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Allahabad Heritage Society And 12 Others Vs. State Of U.P. And 4 Others

Allahabad High Court Public Interest Litigation (Pil) No. - 4717 Of

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Case Background

The present public interest litigation i.e. PIL No.4717 of 2018 and the connected matters (PIL No.4888 of 2018 and PIL No.4911 of 2018) have been filed principally seeking to challenge the Notification No.1574/1-5-2018-72/2017-Rev-5 ...

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Document Text Version

AFR

Reserved on 06.12.2018

Delivered on 26.02.2019

Chief Justice's Court

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 4717 of 2018

Petitioner :- Allahabad Heritage Society And 12 Others

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Syed Farman Ahmad Naqvi,Deba Siddiqui,Kamal

Krishna Roy,Shahid Ali Siddiqui,Syed Ahmed Faizan,Syed Mohammed

Jafer Husain,Shri Ravi Kiran Jain(Senior Advocate),Shri Umesh Narain

Sharma(Senior Advocate),Vijay Chandra Srivastava

Counsel for Respondent :- C.S.C.

With

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 4888 of 2018

Petitioner :- Janak Pandey And 16 Others

Respondent :- State Of U P And 4 Others

Counsel for Petitioner :- Rohan Gupta,Mr. Rakesh Dwivedi (Sr.

Advocate),Mr. Shashi Nandan (Sr. Advocate),Rahul Agarwal,Udayan

Nandan

Counsel for Respondent :- C.S.C.

With

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 4916 of 2018

Petitioner :- Javed Mohammad And 2 Others

Respondent :- State Of U.P. And 5 Others

Counsel for Petitioner :- Syed Farman Ahmad Naqvi,Deba Siddiqui,Sri

Ravi Kiran Jain (Sr. Advocate),Syed Ahmed Faizan

Counsel for Respondent :- C.S.C.,Sunil Dutt Kautilya

With

Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 4911 of 2018

Petitioner :- Zak Sewa Trust And 2 Others

Respondent :- State Of U.P. And 4 Others

Counsel for Petitioner :- Anshul Nigam,Rekha Singh

Counsel for Respondent :- C.S.C.

Hon'ble Govind Mathur,Chief Justice

Hon'ble Dr. Yogendra Kumar Srivastava,J.

(Per : Dr. Yogendra Kumar Srivastava,J.)

1.Heard Sri Shashi Nandan, learned Senior Counsel assisted by

Neutrald”itationdNovdqdKDuk6x"”6zKjMzq3“

Sri SFA Naqvi, Sri Udayan Nandan and Sri Anshul Nigam, learned

counsel for the petitioners and Sri Manish Goyal, learned Additional

Advocate General assisted by Sri AK Goyal, learned Additional Chief

Standing Counsel for the State.

2.The present public interest litigation i.e. PIL No.4717 of 2018 and

the connected matters (PIL No.4888 of 2018 and PIL No.4911 of 2018)

have been filed principally seeking to challenge the Notification

No.1574/1-5-2018-72/2017-Rev-5 dated 18.10.2018 issued by the

State Government in exercise of powers under sub-section (2) of

Section 6 of UP Revenue Code, 2006

(UP Act No.8 of 2012) whereby

the name of the existing district of “Allahabad” has been altered as the

district of “Prayagraj”, and for other ancillary reliefs.

3.In PIL No.4916 of 2018, the petitioners have sought to challenge

the resolution dated 18.08.2018 passed by the Municipal Corporation,

Allahabad whereby it was resolved to forward a proposal to the State

Government for change of the name of Allahabad to Prayagraj.

4.In the PIL petitions, reference has been made to a document

stated to be the Cabinet Note with regard to the decision taken to

change the name of District Allahabad to District Prayagraj, which

reads as follows:-

"tuin bykgkckn dk uke ifjofrZr dj tuin *iz;kxjkt* fd, tkus

dk fu.kZ;

vk;qDr ,oa lfpo] jktLo ifj"kn] m0 iz0 ds i= fnukad 15-10-2018

esa voxr djk;k x;k gS fd bykgkckn dh turk ,d yEcs le; ls

bykgkckn ds LFkku ij tuin ,oa uxj dk uke **iz;kx** ;k **iz;kxjkt**

djus dh ekax fujUrj dj jgh gSA

mudh bl ekax ds vkSfpR; fu/kkZj.k ds dze esa jktLo ifj"kn }kjk

mYys[k fd;k x;k gS fd izkphu xzUFkksaa esa gekjs ns'k esa dqy 14 iz;kx LFky

of.kZr gSa] buesa iz;kx ¼bykgkckn½ ds vfrfjDr fdlh vU; LFky dk uke

ifjofrZr ugha gqvk gS] tcfd bl uxj dks lHkh iz;kxksa dk jktk vFkkZr

iz;kxjkt dgk tkrk gSA tuin ,oa uxj dk uke **iz;kx** ls bykgkckn

ifjofrZr gksus ds dkj.k jk"Vªh; ,oa vUrjkZ"Vªh; Lrj ij ,d Hkze dh fLFkfr

ges'kk mRiUu jgh gS] ftlds fuokj.k ds fy, lEiw.kZ laLd`fr;ksa dk izfrfuf/kRo

djus djus okys **iz;kx** dk uke bls **iz;kx** vFkok **iz;kxjkt** ds :i esa

okil feyuk rdZiw.kZ U;k;laxr izrhr gksrk gSA

tuin bykgkckn ,oa uxj bykgkckn dk uke **iz;kxjkt** fd;s tkus

ls tgka ,d vksj jk"Vªh; ,oa vUrjkZ"Vªh; Lrj ij Hkkjrh; laLd`fr ds

izpkj&izlkj dks cy feysxk rFkk /kkfeZd i;ZVu dks c<+kok feysxk] ogha nwljh

1the Code, 2006

vksj bldh oSfnd ,oa ikSjkf.kd igpku Hkh v{kq..k jg ldsxhA

mDr ds n`f"Vxr jktLo ifj"kn }kjk miyC/k djk;h x;h laLrqfr ds

vk/kkj ij tuin bykgkckn dk uke ifjofrZr dj tuin **iz;kxjkt** fd;k

tkuk izLrkfor gSA mDr ds laca/k esa foRr ,oa U;k; foHkkx }kjk vukifRr

O;Dr dh x;h gSA"

5.The notification dated 18.10.2018 issued by the State

Government whereby in exercise of powers under sub-section (2) of

Section 6 of the Code, 2006 the name of the existing district of

Allahabad has been altered as district of Prayagraj, is also on record,

and the same is being reproduced below:

"Notification

No.1574/1-5-2018-72/2017-Rev-5

Lucknow, dated 18 October, 2018

In exercise of powers under sub-section (2) of section 6 of the

Uttar Pradesh Revenue Code, 2006 (U.P. Act No.8 of 2012) the

Governor is pleased to alter the name of the existing district of

Allahabad as the district of Prayagraj.

2-The Governor is further pleased to direct that nothing in this

notification shall affect any legal proceeding already commenced or

pending in any court of law.

By order,

(SURESH CHANDRA)

Pramukh sachiv."

