UNIT III. A statutory authority to abate nuisances would not justify an order to abate one when it could not be obeyed without committing a -trespass.

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1 trictly for Internal Circulation - KCL UNIT III MAXIM OF TATUTORY INTERPRETATION 1. Contemporanea expositio est optima et fortissima in lege (Cntemporaneous exposition is the best and strongest in law): According to Maxwell, "It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority. Where this has been given by enactment of judicial decision it is a course to be accepted as conclusive". Words of a tatute will generally be understood in the sense which they bore when it was passed. This rule does not, however, apply to modern statute. According to Coke, the maxim contemporanea expositio was applied to construing ancient statutes, but not to interpreting Acts which are comparatively modern. 2. "Construction in Bonam partem": The maxim cannotes that words must be taken in a lawful and rightful sense. The word "lawful" cannotes any thing sanctioned or recognised by law. When, therefore in execution of a decree or order of the court some properties are attached, it has to be seen that the seizure is lawful and that the property belongs to the debtor. Further, the act must be rightfully done, done in a lawful manner. A statutory authority to abate nuisances would not justify an order to abate one when it could not be obeyed without committing a -trespass. 3. Casus Omissus: The term means cases of omission. This maxim provides that omissions in a statute cannot, as a general rule, be supplied by construction. The omissions of Legislature cannot be rectified by the courts. A matter which should have been provided in a statute, cannot be supplied by courts. No canon of construction permits the courts to supply a lacuna in a statute left by the Legislature by inadvertence, because such an attempt amounts to making of law, which is beyond the powers of judiciary. It should be kept in mind that the authority to enact, modify, amend or repeal any law rests with legislature alone. This rule has been effectively explained in following cases:.p. Gupta V. President of India (AIR 1982 C 149) tate of Jharkhand V. Govind ingh, (2005) 10 CC "Expressio Unius Personae Vel Rei, Est Exclusio Alterius": The maxim cannotes that the express mention of one person or thing is the exclusion of another. This rule may be employed to denote intention of the legislature, although it would not be safe to regard it as an obligatory rule of 52

2 trictly for Internal Circulation - KCL law. In the words of Lopes, L.J., the maxim is "a valuable servant but a dangerous master". Expressurn Facit Cessary Taciturn": Analogous to the just preceding maxim it cannotes that when there is express mention of certain things, then any thing not mentioned is excluded. In other words, the maxim lays down that express words put an end to implication. The maxim expressio unius est exclusio alterius is a maxim for ascertaining the intention of the legislature. Where the statutory language is plain and the meaning clear there is no scope for applying the rule. (Parbhani Transport Co-operative ociety V. The Regional Transport Authority AIR 1960 C 801). 5. Ut Res Magis Valeat Quam Pereat: This maxim lays down that it is better for a thing to have effect than to be made void. According to Maxwell "the general rule is that the full effect must be given to every word, yet if no sensible meaning can be given to a word or phrase, or if it would defeat the real object of the enactment, it may, or rather it should, be eliminated. The words of a statute must be construed so as to give a sensible meaning to them if possible. The second consequence of this maxim is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. 6. tare decisis: The doctrine of stare decisis (to stand by past decisions) only means that where a rule has become settled law, it is to be followed although some possible inconvenience may grow from a strict observance of it. Thus, where a certain translation of texts of Hindu Law has been accepted as correct and on which questions of title of property have been decided, the principle of stare decisis would apply to prevent a reopening of the whole question involved on the ground that such translation is wrong. The full form of the maxim, stare decisis at non quieta movere, which means "to stand by decisions and not to disturb what is settled". PREUMPTION IN TATUTORY INTERPRETATION An Act made by the legislature represents the will of the people and that cannot be lightly interfered with. In India the approach of the courts while examining an enactment is to start with the presumption of constitutionality. The courts try to sustain the validity of a statute to the extent possible and they strike that down only when it is not possible to sustain the same. The court. should not approach the enactment with a view to pick holes or to search for defects of drafting, much less in exactitude of the language employed. Indeed any such defects of drafting should be ironed out as pan: of the attempt to sustain the constitutional validity of the enactment. The unconstitutionality must be plainly and clearly established before an enactment is declared as void. The same approach holds good while ascertaining the intent and purpose of an enactment or its scope and application. The court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and executive are expected to show due regard and deference to judiciary. 53

