# Court dated 19.09.2019 (Manoj Kumar Yadav v. State of U.P. and 4 others). Even if the Govt

- **Citation:** (2019) 4 ILRA 1205
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-18
- **Case number:** Writ-C No. 29840 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-dated-19-09-2019-manoj-kumar-yadav-v-state-of-u-p-and-4-others-even-if-44904
- **Pages:** 14

## Headnote

A. Civil Law - Society Registration Act,
1860 - Section 3 (1) and (2) -
Registration of the society - Claim by
rival group - Sub section (2) of Section 3
begins with a non obstante clause -
Provision contained under subsection (1)
of Section 3 would stand qualified by
insertion of the proviso - Right to get
certification of the registration of the
Society under subsection (1) of Section 3
is not absolute and the same is subject
to the powers of the Registrar to issue
public notice or notices to other persons
inviting objections against the proposed
registration
and
considering
all
objections, which may be received by
him before registration of society -
Registrar is to refuse to register a society
in
a
case
where
after
giving
an
opportunity of showing cause he records
his satisfaction regarding existence of
the
conditions
specified
under
subsection (2). (Para 12, 17 & 38)

B.
Interpretation
of
statute
-
Construction of Proviso - 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 21)

Held - The insertion of the proviso to
subsection (1) of Section 3 clearly indicates
that the intention of the legislature was to
qualify the right conferred in terms of
subsection (1) for grant of a certificate of
registration upon submission of memorandum
of association and certified copy along with
other necessary particulars and requisite fee
by conferring upon the Registrar a discretion
to issue public notice or issue notices to such
persons as he thinks fit inviting objections, if
any, against the proposed registration and to
consider all such objections.

C. Interpretation of statute - Internal
aid of construction - Nature and object
of non obstante clause - Beginning with
expression „Notwithstanding‟ - A non
obstante clause, as used in subsection
(2) of Section (3), has been construed as
a legislative device to modify the ambit
of the provision or law mentioned in the
non obstante clause or to override it in
specified circumstances - It is generally
appended to a section with a view to
give the enacting part of the section, in
case of conflict, an

## Text

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4 All. Sompal Vs. Sub-Divisional Magistrate Tehsil Rampur Maniharan, Dist. Saharanpur
1205
721 : (Aajad Kumar vs. State of U.P. and 2
Others), submitted that if the Enquiry Officer
desired to punish the petitioner, he should
have conducted a full fledged enquiry on his
own. He should have called the complainants
and should have got the complaints enquired
into. Only after being satisfied that the
complaints were correct he should have
passed the order of punishment. Learned
counsel for the petitioner submits that simply
because the petitioner had not filed his reply it
could not be concluded that he was guilty.

iii) Learned counsel for the
petitioner further submits that though in
the order it has been stated that no reply
was filed, he had infact made an effort on
06.07.2019 to submit the reply. This he
states in the Supplementary Affidavit,
which he has filed today.

2. Learned Standing Counsel, however,
in reply submits that when the petitioner was
not submitting any reply then there was no
other option left with the respondent/State to
conclude that the petitioner had accepted his
guilty. Learned Standing counsel further
submits that a show cause notice did not
require an enumeration of charges. The
petitioner when was informed of his mistakes,
he should have gleaned out the charges from
the statement of facts which were supplied to
him. There was no requirement to give a
definite statement of charge.

3. Learned counsel appearing for the
subsequent allotee, the Caveator adopted
the arguments of the learned Standing
counsel.

4. Having heard the learned counsel
for the petitioner, learned Standing
Counsel and the Counsel for the Caveator
this Court is of the definite view, that the
charges which the petitioner had to reply
to should have been very clear and should have
been enumerated seriatim. This is also what has
been held in a judgement and order of this
Court dated 19.09.2019 (Manoj Kumar Yadav
vs. State of U.P. and 4 others). Even if the Govt.
Order dated 29.07.2004 is perused along with
the Full Bench decision of Puran Singh vs.
State of U.P. and others reported in (2010 (3)
ADJ 659 (FB), it becomes clear that when a
delinquent fair price shop dealer is given a
statement of charge then the charges should be
very clear. Also, after the enquiry what
punishment would follow also should be
clearly given out in the show cause notice.
Further the Court is of the view that as per the
Govt. Order dated 29.07.2004 and 16.10.2014
and as per the law as has been laid down in
2018(126) ALR 721 : (Aajad Kumar vs. State
of U.P. and 2 Others) a definite enquiry ought
to have been undergone whereby a place, date
and time ought to have been fixed for the
enquiry. If the petitioner had failed to appear
then the enquiry officer should have questioned
the complainants, looked into the evidence and,
thereafter, should have come to a definite
conclusion as to whether the petitioner was
guilty of the charges. It was improper for the
Enquiry Officer to have simply stated that since
the delinquent had not submitted his reply it
had to be presumed that he had accepted his
guilt.