6.Further, the consequential office memo dated 20.10.2018 issued

by the District Magistrate, Prayagraj has also been placed on record

and the same reads as follows:-

"dk;kZy; ftykf/kdkjh] iz;kxjkt

i=kad 1000@Mh,lVhvks@vf/klwpuk&iz;kxjkt@2018&19 fnukad vDVwcj 20] 2018

dk;kZy;&Kki

m0iz0 'kklu ds jktLo vuqHkkx&5 vf/klwpuk la0

1574@1&5&2018&72@2017 fnukad 18-10-2018 }kjk lwfpr fd;k x;k gS fd ek0

jkT;iky egksn; }kjk m0 iz0 jktLo lafgrk] 2006 ¼mRrj izns'k vf/kfu;e la0&8 lu~

2012½ dh /kkjk 6 dh mi/kkjk 2 ds v/khu 'kfDr;ksa dk iz;ksx djds fo|eku ftyk

bykgkckn dk uke ftyk iz;kxjkt ds :i esa ifjofrZr dj fn;k x;k gSA lkFk gh ;g

Hkh funsf'kr fd;k x;k gS fd vf/klwpuk dh fdlh ckr dk izHkko fdlh fof/k U;k;ky;

esa igys ls izkjEHk dh x;h ;k fopkjk/khu fdlh fof/kd dk;Zokgh ij ugha iM+sxkA

mDr ds dze esa fo|eku ftyk bykgkckn ds leLr dk;kZy;ksa ds lHkh

fdz;kdykiksa esa ftyk bykgkckn ds LFkku ij ftyk iz;kxjkt iz;ksx fd;s tkus ds

funsZ'k fuxZr fd;s tkrs gSaA ;g vkns'k rRdky izHkko ls ykxw gksxkA

¼lqgkl ,y- okbZ-½

ftykf/kdkjh]

iz;kxjkt"

7.Before proceeding to appreciate the rival contentions of the

parties, it would be appropriate to refer to the relevant statutory

provisions on the subject matter of the controversy involved in the

present case.

8.The Code, 2006 (UP Act No.8 of 2012) was enacted to

consolidate and amend the law relating to land tenures and land

revenue in the State of UP and to provide for matters connected

therewith and incidental thereto. Chapter II of the Code, 2006 deals

with revenue divisions, and Section 5 provides for the division of the

State into revenue areas comprising divisions which may consist of

two or more districts and each district may consist of two or more

tahsils and each tahsil may consist of one or more parganas and each

pargana may consist of two or more villages. Section 6 provides for

constitution of revenue areas, and in terms thereof the State

Government may by notification specify: (i) the districts which

constitute a division; (ii) the tahsils which constitute a district; and (iii)

the villages which constitute a tahsil. Sub-section (2) of Section 6

provides that the State Government may, by notification, alter the

limits of any revenue area referred to in sub-section (1) by

amalgamation, readjustment, division or in any manner whatsoever, or

abolish any such revenue area and may name and alter the name of any

such revenue area. In terms of the proviso to sub-section (2) before

passing any order under this sub-section on any proposal to alter the

limits of any revenue area, the State Government is enjoined to

publish, in the prescribed manner, such proposals for inviting

objections, and is required to take into consideration any objection to

such proposals.

9.For ease of reference, Sections 5 and 6 of the Code, 2006 are

being extracted below:-

"5. Division of State into revenue areas.—For the purposes of this

Code, the State shall be divided into revenue areas comprising of

divisions which may consist of two or more districts, and each

district may consist of two or more Tahsils, and each Tahsil may

consist of one or more parganas, and each pargana may consist of

two or more villages.

6. Constitution of revenue areas.— (1) The State Government may,

by notification, specify—

(i) the districts which constitute a division;

(ii) the tahsils which constitute a district;

(iii) the villages which constitute a tahsil.

(2) The State Government may, by notification, alter the limits of any

revenue area referred to in sub-section (1) by amalgamation, re-

adjustment, division or in any other manner whatsoever, or abolish

any such revenue area and may name and alter the name of any such

revenue area, and in any case where any area is renamed, then all

references in any law or instrument or other document to the area

under its original name shall be deemed to be references to the areas

as renamed unless expressly provided otherwise:

Provided that before passing any order under this sub-section on any

proposal to alter the limits of any revenue area, the State

Government shall publish, in the prescribed manner, such proposals

for inviting objections, and shall take into consideration any

objection to such proposals.

(3) The Collector may, by an order, published in the prescribed

manner, arrange the villages in a tahsil into Lekhpal Circles and the

Lekhpal Circles into Revenue Inspector Circles and specify also the

headquarters of each Revenue Inspector within the Circle.

(4) The divisions, districts, tahsils, parganas, Revenue Inspector

circles, Lekhpal circles and villages, as existing at the

commencement of this Code shall, until altered under the preceding

sub-sections, be deemed to be the revenue areas specified under this

section."

10.The Code, 2006 in terms of Section 230 thereof has repealed

certain enactments of general application, and, in particular, the United

Provinces Land Revenue Act, 1901. The UP Land Revenue Act, 1901

(UP Act No.3 of 1901) had been enacted to consolidate and amend the

law relating to land revenue and the jurisdiction of Revenue Officers in

Uttar Pradesh. Section 11 of the Act, 1901 was with regard to the

power to create, alter and abolish divisions, districts, tahsils and sub-

divisions, and for ease of reference the same is being extracted below:

"11. Power to create, alter and abolish divisions, districts, tahsils

and sub-divisions.—(1) The State Government may create new or

abolish existing divisions or districts.

(2) The State Government may alter the limits of any division,

district, or tahsil and may create new or abolish existing tahsil, and

may divide any district into sub-divisions, and may alter the limits of

sub-divisions.

2the Act, 1901

(3) Subject to the orders of the State Government under sub-section

(2), all tahsils shall be deemed to be sub-divisions of districts."

11.Section 233 of the Code, 2006 empowers the State Government

to make rules for carrying out the purpose of the Code, and in terms

thereof the UP Revenue Code Rules, 2016

were notified and the same

came into force w.e.f. 10.02.2016. Chapter II of the Rules, 2016 deals

with the subject matter of revenue divisions. In terms of Rule 3, every

proposal for altering the limits of any revenue area under Section 6(2),

including the abolition or creation of any new area is required to be

based on administrative efficiency and public interest. Rule 4 provides

that every proposal to alter the limits of any such area shall be

published in RC Form I. In terms of Rule 5 the said notice is to be

published in the official gazette; in two daily newspapers of wide

circulation in locality of such area of which one shall be in the Hindi

language; and shall be uploaded on the website of the Board of

Revenue, UP. For ready reference, Rules 3, 4, 5 and 6 are being

extracted below:-

“3. Alteration in the limits of Revenue Area [Section 6(2)].—Every

proposal for altering the limits of any revenue area under section

6(2), including the abolition or creation of any new area should be

based on administrative efficiency and public interest.

4. Format of public notice [Section 6(2)].—Every proposal to alter

the limits of any such revenue area shall be published in R.C. Form I.

5. Publication of notice [Section 6(2)].—The above notice shall be

published—

(a) in two daily news-papers of wide circulation in locality of such

area of which one shall be in the Hindi language; and

(b) shall be uploaded on the website of the Board.

6. Consideration of objection by Committee [Section 6(2)].—(1) The

objections received under this Chapter shall be considered by a

Committee consisting of the following members—

(a) Chairman, Board of Revenue—Chairman

(b) Commissioner, Lucknow Division— Member

being affected—Member

(d) Secretary, Board of Revenue—Member-Secretary.

(2) The Committee shall, after considering the objections, if any,

submit the report to the Board of Revenue which shall, after

considering the report submitted by the Committee and the

objections, if any, from the public, submit the report alongwith its

3the Rules, 2016

comments to the State Government for the appropriate decision. The

State Government shall take the decision on the report submitted by

the Board.”

12.The principal ground of challenge sought to be raised by the

petitioners is that the notification dated 18.10.2018 changing the name

of the district, is not in accordance with the scheme as provided under

the Code, 2006 and neither there was any reason relating to

administrative efficiency for taking the said decision nor can the same

be said to be in public interest.

13.It is contended that the notification impugned is in violation of

provisions contained under Section 6 of the Code, 2006, and also the

procedure prescribed for the purpose under the Rules, 2016, and

particularly that Rules 3, 4 and 5 have not been followed.

14.It has been contended that in view of the proviso to sub-section

(2), before passing any order under the said sub-section, the State

Government was required to publish in the prescribed manner such

proposal for inviting objections and was required to take into

consideration any objections to such proposal. Further, relying upon

Rules 3, 4 and 5, it is sought to be argued that the proposal under

Section 6(2) should have been based on administrative efficiency and

public interest, and that the same was required to be published in the

prescribed RC Form I, and also that the notice thereof was required to

be published in the official gazette and in two daily newspapers of

wide circulation and was also required to be uploaded on the website

of the Board of Revenue, and further that the objections received were

required to be considered by a Committee constituted under Rule 6(1)

and thereafter only on the basis of the report submitted by the

Committee along with its comments the State Government could have

taken a decision.

