# 14 S.C.R. 202 DELHI METRO RAIL CORPORATION LTD v. TARUN PAL SINGH & ORS

- **Citation:** [2017] 14 S.C.R. 202
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal No. 19356 of 2017
- **Bench:** Arun Mishra, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-s-c-r-202-delhi-metro-rail-corporation-ltd-v-tarun-pal-singh-ors-31965
- **Pages:** 30

## Headnote

Right to Fair Compensation and Transparency in Land
C Acquisition, Rehabilitation and Resettlement Act, 2013:
ss. 24(J)(b) and proviso to s.24(2) - Whether Proviso to
sub- section (2) of s. 24 governs sub-section (l)(b) of s. 24 or is
confined to sub-section 24(2) alone - Held: ss.24(1) and 24(2)
operate in two different fields - The proviso is only an exception to
D the main provision - For applicability of the proviso, the case has
to be covered by s.24(2)- The object of the proviso is to give benefit
of computation of compensation to all landholders and to save land
acquisition proceedings - The legislative intention is clear that it is
enacted as proviso to s.24(2) - If it is read as proviso to s. 24(J)(b),
it would create repugnancy with said provision and provisions of
E s.24(J)(b) and 24(2) would become wholly inconsistent with each
other -
The interpretation which creates inconsistency or
repugnancy has to be avoided - No contrary intention is available
in the provisions so as not to read the proviso as part of s.24(2) -
Interpretation of Statutes.
F
Interpretation of Statutes:
Proviso to a provision - Construction of - Discussed.
Allowing the appeals, the Court
HELD: 1. Effect of a proviso is to except all preceding
G portion of the enactment. It is only occasionally that proviso is
unrelated to subject matter of preceding section, it may have to
be interpreted as a substantive provision. Ordinarily, a proviso
is not interpreted as stating a general rule. Provisos are often
added as saving clauses. A proviso must be construed with
reference to the preceding parts of the clause to which it is
H
202
DELHI METRO RAIL CORPORATION LTD. v. TARUN.PAL
203
SINGH & ORS.
appended. The proviso is ordinarily subordinate to the main A
Section. A construction placed on proviso which brings general
harmony to the terms of the Section should prevail. A proviso
may sometime contain substantive provision. Ordinarily, proviso
to a section is intended to take out a part of the main section for
special treatment. Normally, a proviso does not travel beyond
B
the main provision to which it is a proviso. A proviso is not
interpreted as stating a general rule, it is an exception to main
provision to which it is carved out as a proviso. Proviso can not
be construed as enlarging the scope of enactment when it can be
fairly and properly constructed without attributing that effect. It
is not open to read in, the words of enactment which are not to be
C
found there and which would alter its operative effect. [Para 9]
(225-D-G]
H Nizam s Religious Endowment Trust, Hyderabad v.
Commissioner of Income-tax, Andhra. Pradesh,
Hyderabad AIR 1966 SC 1007: (1966] SCR 384;
Kederanath Jute Manufacturing Co. Ltd. v. The
Commercial Tax Officer & Ors. AIR 1966 SC 12 : (1965]
SCR 626 ; lshverlal Thakorelal Almaula (Deceased)
after him his heirs and Legal Representatives v. Motibhai
Nagjibhai AIR 1966 SC 459 : (1966] SCR 367 ; Shah
Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash
Chandra Yograj Sinha AIR 1961 SC 1596 ; S.Sundaram
Pillai & Ors. v. V.R. P~ttabiraman & Ors. (1985) 1 SCC
591: [1985] 2 SCR 643; Haryana State Cooperative
Land Development Bank Ltd. v. Haryana State
Cooperative Land Development Banks Employees Union
& Anr. (2004) 1 SCC 574 : [2003] 6 Suppl. SCR
1039 ; Ramesh Kumar Sharma v. Union of India & Ors.
(2006) 6 SCC 510: (2006) 4 Suppl. SCR 227 ; Nagar
Palika Nigam v. Krishi Upaj Mandi Samiti & Ors. AIR
2009 SC 187 : (2008] 14 SCR 419 ; Shimbhu & Anr. v.
State of Haryana (2014) 13 SCC 318 : (2013] 14 SCR
136 - relied on.
Statute Law by Craies, Seventh Edition - referred to. ·
D
E
F
G
2.1 Section 24(1) of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and H
204
SUPREME COURT REPORTS
[2017] 14 S.C.R.
A Resettlement Act, 2013 begins with non-obstante clause. The
Parliament has given overriding effect to this provision over all
other provisions of 2013 Act. Section 24(2) also begins with nonobstante clause. Thi

## Text

_Characters 0–39,552 of 67,961. This is a partial read: ask again with offset=39552 for what follows._

A
B
[2017) 14 S.C.R. 202
DELHI METRO RAIL CORPORATION LTD.
v.
