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Interpretation of Statutes (Karnataka State Law University)

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AL-AMEEN COLLEGE OF LAW

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law
Model answer paper

Interpretation of Statutes and Principles of legislation

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VI sem 3 yrs LL.B/IX sem 5 yrs B.A.LL.B

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Note: Model answer is only for reference purpose and is not ultimate one.

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No assurance of same questions repeating in semester exam of university.

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Q.No.1. Explain the principle of “statute must be read as whole in its context”

Synopsis
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Introduction
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Context Rule
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Court to look what precedes and succeeds a statute

Every word of statute should be given equal importance
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Conclusion
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Introduction: Interpretation of statute depends upon the text and context thereof and the object
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with which it was made. It must be construed having regard to its scheme and the ordinary state
affairs and consequences flowing therefrom.
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Whenever the questions arise as to the meaning of a certain provision in a statute, it is

proper and legitimate to read that provision in its context. This means that the statute must be
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read as a whole. What was the previous state of the law, study of other statutes in pari materia
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i.e, on the same matter, if there are any, what is the general scope of the statute and what is the
mischief which it wanted to remedy, all these questions are to be considered here.
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According to Lord Davey: Every clause of a statute should be construed with reference to

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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.

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Court to look what precedes and succeeds a statute

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In order to ascertain the meaning of a clause in a statute, court must look at the whole

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statute, at what precedes and what succeeds, not merely the clause itself. It must compare the
clause with other parts of law and the setting in which it occurs. Where language of a statute is

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very general and not clear, the courts should interpret it with contextual background.

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It is the duty of a court to construe a statute justly. An unjust law is no law at all. Where

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two views are possible the view which satisfies the Constitutional rights or requirements must be
preferred.

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The same word may mean one thing in one context and another in different context,
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therefore, the same word used in different sections of a statute or even when used at different
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places in the same clause or section may bear different meanings. That is why it is necessary to
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read statute as a whole in its context.

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While making contextual interpretation, the roots of the past, the foliage of the present
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and the seeds of the future cannot be lost sight of. Judicial interpretation should not be
imprisoned in verbalism and words lose their thrust when read in vacuum. Context would quite
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often provide the key to the meaning of the word and the sense it should carry. Its setting would
give colour to it and provide a cue to the intention of the legislature in using it. A word is not a
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crystal, transparent and unchanged. It is the skin of living thought and may vary greatly in colour
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and content according to the circumstance and the time in which the same is used. When a word
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or expression is not defined is an enactment, the courts apply the subject-and-object’ rule to
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ascertain carefully the subject of the enactment where the word or expression occurs and having
regard to the object which the legislature has in view.
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Every word of statute should be given equal importance

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In matters of interpretation one should not concentrate too much on one word and pay

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little attention to other words as no words or expression used in any statute can be said to be
redundant or superfluous. Every provision and every word must be looked at generally and in the

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context in which it is used and not in isolation. Every part of the provision has to be given
meaning and effect in the context of the statute.

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In interpreting section 150 of the Representation of the People Act, 1951 which requires

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that on the happening of a casual vacancy ‘the Election Commission shall, by a notification in

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the official Gazette call upon the Assembly constituency to elect a person for the purpose of

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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

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election of a returned candidate. It was held that on reading of all these provisions together the
duty of Election Commission to hold a bye-election on resignation of a member imposed by
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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
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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
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elected, there would be no necessity of holding any bye-election.

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Section 202 of the Hyderabad Municipal Corporation Act, 1955 exempts ‘building and
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land vesting in the corporation’ from property tax and section 204 provides that the property tax
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shall be leviable primarily from the occupier if he holds the premises directly from corporation.
The question before the Court was whether corporation property in possession of allottees under
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hire purchase agreement was exempt from tax. The court held that reading both the sections
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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
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become inoperative.
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In Jennings v. Kelly, it was held that the principle that the statute must be read as a whole
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is equally applicable to different parts of the same section. The section must be construed as a
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whole whether or not one of the parts is a saving clause or a proviso.

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In Attar Singh v. Inder Kumar the Punjab Rent Restriction Act 1949 provided by section

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13(a)(ii) that a landlord could 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

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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

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words ‘for his own use’ in cl (a) permitted the landlord to claim eviction for his own use. But the

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Supreme Court reserved the High Court’s decision and held that the three clauses were to be read
together.

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Conclusion: When a provision of a statute is before court for interpretation, court will not only

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consider that particular provision but statute as a whole for interpreting that particular provision.

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The words of statute should not be isolated and given meaning. Statute should be read in whole.

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Q.No.2 Discuss the literal rule of interpretation with case laws.

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Synopsis

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Introduction
Natural and grammatical meaning

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Explanation of the rule

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Common Parlance Test

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Exact Meaning preferred to Loose Meaning

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Technical Words in Technical Sense
Conclusion

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Introduction: The rule of literal construction is considered to be the first principle of

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interpretation. According to this rule the word of an enactment are to be given their ordinary and
natural meaning, and if such meaning is clear and unambiguous, effect should be given to a
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provision of a statute whatever may be the consequences. Where the wordings of a statute are
absolutely clear and unambiguous, rule of literal construction is to be applied and recourse to
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other principles of interpretation is not required where the meaning of the word or expression is
not clear literal rule of interpretation is not applicable. Only when literal construction results in
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some absurdity or anomaly, other principles of interpretation may be applied. Ordinarily, court
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should not depart form literal rule as that would really be amending the law in the grab of
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interpretation, which not permissible. Literal construction giving rise to anomalous or absurd
situation should be avoided where it is the possibility that two parallel proceedings may continue
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at the same time and two tribunals may render contradictory decisions on the same question, it
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was held that such construction should be avoided. The rule of literal construction is applicable
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both to the private as well as to the public law.

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Natural and grammatical meaning

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Case laws

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In municipal board v state transport authority, Rajasthan

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The Regional Transport Authority has changed the location of a bus stand. If anyone wanted to

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move an application against this order, he could do so within 30 days from date of order to the
Regional Transport Authority under section 64A of Motor Vehicle Act, 1939. But in this case,

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the application was moved to the State Transport Authority after expiry of 30 days from date of
the order. Here it was argued that an application could be moved within 30 days from the

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knowledge of the order passed by the Regional Transport Authority. The Supreme Court held

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that whenever languages of a statute is plain and un ambiguous, meaning should be given to it
irrespective of the consequences and while interpreting statutes of limitation, equitable

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considerations are out of place and clear grammatical meaning of the enactment should stand.

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In Ramavtar v Assistant Sales Tax Officer

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The question before the court was whether the sale of betel leaves were subject to sales tax. The
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contention given by the appellant was that betel leaves being vegetables were not subject to sales
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tax. The appellant relied on the dictionary meaning of vegetable which says that vegetable is that
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thing which is pertaining to, comprised or consisting of, derived or obtained from plants or their
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parts. The Supreme Court rejected the contention and held that betel leaves could not be given
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the dictionary, technical or botanical meaning in the ordinary and natural meaning is clear and
unambiguous. Being a word of everyday use it must be understood in its popular sense by which
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people are conversant with it. Therefore, the sale of betel leaves was liable to sales tax.
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Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat the
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object. The onus of showing that the word do not mean what they say lies havily on the party
who alleges it. The party must clearly show that the grammatical construction would be
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repugnant to the intention of the act or lead to some manifest absurdity.