15.Placing reliance on certain extracts from the Uttar Pradesh

District Gazetteer, relating to Allahabad, published by the State

Government in the year 1986, it has been asserted that while

submitting the proposal for change of name the historical background

of Allahabad as reflected from the District Gazetteer, has been ignored.

16.Relying upon Article 51-A under Part IV-A on the subject of the

fundamental duties in the Constitution, and in particular, clause (e) and

clause (f) thereof whereunder it is enjoined upon every citizen of India

the duty to promote harmony and the spirit of common brotherhood

amongst all the people of India transcending religious, linguistic and

regional or sectional diversities, and also the duty to value and

preserve the rich heritage of our composite culture, the petitioners have

sought to contend that the notification under challenge, is contrary to

the secular ethos of our Constitution, and runs contrary to the spirit of

our composite culture.

17.The petitioners have also sought to draw attention to a

communication dated 27.05.1981 issued by Ministry of Home Affairs,

Government of India on the subject of change in names of districts and

talukas/tahsils wherein drawing reference to the Ministry's letter dated

11.09.1953, it was stated that in the case of proposed change in the

name of districts/talukas/tahsils, the same procedure as was being

adopted for affecting change in the name of villages, towns, railway

stations etc. may invariably be adopted, i.e. all such proposals should

be referred to the Government of India (Ministry of Home Affairs) for

prior concurrence before any change was made or announced, and the

instructions laid down in the letter dated 11.09.1953 may be kept in

view before sending any such proposal.

18.It is argued that the impugned notification runs contrary to the

specific directions issued by the Central Government vide its

communications dated 27.05.1981 and 11.09.1953. Further, it has been

contended that the entire action has been made in extreme and undue

haste and is based on irrelevant and extraneous considerations. The

State Reorganisation Act, 1956

and also UP Reorganisation Act, 2000

have been referred to contend that in terms of the aforementioned Acts,

the State Government is not empowered to rename the

4the Act, 1956

5the Act, 2000

districts/divisions.

19.Per contra, Sri Manish Goyal, learned Additional Advocate

General has supported the action of the State Government in issuing

the notification dated 18.10.2018 by submitting that the State

Government under Section 6 of the Code, 2006 is fully empowered to

name or alter the name of any revenue area namely the division,

district, tahsil, pargana or village, and the action of the State

Government suffers from no illegality. The learned Additional

Advocate General also produced the relevant records in order to

support his contention that there was due application of mind by the

State Government before exercising its powers under Section 6 of the

Code, 2006 for altering the name of the district from Allahabad to

Prayagraj.

20.We have heard the learned counsel for the parties and perused

the material placed before us.

21.The Code, 2006 was enacted to consolidate and amend the law

relating to land tenures and land revenue in the State of UP, and also to

provide for matters connected therewith and incidental thereto. The

Statement of Objects and Reasons of the enactment clearly states that

the Revenue Code seeks to consolidate with modification the relevant

provisions of the various enactments relating to revenue law which

were in force in the State of UP, relating to land tenures and land

revenue. The Statement of Objects and Reasons of the Code, 2006

reads as follows:-

“Prefatory Note—Statement of Objects and Reasons.—At present

as many as 39 Acts relating to revenue law are enforced in the State

of Uttar Pradesh. Out of these Acts, Uttar Pradesh Zamindari

Abolition and Land Reforms Act, 1950 and U.P. Land Revenue Act,

1901 are the important Acts. Several enactments were enacted during

the British Regime. Most of the provisions of those have become

absolete. Some of the provisions of those enactments are inconsistent

with each other. On account of different provisions in different

enactments relating to revenue law, the revenue litigations have

considerably increased. Consequently the revenue cases are pending

for disposal for a very long period. Under these circumstances it has

become necessary to consolidate with modifications of relevant

provisions of all these enactments into single enactment. It has,

therefore, been decided to provide for consolidating and amending

the laws relating to land-tenures and land revenue in the State and

for matters connected therewith and incidental thereto. The U.P.

Revenue Code Bill, 2006 has, therefore, been prepared to fulfil the

above mentioned requirements.”

22.Chapter II of the Code, 2006 relates to the revenue divisions,

and Section 5 provides for division of the State into revenue areas, and

in terms thereof the State is to be divided into revenue areas

comprising divisions which may consist of two or more districts, each

district may consist of two or more tahsils, each tahsil may consist of

one or more parganas and each pargana may consist of two or more

villages. Further, Section 6 empowers the State Government to specify,

by notification, the districts which constitute a division, the tahsils

which constitute a district and the villages which constitute a tahsil.

Sub-section (2) provides that the State Government may, by

notification, alter the limits of any revenue area referred to in sub-

section (1) by amalgamation, readjustment, division or in any other

manner whatsoever, or abolish any such revenue area. It also

empowers the State Government to name and alter the name of any

such revenue area.

23.A conjoint reading of the provisions contained under Sections 5

and 6 of the Code, 2006 would go to show that the State Government

is fully empowered to specify the various revenue areas, and may by

notification alter the limits of the revenue areas including altering the

name of any revenue area.

24.The term "district" has been referred to as a revenue area under

Section 5 of the Code, 2006, and in terms thereof two or more districts

may form a division, and a district may consist of two or more tahsils,

each tahsil may consist of one or more parganas, each pargana may

consist of two or more villages. Section 11 of the Act, 1901 (now

repealed) in terms of which the State Government was empowered to

create, alter and abolish the divisions, districts, tahsils and sub-

divisions, also contemplated the "district" as a revenue division.

25.The term "district" has thus been referred to as a revenue area

both under the Code, 2006 and also under the Act, 1901.

26.We may also refer to the definition of the term "district" as

mentioned in the Black's Law Dictionary (Ninth Edition) whereunder

the term “district” is defined as "a territorial area" into which a

country, state, county, municipality or other political sub-division is

divided for judicial, political, electoral or administrative purposes.

27.It may also be relevant to notice the constitutional provisions in

this regard contained under Part IX and Part IX-A of the Constitution

inserted by the Constitution (Seventy-third Amendment) Act, 1992

and the Constitution (Seventy-fourth Amendment) Act, 1992

respectively. The definition clause, under Article 243 of the

Constitution runs as follows:-

"243. Definitions.—In this Part, unless the context otherwise requires,—

(a) “district” means a district in a State;

(b) “Gram Sabha” means a body consisting of persons registered

in the electoral rolls relating to a village comprised within the area

of Panchayat at the village level;

district levels specified by the Governor of a State by public

notification to be the intermediate level for the purposes of this

Part;

(d) “Panchayat” means an institution (by whatever name called) of

self-government constituted under Article 243-B, for the rural

areas;

(e) “Panchayat area” means the territorial area of a Panchayat;

(f) “population” means the population as ascertained at the last

preceding census of which the relevant figures have been published;

(g) “village” means a village specified by the Governor by public

notification to be a village for the purposes of this Part and

includes a group of villages so specified."

28.We may also refer to Article 243-P(b) under Part IX-A, which

runs as follows:-

"243-P. Definitions.—In this Part, unless the context otherwise

requires,—

x x x x x

(b) “district” means a district in a State;"

29.Under Article 243(a) the term “district” is defined as, "district

means a district in a State". Article 243(c) defines "intermediate level”

as a level between the village and district levels specified by the

Governor of a State by public notification to be the intermediate level

for the purposes of this Part. Further, under Article 243(g), "village"

has been defined as a village specified by the Governor by public

notification to be a village for the purposes of this Part and includes a

group of villages so specified.

30.The aforementioned provisions indicate that a public notification

to be issued by the Governor of the State is required both for creation

of "intermediate level" and "village" under Part IX, and also for

creation of a “metropolitan area” and “municipal area” under Part IX-

A; however, in case of a district both Article 243(a) and Article 243-

P(b) define the “district” as meaning a district in a State.

