REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 1921 OF 2006

Nagar Palika Nigam             ..Appellant  

versus

Krishi Upaj Mandi Samiti and Ors.                            ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

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

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

Adhiniyam, 1972  (in  short  the  ‘Adhiniyam’)  would  be  whether  having  regard  to  the

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

‘Constitution’)  the  Legislature  of  the  State  of  M.P.  had  the  requisite  legislative

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

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

under:

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

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

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

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

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

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

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

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

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

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

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

merit.  

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

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

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

Ratlam.  

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

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

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

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

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

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

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

“(3) Nothing contained in the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959), and rules made thereunder in so far as they relate to diversion of land, revision of land revenue consequent on the change in the use of land from agriculture to any other purpose and other matters incidental thereto  shall  apply to  land  acquired  by the  market  committee  under  sub- section (1) or acquired by transfer, purchase gift or otherwise and use for the purpose of establishment of a market yard or a sub-market yard:

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

8. The normal function of a proviso is to except something out of the enactment or to

qualify something enacted therein which but for the proviso would be within the purview

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

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

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

Calcutta (AIR  1965  SC  1728);  when  one  finds  a  proviso  to  a  section  the  natural

presumption  is  that,  but  for  the  proviso,  the  enacting  part  of  the  section  would  have

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

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

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

enactment which is  expressed in terms too general to be quite accurate. As a general rule,

a proviso is added to an enactment to qualify or create an exception to what is in the

enactment and ordinarily, a proviso is not interpreted as stating a general  rule.  “If the

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

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

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

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

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

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

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

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

(1994 (5) SCC 672).

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

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

Edition, 146)

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

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

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

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

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

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

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

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

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

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

Q.B.D. 285).

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

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

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

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

(4) SCALE 197).   

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

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

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

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

object of interpreting a statute is to ascertain the intention of the Legislature enacting it. 5

(See Institute of Chartered Accountants of India v. M/s Price Waterhouse and Anr.  (AIR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SC 981).  

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

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

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

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

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

interpretation.  

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

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

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

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

casus omissus cannot be supplied by judicial interpretative process.  

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

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

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

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

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

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

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

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

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

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

intention   to  produce  an  unreasonable  result”,  said  Danackwerts,  L.J.  in  Artemiou v.

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Procopiou (1966 1 QB 878),  “is not  to be imputed to a statute  if  there is  some other

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

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

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

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

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

emerges”.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

has been thus stated: “The grammatical and ordinary sense of the words is to be adhered

to unless that would lead to some absurdity or some repugnance or inconsistency with the

rest of the instrument, in which case the grammatical and ordinary sense of the words may

be modified, so as to avoid that absurdity and inconsistency, but no further” (See Grey v.

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

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

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

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

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

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

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

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

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

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

frequently occur).

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

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

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

sub-section  (3)  of  Section  9 on  the alleged ground of  lack of  legislative competence,

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obviously the High Court could not have dealt with that issue. Till  now also, no such

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

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

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

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

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

with law.

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

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

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

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

New Delhi  October 14, 2008

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