Supreme Court of India
UNION OF INDIA & ORS.versusPRIYANKAN SHARAN AND ANR.
- Citation
- 2008 INSC 1022
- Decided
- 8 September 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
Clause 4(a) is subject to Clause 6 and the proviso creates an exception, so the respondents are discharged from the bond liability.
Summary
The petitioners, who had taken admission to the Armed Forces Medical College on a service bond, were declared medically unfit (Non‑Service Liability) under Clause 4(a) of the bond. The bond required payment of a specified amount under Clause 6 unless the proviso to Clause 4(a) applied, which exempted cadets from paying if the disability was beyond their control and they had not refused treatment. The High Court discharged the respondents from the bond upon receipt of a Rs 1 lakh deposit and a No‑Objection Certificate. The Union of India appealed, arguing that the bond amount was still payable. The Supreme Court held that Clause 4(a) is subject to Clause 6 and that the proviso creates an exception, making the High Court’s decision rational and correct. Consequently, the appeals were dismissed without any order as to costs.
Issues considered
- The interpretation of Clause 4(a) of the service agreement in relation to Clause 6 and its proviso.
- Whether a cadet declared medically unfit under Clause 4(a) is liable to pay the bond amount under Clause 6.
- The applicability of statutory construction principles (proviso, casus omissus, golden rule) to the contractual clauses.
Subjects
service bondmedical disabilitynon‑service liabilitycontract interpretationprovisostatutory constructioncasus omissusgolden rulearmed forces medical college
Judgment
[2008] 13 S.C.R. 237
~
UNION OF !NOIA & ORS. A
II.
PRIYANKAN SHARAN AND ANR.
(Civil Appeal No. 5539 of 2008)
-1 SEPTEMBER 8, 2008
8
[DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]
Military Service:
Admission in M.B.B.S. Course in Armed Forces Medical
College - Agreement to serve the nation for a specified period c
of time by executing service bond - No service liability on
happening of certain events including unfitness on medical
grounds after making payment of certain amount in terms of
clauses 5 & 6 of the agreement - No requirement of making
'f any such payment in terms of proviso to clause 4 of the D
agreement - High Court ordered discharge of bond in respect
of respondents on ground of medical disability - Correctness
of - Held: High Court in each case found that the candidate
was suffering from ailment and exempted from service liability
therefor - Moreover, a sum of rupees one lakh was deposited E
by them and No Objection Certificate furnished - Thus, High
Court's view is a rational one and based on facts of each case
- Hence, no interference with the impugned judgment is called
for
-"\
Interpretation of Statutes - Principles of construction: F
(i) 'Casus Omissus' and 'Statutes as a whole' - Meaning of.
(ii) Proviso ·to Section of a Statute - Scope of- Discussed.
(iii) Golden rule for construing statutes - Discussed. G
Maxims:
Maxim 'Ad ea quae frequentius accidunt jura adaptantur'
- Applicability of.
237 H
238 SUPREME COURT REPORTS [2008] 13 S.C.R.
A Respondents took admission in MBBS course of
Armed Forces Medical College by executing a service
bond to serve the nation after completion of the course.
Clause 4 of the Service Agreement deal with a situation
when a cadet shall be declared to have become Non
B Service Liability (NSL). On the happening of certain
contingence as specified in Clause 5 and 6 of the bond,
a cadet could be discharged of service liability else he
would be liable to pay certain amount with interest in
case he opted out not to serve the nation. Proviso to
c Clause 4 declares that a student may be allowed to
continue his stay with hostel on payment of the normal
expenses of education including tuition fees and fees for
boarding and lodging facilities as applicable from time to
time if he/she has contracted the disease/disability in the
circumstances over which he/she has no control on which
0
the decision of the Authority shall be final and for which
he/she has not refused treatment and further in such
eventuality he/she may not be required to pay any amount
to the Government as specified in clause 6 of the
agreeme1t in lieu of Non Service Liability.
E
The question which arose for determination in these
appeals was as to whether the High Court was right in
granting relief to respondents by discharging them from
the service bond on ground of medical liability.