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In rent control statute permitting eviction, if landlord requires the building ‘for his own use’. It
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was held that the expression ‘for his own use’ covers requirement not only of the landlord but
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also his son, even of there has been a family partition during the pendency of the eviction
proceedings whereby the son had become the landlord of te premises of the premises in question.
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The court applied contextual meaning and not the literal meaning in interpretation of the
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expression.

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Explanation of the rule

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In Motipur zamindary co.ltd v State of Bihar

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The question arouse whether the sugarcane fell within the term green vegetables of Bihar Sales
Tax Act 1947 for the purpose of sales tax. The Supreme Court held that while dealing with te

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taxing statute the natural and ordinary meaning of a word should be the correct meaning. The

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word green vegetable in its popular sense includes vegetables that can be grown in the kitchen
garden and can be used for eating during lunch or dinner. Therefore, sugarcane does not fall

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under this category.

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The Supreme Court refer to the rule that it is not the technical or scientific sense but the sense as

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understood in common parlance that generally matters in construing statutes an held that supari
or betel nut though derived and prepared out of the areca palm tree and is not for that reason food
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product within rule 29(f) of the prevention of Food Adulteration Rules, 1955.
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In Oswel Agro meals ltd. v Collector of Central Excise, it was held that ‘toilet soap’ was a ‘house
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hold soap’ and not soap of ‘other sorts’ in schedule one of the Central Excise and Salt Act of
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1944. If any one goes to market and ask for toilet soap he must ask only for household bathing
purpose and not for industrial or other sorts.
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In Forest Range Officer v Khushboo Enterprise, the question was whether sandalwood oil is
wood oil as used in the definition of forest produce in Section 2 (f) of the Kerala Forest Act 1961
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which defines forest produce to include timber, charcoal, wood oil whether found in or brought
from a forest or not. Sandalwood oil is produced at a factory level by mechanized process
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utilizing the hard wood and roots of sandal wood trees removes from forest as a raw material. It
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was argued before the court that wood oil is a natural produce of the forest and it will not include
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sandalwood oil. but this argument was rejected by the Supreme Court and it was pointed out that
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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. Therefore, it was
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held that the sandalwood oil was wood oil within the definition of forest produce.
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In Bimal Chand v. Gopal Agarwal, a notification was issued by state Govt U/sec. 3A of UP Sales

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Tax Act, 1948according to which a 2% of turnover payable at all points of sale in case of cooked
food. The appellants who were both manufacturer and seller of biscuits for human consumption

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claimed to come under the notification as biscuit come under

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It was 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 misunderstand. In the same way,

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expressions ‘borrowed money’ or ‘capital borrowed’ when used in Income Tax Act have to be

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understood in commercial sense implying the transaction of loan with relationship of borrower
and lender. Similarly it was held that the investments in sec 23A of Income Tax Act 1922 was to

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be construed in the popular sense and was not limited investment in shares, debentures, stocks

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etc.

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According 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 the sense of the
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thing, as the ordinary man has a right to relay on ordinary words addressed.
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Common Parlance Test

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The Supreme Court has held that while interpreting the entry for the purpose of taxation,
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recourse should not be made to the scientific meaning of the terms used but to their popular
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meaning, that is to say the meaning attached to them by those dealing in them.
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Exact Meaning preferred to Loose Meaning.

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There is a presumption that the words are used in an Act of Parliament correctly and exactly and
not loosely and inexactly. Every word has secondary meaning too. Loosing meaning should not
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defeat the secondary meaning of a word. Ex: The word obtain in its primary sense requires some
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request or effort to acquire or get something but in its secondary meaning it means to acquire or
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get something without any qualification and if in a statute the secondary meaning is preferred, it
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cannot be said that preference has been given to loose meaning.

Technical Words in Technical Sense: If the Act is passed with reference to a particular trade,
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business or transaction and words are used which everybody conversant with that trade or
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business and understands to have a particular meaning in it, then the words to be construed as

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having that particular meaning.

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Conclusion

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Literal Interpretation means words of a statute should be given their ordinary, popular or general

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meaning. When the words of the statute are plain and clear Court should adopt literal

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interpretation and when the words of a statute are ambiguous literal interpretation should not be
adopted.

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Q.No. 3 Discuss the parliamentary history as an external aid to construction with reference

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to English and American practice.
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Synopsis:
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Introduction
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English practice
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i Traditional view
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ii Criticism
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iii Modern trend

American practice
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Conclusion
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Introduction: While interpreting a statute true intent of the legislature shall have to be gathered
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and interpreted in its proper spirit having due regard to the language used therein. Where
language is clear, external aid for construction is not required. External aids are relevant only
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when the language is not clear and two meanings are possible. Factual events contemporaneous
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to time of interpretation cannot be taken into consideration for interpretation of a statute

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ENGLISH PRACTICE
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English practice can be discussed under three sub-headings.:

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i TRADITIONAL VIEW

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English traditional view is that ‘the intent of the Parliament which passed the act is not to be
gathered from the parliamentary history of the statute. The Bill in its original form, or the

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amendments considered during its progress in the legislature are not admissible as aids to
construction.

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Recommendations contained in the report of a Royal Commission which may have led to

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the introduction of the measure in Parliament cannot be used as evidence for the purpose of
showing the intention, i.e., purpose or object of the Act. Courts are entitled to consider such

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external facts as may be necessary to understand the subject-matter to which the statutes relates

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or they can also have regard to the mischief which the statute is intended to remedy. The

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exclusionary rule has been relaxed to admit the reports of the Commission preceding statutory
measure as evidence of surrounding circumstances.

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ii CRITICISM OF TRADITIONAL VIEW

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It is unrealistic and impractical to divide the exercise into different compartments viz, one
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leading to discerning the object or mischief and the other leading to discerning the true meaning
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of the statute. The exercise in its entirety is one process for discerning the true meaning of the
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Act, or, in other words, the intention of the legislature.

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The fine distinctions looking for the mischief and looking for the intention is using words to
provide the remedy are technical and inappropriate.
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iii MODERN TREND

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In construing statutes, it is for the Courts to consider what weight is to be given to the materials
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that emerge from scrutiny of legislative history rather than to automatically to exclude such
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materials from all considerations as an aid to interpretation Legislative history of a statute can be
looked into only in case of ambiguity and not otherwise.
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There were two objections to this:

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1) Parliamentary materials are not readily available but it was said that experience has shown
that non-availability of materials has not raised any practical problems in countries like Australia

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and New Zealand.
2) Another objection raised was that recourse to Parliamentary material will amount to

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questioning the freedom of speech and debates in Parliament. But this objection was rejected and

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it was held that far from questioning the independence of Parliament and its debates, the courts
would be giving effect to what is said and done there.