TARUN PAL SINGH & ORS.
(Civil Appeal No. 19356 of 2017)
NOVEMBER 15,2017
(ARUN MISHRA AND
MOHAN M. SHANTANAGOUDAR, JJ.)
Right to Fair Compensation and Transparency in Land
C Acquisition, Rehabilitation and Resettlement Act, 2013:
ss. 24(J)(b) and proviso to s.24(2) - Whether Proviso to
sub- section (2) of s. 24 governs sub-section (l)(b) of s. 24 or is
confined to sub-section 24(2) alone - Held: ss.24(1) and 24(2)
operate in two different fields - The proviso is only an exception to
D the main provision - For applicability of the proviso, the case has
to be covered by s.24(2)- The object of the proviso is to give benefit
of computation of compensation to all landholders and to save land
acquisition proceedings - The legislative intention is clear that it is
enacted as proviso to s.24(2) - If it is read as proviso to s. 24(J)(b),
it would create repugnancy with said provision and provisions of
E s.24(J)(b) and 24(2) would become wholly inconsistent with each
other -
The interpretation which creates inconsistency or
repugnancy has to be avoided - No contrary intention is available
in the provisions so as not to read the proviso as part of s.24(2) -
Interpretation of Statutes.
F
Interpretation of Statutes:
Proviso to a provision - Construction of - Discussed.
Allowing the appeals, the Court
HELD: 1. Effect of a proviso is to except all preceding
G portion of the enactment. It is only occasionally that proviso is
unrelated to subject matter of preceding section, it may have to
be interpreted as a substantive provision. Ordinarily, a proviso
is not interpreted as stating a general rule. Provisos are often
added as saving clauses. A proviso must be construed with
reference to the preceding parts of the clause to which it is
H
202
DELHI METRO RAIL CORPORATION LTD. v. TARUN.PAL
203
SINGH & ORS.
appended. The proviso is ordinarily subordinate to the main A
Section. A construction placed on proviso which brings general
harmony to the terms of the Section should prevail. A proviso
may sometime contain substantive provision. Ordinarily, proviso
to a section is intended to take out a part of the main section for
special treatment. Normally, a proviso does not travel beyond
B
the main provision to which it is a proviso. A proviso is not
interpreted as stating a general rule, it is an exception to main
provision to which it is carved out as a proviso. Proviso can not
be construed as enlarging the scope of enactment when it can be
fairly and properly constructed without attributing that effect. It
is not open to read in, the words of enactment which are not to be
C
found there and which would alter its operative effect. [Para 9]
(225-D-G]
H Nizam s Religious Endowment Trust, Hyderabad v.
Commissioner of Income-tax, Andhra. Pradesh,
Hyderabad AIR 1966 SC 1007: (1966] SCR 384;
Kederanath Jute Manufacturing Co. Ltd. v. The
Commercial Tax Officer & Ors. AIR 1966 SC 12 : (1965]
SCR 626 ; lshverlal Thakorelal Almaula (Deceased)
after him his heirs and Legal Representatives v. Motibhai
Nagjibhai AIR 1966 SC 459 : (1966] SCR 367 ; Shah
Bhojraj Kuverji Oil Mills & Ginning Factory v. Subhash
Chandra Yograj Sinha AIR 1961 SC 1596 ; S.Sundaram
Pillai & Ors. v. V.R. P~ttabiraman & Ors. (1985) 1 SCC
591: [1985] 2 SCR 643; Haryana State Cooperative
Land Development Bank Ltd. v. Haryana State
Cooperative Land Development Banks Employees Union
& Anr. (2004) 1 SCC 574 : [2003] 6 Suppl. SCR
1039 ; Ramesh Kumar Sharma v. Union of India & Ors.
(2006) 6 SCC 510: (2006) 4 Suppl. SCR 227 ; Nagar
Palika Nigam v. Krishi Upaj Mandi Samiti & Ors. AIR
2009 SC 187 : (2008] 14 SCR 419 ; Shimbhu & Anr. v.
State of Haryana (2014) 13 SCC 318 : (2013] 14 SCR
136 - relied on.
Statute Law by Craies, Seventh Edition - referred to. ·
D
E
F
G
2.1 Section 24(1) of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and H
204
SUPREME COURT REPORTS
[2017] 14 S.C.R.