F Appellant-Union of India and others contended that
till 1998 the bond amount which covered the cost of free
education, ration and other facility during the entire period
of four and a half years was rupees three lakhs; that the
bond amount was revised w.e.f. July, 1999 and guidelines
G were issued on 18.2.2002 for deciding the cases relating
•~ waiver of bond money in respect of medical cadet
declared NSL on medical grounds; and that though in
each case the cadet was declared NSL but they were
required to pay the bond money as demanded.
H
'
''
UNION OF INDIA & ORS. v. PRIYANKAN 239
~· SHARAN AND ANR.
Respondent-cadet submitted that the proviso of A
Clause 4(a) of the agreement has been lost sight of by the
i
appellants while raising the demand.
Dismissing the appeals, the Court .
, ~ HELD: 1.1 A bare reading of Clause 4(a) of the B
' agreement makes the position clear that the same is
subject to Clause 6. The proviso to Clause 4(a) of the
agreement makes the position clear that Clause 4(a) and
Clause 6 operat~ in different footings. (Para - 8) [248-G]
1.2 In the case of respondents, the appellant and its c
functionaries proceeded on the basis as if respondent No.1
refused to undergo surgery. From the statement made in
the petition itself it is clear that there was no such refusal
but there was a prayer for postponement of the surgery till
'1
examinations are over. (Para - 9) [248-H 249-A] D
i
1.3 Stand of the appellants before the High Court
was that in a large number of cases students are being
reported as medically unfit and seeking discharge from
the bond on the ground that there is no deliberate
unwillingness to serve the nation in accordance with the E
bond. High Court perused the medical reports and came
to the conclusion that the writ petitioners' case was a
genuine one. There were various medical reports
including those of All India Institute of Medical Sciences.
.., Since he had deposited Rupees One Lakh and "No F
Objection Certificate" had been issued, the impugned
order was passed in the writ petition. In the other case
also similar view was taken and the prayer of the present
appellants to increase the amount to Rupees 3.5 lakhs
was rejected. (Para - 10) [249 B-D] G
2.1 The proper function of a proviso is to except and
).._
to deal with a case which would otherwise fall within the
general language of the main enactment and its effect is
confined to that case. It is a qualification of the preceding
H
240 SUPREME COURT REPORTS [2008] 13 S.C.R.
A enactment which is expressed in terms too general to be
quite accurate. As a general rule, a proviso is added to an
enactment to qualify or create an exception to what is in
the enactment and ordinarily, a proviso is not interpreted
as stating a general rule. (Para - 12) [249 G-H 250-A]
B Mullins vs. Treasurer of Survey (1880) 5 QBD 170; Shah
Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash
Chandra Yograj Sinha AIR (1961) SC 1596 and Calcutta
Tramways Co. Ltd. vs. Corporation of Calcutta AIR (1965) SC
1728 - relied on.
c
2.2 Normally, a proviso does not travel beyond the
provision to which it is a proviso. It carves out an
exception to the main provision to which it has been
enacted as a proviso and to no other. (Para - 12) [250-B]
D A.N. Sehgal and Ors. v. Raje Ram Sheoram and Ors.
AIR (1991) SC 1406; Tribhovandas Haribhai Tamboli v.
Gujarat Revenue Tribunal and Ors. AIR (1991) SC 1538 and
Kera/a State Housing Board and Ors. v. Ramapriya Hotels
(P) Ltd. and Ors. (1994) 5 sec 672 - relied on.
E Ali M.K. & Ors. v. State of Kera/a and Ors. (2003) 4 SCALE
197 - referred to.
West Derby Union v. Metropolitan Life Assurance Co.
(1897 AC 647)(HL); Forbes v. Git [1922] 1 A.C. 256; R. v.
F Taunton, St James, 9 B. & C. 836; Re Barker, 25 Q.B.D. 285 ,..
and Jennings v. Kelly [1940] A.C. 206 - referred to.
Coke upon Littleton, 181h Edition, 146 - referred to.
2.3 It is well settled principle in law that the Court cannot
G read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the Legislature. The
language employed in a statute is the determinative factor
of legislative intent. (Para - 19) [251-B] -'I
2.4 Words and phrases are symbols that stimulate
1-1 mental references to referents. The object of interpreting
UNION OF INDIA & ORS. v. PRIYANKAN 241
~ SHARAN AND ANR.
a statute is to ascertain the intention of the Legislature A
enacting it. (Para - 20) [251-C]
Institute of Chartered Accountants of India v. Mis Price
Waterhouse and Anr AIR (1998) SC 74 - relied on.