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Pepper v Hart is a landmark decision relating to resorting to parliamentary history as an external

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aid to construction. The facts of the case were: There was an appeal by tax payers who were

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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 one-fifth of the normal fee chargeable

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from members of the public. Cash equivalent to this benefit’ was chargeable to income-tax under
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S61 (1) of the Finance Act, 1976. The concessionary fees more than covered the additional cost
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to the school of educating the tax-payers children. Section 63(1) said that cash equivalent to the
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benefit meant ‘an amount equal to the cost of the benefit’ and S 63 (2) gave the meaning of cost
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of benefit as the amount of any expense incurred in or in connection with its provision. Now the
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question in this case was ‘what is the true meaning of s 63(2)’.

The House of Lords found that S 63(2) was ambiguous. Therefore, the reference was made to the
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Parliamentary history and statements made by the Financial Secretary to the treasury during the
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Committee stage of the bill which clearly showed that the Parliament had passed the legislation
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with the intention that the concessionary benefits for teacher’s children would be worked on the
additional or marginal cost to the employers and on the average cost. On this basis the
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construction contended for by the tax payers was upheld.

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AMERICAN PRACTICE
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In contrast to the traditional English practice, under American practice, the old rule of exclusion
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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
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of an enactment” it has been held that the said rule “is not violated by resorting to debates as a
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means of ascertaining the environment at the time of enactment of a particular law, that is, the

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history of the period when it was adopted”. Further it appears to be well accepted that “the

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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 the committee chairman in charge of it, stand

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upon a different footing, and maybe resorted to under proper qualifications.

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CONCLUSION
Even if accepted, in the case of Parliamentary History as an aid to construction of a statute, the

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general principle followed is that it can be used only in cases where the statute is not clear or is
ambiguous. English traditional view is that ‘the intent of the Parliament which passed the act is

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not to be gathered from the parliamentary history of the statute’. Parliamentary history may be

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resorted for knowing subject matter and mischief intended to be remedied. In modern trend it for
court to decide what weightage to be given to parliamentary history and there is no direct

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exclusion of such materials. The old rule of exclusion of parliamentary history has been very
much relaxed under American practice.
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Q.No. 4 Discuss the rules of interpretation regarding remedial and penal statutes.

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Synopsis.

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i. Introduction and Meaning.
ii. Liberal Construction of Remedial Statutes.

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iii. Illustrative Cases.

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iv. Strict Construction of Penal Statutes.
v. Illustrative Cases.

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vi. Conclusion.

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i. Introduction and Meaning of Remedial and Penal Statute:

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Remedial Statutes are also known as welfare, beneficent or social justice oriented
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legislation. Penal statutes are those which provide for penalties for disobedience of the law and
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are directed against the offender in relation to the state by making him liable to imprisonment,
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fine, forfeiture or other penalty.

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A remedial statute receives a liberal construction in favor of the class of persons for
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whose benefit the statute was enacted while penal statutes are strictly construed in favor of the
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alleged offender.
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In Bhagirath Kanoria vs State of MP, AIR 1984, the Supreme Court exhibited a liberal
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approach in holding that non payment of employer’s contribution within fifteen days under para
38 of Employer’s Provident Funds Scheme, 1952, which was punishable under section 14(2-A)
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of the Employee’s Provident Fund and Miscellaneous Provisions Ac, 1952, was continuing
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offence.
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Chief Justice Chandrachud observed: Considering the object and the purpose of this
provision, which is to ensure the welfare of the workers, we find it is impossible to hold that the
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offence is not continuing nature.

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ii. Liberal Construction of Remedial Statutes

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On construing remedial statute, the courts ought to give to it ‘the widest operation which

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its language will permit. They have only to see that the particular case is within the mischief to
be remedied and falls within the language of the enactment.

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In case of social benefit oriented legislation like the Consumer Protection Act 1986, the

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provisions of the Act have to be construed in favor of the consumer to achieve the purpose of the
enactment but without doing violence to the language.

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If a section of a preferred remedial statute is capable of two constructions, that

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construction should be preferred which furthers the object of the Act and is more beneficial to

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those in whose interest the Act may have been passed.

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The liberal construction must flow from the language used and the rules does not permit
placing of an unnatural interpretation on the words contained in the enactment nor it permit

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raising of any presumption that protection of the widest amplitude must be deemed to have been
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conferred upon those for whose benefit the legislation may have been enacted.
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In case there is any exception in the beneficent legislation which curtails its operation, the
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Court in case of doubt should construe it narrowly so as not to unduly expand the area or scope
of exception.
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iii. Illustrative Cases

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Sadhoo vs Haji Lal Mohd Biri Works

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In this case the Supreme Court interpreted section 31(2)(a) of the Beedi and Cigar
Workers (Conditions of Employment) Act, 1966. This Section 31(2)(a) provides that the
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employees discharged, dismissed or retrenched may appeal to the prescribed authority. It was
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held that by the liberal construction of the section there need to be written order of termination to
enable the employee to appeal and that an employee who was terminated by stopping him to
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enter the place of work could appeal to the prescribed authority.

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Bhagirath vs Delhi Administration

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In this case the Supreme Court held that the beneficent provisions of section 248, CrPC
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directing set-off of the period of pre-conviction detention against the term of imprisonment is

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applicable even to cases where the sentence is imprisonment for life and that such a sentence is

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also imprisonment ‘for a term’ within the section.

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vii. Strict Construction of Penal Statutes

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The settled rule of construction of penal sections is that ‘if there is a reasonable

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interpretation which will avoid the penalty in any particular case we must adopt that

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construction. If there are two reasonable constructions we must give the more lenient one.

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If two possible and reasonable constructions can be put upon a penal provision, the Court

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must lean towards that construction which exempts the subjects from penalty rather than the one
which imposes penalty. It is not competent to the court to stretch the meaning of an expression

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used by the legislature in order to carry out the intention of the Legislature.
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Interpretation of penal provision must be in consonance with the principles underlying
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fundamental rights. Any provision which visits an accused with adverse consequences without
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affording him any remedy to disprove an item of evidence which stands against his innocence, is
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consistent with the philosophy enshrined in Article 21. It was held by the Supreme Court that the
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court should so interpret such a provision so as to dilute it to make it amenable to art 21 of the
Constitution.
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When words employed in a penal statute are not clear the principle ‘against double
penalisation’ would be applied. Failure to comply with a statute may attract penalty. But only
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because a statute attracts penalty for failure to comply with the statutory provisions, the same in
all situations would not call for strict construction.
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V. Illustative cases
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In Sanjay Dutt vs State, through CBI, Bombay, it was held that the rigour of a provision in a
criminal statute may provoke the Court to tone it down by reading an implied escape clause. In
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this case section 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987, was
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construed. This section provided that where any person, in possession of any arms and
ammunition specified in columns 2 & 3 of the category I or category III(a) of Schedule I to the
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Arms Rules, 1962 or bombs, dynamite or other explosive substances unauthorisedly in a notified

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area, he shall not withstanding anything contained in any other law for time being in force, be
punishable with imprisonment for a term which shall not be less than five years but which may

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extend to imprisonment for life and shall also be liable to fine.’ Section 5 of the Act required
three ingredients to be proved for an offence falling under that section:

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i. Possession of any of the specified arms and ammunitions etc,

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ii. Unauthorisedly,

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iii. In a notified area.

