TMI Blog2017 (12) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... applications for renewal of licences, can be entertained, subject to the applicant, offering good and sufficient reasons for the delay and on payment of additional fee of 25% of the prescribed licence fee, ie., an application filed even after 31st March , can be considered. Amendment is yet to be made. Existing rule position, as on today, in Tamilnadu Liquor (Licence & Permit) Rules, 1981, has been understood by the department and therefore, amendment has been sought for. Going through the reasons, assigned by the writ Court, we do not find any merit in the instant writ appeals.Hence, the writ appeals are dismissed. - W.A.Nos.1511 to 1518 & 1519 of 2017 and CMP Nos.19931, 19933, 19935, 19937, 19939, 19941, 19943, 19945 & 19958 of 2017 - - - Dated:- 21-11-2017 - S. Manikumar And R. Suresh Kumar, JJ. For the Appellants : Mr.M.Elumalai Government Advocate For the Respondents : Mr.R.Thiagarajan ( for R1 ) JUDGMENT ( Order of the Court was delivered by S. Manikumar, J. ) While considering the correctness of the orders of rejection of the applications, submitted for renewal of FL.3 licence for year 2015-16, with reference to Rule 21 of the Tamil Nadu (Licence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015, has been allowed on 30.08.2016, on the same lines. 3. Correctness of the orders made in the batch of writ petitions, has been assailed in W.A.Nos.1511 and 1518 of 2017. Similarly, on the same grounds, order made in W.P.No.35254 of 2015, dated 30.08.2016, is challenged in W.A.No.1519 of 2017. 4. As facts, submissions and grounds of challenge made in the above writ appeals are common, they are taken up together and disposed of by this common order. 5. Emphasis has been made by Mr.M.Elumalai, learned Government Advocate, on the sentence but, in no case, after the expiry of the licence, the licencing authority can admit an application' and that the licencing authority, has no authority, to entertain an application submitted, after the expiry of the date on which, the licence, expires. He submitted that an application for renewal, has to be made within 30 days, before the expiry of the licence and the power to condone delay can be exercised, if only an application is submitted, within 30 days, from the last date, on which, an application of FL3 licence, has to be filed, till the date of expiry of licence and not beyond that date. In nutshell, applications filed betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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............ The words preceding the proviso would prima facie point to the former view. One must, however, read the whole clause before attempting to construe any portion of it, and a perusal of the proviso fixes the meaning of the words which precede it. In the same judgment, Lord Wright has said thus, The section must be construed as a whole. The second part of the section must be taken into account (whether or not it is properly called a proviso) in order to ascertain the true effect of the first part. (ii) Lord Thankerdon observed in Province Of Bombay vs Hormusji Manekji reported in AIR 1947 PC 200, as follows: It is a familiar principle of statutory construction that where you find in the same section express exceptions from the operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subject-matter of the exceptions would have co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Sales Tax reported in AIR 1955 SC 765, the Hon'ble Supreme Court has held that, 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 as a proviso and to no other. (v) In Commissioner of Income-Tax v. Indo Mercantile Bank Ltd., reported in AIR 1959 SC 713, the Hon'ble Supreme Court, held as follows: The proper function of a proviso is that it qualifies 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. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as proviso . Therefore it is to be construed harmoniously with the main enactment (Per Das, C. J.) in Abdul Jabar Butt v. State of Jammu Kashmir ([1957] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (vii) In Hindustan Ideal Insurance Co. Ltd., v. Life Insurance Corporation of India reported in AIR 1963 SC 1083, the Hon'ble Supreme Court held as follows: 28. There is no doubt that where the main provision is clear its effect cannot be cut down by the proviso. But where it is not clear the proviso, which cannot be presumed to be a surplusage, can properly be looked into the ascertain the meaning and scope of the main provision. By 'looking at the proviso for this purpose the rule of Constiuction referred to by learned counsel will not be infringed.' 29. In the West Derby Union v. Metropolitn Life Assurance Co.. [(1897) A.C. 641, 652], Lord Watson observed: ......... I perfectly admit that there may be and are any cases which the terms of ail intelligible proviso may throw considerable light on the ambiguous import of the statutory words. (viii) In Kedarnath Jute Manufacturing Co. Ltd., v. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon'ble Supreme Court, held as follows: 27. The next question that arises for consideration is as to what is the scope of a proviso and what is the ambit of an Explanation either to a proviso or to any other statutory provision. We shall first take up the question of the nature, scope and extent of a proviso. The well established rule of interpretation of a proviso is that a proviso may have three separate functions. Normally, a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment In other words, a proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. 28. Craies in his book 'Statute Law' (7th Edn.) while explaining the purpose and import of a proviso states at page 218 thus: 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...The natural presumpti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in object of a proviso is merely to qualify the main enactment. In Madras and Southern Maharatta Railway Co. Ltd., v. Bezwada Municipality [ATR 1944 P.C. 71] Lord Macmillan observed thus: 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. 33. The above case was approved by this Court in Commissioner Of Income Tax, Mysore, etc. v. Indo Mercantile Bank Ltd., [[1959] 2 supp. SCR 256], 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 Ginning Factory v. Subhash Chandra Yograj Sinha [[1962] 2 SCR 159], Hidayatullah, J, as he then was, very aptly and succinctly indicated the parametres 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 gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 ([1976]1 S.C.R. 128), Krishan Iyer, J. speaking for the Court observed thus: There is some validity in submission but if, on a fair construction, the principal provision is clear, a proviso can not expand or limit it. Sometimes a proviso is engrafted by an apprehensive draftsman to remove possible doubts, to make matters plain, to light up ambiguous edges. Here, such is the case. 