5. With these observations, the order
dated 18.07.2019 is quashed and the writ
petition is allowed.
----------
(2019)12 ILR A1205
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.11.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 29840 of 2019
1206 INDIAN LAW REPORTS ALLAHABAD SERIES
Shri 1008 Parshvanath Digamber Jain
Mandir Samiti, District-Ghaziabad & Anr.
 ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Lakshmi Kant Trigunait, Sri Dev Kant
Trigunait

Counsel for the Respondents:
C.S.C.

A. Civil Law - Society Registration Act,
1860 - Section 3 (1) and (2) -
Registration of the society - Claim by
rival group - Sub section (2) of Section 3
begins with a non obstante clause -
Provision contained under subsection (1)
of Section 3 would stand qualified by
insertion of the proviso - Right to get
certification of the registration of the
Society under subsection (1) of Section 3
is not absolute and the same is subject
to the powers of the Registrar to issue
public notice or notices to other persons
inviting objections against the proposed
registration
and
considering
all
objections, which may be received by
him before registration of society -
Registrar is to refuse to register a society
in
a
case
where
after
giving
an
opportunity of showing cause he records
his satisfaction regarding existence of
the
conditions
specified
under
subsection (2). (Para 12, 17 & 38)

B.
Interpretation
of
statute
-
Construction of Proviso - 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 21)

Held - The insertion of the proviso to
subsection (1) of Section 3 clearly indicates
that the intention of the legislature was to
qualify the right conferred in terms of
subsection (1) for grant of a certificate of
registration upon submission of memorandum
of association and certified copy along with
other necessary particulars and requisite fee
by conferring upon the Registrar a discretion
to issue public notice or issue notices to such
persons as he thinks fit inviting objections, if
any, against the proposed registration and to
consider all such objections.

C. Interpretation of statute - Internal
aid of construction - Nature and object
of non obstante clause - Beginning with
expression „Notwithstanding‟ - A non
obstante clause, as used in subsection
(2) of Section (3), has been construed as
a legislative device to modify the ambit
of the provision or law mentioned in the
non obstante clause or to override it in
specified circumstances - It is generally
appended to a section with a view to
give the enacting part of the section, in
case of conflict, an overriding effect over
the provision in the same or other Act
mentioned in the non obstante clause.
(Para 32 & 36)

Writ Petition dismissed. (E-1)

List of cases cited: -

1. Pamulapati Buchi Naidu College Committee,
Nidubrolu and others Vs. Government of
Andhra Pradesh and others AIR 1958 A.P. 773

2. Ishverlal Thakorelal Almaula Vs. Motibhai
Nagjibhai AIR 1966 SC 459

3. Shah Bhojraj Kuverji Oil Mills & Ginning
Factory Vs. Subbash Chandra Yograj Sinha AIR
1961 SC 1596

4. S. Sundaram Pillai & Ors. Vs. V.R.
Pattabiraman & Ors. (1985) 1 SCC 591

5. State of Rajasthan Vs. Leela Jain AIR 1965
SC 1296

6. S.T.O. Vs. Hanuman Prasad AIR 1967 SC
565

7. C.C.T. Vs. Jhaver Ramkishan Shrikishan AIR
1968 SC 59

8. Delhi Metro Rail Corporation Ltd. Vs. Tarun
Pal Singh & Ors. (2018) 14 SCC 161
4 All. Shri 1008 Parshvanath Digamber Jain Mandir Samit Dist. Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1207
9.
Haryana
State
Cooperative
Land
Development Bank Ltd. Vs. Haryana State
Cooperative
Land
Development
Banks
Employees Union & Anr. (2004) 1 SCC 57412

10. Madras and Southern Mahratta Railway
Company Ltd. Vs. Bezwada Municipality AIR
1944 PC 71

11. Union of India and another Vs. G.M.Kokil
and others 1984 Supp. SCC 196

12. Chandavarkar Sita Ratna Rao Vs. Ashalata
S. Guram (1986) 4 SCC 447

13. State of Bihar and others Vs. Bihar Rajya
M.S.E.S.K.K. Mahasangh and others (2005) 9
SCC 129

14. Muzaffar Hussain and others Vs. Assistant
Registrar, Firms, Societies and Chits, U.P.,
Meerut Region Meerut and others 1987 ALJ
728

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Lakshmi Kant
Trigunait,
learned
counsel
for
the
petitioners and Sri Mata Prasad, learned
Standing Counsel appearing for the State
respondents.