A Resettlement Act, 2013 begins with non-obstante clause. The
Parliament has given overriding effect to this provision over all
other provisions of 2013 Act. Section 24(2) also begins with nonobstante clause. This provision has overriding effect over Section
24(1). It is apparent that Sub-Section (2) of Section 24 deals with
B the lapse of acquisition in case the award had been made five
years or more prior to commencement of the Act but the physical
possession of the land had not been taken or the compensation
had not been paid. The provision of Section 24(2) and its proviso
together further clarify that, in case the award has been made
and compensation in respect of majority of land holdings has not
C been deposited in the account of the beneficiaries, then, all the
beneficiaries specified in the notification for Acquisition shall be
entitled to compensation in accordance with the provisions of
2013 Act. Even if, minority of the claimants are disbursed with
the compensation, such claimants also would get benefit of
D compensation under 2013 Act. Thus it is clear that even if the
acquisition does not lapse, all the beneficiaries to whom the
compensation is payable would be entitled to compensation under
2013 Act. [Para 12) [227-A-D)
2.2 Reading of Sections 24(1) and 24(2) conjointly &
homogenously makes it abundantly clear that they operate in two
E different fields. Section 24(l)(b) unequivocally indicates that in
case the award has been passed under the Land Acquisition Act,
1894, all the proceedings shall continue as if 1894 Act has not
been repealed. Section 24(1)(a) makes the provision of 2013
Act applicable only in case where the award has not been passed.
F !n other words, it gives a clue that when an award has been
passed, obviously further proceedings have to be undertaken
under the 1894 Act, to that extent proceedings under the said
,.
Act is saved, and the Act of 2013 will not apply. In such cases,
there is no necessity of initiation of acquisition proceedings afresh
except in cases as provided under Section 24(2). Whereas Section
G 24(2) would be applicable, if the Award under Section 11 of the
old Act has been made five years or more prior to commencement
of 1894 but physical possession of the Janel has not been taken or
the compensation has not been paid. Proviso to Section 24(2)
further makes it clear that in case the compensation in respect of
H majority of lancl holdings has not been deposited in the account
DELHI METRO RAIL CORPORATION LTD. v. TARUN PAL
205
SINGH & ORS.
of the beneficiaries, then, all the beneficiaries, specified in the A
notification for Acquisition shall be entitled to compensation in
· accordance with the provisions of Act of 2013. The legislature
has provided different consequences in the provisions keeping
in mind the time gap as enumerated in Sections 24(1) and 24(2).
The legislature has visualized and expected that the things would
B
not happen overnight on passing of an award. [Para 12) (228-BF]
2.3 Three contingencies are provided under Sub-Section
(2) of Section 24 i.e. (i) in case if award was passed five years or
more prior to the commencement of 2013 Act and (ii) if C
compensation has not been paid, or (iii) possession has not been
taken. Exception is carved out by adding the proviso to Section
24(2) - wherein the land acquisition would not lapse, in case some
of the land losers are paid compensation but land owners of
majority of holding are not paid. Thus the proviso to Section 24(2)
cannot be lifted and made part of Section 24(1)(b). [Para 12) (227D
G-H; 228-A)
2.4 The proviso to Sub~Section (2) makes it clear that when
the Award has been made and, compensation in respect of majority
of holdings has not been deposited in the account of beneficiaries,.
the acquisition would not lapse. However, all the beneficiaries E
shall be entitled to enhanced compensation under 2013 Act. This
proviso is to be necessarily part of Sub-Section (2)-of Section 24
only. The legislative intention is clear that it is enacted as proviso
to Section 24(2), and otherwise also if read as if it were a proviso
to Section 24(1)(b ), it would create repugnancy with said provision
and the provisions of section 24(l)(b) and proviso to 24(2) would
F
become wholly inconsistent with each other. This is a trite law
that the interpretation which creates inconsistency or repugnancy
has to be avoided and proviso has to be part of Section 24(2) as
enacted. As per fundamental rule of its construction, no contrary
intention is available in the provisions so as not to read it as part G
of Section 24(2). As Section 24(1)(b) provides, in case award has
been passed under 1894 Act, the proceedings shall continue of
the said Act as if it has not been replaced whereas Section 24(2)
provides deemed lapse in case award is passed 5 years or more
before commencement of 2013 Act and possession has not been
H
206
SUPREME COURT REPORTS
[2017] 14 S.C.R.
A taken or compensation has not been paid and as per the proviso
with respect to majority of holding compensation has not been
deposited in account of land owners. In case award has been
passed few days before commencement of the 2013 Act, then
deposit of compensation with respect to majority of holding is
B
bound to take time, that is why legislature has made difference of
consequences based upon time gap in passing of award as
requisite steps to be taken are bound to consume some time by
providing proceedings to continue under 1894 Act. [Para 11) (226C-H]
2.5 A proviso appended to a provision has to be specifically
C interpreted in the manner so as to enable the field which is covered
by the main provision. The proviso is only an exception to main
provision to which it has been enacted and no other. The proviso
deals with a situation which takes something out of the main
enactment to provide a particular course of action, which course
D of action could not have been adopted in the absence of the
proviso. The proviso appended to Section 24(2) indicates that it
carves out an exception for a situation where the land acquisition
proceedings shall not be deemed to lapse. Thus, for the
applicability of the proviso, a case has to be covered by Section
24(2) i.e. (1) award has been made five years or more prior to the
E enforcement of 2013 Act. [Para 13) (228-F-H; 229-A)
2.6 The purpose and object of the proviso is to give benefit
of computation of compensation to all landholders and to save
land acquisition proceedings. Hence, it is evident that the proviso
is appropriately be treated as a proviso to Sub- Section (2) of
F Section 24 and cannot be read as proviso to Section 24(1)(b) of
Act of 21113. [Para 13) (229-Cj
Delhi Development Authority v. Sukhbir Singh & Ors.
