Supreme Court: Golden principles for interpretation of any anti-corruption law

 

 In Dr. Subramanian Swamy vs. Dr.

Manmohan Singh and Another (2012) 3 SCC 64

it is held that any anti-corruption law has

to be interpreted in such a fashion as to

strengthen fight against corruption and

where two constructions are eminently

reasonable, the Court has to accept the one

that seeks to eradicate corruption than the

one which seeks to perpetuate it.” {Para 22}

 IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1647 OF 2021

STATE OF RAJASTHAN Vs TEJMAL CHOUDHARY 

Author: INDIRA BANERJEE, J.

Dated: December 16, 2021.

Read full Judgment here: Click here

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Whether court can condone delay in filing of election petition?

Section 69 of the Act is the mechanism provided by the State Legislature as contemplated Under Article 243ZK(2) of the Constitution of India. Once the mechanism provided under the Statute provides for a time Schedule for preferring an election petition, in the absence of a provision in the Statute for enlarging the time under any given circumstances, no court, whether the High Court Under Article 226 or this Court Under Article 32, 136 or 142 of the Constitution can extend the period in election matters. In the matter of limitation in election cases, the Court has to adopt strict interpretation of the provisions. This Court in Smita Subhash Sawant v. Jagdeeshwari Jagdish Amin and Ors. reported in MANU/SC/0966/2015 : (2015) 12 SCC 169, though in a different context, has held at paragraph 33 that "In the absence of any provision made in the Act for condoning the delay in filing the election petition, the Chief Judge had no power to condone the delay in filing the election petition beyond the period of limitation prescribed in law".

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4001 of 2018 

Decided On: 19.04.2018

Reji Thomas  Vs.   The State of Kerala and Ors.

Hon'ble Judges/Coram:

Kurian Joseph, Mohan M. Shantanagoudar and Navin Sinha, JJ.

Citation:(2018) 16 SCC 778

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Whether penal statutes can be expanded by using implication?

 Although we acknowledge the appellant’s
plight who has suffered due to alleged acts of forgery, but
we are not able to appreciate the appellant’s contentions
as a penal statute cannot be expanded by using
implications. Section 464 of the IPC makes it clear that
only the one who makes a false document can be held
liable under the aforesaid provision. It must be borne in
mind that, where there exists no ambiguity, there lies no
scope for interpretation. 
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL NOS. 359-360 OF 2010

SHEILA SEBASTIAN  V R. JAWAHARAJ & ANR.

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Golden rule for interpretation of statute of Limitation

 The Appellants have justly relied on the exposition in the case of Lala Balmukund (supra), (in particular paragraphs 20 and 21), which has answered similar issue regarding the date of obtaining decree and while explicating the term "obtaining a copy", has held that the time will start only after the decree is drawn. It is apposite to reproduce the dictum in paragraph 19, which reads thus:

19. We do not wish to encumber this judgment with a detailed discussion of all the citations and the reasoning advanced therein in support of one or the other view. It will be sufficient to say that upon the language of Section 12(2) both the constructions are possible, but the one adopted by the majority of the courts, appears to be more consistent with justice and good sense. The Limitation Act deprives or restricts the right of an aggrieved person to have recourse to legal remedy, and where its language is ambiguous, that construction should be preferred which preserves such remedy to the one which bars or defeats it. A court ought to avoid an interpretation upon a statute of limitation by implication or inference as may have a penalising effect unless it is driven to do so by the irresistible force of the language employed by the Legislature.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10222 of 2017 (Arising out of SLP (C) No. 24862 of 2012)

Decided On: 28.03.2018

Mohinder Singh Vs.  Paramjit Singh and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I. and A.M. Khanwilkar, J.

Citation:(2018) 5 SCC698.

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Whether S 6 of General Clauses Act will apply if contrary intention appears in new enactment?

 Shri Sundaram's submission is also not in consonance with the law laid down in some of our judgments. The approach to statutes, which amend a statute by way of repeal, was put most felicitously by B.K. Mukherjea, J. in State of Punjab v. Mohar Singh, MANU/SC/0043/1954 : 1955 1 SCR 893 at 899-900, thus:

In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the Section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving Clause is by itself not material. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2879-2880 of 2018
Decided On: 15.03.2018

 Board of Control for Cricket in India Vs. Kochi Cricket Pvt. Ltd. and Ors.