2. The present petition seeks to challenge
the order dated 11.07.2019 passed by the
Deputy Registrar, Firms Societies and Chits
Meerut Region, Meerut in terms of which, the
application filed by the petitioners for
registering it as a society under the provisions
of the Societies Registration Act, 18601 has
been rejected. Further, prayer has been made
for issuance of direction to the respondents for
consideration of the claim of the petitioners
pertaining to registration of the Society.

3. The facts of the case as reflected
from the pleadings of the writ petition
indicate that an application bearing
application
No.10001114
dated
07.05.2018 was submitted before the
respondent No.4 seeking registration of
the petitioner No.1 as a society under the
Act, 1860. It has also been stated that the
other procedural formalities such as
submission
of
the
copy
of
the
memorandum of association and the list
of the managing body of the society had
been completed and requisite fee was also
deposited. It is stated that a public notice
was issued by the respondent No.4
inviting objections with regard to the
application filed by the petitioners for
registration of the Society and thereafter
the order dated 11.07.2019 has been
passed
rejecting
the
claim
of
the
petitioners for grant of registration under
the Act 1860 for the reason that there
existed a dispute with regard to the
management of the Society.

4. Aggrieved by the aforesaid order,
the present writ petition has been filed.

5. The contention of the learned
counsel for the petitioners is that the
application for registering the Society
having
been
duly
submitted
after
completion of all the necessary procedural
requirements including the submission of
memorandum of association, the list of
members of the managing Committee and
also deposition of the requisite fee, the
respondent No.4 could not have refused to
register the society. It is submitted that
there existed no dispute pertaining to the
Society and that the dispute which was
sought to be raised by one person,
namely, Harish Kumar Jain has nothing to
do with the affairs of the Society. It is also
sought to be contended that the petitioners
having filed the application seeking
registration on 07.05.2018 which is prior
in
time
to
the
application
dated
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
19.09.2018
submitted
by
the
rival
contenders the claim of the petitioners for
registration of the society ought to have
been considered.

6. Per contra, learned Standing
Counsel
appearing
for
the
Staterespondents has supported the order
passed by the Deputy Registrar by
submitting that as there existed a dispute
with regard to the Society in question the
Deputy Registrar has rightly rejected the
application filed by the petitioners for
grant of registration of the Society under
the Act, 1860 .

7. In order to appreciate the rival
contentions, the relevant provisions with
regard to registration of a society under
the Act, 1860 may be referred to. For ease
of reference Sections 2 and 3 of the Act,
1860 are being extracted below:

"2.
Memorandum
of
association:-
The
memorandum
of
association shall contain the following
things ( that is to say)--

the name of the society;

the object of the society;

the
names,
addresses
and
occupations of the governors, council,
directors, committee, or other governing
body to whom, by the rules of the society,
the management of its affairs is entrusted.

A copy of the rules and
regulations of the society, certified to be a
correct copy by not less than three of the
members of the governing body, shall be
filed
with
the
memorandum
of
association.

3. Registration and fees:- (1)
Upon such memorandum and certified
copy being filed along with particulars of
the address of the Society's office which
shall be its registered address, by the
Secretary of the Society on behalf of the
persons subscribing to the memorandum,
the Registrar shall certify under his hand
that the society is registered under this
Act. There shall be paid to the Registrar
for every such registration a fee of [one
thousand rupees] [or such smaller fee as
the State Government may notify in
respect of any class of societies]:

[Provided
that
the
State
Government may, by notification in the
official Gazette, increase from time to
time the fee payable under this subsection:

Provided
further
that
the
Registrar may, in his discretion, issue
public notice or issue notices to such
persons
as
he
thinks
fit
inviting
objections, if any, against the proposed
registration and consider all objections
that may be received by him before
registering the society]

(2) Notwithstanding anything in
sub-section (1) the Registrar shall refuse
to register a society, if after giving it an
opportunity of showing cause against
such refusal, he is satisfied that-