2.5 The intention of the Legislature is primarily to be B
gathered from the language used, which means that
attention should be paid to what has been said as also to
what has not been said. As a consequence, a construction
which requires for its support, addition or substitution of
words or which results in rejection of words as c
meaningless has to be avoided. (Para - 20) [251-D]
...' The State of Gujarat and Ors. v. Dilipbhai Nathjibhai
Patel and Anr JT (1998) 2 SC 253 - relied on.
Stock v. Frank Jones (Tiptan) Ltd. (1978 1 All ER 948
D
1 (HL) and Crawford v. Spooner (1846 (6) Moore PC 1 - referred
to.
2.6 Rules of interpretation do not permit Courts to
do so, unless the provision as it stands is meaningless
or of doubtful meaning. Courts are not entitled to read E
words into an Act of Parliament unless clear reason for it
is to be found within the four corners of the Act itself.
(Para - 20) [251-F]
Jamma Masjid, Mercara v. Kodimaniandra Deviah and
...(
Ors. AIR (1962) SC 847; Union of India and Ors. v. Filip Tiago F
De Gama of Vedem Vasco De Gama AIR (1990) SC 981 and
Dr. R. Venkatchalam and Ors. etc. v. Dy. Transport
Commissioner and Ors. etc. AIR (1977) SC 842 - referred
to.
G
Vickers Sons and Maxim Ltd. v. Evans (1910) AC 445
(HL) and Lenigh Valley Coal Co. v. Yensavage 218 FR 547
- referred to.
2.7 While interpreting a provision the Court only
interprets the law and cannot legislate it. If a provision of H
242 SUPREME COURT REPORTS [2008] 13 S.C.R.
A law is misused and subjected to the abuse of process of
law, it is for the legislature to amend, modify or repeal it,
if deemed necessary. (Para - 23) [252-D]
Commissioner of Sa/es Tax, M.P v. Popular Trading
Company, Ujjain (2000) 5 SCC 515 - relied on.
8
2.8 Two principles of construction - one relating to
casus omissus and the other in regard to reading the
statute as a whole - appear to be well settled. Under the
first principle a casus omissus cannot be supplied by the
c Court except in the case of clear necessity and when
reason for it is found in the four corners of the statute itself
a
but at the same time casus omissus should not be readily
inferred and for that purpose all the parts of a statute or
section must be construed together and every clause of a
section should be construed with reference to the context
0
and other clauses thereof so that the construction to be
put on a particular provision makes a consistent enactment
of the whole statute. This would be more so if literal
construction of a particular clause leads to manifestly
E absurd or ano11;1alous results which could not have been
intended by the Legislature. (Para - 24) [252 F&H]
Artemiou v. Procopiou (1966 1 QB 878) and Luke v. /RC
(1966 AC 557) - referred to.
2.9 A casus omissus ought not to be created by
F interpretation, save in some case of strong necessity.
Where, however, a casus omissus does really occur, either
through the inadvertence of the legislature, or on the
principle quod semel aut bis existit proetereunt legislators,
the rule is that the particular case, thus left unprovided
G for, must be disposed of according to the law as it existed
before such statute. (Para - 25) [253-E-F]
Fenton v. Hampton 11 Moore, P.C. 345 and Jones v.
Smart (1 T.R. 52) - referred to.
H 2.10 The golden rule for construing wills, statutes,
UNION OF INDIA & ORS. v. PRIYANKAN 243
SHARAN AND ANR.
and, in fact, all written instruments has been thus stated A
that the grammatical and ordinary sense of the words is
to be adhered to unless that would lead to some absurdity
or some repugnance o.r inconsistency with the rest of
the instrument, in which case the grammatical and
ordinary sense of the words may be modified, so as to B
avoid that absurdity and inconsistency, but no further.
The later part of the "golden rule" must, however, be
applied with much caution. If the precise words used are
plain and unambiguous in the judgment, they should be
construed in their ordinary sense, even though it lead to c
an absurdity or manifest injustice. (Para - 26) [253 G,H .