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Whether proposed amendment in law can be looked at for interpretation of a section?

Section 87 of the proposed Arbitration and Conciliation (Amendment) Bill, 2018 cannot be looked at, at this stage, for the interpretation of Section 26 of the Amendment Act for two reasons: (i) Section 87, as ultimately enacted, may not be in the form that is referred to in the press release; and (ii) a proposed Bill, introducing a new and different provision of law can hardly be the basis for interpretation of a provision of law as it now stands. 

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2879-2880 of 2018
Decided On: 15.03.2018

 Board of Control for Cricket in India Vs. Kochi Cricket Pvt. Ltd. and Ors.

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How to ascertain whether any statute is special or general?

Shri Viswanathan referred various judgments to us on the
applications of the general versus special principle. In particular
he relied strongly on Life Insurance Corporation of India v. D.J.
Bahadur and Others, (1981) 1 SCC 315. The question that arose
before this Court in that case was whether the Life Insurance
Corporation Act, 1956 is a special statute qua the Industrial
Disputes Act, 1947 when it came to a dispute regarding conditions
of service of the employees of the Life Insurance Corporation of
India. This Court ultimately held that the Industrial Disputes Act
would prevail over the Life Insurance Corporation of India Act as
the Industrial Disputes Act relates specially and specifically to
industrial disputes between workmen and employers, whereas the
LIC Act is a general statute which is silent on what happens to
disputes between management and workmen. The fact that the
LIC Act must be considered to be a special legislation regulating
the takeover of private insurance business not being relevant to
the subject matter at hand would not make the said Act special in
any sense. The working test laid down by this Court to determine
which statute is general and which special, is laid down in
paragraph 52 of the said judgment thus:-
“In determining whether a statute is a special or a
general one, the focus must be on the principal
subject-matter plus the particular perspective. For
certain purposes, an Act may be general and for

certain other purposes it may be special and we
cannot blur distinctions when dealing with finer points
of law. In law, we have a cosmos of relativity, not
absolutes — so too in life. The ID Act is a special
statute devoted wholly to investigation and settlement
of industrial disputes which provides definitionally for
the nature of industrial disputes coming within its
ambit. It creates an infrastructure for investigation into,
solution of and adjudication upon industrial disputes. It
also provides the necessary machinery for
enforcement of awards and settlements. From alpha to
omega the ID Act has one special mission — the
resolution of industrial disputes through specialised
agencies according to specialised procedures and with
special reference to the weaker categories of
employees coming within the definition of workmen.
Therefore, with reference to industrial disputes
between employers and workmen, the ID Act is a
special statute, and the LIC Act does not speak at all
with specific reference to workmen. On the other hand,
its powers relate to the general aspects of
nationalisation, of management when private
businesses are nationalised and a plurality of problems
which, incidentally, involve transfer of service of
existing employees of insurers. The workmen qua
workmen and industrial disputes between workmen
and the employer as such, are beyond the orbit of and
have no specific or special place in the scheme of the
LIC Act. And whenever there was a dispute between
workmen and management the ID Act mechanism was
resorted to.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.201 of 2005
PANKAJAKSHI (DEAD) THROUGH
L.RS. & OTHERS …
VERSUS
CHANDRIKA & OTHERS …
Citation:(2016) 6 SCC157
R.F. Nariman, J.

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When legislative amendment shall be presumed to have retrospective or prospective effect?

 Legislature has plenary powers of legislation within the fields assigned to it and can legislate prospectively or retrospectively, the general rule is that in the absence of the enactment specifically mentioning that the concerned legislation or legislative amendment is retrospectively made, the same is to be treated as prospective in nature. It would be more so when the statute is dealing with substantive rights. No doubt, in contrast to statute dealing with substantive rights, wherever a statute deals with merely a matter of procedure, such a statute/amendment in the statute is presumed to be retrospective unless such a construction is textually inadmissible. At the same time, it is to be borne in mind that a particular provision in a procedural statute may be substantive in nature and such a provision cannot be given retrospective effect. To put it otherwise, the classification of a statute, either substantive or procedural, does not necessarily determine whether it may have a retrospective operation. 