31.Prior to coming into force of the Code, 2006 the power to create,

alter and abolish divisions, districts, tahsils and sub-divisions was

provided for under Section 11 of the Act, 1901, and as such we may

gainfully refer to the law laid down with regard to the scope of powers

under Section 11 of the Act, 1901.

32.A notification issued by the State Government exercising

powers under Section 11 of the Act, 1901 creating a new district, was

challenged in a public interest litigation, in the case of Ram Milan

Shukla & Anr. Vs. State of UP & Ors.

whereunder it was held that

though creation of a new district was an administrative act yet such

administrative powers must be exercised on relevant considerations

and not arbitrarily and the case was remanded for fresh consideration,

and the special leave petition filed thereafter was dismissed.

33.The question again came up for consideration before a

subsequent Division Bench of this Court in Brijendra Kumar Gupta

& Ors. Vs. State of UP & Ors.

wherein the decision in the case of

Ram Milan Shukla (supra) was held to be per incuriam, as it had not

61999 (35) ALR 364

72000 (1) AWC 750

considered an earlier Division Bench judgment in Samvidhan Bahali

Andolan Vs. Union of India

34.In the case of Samvidhan Bahali Andolan (supra), the

notifications creating six new districts were sought to be challenged

besides seeking a prayer that Section 11 of the Act, 1901 be declared

ultra vires. Repelling the challenge, the writ petition was dismissed

with the following observations:-

"7. It may be pointed out that the State Government is empowered to

appoint the Commissioner of certain divisions and by virtue of the

provisions of Section 12 of the Act appoint Collector of the District.

The Commissioner and the Collector are empowered to exercise all

powers and discharge all the duties conferred by the U. P. Land

Revenue Act and all other Acts which they are empowered to exercise

under those other enactment.

8. In view of the clear provision existing it is not known on what

basis the creation of district can be stopped. The argument that the

word 'district' has been defined in Article 243 and in this connection

reference to the said Article and other Articles such as 254, 372 and

375 appear to be wholly misconceived. The territory of a State is

already fixed under the constitutional provision. Internal

arrangement of the State is obviously a matter which is to be decided

by the State Government. Creation of the revenue district, therefore,

lies within the exclusive power of the State Government. All other

arguments advanced in this regard are, therefore, rejected.

9. It may be mentioned here that Shri Mrityunjaya emphasised that

neither there was any need nor any justification for creating this new

district within about two or three months of assuming the office of

Chief Ministership by opposite party No. 3. He wanted to argue that

there may not be any proposal for creation of the new district, there

may not be any budget for new district and there may not be any

method by which immediate law and order can be looked after in the

newly created district.

10. It may be pointed out that all the three arguments are without any

basis whatsoever. They have been mentioned only to be rejected. It

may be noted that action of the Government creating district is

obviously based on the satisfaction of the State Government. The

Chief Minister has to advise the Governor who passes the necessary

orders on behalf of the State Government Section 11 of the U. P. Land

Revenue Act, therefore, permits such executive action. Political

motive or imputation which was sought to be argued can and should

not be entertained concerning creation of a district on the basis of

the administrative exigency. No other ground was argued."

35.Another challenge was raised to a notification issued under

Section 11 of the Act, 1901 directing creation of a new district, which

8AIR 1998 All 210

was disposed of by the High Court with reference to the order passed

in the case of Ram Milan Shukla (supra). The matter was taken to the

Supreme Court in State of Uttar Pradesh & Ors. Vs. Chaudhari Ran

Beer Singh & Anr.

and it was held as follows:-

“12. Cabinet's decision was taken nearly eight years back and

appears to be operative. That being so there is no scope for directing

reconsideration as was done in Ram Milan's case, though learned

counsel for the respondents prayed that such a direction should be

given. As rightly contended by learned counsel for the State, in

matters of policy decisions, the scope of interference is extremely

limited. The policy decision must be left to the Government as it

alone can decide which policy should be adopted after considering

all relevant aspects from different angles. In matter of policy

decisions or exercise of discretion by the Government so long as the

infringement of fundamental right is not shown, Courts will have no

occasion to interfere and the Court will not and should not substitute

its own judgment for the judgment of the executive in such matters. In

assessing the propriety of a decision of the Government the Court

cannot interfere even if a second view is possible from that of the

Government."

36.The scope of powers under Section 11 of the Act, 1901 with

regard to creation/abolition of districts/divisions again came up for

consideration before this Court in Rajesh Kumar Sharma & Ors. Vs.

State of UP and Anr.

, whereunder it was held that the power under

the said section was legislative in character, and principles of natural

justice were not attracted, and that there was no requirement to afford

opportunity to residents of the districts while taking a decision to

create/abolish districts and divisions in exercise of power under

Section 11 of the Act, 1901. The concept of the term “district” was

considered in the following terms:-

“41. District is a geographical area carved out as an administrative

unit for performance of Governmental duties and functions Black's

Law Dictionary Sixth Edition defines the 'district' in following words

"one of the territorial areas into which an entire State or Country, County,

Municipality or other political sub-division is divided for judicial,

political, electoral or administrative purposes".

42. Concept of 'district' was very much in existence prior to

enactment of the Act, 1901. The preamble of the Act clearly provides

that this Act has been enacted to consolidate and amend the law

relating to 'land revenue' and 'jurisdiction of revenue of officers' in

State of Uttar Pradesh. Section 4 of the Act is a definition clause in

which definitions of 'revenue court' 'revenue officers' 'revenue free'

92008 (3) ALJ 570 (SC)

102004 (3) AWC 2234

and all other definitions have been indicated in Section 4 and its sub-

sections. Section 4 (7) defines 'revenue' which means 'land revenue'.

Section 4 (8) defines 'revenue court'. Section 4 (9) defines 'revenue

officer'. Section 4 (10) defines 'revenue free'. There are other

definitions incorporated in Section 4 of the Act. We have also perused

the entire provisions of the Act including the definition clause, but we

are unable to find any indication in the Act to define 'district'

excepting that Section 11 of the Act is conferred with the power to

create, alter or abolish the divisions, districts, tehsils and sub-

divisions. Since we are concerned in this case with Section 11 of the

Act, by which the notifications were, however, issued for abolishing

nine districts and four divisions, we like to refer Section 11 of the Act,

which is quoted below :

"11. Power to create, alter and abolish divisions, districts, tehsil and sub-

divisions.—(1) The (State Government) may create new or abolish existing

divisions or districts.

(2) The (State Government) may alter the limits of any division, district, or

tehsil and may create new or abolish existing tehsil, and may divide any

district into sub-divisions, and may alter the limits of sub-divisions.

(3) Subject to the orders of the (State Government) under sub-section (2),

all tehsils shall be deemed to be sub-divisions of districts."

43. From a plain reading of Section 11 of the Act, we have no

hesitation in our mind to say that it is an exclusive power of the State

Government to create new districts or abolish existing 'divisions' or

'districts'.

44. Keeping in mind that the 'district' has not been defined in the Act,

the user of the word 'district' has been made by the Legislature under

Section 11 of the Act.

x x x x x

54. From the aforesaid principles as laid down by the Supreme

Court, it is, therefore, clear that the word 'district' has definite

meaning and concept of district was well known to the Legislature at

the time of 73rd and 74th amendment in the Constitution and the

district as existing at that time was adopted for the purposes of Part

IX and Part IX-A. As already held that neither Part IX and Part IX-A

contemplate creation of district for purposes of Part IX and Part IX-

A nor the concept of district in Part IX and Part IX-A was different

from the normal meaning of 'district' as understood by the

Legislature. It is also difficult to accept the submission of Mr. Jain,

learned senior counsel appearing for the writ petitioner that the

Constitution creates a different concept of district as that of existing.