3 trictly for Internal Circulation - KCL It is a cardinal principle of construction that the statute and the rule or the regulation must be held to be constitutionally valid unless and until it is established that they violate any specific provision of the constitution. Further, it is the duty of the court to harmoniously construe different provisions of any Act or Rule or regulation, if possible, and to sustain the same rather than strike down the provisions outright. We can discuss the topic of presumptions of statutes under the following heads : 1. tatutes are presumed to be valid: a) Constitutional Meaning to be preferred: There is a presumption in favour of the validity of a statute. Courts of law have to presume that the particular law is intravires and not ultravires. It is well-settled that if certain provisions of law construed in one way would make them consistent with the constitution, and another in perpetration would render them unconstitutional, the court would lean in favour of the former construction. The construction which leads to unconstitutionality; or a' construction that results in invalidity rather than validity must be avoided. Where two reasonable constructions are possible, one which does not infringe fundamental rights, or the one which would make the law intra vires, or is consistent with constitutionality, or the one which validates the statute and shortens litigation, or which sustains the validity of the provision of law should be preferred. If certain provisions of law construed in one way will be consistent with the Constitution and if another interpretation would render them unconstitutional, the court would lean in favour of the former construction, and would construe if necessary to keep it within powers of legislature; in a more limited sense, the generality of the language of the Act, which, if read literally, will apply to matters beyond relevant legislative powers. b) Presumption holds good for all Legislatures: There is always a presumption that a legislature, be it central or provincial, never intended to exceed its legislative ambit so as to conflict with the jurisdiction of another legislature. It is a sound principle of construction that Acts of a overeign legislature, and indeed of subordinate legislatures, such as a municipal authority, should, receive such an interpretation as will make them operative and not inoperative. It would be presumed that the legislature did not intend to enact anything beyond its competent territorial limits. c) Presumption for all Manner of Laws: The presumption is not confined to the legislations of the Union. A state Act should also be construed so as to make it consistent with the constitution. The rule is equally applicable to by-laws: d) tatute in Infringement of Fundamental Rights: Where the validity of a statute is impugned on the ground that its provisions contravene fundamental rights guaranteed by the constitution and two constructions are possible as to the meaning and intention of the legislature, the court should adopt that construction which upholds the validity. In the case of Khyerabari Tea Co. v. tate of Assam1 it was held by Justice Gajendragadhkar that once a citizen shows that the impugned statute invades either his individual fundamental right, or the right of freedom of trade, the presumption has worked itself out and the onus shifts to the state to show that the invasion amounts to a restriction or it is in the interest of the general public. e) Rules when language Ambiguous: Courts must find out the literal meaning of the expression in the task of construction. In doing so, if the expressions are ambiguous, then the construction that fulfills the object of the legislation must provide the key to the meaning. However, there is a 54

4 trictly for Internal Circulation - KCL presumption that the legislative does not leave any lacuna. When it is equally possible to take the view which would be conducive to the conclusion that there is no lacuna in the legislation, it would be unreasonable to take the view that the legislature has left a lacuna, either by negligence or by lack of foresight or because it did no know its job. If the language of an enactment is ambiguous, and on one construction, it would be within the powers of the legislature, the courts will construe ambiguous expression in such a manner as to maintain the validity of the statute if the language will reasonably bear such interpretation. f) Intention of Legislature does not confer validity: The validity of an Act depends on the legislative competency irrespective of the intention which leads to its enactments. The intention with which a provision of law is made is, however, not relevant for the purpose of deciding if it is void, as infringing any provision in Constitution. If it does infringe, then whatever the intention may be, it is void. g) everability: In determining whether the valid parts of a statute are separable from the invalid parts, it is the intention of the legislature that is the determining factor. One test is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. The second test is that if 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 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. h) Presumption of Constitutionality Burden on One who Attacks it: The presumption is in favour of the constitutionality of an enactment and the burden is upon him who attacks to show that there has been a transgression of constitutional principle. Charnjit al v. UOI (1951 C 41). The court, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. In many cases the Hon'ble upreme Court allowed affidavits to show the reasons for the enactment of law, the circumstances, in which it was concerned and the evils it was to cure. The construction has to be preferred which would make the provisions in an Act introvert the legislature which passed it. 2. tatutes are territorial in operation: The ordinary principle of construction is that legislature is dealing with the subject matter situated within its own territorial jurisdiction. Now, prima facie, the legislation of a country is territorial. Its acts are intended to apply to matters occurring within its realm and not beyond it, and this principle applies to Acts that are penal in their character. Law of a nation applies to all its subjects and to all things and Acts within its territories, including in this expression not only its ports and waters, but its ships, of its subjects on the. high seas in foreign tidal waters. They apply also to all foreigners within its territories (not privileged like sovereigns, and ambassadors) or regards criminal, police and all other matters except some questions of personal statutes or capacity. The presumption is, that the legislature does not design its statutes to operate on them beyond the territorial limits of the state. a) Extra-territorial Jurisdiction of overeign Legislatures: overeign legislatures have powers of enacting extraterritorial laws, at least so far as recognition by their own courts is concerned. Ordinarily, 55

