceedings Act, that the State
should be accountable in wide measure to the law, the presumption should be that a statute binds
the Crown rather than it does not.” Though upholding the rule, the House of Lords recently
remarked: “It is most desirable that Acts of Parliament should always state explicitly whether or
not the Crown is intended to be bound by any, and if so which, of their provisions.”42
(b) Extent of the rule
According to English law the protection of the rule of presumption that the Crown is not bound by
statutes extends to three classes of persons: (i) The Sovereign personally, (ii) his servants or
agents acting as such, and (iii) persons who, though not strictly servants or agents, are considered
to be in consimili casu. Class (ii) covers not only officers of the State with ministerial status but
all subordinate officials as also servants holding statutory offices. In determining if a person
holding a statutory office is a servant of the Crown, the degree of control exercised by the Crown,
and the amount of discretion left with the holder of the office are relevant and important factors to
be taken into account. Persons in consimili casu with servants of the Crown are persons who
though independent of the Crown perform, exclusively or to a limited degree, the regal
governmental functions such as, the administration of justice, the maintenance of order, the
repression of crime, the carrying on of war, the making of treaties of peace and other
consequential functions. In some cases the distinction between class (ii) and class (iii) has not
been maintained and the performance of the above-mentioned functions has also been taken into
account in deciding whether a particular person falls under class (ii). The courts are not inclined
to include within the exempted categories an aggregation of commercial undertakings brought
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under some degree of public statutory control. When a person belonging to class (iii) performs
some of the regal functions as also other functions not consequential to that category the benefit
of immunity applies to the performance of regal functions only.
Some of the important cases from which the principles noticed above are deducible are considered
below:
In Mersey Docks & Harbour Board v. Cameron Mersey Docks & Harbour Board v.
43
Cameron , a non-profit earning statutory corporation, which was not subject to control by the
Crown or a Minister and whose revenues were not Crown revenues, claimed immunity from local
rates and the question before the House of Lords was whether such a corporation could claim
Crown privileges on the ground that it was performing a public duty. The decision negatived the
privilege so claimed, but established certain principles of great importance. Blackburn, J. in
delivering the opinion of the five of the consulted Judges said: “Long series of cases have
established that where property is occupied for the purposes of the Government of the country,
including under that head the police and the administration of justice, no one is rateable in respect
of such occupation. And this applies not only to property occupied for such purposes by the
servants of the great departments of State, such as the Post Office; the Horse Guards; or the
Admiralty—in all of which cases the occupants might strictly be called the servants of the Crown;
but also to property occupied by local Police; to county buildings—, or occupied as a county
court; or for a jail. In these latter cases it is difficult to maintain that the occupants are, strictly
speaking, servants of the sovereign, so as to make the occupation that of Her Majesty; but the
purposes are all public purposes of that kind which, by the
Constitution of this country, fall within the province of Government and are
committed to the sovereign; so that the occupiers, though not strictly servants of the sovereign,
might be considered in consimili casu.”44 In the same case, Lord Cranworth, after referring to the
various instances where the rule of Crown immunity had been applied to exempt buildings
occupied for purposes of the Government from rates and other impositions said: “These decisions,
however, have all gone on the ground more or less sound, that these might all be treated as
buildings occupied by the servants of the Crown, and for the Crown, extending the shield of the
Crown to what might more fitly be described as the public Government of the country”.45
In Greig v. Edinburgh University Greig v. Edinburgh University ,46 an exemption

from local rates was claimed by a university and was rejected. This case closely resembled
Mersey Dock's case [ supra] and Lord Westbury in this case said: “The true ground of exemption
was ascertained and expressed by this House is the Mersey Dock's case [ supra]; and it was found
to rest altogether upon this fact that the poor laws did not include the Crown; the Crown not being
named in the statute. The result, therefore, was that Crown property, and property, occupied by
servants of the Crown and (according to the theory of the
Constitution ) property occupied for the purposes of the administration of the
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Government of the country, became exempt from liability to poor-rates.”47
In Coomber v. Berkshire Justices Coomber v. Berkshire Justices ,48 the House of

Lords decided that the premises occupied by courts of assize or as county police stations attracted
Crown immunity from payment of income-tax. Lord Blackburn said that the Act showed no
intention to impose tax on property belonging to the Crown and did not take away ‘the exemption,
by virtue of the prerogative, of property actually occupied or enjoyed by the Crown’. He then said
that the administration of justice, the preservation of order and the prevention of crime are
functions ‘that by the
Constitution of this country—do, of common right, belong to the Crown’, and after
discussing earlier cases he added: “I do not say that the assize courts, maintained by the county
for the administration of the Queen's justice in the Queen's Court, are quite so clearly occupied by
the servants of the Crown as those courts which are maintained by the Woods and Forests out of
the general revenue of the country. Nor do I say that the police station, maintained by the county
for the maintenance of the police, is quite so clearly occupied by the servants of the Crown as a
barrack maintained for soldiers, and paid for out of the general revenue of the country. But, I
think, there is a great reason for saying that both are maintained for the purposes of the
administration, or those purposes of the Government which are according to the theory of the
Constitution , administered by the sovereign.”49 In the same case Lord Watson after
referring to certain parts of the speech of the Lord Westbury in Mersey Dock's case50 said: “The
precise language of the definition satisfies me that the noble and learned Lord meant to affirm,
and did affirm, that the exemption extended not only to the immediate and actual servants of the
Crown, but to all other persons not being servants of the Crown, whose occupation was ascribable
to a bare trust for purposes required and created by the Government of the country. And seeing
that, in my opinion, the administration of justice, the maintenance of order, and the repression of
crime are among the primary and inalienable functions of a constitutional Government, I have no
hesitation in holding that assize courts and police stations have been erected for proper
Government purposes and uses, although the duty of providing and maintaining them has been
cast upon county or other local authorities.”51
In Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property Bank

52
voor Handel en Scheepvaart v. Administrator of Hungarian Property , the earlier cases were
reviewed, and it was held by the House of Lords that income from investments of enemy property
vested in the Custodian of Enemy Property under the Trading with Enemy Act, 1939, was exempt
from income-tax as the Custodian, though holding a statutory office, was a servant of the Crown
and as the arrangements for the disposal of the income were to be made and could be made
without the authority of Parliament by the Crown which was not bound to ensure that each item or
property was returned to its former owner thereby giving the Crown sufficient interest to entitle
the Custodian to claim immunity from the tax. The court pointed out three classes of persons who
come within the principle of Crown immunity: (i) The Sovereign personality; (ii) His servants and
agents; (iii) Persons who are not Crown servants or agents, but who, for certain limited purposes,
are considered to be in consimili casu. Lord Tucker deduced five propositions from the earlier
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cases, applicable to class (ii) and class (iii): “(1) The immunity extends at least to include all those
officers of State and their subordinates who now perform pursuant to statutory authority,
functions of public Government which were formerly the peculiar prerogative of the Crown. (2)
Such functions include the making and carrying on of war and the making of treaties of peace and
other consequential international arrangements and the performance thereof. (3) It is immaterial
whether the person in respect of whom the immunity is claimed is himself an officer of State with
Ministerial status, or is a subordinate official of such Minister, or is himself an executive officer
of lower status than that of a Minister. (4) The immunity extends to such persons only so long as
they are acting in the capacity described above. (5) This immunity also extends to persons who do
not come within the class above described but are the owners or occupiers of property exclusively
used for purposes of Government. The immunity only protects such persons in respect of liability
or disability arising in respect of the ownership or occupation of such property. This is the class
(iii) above and generally referred to as in consimili casu.”53 Lord Reid in the same case, speaking
about class (ii) said, that there was nothing in the earlier cases which required to limit the class of
servants of the Crown to Ministers and the like, or exclude the subordinate servants of the Crown
and the question whether an officer is a servant of the Crown depended on the degree of control
which the Crown through its Ministers could exercise over him in the performance of his duties.
Dealing with the case of a statutory office, Lord Reid observed: “The fact that a statute has
authorised his appointment is, I think, immaterial, but the definition in the statute of his rights,
duties and obligations is highly important. In the ordinary way, a civil servant's duties are not
prescribed though his salary may be fixed in Parliament, and I have no doubt that he is the servant
of the Crown. But when a statute creates an office it may give to the holder more or less
independence from Ministerial control so that the officer has, to a greater or less extent, a
discretion which he alone can exercise, and it may be that the grant of any substantial independent
discretion takes the officer out of the category of servants of the Crown for the present purpose.”54
Further, in distinguishing class (ii) and class (iii) Lord Reid said: “Those in consimili casu are
typically bodies like the justices, independent of the Crown asserting Crown privilege, not for the
benefit of the revenues of the Crown, but for the benefit of their own revenues, in order that the
functions which they are carrying out shall not be prejudiced, and it is easy to see why such
independent bodies can only be permitted to claim Crown privilege in respect of a very limited
class of functions, and only if the property or money in respect of which the immunity is claimed
is wholly devoted to those functions. But the case of a subordinate servant of the Crown is very
different. If a Minister receives income to be used in the service of the Crown it does not matter
whether the purposes for which it is to be used are, or are not, purposes which if carried out by
independent bodies, would put them in consimili casu with servants of the Crown; in all cases he
can claim Crown immunity. And I can see no possible reason why, if a subordinate servant of the
Crown received income to be used in the service of the Crown, he should not be entitled to assert
the same privilege.”55 Lord Asquith, in the same case dealing with class (iii), i.e., persons in
consimili casu with servants of the Crown, said: “Persons may enjoy immunity who are not
servants of the Crown. Persons will tend to be placed in this category if the public functions
which they discharge are closely connected with the exercise of the Royal prerogative; e.g., inter
alia, the administration of justice, the preservation of public order, the making of war, and the
conclusion of peace. And the Courts appear, on some of the authorities, to have taken these last
factors into account as relevant in deciding who is a ‘servant of the Crown’ within the second
class.”56 Lord Asquith then proceeded to lay down a further principle: “The courts will lean
against including in any of the exempted categories an aggregation of commercial undertakings
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brought under some degree of public statutory control; and they will (if the other requirements are
satisfied) lean in favour of exemption for persons or bodies who are mere Ministerial instruments
of the Crown's will, lacking in themselves any discretion or initiative.”57
In Cooper v. Hawkins Cooper v. Hawkins ,58 an army engine driver who drove a
locomotive on Crown service at a speed exceeding the limit fixed by regulations under a statute
was held to be not liable for the breach of the speed limit as in the absence of express words the
statute did not bind the Crown.
In Clarke v. Downes Clarke v. Downes ,59 it was held that a purchaser of Crown
property was not bound by Rent Restriction Acts as regards a tenancy created by the Crown, and
in Rudler v. Franks Rudler v. Franks ,60 it was held that a tenant who held from the
Crown could eject his sub-tenant in spite of the Rent Restriction Acts.
In London Territorial Association v. Nichols London Territorial Association v.