254 A-C]
2.11 Words may be modified or varied where their
import is doubtful or obscure. But this Court assume the
functions of legislators when it depart from the ordinary . D
meaning of the precise words used, merely because an
absurdity or manifest injustice is seen from an adherence
to their literal meaning. At this juncture, it would be
necessary to take note of a maxim "Ad ea quae frequentius
accidunt jura adaptantur" which means that the laws are E
adapted to those cases which more frequently occur.
(Paras - 26 & 27) [254-D]
Maulavi Hussein Haji Abraham Umarji v. State of Gujarat
(2004) 6 sec 672 - referred to.
F
Abley v. Dale 11, C.B. 378 and Grey v. Pearson 6 H.L.
Cas. 61 - referred to.
3. Clause 4(a) of the agreement is subject to Clause
6 and the proviso appended to Clause 4 is in the nature
of exception. The High Court's view is a rational one on G
the facts of each case and no interference is called for.
(Para - 29) [254 EF]
Case Law Reference
(1880) 5 QBD 170 Relied on Para - 12 H
244 SUPREME COURT REPORTS [2008] 13 S.C.R.
A AIR (1961) SC 1596 Relied on Para - 12
AIR (1965) SC 1728 Relied on Para - 12
AIR (1991) SC 1406 Relied on Para - 12
AIR (1991) SC 1538 Relied on Para - 12
B (1994) 5 sec 672 Relied on Para - 12
(1897 AC 647)(HL) Referred to. Para - 12
[1922] 1 A.C. 256 Referred to Para - 14
9 B. & C. 836 25 Referred to Para - 15
c Q.B.D. 285 Referred to Para - 16
[1940] A.C. 206 Referred to Para - 17
(2003) 4 SCALE 197 Referred to Para - 18
AIR (1998) SC 74 Relied on Para - 20
D
JT (1998) 2 SC 253 Relied on Para - 20
(1978) 1 All ER 948 (HL) Referred to Para - 20
(1846 (6) Moore PC 1 Referred to Para - 20
E AIR (1962) SC 847 Referred to Para - 20
AIR (1990) SC 981 Referred to Para - 21
AIR (1977) SC 842 Referred to Para - 22
(1910) AC 445 (HL) Referred to Para - 20
F 218 FR 547 Referred to Para - 21
(2000) 5 sec 515 Relied on Para - 23
(1966 1 QB 878) Referred to Para - 24
(1966 AC 557) Referred to Para - 24
G 11 Moore, P.C. 345 Referred to Para - 25
(1 T.R. 52) Referred to Para - 25
~
6 H.L. Cas. 61 Referred to Para - 26
(2004) 6 sec 672 Referred to Para - 28
H
UNION OF INDIA & ORS. v. PRIYANKAN 245
. SHARAN AND ANR.
11, C.B. 378 Referred to Para - 26 A
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 5539
of 2008
From the final Judgment and Order dated 25.8.2004 of
the High Court of Judicature at Bombay in Writ Petition No. B
6104 of 2004
WITH
C.A. No. 5540 of 2008
A. Sharan, ASG., Sunita Sharma, Vikas Sharma, R.C. C
Kathia, D.S. Mahra and Anil Katiyar for the Appellants.
A.K. Raina, Anil Kumar Jha and Sandhya Goswam! for
the Respondents.
The Judgment of the Court was delivered by D
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. The core question is whether the respondent's prayer '°'
for discharge of bond executed to serve the nation for a period
of five years on the ground of medical disability has been rightly "E'
accepted by the High.Court?
3. The High Court by the impugned order held that in each .
case the respondents were required'to deposit of rupees one
lakh and on such deposit there was no further liability.