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The section did not in terms provide that the accused could any way escape punishment if the

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aforesaid three ingredients were established. However, it was held that possession of
unauthorized arms, etc in a notified area raised a presumption that the arms, etc were meant to be

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used for a terrorist or disruptive act which was in effect the third ingredient therefore, the
accused was entitled to rebut this presumption and escape punishment under section 5 by proving
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that his unauthorised possession of arms, etc was wholly unrelated to any terrorist or disruptive
activity and the same was neither used nor available in that area for any such use and its
g
an

availability in a notified area was innocuous.

,B

vi. Conclusion
ge

Remedial statutes should be liberally construed, they can be given wider interpretation if
lle

the language of the statute permits. Penal statutes should be given strict interpretation, Court
should not punish a person without clear letter of law and Court cannot create any offence. If a
Co

Penal statute entertaining two interpretations, the interpretation which exempt accused from
punishment shall be adopted by the Court.
w
La
en
me
-A
Al

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Q.No. 5 Explain general principles of retrospective operation of statutes.

in)
Synopsis

.
law
Introduction

en
Presumption against Retrospectively

me
Statutes dealing with procedure are presumed to be retrospective

ala
Statutes governing Succession are not retrospectively operated

w.
Statutes regulating transfers and contracts

ww
Statutes dealing with substantive rights are presumed to be prospective

e(
Statute prescribing limitation

Statutes dealing with appeals are prospective only

r
alo
Conclusion
g
an

Introduction:
,B

Prospective operation means from future date. A central law passed by the Parliament
ge

commences either from the date it receives Presidential assent or from a future date as specified
in the statute. The Law sets into motion only after the date of its commencement. Prior to this
lle

date, the law has no force. Retrospective operation means the operation from a past date. The
Co

parliament and state legislature can legislate both prospectively and retrospectively. Where the
legislature intends to enact retrospective law, it should express the same in unequivocal terms.
w

The power of retrospective legislation is used for validating the past executive and legislative
La

act. The defects due to which past acts are invalidated, are cured by way of retrospective
en

legislation.
me

Presumption against Retrospectively

-A

A law is deemed to be prospective in operation unless otherwise is intended either

expressly or by necessary implication. If the legislatures intends to give retrospective effect to an
Al

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enactment, such intendment has to be expressly declared. In absence of such declaration the law

in)
is deemed to be prospective. A retrospective law is one which takes away or impairs the vested
or accrued rights acquired under existing laws or creates new obligation, imposes new duty or

.
law
attaches new disability in respect of past events.

en
The meaning of retrospective law :

me
I) Affecting in existing contract.

ala
II) Reopening of past, closed and completed transaction.

w.
III) Affecting accrued rights and remedies.

ww
IV) Affecting procedure.

e(
Statutes dealing with procedure are presumed to be retrospective
r
No person has vested right in course of procedure. He has only the right to prosecution or
alo
defense in the manner prescribed. If the procedure is altered, he has no other right than to
g

proceed according to altered mode.

an

In New India Insurance Co. Ltd v. Shanti Misra, it was held that a new Act requires certain type
,B

of original proceedings to be instituted before a special tribunal to exclusion of civil courts, all
ge

proceedings of that type whether based on old or new cause of action will have to be instituted
lle

before the tribunal.

Co

If the language of the statute is ambiguous and the word bear more than one meaning and leading
to alternative constructions, that interpretation should be preferred which gives prospective
w

application of law.
La

Statutes governing Succession are not retrospectively operated

en

Statutes regulating succession are not applicable to succession which has already opened.
me

By sec 14 of Hindu Succession Act, 1956 ‘ any property possessed by female Hindu, whether
-A

acquired before after commencement of this Act, shall be held by her as full owner thereof &
not as limited owner.’ The section on its own term is retrospective, but a female should have
Al

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possession of estate at the time the Act came into force. Section has not been given retrospective

in)
effect larger than its language permits. It was , therefore, been held that if a female Hindu had
alienated the estate prior to coming into force of the Act, neither she or her alienee get the right

.
law
of full ownership under the section.

en
me
Statutes regulating transfers and contracts

ala
Statutes prescribing formalities for effecting transfers are not applicable to transfer made prior to
their enforcement. Similarly the statutes dispensing with formalities which were earlier necessary

w.
for making transfer have not effect of validating of transfers.

ww
Transfer of property Act, 1882 on its own term (sec. 2) is not retrospective and doesn’t affect any

e(
rights or liability constituted before the Act came into force. Any oral mortgage created before
the Act came into force and valid to then existing law has been held to be enforceable even after
r
alo
the Act came into force.
g

Statutes dealing with substantive rights are presumed to be prospective

an

The statutes with deal with substantive rights are deemed to be prospective only. They should not
,B

be presumed to be retrospective. An enactment which seeks to take away any vested right cannot
ge

be given retrospective operation unless it is expressly intended.

lle

The civil judge had granted additional benefits over and above the award passed by collector, as
Co

per the amended provisions of the land acquisition act. The said order was challenged before the
high court. The court observed that the award was passed by the collector on 3.3.1982 i.e. prior
w

to 30.4.1982 when the land acquisition amendment will was introduced. Therefore the
La

respondents in whose favor award was already passed by the collector prior to 30.4.1982 are not
entitled to the benefit of additional component. The benefit could be given only if the
en

proceedings for acquisition were pending and award was not passed by the collector.
me

Statute prescribing limitation

-A

Certain statutes prescribe period of limitation for initiating legal action. Such statutes do not
Al

create any right. Statutes providing limitations are regarded as procedural law and thus given

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prospective operation. Statutes of limitation neither revive right of action which is already

in)
barred, nor extinguish a right of action subsisting on that date.

.
law
Statutes dealing with appeals are prospective only

Appeal is a process of moving a superior court against the order passed by an inferior court. The

en
right to prefer an appeal is considered to be substantive right. It is judicially recognized right

me
vesting in the suitor at the time of institution of original proceedings.

ala
Declaratory statute

w.
Statute which has come up with object of clarifying or explaining any ambiguity regarding

ww
previous statutes are perse of retrospective operation.