Nichols ,61 a Territorial Association constituted under the Territorial and Reserve Forces Act,
1907, successfully claimed immunity from Rent Restriction Acts in respect of tenancy created by
it of property vested in it for Crown purposes. Under the Act the function to raise a territorial
army and certain administrative functions of the Crown were transferred to territorial associations,
which functions were to be exercised under the strictest control and supervision of the Army
Council, one of such functions being that of holding land and letting it (when not usable or being
used for direct military purposes) to ordinary members of the public. The case according to the
court of appeal satisfied both the tests, viz., the test of status with respect to the body or person
claiming immunity and the test of purpose with respect to the transaction for which the immunity
is claimed being a Crown purpose. It was held that the function of helping to raise a territorial
army was typically a governmental function and contrasted sharply with functions semi-
commercial and discharged previously by private commercial bodies and that the association
discharging such a function under the control of the Army Council was like a Minister or an organ
of the Central Government, a direct emanation of the Crown and satisfied the test of status. It was
further held that the association acted for Crown purposes not only when it occupied land or
buildings by itself or its military staff or officers, but also when it leased out to the members of
the public premises not then needed for occupation of armed forces, but which could in time be
needed for that purpose again, to ensure that in the interim period such premises did not run to
waste, but rather that they were economised and exploited for the benefit of the public and the
Exchequer.
In County Council of Middlesex v. Assessment Committee of St. George's Union

County Council of Middlesex v. Assessment Committee of St. George's Union ,62 the question
raised was, whether certain premises in occupation for administration of justice and also for
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municipal purposes were rateable. It was held that the premises were rateable in so far as they
were occupied for municipal purposes, and not rateable in so far as they were occupied for the
administration of justice, which was held to be a Crown function.
In Tamlin v. Hannaford Tamlin v. Hannaford ,63 the question before the Court of
Appeal, was, whether the Transport Commission constituted under the Transport Act, 1947, was a
servant or agent of the Crown, and could claim immunity from Rent Restriction Acts in respect of
property vested in it. After noticing that the Commission was under the general control of the
Minister of Transport whose powers over the Corporation were as great as those possessed by a
man who holds all the shares in a private company, and that the money which the Commission
needs was raised by borrowing guaranteed by the Treasury, the court held that these features were
insufficient to make the Commission, which was a commercial corporation, a servant or agent of
the Crown, entitling it to claim Crown immunity. Distinguishing the Commission from the
Territorial Army Association and the Post Office, Denning, L.J. said: “The Territorial Army
Association, for instance, is not concerned with commercial matters, but with the defence of the
realm, which is essentially the province of Government, and it is, therefore, to be considered an
agent of the Crown. The Post Office is the nearest analogy. It is, of course, concerned with
commercial matters, but it is, nevertheless, a governmental department and its servants are civil
servants. That is, however, an anomaly due to its history. The carriage of mail was a Crown
monopoly long before the Postmaster-General was incorporated. But the carriage of passengers
and goods is a commercial concern which has never been the monopoly of any one and we do not
think that its unification under State control is any ground for conferring Crown privileges on
it.”64 Further, referring to the factor of control exercised by the Minister of Transport as a possible
criterion to show that the Commission was a servant or a agent of the Crown, Denning, L.J.
observed: “There is ample authority both in this court and the House of Lords for saying that such
control as he exercises is insufficient for the purpose.65 When Parliament intends that a new
Corporation should act on behalf of the Crown, it, as a rule, says so expressly as it did in the case
of Central Land Board by the Town and Country Planning Act, 1947, which was passed on the
same day as the Transport Act, 1947. In the absence of any such express provision, the proper
inference, in the case, at any rate, of a commercial corporation, is that it acts on its own behalf,
even though it is controlled by a Government department.”66
In British Broadcasting Corporation v. Johns British Broadcasting Corporation v.

67
Johns , the corporation which was established by Royal Charter and which operated under a
licence granted by the Postmaster General and to a large extent under his control claimed
immunity from taxation under the
Income-tax Act , 1952. It was held that the corporation was not entitled to the
Crown's exemption from taxation, because broadcasting was not a province of Government and
the corporation was an independent body corporate which was not exercising functions required
and created by the Government.
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In a recent Australian case68 the Water Administration Ministerial Corporation constituted as a

‘statutory body representing the crown’ under section 7 of the Water Administration Act, 1986
was held liable in damages for supplying polluted water to the appellants for irrigation which
damaged their potato crop inspite of section 19(1) providing immunity from an action ‘with
respect to loss or damage suffered as a consequence of the exercise of Ministerial function of the
corporation including the exercise of a power: (a) to use works to impound or control water, or (b)
to release water from any such works’. One of the objects of the corporation was ‘to meet the
needs of the water users in a commercial manner’. The High Court of Australia construed the
immunity provision strictly as not applying to supply of water on payment, i.e., to a commercial
transaction.
In certain cases the phrase ‘emanation of the Crown’ has been used to signify bodies and persons
to whom the Crown privilege could extend, but the use of this phrase has been deprecated by the
Privy Council and preference has been shown for the use of the phrase ‘servant or agent of the
Crown’. 69 The use of the latter phrase has also been found to be appropriate by the House of
Lords.70 Another phrase to signify the same things is ‘alter ego of the Government’ which has
been used by the House of Lords71 and Court of Appeal.72
2. THE RULE IN INDIA
In Director of R & D v. Corporation of Calcutta Director of R & D v. Corporation

of Calcutta ,73 it was held that the common law rule that the Crown was not bound by a statute
unless named expressly or by necessary implication applied to India before the
Constitution as held by the Privy Council in Bombay Province v. Bombay Municipal
Corporation Bombay Province v. Bombay Municipal Corporation 74
and it continued to apply after the

Constitution in the form that the State is not bound by a statute unless it is so
provided in express terms or by necessary implication. But this view was overruled in State of
W.B. v. Corporation of Calcutta State of W.B. v. Corporation of Calcutta .75 In this
case it was held that the common law rule of construction was not accepted prior to the
Constitution throughout India and even in the Presidency towns it was not regarded
as an inflexible rule. In this connection it was pointed out that in the Privy Council case of
Bombay Province v. Bombay Municipal Corporation Bombay Province v. Bombay
76
Municipal Corporation , the rule was applied on a concession made by Counsel, and that the
legislative practice in India established that the various Legislatures of the country provided
specifically exemptions in favour of the Crown whenever they intended to do so indicating
thereby that they did not rely upon any presumption, but only on express exemption. It was
further held, that the rule of Common Law which was based on prerogative of the Crown had no
relevance to a democratic republic, and was inconsistent with the rule of law based on the
doctrine of equality enshrined in the
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Constitution . As a result of this decision, the rule that applies in India is, that a
“general Act applies to citizens as well as to State unless it expressly or by necessary implication
exempts the State from its operation”.77 The same rule will apply to Government bodies and
corporations constituted under Special Acts.78
The question whether the State has been exempted by necessary implication from the operation of
an Act or any of its provisions will depend upon a fair construction of the Act in question. As
observed by Bachawat, J.: “Particular care should be taken in scrutinising the provisions of a
taxing or a penal Act. If the application of the Act leads to some absurdity, that may be a ground
for holding that the State is excluded from its operation by necessary implication. If the only
penalty for an offence is imprisonment, the State cannot be convicted of the offence, for the State
cannot be locked up in prison. If the penalty for offence is fine and the fine goes to the
consolidated fund of the State, it may be presumed that the penal provision does not bind the
State, for the Legislature could not have intended that the State will be the payer as well as the
receiver of the fine. Presumably, the Union is not bound by the Central
Income-tax Act because if it paid income-tax, it will be both the payer and receiver.
Likewise, a State is prima facie not bound by a State Agricultural
Income-tax Act , where the tax is receivable by it. Moreover, cases may conceivably
arise where express provisions in a statute binding the State in respect of certain specific matters
may give rise to the necessary implication, that the State is not bound in respect of other
matters.”79
The facts in this case80 were that the State of West Bengal was carrying on the trade of a daily
market without taking out a licence and paying the prescribed fee as required by section 218 of
the Calcutta Municipal Act, 1952. Section 541 of the Act makes it an offence punishable with fine
to carry on trade or business without a licence and the fine levied is taken by the corporation in
full satisfaction of the demand on account of the licence. It was held that the State was bound by
these provisions of the Act and was liable for the offence as it had not taken a licence to carry on
the business. It must be noticed that the fine recovered under section 541 did not go to the
consolidated fund of the State, but to the corporation's fund and, therefore, the Act contained no
implication that the State was not liable for the offence.
When a penal enactment providing for imprisonment or fine (which goes to Government) is made
applicable to Government or a Government department, it will generally indicate the officer who
is liable to be punished for the offence. For example, when a lottery is organised, conducted or
promoted by a department of a State Government in contravention of the
Lotteries (Regulation) Act, 1998 , the Head of the Department is liable under section
7(1) to be punished with rigorous imprisonment which may extend to two years or with fine or
both.
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In Union of India v. Jubbi Union of India v. Jubbi ,81 the question was whether
section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act,
1953, applied to the Union. The section conferred on tenants the right to acquire the interests of
landlord on payment of compensation, and it was contended by the Union that the section was not
applicable to cases where the Government was the landlord. This contention was rejected and the
court observed: “The position now is that a statute applies to State as much it does to a citizen
unless it expressly or by necessary implication exempts the State from its operation—. Neither
section 11 nor any other provision in the Act contains any express exemption. Broadly stated, if
the Legislature intended to exclude the applicability of the Act to the State it could have stated in
section 11 itself or by a separate provision that the Act is not to be applied to the Union or to the
lands held by it. In the absence of such a provision, in a constitutional set up as the one we have in
this country, and of which the overriding basis is the broad concept of equality, free from any
arbitrary discrimination, the presumption would be that a law of which the avowed object is to
free the tenant of landlordism and to ensure to him security of tenure would bind all landlords
irrespective of whether such a landlord is ordinary individual or the Union.”1
The word ‘person’ in Regulation 3(1)(a) of the Andhra Pradesh Scheduled Area Land Transfer
Regulations, 1959 which prohibits any ‘person’ to transfer land to non-tribals was held to include
also the State, thus prohibiting the transfer of any Government land to non-tribals.2
It has been held that if a State disobeys a temporary injunction, its property is liable to be attached
under Order 39, Rule 2(3) of the
Civil Procedure Code, 1908 .3 It has also been held that a State can be sued at a place
where it carries on business in accordance with section 20 of the Code.4 The position is that “the
State is bound by the
Code of Civil Procedure , the scheme of the Code being that subject to any special
provision made in that regard as respects Government, it occupies the same position as any other
party to a proceeding before the court”.5
Construing Entry 42 list III of the