F
4. Factual position is almost undisputed.
5. In each case the appellant sought to invoke the bond
agreement executed. The two respondents ir Civil Appeal
arising out of SLP (C) No. 580 of 2005 and the respondents in
other Civil Appeal arising out of SLP (C) No. 25514/2004 had G
taken admission to the MBBS Degree Course of Armea Forces
Medical College, Pune. At the time of admission they being
minors their guardians had executed the bonds to the effect
that after completion of MBBS course, the students in question
shall serve the nation by working in the Armed Force for a H
246 SUPREME COURT REPORTS (2008] 13 S.C.R.
A specific period of time. Clause 4 of the agreement dealt with a
situation when a cadet shall be declared to have become Non
Service Liability (in short 'NSL') in the event of any of the three
categories. It is provided that in such event Clauses 5 and 6 will
be applicable. However, he or she can be permitted at the
s discretion of DGAFMS to continue her studies on payment of
normal tuition fee at the rate in force at the time but the students
have to move out of the hostel premises. Clause 5 of the
agreement states that in the event of a student being removed
from the service liability for any reason, shall be liable to pay the
c amount calculated at a particular rate per annum from the date
of admission to the College till the date of NSL subject to
maximum together with interest on the said amount at rates in
force then. Clause 6 provided that student who is removed from
service liability under Clause 4(a) shall be required to pay in
cash an amount calculated at the rate of rupees one and a half
0
lakh per year or part thereof from the date of admission to the
college till the date of becoming a NSL limited to maximum of
seven and half lakh together with interest calculated on the
same basis stated in Clause 5. This was the position in 1999.
The High Court in each case observed that the candidate was
E suffering from ailment and was removed from service liability.
After removal the present appellants tried to enforce the bonds
on the purported ground of failure on the part of the cadet to
serve the nation in accordance with the terms and conditions of
the bond. In appeal relating to Kiran Kumar and Another, the
F High Court in the impugned judgment in paras 3 and 4 noted
that in the earlier cases orders were passed that on payment
of rupees one lakh when the bond amount was rupees three
lakhs, there shall be total liquidation of liability on the bond.
G 6. According to learned counsel for the appellants till 1998
the bond amount which cove;ed the cost of free education,
ration and other facility during the entire period of four and a
half years was rupees three lakhs. The bond amount was revised
w.e.f. July, 1999. Guidelines were also issued on 18.2.2002 for
deciding the cases relating to waiver of bond money in respect
H
UNION OF INDIA & ORS. v. PRIYANKAN 247
SHARAN AND ANR. [DR. ARIJIT PASAYAT, J.]
of medical cadet declared NSL on medical grounds. It is not in A
dispute that in each case the cadet was declared NSL.
Thereafter, the appellants were of the view that cadets were
required to pay the bond money as demanded.
7. Learned counsel for the respondent-cadet in each case
submitted that the proviso of Clause 4(a) has been lost sight of B
by the appellants while raising the demand. Relevant clauses
4, 5 and 6 read as follows:
"4. The medical cadet will be declared to have become
Non Service Liability in the event of any of the following: c
(a) Being rendered medically unfit for commission due
to any disease/disability detected at any time during
the course or prior to commissioning; or
(b) Failing in attendance below 50% in any two
0
consecutive terms for reasons other than medical; or
(c) Fails to qualify final MBBS examinations within a
period of seven years from the date of entry into
college;
shall be treated as a Non Service Liability, where after E
clause 5 and 6 below as applicable shall be, applied to such
cadet. However, he/she can be permitted at the discretion of
the DGAFMS to continue his/her studies on the payment of
normal tuition fees at the rate in force at the time but the student
shall be removed from the hostel premises. F
Provided that the student under Clause (a) above may be
allowed to continue his/her stay in the hostel on payment of
the normal expenses of education including tuition fees and
fees for boarding and lodging facilities as applicable from G
time to time if he/she has contracted the disease/disability
in the circumstances over which he/she has no control on
which the decision of the DGAFMS shall be final and for
which he/she has not refused treatment and further in such
eventuality he/she may not be required to refund any amount H
248 SUPREME COURT REPORTS [2008] 13 S.C.R.
A to the Govt. as specified in clause 6 below.
5. In the event of any contingency in clauses 1,2,3 and 4
above, except in clause 4(a), the party of the FIRST part
shall jointly and severally be liable to pay forthwith to the
Govt. in cash an amount calculated at the rate of rupees
8 three lacs per year or part thereof; for the period from the
date or admission to the college to the date of becoming
a Non Service Liability or removal from the college rolls,
limited to a maximum limit or Rupees Fifteen lacs together
with interest on the said money, calculated at the rates in
c force then. The interest will be levied if the payment is
delayed beyond 90 days from the date of such removal/
withdrawal from the college. In case of removal from the
college all dues will be settled before leaving the college.