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 whole 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 Rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a statute only embraces the filed, 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 case 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. The scope of the proviso, therefore, it 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 it the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be 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. (xiii) In A.N.Sehgal v. Raje Ram Sheoran reported in 1992 Supp ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main enactment, unless the words of the proviso are such that it is its necessary effect. (xv) In J.K.Industries Ltd., v. Chief Inspector of Factories and Boilers reported in 1996 (6) SCC 665, the Hon'ble Supreme Court held as follows: 30. In Reserve Bank of India Etc. Etc. Vs. Peerless General Finance And Investment Co. Ltd. Others Etc. [1987 (1) SCC, 424] dealing with the principles for interpretation of statutes this Court observed: Interpretation must depend on the text and the context. They are the basis of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th what is expressed in the main provision and if it is so, it would be ultra-vires of the main provision and struck down. As a general rule in construing an enactment containing a proviso, it is proper to construe the provisions together without making either of them redundant or otiose. Even where the enacting part is clear, it is desirable to make an effort to give meaning to the proviso with a view to justify its necessity. 36. While dealing with proper function of a proviso, this Court in The Commissioner of Income-Tax. Mysore Ors. Vs. The Indo Mercantile Bank Ltd. Ors. [AIR 1959 (SC), 713] opined: The proper function of a proviso is that it qualifies 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. Ordinarily it is foreign to the proper function of a proviso to read it as providing something by way of an addendum or dealing with a subject which is foreign to the main enactment. (xvi) In Kush Saigal v. M.C.Mitter reported in 2000 (4) SCC 526, the Hon'ble Supreme Court held as follows: the normal function of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n it you cannot derive these provisions by implication from a proviso. Said Lord Watson in West Derby Union v. Metropolitan Life Assurance Co. (1897 AC 647) (HL). Normally, a proviso does not travel beyond the provision to which it is a proviso. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. (See A.N.Sehgal and Ors., v. Raje Ram Sheoram and Ors., [1992 Supp. (1) SCC 304], Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal and Ors., [(1991) 3 SCC 442] and Kerala State Housing Board and Ors. v. Ramapriya Hotels (P) Ltd. and Ors. [(1994) 5 SCC 672], This word (proviso) hath divers operations. Sometime it worked a qualification or limitation; sometime a condition; and sometime a covenant (Coke upon Littleton 18th Edition, 146) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands is meaningless or of doubtful meaning. Courts are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself. (Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. v. Evans, [1910] AC 445 HL, quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors., AIR (1962) SC 847). 20. The question is not what may be supposed and has been intended but what has been said. Statutes should be construed not as theorems of Euclid . Judge Learned Hand said, but words must be construed with some imagination of the purposes which lie behind them . (See Lenigh Valley Coal Co. v. Yensavage, 218 FR 547). The view was re-iterated in Union of India and Ors., v. Filip Tiago De Gama of Vedem Vasco De Gama, AIR (1990) SC 981. 21. In Dr. R. Venkatchalam and Ors. Etc. v. Dy. Transport Commissioner and Ors. Etc., AIR (1977) SC 842, it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning, that they should not extend to it as well as if it happened more frequently, because it happens but seldom (See Fenton v. Hampton, 11 Moore, P.C. 345). A casus omissus ought not to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit proetereunt legislators, the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni communis juris relinquitur; a casus omissus , observed Buller, J. in Jones v. Smart, I.T.R. 52, can in no case be supplied by a court of law, for that would be to make laws. 25. The golden rule for construing wills, statutes, and, in fact, all written instruments has been thus stated: The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Madras Opinion dated 02.12.2016. 3. This office letter No.P E2(2)/6840/2015, dated 15.02.2017. ----- I invite kind attention to the references cited and I wish to state that necessary amendment proposal was sent to Government vide the reference 3rd cited. 2) In this regard, as per the opinion of the Advocate General of Tamil Nadu, revised amendment is as follows: Existing : Proposed : 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) atleast one month before the date of expiry of the licence. 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 not been made within a period of one month before the expiry as specified herein, but in no case after the expiry of the licence, the licencing authority may admit such application, pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise, Chennai and another, and after, obtaining opinion from the learned Advocate General, the Commissioner of Prohibition and Excise (i/c), Chennai has sought for necessary amendment, to Rule 21 of the Tamilnadu Liquor (Licence Permit) Rules, 1981. 12. The proposed amendment intended to be made in Rule 21 is that, an application for renewal of licence, received, after the expiry of the licence period i.e. 31st March of the concerned year, will not be considered and that the licence, already granted will be deemed to be cancelled. In the light of the decisions, the amendment proposed, fortifies our view that, as per the existing rule, belated applications for renewal of licences, can be entertained, subject to the applicant, offering good and sufficient reasons for the delay and on payment of additional fee of 25% of the prescribed licence fee, ie., an application filed even after 31st March , can be considered. Amendment is yet to be made. Existing rule position, as on today, in Tamilnadu Liquor (Licence Permit) Rules, 1981, has been understood by the department and therefore, amendment has been sought for. Going through the reasons, assigned by the writ Court, we do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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