From the scheme of Part IX-A of the Constitution, as noted above, it

is clear that municipality, i.e., a Nagar Panchayat, a Municipal

Council and a Municipal Corporation do not carry with it any

concept of municipal district. Article 243-P(c) defines "Metropolitan

area" which means an area having population of ten lacs or more,

comprised in one or more districts and consisting of two or more

Municipalities or panchayats or other contiguous areas, specified by

the Governor by public notification.

x x x x x

56. Various Statutes in which word 'district' has been used, has been

used in accordance with the concept of 'district' as understood by

common parlance, i.e., district created in a State. The provisions of

Section 2 (26) of the U. P. Kshetra Panchayat and Zila Panchayat

Adhiniyam, 1961, clarifies that 'district' means revenue district under

the U. P. Land Revenue Act, 1901. Section 2 (26) of the U. P. Kshetra

Panchayat and Zila Panchayat Adhiniyam, 1961, runs as follows :

"2 (26) "division", "district" and "tehsil" shall have the same meanings as

they have in the United Provinces Land Revenue Act, 1901;"

57. This view of ours is fully supported by the observations of the

Apex Court in State of U. P. and Ors. v. Pradhan Sangh Kshetra

Samiti and Ors., 1995 (2) AWC 1316 (SC) : 1995 Supp (2) SCC 305,

in which the Supreme Court while dealing with the provisions of

Article 243(e) of Part IX of the Constitution made the following

observations in paragraph 11, which is as under:

"11, The panchayats are to be constituted at the village, intermediate and

district levels and the "panchayat area" as defined by Article 243(e) means

the territorial area of the panchayat whether at the village, intermediate or

district levels. What is necessary to remember further is that while as per

Article 243(c) "Intermediate Level" is a level between the village and

district levels, as specified by the Governor, the 'district' as per Article

243(a) means a district in a State the boundaries of which may be changed

by the State Government. The district is not required to be specified by the

Governor whereas village and intermediate levels have to be specified by

him for the purposes of the said Part of the Constitution.”

37.The nature of scope of powers under Section 11 of the Act, 1901

again came up for consideration before a Full Bench of this Court in

Brij Kishore Verma Vs. State of UP & Ors.

and this Court after

referring to the provisions as contained under Section 11 of the Act,

1901 and also the relevant entries in List-II of Schedule-VII of the

Constitution came to the conclusion that the State Government had

been conferred power to alter the limits of revenue areas, districts and

create new area or abolish the districts. The observations made in the

judgment in this regard are as follows:-

“41. In view of Article 372 of the Constitution, the Act continues to

deal with the matter regulating the land laws in the State of U.P.

However, certain provisions were omitted and substituted by the A.O.

1950 and in Section 11 of the Act, the word, 'State Government' was

added. The power has been conferred by the amended Section 11 of

the Act on the State Government to alter the limits or any division,

district or tahsil and may create new or abolish existing tahsil.

Section 11 of the Act is reproduced as under:-

"11. Power to create, alter and abolish divisions, districts, tahsil and sub-

divisions.—(1) The State Government may create new or abolish existing

divisions or districts.

(2) The 'State Government' may alter the limits or any division, district or

tahsil and may create new or abolish existing tahsil, and may divide any

112012 (9) ADJ 385 (LB) (FB)

district into sub -divisions, and may alter the limits of sub-divisions.

(3) Subject to the orders of the 'State Government' under sub-section (2),

all tahsils shall be deemed to be sub-divisions of districts."

42. Section 12 of the Act empowers the State Government to appoint

Divisional Commissioner in each division who shall exercise power

and discharge duty conferred upon him under the Act or any other

law for the time being in force. Under Section 14 of the Act, State

Government has been conferred power to appoint collector in each

district who shall exercise power and discharge duty conferred under

the Act or any other law for the time being in force.

Section 221 of the U.P. Land Revenue Act provides that while

conferring power under the Act, State Government may empower

persons by name or classes of officials generally by their official

titles, to quote Section 221 of the U.P. Land Revenue Act as under:-

"221. Conferring of powers—In conferring powers under this Act, the State

Government may empower persons by name, or classes of officials,

generally, by their official titles, and may vary or cancel any such order."

The power conferred by Section 221 of the Act is analogous to power

conferred by Section 14 of the U.P. General Clauses Act 1904.

43. Entry 5, 18, 45, 46, and 47 of List-II of Schedule-VII of the

Constitution of India, empowers the State Government to legislate

the law with regard to local Government and local authorities,

village administration, land and land revenue including assessment

and collection of revenue, taxes on agricultural income etc. For

convenience, they are reproduced as under:

"5. Local government, that is to say, the constitution and powers of

municipal corporations, improvement trusts, district boards, mining

settlement authorities and other local authorities for the purpose of local

self-government or village administration.

18. Land, that is to say, rights in or over land, land tenures including the

relation of landlord and tenant, and the collection of rents; transfer and

alienation of agricultural land; land improvement and agricultural loans;

colonization.

45. Land revenue, including the assessment and collection of revenue, the

maintenance of land records, survey for revenue purposes and records of

rights, and alienation of revenues.

46. Taxes on agricultural income.

47.Duties in respect of succession to agricultural land."

38.On the question as to whether the powers under Section 11 are

legislative or administrative in nature, it is pertinent to refer to the

following observations made in the judgment:-

“58. A combined reading of Articles 154, 162, 166 of the Constitution

and Section 11 of the U.P. Land Revenue Act, does not make a

decision with regard to creation of district, legislative in nature.

Conferment of executive power on the State Government under

Section 11 of the Act by the State Legislature, is itself indicative of

the fact that the power exercised by the State Government for

creation of district shall be administrative in nature, may have

legislative trapping. It is residual power exercised by the State

Government, in terms of Government order of 1992.

x x x x x

60. Under Section 11 of the Act, power with regard to alteration of

limits oF any division, district or tahsil has been conferred on the

State Government and not on the State Legislature. Chapter-III of the

Constitution deals with the State Legislatures. The State Legislatures

are constituted through electoral body and discharges its

constitutional obligations in the manner prescribed by the

Constitution.

61. Section 11 of the Act does not require a decision by the State

Legislature but it confers power on the State Government. It is well

settled law that executive power of the State is co-extensive with that

of the State Legislature. The State may make rules regulating any

matter within the legislative competence of the State Legislature

without prior legislative authority except where a law is required. It

is further trite law that where statutory rules govern the field, the

executive instructions shall cease to apply and they cannot be in

derogation of statutory rules, vide AIR 1971 SC 2560: State Of

Andhra Pradesh & Ors vs Lavu Narendranath & Ors.; AIR 1971 SC

2045 : State of Madhya Pradesh Vs. Jain.; AIR 2006 SC 2138, K.P.

Sudhakaran. Vs. State of Kerala; AIR 2008 SC 3: Union of India Vs.

Central Electoral Mechanical Engineering Group A (Direct Recruit)

Association), AIR 2008 SC 3.

x x x x x

63. Hon'ble Supreme Court has defined the word, 'State Government'

and held that it means the authority or person authorised at the

relevant date to exercise executive power of the Government in the

State and after commencement of Constitution it means the Governor

of the State, vide AIR 1964 SC 703: State of U.P. Vs. Mohammad

Naim, AIR 1964 SC 703.

64. In the case reported in AIR 1984 SC 684 :R.S. Nayak. Vs. A.R.

Antule:, Hon'ble Supreme Court held that expression "Government"

requires to be interpreted in the context used in a particular statute.

While interpreting Section 21 of Indian Penal Code, Hon'ble

Supreme Court held that expression "State" denotes the the executive

and not the Legislature. In earlier judgment also reported in AIR

1963 SC 1323: State Of Rajasthan And Anr Vs Sripal Jain, same

view has been expressed.

65. In (2006) 2 SCC 682: Shrikant Vs. Vasantrao, while defining the

word, State Government, it is held that it is different from local or

other authorities under the control of the State Government. Section

11 of the Act (supra) refers to State Government which means the

Government of the State exercising power under Section 11 read with

166 of the Constitution. In any case, it does not refer to State

Legislature provided under Chapter-VII of the Constitution.

66. In view of the above, the power exercised by the State

Government under Section 11 of the Act shall be statutory but

administrative in nature having legislative trapping. The power

conferred in pursuance of the provisions conferred under Section 11

of the Act is to be exercised in accordance with Rules of Business

notified under Article 166 of the Constitution. In view of Section 14

of the General Clauses Act and the Government order of 1992

(supra) decision under Section 11 of the Act may not be purely

legislative.”