Constitution , which relates to ‘acquisition and requisitioning of property’ the
Supreme Court held that the Union has power to legislate for acquisition of property belonging to
a State.6 It must be noticed that a
Constitution is intended to bind the State and even the common law rule, that
Crown's rights are not affected by an Act except by express words or necessary implication, does
not apply for construing a
Constitution .7
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In view of
Article 285 of the Constitution property of the Union is exempt from taxation
imposed by a state law unless the Parliament provides otherwise.8
The Roadways Department of the State of Uttar Pradesh was held liable for payment of toll tax
levied under section 15 of the Northern India Ferries Act, 1876 “on all persons, animals, vehicles
and other things crossing any river by a public ferry and not employed or transmitted on the
public service”.9
It has been held that the

Consumer Protection Act, 1986 applies to a statutory authority and a Government or
semi-government body or a local authority in the same way as it applies to private bodies for the
Act does not either expressly or impliedly indicate that these bodies are excluded from the
purview of the Act.10
A company registered under the

Companies Act is not a Government department even if its share capital be wholly
subscribed by the Government.11 Therefore, even in cases where an Act does not apply to the
Government, an agency or instrumentality of the Government, which is not a department of the
Government, will be bound by the Act specially when it is a welfare Legislation. Thus the
Hindustan Steel Works Construction Ltd., a company which is fully owned by the Central
Government was held to be bound by the Kerala Construction Workers Welfare Funds Act, 1939,
even though the Act has no application to the Central Government.12 It is also well settled that
constitutional provisions exempting Government properties from taxation (Article 285) do not
apply to such Companies.13 The same rule has been applied to a statutory corporation like the
Food Corporation of India which is an autonomous body and has an identity of its own.14 A
Government company even when coming within the meaning of State as defined in
Article 12 of the Constitution , for making it liable to comply with the requirements
of fundamental rights in its working, is not an agent of the Government for all purposes so as to
bind the Government for all its acts, liabilities and obligations.15 The inclusive definition of State
in
Article 12 of the constitution which has been widely construed16 is applicable only to
Parts III and IV of the
Constitution dealing with fundamental rights and directive principles of state policy
and has no application to other provisions of the
Constitution , e.g., Articles 309, 310 and 311 or to give extended meaning to
expressions State or State Government in other enactments, e.g.,
section 9A of the Representation of the People Act, 1951 17
. A Government
department has to be an organisation which is not only completely controlled and financed by the
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Government but has no identity of its own.18
Article 285 which relates to exemption of Union property from State taxation and Article 289
which relates to exemption of property of a State from Union taxation have no application to
indirect taxes such as customs duty, central excise duty, sales tax etc.19 The Union is therefore
liable to sales tax under a State Act.20 But a municipal corporation cannot evade the ban of Article
285 and tax Union property by levying service charges for water, electricity supplied and drainage
and roads provided to Posts and Telegraph buildings.21
The state is normally not liable to pay the salaries of employees of a Government company or a
Government corporation even vicariously. But when non-payment of salaries results in violation
of fundamental right to life and liberty of employees on a large scale, the corporate veil can be
pierced and the State can be made liable for having control over the affairs of the Government
company or the corporation it was duty bound to see that the human rights of the employees are
not infringed.22
1 For meaning of the expression ‘Crown’ and ‘Her Majesty’ and their relationship with Government Departments,
Ministers and Civil Servants. See Town Investments Ltd. v. Department of the Environment, Town
Investments Ltd. v. Department of the Environment,
(1977) 1 All ER 813 (HL), pp. 817, 818 :
(1978) AC 359 :
(1977) 2 WLR 450 (LORD DIPLOCK) and 831 to 834 (LORD SIMON). For meaning of
‘Crown’ in relation to the Commonwealth of Australia see Sue v. Hill, Sue v. Hill, (1999) 73 ALJR 1016, p. 1036
[The circumstances that the same monarch exercises regal functions under the constitutional arrangements in the United Kingdom
and Australia does not affect the fact that the United Kingdom is a foreign power within the meaning of
section 44 of the Constitution of Australia which deals with nationality (GLEESAN C.J., GUMMOW AND
HAYNE, JJ.)].
2 Willion v. Berkley, Willion v. Berkley, (1562) 1, Plowed 223, p. 240; and see A.G. v.
Donaldson, A.G. v. Donaldson, (1874) 10 M & W 117, p. 123 (ALDEASON, B.); A.G. v. Hancock,
A.G. v. Hancock,
(1940) 1 All ER 32 , p. 34; Madras Electric Supply Corporation v. Boarland,
Madras Electric Supply Corporation v. Boarland,
(1955) 1 All ER 753 , p. 765 :
1955 AC 667 (HL).
3 Bombay Province v. Bombay Municipal Corporation, Bombay Province v. Bombay

Municipal Corporation, AIR 1947, PC 34, p. 35 :
1947 AC 58 , p. 61 (PC); referred to in Premchand Nathu & Co. v. Land Officer,
Premchand Nathu & Co. v. Land Officer,
(1963) 1 All ER 216 , p. 221 (PC); Lord Advocate v. Dumbarton District Council,
Lord Advocate v. Dumbarton District Council,
(1990) 1 All ER 1 , pp. 9, 10 :
(1990) 2 AC 580 :
(1990) 3 WLR 1346 (HL).
Mr.Srikanth -
Page 16 of 26
4 Madras Electric Supply Corporation v. Boarland, supra, Madras Electric Supply

Corporation v. Boarland, supra, pp. 759, 762.
5 Ibid, p. 753.
6 Lord Advocate v. Dumbarton District Council, Lord Advocate v. Dumbarton

District Council,
(1990) 1 All ER 1 , p. 18 :
(1990) 2 AC 580 :
(1990) 3 WLR 1346 (HL).
7 Roberts v. Ahern, Roberts v. Ahern,

(1904) 1 CLR 406 ; Premchand Nathu & Co. v. Land Officer, Premchand
Nathu & Co. v. Land Officer, supra.
8 Roberts v. Ahern, Roberts v. Ahern, supra, p. 418. But in Australia atleast, having
regard to the manifold activities of the executive government, the stringent test of necessary implication is no longer applicable.
Further section 22(1) of the Acts Interpretation Act, 1961 (cth) provides that unless the contrary intention appears expressions used
to denote persons generally include a body politic: Bass v. Permanent Trustee Company Ltd., Bass v. Permanent
Trustee Company Ltd., (1999) 73 ALJR 522, pp. 527, 528.
9 United States of America v. United Mine Workers of America, United States of

America v. United Mine Workers of America, (1946) 330 US 358 : 91 Law Ed 884; United States of America v. Reginald P. Wittek,
United States of America v. Reginald P. Wittek, (1948) 337 US 346 : 93 Law Ed 1406.
11 A.G. v. Hancock, A.G. v. Hancock,

(1940) 1 All ER 32 .
12 SUTHERLAND: Statutory Construction, (3rd Edition), Vol. 3, pp. 184, 185.
13 Magdalen College, Cambridge Case, (1616) 11 Co. Rep 66 b, pp. 70b, 72a, 73b.
14 BACON'S Abridgment, 7th Edition, p. 462; referred by JESSEL, M.R. in Borham Re, Ex parte, Postmaster-General,
Borham Re, Ex parte, Postmaster-General,
(1878) 10 Ch D 595 , p. 601 and by LORD PARMOOR in A.G. v. De Keyser's Royal Hotel,
A.G. v. De Keyser's Royal Hotel,
(1920) AC 508 :
(1920) All ER Rep 80 , p. 110 (HL).
15 CRAIES on Statute Law, 6th Edition, p. 443; MAXWELL, Interpretation of Statutes, 11th Edition, p. 135;
HALSBURY'S Laws of England (3rd Edition), Vol. 36, p. 431.
16 HALSBURY'S Laws of England (3rd Edition), Vol. 36, p. 431.
Mr.Srikanth -
Page 17 of 26

(1940) 1 All ER 32 , p. 36 (and see cases referred to therein); Bombay Province v. Bombay
Municipal Corporation, Bombay Province v. Bombay Municipal Corporation, AIR 1947, PC 34, p. 36; London
Territorial Association v. Nichols, London Territorial Association v. Nichols,
(1948) 2 All ER 432 , p. 433 (SCOOT, L.J.); Lord Advocate v. Dumbarton District Council,
(1990) 1 All ER 1 , p. 13 :
(1990) 2 AC 580 :
(1990) 3 WLR 1346 (HL).
18 Ibid.

Municipal Corporation, supra, p. 36; London Territorial Association v. Nichols, London Territorial Association v.
Nichols, supra, p. 433.
20 Maxwell, Interpretation of Statutes, 12th Edition, p. 168. But see Bennion, Statutory Interpretation (4th edition, p.
163).
21 Madras Electric Supply Corporation v. Boarland, Madras Electric Supply

Corporation v. Boarland,
(1955) 1 All ER 753 , p. 759 :
(1955) 2 WLR 632 (HL).

(1940) 1 All ER 32 , p. 37; Madras Electric Corporation v. Boarland, supra
Madras Electric Corporation v. Boarland, supra .
23 Madras Electric Corporation v. Boarland, supra. Madras Electric Corporation v.

Boarland, supra.
24 Minister of Agriculture v. Jenkins, Minister of Agriculture v. Jenkins,

(1963) 2 All ER 147 , p. 149 (CA).
(The Crown does not need to get planning permission in respect of Crown lands under the Town and Country Planning
Act, 1947, not by virtue of any provision in the Act, but it is exempt by reason of the general principle).
25 Clarke v. Downes, Clarke v. Downes,

(1931) 145 LT 20 :
(1931) All ER Rep 157 , p. 159.
26 Mersey Docks & Harbour Board v. Cameron, Mersey Docks & Harbour Board v.
Cameron, (1865) 11 HLC 443 ; 11 ER 1045 :
(1861-73) All ER Rep 78 , pp. 84, 85, 95, 96 (HL).
Mr.Srikanth -
Page 18 of 26

Municipal Corporation, AIR 1947, PC 34, pp. 35, 36.
29 Hornsey Urban District Council v. Hennel, Hornsey Urban District Council v.

Hennel,
(1902) 2 KB 73 , p. 80; Bombay Province v. Bombay Municipal Corporation, supra,
Bombay Province v. Bombay Municipal Corporation, supra, 37; Lord Advocate v. Dumbarton District Council,
(1990) 1 All ER 1 , p. 15 :
(1990) 2 AC 580 :
(1990) 3 WLR 1346 (HL).
30 AIR 1947, PC 34.

N.B.— This case is now not an authority in India. (See title 2 ‘The Rule in India’, infra, but it still
represents correctly the common law rule).

Municipal Corporation, AIR 1947, PC 34, pp. 35, 36.
32 Ibid, p. 37.
33 Ibid, p. 36.
34 Gorton Local Board v. Prison Commissioners, Gorton Local Board v. Prison

Commissioners, (1887) Reported in
(1904) 2 KB 165 n, p. 167n (DAY, J.).