(a) the name of the society is
identical with that of any other society
previously registered under this Act;

(b) the name of society sought
to be registered uses any of the words,
namely, 'Union', 'State', 'Land Mortgage',
'Land Development', ' Co-operative',
'Gandhi', 'Reserve Bank' or any words
expressing or implying the sanction,
approval or patronage of the Central or
any State Government or any word which
suggests or is calculated to suggest any
connection with any local authority or any
corporation or body constituted by or
under any law for the time being in force,
or is such as is otherwise likely to deceive
4 All. Shri 1008 Parshvanath Digamber Jain Mandir Samit Dist. Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1209
the public or the members of any other
society previously registered under this
Act;

(c) any one or more of the
objects of the society sought to be
registered is not an object mentioned in
Sections 1 and 20; or

(d) its objects are contrary to
any other law for the time being in force;

[Provided that the State Government
may in exceptional circumstances, for
reasons to be recorded permit any society
to use the word' Union' or the word
'Gandhi' in its name, and thereupon, the
use of that word in the name of the
society shall not be a ground for refusal to
register or to renew the certificate of
registration of such society]"

8.

A
plain
reading
of
the
aforementioned statutory provisions as
contained under Section 3 substituted in
terms of U.P. Act No.52 of 1975, and also
the provisions contained under Section 2
indicate that upon the memorandum of
association containing the name of the
Society and its objects being filed by the
Secretary along with particulars of the
address of the Society's office which shall
be its registered address, by the Secretary
of the Society on behalf of the persons
subscribing to the memorandum, the
Registrar shall certify under his hand that
the society is registered under the Act and
there shall be paid to the Registrar for
every such registration a fee as the State
Government may notify in respect of any
class of societies.

9. The second proviso to sub-section
(1) of Section 3 of the Act 1860 gives the
Registrar a discretion to issue public
notice or issue notices to such persons as
he thinks fit inviting objections, if any,
against the proposed registration and
consider all objections that may be
received by him before registering the
Society.

10. Sub-section (2) of Section 3
mandates that the Registrar shall refuse to
register a society, if after giving it an
opportunity of showing cause against
such refusal, he is satisfied that:

(a) the name of the society is
identical with that of any other society
previously registered under this Act;

(b) the name of society sought to be
registered uses any of the words, namely,
'Union', 'State', 'Land Mortgage', 'Land
Development', 'Co-operative', 'Gandhi',
'Reserve Bank' or any words expressing
or implying the sanction, approval or
patronage of the Central or any State
Government or any word which suggests
or is calculated to suggest any connection
with
any
local
authority
or
any
corporation or body constituted by or
under any law for the time being in force,
or is such as is otherwise likely to deceive
the public or the members of any other
society previously registered under this
Act;

(c) any one or more of the objects of
the society sought to be registered is not
an object mentioned in Sections 1 and 20;
or

(d) its objects are contrary to any
other law for the time being in force.

11. It is thus seen that the provision
under sub-section (1) of Section 3 which
enjoins that the Registrar shall certify
under his hand that the society is
registered under the Act upon the
memorandum of association and certified
copy being filed along with other
necessary particulars and requisite fee is
qualified by the second proviso in terms
of which the Registrar may in his
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
discretion issue public notice or issue
notices to such persons as he thinks fit
inviting objections, if any, against the
proposed registration and consider all
objections that may be received by him
before registering the society.

12. Further, sub section (2) of
Section 3 begins with a non-obstante
clause and is stated in a compulsive
language
which
mandates
that
the
Registrar shall refuse to register the
society if after giving it an opportunity of
showing cause against such refusal he is
satisfied regarding existence of the
contingencies provided thereunder.

13. The Societies Registration Act
1860, which is an act for the registration
of the literary, scientific and charitable
societies, was enacted for improving the
legal condition of societies established for
the promotion of literature, science, or the
fine arts or for the diffusion of useful
knowledge, or for charitable purposes.
The Act lays down the procedure for
registration of the societies for various
purposes stated in the Act.

14. The effect of registration of a
society under the Act, 1860 is to grant it
the status of a legal entity apart from the
members constituting it. The legal effect
of registration of society under the Act
1860 came up for consideration in the
case
of
Pamulapati
Buchi
Naidu
College Committee, Nidubrolu and
others Vs. Government of Andhra
Pradesh and others2 wherein it was
stated as follows.