5 extra-territorial operation would be making legislation for their benefit only. trictly for Internal Circulation - KCL India, prior to the coming into force of the constitution, the position was that sub , government of India Act 1935, empowered the federal legislature to make laws for the whole or a y part of British India and the topics on which it could legislate were specified in lists I and III of... ch. VII. ub (2) of the ec. laid down that without prejudice to the generality of the powers inferred by the preceding sub-sec, no federal law shall, on the ground that it would have extra-territorial operation, be deemed to be invalid. The Indian Parliament being a sovereign legislature, CI(2) of Art. 245 of the Constitution lays own that no law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation. while the Union Parliament has power to make laws for the whole or any part of the territory of dia, the state legislature can make laws only for the state or any part thereof. The legislative power of the state is confined under Art. 245(1) to the territory of the state. The state legislatures have no extra territorial legislative powers. 2 I the case of Bengal Immunity v. tate of Bihar, Venkatarama Ayyar J.held that where there as sufficient territorial connection between the person who is sought to be charged or proceeded against under the law, and the country which enacts the law, the law is not, strictly speaking, extra-territorial and it is not ultra-vires on the ground that the person is not residing within the s ate which enacts the law. I Abdul Kadar v. Union of India it was held that a law passed by the legislature having plenary powers is not involved on the ground that it has extra territorial operation. In that case, warrants for detention were issued under COFAPOA Act after the alleged smugglers had fled the country. When proclamation under. 7(1) (a) of the Act read with. 82(1) Criminal Procedure Code 1973 was issued, the same were challenged as illegal and ultra-vires. It was observed: The words 'extra-territorial' are normally used in two different senses, as connoting firstly, laws in respect of acts, and events which take place inside-the state but have operation outside and secondly, laws with reference to nationals of a state in respect of their acts outside. In its former sense, the laws are strictly speaking intra territorial, though loosely termed as extra-territorial under Act. 241 (1). Therefore,. merely because the law passed by the Parliament has extra-territorial consequences, it cannot be invalidated as set out in - Art. 245(2) of the Constitution. 3. tatues are Presumed to be in Conformity with International Law: Under the general presumption that the legislature does not intend to exceed its jurisdiction, every statute is to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the established rules of international law. There is indeed a presumption against any intention to frame a statute so as to contravene a rule of international law. According to recognized rules of construction of statutes, the legislature is presumed not to enact any thing contrary to international law or the common law. Unless, therefore, the intention to do so is clearly expressed in the enactment, the courts would be inclined to favour an interpretation which would bring the enactment into consonance with those principles rather than accept a grammatical interpretation. As between two possible constructions, that which is conformable to international law is to be preferred 56

6 trictly for Internal Circulation - KCL to that which would involve infringement of the right of other communities. The judges may not pronounce an Act ultra vires as contravening international law, but in case of ambiguity, from a construction which would involve a breach of the ascertained and accepted rules of international law a sovereign power is always presumed to respect the subject and the rights of all other sovereign powers outside its territory. 4 In PUCL v. Union of India the upreme Court was required to interpret. 3(2)(d) of the Protection of Human Rights Act 1993 which stipulates that the commission shall consist of two members to be appointed from amongst persons having 'knowledge of or practical experience in, matters relating to human rights. The question before the court was whether a police officer would fall in the category stipulated under this provision and was the appointment of such a person consistent with the language of the section and the true intendment of the Act. To this end, the reference was made to the 'Paris Principles' on the establishment of human rights institutions adopted by the United Nations in These principles encouraged human rights institutions to have as little governmental interference as possible. In the wake of this reliance, the judges made the following different observations on the applicability of international norms, as given below: abharwal J. was of the opinion that the 'Paris Principle' must not be derogated from and consequently the appointment should not be allowed. He observed that international treaties have influenced interpretation of Indian law in several ways. The upreme Court