The medical cadet will be deemed to become a Non
D Service Liability 30 days after the date of letter issued by
the college authorities declaring him/her to be so. Provided
however that amount stated above may be revised upward
in respect or which the decision of the Govt. shall be final
and binding on the parties of the first part.
E 6. In the event of a medical cadet being removed from
service liability under clause 4(a) above the parties of the
First part shall jointly and severally pay forthwith to the
Govt. in cash an amount calculated at the rate of Rupees
one and a half lac per year or part thereof for the period
F from the date of admission to the college till the date or
becoming a Non Service Liability limited to a maximum of
Rupees seven and half lac together with interest calculated
on'the same basis as stated in clause 5 above."
G 8. A bare reading of Clause 4(a) makes the position clear
that the same is subject to Clause 6. The proviso to Clause 4(a)
makes the position clear that Clause 4(a) and Clause 6 operate
in different footings.
9. In the case of Priyankan Sharan and others the appellant
:-t and its functionaries proceeded on the basis as if the respondent
UNION OF INDIA & ORS. v. PRIYANKAN 249
SHARAN AND ANR. [DR. ARIJIT PASAYAT, J.]
No.1 refused to undergo surgery. From the statement made in A
the petition itself it is clear that. there was prayer for
postponement till examinations are over.
10. Stand of the appellants before the High Court was that
in a large number of cases students are being reported as
medically unfit and seeking discharge from the bond on the 8
ground that there is no deliberate unwillingness to serve the
nation in accordance with the bond. High Court perused the
medical reports and came to the conclusion that the writ
petitioners; case was a genuine one. There were various
medical reports including those of All India Institute of Medical C
Sciences. Since he had deposited Rupees One Lakh and "No
Objection Certificate" had been issued, the impugned order
was passed in the writ petition. In the other case also similar
view was taken and the prayer of the present appellants to
increase the amount to Rupees 3.5 lakhs was rejected. D
-+
11. For the first time at the time of hearing, learned counsel for
the appellant tried to bring the case under Clause (6). The same has
to be tested in the background of proviso to Clause 4(a).
12. The normal function of a proviso is to except something E
out of the enactment or to qualify something enacted therein
which but for the proviso would be within the purview of the
enactment. As was stated in Mullins v. Treasurer of Survey
[1880 (5) QBD 170,'-(referred to in Shah Bhojraj Kuverji Oil
Mills and Ginning Factory v. Subhash Chandra Yograj Sinha F
(AIR 1961 SC 1596) ancj Calcutta Tramways Co. Ltd. v.
Corporation of Calcutta (AIR 1965 SC 1728); when one finds
a proviso to a section the natural presumption is that, but for the
proviso, the enacting part of the section would have included
the subject matter of the proviso. The proper function of a proviso G
is to except and to deal with a case which would otherwise fall
within the general language of the main enactment and its effect
is confined to that case. It is a qualification of the preceding
enactment which is expressed in terms too general to be quite
accurate. As a generaLrule, a proviso is added to an enactment
H
250 SUPREME COURT REPORTS [2008] 13 S.C.R.
A to qualify or create an exception to what is in the enactment and
ordinarily, a proviso is not interpreted as stating a general rule.
"If the language of the enacting part of the statute does not
contain the provisions which are said to occur in it you cannot
derive these provisions by implication from a proviso." Said
B Lord Watson in West Derby Union v. Metropolitan Life
Assurance Co. (1897 AC 647)(HL). Normally, a proviso does
not travel beyond the provision to which it is a proviso. It carves
out an exception to the main provision to which it has been enacted
as a proviso and to no other. (See A.N. Sehgal and Ors. v. Raje
C Ram Sheoram and Ors. (AIR 1991 SC 1406), Tribhovandas
Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors. (AIR
1991 SC 1538) and Kera/a State Housing Board and Ors. v.
Ramapriya Hotels (P)Ltd. and Ors. (1994 (5) SCC 672).
13. "This word (proviso) hath divers operations. Sometime
D it worketh a qualification or limitation; sometime a condition; and
sometime a covenant" (Coke upon Littleton 181h Edition, 146).
