PROVISO

Proviso

All the sections of the Act constitutes a single scheme and therefore  the several sections forming  the part of a statute should be read together, unless there are compelling reasons to the contrary as constituting  the single scheme some particular section or sections. It is an elementary rule that construction of a section is to be made of all parts together and not of one part only by itself and that phrases are to be read according to the rules of grammar. Every word of a clause must be given its true and legitimate meaning in order that one section may be rendered otiose by a certain interpretation of another, that interpretation must make the two sections deal with the same subject matter, the two must then be serving the same purpose. Similarly the sub-section of a section must be construed as a whole "each portion throwing light if need be, on the rest." The two sections must be read as parts of the integral whole as being independent they should be reconciled. If repugnancy can't possibly be avoided, then a question may arise as to which of two should prevail. (AIR 1958 SC 468, AIR 1960 SC 122, AIR 1960 444, AIR 1962 SC 1543) Every proviso should be construed in relation to the section or sections to which it appended. If the enacting provision of a section is not clear a proviso appended to it may give an indication as to its true meaning. In construing a section full and natural meaning should be given to a proviso. It is fundamental rule of construction that that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Therefore it is to be construed harmoniously with the main enactment

"Difficulties sometimes arises in construing proviso. It will, however, generally be found that inconsistencies can be avoided by applying  the general rule that the words of a proviso are not to be taken absolutely in their literal sense, but that a proviso is of necessity limited in its operation to the ambit of the section which it qualifies"---Maxwell, Interpretation of Statutes 12^th Edn., P.189

Privy Council in Madras and Southern Maharashtra Railway Co. V. Benwara Municipality, (AIR 1944 PC 71 further Supreme court in Sunderam Pillai v/s P. Pattabiraman AIR 1985 SC 582/ (1985)1 SCC 591 laid down the sphere of proviso as follows:-

"The proper function of the proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment and its effect is confined to that case where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms." The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it can't be used for the purpose of interpretation the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that that is its necessary effect.

 

A proviso may be an independent provision-

A proviso can't enlarge the scope of the enactment but it may go beyond that purpose, but occasionally in a statute a proviso is unrelated to the subject matter of the preceding section of contains matters extraneous to that section and it may have than to be interpreted as a substantive provision, dealing independently with the matter specified therein, not as qualifying the main or the preceding section.(Ishverlal Thakorilal Almoula v. Motibhai Neggibhai AIR 1966 SC 459)

In Rhonda Urban Council v.  Taffvale Rly. Company, (1909) AC 253

Lord Lore Burn, L.C. had observation: "Such a proviso in substance would be fresh enactment adding to and not merely qualifying that which goes before." There, proviso to section 51 of the Railway Clauses Consolidation Act,1885 was under consideration Their Lordship found that 'section 51 was framed as proviso upon preceding sections but it was also true that the latter half of it, though in form a proviso, was in substance a fresh enactment adding to and not merely qualifying that which goes before'

Hidayatullah J.considered this aspect of the proviso in S.B. K. oil Mills v. Subhash Chandra (AIR 1961 SC 1596) and observed:

"The law with regard to proviso 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 added not as exceptions or qualifications as to the main enactment but as saving clause; they will not be construed as controlled by the section. " In this case Section 12(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, which enacted that a "a Landlord shall not be entitled to the recovery of possession and section 12 (3) (b) of the same Act which enacted that "no decree for eviction shall be passed"as of special proviso were held to enact a rule of decision applicable to pending suits and not to a pending appeal."

Parts of the statute and their Relevance as Internal Aid

The fundamental rule, however, is "a proviso which is in fact and in substance a proviso, can only operate to deal with a case which but for it would have fallen within the ambit of the section to which the proviso is a proviso. The section deal with a particular field and the proviso excepts or takes out or carries out from the field a particular portion and therefore it is perfectly true that before a proviso can have any application the section itself must apply." It is equally true that the proviso cannot deal with any other field than the field which the section itself deals with. (AIR 1957 SC 281, AIR 1950 SC 1012, AIR 1959 SC 713, AIR 1964 SC 179:  AIR 1965 SC 59, AIR 1967 SC 565, AIR 1973 SC 1034: AIR 1975 SC 1758, AIR 1973 SC 1357: AIR 1989 SC 558: AIR 1989 SC 155, AIR 1991 SC 1406: AIR 2000 SC 1261)

It is the duty of the Court to give to the proviso as far as possible a meaning so restricted as to bring it within the ambit and purview of the section itself. If a proviso is capable of wider connotation and also capable of a narrower connotation, if the narrower connotation brings it within the purview of the section then the Court must prefer the narrower connotation rather than the wider connotation. But when the Court is satisfied that the language used in the so called proviso is incapable of making it applicable to the section since the proviso has a clear meaning of its own then the court must look upon the proviso as substantive provision enacted by the legislature and give effect to as such. (AIR 1957  BOM 20, AIR 1964 SC 1413, AIR 1965 SC 1296, AIR1966 SC 459, AIR 1968 SC 59)