has relied upon statutory Interpretation. Where the terms of any legislation are not clear or are reasonably capable of more than one meaning, in such cases, the courts have relied upon the meaning which is in consonance with the treaties, for there is a prima-facie presumption that parliament did not intend to act in breach of international law, including treaty obligations. In this view,, 3 (2) (d) of the Act has to be read keeping in view 'Paris Principles'. Dharmadhikari J. on the other hand observed that the court needed to take aid of international law and guidelines in interpreting the domestic law only if it found some gap to be filled in such law or if the provisions of domestic law were not clear and did not wholly carry the meaning and effect of the international law which it intends to implement. The 'Paris Principles, he opined, were at best guidelines to be followed by countries which were parties to the resolutions taken at the international conferences on human rights. uch acceptance did not create an obligation to incorporate the Principles word by word in statutory law. In his opinion, the impugned provision of the Human Rights Act was clear and unambiguous and therefore there was no need to place reliance on principles of international law. 5 The upreme Court in Umesh Chandra v. tate of Rajasthan held that the relevant date for determining the age of the accused who claims to be a child is the date of occurrence and not the date of trial. 6 But in Amrit Das v. tate of Bihar upreme Court laid down that the relevant date for the said purpose would not be the date of occurrence but the date of production of accused before the court. ince there was a conflict of opinion the matter was referred to the constitution bench. 7 In the case of Pratap ingh v. tate of Jharkhand the Constitutional bench ruled that the relevant date is the date of occurrence of the offence and not the date of production before the court. In arriving at this conclusion the Hon'ble court took note of the fact that the Juvenile Justice Act 2000 specially refers to 57

7 trictly for Internal Circulation - KCL international law. The relevant provisions of the United Nations tandard Minimum Rules for Administration of Juvenile Justice 1985 were incorporated therein. Although international treaties, covenants and conventions may not be a part of our municipal law, insofar as India was a party to the said treaties the same could be referred to and followed by the courts. The Constitution of India and other ongoing statutes have been read consistently with the rules of international law to develop new rights in the context of the constitution. Constitution is a source of, and not an exercise of legislative power. Ordinarily, the principles of international law are implied into every statutory effort. The instant case made for a stronger obligation as the legislature explicitly bound itself to the principles of international law. In rejecting the state's argument that the relevant date for the determination of age would be the date of production, the court observed that Act was not just a beneficial legislation, but a remedial one. The Act aims to grant care, protection and rehabilitation of juvenile vis-a-vis the adult criminals in accordance with the United Nations tandard Minimum Rules for the Administration of Juvenile Justice. On the recent decisions upreme Court demonstrated that there was a difference of opinion on the weight to be accorded on the matter of presumption of the statutes in conformity with the international law. 8 In the case of ADM Jabalpur Vs..K. hukla it was observed by Justice Khanna in his dissenting judgment that if a statutory provision of India is open to two valid constructions, the court should prefer the one that may be in harmony with international law. 4. Legislature does not commit a mistake: It is not competent for the court to proceed on the assumption that the legislature knows not what it says, or that it has made a mistake. It may be presumed as a rule that exact and correct words are used in the statute. There is a sort of assumption that the legislature is an ideal person which does not make mistakes, but assumption sometimes has its own limitations. -It is too much to expect that legislation was drawn up in haste to bring about changes in law in a large part of the territory of India in a short time. The legislative authorities had devoted the same care and attention in drafting such enactments as would have been necessary and desirable. It would not be proper to construct such emergency legislation with the same amount of strictness as in construing the statutes which have come out after considerable thought and attention on the part of the legislature. Mistakes may creep into legislation due to various circumstances and causes. They may be caused by the printer making an incorrect reproduction of the drafts of manuscript, or they may be due to the draftman's unskilfullness. They may also creep into a Bill during its passage through the legislature. a) Presumption Against Mistake: We cannot assume a mistake in an Act of parliament. If we think so, we should under many Acts as certain by putting different constructions on them according to an individual connections. The draftsman of the Act may have made a mistake. If so, the remedy is for the legislature to amend it. The legislature is presumed not to have made a mistake even if there is some defect in the language used by the legislature. It is not for the court to add to or amend the language, or by construction make up deficiencies which are left in the Act. Even where there is a casus omissus,9 the remedy lies not with 58