14. "If in a deed an earlier clause is followed by a later
clause which destroys altogether the obligation created by the
earlier clause, the later clause is to be rejected as repugnant,
E and the earlier clause prevails .... But if the later clause does not
destroy but only qualifies the earlier, then the two are to be read
together and effect is to be given to the intention of the parties
as disclosed by the deed as a whole" (per Lord Wrenbury in
Forbes v. Git [1922] 1 A.C. 256).
F
15. A statutory proviso "is something engrafted on a
preceding enactment" (R. v. Taunton, St James, 9 B. & C. 836).
16."The ordinary and proper function of a proviso coming
after a general enactment is to limit that general enactment in
G certain instances" (per Lord Esher in Re Barker, 25 Q.B.D. 285).
17. A proviso to a section cannot be used to import into the
enacting part something which is not there, but where the enacting
part is susceptible to several possible meanings it may be controlled
H by the proviso (See Jennings v. Kelly [1940] A.C. 206).
UNION OF INDIA & ORS. v. PRIYANKAN 251
SHARAN AND ANR. [DR. ARIJIT PASAYAT, J.]
18. The above position was noted in Ali M.K. & Ors. v. A
State of Kera/a and Ors. (2003 (4) SCALE 197).
19. It is well settled principle in law that the Court cannot
read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the Legislature. The
language employed in a statute is the determinative factor of 8
legislative intent.
20. Words and phrases are symbols that stimulate mental
references to referents. The object of interpreting a statute is to
ascertain the intention of the Legislature enacting it. (See c
Institute of Chartered Accountants of India v. Mis Price
Waterhouse and Anr. (AIR 1998 SC 74)) The intention of the
Legislature is primarily to be gathered from the language used,
which means that attention should be paid to what has been
said as also to what has not been said. As a consequence, a D
construction which requires for its support, addition or
substitution of words or which results in rejection of words' as
meaningless has to be avoided. As observed. in Crawford v.
Spooner (1846 (6) Moore PC 1), Courts, cannot aid. the
Legislatures' defective phrasing of an Act, we cannot add or. E
mend, and by construction make up deficiencies which are left
there. (See The State of Gujarat and Ors. v. Dilipbhai
Nathjibhai Patel and Anr. (JT 1998 (2) SC 253)). It is contrary
to allrules of construction to read words into an Act unless it is
absolutely necessary to do so. (See Stock v. Frank Jones
(Tiptan) Ltd. (1978 1 All ER 948 (HL). Rules of interpretation do F
not permit Courts to do so, unless the provision as it stands is
meaningless or of doubtful meaning. Courts are not entitled to
read words into an Act of Parliament unless clear reason for it
is to be found within the four corners of the Act itself. (Per Lord
Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans (1910) G
AC 445 (HL), quoted in Jamma Masjid, Mercara v.
Kodimaniandra Deviah and Ors.(AIR 1962 SC 847).
21. The question is not what may be supposed and has
been intended but what has been said. "Statutes should be
H
252 SUPREME COURT REPORTS + [2008) 13 S.C.R.
A construed not as theorems of Euclid". Judge Learned Hand
said, "but words must be construed with some imagination of
the purposes which lie behind them". (See Lenigh Valley Coal
Co. v. Yensavage 218 FR 547). The view was re-iterated in
Union of India and Ors. v. Filip Tiago De Gama of Vedem
B Vasco De Gama (AIR 1990 SC 981). >
22. In Dr. R. Venkatchalam and Ors. etc. v. Dy Transport
Commissioner and Ors. etc. (AIR 1977 SC 842), it was
observed that Courts must avoid the danger of a priori
determination of the meaning of a provision based on their own
C pre-conceived notions of ideological structure or scheme into
which the provision to be interpreted is somewhat fitted. They
are not entitled to usurp legislative function under the disguise
of interpretation.
23. While interpreting a provision the Court only interprets
0
the law and cannot legislate it. If a provision of law is misused
and subjected to the abuse of process of law, it is for the
legislature to amend, modify or repeal it, if deemed necessary.
(See Commissioner of Sales Tax, MP v. Popular Trading
Company, Ujjain (2000 (5) SCC 515). The legislative casus
E omissus cannot be supplied by judicial interpretative process.