The following are some illustrative cases on this aspect:-

State of Rajasthan v. Leela Jain (AIR 1965 SC 1296) The Supreme Court held 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 with the operative part. But the primary purpose of the proviso to section 4 (1) of Rajasthan City Municipality Appeals (Regulation) Act, 1950 is to provide and alternative remedy to that which is prohibited by the main part of the section. There is therefore no question as to the proviso carving out any portion out of area covered by the main part and leaving other part unaffected. The proviso is really not a proviso in the accepted sense but an independent legislative provision by which a remedy that is prohibited by the main part of the section, an alternative is provided. It is further, obvious to us that the proviso is not co-extensive with but covers a field wider than the main part of section 4 (1).

At times a fresh enactment

The normal rule is that it is "a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute," (AIR 1985 SC 582)

As to do so will be to treat it "as if it were an independent enacting clause instead of being dependent on the main enactment." To a proviso as providing something by way of an addendum or as dealing with a subject not covered by the main enactment or as stating a general rule as distinguished from an exception or qualification is ordinarily foreign to the proper function of a proviso.(AIR 1959 SC 713,p. 717, AIR 1961 SC 1596, p. 1600,AIR 1975 SC 1758, p. 1764)

However, this is only true of a real proviso. The insertion of a proviso by the draftsman is not always strictly adhered to its legitimate use and at times a section worded as a provisos may wholly or partly be in substance a fresh enactment adding to and not merely excepting something out of or qualifying what goes before. ((1909) AC 253, p. 258 (LORD LOREBURN, L.C.); AIR 1961 SC 1596, P.1600, AIR 1964 SC 1413,PP.1417,1418: AIR 1965 SC 59,P.63, AIR 1965 SC 1296,P.1300, AIR 1968 SC 59,P.63, AIR 1969 SC 209,P.211, AIR 1973 SC 1034,P.1039, (1973)1 AII ER 576.P.581 (PC), AIR 1977 SC 915,P.927; AIR 1985 SC 582; AIR 1985 SC 709.)

Referring to the rule of limitation enacted in section 20 of the Forfeiture Act, 1859, which is introduced by way of a proviso, SIR MONTAGUE E. SMITH said : "Looking at the various parts of the Act and gathering the purpose and intention of the Legislature from the whole, this was a substantive enactment; and that although it appears under the form of a proviso, it was a limitation intended by the Legislature to apply suits brought by any person in respect of forfeited property" ((1874)1 IA 167.p. 175(PC).) Similarly, it has been held by the Supreme Court that the period of limitation contained in the proviso in sub-section (6) of section 12 of the Orissa Sales Tax Act, 1947, was an independent legislative provision and applied both to original assessment as well as to assessments made in appeal or revision. (AIR 1964 SC 1413, PP. 1417, 1418)

Same view has been taken of proviso (b) to section 4(3)(i) of the Indian Income tax Act, 1922. (AIR 1965 SC 59, P.63), In a recent Privy Council case, ((1973)1 AII ER 576 (PC).) the question related to the construction of section 102(2)(a) of the Stamp Duties Act of New South Wales. This section provided that for the purpose of death duty the estate of a deceased person shall be deemed to include and consists of 'all property which the deceased has disposed of by a settlement containing any trust in respect of that property to take effect after his death'. A proviso to the section said: 'Provided that the property deemed to be included in the estate of the deceased shall be the property which at the time of his death is subject to such trust.' The Privy Council read the proviso as a substantive provision stating that the words ''Provided that' were inept and were merely used to mean "and" or "in which case". It was, therefore, held that the property falling within the proviso was not limited to that property which was initially the subject-matter of disposition by the deceased but also included property which was acquired with the aid of that property and which was subject to the trust at the time of the death of the deceased. As was pointed out by the Supreme Court of United States: "It is a common practice in legislative proceedings on consideration of bills, for parties desirous of securing amendments to them , to proceed their proposed amendment with the term 'provided' so as to declare that , notwithstanding existing provision, the one thus expressed is to prevail, thus having no greater significance than would be attached to the conjunctive 'but'or 'and' in the same place, and simply serving to separate or distinguish the different paragraphs or sentences."(128 U.S. 174, p.181: (1973)1 All E R 576, p. 581 (PC)).

A proviso will not be normally construed as reducing the purview of enactment to a nullity. (AIR1966 SC 1172, AIR 1998 SC 2230, P.2234) or to take away a right clearly conferred by the enactment (AIR 1989 SC 155.p.157).