8 trictly for Internal Circulation - KCL court, but with the legislature. It is not given to a court of law to construe a section on the footing that the legislature has committed and error. 10 In an English case of commissioner for pecial Purposes of Income Tax v. Pemse Lord Halsbury opined, "In fact, the language of an Act of Parliament may be founded on some mistake and that words may be clumsily used, I do not deny. But I do not think it is competent to any count to proceed upon the assumption that the legislature has made a mistake. Whatever the real fact may be, I think a court of law is bound to proceed upon the assumption that the legislature is an ideal person that does not make mistakes. It must be assumed that it had intended what it has said, and I think any other view of the mode in which one must approach the interpretation of a statute, would give authority for an interpretation of the language of an Act of parliament which would be attached with the most serious consequence." 5. Legislature does not Waste its Words: The legislature is deemed not to waste its words or to say anything in vain. It will be presumed that words in statute are used precisely and exactly, not loosely or inexactly. The presumption is always against superfluity in a statute. An Act should be construed as to avoid redundancy or surplus age. It is no doubt true that as a general rule legislatures may be presumed not to make a superfluous provision. But this presumption is not a strong presumption and it is not uncommon to find the legislature inserting superfluous provision under the influence of what may be abundant caution. It is well-settled principle of construction that no part of a statute shall be so construed as to convict the legislature of having engrafted a statutory clause which would be of no purpose or avail to anyone. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of the power conferred on the authority meaningful and effective. A construction which would render the provision negatory ought to be avoided. Thus, when the court was required to pronounce upon commencement of limitation period for filing a review petition under the Advocates Act 1961, it held that the expression 'the date of that order' as occurring in. 48-AA of the Act has to be construed as meaning the date of communication or knowledge of the order to the review petitioner (D. aibaba v. V. Bar Council of India (2003) 6 CC 186, Para 9). Every part of a statute should be given as far as possible its full meaning and effect and no word or clause should ordinarily be rejected as superfluous. An interpretation which makes a provision of law completely nugatory cannot be correct. Effect should be given to every part of the section in an enactment. It should not be assumed that the legislature used language without any purpose. Thus, the clear language of. 27 of the Indian Evidence Act, 1872 clearly indicates that statement in order to fall under the section must contain all the qualifications laid down therein. When the person giving the information leading to the discovery of certain facts relating to crime under investigation does not happen to be an accused at the time he offers the said information, his statement cannot be used as evidence as it does not come within the meaning of. 27. As far as possible, full meaning must be given to every word of a statute. No word should be regarded as superfluous unless it is not possible to give a proper interpretation to the enactment, or the meaning given is absurd or inequitable. No word is superfluous, redundant or surplus. A construction which makes a provision superfluous must be avoided. A construction that makes any provision of a statute a 'dead letter' must be rejected. In using words or expressions, the legislature must always be presumed not to be redundant. Law should be interpreted so as not to make any word redundant, if it is possible to interpret it so as to utilise the meanings of all words used in the legislation. The cardinal rule of 59

9 trictly for Internal Circulation - KCL interpretation is that every section of the code is to be given a proper interpretation. It is not permissible in interpreting a statute to omit words as redundant unless reading them in the statute would lead to absurdity. The court cannot supply a clear and obvious lacuna in a statute, but it is incumbent on it to avoid a construction which would render a part of the statute devoid of any meaning or application. The rule of harmonious construction requires that no provision of the Act should be rendered totally ineffective as a result of interpretation. 11 In one case of National Insurance Co. Ltd. v. waran ingh upreme Court observed that it is now well-settled principle of law that rules validly framed become part of the statute. uch rules are, therefore, required to be read as a part of the main enactment. An attempt must be made to give effect to all the provisions under a rule for the interpretation of a statute. No provision should be considered as surplus age. 6. Words Interpreted in ordinary sense unless Technical: The first and most elementary rule of construction is that it is to be assumed that words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning. It is to be presumed that the legislature has used the words in their known and ordinary signification, particularly when they are themselves precise and unambiguous. a) Plain and Natural Meaning not Interchangeable with Popular Meaning: The rule is that words used by the legislature should be given their plain and natural meaning. By plain and natural meaning is meant the literal and popular as opposed to a figurative or technical meaning. In one case Kerala High Court said that the expression 'water cooler' and 'refrigerator' are popular words well understood as meaning different things. They should not be interpreted according to any technical or scientific meaning. 