(2016) 16 SCC 258 : (2016) 5 SCR 227 - distinguished.
G
Case Law Reference
[2016) 5 SCR 227
distinguished
Para6
[1966) SCR 384
relied on
Para 8 (b)
[1965) SCR 626
relied on
Para 8 (c)
(1966) SCR 367
relied on
Para 8 (d)
H AIR 1961 SC 1596
relied on
Para 8 (e)
DELHI METRO RAIL CORPORATION LTD. v. TARUN PAL
207
SINGH& ORS.
[1985) 2 SCR 643
relied on
Para 8 (t)
[2003) 6 Suppl. SCR 1039
relied on
Para 8 (i)
[2006) 4 Suppl. SCR 227
relied on
Para 8 (j)
[2008) 14 SCR 419
relied on
Para 8 (k)
[2013) 14 SCR 136
relied on
Para 8 (I)
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 19356
of2017.
From the Judgment and Orderdated21.05.2015 of the High Court
of Delhi at New Delhi in C. W. Petition No. 8596 of2014
WITH
Civil Appeal Nos. 19362, 19361, 19358, 19357, 19360, 19359,
19363, 19364and 19412of2017
A
B
c
Sanjay R. Hegde, Sr. Adv., Ms. Shashi Kiran, Satish Chandra,
Sujit Kumar Jha, Ms. Priya Sharma, Manoj Jain, Hara Prasad Sahu,
Kamlesh Kumar Mishra, Shiv Kant Mishra, Pranaya Kumar Mohapatra,
D
Parveen Swarup, Manish Kaushik, Ms. Aradhana Sharma, Anil Goel,
Sachin Gupta, Ms. Rachana Srivastava, Ms. Monika, Sukrit R. Kapoor,
Ms. Nitya Madhusoodhanan, Muhammad Khan, R.V. Prabhat, Umar
Hoda, Gaurav Goel, Siddhartha Chowdhury, Vishaal Maan, Satyawan
Rathee, Abhishek Gupta, Keshav Ranjan, B.V. Balaram Das, Advs. for
E
the appearing parties.
The following Qr.der of the Court was passed:
ORDER
I. Leave granted.
F
2. The only issue involved in the present case is whether the
provision or'Section 24(l)(b) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (hereinafter referred to as 'the Act of 2013 ') is governed by the
proviso to Sub-section (2) of Section 24 of the said Act or it has to be
G
read as part of section 24(2).
-
3. For the purpose of Delhi Metro Railways, land acquisition was
initiated by issuing a Notification on 04.06.2009 under Section 4 read
with Section 17(1) and ( 4) of the Land Acquisition Act, 1894 (hereinafter
referred to as 'the Act of 1894').
I
H
208
SUPREME COURT REPORTS
[2017] 14 S.C.R.
A
4. As per letter dated 16.6.2009, written by the appellant-Delhi
Metro Rail Corporation Ltd. ('DMRC', for short) to the Land & Building
Department of the Delhi Government, 80% of the land compensation
amounting to Rs.3,28,56,687.49p. (Rupees Three Crores, Twenty Eight
Lakhs, Fifty-Six Thousand, Six Hundred Eighty-Seven and Forty Nine
Paise only) was deposited by the appellant vide cheque dated 15.6.2009.
B The matter travelled to this Court; and this Court dismissed the Special
Leave Petition. Thereafter, declaration under Section 6 of the Act of
1894 had been issued on 9.10.2009, and possession of the land was
taken by the DMRC. Award was pronounced on 14.9.20 I I by the Land
Acquisition Collector ('the LAC', for short). On 16.9.2009, the DMRC
C deposited the amount of compensation determined by the LAC. The
balance amount i.e. Rs.60,81,04,200/- (Rupees Sixty Crores, Eighty One
Lakhs, Four Thousand, Two Hundred only) was demanded by the Land
& Building Department by writing a letter dated 15. I 0.2011; and, that
amount was also paid, vide cheque dated 02.11.2011. It was deposited
D on 3.11.2011. Thus, the DMRC has deposited the total assessed
compensation. The DMRC was in possession of the land and after
development, it has been handed over for the public purpose, i.e., MRTS
project, for construction ofChattarpur Metro Station and Electrical Relay
Sub-Station to cater to the Metro Line from Mehrauli to Gurgaon and
Chattarpur Metro Station. The claimants have already sought reference
E under Section 18 of the Act of 1894, for enhancement of the
compensation, which is stated to be pending. In the High Court, certain
writ petitions were filed by the claimants in which, vide its judgment and
order dated 21.5.2015, it was directed that the acquisition would stand,
but the compensation would be paid to the writ petitioners under the Act
F of 2013. Hence, the appeals have been preferred by DMRC in this
Court.