39.The aforementioned discussion clearly shows that it has been

consistently held that the State Government was fully empowered to

alter the limits of any division, district or tahsil or create any new or

abolish existing tahsil or to divide any district into sub-divisions and to

alter the limits of sub-divisions, in exercise of powers under Section 11

of the Act, 1901.

40.Under the Code, 2006, which has been enacted together with

repeal of the Act, 1901, sub-section (2) of Section 6 empowers the

State Government to alter the limits of any revenue area, division,

district, tahsil by amalgamation, readjustment, division or in any other

manner whatsoever or to abolish any such revenue area, and also to

name and alter the name of any such revenue area with a stipulation

that in case where any area is renamed, then all references in any law

or instrument or other document to the area under its original name

shall be deemed to be references to the areas as renamed unless

expressly provided otherwise.

41.As regards, the contention raised on behalf of the petitioners that

in view of the proviso to sub-section (2) of Section 6, before passing

any order under the said sub-section the State Government was

required to publish in the prescribed manner such proposal for inviting

objections and was required to take into consideration any objections

to the said proposal, it may be noticed that in terms of the proviso the

requirement of publishing a proposal and inviting objections, is only in

respect of a proposal to alter the limits of any revenue area, and the

same is not required in the case of a proposal for naming or altering

the name of any revenue area.

42.A plain reading of the proviso to sub-section (2) of Section 6

indicates that the requirement of publication of a proposal in a

prescribed manner inviting objections and taking into consideration the

objections to such proposals, is only in the case of a proposal to alter

the limits of a revenue area. It is a well settled principle of statutory

interpretation that where the words of a statute are clear, plain or

unambiguous, the Courts are bound to give effect to that meaning. In

this regard, we may refer to the exposition of law as made in

Principles of Statutory Interpretation

by Justice G.P. Singh,

wherein it has been stated as follows:-

“When the words of a statute are clear, plain or unambiguous, i.e.,

they are reasonably susceptible to only one meaning, the courts are

bound to give effect to that meaning irrespective of consequences.

The rule stated by TINDAL, C.J. In Sussex Peerage case is in the

following form: “If the words of the statute are in themselves precise

and unambiguous, then no more can be necessary than to expound

those words in their natural and ordinary sense. The words

themselves do alone in such cases best declare the intent of the

lawgiver”. The rule is also stated in another form: 'When a language

is plain and unambiguous and admits of only one meaning no

question of construction of a statute arises, for the Act speaks for

itself'. The results of the construction are then not a matter for the

court, even though they may be strange or surprising, unreasonable

or unjust or oppressive. “Again and again”, said VISCOUNT

SIMONDS, L.C., “this Board has insisted that in construing enacted

words we are not concerned with the policy involved or with the

results, injurious or otherwise, which may follow from giving effect to

the language used”.”

43.The argument raised by the petitioners placing reliance on the

proviso to sub-section (2) of Section 6 is also liable to be rejected for

the reason that while construing a proviso as an internal aid to

construction, it has been consistently held that a proviso has no

repercussion on the interpretation of the enacting portion of the section

so as to exclude something by implication which is embraced by clear

words of the enactment. Moreover, it is legally well settled that the

proviso is normally to be construed in relation to the subject matter

covered by the said section as a proviso does not travel beyond the

provision to which it is a proviso.

44.The manner in which provisos are to be construed has been

explained in Maxwell on The Interpretation of Statutes

and it has

been stated as follows:-

12Principles of Statutory Interpretation (14

Edition) by Justice G.P. Singh

13Maxwell on The Interpretation of Statutes (12

Edition)

“.....a proviso is of necessity … limited in its operation to the ambit of

the section which it qualifies. And, so far as that section itself is

concerned, the proviso again receives a restricted construction:

where the section confers powers it would be contrary to the ordinary

operation of a proviso to give it an effect which would cut down those

powers beyond what compliance with the proviso renders

necessary.”

45.The function of a proviso as an internal aid to construction has

been considered in extenso in a recent judgment of the Supreme Court

in Delhi Metro Rail Corporation Ltd. Vs. Tarun Pal Singh & Ors.

the following terms:-

“8. Before coming to the construction of the proviso to Section 24,

we deem it appropriate to consider the Rules regarding construction

of proviso.

9. Craies on Statute Law, 7th Edn. referring to various decisions for

construction of provisos has observed:

9.1. “The effect of an excepting or qualifying proviso, according to the

ordinary rules of construction, is to except out of the preceding portion of

the enactment, or to qualify something enacted therein, which but for the

proviso would be within it; and such a proviso cannot be construed as

enlarging the scope of an enactment when it can be fairly and properly

construed without attributing to it that effect.”

9.2. “When one finds a proviso to a section”, said Lush, J. in Mullins v.

Treasurer of Surrey (1880) LR 5 QBD 170 at p. 173 (DC), “the natural

presumption is that, but for the proviso, the enacting part of the section

would have included the subject-matter of the proviso.”

9.3. “In West Derby Union v. Metropolitan Life Assurance Society, 1897

AC 647 (HL), Lord Watson said: (AC pp. 652-53)

‘… I am perfectly clear that if the language of the enacting part of

the statute does not contain the provisions which are said to occur

in it, you cannot derive these provisions by implication from a

proviso. When one regards the natural history and object of

provisos, and the manner in which they find their way into Acts of

Parliament, I think your Lordships would be adopting a very

dangerous and certainly unusual course if you were to import

legislation from a proviso wholesale into the body of the statute,

although I perfectly admit that there may be and are many cases in

which the terms of an intelligible proviso may throw considerable

light upon the ambiguous import of the statutory words.’

And Lord Herschell in the same case said: (West Derby Union v.

Metropolitan Life Assurance Society, 1897 AC 647 (HL), AC p. 655)

‘… I decline to read into any enactment words which are not to be

found there and which would alter its operative effect because of

provisions to be found in any proviso.’

though he admitted that a proviso may be a useful guide in the selection of

one or other of two possible constructions of words in the enactment or to

show the scope of the latter in a doubtful case.

In R. v. Dibdin 1910 AC 57 (CA), Moulton, L.J. said: (AC pp. 125-26)

14(2018) 14 SCC 161

‘The fallacy of the proposed method of interpretation is not far to

seek. It sins against the fundamental rule of construction that a

proviso must be considered with relation to the principal matter to

which it stands as a proviso. It treats it as if it were an independent

enacting clause instead of being dependent on the main enactment.

The courts, as, for instance, in Partington, ex p, (1844) 6 QB 649 at

p. 653 : 115 ER 244, Brockelbank, In re, ex p Dunn & Raeburn

(1889) LR 23 QBD 461 (CA) and Hill v. East and West India Dock

Co. (1884) LR 9 AC 448 (HL) have frequently pointed out this

fallacy, and have refused to be led astray by arguments such as

those which have been addressed to us, which depend solely on

taking words absolutely in their strict literal sense, disregarding the

fundamental consideration that they are appearing in the proviso.’

So where Section 65 in a group of sections from Section 62 onwards in a

private Act at the side of which was a note “Sewers — Sanitary

arrangements”, provided that:

‘nothing in the Act shall authorise the Corporation of Newcastle-

on-Tyne to commit a nuisance”, and the Improvement Act, 1885 by

Section 22 authorised the corporation to erect posts, rails, and

fences for the protection of passengers and traffic, it was argued

that this authority must be read subject to the proviso as to

nuisance; but the court held that the proviso affected only the group

of sections to which it was attached and was not a proviso to

Section 22. But sections, though framed as provisos upon preceding

sections, may exceptionally contain matter which is in substance a

fresh enactment, adding to and not merely qualifying what goes

before.’

10. In Nizam's Religious Endowment Trust v. CIT (AIR 1966 SC

1007), this Court has observed: (AIR p. 1010, para 7)

“7. As has been pointed out by Craies in his book on Statute Law, 6th Edn.

at p. 217:

‘The effect of an excepting or qualifying proviso, according to the

ordinary rules of construction, is to except out the preceding

portion of the enactment, or to qualify something enacted therein,

which but for the proviso would be within it.’