"11. Now, what is the legal
effect of the registration of a Society? The
Societies Registration Act was enacted for
the registration of literary and scientific
societies and the object of the Act, as
stated in the preamble, is to make
provision
for
improving
the
legal
condition of societies established for the
promotion, of literature, science, or the
fine arts or for the diffusion of useful
knowledge, the diffusion of political
education, or for charitable purposes.

Under the provisions of the Act
any seven or more persons associated for
any literary, scientific, or charitable
purpose, or for any such purpose as is
described in S. 20 may, by subscribing
their names to a memorandum of
association and filing the same with the
Registrar of Joint Stock Companies, form
themselves
into
a
society.
The
memorandum of association is to contain
the name of the society, the objects of the
society,
the
names,
addresses
and
occupations of the governors, council,
directors, committee, or other governing
body to whom, by the rules of the society,
the management of its affairs is entrusted.

The property, movable and
immovable, belonging to a society may be
vested in trustees, and if not so vested, is
deemed to be vested for the time being in
the governing body of such society, and in
all proceedings, civil and criminal, may
be described as the property of the
governing body of such society by their
proper title. Under S. 16 of the Act, the
governing body of the society shall be the
governors, council, directors, committee,
trustees, or other body to whom by the
rules and regulations of the society the
management of its affairs is entrusted.
Xxxx

19. The basic assumption made
by the learned counsel for the petitioner
that the registration of society can be
equated to the granting of a Royal
Charter, does not rest on a solid
foundation. A society registered under the
4 All. Shri 1008 Parshvanath Digamber Jain Mandir Samit Dist. Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1211
Societies
Registration
Act
is
an
association of individuals which comes
into existence with certain aims and
objects.

If it is not registered as a society
under the Act it would have the character
of an association which cannot sue or be
sued except in the name of all the
members
of
the
association.
The
registration of the Society confers on it
certain advantages. The members as well
as the Governing Body the Society are not
always the same. Even though the
members of the Society or the Governing
Body fluctuate from time to time, the
identity of the society is sought to be
made continuous by reason of the
provisions of the Societies Registration
Act.

The Society continues to exist
and to function as such until its
dissolution under the provisions of the
Act. The properties of the society
continue to be vested in the trustees or in
the Governing Body irrespective of the
fact that the members of the society for
the time being are not the same as they
were before; nor will be the same
thereafter.

By reason of the provisions of
the Societies Registration Act, once the
society is registered the Registrar, by the
filing of the memorandum and certified
copy of the rules and regulations and the
Registrar has certified that the society is
registered under the Act, it enjoys the
status of a legal entity apart from the
members constituting the same and is
capable of suing or being sued. But the
fact to be noted is that what differentiates
a society registered under the Act of 1860
a
company
incorporated
under
the
Companies Act is that in the latter case
the share-holders of company hold the
properties of the company as their own
whereas in the case of a society registered
under the Act of 1860, the members of the
society or the members of the governing
body do not have any proprietary or
beneficial interest; in the property the
society holds.

Having regard to the fact that
the members of the general body or the
members of the governing body of the
society do not have any proprietary or
beneficial interest in the property of the
society,
it
follows
that
upon
its
dissolution, they cannot claim any interest
in the property of the dissolved society.
The Societies Registration Act, therefore,
does not create in the members of the
registered society any interest other than
that of bare trustees. What all the
members are entitled to, is the right of
management of the properties of the
society subject to certain conditions..."

15. It would be relevant to take note
of fact that Section 3 of the Act, 1860
which relates to registration of societies
stood amended and substituted in the
State of U.P. in terms of the Societies
Registration (Uttar Pradesh Amendment)
Act, 1975 (U.P. Act No. 52 of 1975).

16. As has been noticed in the
earlier part of the judgment, the provision
under sub-section (1) of Section 3 which
enjoins the Registrar to certify under his
hand that the society is registered under
the Act upon the memorandum of
association and certified copy being filed
along with other necessary particulars and
requisite fee is qualified by the second
proviso in terms of which the Registrar
may in his discretion issue public notice
or issue notices to such persons as he
thinks fit inviting objections, if any,
against the proposed registration and
consider all objections that may be
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
received by him before registering the
society.

17. In order to appreciate the extent
to which the provision contained under
sub-section (1) of Section 3 would stand
qualified by insertion of the proviso in
terms of the amendment made by U.P.
Act No. 52 of 1975, it would be apposite
to refer to the manner in which a proviso
is to be construed.