 It needs to be emphasized that even where the Rules are procedural, some of the provisions therein may be of substantive nature. An error is committed by the High Court in holding that fixation of period of lease is also procedural. When a decision to grant lease is substantive in nature, the period for which the lease is to be granted would also be substantive. Thus, the conclusion arrived at by the High Court is contrary to law.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 453 of 2016 (Arising out of SLP (C) No. 3674 of 2010), 

Decided On: 20.01.2016

 District Collector, Vellore District Vs. K. Govindaraj

Hon'ble Judges/Coram:T.S. Thakur, C.J.I., A.K. Sikri and R. Banumathi, JJ.

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Leading judgment on inherent powers of tribunals

It   is   a   settled   principle   that   where   a   Tribunal   or
statutory   appellate   Authority   that   has   been   conferred   with
jurisdiction to decide proceedings under a statute, it is also clothed
with   such   ancillary     or   incidental   powers   as   are   necessary   to
discharge its functions effectively for the purposes of doing justicebetween the parties. The reliance placed by the learned Counsel
for the petitioners on the decision of the Supreme Court in Income
Tax Officer (supra) in that regard is apposite.  In para 4 thereof, it
has been observed by the Supreme Court as under:
“4.....................................................................
It is a firmly established  rule that an express
grant   of   statutory   power   carries   with   it   by
necessary implication to authority to use all
reasonable means to make such grant effective
(Sutherland   Statutory   Construction,   Third
Edition, Articles 5401 and 5402).  The powers
which have been conferred by Section 254 on
the   Appellate   Tribunal   with   widest   possible
amplitude must carry with them by necessary
implication all powers and duties incidental
and necessary to make the exercise of those
powers fully effective.  In Domat's Civil Law,
Cushing's  Edition, Vol. I  at  page  88, it has
been stated:
“It is the duty of the judges to apply the
laws,   not   only   to   what   appears   to   be
regulated   by   their   express   dispositions
but   to   all   the   cases   where   a   just
application of them may be made, and
which appear to be comprehended either
within   the   consequences   that   may   be
gathered from it.”
Maxwell   on   Interpretation   of   Statutes,
Eleventh Edition contains a statement at
p.   350   that   “where   an   Act   confers   a
jurisdiction, it impliedly also grants the
power   of   doing   all   such   acts,   or
employing such means, as are essentiallynecessary to its execution. Cui jurisdictio
data   est,   ea   quoqe   concessa   esse
vindenture,   since   guibus   jurisdictio
explicari   non   potuit.”    An   instance   is
given based on Ex Parte, Martin, (1879)
4  QBD   212   at   p.  491  that   “where   an
inferior court is empowered to grant an
injunction,   the   power   of   punishing
disobedience   to   it   by   commitment   is
impliedy conveyed by the enactment, for
the power would be useless if it could
not be enforced.”
The judgment of the Supreme Court in Radhakrishna

Mani Tripathi (supra) proceeds on aforesaid principle.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 2300 OF 2015
PETITIONERS:
         
Shri Omprakash Nathuji Vaidhya, 
V The   Divisional   Joint   Registrar,   Cooperative  Societies,   
        CORAM: A.S. CHANDURKAR, J.
        DATED: 14thDECEMBER, 2015.
Citation: 2016(2) MHLJ 936

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How to apply doctrine of contemporanea expositio?

Shri Giri, in addition to the submissions raised by Shri
Cama, on his special facts submitted that it was fallacious to
take into account raw materials that ultimately went into the
manufacturing of the finished products and to state that the said
raw materials being groceries would therefore make the final
product also a “grocery”. He further argued that the expression
“grocery” would only comprise articles which are required as
daily necessities such as oil, grain, etc. in households, and this
not being the case, soft drinks manufactured and bottled water