Penal statutes

e(
Penal statutes which create offenses or which have the effect of increasing penalties for existing
r
alo
offenses will only be prospective by reason of the constitutional restriction imposed by article 20
of the constitution.
g
an

Remedial statutes are not necessarily retrospective

,B
ge

Conclusion
lle

The law is presumed to be of prospective application unless expressly or by necessary

Co

implication made to have retrospective operation. Penal, fiscal statutes and such other statutes
which impairs vested rights or create new obligations is usually given prospective operation. No
w

person has vested right in procedural law, thus it can be given prospective operation.
La
en
me
-A
Al

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Q.No.6 How far earlier & later statutes are significant in interpreting statutes?

in)
Synopsis

.
law
Introduction
Help of earlier statutes

en
When help of earlier statutes are not taken

me
Construing a statute with the help of other state law

ala
Statutes in parimateria

w.
Help of later statute
Cases

ww
Conclusion

e(
Introduction: Earlier and later statutes are legitimate external aid to construction. Earlier or later
r
statute should deal with same subject as that of statute in question then it can resorted. Only in
alo
case of ambiguity help of earlier & later statutes can be taken, when the language of a statute is
clear and unambiguous earlier & later statutes are of no use.
g
an

Help of earlier statutes: If a parliament uses same language which was used in former Act of
,B

parliament referring to the same subject and passed with same purpose, it gives to presumption
ge

that the legislature intended to convey same meaning. There is also presumption that legislature
knows the judicial decisions as to interpretation of words. When words in earlier statute have
lle

received authoritative interpretation by superior court, use of same words in similar context in a
Co

later Act will give rise presumption that the legislature has accepted the interpretation put on
such word by the court and reproduced them intentionally so as to bear the same meaning. In
w

view of this presumption, for resolving ambiguity, legitimate help of earlier statute may be taken.
La

When help of earlier statutes are not taken:

en

i) When decisions on the earlier Act are not consistent or when they are in fact shown to
me

be erroneous.
-A

ii) It will also have no application to a purely consolidating Act which affords no
opportunity to parliament of reconsidering the previous Acts which are consolidated.
Al

It is not to be presumed that parliament in any subsequent legislation dealing with a

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related but identical subject matter has taken account of and adopted as correct all

in)
judicial pronouncements as to meaning of ordinary English words appearing in
statutory instrument made under the Act.

.
law
iii) When the new legislation, although re-enacting many provisions from earlier
statutes, contains a good deal of fresh material and deals with subject on which social

en
views have drastically changed, it may not be a proper to rely on earlier authorities

me
for construing new statute.

ala
In Bengal Immunity Co. LTD v. State of Bihar, while dealing with Articles 245(1) & 246
of the constitution which are in pari material with sections 99(1) & 100 of Govt of India Act,

w.
1935, it was observed that:

ww
It is a well-settled rule of construction that where a statute is repealed and reenacted and

e(
the words in repealed statute are reproduced in new statute they should be interpreted in the
sense which had been judicially put on them under the repealed Act because the legislature is
r
alo
presumed to be acquainted with the construction put on such word by the court & when they
repeat the same words, they must be taken to have accepted the interpretation put on them by the
g
an

court as correctly reflecting the legislative mind.

,B

Construing a statute with the help of other state law:

ge

When court is construing a legislation of one state with the help of legislation on the same
lle

subject of other states has not been commended, but earlier legislation of the same state on the
same subject may be referred to as an indicative of the practice of particular state and for
Co

deriving whatever assistance may be possible.

w

A decision interpreting a Central Act has been used for interpreting corresponding
La

provision of a state Act holding that they were in pari material.

en

But before utilizing decisions rendered under a Central Act or State Act for construing
me

Act of another State on the same subject, the court must be careful about variance in the
language.
-A
Al

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Statutes in parimateria

in)
It is sound principle of construction to interpret expression used in one Act with reference

.
law
to their use in another Act, & 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

en
pari material.

me
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 has a guide to the construction of

ala
the other. If one uses distinct language, imposing the penalty under certain circumstances and

w.
other does not, it is always an argument that the legislature did not intend to impose a penalty in

ww
the later, for where they did so intend they plainly said so.

The change in the language does not always indicate the change in construction too. The

e(
alteration in language in or by a later statute may be the result of many other factors, for E.g.
r
Surplusage words may be omitted in a later statute, new words may be added which make the
alo
meaning more clear which was already implied to improve the style of the statute wording may
g

have been changed by the draftsman. But where the existing words are their natural and ordinary
an

meaning it indicates that there was no intention or alteration of meaning.

,B

Help of later statute

ge

Normally a later statute is not used as an aid to construction of an earlier statute.

lle

Although the legislature has the authority to amend an earlier act or to so declare its meaning that
Co

the declaration offended the plain language of the earlier Act but the later statute operates
directly by its own force and not merely as aid to construction of an earlier statute. But a
w

legislation which proceeds upon an erroneous assumption of the existing law without directly
La

amending or declaring the law is ineffective to change the law.

en

A later Act may in certain circumstances serve as a parliamentary exposition of an earlier

me

Act if that Act is truly ambiguous. It is cleared established that a subsequent legislation on the
same subject may be looked to in order to see what is the proper construction to be put upon an
-A

earlier Act, where that earlier Act is ambiguous. Subsequent legislation cannot alter that previous
Al

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legislation, but if there be any ambiguity in earlier legislation then the subsequent legislation

in)
may fix the proper interpretation which is to be put into the earlier.

.
law
Cases

In Thiru Manickam and co. v. State of TN, sec. 15(b) of the Central Sales Tax Act, 1956 was

en
discussed the section did not specifically indicate as to whom the state sales tax paid on declared

me
goods would be refunded in the event the goods are later sold in the course of interstate trade or
commerce. The amendment Act which was not retrospective enacted that the refund of tax was

ala
to be made to the person making the sale in the course of interstate trade or commerce the

w.
amendment was used as an exposition by parliament itself of its intent contending the section

ww
before its amendment and it was held that it was the person making the sale in the course of
interstate trade and commerce who was entitled to refund even when the un amended section was

e(
not in force.
r
In Ammini Vs. State of Kerala, Section – 293(4) of Cr.P.C which before its amendment used the
alo
expression ‘Director’ only was discussed. But after its amendment deputy director and asst.
g

Director were also included with the Director. The Supreme Court Held that the Joint Director
an

who was higher in rank to Deputy Director and Asst. Director must be deemed to be include in
,B

Director otherwise he would also been expressly included by the amendment and that this
construction was also applicable to the word director before the section was amended.
ge
lle

Conclusion: When the wordings of earlier statute is repeated in later statute it is presumed that
legislature intend to give same meaning, thus help of earlier statutes is taken to construe later
Co

statute. When there is ambiguity in previous statute help of later statute can be taken to clear
ambiguity.
w
La
en
me
-A

Q.No.7 Explain the importance of moral legislations in drafting statutory legislations.

Al

Synopsis

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Introduction

in)
Sanctions

.
law
Law and public opinion

en
Conclusion

me
Introduction:

ala
Legislation is a rule, law, code of conduct. Statutory legislations are those laws enacted by the
legislature.Moral legislations are those legislations which deal with moral aspects prevailing in

w.
the society. These legislations are propounded by Jeremy Bentham. They are also called as

ww
Bentham’s theory of Legislation. These theories have taken their birth from the Utilitarianism
concept strongly laid down by Bentham. He has given a great importance to the society as a

e(
whole. (sociology of law).He is of the opinion that morality, society, emotions should be
considered when enacting a particular Act.
r
alo
He has framed a set of moral legislations which go hand in hand with Statutory
g
an

legislations. Bentham’s fundamental social facts are pleasures and pains, motives, sensibilities,
dispositions and expectations. The theory of law must be based on these or else law will not
,B

achieve its desired goal.

ge

Sanctions
lle

Bentham has laid down a series of sanctions. With respect to Pleasure and pains there are 4
Co

classes;
w

1. Physical sanctions
La

2. Moral sanctions
3. Political/ legal sanctions
en

4. Religious sanctions.
me

Moral sanctions are friendship or hatred, esteem or contempt.They are also called as popular
-A

sanction or sanction of public opinion or sanction of honor or sanction of sympathy.