5. It was urged by learned counsel appearing on behalf of the
appellant that Award has been passed within 5 years prior to the
commencement of the Act of2013; the Act came into force on 1.1.2014;
the Award was passed on 14.04.2011. Thus, the provisions of Section
G 24(l)(b) of the Act of2013 would be applicable and such, proceedings
would not lapse and compensation would not be payable as per proviso
to Sub-Section (2) of Section 24 of the Act of2013. The view taken by
the High Court, that the proviso to section 24(2) is applicable, is not
correct. The amount has already been deposited before the Land
H Acquisition Collector. Rs.21 Crores is said to have been paid towards
DELHI METRO RAIL CORPORATION LTD. v. TARUN PAL
209
SINGH & ORS.
..
compensation. The High Court has, thus, erred. in holding that the
A
compensation is required to be paid under the Act of 2013.
6. On the other hand, learned counsel appearing on behalf of the
landowners contended that the proviso to Section 24(2) has to be read
as part of Section 24(1 )(b) of the Act of 2013, and it cannot be read as
part of Sub-Section (2) of Section 24, as legislature have carved out a B
different independent provision which would be applicable to an Award ·
passed, as contemplated under Section 24( I )(b ), and since in the instant
case, the amount has not been deposited with respect to the majority of
the land holdings in the account of the beneficiaries, the compensation
becomes payable to all the beneficiaries under the Act of2013. Reliance
C
has been placed on the decision of this Court in Delhi Development
Authority Vs. Sukhbir Singh & Ors., (2016) 16 SCC 258.
7. Section 24 of the Act of 20 I J is extracted hereunder:
"24.( I) Notwithstanding anything contained in this Act, in any
case of land acquisition proceedings initiated under the Land
D
Acquisition Act, 1894, -
(a) Where no award under section 11 of the said Land
Acquisition Act has been made, then, all provisions of this Act
relating to the determination of compensation shall apply; or ·' ·
b) Where an award under said section 11 has been made, then
E
such proceedings shall continue under the provisions of the
said Land Acquisition Act, as if the said Act has not been
repealed.
(2) Notwiths~nding anything contained in sub-section (I), in case
.. of land a~quisition proceedings initiated under the Land
F
Acquisition Act, 1894, where an award under the said section 11
has been made five years or .more prior to the commencement -·
- ~of this Act buttlrephysical-possession of tile land 11!1.S ilot been
··taken or the compensation has not been paid the said proceedings
-slntH-oo-deemed to have lapsed anmhe appropriate Government,
G
if it so chooses, shaU-initiate -tfie proceedings of such land
acquisitioo..afresh in 11ccordance with the provisions of this Act:
-
"
. Provided that whe;e an.award has been made and
c.Qmpensiltion in respect of a majorityof landholding has riot
been deposited in the account ·of the ben~liClaries; then, all
H
i-·
210
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SUPREME COURT REPORTS
[2017] 14 S.C.R.
beneficiaries specified in the notification for acquisition under
section 4 of the said Land Acquisition Act, shall be entitled to
compensation in accordance with the provisions of this Act."
8. Before coming to the construction of the proviso to section 24,
we deem it appropriate to consider rules regardin~ construction of proviso.
(a) Craies on Statute Law, Seventh Edition referring to various
decisions for construction of provisos has observed :
"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."
"When one finds a proviso to a section," said Lush J. in
Mullins v. Treasurer of Surrey (1880) 5 Q.B.D. 170, 173, "the
natural presumption is that, but for the proviso, the enacting part
of the section would have included the subject-matter of the
proviso."
In West Derby Union v. Metropolitan Life Assurance Co.
[1897] A.C. 647, 652 Lord Watson said: "I am perfectly clear
that 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. When one
regards the natural history and object of provisos, and the manner
in which they find their way into Acts of Parliament, I think your
Lordships would be adopting a very dangerous and certainly
unusual course if you were to import legislation from a proviso
wholesale into the body of the statute, although I perfectly admit
that there may be and are many cases in which the terms of an
intelligible proviso may throw considerable light on the ambiguous
import of the statutory words."