The proviso to clause (i) excepts the two classes of income subject to the

condition mentioned therein from the operation of the substantive clause. It

comes into operation only when the said income is applied to religious or

charitable purposes without the taxable territories. In that event, the

Central Board of Revenue, by general or special order, may direct that it

shall not be included in the total income. The proviso also throws light on

the construction of the substantive part of clause (i) as the exception can

be invoked only upon the application of the income to the said purposes

outside the taxable territories. The application of the income in praesenti

or in futuro for purposes in or outside the taxable territories, as the case

may be, is the necessary condition for invoking either the substantive part

of the clause or the proviso thereto.”

11. In Kedarnath Jute Mfg. Co. Ltd. v. CTO (AIR 1966 SC 12), this

Court has discussed the purpose of the proviso thus: (AIR p. 14, para

“8. Section 5(2)(a)(ii) of the Act in effect exempts a specified turnover of a

dealer from sales tax. The provision prescribing the exemption shall,

therefore, be strictly construed. The substantive clause gives the exemption

and the proviso qualifies the substantive clause. In effect, the proviso says

that part of the turnover of the selling dealer covered by the terms of sub-

clause (ii) will be exempted provided a declaration in the form prescribed

is furnished. To put it in other words, a dealer cannot get the exemption

unless he furnishes the declaration in the prescribed form. It is well settled

that ‘the effect of an excepting or qualifying proviso, according to the

ordinary rules of construction, is to except out of the 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-clause (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. Nor does Rule 27-A support

the contrary construction. The expression “on demand” only fixes the

point of time when the declaration forms are to be produced; otherwise, the

rule would be inconsistent with the section. Section 5(2)(a)(ii) says that the

declaration form is to be furnished by the dealer and Rule 27-A says that it

shall be furnished on demand, that is to say, it fixes the time when the form

is to be furnished. This reconciles the provisions of Rule 27-A with those of

Section 5(2)(a)(ii) of the Act, whereas the construction suggested by the

learned counsel introduces an incongruity which shall be avoided. Section

21-A on which reliance is placed has no bearing on the question to be

decided. It only empowers the Commissioner or any person appointed to

assist him under sub-section (1) of Section 3 to take evidence on oath, etc.

It can be invoked only in a case where the authority concerned is

empowered to take evidence in respect of any particular matter, but that

does not enable him to ignore a statutory condition to claim exemption.”

12. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai (AIR 1966

SC 459), the intendment of the proviso has been discussed thus: (AIR

p. 465, para 8)

“8. The proper function of a proviso is to except or qualify something

enacted in the substantive clause, which but for the proviso would be

within that clause. It may ordinarily be presumed in construing a proviso

that it was intended that the enacting part of the section would have

included the subject-matter of the proviso. But the question is one of

interpretation of the proviso and there is no rule that the proviso must

always be restricted to the ambit of the main enactment. Occasionally in a

statute, a proviso is unrelated to the subject-matter of the preceding

section, or contains matters extraneous to that section, and it may have

then to be interpreted as a substantive provision, dealing independently

with the matter specified therein, and not as qualifying the main or the

preceding section.”

13. In Shah Bhojraj Kuverji Oil Mills & Ginning Factory v. Subbash

Chandra Yograj Sinha (AIR 1961 SC 1596), this Court has discussed

the object of the proviso and how it is to be interpreted thus: (AIR p.

1600, para 9)

“9. The law with regard to provisos is well settled and well understood. As

a general rule, a proviso is added to an enactment to qualify or create an

exception to what is in the enactment, and ordinarily, a proviso is not

interpreted as stating a general rule. But, provisos are often added not as

exceptions or qualifications to the main enactment but as savings clauses,

in which cases they will not be construed as controlled by the section. The

proviso which has been added to Section 50 of the Act deals with the effect

of repeal. The substantive part of the section repealed two Acts which were

in force in the State of Bombay. If nothing more had been said, Section 7 of

the Bombay General Clauses Act, would have applied, and all pending

suits and proceedings would have continued under the old law as if the

repealing Act had not been passed. The effect of the proviso was to take the

matter out of Section 7 of the Bombay General Clauses Act and to provide

for a special saving. It cannot be used to decide whether Section 12 of the

Act is retrospective. It was observed by Wood, V.C., in Fitzgerald v.

Champneys (1861) 2 J&H 31 : 70 ER 958) that saving clauses are seldom

used to construe Acts. These clauses are introduced into Acts which repeal

others, to safeguard rights which, but for the savings, would be lost. The

proviso here saves pending suits and proceedings, and further enacts that

suits and proceedings then pending are to be transferred to the courts

designated in the Act and are to continue under the Act and any or all the

provisions of the Act are to apply to them. The learned Solicitor General

contends that the savings clause enacted by the proviso, even if treated as

substantive law, must be taken to apply only to suits and proceedings

pending at the time of the repeal which, but for the proviso, would be

governed by the Act repealed. According to the learned Attorney General,

the effect of the savings is much wider, and it applies to such cases as come

within the words of the proviso, whenever the Act is extended to new

areas.”

14. In S. Sundaram Pillai v. V.R. Pattabiraman (1985) 1 SCC 591,

this Court has elaborately considered various decisions with respect

to the proviso and has discussed the matter thus: (SCC pp. 607-11,

paras 29-44)

“29. Odgers in Construction of Deeds and Statutes (5th 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 pp. 294-95 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.

shall stand and be held a repeal of the section as the proviso speaks

the latter intention of the makers.

(d) Where the section is doubtful, a proviso may be used as a 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 construction placed upon a proviso which brings it into

general harmony with the terms of section should prevail.

(i) When a proviso is repugnant to the enacting part, the proviso

will not prevail over the absolute terms of a later Act directed to be

read as supplemental to the earlier one.

(j) A proviso may sometimes contain a substantive provision.

31. In Local Govt. Board v. South Stoneham Union 1909 AC 57 (HL), Lord

Macnaghten made the following observation: (AC p. 62)

‘… I think the proviso is a qualification of the preceding enactment

which is expressed in terms too general to be quite accurate.’

32. In Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai AIR 1966 SC

459] , it was held that the main object of a proviso is merely to qualify the

main enactment. In Madras and Southern Mahratta Railway Co. Ltd. v.

Bezwada Municipality [Madras and Southern Mahratta Railway Co. Ltd.

v. Bezwada Municipality, 1944 SCC OnLine PC 7 : (1943-44) 71 IA 113 :

AIR 1944 PC 71] , Lord Macmillan observed thus: (SCC OnLine PC)

‘… The proper function of a proviso is to except and deal with a

case which would otherwise fall within the general language of the

main enactment, and its effect is confined to that case.’

33. The above case was approved by this Court in CIT v. Indo-Mercantile

Bank Ltd. 1959 SC 713 : 1959 Supp (2) 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. Subbash Chandra Yograj Sinha AIR 1961 SC 1596, Hidayatullah, J., as

he then was, very aptly and succinctly indicated the parameters of a

proviso thus: (AIR p. 1600, para 9)

‘9. … As a general rule, a proviso is added to an enactment to

qualify or create an exception to what is in the enactment, and

ordinarily, a proviso is not interpreted as stating a general rule.’

34. In West Derby Union v. Metropolitan Life Assurance Society, 1897 AC

647 (HL), while guarding against the danger of interpretation of a proviso,

Lord Watson observed thus: (AC p. 653)

‘… a very dangerous and certainly unusual course if you were to

import legislation from a proviso wholesale into the body of the

statute.…’

35. A very apt description and extent of a proviso was given by Lord

Loreburn in Rhondda Urban District Council v. Taff Vale Railway Co.,

1909 AC 253 (HL), where it was pointed out that insertion of a proviso by

the draftsman is not always strictly adhered to its legitimate use and at

times a section worded as a proviso may wholly or partly be in substance a

fresh enactment adding to and not merely excepting something out of or

qualifying what goes before. To the same effect is a later decision of the

same Court in Jennings v. Kelly, 1940 AC 206 (HL), wherein it was

observed thus: (AC p. 216)

‘We must now come to the proviso, for there is, I think, no doubt

that, in the construction of the section, the whole of it must be read,

and a consistent meaning, if possible, given to every part of it. The

words are: “provided that such licence shall be granted only for

premises situate in the ward or district electoral division in which

such increase in population has taken place.” There seems to be no

doubt that the words “such increase in population” refer to the

increase of not less than 25 per cent of the population mentioned in

the opening words of the section.’