Municipal Corporation, AIR 1947, PC 34, p. 36.
36 Ibid.
37
(1990) 1 All ER 1 , pp. 9, 10, 15 :
(1990) 2 AC 580 :
(1990) 3 WLR 1346 (HL).
38 S. 40(2)(f) of the Crown Proceedings Act, 1947 specifically provides that the presumption of Crown immunity is not
to be affected. The two primary objects of the Act were (1) to enable a plaintiff in England to proceed against the Crown as of right
instead of by petition of right and (2) to subject the Crown in both England and Scotland to actions founded in tort and delict in the
same way as other defendants; British Medical Association v. Greater Glasgow Health Board, British Medical
Association v. Greater Glasgow Health Board,
(1989) 1 All ER 984 , p. 990 :
(1989) AC 1211 :
(1989) 2 WLR 660 (HL).
39 M. v. Home Office, M. v. Home Office,

(1993) 3 All ER 537 , pp. 558, 559, 560, 564, 567 :
Mr.Srikanth -
Page 19 of 26
(1994) 1 AC 377 :
(1993) 3 WLR 433 (HL).
40 Foster v. British Gas Plc., Foster v. British Gas Plc.,

(1991) 2 All ER 705 , p. 705 :
(1991) 2 AC 305 (HL).
41 Blackburn v. A., Blackburn v. A.,

(1971) 2 All ER 1380 , p. 1382 (HL); Maclaim Watson & Co. Ltd. v. Dept. of Trade and
Industry, Maclaim Watson & Co. Ltd. v. Dept. of Trade and Industry,
(1989) 3 All ER 523 , p. 524 (HL).
42 Lord Advocate v. Dumbarton District Council, Lord Advocate v. Dumbarton

District Council,
(1990) 1 All ER 1 , p. 18 :
(1990) 2 AC 580 :
(1990) 3 WLR 1346 (HL).
43
(1861-73) All ER Rep 78 (HL).
44
(1861-73) All ER Rep 78 (HL); referred to in Coomber v. Berkshire Justices,
Coomber v. Berkshire Justices,
(1883-84) 9 AC 61 , p. 72 (HL) (Lord Watson); Bank voor Handel en Scheepvaart v.
Administrator of Hungarian Property, Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property,
(1954) 1 All ER 969 , p. 976 :
(1953) 1 QB 248 (HL) (Lord Morton); p. 979 (Lord Reid).
45 Ibid.
46
(1868) LR 1 Sc & Div 348.
47 Ibid, p. 354; referred to in Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property,
Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property,
(1954) 1 All ER 969 , p. 980 :
(1953) 1 QB 248 (HL) (Lord Reid).
48
(1883-84) 9 AC 61 : 3 LJQB 239 (HL).
49
(1883-84) 9 AC 61 , pp. 66 to 69 : 3 LJ QB 239 (HL); as extracted by Lord Reid in Bank voor
Handel en Scheepvaart v. Administrator of Hungarian Property, Bank voor Handel en Scheepvaart v.
Administrator of Hungarian Property,
(1954) 1 All ER 969 , p. 980 :
(1953) 1 QB 248 (HL).
Mr.Srikanth -
Page 20 of 26
50 Mersey Docks & Harbour Board v. Cameron, Mersey Docks & Harbour Board v.
Cameron, (1865) 11 HLC 443.
51 Coomber v. Berkshire Justices, Coomber v. Berkshire Justices,

(1883-84) 9 AC 61 , p. 74 : 3 LJ QB 239 (HL), as quoted by Lord Reid in Bank voor Handel en
Scheepvaart v. Administrator of Hungarian Property, supra, Bank voor Handel en Scheepvaart v. Administrator of
Hungarian Property, supra, p. 981.
52
(1954) 1 All ER 969 :
(1953) 1 QB 248 (HL).
53 Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property, Bank

voor Handel en Scheepvaart v. Administrator of Hungarian Property,
(1954) 1 All ER 969 , p. 989 :
(1953) 1 QB 248 (HL).
54 Ibid, p. 892.
55 Ibid, p. 981.
56 Ibid, pp. 990, 991.
57 Ibid, p. 991.
58
(1904) 2 KB 164 .
59
(1931) 145 LT 20 :
(1931) All ER Rep 157 .
60
(1947) 1 KB 530 .
61
(1948) 2 All ER 432 (CA).
62
(1896) 2 QBD 143 .
63
(1950) 1 KB 18 :
(1949) 2 All ER 327 (CA).
Mr.Srikanth -
Page 21 of 26
64
(1949) 2 All ER 327 , p. 329 (CA).
65 See, Central Control Board (Liquor Traffic) v. Cannon Brewery Co. Central Control
Board (Liquor Traffic) v. Cannon Brewery Co.
(1918) 2 Ch 123 :
1919 AC 744 .
66 Tamlin v. Hannaford, Tamlin v. Hannaford,

(1950) 1 KB 18 :
(1949) 2 All ER 327 , pp. 329, 330 (CA). This case has been followed in India for deciding as to
when a Corporation controlled or owned by the Government can be said to be a department of the Government: See S.T.
Corporation v. Commercial Tax Officer, S.T. Corporation v. Commercial Tax Officer,
AIR 1967 SC 1811 , p. 1849; Yousuf v. Mohammad, Yousuf v. Mohammad,
AIR 1967 SC 1318 [
LNIND 1967 SC 2 ], p. 1320 :
(1967) 2 SCR 318 [
LNIND 1967 SC 2 ]; S.T. Corporation v. Commercial Tax Officer, S.T.
Corporation v. Commercial Tax Officer,
AIR 1970 SC 82 [
LNIND 1969 SC 121 ]:
(1969) 1 SCC 765 [
LNIND 1969 SC 121 ]; S.L. Agarwal v. Hindusthan Steel Ltd. S.L. Agarwal v.
Hindusthan Steel Ltd.
AIR 1970 SC 1150 [
LNIND 1969 SC 498 ]:
(1969) 1 SCC 177 ; Hindustan Aeronautics v. Workmen, Hindustan Aeronautics
v. Workmen,
AIR 1975 SC 1737 [
LNIND 1975 SC 573 ], p. 1739 :
(1975) 4 SCC 679 [
LNIND 1975 SC 573 ]. In Bascus S.R.L. Servicio National del Trigo,
(1957) 1 QB 438 , a Spanish Corporation which carried ordinary commercial transactions was
granted State immunity. But this case was disapproved in Millenger v. New Brunswick Corporation, Millenger v.
New Brunswick Corporation,
(1971) 1 WLR 604 (CA), where a Corporation constituted to act by statute on behalf of the
Crown in the right to New Brunswick and not engaged in any commercial activity was held to be a Government department. In
Trendlex Trading Corporation v. Central Bank of Nigeria, Trendlex Trading Corporation v. Central Bank of
Nigeria,
(1977) 1 All ER 881 :
(1977) 2 WLR 356 :
(1977) QB 529 (CA), it was held that the Central Bank of Nigeria was not a Government
department and was not entitled to State immunity. And, in Biharilal Dobray v. Roshanlal Dobray, Biharilal
Dobray v. Roshanlal Dobray,
(1984) 1 SCC 551 [
LNIND 1983 SC 346 ], p. 570 :
AIR 1984 SC 385 [
LNIND 1983 SC 346 ]; it was held in the context of
Art. 191(1)(a) of the Constitution that the Board of Basic Education constituted under the U.P. Basic Education
Act, 1972 was virtually a department of the Government. But Government Companies and public sector undertakings though
‘State’ as defined in
Article 12 of the Constitution for enforcement of fundamental rights against them cannot be treated as Government
or State for other purposes unless it is specifically so provided by statute; Mohd. Hadi Raja v. State of Bihar,
Mohd. Hadi Raja v. State of Bihar,
AIR 1998 SC 1945 [
LNIND 1998 SC 497 ]:
(1998) 5 SCC 91 [
LNIND 1998 SC 497 ]. See further text and notes 10 to 12, p. 704.
67
(1964) 1 All ER 923 (CA).
Mr.Srikanth -
Page 22 of 26
68 Puntoriero v. Water Administration Ministerial Corporation, Puntoriero v. Water

Administration Ministerial Corporation, (1999) 73 ALJR 1359.
69 International Railway Co. v. Niagara Parks Commr. International Railway Co. v.

Niagara Parks Commr.
(1941) 2 All ER 456 , p. 462 :
1941 AC 328 (PC).
70 Bank voor Handel en Scheepvaart v. Administrator of Hungarian Property, Bank

voor Handel en Scheepvaart v. Administrator of Hungarian Property,
(1954) 1 All ER 969 , pp. 982, 988, 990, 991 :
1954 AC 584 (HL). In British Broadcasting Corporation v. Johns, British
Broadcasting Corporation v. Johns,
(1964) 1 All ER 923 , p. 943 (CA), DIPLOCK L.J. said:“I hope that no one will ever again in a
court of law use so imprecise a metaphor as ‘emanation of the Crown’.”
71 Rahimtoola v. Nizam of Hyderabad, Rahimtoola v. Nizam of Hyderabad, (1958) AL

379, p. 393 (HL).
72 Millenger v. New Brunswick Corporation, Millenger v. New Brunswick

Corporation,
(1971) 1 WLR 604 (CA); Trendlex Trading Corporation v. Central Bank of Nigeria,
Trendlex Trading Corporation v. Central Bank of Nigeria,
(1977) 1 All ER 881 , p. 893:
(1977) QB 529 :
(1977) 2 WLR 356 (CA).
73
AIR 1960 SC 1355 [
LNIND 1960 SC 176 ]:
1961 (1) SCR 158 [
LNIND 1960 SC 176 ].
74
AIR 1947 PC 34 : 73 IA 271.
75
AIR 1967 SC 997 [
LNIND 1966 SC 341 ]:
(1967) 2 SCR 170 [
LNIND 1966 SC 341 ].
76
AIR 1947 PC 34 : 73 IA 271.
77 State of W.B. v. Corporation of Calcutta, State of W.B. v. Corporation of Calcutta,

AIR 1967 SC 997 [
LNIND 1966 SC 341 ], p. 1008 :
1967 (2) SCR 170 [
LNIND 1966 SC 341 ].
Mr.Srikanth -
Page 23 of 26
78 Lucknow Development Authority v. M.K. Gupta, Lucknow Development Authority v.

M.K. Gupta,
AIR 1994 SC 787 [
LNIND 1993 SC 946 ]:
1994 (1) SCC 248 . See text and note 10, p. 704.
79 State of West Bengal v. Corporation of Calcutta, supra, State of West Bengal v.