12 But in one case of Kanwar ingh v. Delhi Municipality upreme Court said that the rule does not imply that the court is not entitled to depart from the ordinary meaning of words under all circumstances. The court may depart from the ordinary meaning of words under all circumstances. The court may depart from the ordinary dictionary meaning in some situations, and give it a meaning which will advance the remedy and suppress the mischief according to the true intention of the statute. b) Ordinary Meaning subject to context and other factors: A word which is not defined, but which is a word of every day, use must be construed in its popular sense. In Puma Ayurvedic Herbal (P) Ltd. 13 v. CCE Nagpur the point of dispute was whether the products made by the appellant, a manufacture of ayurvedic products, should be categorized as medicament or cosmetics. Differentiating between a cosmetic and a medicament the court ruled that cosmetic products are meant to enhance beauty whereas a medicinal product or medicament is meant to treat some medical condition. It may happen that while treating a particular medical problem, after the problem is cured the appearance of the person concern may improve. However, what is to be seen is the primary use of the product, the extent or quantity of medicament used in a particular product is also not a relevant factor. The fact that use of medicinal element in a product was minimal does not detract from its being classified as a medicament. The rule is not a law but a subsidiary rule of construction which may often be usefully applied in 60

10 trictly for Internal Circulation - KCL considering the intention of the legislature. However, it is the duty of the court not to confine itself to the mere verbal or literary effect of the provisions, as if applied to an abstract subject. c) Technical Words have Technical Meaning: In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has used an expression as used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular sense as it is understood when used in a similar context.. If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. uch an expression must be given its legal sense and no other. Where a word used by the legislature has a fixed technical meaning, it is to be taken in that sense, unless the context or other evidence of meaning indicates a contrary legislative intent. The technical words and phrases of the law are presumed to have been used in their proper technical signification when used in statutes, unless it plainly appears that a different meaning was intended by the legislature. The first and most elementary principle is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they have acquired one, and otherwise in their ordinary meaning. The general rule with respect to terms used in trade or commerce, is that in the absence of evidence of a contrary legislative intent, words of commerce or trade, when used in a statute relating to those subjects, are presumed to have been used by the legislafure in their trade or commercial meaning. 14 In the case of Delhi cloth Mills v. tate of Rajasthan it was held that words and expression, in. a sales tax law should be construed as understood in the trade by the dealer and the consumer. The sense in which they understand them is the 'definitive index of the legislative intention'. Particular words used by the legislature in the denomination of articles should be understood according to the common commercial understanding of the term used, and not in their scientific or technical sense for the legislature does not suppose our merchants to be naturalists, or geologists or botanists. In another case, the question as to whether salted peanuts and cashew nuts fell within the category of 'fruits' or 'vegetable' for the purpose of the Excise Act, came up for consideration, and the question was answered in the negative in spite of the evidence of botanists that both peanuts and cashew nuts are vegetables in the wider meaning of that. word, that each is a 'fruit' and that neither is a 'nut'. On these principles, it has been held that under the Travancore General ales Tax Act 1924, horticultural produce grown by the owner in the circumstances specified is exempt from tax, but tea, though an agricultural produce grown by the owner in the circumstances specified, shall not have the benefit of that exemption. Tea' in the context in which it occurs cannot but mean the leaf gathered from the tea bush, whether it has or has not been subjected to the processes which prepare it for the market, and hence, the green leaves just like processed leaves are liable to sales tax. 'Cooked food' in the context does not include 'biscuits', for purposes of taxation under the Uttar Pradesh ales Tax Act 1948, and hence not liable for lower rates of sales tax. 7. Legislature presumed to know the Rules and Grammar: Crawford in statutory construction, 15 says since one may assume that the legislature knew and understood the rules of grammar, such rules should be considered by the court in their efforts to ascertain the meaning of a statutory enactment on the theory that they will reveal or tend to reveal the correct sense or meaning thereof. 61

11 trictly for Internal Circulation - KCL 8. Legislature Presumed to know the law, Judicial Decisions and General Principles of Law : 16 According to utherland, the legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, the rules of statutory construction, and the judicial decisions and that if a change occurs in legislative language a change was intended in legislative result. It is wellsettled 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 in 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, they must be taken to have accepted the interpretation put on them by the court as correctly reflecting the legislative mind. 17 In Ahmedabad Private Primary Teachers Association v. Administrative Officer the question before the court was whether teachers would fall within the category of 'employees' as defined in the Payment of Gratuity Act, The court observed that by virtue of the doctrine of Pari Materia, reference to other statutes dealing with the same subject or forming part