Category: Law School Notes

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It is a well known principle of construction that in interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the Section by which it is created. A legal fiction in terms enacted for the purposes of one Act is normally restricted to that Act and cannot be extended to cover another Act. When the State Legislatures make the Registrar, a person exercising the power of the Registrar, a person authorised to audit the accounts of a society under Section 81 shall be deemed to be public servant within the meaning of Section 21 of the Indian Penal Code. Obviously, they would not otherwise come within the ambit of Section 21, the legislative intent is clear that a specific category of officers while exercising powers under specific sections have by legal fiction become public servant and it is only for the purposes of the co-operative Societies Act. That by itself does not make those persons public servants under the Indian Penal Code, so as to be prosecuted for having committed the offence under the Penal Code.

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There are no ready tests or invariable formulas to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed…. That in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.

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“Any other process” in Section 2(f)(v) of the Act [and in Item 19I(b) of the CET], though otherwise of wide import, must share the characteristics of and be limited by the preceding expressions. In the present case, the expressions “bleaching, mercerising, dyeing, printing, water-proofing, rubberising, shrink-proofing, organdie-processing” which precede the expression “or any other process” contemplate processes which impart a change of a lasting character to the fabric by either the addition of some “chemical into the fabric or otherwise. “Any other process” in the section, the Court observed, must share one or more of these incidents. 

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The Madras High Court had to consider the question whether iron hairpins can be included within the meaning of “toilet requisites” in entry 51 of the First Schedule of the Madras General Sales Tax Act, 1959, which was in the following terms :

“Scents and perfumes, powders, snows, scented hair-oils, scented sticks, cosmetics and toilet requisites, except soaps.”

The Division Bench pointed out that all the articles in item 51 are intended to be rubbed, poured, sprinkled or sprayed or introduced into or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness or appearance. Thus, there was a category of things preceding the words “toilet requisites”, and therefore, the doctrine of ejusdem generis had to be applied to interpret the words “toilet requisites” as referring to the words of the same kind or nature and not intended to extend to objects of a wholly different kind, It was, therefore, held that a hairpin could not be treated as of the same category, as it could not be used either for cleansing or beautifying the body. It is only used for holding the hair.

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It was held that the publication of ‘obscene’ material, which was legal if it was done “in the interests of science, literature, art or learning, or of other objects of general concern”, that the defence that the material provided sexual deviants with an outlet for their frustrations was not ejusdem generis with science, literature, art or learning.

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The word posting means either to station some one at a place or to assign someone to a post, I.e. a position or a job, especially one to which a person is appointed. In Article 233 it bears the second meaning. The word occurs in association with the words ‘appointment’ and ‘promotion’ and takes its colour from them. These words indicate the stage when a person first gets a position or job and ‘posting’ by association means the assignment of an appointee or promote to a position in the cadre of District Judges. The word ‘posting’ cannot be understood in the sense of ‘transfer’ when the idea of appointment and promotion is involved in the combination. This meaning is quite out of place because ‘transfer’ operates at a stage beyond appointment and promotion. Transfer, therefore, falls within the control vested in the High Court.

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The issue was whether a hotel guest who ordered orange juice was served with the juice of a single orange, unsweetened, freshly pressed out to his order is liable to Purchase Tax within the description “manufactured beverages”, including fruit juices. It was held that a portion of orange juice, so prepared and served, was not a “manufactured beverage” and the description “including fruit juices” was to be construed in the context of the words which preceded it.

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“In a taxing statute one has to look merely at what is clearly said. There is no room for any intention. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can look fairly at the language used.” If by any reasonable meaning of the words, it is possible to avoid the tax, then that meaning must be chosen. There is no scope for any inference or induction in constructing a taxing statute. There is no room for suppositions as to “spirit” of the law or by way of “inference”. When the provision is reasonably open to only one meaning then it is not open to restrictive construction on the ground that the levy of tax, is oppressive , disproportionate, unreasonable or would cause hardship. There is no room for such speculation. The language must be explicit. Similarly, penalty provision in a taxing statute has to be specifically provided and cannot be inferred.

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Equity and taxation are not strangers. SC held that since the income from business of wife or minor child is includable as income of the assessee, the profit or loss from such business should also be treated as the profit or loss from a businesss carried on by him for the purpose of carrying forward and set-off of the loss u/s. This interpretation was based on equity. However, it does not permit anyone to take the benefit of an illegality.

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Section 36(3) did not cast an absolute duty on the occupier to prevent the entry into the pit and the mere fact that a person had entered the pit did not by itself prove that he had been “permitted to enter ” within the meaning of that, subsection. The primary duty was on the worker prohibiting him from entering the pit. At the same time, the occupier was also liable if his permission to the entry, whether express or implied, could be inferred from. the facts and circumstances of the case.

Section 36(4) cast an absolute duty on the occupier to see that the breathing apparatus etc was always available in the factory and was periodically examined and certified fit for use and a sufficient number of persons were trained in its use. But there was no duty to keep the apparatus at the pit at all times; such a duty arose when some person was about to enter the pit with the permission of the occupier.

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