And Lord Herschell in the same case said : "I decline to
read into any enactment words which are not to be found there
and which would alter its operative effect because of provisions
to be found in any proviso," though he admitted that a proviso
H
may be a useful guide in the selection of one or other of two
DELHI METRO RAIL CORPORATION LTD. v. TARUN PAL
211
SINGH & ORS.
possible constructions of words in the enactment or to show the A
scope of the latter in a doubtful case.
InR. v. Dibdin [1910] P.57, 125 Moulton L.J. said: "The fallacy
of the proposed method of interpretation is not far to seek. It.
sins against the fundamental rule of construction that a proviso
must be considered with relation to the principal matter to which
B
it stands as a proviso. It treats it as if it were an independent
enacting clause instead of being dependent on the main
enactment. The courts, as, for instance, in Exp. Partington, ( 1844)
6 Q.B. 649, 653,ReBrocklebank(l889)23 Q.B.D461, and Hill
v. East and West India Dock Co. (1884) 9 App.Cas.448 have
frequently pointed out this fallacy, and have refused to be led
C
astray by arguments such as these which have been addressed
to us, which depend solely on taking words absolutely in their
strict literal sense, disregarding the fundamental consideration
-that they appearing in the proviso."
So where section 65 in a group of sections from section 62
D
onwards in a private Act at the side of which was a note
"Sewers- Sanitary arrangements," provided that "nothing in the
Act shall authorise the Corporation of Newcastle-on-Tyne to
. commit a nuisance," and the Improvement Act of 1885 by section
22 authorised the corporation to erect posts, rails, and fences for
E
the protection of passengers and traffic, it was argued that this
authority must be read subject to the proviso as to nuisance; but
the court held that the proviso affected only the group of sections
to which it was attached and was not a proviso to section 22.
But sections, thoμgh framed as provisos upon preceding sections,
may exceptionally contain matter which is in substance a fresh
enactment, adding to and not merely qualifying what goes before."
(b) In H.E. H.Nizam's Religious Endowment Trust, Hyderabad
v. Commissioner of Income-tax, {1.ndhra Pradesh, Hyderabad AIR
1966 SC l 007, this Court has observed :
"7. As has been pointed out by Craies in his book on Statute
Law,6th Edn. at p. 217, "The effect ofan excepting or qualifying
proviso, according to the ordinary rules of construction, is to except
F
G
out the preceding portion of the enactment, or to qualify something
enacted therein, which but for the proviso would be within it."
The proviso to clause (i) excepts the .two classes of income H
212
A
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c
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SUPREME COURT REPORTS
[2017] l4S.C.R.
subject to the condition mentioned therein from the operation of
the substantive clause. It comes into operation only when the
said income is applied to religious or charitable purposes without
the taxable territories. In that event, the Central Board of
Revenue, by general or speci.r • "rder, may direct that it shall not
be included in the total income. , hi: . wiso also throws light on
the construction of the substantive pan of clause (i) as the
exception can be invoked only upon the applicatiun of the income
to the said purposes outside the taxable territories. The application
of the income in praesenti or in futuro for purposes in or outside
the taxable territories, as the case may be, is the necessary
condition for invoking either the substantive part of the clause or
the proviso thereto."
( c) In Kedarnath Jute Manufacturing Co. Ltd. v. The
Commercial Tax Officer & Ors., AIR 1966 SC 12, this C'otJrt has
discussed the purpose of the proviso thus:
"8. Section 5(2)(a)(ii) of the Act in effect exempts a specified
turnover of a dealer from sales tax. The provision prescribing
the exemption shall, therefore, be strictly construed. The
substantive clause gives the exemptiorl and the proviso qualifies
the substantive clause. In effect, the proviso says that part of
the turnover of the selling dealer covered by the terms of sub-cl.
(ii) will be exempted provided a declaration in the form prescribed
is furnished. To put it in other words, a dealer cannot get the
exemption unless he furnishes the declaration in the prescribed
form. It is well settled that "the effect of an excepting or qualifying
proviso, according to the ordinary rules of construction, is to except
out of the preceuing portion of the enactment, or to qualify
something enacted therein, which but for the proviso would be
within it": see "Craies on Statute Law", 6th Edn., p. 217. If the
intention of the Legislature was to give exemption ifthe terms of
the substantive part of sub-cl. (ii) alone are complied with, the
proviso becomes redundant and otiose. To accept the argument
of the learned counsel for the appellant is to ignore the proviso
altogether, for if his contention be correct it will lead to the position
that ifthe declaration form is furnished, well and good; but, ifnot
furnished, other evidence can be produced. That is to rewrite
the clause and to omit the proviso. That will defeat the express
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intention of the Legislature. Nor does R. 27 A support the contrary A
construction. The expression "on demand" only fixes the point
of time when the declaration forms are to be produced; otherwise,
the rule would be inconsistent with the section. Section 5(2)(a)(ii)
says that the declaration form is to be furnished by the dealer
and r. 27 A says that it shall be furnished on demand, that is to
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say, it fixes the time when the form is to be furnished. This
reconciles the provisions of r. 27 A with those of s. 5(2)(a)(ii) of
the Act, whereas the construction suggested by the learned counsel
introduces an incongruity which shall be avoided. Section 21 A
on which reliance is placed has no bearing on the question to be
decided. It only empowers the Commissioner or any person
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appointed to assist him under sub.section ( 1) of s. 3 to take
evidence on oath etc. It can be invoked only in a case where the
authority concerned is empowered to take evidence in respect
of any particular matter, but that does not enable him to ignore a
statutory condition to claim exemption."