 

Summary of purposes of a proviso

In Sundaram Pillai v. Pattabiraman, (AIR 1985 SC 582) and others (2004)11 SCC 641 para 68/AIR 2004 SC 4219, AIR 2007 SC 1984). Fazal Ali J., observed in the named case observed that by and large a proviso may serve the following 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 a tenor and colour of the substantive enactment itself; and

(4) It may be used merely to act as an optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provision.

The above summary cannot however be taken as exhaustive and ultimately a proviso like any other enactment ought to be construed upon its terms. (title 9(h) Broad general rule of construction, p.210.)

At times a fresh enactment

The normal rule is that it is "a very dangerous and certainly unusual course to import legislation from a proviso wholesale into the body of the statute," (AIR 1985 SC 582)

As to do so will be to treat it "as if it were an independent enacting clause instead of being dependent on the main enactment." To a proviso as providing something by way of an addendum or as dealing with a subject not covered by the main enactment or as stating a general rule as distinguished from an exception or qualification is ordinarily foreign to the proper function of a proviso. (AIR 1959 SC 713,p. 717, AIR 1961 SC 1596, p. 1600,AIR 1975 SC 1758, p. 1764)

However, this is only true of a real proviso. The insertion of a proviso by the draftman 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. ((1909) AC 253, p. 258 (LORD LOREBURN, L.C.); AIR 1961 SC 1596, P.1600, AIR 1964 SC 1413,PP.1417,1418: AIR 1965 SC 59,P.63, AIR 1965 SC 1296,P.1300, AIR 1968 SC 59,P.63, AIR 1969 SC 209,P.211, AIR 1973 SC 1034,P.1039, (1973)1 AII ER 576.P.581 (PC), AIR 1977 SC 915,P.927; AIR 1985 SC 582; AIR 1985 SC 709.)

Referring to the rule of limitation enacted in section 20 of the Forfeiture Act, 1859, which is introduced by way of a proviso, SIR MONTAGUE E. SMITH said : "Looking at the various parts of the Act and gathering the purpose and intention of the Legislature from the whole, this was a substantive enactment; and that although it appears under the form of a proviso, it was a limitation intended by the Legislature to apply suits brought by any person in respect of forfeited property" ((1874)1 IA 167.p. 175(PC).) Similarly, it has been held by the Supreme Court that the period of limitation contained in the proviso in sub-section (6) of section 12 of the Orissa Sales Tax Act, 1947, was an independent legislative provision and applied both to original assessment as well as to assessments made in appeal or revision. (AIR 1964 SC 1413, PP. 1417, 1418)

Same view has been taken of proviso (b) to section 4(3)(i) of the Indian Income tax Act, 1922. (AIR 1965 SC 59, P.63), In a recent Privy Council case, ((1973)1 AII ER 576 (PC).) the question related to the construction of section 102(2)(a) of the Stamp Duties Act of New South Wales. This section provided that for the purpose of death duty the estate of a deceased person shall be deemed to include and consists of 'all property which the deceased has disposed of by a settlement containing any trust in respect of that property to take effect after his death'. A proviso to the section said: 'Provided that the property deemed to be included in the estate of the deceased shall be the property which at the time of his death is subject to such trust.' The Privy Council read the proviso as a substantive provision stating that the words ''Provided that' were inept and were merely used to mean "and" or "in which case". It was, therefore, held that the property falling within the proviso was not limited to that property which was initially the subject-matter of disposition by the deceased but also included property which was acquired with the aid of that property and which was subject to the trust at the time of the death of the deceased. As was pointed out by the Supreme Court of United States: "It is a common practice in legislative proceedings on consideration of bills, for parties desirous of securing amendments to them , to proceed their proposed amendment with the term 'provided' so as to declare that , notwithstanding existing provision, the one thus expressed is to prevail, thus having no greater significance than would be attached to the conjunctive 'but'or 'and' in the same place, and simply serving to separate or distinguish the different paragraphs or sentences."(128 U.S. 174, p.181: (1973)1 All E R 576, p. 581 (PC)).

A proviso will not be normally construed as reducing the purview of enactment to a nullity. (AIR1966 SC 1172, AIR 1998 SC 2230, P.2234) or to take away a right clearly conferred by the enactment (AIR 1989 SC 155.p.157).

 

Summary of purposes of a proviso

In Sundaram Pillai v. Pattabiraman, (AIR 1985 SC 582) and others (2004)11 SCC 641 para 68/AIR 2004 SC 4219, AIR 2007 SC 1984). Fazal Ali J., observed in the named case observed that by and large a proviso may serve the following four different purposes:

(5) Qualifying or excepting certain provisions from the main enactment;

(6) 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;

(7) It may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire a tenor and colour of the substantive enactment itself; and

(8) It may be used merely to act as an optional addendum to the enactment with the sole object of explaining the real intendment of the statutory provision.