TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 335
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....raph 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 belatedly file the application and all of them have been....
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....d, 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 provisions of rules 18 to 20 shall, as far as may be, apply to an application for renewal of....
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....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 unambiguous as not to admit in regard to the matters which are there clear any reference to any other part of the section. The proviso may simply be ....
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....ed 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 enactment clearly says unless the words of the proviso are such that that is its necessary effect. (Vide also Corporation of The City of Toronto v. Attorney-General for Canada [1946 AC 32])." (....
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....e 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 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....
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....t 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 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 ....
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....at 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 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 ([1965]1 S C.R. 276) 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 limi....
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....es 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 used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision. 44. These seem to be by and large the main purport and parameters of a proviso. (xi) In State of Punjab v. Kailash Nath reported in 1989 (1) SCC 321, the Hon'ble Supreme Court held as follows: "...The scope of a proviso is well settled. In M/s.Ram Narain Sons Ltd., v. Asst. Commissioner of Sales Tax and others, [1955]2 SCR 483, it was held: "It is a cardinal rule of interpretation that a proviso to a particular provision of s....
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....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 enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect." (xiv) In Kerala State Housing Board v. Ramapriya Hotels (P) Ltd., reported in 1994 (5) SCC 672, the Hon'ble Supreme Court, held as follows: "6. In Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal [1991 (3) SCC 442], this Court held that 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 to be confined to that case. Where the language of the main enactme....
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....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 statute, the Court is required to carefully scrutinise and find out the real object of the proviso appended to that provision. It is not a proper rule of interpretation of a proviso that the enacting part or the main part of the Section be construed first without reference to the proviso and if the same is found to be ambiguous only then recourse may be had to examine the proviso as has been canvassed before us. On the other hand an accepted rule of interpretation is that a Section and the proviso thereto must be construed as a whole each portion throwing light, if need, be, on the rest. A proviso is normally used to remove special cases from the general enactment and provide....
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.... 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 reported in 2004 (1) SCC 574, the Hon'ble Supreme Court, held that, "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 Survey [1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha [AIR 1961 SC 1596] and Calcutta Tramways Co. Ltd., v. Corporation of Calcutta [AIR 1965 SC 1728], when one finds a proviso to a section the natural presumption is that, but for the proviso, the enacting part of the section would have included the subject matter of the proviso. The proper funct....
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....elly [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. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. 19. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. (See Institute of Chartered Accountants of India v. M/s.Price Waterhouse and Anr., AIR 1998 SC 74). The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence, a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Cra....
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....rst principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention to produce an unreasonable result", said Danackwerts, L.J. in Artemiou v. Procopiou, [1966] l QB 878, "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislature and produce awholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC, [1966] AC ....
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....om 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 Nigam v. Krishi Upaj Mandi Samiti reported in AIR 2009 SC 187. 9. Though Mr.M.Elumalai, learned Government Advocate has emphasised on one portion of the Rule 21 of Tamil Nadu Liquor (Licence & Permit) Rules, 1981, we are of the view that the latter portion of the rule, enables submission of an application, for renewal, even after the period of expiry of licence. 10. Letter dated 20.04.2017 sent by the Commissioner of Prohibition and Excise (i/c), Chennai to the Additional Chief Secretary to the Government, Home, Prohibition and Excise (VIII) Department, Chennai, produced today, is extracted hereunder. Lr.No.P&E.2(2)/6840/2015 dated : 20.04.2017 Sir, Sub: Prohibition and Excise Department - Tamil Nadu Liquor (Licence and Permit) Rules, 1981 - Virudhunagar District - Tvl.Harshini Recreation Club - Renewal of FL2 Licence for t....
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....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 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, the licencing authority may admit such application, provided there are good and sufficient reasons for the delay, on payment of an additional fee of twenty five per cent of the prescribed licence fee. However, an application for renewal of licence which is received after the expiry of the licence peri....