18. In Craies on Statute of Law3,
referring
to
the
rules
regarding
construction of a proviso, it has been
observed as follows:-

"9.1. The effect of an excepting or
qualifying proviso, according to the ordinary
rules of construction, is to except out of the
preceding portion of the enactment, or to
qualify something enacted therein, which but
for the proviso would be within it; and such a
proviso cannot be construed as enlarging the
scope of an enactment when it can be fairly and
properly construed without attributing to it
that effect."

19. Again, as has been pointed out
by Craies in the treatise on Statute Law;

"The effect of an excepting or
qualifying proviso, according to the ordinary
rules of construction, is to except out the
preceding portion of the enactment, or to
qualify something enacted therein, which but
for the proviso would be within it."

20.

In
Ishverlal
Thakorelal
Almaula Vs. Motibhai Nagjibhai4, the
intendment of the proviso has been
discussed thus:-

"8. The proper function of a
proviso is to except or qualify something
enacted in the substantive clause, which
but for the proviso would be within that
clause. It may ordinarily be presumed in
construing a proviso that it was intended
that the enacting part of the section would
have included the subject-matter of the
proviso. But the question is one of
interpretation of the proviso and there is
no rule that the proviso must always be
restricted to the ambit of the main
enactment. Occasionally in a statute, a
proviso is unrelated to the subject-matter
of the preceding section, or contains
matters extraneous to that section, and it
may have then to be interpreted as a
substantive
provision,
dealing
independently with the matter specified
therein, and not as qualifying the main or
the preceding section."

21. In Shah Bhojraj Kuverji Oil
Mills & Ginning Factory Vs. Subbash
Chandra Yograj Sinha5, the object of
the proviso and how it is to be interpreted
has been stated in the following manner:-

"9. The law with regard to
provisos
is
well
settled
and
well
understood. 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..."

22. Again, in S. Sundaram Pillai &
Ors. Vs. V.R. Pattabiraman & Ors.6,
various decisions with regard to the
manner of construction of a proviso have
been discussed and it has been stated as
follows:-

"29. Odgers in Construction of
Deeds and Statutes (5th Edn.) while
referring to the scope of a proviso
mentioned the following ingredients:
4 All. Shri 1008 Parshvanath Digamber Jain Mandir Samit Dist. Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1213

'p. 317. Provisos--These are
clauses of exception or qualification in an
Act, excepting something out of, or
qualifying something in, the enactment
which, but for the proviso, would be
within it.

p. 318. Though framed as a
proviso, such a clause may exceptionally
have
the
effect
of
a
substantive
enactment.'

30. Sarathi in Interpretation of
Statutes at pp. 294-95 has collected the
following principles in regard to a
proviso:

(a) 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.

(b) A proviso must be construed
with reference to the preceding parts of
the clause to which it is appended.

(c) Where the proviso is directly
repugnant to a section, the proviso shall
stand and be held a repeal of the section
as the proviso speaks the latter intention
of the makers.

(d)
Where
the
section
is
doubtful, a proviso may be used as a
guide to its interpretation: but when it is
clear, a proviso cannot imply the
existence of words of which there is no
trace in the section.

(e) The proviso is subordinate to
the main section.

(f) A proviso does not enlarge
an enactment except for compelling
reasons.

(g) Sometimes an unnecessary
proviso is inserted by way of abundant
caution.

(h) A construction placed upon
a proviso which brings it into general
harmony with the terms of section should
prevail.

(i) When a proviso is repugnant
to the enacting part, the proviso will not
prevail over the absolute terms of a later
Act directed to be read as supplemental to
the earlier one.

(j) A proviso may sometimes
contain a substantive provision."

23. In the case of State of
Rajasthan
Vs.
Leela
Jain7,
the
following observation with regard to
construction of a proviso has been made:-

"14. ...So far as a general principle
of construction of a proviso is concerned, it has
been broadly stated that the function of a
proviso is to limit the main part of the section
and carve out something which but for the
proviso would have been within the operative
part."

24. In S.T.O. Vs. Hanuman
Prasad8, it was held as follows:-

"5. ... It is well recognised that a
proviso is added to a principal clause
primarily with the object of taking out of
the scope of that principal clause what is
included in it and what the legislature
desires should be excluded."

25.