would be outside the expression “grocery”. He also argued that
when the Act was extended to the appellant company’s factory,
in the year 1983, whatever may be the position today, the
position in 1983 was clear and obviously the items
manufactured by the appellant company would not have fallen
within the expression “grocery” as understood in 1983.
25. Learned counsel appearing on behalf of the Board has
repelled all these arguments stating that the expression
“grocery” was wide enough to include all items of food and drink
which would necessarily take in the appellant company’s
products. He reiterated his argument on construing a beneficial
enactment such as the 1969 Act to achieve the object set out
and that assuming that the term “grocery” has a narrower
meaning, obviously the broader meaning should be taken into
account. Further, he also stated that whatever the position was
in 1983, at the stage of the show cause notice in 2005 and by
the date of the State Government order in 2008 both soft drinks
manufactured as well as bottled water manufactured by the
appellant company were certainly household items among the
middle class and rich sections of society.

26. The definition of “grocery” contained in the Oxford
Advanced Learner’s Dictionary of Current English, 9th Edition, is
as follows:-
 “grocery – (grocery store) a shop/store that sells
food and other things used in the home. In
American English ‘grocery store’ is often used to
mean supermarket. 2. Groceries – food and other
goods sold by a grocer or at a supermarket.”
We also find a useful definition contained in Collins English
Dictionary, Third Edition –
“groceries – merchandise, esp. Foodstuffs, sold by a
grocer”.
27. That the expression “grocery” in 2005, when the Act was
sought to be applied to the appellant company, would include
soft drinks manufactured by the appellant company and bottled
water as daily household goods among the middle class and
rich sections of society, was not seriously contested by Shri
Giri. The argument that we should find the meaning of the
expression “grocery” on the date on which the Act was
extended to the area in which the appellant company’s factory
was situate is fallacious in law. This Court in The Senior

Electric Inspector and others v. Laxmi Narayan Chopra and
others, 1962 (3) S.C.R. 146, when confronted with a similar
argument to that made by Shri Giri, repelled the said argument
in the following terms:
“The legal position may be summarized thus: The
maxim contemporanea expositio as laid down by
Coke was applied to construing ancient statutes but
not to interpreting Acts which are comparatively
modern. There is a good reason for this change in
the mode of interpretation. The fundamental rule of
construction is the same whether the Court is asked
to construe a provision of an ancient statute or that
of a modern one, namely, what is the expressed
intention of the Legislature. It is perhaps difficult to
attribute to a legislative body functioning in a static
society that its intention was couched in terms of
considerable breadth so as to take within its sweep
the future developments comprehended by the
phraseology used. It is more reasonable to confine
its intention only to the circumstances obtaining at
the time the law was made. But in a modern
progressive society it would be unreasonable to
confine the intention of a Legislature to the meaning
attributable to the word used at the time the law was
made, for a modern Legislature making laws to
govern a society which is fast moving must be
presumed to be aware of an enlarged meaning the
same concept might attract with the march of time
and with the revolutionary changes brought about in
social, economic, political and scientific and other
fields of human activity. Indeed, unless a contrary
intention appears, an interpretation should be given
to the words used to take in new facts and
situations, if the words are capable of

comprehending them. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9999 OF 2010
PEPSICO INDIA HOLDING P. LTD. 
V
GROCERY MARKET & SHOPS BOARD
& ORS.
Dated;February 12, 2016.
Citation;(2016) 4 SCC493

R.F. Nariman, J.

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Leading caselaw on purposive interpretation of statutes

 The principle of 'purposive interpretation' or
'purposive construction' is based on the understanding that the Court is
supposed to attach that meaning to the provisions which serve the
'purpose' behind such a provision. The basic approach is to ascertain
what is it designed to accomplish? To put it otherwise, by interpretative
process the Court is supposed to realise the goal that the legal text is
designed to realise. As Aharan Barak puts it:
“Purposive interpretation is based on three components:
language, purpose, and discretion. Language shapes the
range of semantic possibilities within which the interpreter
acts as a linguist. Once the interpreter defines the range,
he or she chooses the legal meaning of the text from
among the (express or implied) semantic possibilities. The
semantic component thus sets the limits of interpretation
by restricting the interpreter to a legal meaning that the
text can bear in its (public or private) language.”
10) Of the aforesaid three components, namely, language, purpose and
discretion 'of the Court', insofar as purposive component is concerned,
this is the ratio juris, the purpose at the core of the text. This purpose is
the values, goals, interests, policies and aims that the text is designed to
actualize. It is the function that the text is designed to fulfil.
Aharan Barak – Purposive Interpretation in Law
11) We may also emphasize that the statutory interpretation of a provision is
never static but is always dynamic. Though literal rule of interpretation,
till some time ago, was treated as the 'golden rule', it is now the doctrine
of purposive interpretation which is predominant, particularly in those
cases where literal interpretation may not serve the purpose or may lead
to absurdity. If it brings about an end which is at variance with the
purpose of statute, that cannot be countenanced. Not only legal process
thinkers such as Hart and Sacks rejected intentionalism as a grand
strategy for statutory interpretation, and in its place they offered
purposivism, this principle is now widely applied by the Courts not only in
this country but in many other legal systems as well.