(d) In Jshverlal Thakorelal Almaula (Deceased) after him his
heirs and Legal Representatives v. Motibhai Nagjibhai, AIR 1966
SC 459, the intendment of the proviso has been discussed thus:
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"8. The proper function of a proviso is to except or qualify
something enacted in the substantive clause, which but for the
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proviso should 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 subjectmatter 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 itrn . F
statute, a proviso is unrelated to the subject-matter of the preceding
section, of 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."
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(e) In Shah Bhojraj kuverji Oil Mills & Ginning Factory v.
Subhash Chandra Yograj Sinha, AIR 1961 SC 1596, this Court has
discussed the object of the proviso and how it is to be interpreted thus:
"9. The law with regard to provisos is well-settled and wellunderstood. As a general rule, a proviso is added to an enactment
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to qualify or create an exception to what is in the enactment, and
ordinarily, a proviso is not interpreted as stating a general rule.
But, provisos are often.added not as exceptions or qualifications
to the main enactment but as savings clauses, in which cases
they will not be construed as controlled by the section. The proviso
which has been added to s. 50 of the Act deals with the effect of
repeal. The substantive part of the section repealed two Acts
which were in force in the State of Bombay. If nothing more had
been said, s. 7 of the Bombay General Clauses Act would have
applied, and all pending suits and proceedings would have
continued under the old law as if the repealing Act had not been
passed. The effect of the proviso was to take the matter out of
s. 7 of the Bombay General Clauses Act and to provide for a
special saving. It cannot be used to decide whether s. 12 of the
Act is retrospective. It was observed by Wood, V.C., in Fitzgerald
v. Champneys (1861) 70 E.R. 958 that saving clauses are seldom
used to construe Acts. These clauses are introduced into Acts
which repeal others, to safeguard rights which, but for the savings,
would be lost. The proviso here saves pending suits and
proceedings, and further enacts that suits and proceedings then
pending are to be transferred to the courts designated in the Act
and are to continue under the Act and any or all the provisions of
the Act are to apply to them. The learned Solicitor-General
contends that the savings clause enacted by the proviso, even if
treated as substantive law, must be taken to apply only to suits
and proceedings pending at the time of the repeal which, but for
the proviso, would be governed by the Act repealed. According
to the learned Attorney-General, the effect of the savings is much
wider, and it applies to such cases as come within the words of
the proviso, whenever the Act is extended to new areas."
(f) In S.Sundaram Pillai & Ors. v. V.R. Pattabiraman & Ors.,
(1985) I SCC 591, thisCourthaselaboratelyconsidered various decisions
with respect to the proviso and has discussed the matter thus :
29. Odgers in Construction of Deeds and Statutes (5th Edn.)
while referring to the scope of a pmviso mentioned the following
ingredients:
"P. 317. Provisos -These am clauses of exception or
qualification in an Act, excepting s1Jmething out of, or qualifying
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something in, the enactment which, but for the proviso, would be
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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 pages 294-295 has
collected the following principles in regard to a proviso:
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(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
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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 D
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 E
reasons.
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(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.
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( 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.
U) A proviso may sometimes contain a substantive provision.
31. In the case of Local Government Board v. South Stoneham
Union, 1909 AC 57, Lord Macnaghten made the following
observation:
"I think the proviso is a qualification of the preceding enactment
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which is expressed in terms too general to be quite accurate."
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32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR
1966 SC 459, it was held that the main object of a proviso is
merely to qualify the main enactment. In Madras and Southern
Mahrata Railway Co. Ltd. v. Bezwada Municipality AIR 1944
PC 71, Lord Macmillan observed thus:
"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."
33. The above case was approved by this Court in CIT v. Indo
Mercantile Bank Ltd. AIR 1959 SC 713, where Kapur, J. held
that the proper function of a proviso was merely to qualify the
generality of the main enactment by providing an exception and
taking out, as it were, from the main enactment a portion which,
but for the proviso, would fall within the main enactment. In
Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash
Chandra Yograj Sinha AIR 1961 SC 1596, Hidayatullah, J., as he
then was, v~ry aptly and succinctly indicated the parameters of
a proviso thus:
·
"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."