In
C.C.T.
Vs.
Jhaver
Ramkishan
Shrikishan9
following
observations were made:-

"8. ...Generally speaking, it is
true that the proviso is an exception to the main
part of the section; but it is recognised that in
exceptional cases a proviso may be a
substantive provision itself."

26. The different purposes served by
a proviso have been summarised in the
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
case of Delhi Metro Rail Corporation
Ltd. Vs. Tarun Pal Singh & Ors.10 in
the following manner:-

"43. ...To sum up, a proviso
may serve four different purposes:

(1) qualifying or excepting
certain
provisions
from
the
main
enactment;

(2) it may entirely change the
very concept of the intendment of the
enactment
by
insisting
on
certain
mandatory conditions to be fulfilled in
order to make the enactment workable;

(3) it may be so embedded in
the Act itself as to become an integral part
of the enactment and thus acquire the
tenor and colour of the substantive
enactment itself; and

(4) it may be used merely to act
as an optional addenda to the enactment
with the sole object of explaining the real
intendment of the statutory provision."

27. In Haryana State Cooperative
Land Development Bank Ltd. Vs.
Haryana
State
Cooperative
Land
Development Banks Employees Union
& Anr.11, the function of proviso has
been considered and it has been observed
as follows:-

"9. 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 Surrey (1880) LR 5 QBD
170 at p. 173 (DC) (referred to in Shah
Bhojraj Kuverji Oil Mills & Ginning
Factory v. Subbash Chandra Yograj Sinha
(AIR 1961 SC 1596) and Calcutta
Tramways Co. Ltd. v. Corpn. 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
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.
x x x x x

''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 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 (1921 SCC OnLine PC 102
: (1922) 1 AC 256).

A
statutory
proviso
'is
something engrafted on a preceding
enactment' (R. v. Taunton St. James
(1829) 9 B&C 831 : 109 ER 309, ER p.
311).

''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 Barker, In re, ex p Constable
(1890) LR 25 QBD 285 (CA).''

28. The function of a proviso to
carve out an exception or to qualify
4 All. Shri 1008 Parshvanath Digamber Jain Mandir Samit Dist. Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1215
something enacted therein which would
otherwise be within the purview of the
enactment was emphasised in Madras
and
Southern
Mahratta
Railway
Company
Ltd.
Vs.
Bezwada
Municipality12 wherein it was stated by
Lord Macmillan as follows:-

"The proper function of a
proviso is to except and deal with a case
which would otherwise fall within the
general language of the main enactment,
and its effect is confined to that case."

29. In "The Construction and
Interpretation of Law" by Henry
Campbell Black13, while considering the
manner of construction of provisos it has
been
stated
that
the
natural
and
appropriate effect of a proviso to a statute,
or to a section thereof, is to restrain or
qualify
the
provisions
immediately
preceding it.

30. The insertion of the proviso to
sub-section (1) of Section 3 clearly
indicates that the intention of the
legislature was to qualify the right
conferred in terms of sub-section (1) for
grant of a certificate of registration upon
submission
of
memorandum
of
association and certified copy along with
other necessary particulars and requisite
fee by conferring upon the Registrar a
discretion to issue public notice or issue
notices to such persons as he thinks fit
inviting objections, if any, against the
proposed registration and to consider all
such objections.

31. Further, sub section (2) of
Section 3 which begins with a nonobstante clause and has been stated in a
compulsive language mandates that the
Registrar shall refuse to register the
society if after giving it an opportunity of
showing cause against such refusal he is
satisfied regarding existence of the
contingencies provided thereunder.

32. A non-obstante clause, as used
in sub-section (2) of Section (3), has been
construed as a legislative device to
modify the ambit of the provision or law
mentioned in the non-obstante clause or to
override it in specified circumstances.

33. The meaning of the term 'non
obstante clause' has been explained in
Advanced
Law
Lexicon
by
P
Ramanatha Aiyar14 as follows.

"Non obstante clause. A clause
in a statute which overrides all provisions
of the statute. It is usually worded : '

'Notwithstanding anything in...'

Need not always have effect of
cutting down clear terms of enactment.
Enacting part when clear can Control nonobstante clause.

A clause used in public and
private instruments intended to preclude,
in advance, any interpretation contrary to
certain declared objects or purposes.

Notwithstanding; an overriding
clause."