Corporation of Calcutta, supra, p. 1020 (AIR).
80 State of W.B. v. Corporation of Calcutta, supra. State of W.B. v. Corporation of

Calcutta, supra. For liability of the State under Criminal law see FREIDMAN, Law in a Changing Society (2nd Edition), pp. 210,
211.
81
AIR 1968 SC 360 [
LNIND 1967 SC 257 ]:
1968 (1) SCR 447 [
LNIND 1967 SC 257 ].
1 Ibid, pp. 362, 363.
2 Samatha v. State of Andhra Pradesh, Samatha v. State of Andhra Pradesh,

AIR 1997 SC 3297 : (1997) 8 SCC 191.
3 State of Bihar v. Sonabati Kumari, State of Bihar v. Sonabati Kumari,

AIR 1961 SC 221 [
LNIND 1960 SC 213 ]:
(1961) 1 SCR 728 [
LNIND 1960 SC 213 ].
4 Union of India v. Ladulal Jain, Union of India v. Ladulal Jain,

AIR 1963 SC 1681 [
LNIND 1963 SC 98 ]:
(1964) 3 SCR 624 [
LNIND 1963 SC 98 ].
5 State of Bihar v. Sonabati Kumari, supra, State of Bihar v. Sonabati Kumari, supra,
p. 229.
6 State of West Bengal v. Union of India, State of West Bengal v. Union of India,
AIR 1963 SC 1241 [
LNIND 1962 SC 438 ]:
(1964) 1 SCR 371 [
LNIND 1962 SC 438 ].
7 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. Amalgamated

Society of Engineers v. Adelaide Steamship Co. Ltd.
(1920) 28 CLR 129 , p. 164(HIGGINS, J.).
Mr.Srikanth -
Page 24 of 26
8 Municipal Corporation Amritsar v. Senior Superintendent of Post Offices, Amritsar Division,

Municipal Corporation Amritsar v. Senior Superintendent of Post Offices, Amritsar Division,
(2004) 3 SCC 92 [
LNIND 2004 SC 88 ] :
AIR 2004 SC 2912 [
LNIND 2004 SC 88 ].
9 Satya Narayan v. Dist. Engineer, PWD, Satya Narayan v. Dist. Engineer, PWD,
AIR 1962 SC 1161 [
LNIND 1962 SC 62 ]: 1962 Supp (3) SCR 105.
10 Lucknow Development Authority v. M.K. Gupta, Lucknow Development Authority v.

M.K. Gupta,
AIR 1994 SC 787 [
LNIND 1993 SC 946 ], p. 794 :
1994 (1) SCC 243 [
LNIND 1993 SC 946 ].
11 Western Coal Fields Ltd. v. Special Area Development Authority, Korba, Western
Coal Fields Ltd. v. Special Area Development Authority, Korba,
AIR 1982 SC 697 [
LNIND 1981 SC 446 ]:
(1982) 1 SCC 125 [
LNIND 1981 SC 446 ]; Steel Authority of India Ltd. v. Shri Ambica Mills Ltd.
Steel Authority of India Ltd. v. Shri Ambica Mills Ltd.
AIR 1998 SC 418 , p. 422 :
1998 (1) SCC 465 [
LNIND 1997 SC 2096 ].
12 Hindustan Steel Works Construction Ltd. v. State of Kerala, Hindustan Steel Works
Construction Ltd. v. State of Kerala,
AIR 1997 SC 2275 [
LNIND 1997 SC 705 ], p. 2280 :
1997 (5) SCC 171 [
LNIND 1997 SC 705 ].
13 Western Coal Fields Ltd. v. Special Area Development Authority supra Western
Coal Fields Ltd. v. Special Area Development Authority supra ; Electronics Corporation of India v. Secretary Revenue Dept. Govt.
of Andhra Pradesh, Electronics Corporation of India v. Secretary Revenue Dept. Govt. of Andhra Pradesh,
AIR 1999 SC 1734 , pp. 1737, 1738 : 1999 (4) 458. For meaning of property belonging to a
State in similar context in section 14 of the Australian
Constitution , see SGH Ltd. v. Commissioner of Taxation, SGH Ltd. v. Commissioner of Taxation,
(2002) 76 ALJR 780.
14 Food Corporation of India v. Municipal Committee Jalalabad, Food Corporation of

India v. Municipal Committee Jalalabad,
JT 1999 (5) SC 124 :
AIR 1999 SC 2573 [
LNIND 1999 SC 616 ]:
(1999) 6 SCC 74 [
LNIND 1999 SC 616 ]. See further Adityapur Industrial Area Development Authority v.
Union of India, Adityapur Industrial Area Development Authority v. Union of India,
(2006) 5 SCC 100 [
LNIND 2006 SC 354 ] :
AIR 2006 SC 2375 [
LNIND 2006 SC 354 ].
Mr.Srikanth -
Page 25 of 26
15 Steel Authority of India Ltd. v. National Union Water Frant Workers, Steel
Authority of India Ltd. v. National Union Water Frant Workers,
AIR 2001 SC 3527 [
LNIND 2001 SC 1870 ], p. 3542 :
(2001) 7 SCC 1 [
LNIND 2001 SC 1870 ].
16 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, Pradeep Kumar

Biswas v. Indian Institute of Chemical Biology,
(2002) 5 SCC 111 [
LNIND 2002 SC 1536 ] : 2002 SCC (L&S) 633.(The test is whether the body is financially
functionally and administratively dominated by or under the control of the Government and the control is pervasive. Applying this
test the Council of Scientific and Industrial Research, a registered society, was held to be State in this case). A cooperative society
may also be held to be State if the above test is satisfied as held in General Manager Kisan Sahkari Chini Mills Ltd. v. Satrugn
Nishad, General Manager Kisan Sahkari Chini Mills Ltd. v. Satrugn Nishad,
AIR 2003 SC 4531 [
LNIND 2003 SC 860 ]:
(2003) 8 SCC 639 [
LNIND 2003 SC 860 ]. But applying the same test Board of Control for Cricket in India a
registered Society was not held to be State in Zee Tele Films Ltd. v. Union of India, State in Zee Tele Films Ltd. v.
Union of India,
(2005) 4 SCC 649 [
LNIND 2005 SC 101 ].
17 Pradeep Kumar Biswas v. India Institute of Chemical Biology, supra, Pradeep

Kumar Biswas v. India Institute of Chemical Biology, supra, pp. 127, 128.
18 Food Corporation of India v. Municipal Committee Jalalabad, supra, Food

Corporation of India v. Municipal Committee Jalalabad, supra, p. 127 (JT) : pp. 2575, 2576 (AIR); see further Provident Fund
Commissioners v. Shivkumar Joshi, Provident Fund Commissioners v. Shivkumar Joshi,
AIR 2000 SC 331 [
LNIND 1999 SC 1155 ], p. 338 :
(2000) 1 SCC 98 [
LNIND 1999 SC 1155 ] (The Regional Provident Fund Commissioner functioning under the
Employees' Provident Funds and Miscellaneous Provisions Act, 1952 is not Central Government).
19 See
Customs Act S. 20 (2) Re,
(1964) 3 SCR 787 [
LNIND 1963 SC 403 ] :
AIR 1963 SC 176 ; New Delhi Municipal Council v. State of Punjab, New Delhi
Municipal Council v. State of Punjab,
(1997) 7 SCC 339 [
LNIND 1996 SC 2181 ] :
AIR 1997 SC 2847 [
LNIND 1996 SC 2181 ]. Both these cases were decided by nine judge benches.
20 Karya Palak Engineer CMD Bikaner v. Rajasthan Taxation Board, Karya Palak
Engineer CMD Bikaner v. Rajasthan Taxation Board,
(2004) 7 SCC 195 [
LNIND 2004 SC 789 ], pp. 200, 201 :
(2004) 6 JT 384 .
21 Municipal Corporation Amritsar v. The Senior Superintendent of Post Offices,

Municipal Corporation Amritsar v. The Senior Superintendent of Post Offices,
AIR 2004 SC 2912 [
LNIND 2004 SC 88 ]:
Mr.Srikanth -
Page 26 of 26
(2004) 3 SCC 92 [
LNIND 2004 SC 88 ].
22 Kapila Hingorani v. State of Bihar, Kapila Hingorani v. State of Bihar,

(2003) 6 SCC 1 [
LNIND 2003 SC 521 ], p. 30 :
(2003) 116 Com Cas 133 .
End of Document
Mr.Srikanth -
Justice G P Singh
CHAPTER 9
Statutes Affecting Jurisdiction of Courts
1. GENERAL PRINCIPLES
(a) Exclusion must be explicitly expressed or clearly implied
There is a strong presumption that civil courts have jurisdiction to decide all questions of civil
nature. The exclusion of jurisdiction of civil courts is therefore not to be readily inferred and such
exclusion must either be “explicitly expressed or clearly implied”.1 “It is a principle by no means
to be whittled down”2 and has been referred to as a “fundamental rule”.3 As a necessary corollary
of this rule provisions excluding jurisdiction of civil courts4 and provisions conferring jurisdiction
on authorities and tribunals other than civil courts5 are strictly construed. The existence of
jurisdiction in civil courts to decide questions of civil nature being the general rule and exclusion
being an exception, the burden of proof to show that jurisdiction is excluded in any particular case
is on the party raising such a contention.6 The rule that the exclusion of jurisdiction of civil courts
is not to be readily inferred is based on the theory that civil courts are courts of general
jurisdiction and the people have a right, unless expressly or impliedly debarred, to insist for free
access to the courts of general jurisdiction of the State.7 Indeed, the principle is not limited to civil
courts alone, but applies to all courts of general jurisdiction including criminal courts.8 The rule as
stated above relating to strict construction of provisions excluding jurisdiction of courts of general
jurisdiction was recently expressly approved by the Supreme Court.9 Exclusion of jurisdiction of
ordinary criminal courts can be brought about by setting up courts of limited jurisdiction in
respect of the limited field, 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 the limited jurisdiction.10 But
the rule against exclusion of jurisdiction of courts like other rules of construction is attracted only
where two or more reasonably possible constructions are open on the language of the statute and
not where the legislative intent is plain and manifest to oust the jurisdiction.11
Mr.Srikanth -
Page 2 of 83
Examples of application of the rule are quite numerous.—A suit by a receiver