of the same system is a permissible aid to the construction of provisions in a statute. The court referred to the definition of 'employee' in a number of labour legislations, in order to determine whether teachers came within the meaning of 'employee' as defined under the payment of Gratuity Act 1972 and decided in negative. The court observed that the legislature was aware of the various definitions of 'employee' under other labour legislations, and in particular, as enumerated in the Employees Provident Fund Act Being so aware, the legislature would have defined 'employee' in a wider sense, as done in the EPF Act, if it intended to include teachers within the definition. The legislature is presumed to know the law. 9. Presumption subject to anything showing a contrary intention: If the legislature uses forms of words which have received judicial construction, the presumption is that the parliament in subsequent statutes did so use them unless there is any thing in the Acts showing that the legislature did not mean to use the words in the sense attributed to them by the courts. The presumption in such cases is that the legislature did not intend to depart from the meaning given by the court. Thus, the legislature knowing fully well the judicial interpretation put on the word 'discharge' occurring in. 437 of the old Cr. PC 1908, has also in the new Cr. PC 1973, used the word 'discharge' in This word should, therefore be interpreted in the sense which has been judicially put under the old repealed code. 10. Legislature is Fair: Where there are two constructions, the one of which will do great and unnecessary injustice, and the other which will avoid that injustice, and will keep exactly within the purpose for which the statute was passed, it is the bounden duty of the court to adopt the second and not adopt the first of those constructions. In Maikoo Lalv. antoo, full Bench of the Allahabad High Court agreed with the principle of Maxwell: In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should, in all cases of doubtful significance, be presumed to be the true one. The underlying purpose of all legislation is to promote justice among men. The object and effect of the 62

12 trictly for Internal Circulation - KCL statute should be primary concern in the interpretation of statutes. The court should avoid a construction which will render the statute unjust and oppressive or unreasonable or contrary to public interest. A construction which permits one to take advantage of one's own wrong or to impair one's obligations under a current statute should be discarded. The construction of the provision should be as far as possible beneficial, to suppress the mischief and advance the remedy, if this can be done without violence to the language of the section. A construction which would make the statute effective and productive of the most good of the people should be accepted. A construction that produces an effect at variance with commonly recognized concept of what is just, right and ethical should be avoided. Moreover, in a fast changing society, the law has to be liberal and flexible to serve the modern concept of social purpose. 11. Vested Rights are Preserved Top of Form a. Vested rights are not presumed to be abrogated ': There is a presumption against the taking away of a vested right by any fresh legislation, and a construction which involves the taking away of vested rights ought not to be adopted if the words of the enactment are open to any other construction. b. No Retrospective Operation: No rule of construction is more firmly established than this that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation otherwise than as regards matter of procedure, unless the effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. A law is said to be not retrospective when right or liability arising out of jural relation constituted before the new law came into force or created by a jural fact or even taking place before the new law, or any relief or remedy in respect of that right or liability remains unaffected by the new law. Where vested right are concerned, an amendment has no retrospective effect unless it is so stated expressly in the Act. The repealing enactment cannot be given retrospective operation so as to impose an impossible condition of forfeiture of a vested right. c. What are Vested Rights: Every statute which prima-facie takes away or impairs vested rights acquired under existing law or creates new obligations, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past, must be presumed to be intended not to have a retrospective operation. The presumption applied not only to a substantive right but also to a right of suit, and a right of appeal, both of which are vested rights. 12. Jurisdiction of Court: Jurisdiction may be defined as a power of a court to hear and determine a cause, to adjudicate and exercise any judicial power in relation to it. In other words, by Jurisdiction is meant the authority by which a court has to decide matters that are litigated before it or to take cognizance of matters prescribed in a formal way for its decision. In short Jurisdiction means the power to hear and determine issue of law and fact; the authority by which the judicial officers take cognizance of and decide causes; the authority to hear and decide a legal controversy; the power to hear and 63