34. The nature and object of a nonobstante clause as an internal aid of
construction was considered in Union of
India and another Vs. G.M.Kokil and
others15 and it was held to be a
legislative device employed to give
overriding effect to some provisions over
some contrary provisions that may be
found either in the same enactment or
some other enactment to avoid the
operation and effect of all contrary
provisions. The observations made in the
judgment are as follows :-
1216 INDIAN LAW REPORTS ALLAHABAD SERIES

"11....It is well-known that a
non obstante clause is a legislative device
which is usually employed to give
overriding effect to certain provisions
over some contrary provisions that may
be found either in the same enactment or
some other enactment, that is to say, to
avoid the operation and effect of all
contrary provisions...."

35. The import and effect of a nonobstante clause again came up for
consideration in Chandavarkar Sita
Ratna Rao Vs. Ashalata S. Guram16
and it was stated that often a non-obstante
clause is appended to a section in the
beginning with a view to give the
enacting part of the section in case of
conflict
an
overriding
effect.
The
observations in the judgment are as
follows :-

"67.A clause beginning with the
expression
"notwithstanding
anything
contained in this Act or in some particular
provision in the Act or in some particular
Act or in any law for the time being in
force, or in any contract" is more often
than not appended to a section in the
beginning with a view to give the
enacting part of the section in case of
conflict an overriding effect over the
provision of the Act or the contract
mentioned in the non obstante clause. It is
equivalent to saying that in spite of the
provision of the Act or any other Act
mentioned in the non obstante clause or
any contract or document mentioned the
enactment following it will have its full
operation or that the provisions embraced
in the non obstante clause would not be an
impediment for an operation of the
enactment. See in this connection the
observations of this Court inSouth India
Corpn.
(P)Ltd.v.Secretary,
Board
of
Revenue, Trivandrum[AIR 1964 SC 207,
215 : (1964) 4 SCR 280]"

36. In the case of State of Bihar
and
others
Vs.
Bihar
Rajya
M.S.E.S.K.K. Mahasangh and others17
while considering the meaning, object and
effect of a non-obstante clause, it was
stated as follows :-

"45.Anon
obstanteclause
is
generally appended to a section with a
view to give the enacting part of the
section, in case of conflict, an overriding
effect over the provision in the same or
other
Act
mentioned
in
thenon
obstanteclause. It is equivalent to saying
that in spite of the provisions of the Act
mentioned in thenon obstanteclause, the
provision following it will have its full
operation or the provisions embraced in
thenon obstanteclause will not be an
impediment for the operation of the
enactment or the provision in which
thenon-obstante
clause
occurs.
(SeePrinciples of Statutory Interpretation,
9th Edn., by Justice G.P. Singh -- Chapter
V, Synopsis IV at pp. 318 and 319.)

47.Normally the use of a phrase
by the legislature in a statutory provision
like "notwithstanding anything to the
contrary contained in this Act" is
equivalent to saying that the Act shall be
no impediment to the measure (seeLaw
Lexicon words "notwithstanding anything
in this Act to the contrary"). Use of such
expression is another way of saying that
the
provision
in
which
thenon
obstanteclause
occurs usually
would
prevail over other provisions in the Act.
Thus,non obstanteclauses are not always
to be regarded as repealing clauses nor as
clauses which expressly or completely
supersede any other provision of the law,
but merely as clauses which remove all
4 All. Shri 1008 Parshvanath Digamber Jain Mandir Samit Dist. Ghaziabad & Anr. Vs. The State of U.P. & Ors.
1217
obstructions which might arise out of the
provisions of any other law in the way of
the operation of the principal enacting
provision to which thenon obstanteclause
is attached. (SeeBipathummav.Mariam
Bibi[(1966) 1 Mys LJ 162] , Mys LJ at p.
165.)"

37. The scheme of the Act with
regard to registration of a society as
amended in terms of U.P. Act No. 52 of
1975 came up for consideration in the
case of Muzaffar Hussain and others
Vs.
Assistant
Registrar,
Firms,
Societies and Chits, U.P., Meerut
Region Meerut and others18, and it was
held that under the scheme of the Act the
Registrar is not to act as an automaton and
in terms of sub-section (2) which begins
with a non-obstante clause the Registrar is
to refuse registration upon his satisfaction
as to the existence of any one or more of
the grounds specified. The relevant
observations made in the judgment are as
follows.

"11. Under the scheme of the
Act (as amended), the Registrar is not to
act as an automaton. The satisfaction is
objective on consideration of relevant
material. Sub-Section (2) of S.