34. In West Derby Union v. Metropolitan Life Assurance Society
1897 AC 647, while guarding against the danger of interpretation
of a proviso, Lord Watson observed thus:
"a very dangerous and certainly unusual course to import
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legislation from a proviso wholesale into the body of }he statute."
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35. A very apt description and extent ofa proviso was given by
Lord Oreburn in Rhondda Urban District Council v. Taff Vale
Railway Co. 1909 AC 253, where it was pointed out that insertion
of a proviso by the draftsman is not always strictly adhered to its
legitimate use and at times a section worded as a proviso may
wholly or partly be in substance a fresh enactment adding to and
not merely excepting something out of or qualifying what goes
before. To the same effect is a later decision of the same Court
in Jennings v. Kelly I 940 AC 206, where it was observed thus:
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"We must now come to the proviso, for there is, I think, no doubt
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that, in the construction of the section, the whole of it must be
read, and a consistent meaning, if possible, given to every part of
it. The words are: ... 'provided that such licence shall be granted
only for premises situate in the ward or district electoral division
in which such increase in population has taken place .. .' There
seems to be no doubt that the words "such increase in population"
refer to the increase of not less than 25 percent of the population.
mentioned in the opening words of the section."
36. While interpreting a proviso care must be taken that it is
used to remove special cases from the general enactment and
provide for them separately.
37. In short, generally speaking, a proviso is intended to limit the
enacted provision so as to except something which would have
otherwise been within it or in some measure to modify the
eirncting clause. Sometimes a proviso may be embedded in the
main provision and becomes an integral part of it so as to amount
to a substantive provision itself.
38. Apart from the authorities referred to above, this Court has
in a long course of decisions explained and adumbrated the various
shades, aspects, and elements of a proviso. In State of Rajasthan
v. Leela Jain AIR 1965 SC 1296, the following observations were
made:
"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."
39. In the case of STO, Circle-I, Jabalpur v. Hanuma11 Prasad
AIR 1967 SC 565, Bhargava, J. observed thus:
"It is well-recognized 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."
40. In Commissioner of Commercial Taxes v. R.S. Jhaver AIR
1968 SC 59, this Court made the following observations:
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"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."
41. In Dwarka Prasad v. Dwarka Das Saraf ( 197 6) l SCC 128,
Krishna Iyer, J. speaking for the Court observed thus: (SCC pp.
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136-37, paras 16, 18):
"There is some validity in this submission but if on a fair
construction, the principal provision is clean a proviso cannot
expand or limit it. Sometimes a proviso is engrafted by an
apprehensive draftsman to remove possible doubts, to make
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matters plain, to light up ambiguous edges. Here, such is the
case.
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If the rule of construction is that prima facie a proviso should be
limited in its operation to the subject-matter of the enacting clause,
the stand we have taken is sound. To expand the enacting clause,
inflated by the proviso, sins against the fundamental rule of
construction that a proviso must be considered in relation to the
principal matter to which it stands as a proviso. A proviso ordinarily --
is but a proviso, although the golden rule is to read the who.le
section, inclusive of the proviso, in such manner that they mutually
throw light on each other and result in a harmonious construction."
42. In Hiralal Rattanlal v. State ofU.P. (1973) l SCC 216, this
Court made the following observations: [SCC para 22, p. 224:
SCC (Tax) p. 315]
"Ordinarily a proviso to a section is intended to take out a part of
the main section for special treatment. It is not expected to enlarge
the scope of the main section. But cases have arisen in which
this Court has held that despite the fact that a provision is called
proviso, it is really a separate provision and the so-called proviso
has substantially altered the main section."
· 43. We need not multiply authorities after authorities on this point
because the legal position seems to be clearly and manifestly
well established. To sum up, a proviso may serve four different
purposes:
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_ ( 1) qualifying or excepting certain provisions from the main
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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
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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.
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44. These seem to be by and large the main purport and
parameters of a proviso."
(g) In Dibyasingh Malana v. State of Orissa & Ors. AIR 1989
SC 1737, this Court considered effect of proviso and observed:
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"7. On a plain reading of the definition of the term "family" in
Section 37(b) of the Act we are of the view that the said definition
as it stands is neither meaningless nor of doubtful meaning. In
this connection, it may be pointed out that keeping in view the
agrarian reform which was contemplated by the Act and
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particularly the provisions of Chapter IV relating to ceiling and
disposal of surplus land which were calculated to distribute the
surplus land of big tenure holders among the overwhelming havenots of the State the Legislature in its wisdom gave an artificial
meaning to the term "family".