Al

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Legal sanctions are also called as political sanctions.Ex; action taken by the magistrate in

in)
virtue of laws; legislative decisions are also products of political processes.

.
law
Religious sanctions are attaining supernatural entity, religious orientations.Social sanctions are
natural sanctions given by nature. They are also called as natural sanctions or physical sanctions.

en
Things which occur without human intervention in the ordinary course of nature are called as
physical sanctions.

me
Law and public opinion:

ala
Bentham emphasis a lot on public opinion in relation to legal sanction. Bentham counts

w.
freedom of press and publicity of legal and administrative, actions as related crucial pre-

ww
conditions for the formation of a strong public opinion.

e(
According to Bentham freedom of speech and press stands justified in 3 ways;
r
a. To curb freedom of press is to foster ignorance, rumors, superstitions.
alo
b. Restrictions on articulation of public motive of honor as a means to aid the
g

enforcement of the laws more difficult.

an

c. Art of guiding public opinion without the public suspecting how it is led.
,B

Legal Sanction and popular Sanction are closely related. Unless law protects freedom of press,
ge

public opinion cannot grow. Public when enlightened generate public opinion which help in
lle

implementing laws effectively.

Co

Bentham further lays down that law relates to social change. Law is an instrument of social
change and all the laws enacted till today are a result of social changes which have took place in
w

Indian Society.
La
en
me
-A

Conclusion:
Al

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Therefore, more emphasis should be given on moral legislations when drafting statutory

in)
legislations. Moral legislations should be kept in mind by the legislature at the time of drafting
legislations.

.
law
Q.No.8 Write short note on any two of the following.

en
a. Long title & Preamble

me
Long title

ala
The Long Title to an Act is a part of the Act and is admissible as an aid to its construction. In

w.
the past, the long title was not considered a part of the statute and therefore, it was not put in the

ww
category of internal aids to construction. Long title gives a general description of the object of
the Act and it often precedes the preamble of the Act.

e(
Long Title alone or along with the preamble is a good guide regarding the object, scope
or purpose of the Act.
r
alo
Short title of the Act can be said to be the nick name of the Act. It is only an abbreviation
g
an

for purposes of reference and it is not a useful aid to construction.

,B

Long title ordinarily starts with the words ‘An Act’. For example, the long title of the
Code of Criminal Procedure, 1973, is ‘An Act to consolidate and amend the law relating to
ge

criminal procedure’. The Supreme Court Advocates(Practice in High Courts) Act, 1951, bears a
lle

full title as an ‘An Act to authorise Advocates of the Supreme Court to practice as a right in any
Co

High Court’.

It is now settled law that the statute is an important part of the Act and may be referred to
w

for the purpose of ascertaining its general scope and of throwing light on its construction,
La

although it cannot override the clear meaning of the enactment. It is in itself not an an enacting
en

provision and though useful in case of ambiguity of the enacting provision, is ineffective to
control the clear meaning.
me

In Kedar Nath v. State of W Bengal, s 4 of the West Bengal Criminal Law Amendment
-A

(Special Courts) Act, 1949, was interepted. This section, under which, the start Government was
Al

empowered to choose as to which particular case should go for reference to the Special Court

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and be tried under a special procedure, was challenged as violative of Art 14 of the Constitution.

in)
Rejecting the contention, the Supreme Court held that the long title of the Act which said as Act
to provide for the more speedy trial and more effective punishment of certain offences was clear

.
law
enough to give the state government discretion as to which offences deserved tried by the special
courts under a special procedure.

en
me
Preamble

The Preamble of a statute is also a part of the Act and is an admissible aid to

ala
construction. It is not an enacting part, but, it is expected to express the scope, object and

w.
purpose of the Act more comprehensively than the long title.

ww
Preamble can be an aid in construing a provision when the provision is ambiguous. It can
afford useful assistance to ascertain legislative intention, but, cannot control otherwise the plain

e(
meaning of a provision.
r
alo
It is one of the cardinal principles of construction that where the language of the Act is
clear, the preamble must be disregarded though, where the object or meaning of the enactment is
g
an

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
,B

may be used to indicate to what particular instances, the enactment is intended to apply. We
ge

cannot, therefore, start with the preamble for construing the provisions of an Act, though we
lle

could be justified in resorting to it, and we will be required to do so, if we find that language
used by the Parliament is ambiguous or is too general though in point of fact Parliament intended
Co

that it should have a limited application.

w
La

b Negative words.
en

Introduction.
me

When the command is clothed in a negative form, it suggests that there is clear intention
-A

consider the enacted provision as mandatory. Subbarao, J, observed that ‘negative words are
clearly prohibitory and are ordinarily used as legislative device to make a statute imperative’. In
Al

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a more recent case, it has been held by the Supreme Court that a provision couched in a negative

in)
language implying a negative character does not necessary imply that it must be held to be
mandatory. The court keeping in view the entire context in which the provision came to be

.
law
enacted, can hold the same to be directory. A provision requiring ‘not less than three months’
notice was held to be mandatory.

en
Crawford states that prohibitive or negative words can rarely, if ever, be directory. And this

me
is so even though the statute provides no penalty for disobedience.

ala
But this principle is also subject to exceptions. For example, directions relating of

w.
solemnization of marriages though using negative words have been used as directory in cases

ww
where the enactments in question did not provide further consequence that the marriage in breach
of those directions shall be invalid.

e(
Another example that can be considered here is that of section 25-F clause (c) of the
r
Industrial Disputes Act, 1947. The compliance of clause (a) and (b) was understood as
alo
mandatory whereas compliance of clause (c) which was connected by the same negative words,
g

as in clause (a) and (b), was held to be directory.

an

The general rule that negative words are usually mandatory is subordinate to the context, and
,B

the object intended to be achieved by the particular requirement needs to be safeguarded.

ge

Affirmative Words When Imply Negative.

lle

For reading the provision as mandatory, affirmative words stand at a weaker footing than
Co

the negative words; but affirmative words may also be limiting as to imply a negative. As an
example the provisions of sections 54, 59, 107 and 123 of the Transfer of Property Act, 1882,
w

prescribing modes of transfer by sale, mortgage, lease or gift may be taken. The formalities
La

prescribed by these provisions for effecting a transfer of the nature mentioned in them are
en

mandatory and the language used although affirmative clearly imports a negative.
me
-A
Al

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Conclusion.

in)
Negative words generally are a mandatory in nature. Affirmative words stand at weaker

.
law
footing than the negative words but affirmative words may also be limiting as to imply a
negative.

en
c To what extent a provision of Statute can be enforced against Crown. Explain the

me
application of the rule in India.

ala
Introduction:

w.
The general English rule is that the “ king is above the law “ and all statutes are meant for subject

ww
only and the crown is not bound by them.
The statutes neither control the crown not eh rights or properties of the crown, unless expressly

e(
or by necessity or by implication is named so in the statute.
This presumption extends not only to the crown but also to the crown’s servants. The basis of
r
alo
this rule is to prevent an efficient and effective functioning of the ruler and his government for
the welfare of the people.
g
an

‘Crown not bound by the common law’ applies to the following extent:
Sovereign
,B

Sovereign’s servants or agents

ge

Person’s considered to be ‘Consimili Casu’.

lle

Officers of the State with ministerial status.