36. While interpreting a proviso care must be taken that it is used to

remove special cases from the general enactment and provide for them

separately.

37. In short, generally speaking, a proviso is intended to limit the enacted

provision so as to except something which would have otherwise been

within it or in some measure to modify the 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, AIR 1965 SC

1296, the following observations were made: (AIR p. 1300, para 41)

‘14. … So far as a general principle of construction of a proviso is

concerned, it has been broadly stated that the function of a proviso

is to limit the main part of the section and carve out something

which but for the proviso would have been within the operative

part.’

39. In STO v. Hanuman Prasad, AIR 1967 SC 565, Bhargava, J. observed

thus: (AIR p. 567, para 5)

‘5. … It is well recognised that a proviso is added to a principal

clause primarily with the object of taking out of the scope of that

principal clause what is included in it and what the legislature

desires should be excluded.’

40. In CCT v. Jhaver Ramkishan Shrikishan, AIR 1968 SC 59, this Court

made the following observations: (AIR p. 63, para 8)

‘8. … Generally speaking, it is true that the proviso is an exception

to the main part of the section; but it is recognised that in

exceptional cases a proviso may be a substantive provision itself.’

41. In Dwarka Prasad v. Dwarka Das Saraf (1976) 1 SCC 128, Krishna

Iyer, J. speaking for the Court observed thus: (SCC pp. 136-37, paras 16 &

18):

‘16. There is some validity in this submission but if, on a fair

construction, the principal provision is clear, a proviso cannot

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.

x x x x x

18. … 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 Rattanlal v. State of U.P. (1973) 1 SCC 216 : 1973 SCC

(Tax) 307, this Court made the following observations: [SCC para 22, p.

224: SCC (Tax) p. 315]

‘22. … 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 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.”

15. In Dibyasingh Malana v. State of Orissa, 1989 Supp (2) SCC

312 : AIR 1989 SC 1737, this Court considered the effect of proviso

and observed: (SCC pp. 316-17, para 7)

“7. On a plain reading of the definition of the term “family” in Section

37(b) of the Act we are of the view that the said definition as it stands is

neither meaningless nor of doubtful meaning. In this connection, it may be

pointed out that keeping in view the agrarian reform which was

contemplated by the Act and particularly the provisions of Chapter IV

relating to ceiling and disposal of surplus land which were calculated to

distribute the surplus land of big tenure holders among the overwhelming

have-nots of the State the legislature in its wisdom gave an artificial

meaning to the term “family”. The main provision containing the definition

of the term is to be found in the first part of Section 37(b), namely, ‘family

in relating to an individual means the individual, the husband or wife as

the case may be of such individual and their children whether major or

minor’, The later part of Section 37(b), namely, ‘but does not include a

major married son who as such had separated by partition or otherwise

before the 26th day of September 1970’ does not on the face of it contain a

matter which may in substance be treated as a fresh enactment adding

something to the main provision but is apparently and unequivocally a

proviso containing an exception. This admits of no doubt in view of the

words ‘but does not include’. In CIT v. Indo-Mercantile Bank Ltd., AIR

1959 SC 713 : 1959 Supp (2) SCR 256 it was held: (AIR p. 716, para 5)

‘5. … Ordinarily the effect of an excepting or a qualifying proviso

is to carve something out of the preceding enactment or to qualify

something enacted therein which but for the proviso would be in it

and such a proviso cannot be construed as enlarging the scope of

an enactment when it can be fairly and properly construed without

attributing to it that effect.’”

16. In Kush Saigal v. M.C. Mitter (2000) 4 SCC 526 : AIR 2000 SC

1390, this Court has observed thus: (SCC p. 538, para 32)

“32. Under sub-section (1) of Section 21, a landlord can apply for eviction

of a tenant on the ground that the building was bona fide required either in

its existing form or after demolition and new construction by the landlord

for occupation by himself or any member of his family either for residential

purposes or for purposes of any profession, trade or calling or on the

ground that the building which was in a dilapidated condition was required

for purposes of demolition and new construction. The second proviso to

sub-section (2) however provides that—

‘an application under clause (a) shall not be entertained in the case

of any residential building for occupation for business purposes.’

Thus, if an application is made by the landlord for eviction of the tenant on

the ground that the building in occupation of that tenant which was used

exclusively for residential purposes was required for business purposes or

for any other commercial activity, it would not be a ground within the

meaning of Section 21(1) of the new Act for the eviction of the tenant and

the application will not be entertained. This we say because 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 Mfg. Co. Ltd. v.

CTO, 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 Edn. 1999, p. 163). This principle has

been deduced from the decision of the Privy Council in Province of

Bombay v. Hormusji Manekji, 1947 SCC OnLine PC 34 : (1946-47) 74 IA

103 : AIR 1947 PC 200, as also the decision of this Court in Durga Dutt

Sharma v. Navaratna Pharmaceutical Laboratories (AIR 1965 SC 980).”

17. In Haryana State Coop. Land Development Bank Ltd. v.

Employees Union (2004) 1 SCC 574 : 2004 SCC (L&S) 257, this

Court has considered normal function of proviso and observed thus:

(SCC pp. 579-80, paras 9 & 11)

“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 Surrey (1880) LR 5 QBD 170 at p. 173 (DC)

(referred to in Shah Bhojraj Kuverji Oil Mills & Ginning Factory v.

Subbash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta

Tramways Co. Ltd. v. Corpn. 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 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. It is a

qualification of the preceding enactment which is expressed in terms too

general to be quite accurate. As a general rule, a proviso is added to an

enactment to qualify or create an exception to what is in the enactment and

ordinarily, a proviso is not interpreted as stating a general rule.

‘… if the language of the enacting part of the statute does not

contain the provisions which are said to occur in it, you cannot

derive these provisions by implication from a proviso’,

said Lord Watson in West Derby Union v. Metropolitan Life Assurance

Society 1897 AC 647 (HL), AC p. 653. 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 v. Raje Ram Sheoran 1992 Supp (1) SCC 304 :

1993 SCC (L&S) 675], Tribhovandas Haribhai Tamboli v. Gujarat

Revenue Tribunal (1991) 3 SCC 442] and Kerala State Housing Board v.

Ramapriya Hotels (P) Ltd. [Kerala State Housing Board v. Ramapriya

Hotels (P) Ltd. (1994) 5 SCC 672]

‘This word (proviso) hath diverse operations. Sometime it worketh a

qualification or limitation; sometime a condition; and sometime a

covenant.’ (Coke upon Littleton, 18th Edn., p. 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 as

disclosed by the deed as a whole’ (per Lord Wrenbury in Forbes v. Git

(1921 SCC OnLine PC 102 : (1922) 1 AC 256).

A statutory proviso ‘is something engrafted on a preceding

enactment’ (R. v. Taunton St. James (1829) 9 B&C 831 : 109 ER 309,

ER p. 311).

‘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 Barker, In re, ex p Constable (1890) LR 25 QBD 285 (CA).

x x x x x

11. The above position was noted in Ali M.K. v. State of Kerala (2003) 11

SCC 632 : 2004 SCC (L&S) 136.”

18. In Romesh Kumar Sharma v. Union of India (2006) 6 SCC 510 :

2006 SCC (L&S) 1430, this Court has observed that normally

proviso does not travel beyond the provisions to which it is proviso.

This Court held: (SCC pp. 514-15, para 12)

“12. ‘10. The normal function of a proviso is to except something out of the