24. Two principles of construction - one relating to casus
omissus and the other in regard to reading the statute as a
whole - appear to be well settled. Under the first principle a
F casus ornissus cannot be supplied by the Court except in the
case of clear necessity and when reason for it is found in the
four corners of the statute itself but at the same time a casus
omissus should not be readily inferred and for that purpose all
the parts of a statute or section must be construed together and
every clause of a section should be construed with reference to
G the context and other clauses thereof so that the construction to
be put on a particular provision makes a consistent enactment
of the whole statute. This would be more so if literal construction
of a particular clause leads to manifestly absurd or anomalous
results which could not have been intended by the Legislature.
H
UNION OF INDIA & ORS. v. PRIYANKAN 253
~ SHARAN AND ANR. [DR. ARIJIT PASAYAT, J.]
"An intention to produce an unreasonable result", said A
_., Danackwerts, L.J. in Artemiou v. Procopiou (1966 1 QB 878),
"is not to be imputed to a statute if there is some other
construction available". Where to apply words literally would
"defeat the obvious intention of the legislature and produce a
.. wholly unreasonable result" we must "do some violence to the B
words" and so achieve that obvious intention and produce a
rational construction. (Per Lord Reid in Luke v. /RC (1966 AC
557) where at p. 577 he also observed: "this is not a new
problem, though our standard of drafting is such that it rarely
emerges". c
25. It is then true that, "when the words of a law extend not
to an inconvenience rarely happening, but due to those which
often happen, it is good reason not to strain the words further
than they reach, by saying it is casus omissus, and that the law
intended quae frequentius accidunt." "But," on the other hand, D
"it is no reason, when the words of a law do enough extend to
an inconvenience seldom happening, that they should not extend
to it as weil as if it happened more frequently, because it happens
but seldom" (See Fenton v. Hampton 11 Moore, P.C. 345). A
casus omissus ought not to be created by interpretation, save E
in some case of strong necessity. Where, however, a casus
omissus does really occur, either through the inadvertence of
the legislature, or on the principle quod semel aut bis existit
proetereunt legislators, the rule is that the particular case, thus
... left unprovided for, must be disposed of according to the law as F
it existed before such statute - Casus omissus et oblivioni datus
dispositioni communis juris relinquitur; "a casus omissus,"
observed Buller, J. in Jones v. Smart (1 T.R. 52), "can in no
case be supplied by a court of law, for that would be to make
laws."
G
26. The golden rule for construing wills, statutes, and, in
fact, all written instruments has been thus stated: "The
grammatical and ordinary sense of the words is to be adhered
to unless that would lead to some absurdity or some repugnance
or inconsistency with the rest of the instrument, in which case H
254 SUPREME COURT REPORTS [2008] 13 S.C.R.
A the grammatical and ordinary sense of the words may be
modified, so as to avoid that absurdity and inconsistency, but
no further" (See Grey v. Pearson 6 H.L. Cas. 61 ). The latter part
of this "golden rule" must, however, be applied with much
caution. "if," remarked Jervis, C.J .. "the precise words used are
B plain and unambiguous in our judgment, we are bound to >
construe them in their ordinary sense, even though it lead, in
our view of the case, to an absurdity or manifest injustice. Words
may be modified or varied where their import is doubtful or
obscure. But we assume the functions of legislators when we
c depart from the ordinary meaning of the precise words used,
merely because we see, or fancy we see, an absurdity or
manifest injustice from an adherence to their literal meaning" '
(See Ab/ey v. Dale 11, C.B. 378).
27. At this juncture, it would be necessary to take note of
D a maxim "Ad ea quae frequentius accidunt jura adaptantur"
(The laws are adapted to those cases which more frequently
occur).
28. The above position was highlighted in Mau/avi
E Hussein Haji Abraham Umarji v. State of Gujarat (2004 (6)
sec 672).
29. As noted above, Clause 4(a) is subject to Clause 6
and the proviso appended to Clause 4 is in the nature of
exception. The High Court's view is a rational one on the facts
F of each case. These are not the cases where any interference
is called for. The appeals are dismissed but without any order
as to costs.
S.K.S. Appeals dismissed.
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