appointed by a civil court for a declaration that sale of lands in his custody for arrears of land
revenue under section 141 of the Berar Land Revenue Code, 1928, was invalid for want of notice
to him, was held to be cognizable by civil courts and not barred by section 157 of the same Code
which provided that ‘all claims on the ground of irregularity and mistake shall be barred’, unless
made before revenue authorities under section 156.12 It was pointed out that section 156 enabled a
person aggrieved to apply for setting aside the sale on the ground of some material irregularity or
mistake in ‘publishing’ and ‘conducting’ it; and was applicable only to acts or omissions in
proceedings relating to sale proclamation and holding of the sale; and that section 157 did not bar
a challenge to the sale in civil courts on grounds other than those which could be agitated under
section 156.13
Similarly, a suit for possession of certain properties on the ground that a purported sale of those
properties for arrears of revenue under the Bombay Land Revenue Code, 1879, was void not
being a sale by public auction as required by section 167, was held to be maintainable in civil
courts and not barred under
section 4(c) of the Bombay Revenue Jurisdiction Act, 1876 , which provides that no
civil court shall exercise jurisdiction as to claim to set aside, on account of irregularity, mistake or
on any other ground except fraud, sales for arrears of land revenue.14 It was pointed out that the
provision under section 4(c) only covered a case where there was a sale in existence though
irregular and was not applicable to a case of purported sale which was wholly void.15
The Ajmer Land and Revenue Regulations, 1877, which by section 23 provides that no adoption
made by a widow shall be deemed valid unless confirmed by the Central Government, and which
by section 119, further provides that everything done by the Central Government shall be deemed
to have been legally and rightly done, was interpreted as not excluding jurisdiction of civil courts
for deciding that no adoption had in fact been made or that it was invalid under the general law
although an order confirming the adoption may have been passed by the Central Government.16
Section 7 of the Orissa Tenants' Protection Act, 1948, which provided that certain disputes
between landlord and tenant shall be decided by the Collector, was construed as not embracing a
dispute as to the existence of the relationship of landlord and tenant.17
The last mentioned case was followed and applied in interpreting the provisions of section 77(3),
of the Punjab Tenancy Act, 1887. The section provided that suits by landlord to eject a tenant and
suits by a tenant to establish a claim to a right of occupancy or by a landlord to prove that a tenant
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has no such right, shall be determined by revenue courts and shall not be cognizable by any other
court. In construing these provisions, it was held that the suits excluded by the said section from
the jurisdiction of civil courts and committed to that of revenue courts, were those where
existence of relationship of landlord and tenant was not disputed, and that the jurisdiction of civil
courts was not excluded to entertain and try a suit for possession where the plaintiff did not admit
that the defendant was his tenant, although the defendant raised the plea that he was an occupancy
tenant.18
Similar is a case relating to the Bhopal State Revenue Act, 1932. The Act made provision for
ejectment of a sub-tenant on a suit by his tenant. There was no provision in the Act for suits
between persons claiming as rival tenants. A person ejected as a sub-tenant by revenue courts
brought a suit claiming himself to be the tenant against the person ejecting him. It was held that
the suit was maintainable, and was not barred either by the provisions of the Act, or by the decree
of the revenue court, for the question as to who was in reality the tenant could not have been
decided by the revenue courts.19 On the same principle exclusive jurisdiction conferred on a
Mamlatdar by section 70 read with section 85 of the Bombay Tenancy and Agricultural Lands
Act, 1948, to decide whether a person is a tenant has been held not to exclude the jurisdiction of
the civil court to decide whether a person who had ceased to be a tenant was or was not a tenant in
the past.20
Section 9(2), of the

Citizenship Act, 1955 , enacts that if any question arises as to whether, when or how
any person has acquired the citizenship of another country, it shall be determined by such
authority as may be prescribed. Rule 30 of the rules framed under the Act prescribes that such a
question shall be determined by the Central Government. In a suit instituted in a civil court the
plaintiffs claimed that they were Indian citizens on 26th January, 1950, and that although they
went to Pakistan in 1953 on a temporary visit they had not acquired Pakistani citizenship and
continued to be Indian citizens. The State contended that the plaintiffs had never been Indian
citizens and that they had voluntarily acquired Pakistani citizenship. The suit was dismissed on
the ground that it was barred by
section 9(2) of the Citizenship Act . In reversing the judgment, the Supreme Court
held that the question whether plaintiffs were Indian citizens on 26th January, 1950, could be
decided by civil courts and was not barred by section 9(2) of the Act, although the question,
whether they had thereafter acquired foreign citizenship, could be only decided by the Central
Government.21 The Supreme Court, therefore, directed that the first question should be decided by
the civil court; and if it was found that plaintiffs were never Indian citizens, the suit should be
dismissed; whereas if it was found that they were Indian citizens on 26th January, 1950, the suit
should be stayed till the second question was decided by the Central Government.22
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Section 86 of the Civil Procedure Code, 1908 , which gives protection to foreign
rulers, Ambassadors and Envoys, and read along with Section 87B extends the protection to rulers
of former Indian States that they cannot be sued in any court except with the permission of the
Central Government, has been strictly construed and the phrase ‘sued in any court’ has been held
to confine the protection to suits proper, i.e., to the proceedings in a court which commence with a
plaint or a petition in the nature of a plaint. It was, therefore, held that the section did not debar
the commencement of proceedings for adjudication of an industrial dispute for two reasons: (i)
neither party to the industrial dispute is sued by filing of a plaint as the proceedings start on a
reference by the Government; and (ii) the Industrial Tribunal is not a court.23
Sections 69 (2) and

69 (3) of the
Partnership Act, 1932 , which deprive the court of its jurisdiction to entertain a suit
or other proceeding ‘to enforce a right arising from contract’ has been strictly construed. 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 the Transfer of Property Act and is not a suit solely arising from a
contract and is not barred. 24 An application under
section 9 of the Arbitration and Conciliation Act, 1996 has also been held not to be
barred as it enforces a right conferred by section 9 of the Act and not by contract.25
Article 363 of the Constitution which bars the jurisdiction of all Courts including the
Supreme Court in any dispute arising out of any provision of a treaty etc., or in any dispute in
respect of any right, liability or obligation arising out of ‘any of the provisions of the
Constitution relating to any such treaty etc.’, was strictly construed by the Supreme
Court. It was held that a dispute that an order of the President de-recognising all the Rulers of
Indian States passed under Article 366(22), was in excess of authority and beyond his powers and
that the Rulers were entitled to the Privy Purse under Article 291, was not barred by Article 363.
The words ‘relating to’ occurring in the said article were given a restricted meaning; and it was
observed that the words ‘provisions of this
Constitution relating to any such treaty etc.’ meant provisions having a dominant and
immediate connection with treaty etc.26
(b) Three classes of cases
The Legislature being, however, competent to curtail the jurisdiction of civil courts, and to confer
the same on any other tribunal or authority,27 it is only a question of construction of a particular
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statute whether the same by express words or by necessary implication excludes the jurisdiction
of civil courts. The nature of the rights and liabilities dealt with by the statute and the remedies
provided thereunder, may, in case of doubt, be taken into account for determining as to how far
the jurisdiction of civil courts is excluded. As laid down by Willes, J. and affirmed by high
authorities:
“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; there, 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.”28
With respect to second of the three classes of cases mentioned by Willes, J. there is normally no
difficulty. A statute falling in this category 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.29
With respect to first and third of the three classes of cases mentioned by Willes, J. 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 former category, the special remedy provided therein, subject to any
provision for the exclusion of ordinary remedy, will only be construed as an alternative one;30
whereas if the statute is of the latter category, the remedy will be construed as exclusive even
though the statute makes no express provision for exclusion of ordinary remedy. The mere fact,
therefore, that a statute provides for certain remedies, does not by itself necessarily exclude the
jurisdiction of civil courts;31 but where a new right or liability is created by a statute which gives a
special remedy for enforcing it, the ordinary remedy of approaching the civil courts is impliedly
excluded.32
An interesting example of first of the three classes of cases mentioned by Willes, J. is to be found
in the Town and Country Planning Act, 1947, which came up for scrutiny before the House of
Lords.33 The Act restricts to a reasonable degree the ordinary rights of a land-owner to deal with
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his land as he pleases. It requires that for any development as defined in the Act, permission is
necessary which may be granted conditionally or unconditionally. It lays down a machinery for
grant of permission and provides for appeals to challenge an order refusing permission or to
challenge the conditions on which the permission is granted. It further provides a machinery for
determination of the question whether a particular operation is development requiring permission
under the Act. In an action brought by a company against the Ministry of Housing and Local
Government for a declaration that it was entitled to carry out certain proposed development
without obtaining any permission, it was contended by the respondents that the court had no
jurisdiction to entertain the action in view of the special remedies provided in the Act. The House
of Lords in negativing the contention pointed out that the planning legislation in question did not
create any new rights but restricted the already existing rights of a land-owner and the remedy
provided under the statute was alternative and did not take away the ordinary remedy available
under the general law.34
In the last mentioned case the House of Lords distinguished their earlier decision in Barraclough
v. Brown, Barraclough v. Brown, 35 which furnishes a
striking illustration of third of the three classes of cases mentioned by Willes, J. Section 47 of the
Aire and Colder Navigation, Act, 1889, provided that if any vessel should be sunk in any part of
the navigation of the river Ouse and if the owner should not remove it, it shall be lawful for the
undertakers to remove the vessel and the ‘undertakers may, if they think fit, recover such
expenses from the owner of such vessel in a court of summary jurisdiction’. The undertakers
having removed a sunken vessel, sued in the High Court for recovery of the expenses from the
owners of the vessel. On an objection as to jurisdiction, it was held by the House of Lords that the
right conferred by the statute to recover the expenses was not a common law right, but a right
created by the statute which itself provided for the remedy in a court of summary jurisdiction, and
therefore, the normal remedy of a direct approach to the High Court was excluded.36 Lord
Herschell in his opinion said: “The respondents were under no liability to pay these expenses at
common law. The liability, if it exists, is created by the enactment—. The only right conferred is
‘to recover such expenses from the owner of such vessel in a court of summary jurisdiction’. I do
not think the appellant can claim to recover by virtue of the statute, and at the same time insist
upon doing so by means other than those prescribed by the statute which alone confers the
right.”37 Lord Watson after quoting the enactment observed: “The right and the remedy are given
uno flatu and the one cannot be dissociated from the other. By these words the legislature has
committed the summary court exclusive jurisdiction.”38 In distinguishing this case in Pyx Granite
Co.'s case39 Lord Jenkins pointed out that the principle of Barraclough's case applies “where a
statute creates a new right which has no existence apart from the statute creating it; and the statute
creating the right at the same time prescribes a particular method of enforcing it”.40 Explaining
further Lord Jenkins observed: “If A has a right founded entirely on a particular statute to recover
a sum of money from B and the statute goes on to provide that the sum in question may be
recovered in proceeding of a particular kind, then it is wholly reasonable to impute to the
Legislature an intention that the sum in question recoverable solely by virtue of the statute, should
be recoverable in proceedings of the kind provided by the statute and not otherwise.”41
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The
Industrial Disputes Act, 1947 also furnishes an example of an Act which creates new
rights and obligations and provides machinery for adjudication of disputes pertaining to them. The
Supreme Court has held that if an industrial dispute relates to the enforcement of a right or an
obligation created under the Act then the only remedy available to the suitor is to get an
adjudication under the Act.42 This case was followed in holding that for wrongs created by the
Act the only remedy is what is provided in the Act. It was, therefore, held that in 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 in business caused by the illegal strike.43 Similarly it has been held
that the right to reinstatement and backwages is created by the Act and recourse to remedies
provided in the Act can alone be taken and a civil suit is not maintainable.44 Speaking about the
corresponding English statute, the Industrial Relations Act, 1971 Lord Reid said: “It creates
rights—but breaches of these rights are not torts—they are only unfair industrial practices. A
person alleging an unfair industrial practice cannot bring an action: he can only make a complaint
to an industrial tribunal”.45The
Payment of Gratuity Act, 1972 is another Act which creates new rights and provides
for a detailed machinery for enforcing these rights. The Act is a complete code and proceeding for
recovery of gratuity due under the Act can be taken only under the Act and not under any general
provision of law such as
section 33C(2) of the Industrial Disputes Act, 1947 .46
Another example is found in the Karnataka Land Reforms Act, 1962. The Act extinguishes the
pre-existing rights of the land owners as also of those who were inducted into possession by them.
Section 45 of the Act creates new rights in favour of those who were in personal cultivation to
claim registration as tenants so as to continue to enjoy the occupancy rights as a tenant. The Act
by Section 48 constitutes a tribunal for registration of claims as tenant under Section 45 and to
decide if rival claims for tenancy rights are set up, as to who was the tenant in possession of the
land prior to the date of vesting and entitled to be registered as tenant with the State Government.
The decision of the Tribunal is made final. It was held that the civil courts' jurisdiction was
impliedly excluded and a question whether the joint family or one of its members was the tenant
fell within the exclusive jurisdiction of the Tribunal.47 Similar view has been taken in respect of
Inam Abolition Acts.48
Other examples of application of the principle of third of the three classes of cases mentioned by
Willes, J. may be found in construction of statutes imposing taxes. The liability to pay any
particular tax does not exist apart from the statute imposing the tax and the subject is normally
bound to resort to the remedies provided in the statute for challenging any assessment of the tax
made on him. It was therefore, held that an order of customs authorities passed under section 182
of the Sea
Customs Act , 1878, and confirmed in appeal under section 188, was not open to
49
challenge in civil court. Similarly, in a case arising under the Punjab Municipal Act, 1811,
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where the dispute was as to rate of terminal tax payable on a particular commodity which
depended upon the determination of the character of the commodity, it was held that the order of
the Municipal Committee imposing the tax could not be challenged in civil court.50 Subbarao, J.,
pointed out: “The liability to pay terminal tax is created by the Act and a remedy is given to a
party aggrieved in the enforcement of that liability. Against the order of Municipal Committee
levying terminal tax an appeal lies to the Deputy Commissioner and a reference to the High
Court. Applying one of the principles stated supra, the party aggrieved can only pursue the
remedy provided by the Act and he cannot file a civil suit in that regard.”51 Similar results have
been reached in construing statutes imposing income-tax52 and sales tax.53 Even in the absence of
express provision excluding civil courts' jurisdiction the imposition of a tax liability and creation
of an effective machinery for deciding questions of law or fact arising in that connection, will, by
necessary implication, bar the maintainability of a civil suit in respect of the said liability.54 In a
case arising out of section 341 of the U.K.
Income-tax Act , 1952, it has been held that the right to an adjustment of tax liability
by reference to loss conferred by the section, could be only enforced by resorting to the remedy
indicated in the section, that is, by applying to General or Special Commissioners; and that the
tax-payer could not directly approach the High Court to ask for a declaration.55 But, there will be
no exclusion if the action challenged is wholly outside the particular statute.56
Statutes providing for election to representative bodies also fall within this class. It was observed
by B.K. Mukherjea, J. that “the right of seeking election and sitting in Parliament or in a State
Legislature is a creature of the
Constitution , and when the
Constitution provides a special remedy for enforcing that right, no other remedy by
ordinary action in a court of law is available to a person in regard to election disputes”.57
It is not, however, correct to say that the Legislature takes away civil court's jurisdiction only
when a new right is created by statute, and a tribunal is set up for determination of that right, for
by use of appropriate words jurisdiction may be excluded in other cases also.58
(c) Cases of breach of statutory duties
Whether a statutory duty gives rise to a private law cause of action is a question of construction of
the relevant statute.59 There is no universal rule by reference to which the question of
maintainability of a civil action can infallibly be answered. A number of indicators to solve the
question can, however, be deduced from the decided cases which are considered below.
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In Doe d. Bishop of Rochester v. Bridges, Doe d. Bishop of Rochester v. Bridges,