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 8731 OF 2015
(Arising out of S.L.P. (Civil) No.19617 of 2015)
SHAILESH DHAIRYAWAN …APPELLANT

VERSUS
MOHAN BALKRISHNA LULLA ...RESPONDENT

R.F. Nariman, J.
Dated;OCTOBER 16, 2015.
Citation;(2016)3 SCC619

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Curial interpretation virtually nullifying spirit of enactment must be avoided

Section 6 of the HMG Act is of seminal importance. It reiterates Section 4(b)and again clarifies that guardianship covers both the person as well as the property of the minor; and then controversially states that the father and after him the mother shall be the natural guardian of a Hindu. Having said so, it immediately provides that the custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. The significance and amplitude of the proviso has been fully clarified by decisions of this Court and very briefly stated, a proviso is in the nature of an exception to what has earlier been generally prescribed. The use of the word "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.

Supreme Court of India

Roxann Sharma vs Arun Sharma on 17 February, 2015

Bench: Vikramajit Sen, C. Nagappan

REPORTABLE

Citation;(2015) 8 SCC318

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When non statutory provisions can be treated as mandatory?

In the context of facts of the present case it
is sufficient to observe that non statutory provisions can hardly be
treated as mandatory unless their non observance is shown to have
caused legal injury by affecting some valuable rights of the writ
petitioners. As discussed earlier no such case could be made out by
the appellants so as to require interference on account of alleged
shortcomings in preparation or verification of Annexure II.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.9363 OF 2011

Balasaheb Arjun Torbole  Vs The Administrator & Divisional Commissioner


SHIVA KIRTI SINGH, J.
Citation; (2015)6SCC534, 

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How to interpret law in accordance with ancient Indian law?

In this country we have a heritage of rich literature, it is interesting to note that literature of interpretation also is very well-known. The principles of interpretation have been enunciated in various Shlokas which have been known for hundreds of years. One such Shlok (Verse) which describes these principles with great precision is:

"UPKRAMOP SANHARO ABHYASO UPPURWATA PG NO 867 FALAM ARTHWADOPPATTI CH LINGAM TATPARYA NIRNAYE" This in short means that when you have to draw the conclusion from a writing you have to read it from beginning till end. As without doing it, it is difficult to understand the purpose, if there is any repetition or emphasis its meaning must be understood. If there is any curiosity or a curious problem tackled it should be noticed and the result thereof must be understood. If there is any new innovation (Uppurwatta) or something new it should be taken note of. Then one must notice the result of such innovation. Then it is necessary to find what the author intends to convey and in what context.

This principle of interpretation was not enunciated only for interpretation of law but it was enunciated for interpretating any piece of literature and it meant that when you have to give meaning to anything in writing then you must understand the real meaning. You can only understand the real meaning by understanding the reference, context, the circumstances in which it was stated and the problems or the situations which were intended to be met by what was said and it is only when you take into consideration all this background, circumstances and the problems which have to be tackled that you could really understand the real meaning of the words. This exactly is the principle which deserves to be considered. When we are dealing with the phrase landless persons these words are from English language and therefore I am reminded of what Lord Denning said about it. Lord Denning in The Discipline of Law at Page No. 12 observed as under:

Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were PG NO 868 drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsmen. He must set to work on the constructive task of finding the intention of Parliament.