Co

Cases where statutes are not binding on the State:

w
La

Land Transfer Act, 1897

Locomotives Act, 1865
en

Property occupied by the servants of the crown exclusive of the crown

me

The rule of common wealth of nations reads that the executive government of the state is
not bound by the statute unless that intention is apparent.
-A

The custodian of enemy property being a crown, the servant is not liable to tax.
Al

The statutes regarding limitation were formerly held not to bind the crown

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It is a prerogative of the crown not to pay tolls, rate or other burdens in respect of the

in)
properties owned in his name.

.
law
Illustrations of statutes that are binding on the crown: Certain statutes bind the crown.
Statutes for the advancement of religion or learning, the statutes for the maintenance of the poor,

en
statutes for the suppression of wrong and statutes to perform the will of the testator or donor.

me
If the Act is made for the public good, then the crown is bound by such an Act.
The crown is not excluded from the operation of a statute even if the statute includes his

ala
prerogative or rights and if the statute expressly includes the crown or the intention to include

w.
him is clear.

ww
In V.S Rice Oil Mills v/s State of M.P
The Supreme Court held that the state is not bound by a statute unless expressly named there-in

e(
or included by necessary implications, is applicable to the Indian ruler also.
Conclusion: r
alo
‘Statute does not bind the crown or the State’ is an old presumption. This presumption was
applicable only in ancient times where monarchy was in practice. But now in democracies this
g
an

concept doesn’t apply.

,B

Q.No.9. Answer any two of the following

ge

a. Rule of Ejusdem Generis

lle

Synopsis:
Co

Introduction
w

Conditions for application of the rule

La

Case laws
Conclusion.
en
me

Introduction:
-A

Ejusdem Generis is a Latin term which means "of the same kind," it is used to interpret
Al

loosely written statutes. Where a law lists specific classes of persons or things and then refers to

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them in general, the general statements only apply to the same kind of persons or things

in)
specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and
other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-

.
law
based transportation. The term Ejusdem Generis in other words means words of a similar class.
The rule is that where particular words have a common characteristic (i.e. of a class) any general

en
words that follow should be construed as referring generally to that class; no wider construction

me
should be afforded.

ala
Conditions for application of the rule
There are five conditions that have been identified for application of rule of ejusdem generius:

w.
(1) The statute contains an enumeration by specific words;

ww
(2) The members of the enumeration suggest a class;
(3) The class is not exhausted by the enumeration;

e(
(4) A general reference supplementing the enumeration, usually following it; and
r
(5) There is not clearly manifested an intent that the general term be given a broader meaning
alo
than the doctrine requires.
g
an

Case laws:
,B

In M/s Siddeshwari Cotton Mills Private Limited v. Union of India, the Supreme Court observed
that the expressions 'bleaching, mercerizing, dyeing, printing, water-proofing, rubberising,
ge

shrink-proofing, organdie processing, which precede the expression 'or any other process' in
lle

Section 2 (f) (v) of the Central Excises and Salt Act, 1944 contemplate processes which import a
Co

change of a lasting character to the fabric by either the addition of some chemical into the fabric
or otherwise. 'Any other process' in the section must share one or the other of these incidents.
w

The expression is used in the context of what constitutes manufacture in its extended meaning
La

and the expression 'unprocessed' in the exempting notification draws its meaning from that
context.
en
me

In M/s Siddeshwari Cotton Mills Private Limited v. Union of India, the Supreme Court observed
that the expressions 'bleaching, mercerizing, dyeing, printing, water-proofing, rubberising,
-A

shrink-proofing, organdie processing, which precede the expression 'or any other process' in
Al

Section 2 (f) (v) of the Central Excises and Salt Act, 1944 contemplate processes which import a

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change of a lasting character to the fabric by either the addition of some chemical into the fabric

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or otherwise. 'Any other process' in the section must share one or the other of these incidents.
The expression is used in the context of what constitutes manufacture in its extended meaning

.
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and the expression 'unprocessed' in the exempting notification draws its meaning from that
context.

en
me
In Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., interpretation of the words 'or other
proceeding' in the phrase 'a claim of set off or other proceeding to enforce a right arising from

ala
contract' appearing in . Section 69 of the Partnership Act, 1932 was involved. The Supreme

w.
Court did not apply the principle of Ejusdem Generis because the preceding words /a claim of set

ww
off did not constitute a genus.

In Rajasthan State Electricity Board v. Mohan Lal, the respondent raised a question of his

e(
seniority in service and filed a petition under Article 226 of the Constitution praying that suitable
r
directions may be given to the appellant Board. The appellant contended that it was not 'State' as
alo
defined in Article 12 and that therefore no direction could be given to it. The High Court rejected
g

the appellant's contention. Dismissing the appeal, the Supreme Court held:
an

In our opinion the High Court [in these cases] fell into an error in applying the principle of
,B

Ejusdem Generis when interpreting the expression 'other authorities' in Article 12 of the
Constitution, as they overlooked the basic principle of interpretation that, to invoke the
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application of Ejusdem Generis rule, there must be a distinct genus or category running through
lle

the bodies already named.

Co

Conclusion:
w

The expression Ejusdem Generis means of the same kind. Normally, general words
La

should be given their natural meaning like all other words unless the context requires otherwise.
But when a general word follows specific words of a distinct category, the general word may be
en

given a restricted meaning of the same category. The general expression takes it's meaning from
me

the preceding particular expressions because the legislature by using the particular words of a
distinct genus has shown its intention to that effect. This principle is limited in its application to
-A

general word following less general word only. If the specific words do not belong to a distinct.
Al

Genus, this rule is inapplicable. Consequently, if a general word follows only one particular

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word, that single particular word does not constitute a distinct genus and, therefore, Ejusdem

in)
Generis rule cannot be applied in such a case.