60 Lord Tenterden, C.J. said: “When an Act creates an obligation and enforces the performance in
a specified manner, we take it to be a general rule that performance cannot be enforced in any
other manner. If an 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.”61 The above
passage was approved by the House of Lords in Pasmore v. Oswaldtwistle Urban District
Council, Pasmore v. Oswaldtwistle Urban District Council, 62
where the question was as to maintainability of an action for mandamus for enforcing the
statutory duty of a local authority under section 15 of the Public Health Act, 1875, to provide
sufficient number of sewers for draining their district. A remedy was provided under section 299
of the Act for enforcing the statutory duty by a complaint to the local Government Board, and, it
was, therefore, held that there was no remedy outside the Act. In the last-mentioned case it was
pointed out that the obligation was created by the statute and by the statute alone which contained
a specified remedy for enforcement of the obligation; and Lord Halsbury, L.C. observed: “The
principle that where a specific remedy is given, it thereby deprives the person who insists upon a
remedy of any other form of remedy than that given by the statute, is one which is very familiar,
and which runs through the law”.63 This principle has been accepted by the Supreme Court.64
Even the provision of a penalty, for breach of a statutory duty, of fine or imprisonment contained
in a statute creating the duty, may be regarded as the only manner of enforcing the duty. In Cutler
v. Wandsworth Stadium Ltd., Cutler v. Wandsworth Stadium Ltd., 65
the plaintiff, a book-maker, brought an action against the occupiers of a licensed dog racing track,
for breach of their statutory duty under section 11(2) of the Betting and Lotteries Act, 1934; and
to secure that space was available on the track for book-making purposes. The Act by section 10
imposes substantial penalties on summary conviction, and on conviction on indictment. The
House of Lords on a construction of the Act held that the obligation imposed by section 11(2) on
the occupier of a track was intended for the benefit of the public and not for the benefit of the
book-maker; and that the statutory duty was enforceable only by recourse to the criminal
proceedings provided under the Act, and not by a civil action.66 The House of Lords again
accepted the principle of Lord Tenterden's dictum in Doe d. Rochester's
Doe d. Rochester's 67
case, which was approved earlier in Pasmore's case
68
Pasmore's case . Adverting to the argument that the principle had no application where the
statutory remedy was by way of criminal proceedings, Lord Simonds said: “I see no ground for
this distinction. The implication is, if anything in the opposite direction. For the sanction of
criminal proceedings emphasises that this statutory obligation, like many others which the Act
contains, is imposed for the public benefit and that the breach of it is a public, not a private
wrong.”69 On the same point Lord Dueparcq observed: “I do not agree with the submission of the
counsel for the appellant that it is heretical to regard criminal proceedings which may be followed
by fine and imprisonment as a specified manner of enforcing a duty. I think that it is both
orthodox and right so to regard them.”70 In Ten Chye Choo v. Chang Kew Moi, Ten
Chye Choo v. Chang Kew Moi, 71 the question was whether a breach of Rule 94 of
the Motor Vehicles (Construction and Use) Rules, 1959, (Malaysia) gave rise to a cause of action
in favour of an injured person. The rule provided: ‘The condition of any Motor Vehicle used on a
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road and all its parts and accessories shall at all times be such that no danger is caused to any
person on the vehicle or on a road’. The rules including Rule 94 were made under a Road Traffic
Ordinance, which provided certain penalties for non-observance of the rules without lawful
excuse. On account of some latent defect a motor taxi became involved in an accident resulting in
injuries to certain persons. The evidence negatived any negligence of the driver or the owner and
the question arose whether the injured persons could claim damages for breach of statutory duty
imposed by Rule 94. It was held after adverting to the principles laid down in Cutler's case72 that
the rule did not impose any duty in favour of individuals who had no right of action. In Lonrho
Ltd. v. Shell Petroleum Co. Ltd. Lonrho Ltd. v. Shell Petroleum Co. Ltd.
73 the House of Lords had to consider a claim for damages for breach of statutory
sanctions to stop supply and delivery of oil to Southern Rhodesia which was punishable as a
criminal offence. It was held, after referring to Cutler v. Wandsworth Stadium Ltd.,
Cutler v. Wandsworth Stadium Ltd., 74 Doe d. Bishop of Rochester v.
Bridges Doe d. Bishop of Rochester v. Bridges 75 and Black v. Fife Coal
Co. Ltd., Black v. Fife Coal Co. Ltd., 76 that the sanctions
could not be said to be imposed for the benefit or protection of any particular class of persons or
to create a public right to be enjoyed by the subjects of the Crown and, therefore, the violation of
the sanctions could not give rise to any claim for damages.
The general principle discussed above, that the remedy provided by the Act which creates an
obligation is exclusive, is not without exception. In Pasmore's case Pasmore's case
77 itself, Lord Macnaghten recognised exceptions and observed: “Whether the general rule is to
prevail, or an exception to the general rule is to be admitted in any particular case, must depend
on the scope and language of the Act and consideration of policy and convenience”. Adverting to
this matter, Atkins, L.J. has pointed out: “I conceive the rule to be that when a statute imposes a
duty of commission or omission upon an individual, the question whether a person aggrieved by a
breach of the duty has a right of action depends upon the intention of the statute. Was it intended
that a duty should be owed to the individual aggrieved as well as to the State; or is it a public duty
only? That depends upon the construction of the statute as a whole and the circumstances in
which it was made and to which it relates. One of the matters to be taken into consideration is
this: Does the statute on the face of it contain a reference to a remedy for the breach of it? If so, it
would prima facie be the only remedy, but that is not conclusive. One must still look to the
intention of the Legislature to be derived from the words used, and one may come to the
conclusion that, although the statute creates a duty and imposes a penalty for the breach of that
duty, it may still intend that the duty may be owed to individuals.”78 In Lonrho Ltd. v. Shell
Petroleum Co. Ltd., Lonrho Ltd. v. Shell Petroleum Co. Ltd., 79
the House of Lords pointed out two exceptions to the general rule that where the Act prescribes
criminal prosecution as the only manner of enforcing performance of the statutory obligation,
other modes of enforcement are ruled out. The first exception is where on the construction of the
Act it is apparent that the obligation or prohibition was imposed for the benefit or protection of
particular class of persons as in the case of Factories Acts and similar legislation. The second
exception is where the statute creates a public right and a particular member of the public suffers
what may be described as particular, direct and substantial damage other than and different from
that which was common to all the rest of the public. The first exception will, however, not give a
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cause of action for breach of statutory duty when the nature of the statutory obligation or
prohibition is not such that a breach of it would be likely to cause a member of the class, for
whose benefit or protection it was imposed, either personal injury, injury to property or economic
loss.80
A statute of the type, where a penalty clause was held as not depriving a person injured to bring a
civil action, was considered by the Court of Appeal in Groves v. Lord Wimborne
Groves v. Lord Wimborne .81 The statute there considered was the Factory and Workshop Act,
1878, which by section 5, imposed on the occupier of a factory a duty of securely fencing
dangerous machinery in the factory, and in the event of any person being injured in consequence
of a breach of this duty the Act made provision by section 82 that the occupier was to be liable to
a fine not exceeding one hundred pounds, and the whole or part of it could be applied for the
benefit of the injured person. In an action for damages brought by a workman, who suffered
personal injuries because of breach of the statutory duty to fence certain machinery, the Court of
Appeal held that the action was maintainable and the remedy provided in the statute was not
exclusive.82
The principle was considered by the House of Lords in Black v. Fife Coal Co. Ltd.,
Black v. Fife Coal Co. Ltd., 83 in relation to the Coal Mines Regulation
Act, 1887, which imposed on the mine owners the duty to make due provision for the safety of
workmen in the mines. Lord Kinnear in that case 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, I think, 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.”84 This passage from
the judgment of Lord Kinnear was considered in Cutler's case85 and Lord Normand in explaining
the principle said: “If there is a penalty clause the right to a civil action must be established by a
consideration of the scope and purpose of the statute as a whole. The inference, that there is a
concurrent right of civil action, is easily drawn when the predominant purpose is manifestly the
protection of a class of workmen by imposing on their employers the duty of taking special
measures to secure their safety. The penalties provided by the Act apply when a breach of the
duty occurs but each workman has a right to sue for damages if he is injured in consequence of
the breach.”86 Even when a statute creates an offence for failure to perform a defined duty
imposed for the benefit of a class of persons, it may not be inferred that the contemplated
beneficiaries would have a right of action for enforcement of the duty unless it could be shown
that in the absence of an implied remedy by civil action under the statute, they would be without
any effective remedy under the general law for the harm suffered by them from failure to perform
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the duty.87 So harassment of a tenant made punishable under section 30 of the Rent Act, 1965 was
construed as not implying a civil remedy for a tenant can under the general law sue for damages
for breach of the covenant for quiet enjoyment.88
Even if a particular provision apparently protected certain individuals and no penalty was
provided for breach thereof, it does not necessarily follow that an action for breach of statutory
duty will lie and the question is one of ascertaining the intention of the Legislature.89 Thus, it was
held that when a prisoner was segregated in violation of the prison rules made under the
Prisons Act , 1952, he had no cause of action for claiming damages for breach of
90
statutory duty. Similarly, in a statute imposing duty on employers to give employees written
particulars of terms of employment and providing for reference to industrial tribunal for failure of
the employer to give written particulars, no civil right of action sounding in damages was
inferred.91 The statutory provisions considered in these cases were in reality for establishing a
regulatory system or a scheme of social welfare for the benefit of the public at large and not for
the benefit of those who fell within the area of activity that was regulated.92
The principles stated above were applied in O'Rourke v. Camden London Borough Council
O'Rourke v. Camden London Borough Council 93 and 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 Parliament did not intend that a breach of the duty to provide
accomodation to homeless was actionable in tort were : (i) The duty was enforceable in public law
by individual homeless persons; (ii) 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 persons but the society in general; and (iii) The existence of the duty depended on the
housing authority's judgment and discretion.94
A distinction must also be drawn between a public law remedy of judicial review including
declaration and injunction for enforcing due performance of a statutory duty and a private law
remedy by way of a suit for damages.95 The breach of a public law right does not by itself give
rise to a claim for damages.96 Further, mere careless exercise of statutory powers or duties does
not furnish a cause of action for damages and the plaintiff has to show that circumstances are such
as to raise a duty of care at common law.97 The principles as to when mere breach of a statutory
duty causing damage will give rise to a private law claim for damages were restated by the House
of Lords98 as follows: “The basic proposition is that in the ordinary case a breach of statutory duty
does not, by itself, give rise to any private law cause of action. However, a private law cause of
action will arise if it can be shown, as a matter of construction of the statute, that the statutory
duty was imposed for the protection of a limited class of the public and that Parliament intended
to confer on members of that class a private right of action for breach of the duty. There is no
general rule by reference to which it can be decided whether a statute does create such a right of
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action but there are a number of indicators. If the statute provides no other remedy for its breach
and the Parliamentary intention to protect a limited class is shown, that indicates that there may be
a private right of action since otherwise there is no method of securing the protection the statute
was intended to confer. If the statute does provide some other means of enforcing the duty that
will normally indicate that the statutory right was intended to be enforceable by those means and
not by private right of action: However, the mere existence of some other statutory remedy is not
necessarily decisive. It is still possible to show that on the true construction of the statute the
protected class was intended by Parliament to have a private remedy. Thus the specific duties
imposed on employers in relation to factory premises are enforceable by an action for damages,
notwithstanding the imposition by the statutes of criminal penalties for any breach: The cases
where a private right of action for breach of statutory duty have been held to arise are all cases in
which the statutory duty has been very limited and specific as opposed to general administrative
functions imposed on public bodies and involving the exercise of administrative discretions.” In
this case it was held that a local education authority's obligations to provide sufficient schools for
pupils within its area and to have regard to the need for securing special treatment for children in
need of such treatment under the Education Acts, 1944 and 1981 could give rise to public law
claims but their was no corresponding private law right to damages for breach of statutory duty.1
But a local education authority could be vicariously liable for the negligence of its employee, viz.,
educational psychologist because of whose mistake there was failure to diagnose a congenital
condition of a child and consequent failure to provide special treatment and appropriate
education.2 The case of X (minors)3 was followed in Cullen v. Chief Constable of the Royal Ulster
Constabulary Cullen v. Chief Constable of the Royal Ulster Constabulary ,4 in
holding that the duty under Section 15 of the Northern Ireland (Emergency Provisions) Act, 1987
to allow a person in custody access to a solicitor was a quasi constitutional right imposed for the
benefit of the public at large and not for the protection of a particular class of individuals and
denial of that right by itself (i.e., where it did not cause or prolong unlawful detention) was
incapable of causing loss or injury of a kind for which the law normally awarded damages. The
remedy for breach of this public law right was judicial review.
(d) Omission to exercise statutory power
It has been seen that whether a statutory duty gives rise to a private law cause of action is a
question of construction of the relevant statute. Similarly, the question whether omission to
exercise a statutory power gives rise to a private law cause of action is also one of construction of
the statute concerned as it requires discerning the policy of the statute whether it confers a right to
compensation on persons who suffer loss as a result of non-exercise of the power. Subject to
exceptional cases, the normal rule is that an omission by a public authority to exercise a statutory
power conferred for benefit of the public does not give rise to breach of duty sounding in
damages.5 In Stovin v. Wise Stovin v. Wise ,6 a motor accident took place
at a road junction partly because the view was obstructed by an earth bank adjacent to the road.
Although the local highway authority had statutory power under sections 41 and 79 of the
Highways Act, 1980, which conferred a discretion for removal of earth bank, it had taken no steps
Mr.Srikanth -
Page 14 of 83
in that direction. The House of Lords held 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: (i) that in the circumstances it would have been irrational for the authority not to