And it is clear that when one has to look to the intention of the Legislature, one has to look to the circumstances under which the law was enacted. The Preamble of the law, the mischief which was intended to be remedied by the enactment of the statute and in this context, Lord Denning, in the same book at Page No. 10, observed as under:

At one time the Judges used to limit themselves to the bare reading of the Statute itself-to go simply by the words, giving them their grammatical meaning and that was all. That view was prevalent in the l9th century and still has some supporters today. But it is wrong in principle. The Statute as it appears to those who have to obey it--and to those who have to advise them what to do about it; in short, to lawyers like yourselves. Now the eccentrics cut off from all that is happening around them. The Statute comes to them as men of affairs--who have their own feeling for the meaning of the words and know the reason why the Act was passed--just as if it had been fully set out in a preamble. So it has been held very rightly that you can enquire into the mischief which gave rise to the Statute--to see what was the evil which it was sought to remedy."

It is now well settled that in order to interpret a law one must under-stand the background and the purpose for which the law was enacted.

Supreme Court of India

U.P.Bhoodan Yagna Samiti,U.P vs Braj Kishore & Ors on 9 September, 1988

Equivalent citations: 1988 AIR 2239, 1988 SCR Supl. (2) 859,1988 SCC (4) 274 JT 1988 (3) 640

Bench: Oza, G.L. (J)

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Distinction between interpretation by Jurisprudence and interpretation by court

The Court has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law (P. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the court) on the other. According to him "jurisprudential interpretation i., purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law". "The purely cognitive interpretation by jurisprudence is there- fore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law." According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied; he must 'interpret' those norms (P. 348). Interpretation therefore is an intel- lectual activity which accompanies the process of law appli- cation in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. "There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the appli- cation of law." The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive--legal 'correct- ness' of this decision is based on the statute itself. This theory describes the interpretive procedure as if it con- sisted merely in an intellectual act of clarifying or under- standing; as if the law-applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law. According to the author: "The legal act applying a legal norm may be performed in such a way that it conforms

(a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm creating authority that is to be determined somehow', (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame."

Supreme Court of India

Punjab Land Development ... vs Presiding Officer, Labour ... on 4 May, 1990

Equivalent citations: 1990 SCR (3) 111, 1990 SCC (3) 682

Bench: Mukharji, Sabyasachi (Cj), Ray, B.C. (J), Kania, M.H., Saikia, K.N. (J), Agrawal, S.C. (J)

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When compromise decree under rent law will become unexecutable?

Thus, while submitting the terms of the compromise, it is mandatory that at least one of the grounds for eviction which is available under Section 16 of the Maharashtra Rent Control Act ought to have been mentioned in the compromise purshis or there should be a clear indication of such ground which might have been pleaded either in the plaint by landlord or in the written statement if the landlord is a defendant. Thereafter, it is the duty of the Court while recording the compromise, to satisfy itself that any ground under Section 16 ought to have been 

mentioned in the compromise and then accept it. In case of Roshan Lal (supra), the Apex Court has enlightened us on this issue and has held :

" If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenant's eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law." Passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either expressed or implied is not different.

Thus, in the terms of compromise why landlord wants premises and the ground, which is available under Section 16 21 

should reflect in the compromise, then only that compromise becomes executable.

On this background, the present compromise is to be looked into. In the compromise purshis, the status of the parties as landlord and tenant is accepted. No ground which is available under Section 16 of the Maharashtra Rent Control Act is mentioned, indicated or reflected. Therefore, the decree based upon the terms of the compromise being contrary to Section 16 of the Maharashtra Rent Control Act, becomes unexecutable.

Going back to the definition of Decree Holder, though the defendant-landlord is having a decree/order in his favour, the same is not executable, as in the compromise no ground available under Section 16 of the Maharashtra Rent Control Act is mentioned or clearly indicated. So, eviction of the tenant contrary to Section 16 of the Maharashtra Rent Control Act is violative to the said special statute.

Bombay High Court

Abedali Khan S/O Rahematali Khan vs Devidas S/O Dhonduji Poghe on 28 September, 2011

Bench: Mridula Bhatkar

CORAM : MRS MRIDULA BHATKAR, J.

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