TaxTMI 
TaxTMI 
2017 (12) TMI 335
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....ions dated 10.06.2016, writ Court, at paragraph Nos.5 to 7, has ordered, as hereunder. "5. At this stage, it has to be pointed out that rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. No person is going to benefit by belatedly filing application for grant or renewal of license. Only in cases where the delay is on account of malafide reasons, and when delay has not been explained satisfactorily, the authorities would be justifying in holding that the delay cannot be condoned. However, in the instant cases, no such observation or averment has been made in the impugned orders. That apart, the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, has not fixed any outer time limit as found in other tax statutes like Tamil Nadu Value Added Tax, Customs Act or Central Excise Act. Therefore the authority viz., the Commissioner of Prohibition and Excise is empowered to condone the delay by examining the facts. 6. I have carefully examined the facts of each case and found that in no case there is any mala fide intention on the part of the petitioner to....
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....in no case, after the expiry of licence, no application should be admitted, submission of applications for renewal of FL.3 licence, cannot be sought for, as a matter of right, after the period prescribed and that therefore, rejection of applications filed for renewal of FL.3 licence, submitted beyond the period stated therefor, is valid, and that the writ Court, ought to have sustained the orders of rejection of the said applications, and ought not to have directed Commissioner, Prohibition & Excise Department, Chennai, to consider the applications, submitted for renewal of FL.3 licence in accordance with law. Heard Mr.M.Elumalai, learned Government Advocate and perused the materials available on record. 7. Before adverting to the above submission, we deem it fit to extract Rule 21 of the Tamil Nadu Liquor (Licence and Permit) Rules, 1981, which deals with renewal of licence, as follows: "A licence holder desiring to renew the licence shall make an application in the prescribed form (the same as for the original grant of the licence) atleast one month before the date of expiry of the licence. The application may be sent to the licensing authority direct. The provisio....
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....reported in (1950) 2 All. ER 982, the Court of Appeal, considered the views expressed in Jennings' case (cited supra), as follows: "Lord Russell of Killowen where he said ([1939] 4 All.ER 471: "I do not agree with the contention of the appellants, which appears in the second reason in their case: '.... it is not a right method of construction to use a proviso to control or alter the operative effect of the words preceding it.' That is frequently the very function of a proviso- namly, to include within the scope of the preceding words something which prima facie would not fall within it, or to exclude something which prima facie would fall. Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear, it may without doubt operate to explain which of two or more possible meanings is the right one to attribute to them." Lord Wright (ibid., 477) said thus: "It is said that, where there is a proviso, the former part, which is described as the enacting part, must be construed without reference to the proviso. No doubt there may be cases in which the first part is so clear and unambi....
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....cular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other ". (10) Lord Macmillan in Madras & Southern Mahratta Railway Co. v. Bezwada Municipality [(1944) L.R. 71 I.A. 113] laid down the sphere of a proviso 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. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms ". The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactme....
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....pting 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": see "Craies on Statute Law", 6th Edn., p. 217. If the intention of the Legislature was to give exemption if the 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 if the declaration form is furnished, well and good; but, if not furnished, other evidence can be produced. That is to rewrite the clause and to omit the proviso. That will defeat the express intention of the Legislature." (ix) In Dwarka Prasad v. Dwarka Das Saraf reported in AIR 1975 SC 1758, the Hon'ble Supreme Court held as follows: "While rulings and text books bearing on statutory construction have assigned many functions for provisos, we have to be selective, having regard to the text and context of a statute.... .... If the rule of constr....
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.... 29. Odgers in 'Construction of Deeds and Statutes' (Fifth Edn.) while referring to the scope of a proviso mentioned the following ingredients: 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 pages 294-295 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 later intention of the makers. (d) Where the section is doubtful, a proviso may be used as a guide....
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....politan Life Assurance Co.([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 legislation from a proviso wholesale into the body of the statute." 35. A very apt description and extent of a provio was given by Lord Oreburn in Rhodda 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. 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 other wise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part o....
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....In Hiralal Rattanlal etc. v. Staie of U.P. and Anr. ([1973] 1 S.C.C.216), this Court made the following observations: "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: (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 u....
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....A.N.Sehgal v. Raje Ram Sheoran reported in 1992 Supp (1) SCC 304, the Hon'ble Supreme Court held as follows: "14. It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a cause which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. 15. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it he used to nullify by implication what the ena....
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....tions, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section. each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is its place." (Emphasis supplied) 31. In S. Gopal Reddy Vs. State of Andhra Pradesh [JT 1996 (6) 268], to which one of us (Anand,J.) was a party it was observed: "It is well known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary." {Emphasis supplied} ..... 33. A proviso to a provision in a statute has several functions and while interpreting a provision of the ....
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....ted in 2000 (4) SCC 526, the Hon'ble Supreme Court held as follows: "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. (See: Kedarnath Jute Manufacturing Co. Ltd., v. C.T.O. AIR 1966 SC 12). Since 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 enacting part has to be given such a construction which would make the exceptions carved out by the PROVISO necessary and a construction which would make the exceptions unnecessary and redundant should be avoided (See: Justice G.P. Singh`s "Principles of Statutory Interpretation" Seventh Edition 1999, p-163). This principle has been deduced from the decision of the Privy Council in Govt. of Province of Bombay v. Hormusji Manekji AIR 1947 PC 200 as also the decision of this Court in Durga Datt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980." (xvii) In Haryana State Cooperative Land Development Bank Ltd., v. Haryana State Cooperative Land Development Banks Employees Union repor....
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....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). A statutory proviso "is something engrafted on a preceding enactment" (R v. Tounton, St. James, 9 B. & C. 836). "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). 10. 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). 11. The above position was noted in Ali M.K. and Ors., v. State of Kerala and Ors., (2003 (4) SCALE 197)." (xviii) In Maulavi Hussein Haji Abraham Umarji v. State of Gujarat reported in AIR 2004 SC 3947, the Hon'ble Supreme Court held as follows: "18. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous.....
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....e-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. 22. 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. 23. 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 wi....
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.... 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). 26. 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)." (xix) The abovesaid position is reiterated by the Hon'ble Supreme Court in Nagar Palika ....
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....month before the expiry as specified herein, but in no case after the expiry of the licence, the licencing authority may admit such application, provided there are good and sufficient reasons for the delay on payment of an additional fee Rule 21: Renewal of licence - A licence holder desiring to renew the licence shall make an application in the prescribed form (the same as for the original grant of the licence) along with payment of applicable privilege fees on or before the last day of February of the year in which the licence would expire. The application may be sent to the licensing authority directly. The provisions of Rules 18 to 20 shall, as far as may be, apply to an application for renewal of licence as if it were an application for the original grant of licence, where an application for renewal of the licence has been made after the last day of February of the year in which the licence would expire, but on or before 31st March of the year in which the licence would expire of twenty five per cent of the prescribed licence fee. Rule 21: Renewal of licence - A licence holder desiring to renew the licence shall make an application in the prescribed form (the same as for th....