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1. CHAPTER 1 BASIC PRINCIPLES

2. INTENTION OF THE LEGISLATURE

A statute is an edict of the Legislature9 and the conventional way of interpreting

The problem of interpretation is a problem of meaning of words and their

and encourage an approach not intended by the legislature.29

In all real controversies of construction if it were open to consult the Legislature

and to call every process of construction a search for ‘intention’ express or

the statute, or reason and spirit behind it.58 “I say that we

The meaning of the expression ‘intention of the Legislature’ is explained in

A bare mechanical interpretation of the words and application of a legislative

permitted by law to refer as aids to interpretation an expression of Parliament's

In a case which related to the question whether workmen have a right to be

Bano Begum Mohd. Ahmed Khan v. Shah Bano Begum (note

in respect of statutes. Therefore, in their task of interpreting and applying a

between implementing the law and disobeying it.”7

Judges have more freedom in interpreting a

towards the purposive construction of statutory provisions”27

A handbook compiling the rules attempts to present the guiding principles

3. STATUTE MUST BE READ AS A WHOLE IN ITS

When the question arises as to the meaning of a certain provision in a statute, it

The rule is of general application as even plainest terms may be controlled by

light of the purpose and object of the Act itself.”70 To the

Section 202 of the Hyderabad Municipal Corporation Act, 1955 exempts

of it; the whole section should be read together”.77 Sub-sections in a section

Lord Blanesburg, in an appeal from Bombay, criticising the judgment of the

4. STATUTE TO BE CONSTRUED TO MAKE IT EFFECTIVE

life to legislative enactments and avoid cadaveric consequences.4

An example of the working of the rule is furnished in the construction of

A further example of the application of the rule may be noticed in a case

Another example of the rule is furnished in the construction of

The same principle is applied in construing machinery sections of a taxing

5. IF MEANING PLAIN, EFFECT MUST BE GIVEN TO IT

unambiguous, then no more can be necessary than to expound those words in

In deciding that a return of income signed by an illiterate person by the pen of

6. APPRAISAL OF THE PRINCIPLE OF PLAIN

For a proper application of the rule to a given statute, it is necessary, therefore,

Normally a statutory provision consists of a general description of some factual

Apparently clear and simple language at times in its analysis is so ambiguous as

for the offence of bribery under the

Language which on its construction results in absurdity, inconsistency, hardship

Sometimes it is said that “though a construction according to plain language

and unreasonableness, injustice or absurdity is not of the nature and

2 In some cases the Draftsman has been severely criticised. Regarding

5 COOLEY: “Constitutional Limitations”, Vol. I, p. 97; referred in In re Sea

6 CRAWFORD: “Statutory Construction”, p. 241.

7 SUTHERLAND: “Statutory Construction”, Vol. 2, 3rd Edition, Article 4504, p. 319.

8 United States v. F.W. Keitel, United States v. F.W. Keitel, 211

9 Vishnu Pratap Sugar Works (Private) Ltd. v. Chief Inspector of

10 RMD Chamarbaugwala v. Union of India,

(1982) 3 SCC 140 [

11 SALMOND: “Jurisprudence”, 11th Edition, p. 152. “The object of interpreting a statute is

12 See R v Secretary of State for the Environment exparte Spath

13 Venkataswami Naidu, R. v. Narasram Naraindas,

14 BENNION: “Statutory Interpretation”, (4th Edition) p. 14; Dinesh

15 Black Clawson International Ltd. v. Papierwerke Waldhof

18 See Chapter 4, under title 4(c) ‘Assistance of

19 Spencer v. State (Supreme Court of Indiana),

LNIND 1982 SC 193 ]; Doypack Systems Pvt.