13 trictly for Internal Circulation - KCL determine the subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them; the power to hear, determine and pronounce judgment on the issues before the court; the power or authority which is conferred upon a court by the legislature to hear and determine causes between parties and to carry the judgments into effects. The power to inquire into the facts, to apply the law to pronounce the judgment and to carry it into execution. The jurisdiction of the court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. a. Jurisdiction Conferred and Taken Away Only by law : It is only by virtue of statutes that jurisdiction is conferred on courts, or taken away from them. In the absence of clear provisions, the ordinary rule of interpretation that a statute does not create new jurisdiction or enlarge existing ones, applies. It cannot be impliedly affected by a statute which has nothing to do with jurisdiction. b. Exclusion of jurisdiction must be in express terms or by use of such terms as must lead to interence of such exclusion. Court will not favour an interpretation which has the effect of taking away the jurisdiction of the competent authority, unless the same is expressly provided for in law. c. Consent cannot give Jurisdiction: The parties can, by mutual consent no more take away a jurisdiction vested by law in any court than they can confer on it when it is not so vested by law When a judge has no inherent jurisdiction over the subject matter of a suit the parties cannot confer jurisdiction on him by mutual consent. d. tatutory Jurisdiction to be Exercised ubject to pecified Limitations: Where the jurisdiction of a court in certain matters is statutory, the court, however admirable its intentions, is not entitled to go outside those provisions, and in effect to legislate for itself. A statute conferring jurisdiction under certain particular conditions cannot be taken to confer jurisdiction also in cases which do not fall within the ambit of the conditions laid down merely on the basis of analogy. But where an Act confers jurisdiction on a tribunal, it must be taken to have impliedly granted the power of doing all such acts or employing such means as are essentially necessary to its exercise or execution. e. Jurisdiction of uperior Courts: The exercise of jurisdiction by the upreme Court in India, is dependent upon and governed by the specific provisions of the constitution. It cannot claim to exercise a jurisdiction not vested in it under the provisions of the constitution. f. No implied authority to deprive uperior Courts of their Jurisdiction: It is a well known rule of interpretation of provisions barring the jurisdiction of civil courts that they must be strictly construed for the exclusion of the jurisdiction of a civil court and least of all the upreme Court, and it is not to be lightly inferred. This is not to be presumed without express words an authority to deprive the upreme Court of a jurisdiction which it had previously exercised or to extend the privative jurisdiction of the upreme Court to the inferior courts. The general presumption is against construing a statute as ousting or restricting the jurisdiction of the uperior Court. g. Jurisdiction of Civil Courts: ec. 9, Civil procedure Code 1908, lays down that the courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is 64

14 trictly for Internal Circulation - KCL either expressly or impliedly barred. One general rule of law is that when a legal right and an infringement thereof are alleged, a course of action is disclosed and unless there is a bar to the entertainment of a suit, the ordinary civil courts are bound to entertain the claim. ec. 9 CPC lays down a general rule in favour of the jurisdiction of the civil court and the burden of proof is on the party who pleads an exception to the general rule. The exclusion of the jurisdiction of civil courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Interpretation in favour of the jurisdiction of a civil court should be preferred to the one for its absence. COMMENCEMENT, OPERATION OF TATUTE Parliament is the maker of law. The birth of a law, its life span and the date on which it would come to an end is determined by the legislature alone. Commencement of tatute: Commencement means coming into.operation of the statute on the day on which the Actor statute comes into force. ec. 3 (13) of the General clause Act, 1897 defines commencement. It says 'commencement' used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes into force. The legislature may expressly appoint a particular future date on which a law shall come into force. In that case the date of its enactment or date of its receiving Presidential assent is irrelevant. The law shall come into force from immediately after zero hours on the particular date on which its coming into force is expressly intended. For example, the code of Criminal Procedure received the assent of the President of India on but it is categorically provided in section 1 (3) that it shall come into force on the first day of April As such, the code came in force with effect from only. However, where no such day of operating of a statute is appointed, the law comes into force from the date on which President of India accorded his assent to it. ec. 5 of General Clauses Act, 1897 provides (1) where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives assent - (a) in case of a Central Act ma e before e commencement of the constitution, of the Governor-General and (b) in case of an Act of Parliament, of the President (2) Unless contrary is expressed, a Central Act or regulation shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. It is quite often that 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. Provision is also at times made for appointment of different dates for coming into force of different parts of the same Act. 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 (state of Orissa v. Chandra hekhar ingh, AIR 1970 C 398). 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. (AX. Roy v. Union of India, AIR 1982 C 710) 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. (Altmesh Rein v. Union of India, AIR 1988 C 1768). In Hariya v. tate of Rajasthan (AIR 1988 C 1768) the upreme Court observed that in the absence of specified date mentioned by the statute of its commencement, it will come into force from the day of assent of the President of India or Governor of the tate is received. 65