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law
b. statutes affecting the jurisdiction of court

Synopsis

en
Introduction and Meaning

me
Exclusion must be explicitly expressed or clearly implied

ala
Exclusion of jurisdiction of superior courts:

w.
Conclusion

ww
Introduction and Meaning: Jurisdiction is a court's power to decide a case or issue. It must be

e(
mentioned that the jurisdiction of the court is not whether the court is entitled to pass a particular
r
order or decree in a suit. It is whether the court has the right to hear the particular case. There are
alo
three types of jurisdiction namely territorial jurisdiction, pecuniary jurisdiction and jurisdiction
relating to subject matter.
g
an

Exclusion must be explicitly expressed or clearly implied

,B

Criminal courts are courts of general jurisdiction and people have right unless expressly
ge

or impliedly barred by setting up courts of limited jurisdiction in respect of limited field, but only
lle

if the vesting and exercise of the limited jurisdiction is clear and operative and there is adequate
machinery for the exercise of limited jurisdiction.
Co

Section 9 of the CPC reads

w

“Courts to try all civil suits unless barred- The Court shall (subject to the provisions herein
La

contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
en

cognizance is either expressly or impliedly barred.

me

The section clearly allows for the legislature by statute to expressly bar the jurisdiction of the
Civil Courts.The general rule however is that the presumption would be made in favor of the
-A

existence of a right to sue in a civil court, the exclusion of the same being an exception.
Al

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For e.g. sec. 2(1)(f) of the Arbitration and Conciliation Act defines international commercial

in)
arbitration and makes no distinction between international commercial arbitration which takes
place in India or international commercial arbitration which takes place outside India. Sec.

.
law
2(1)(e) defines court but does not provide that court in India will not have jurisdiction if an
international commercial arbitration takes place outside India. It was held that the courts in India

en
would have jurisdiction even in respect of an international commercial arbitration. An ouster of

me
jurisdiction cannot be implied, it has to be expressed.

ala
The Supreme Court has laid down the rule that the plea of absence of jurisdiction can be
raised and entertained at any stage. In the absence of clarity in the point, plea of the absence of

w.
jurisdiction should be allowed only at any point of the case when in the Court of First Instance,

ww
and not in any appeals subsequent to it. Allowing such pleas in appeal might be misused by the
appellant having lost the suit in the lower court. For instance, the losing party in the Court of

e(
First Instance may raise the plea in the appellate court in case he loses in the Lower Court,
r
despite the suit commencing on his petition. This would be gross injustice to the other party and
alo
would also be against the principles of natural justice. Hence it must not be allowed to raise the
g

plea at the appellate court.

an

In Sanker Naryan Potti v K Sreedevi, the Apex Court held “...it is obvious that in all types of
,B

civil disputes civil courts have inherent jurisdiction as per Section 9 of the CPC unless a part of
ge

that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication, by
any statutory provision and conferred on any other tribunal or authority.”
lle

Hence, the current position regarding the jurisdiction of Civil Courts is that they have
Co

inherent jurisdiction to hear into civil matters unless it is expressly or implied excluded by a
w

statute. The Supreme Court has held that the burden of proof for the exclusion of the jurisdiction
La

of the court is on the party contending it.

Another important point is that the Civil Courts itself has the power to decide about its
en

own jurisdiction, even if on investigation, it is found that it does not.

me

The Apex Court in a decision has held that if the right in question is one in Common Law and
-A

not the creation of any statute, the jurisdiction of the Civil Court will not be excluded because the
statute seeks to provide for an exclusive tribunal for the enforcement under the statute.
Al

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The Supreme Court has held in Shri Panch Nagar Parak v. Puru Shottam Das that in the absence

in)
of any express exclusionary provision, the court needs to examine the purpose, scheme and
relevant provisions of the Act in order to determine implied exclusion of the jurisdiction of Civil

.
law
Courts.

en
Exclusion of jurisdiction of superior courts:

me
If the legislature states that the decision or order of a court or tribunal shall be final and
conclusive, the remedies available under the constitution remain unfettered.

ala
When the constitution conferring finality to the decision of an authority is not construed as

w.
completely excluding judicial review under Art. 136, 226 & 227 of the constitution, but limiting

ww
it to jurisdiction error namely infirmities based on jurisdiction violation of constitutional
mandate, mala fides, non-compliance with rules of natural justice and perversity.

e(
Conclusion: The provisions excluding jurisdiction of civil courts and provisions conferring
r
jurisdiction on authorities other than civil courts are strictly construed. The rule against exclusion
alo
of jurisdiction of courts are attracted only where two or more reasonably possible construction
g

are open in the language of the statute and not where legislative intent is plain and manifest to
an

oust the jurisdiction.

,B

c Principle of utility
ge

Introduction:
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The public good ought to be the object of the legislator; General utility ought to be the
Co

foundation of his reasoning’s. To know the true good of the community is what constitutes the
science of legislation; the art consists in finding the means to realize that good.
w
La

To give it the entire efficacy which it ought to have that is to make it the foundation of a system
of reasoning’s, three conditions are necessary.
en

First, _ To attach clear and precise ideas to the word utility, exactly the same with all who
me

employ it.
-A

Second, _ To establish the utility and sovereignty of this principle, by rigorously excluding every
Al

other. It is nothing to subscribe to it in general; it must be admitted without any exception.

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Third, _ To find a processes of a moral arithmetic by which uniform results may be arrived at.

in)
These three principles are like three roads which often cross each other but of which only one

.
law
leads to wished-for destination. The traveller turns often from one into another, and loses in these
wanderings more than half his time and strength. The true route is however the easiest; it has

en
mile-stones which cannot be shifted; it has inscriptions, in a universal language, which cannot be
effected; while the two false routes have only contradictory directions in enigmatical characters.

me
But without abusing the language of allegory let us seek to give a clear idea of the true principle,

ala
and its two adversaries.

w.
Concept of Pleasure and Pain

ww
Nature has placed man under the empire of pleasure and pain. We owe to them all our ideas; we
refer to them all our judgments and all the subjection know not what he says. His only object is

e(
to seek pleasures or embraces pains the most acute. These eternal and irresistible sentiments
r
ought embraces to be the great study of moralist and the legislator. The principle of utility
alo
subjects everything to these two motives.
g
an

Utility is an abstract term. It expresses the property or tendency of thing to prevent

,B

Some evil or to procure some good. Evil is pain, or the cause of pain .Good is pleasure, or the
cause of pleasure. That which is conformable to the utility, or the interest of individual, is what
ge

tends to augment the total sum of his happiness. That which is conformable to the utility, or the
lle

interest of a community, is what tends to augment the total sum of the happiness of the
Co

individuals that compose it.

The logic of utility consists in setting out, in all the operations of the judgment from the
w

calculation or comparison of pains and pleasures, and in not allowing the interference of any
La

other idea.
en

He, who adopts the principle of utility, esteems virtue to be a good only on account of the
me

pleasures which results from it; he regards vice as an evil only because of the pains which it
produces. Moral good is good only by its tendency to produce physical evil; but when I say
-A

physical; I mean the pains and pleasures of the soul as well as the pains and pleasures of sense. I
Al

have in view man, such as he is, in his actual constitution.

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If the partisan of the principle of utility finds in the common list of virtues an action from which

in)
there results more pain than pleasure, he does not hesitate to regard that pretended virtue as a
vice; he will not suffer himself to be imposed upon by the general error; he will not lightly

.
law
believe in the policy of employing false virtues to maintain the true.

en
me
ala
w.
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g alo
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Co
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