Presumption
Civil / Criminal Courts of general jurisdiction and people have the right,
unless expressly debarred, to insist for the access to the courts of general
jurisdiction of the state.
Exclusion of jurisdiction is not to be readily inferred. Such exclusion of
jurisdiction of Civil Court. “Explicitly express or clearly implied”
Ex: 1. Consumer forum, 2.Sarfasie Act 3. Income Tax Act.
Need and purpose for Presumption in
Interpretation of Statute
While interpreting a Statute when there is an ambiguity
Court applies certain presumptions as to the intention of
the legislature. This particularly important in English
jurisprudence where the Courts cannot declare a law as
invalid. Therefore Courts should give a meaning causing
to words which is just fair and equitable to the extent
possible.
Rules of Presumption
Rules of Presumption are created by legislature itself.
Legislature may frame laws regarding interpretation of Statutes. Legislature
itself may say a law need to be interpreted only in a particular way.
Sec.3 of the Human Rights Act of the United Kingdom- Every law need to be
interpreted as far as possible in consonance with Human Rights Act,1998.
General Clauses Act,1897 of India. – Sec.6 to Sec.8 Presumption against
revival of Repealed law
Presumption created by Judicial Interpretations
Presumption as to Jurisdiction of Civil Courts
Presumptions as to mens rea in criminal statute
Presumption as to prospectively of a statute
Presumption as to be not against international law.
Presumption that law does not bind government unless otherwise mentioned. –
Not applicable in India after 11 judges bench decision in Superintendent &
Legal remembrencer vs Corporation Of Calcutta on 7 December, 1966
1967 AIR 997, 1967 SCR (2) 170
Superintendent & Legal remembrencer vs Corporation
Of Calcutta
The appellant-State of West Bengal was carrying on trade as owner and
occupier of a market at Calcutta without obtaining a licence as required under
s. 218 of the Calcutta Municipal Act, 1951.
The respondent-Corporation of Calcutta filed a complaint against the State for
contravention thereof.
The trial Magistrate, accepting the State’s contention that the State was not
bound by the provisions of the Act acquitted the State.
on appeal, the High Court convicted the State and sentenced it to a fine,
holding that the State was as much bound as a private citizen to take out a
licence.
JI – CONTD…
In appeal to Apex Court the appellant, relying on the Court’s decision in Director of Rationing v.
Corporation of Calcutta, [1961] 1 S.C.R. 158,contended that the State was not bound by the provisions
of a statute unless it was expressly named or brought in by necessary implication and this common law
rule of construction, accepted as the law in India was “law in force” within the meaning of Art. 372 of
the Constitution and that in any event by necessary implication the State was excluded from the
operation of S.218 of the Act.
Held The State was not exempt from the operation of S. 218 of the Calcutta Municipal Act, 1951 and
was rightly convicted. To set up a market, permission is required from municipality. Government put
up a market without municipality permission . The government is not above the law.
Interestingly this judgment is prior to Keshavanantha Bharathi 1973. SC has
held basic structure in tact in this case and it is a eleven bench judgment.
Unfortunately Legal fraternity do not celebrate this like Keshavanantha
Bharathi.
Presumption as to jurisdiction of Civil Court
Right to sue is a common law, the said right is available if not
barred expressly or impliedly.
Court should not imply a bar to the jurisdiction unless there
is an express bar or bar by necessary Implication.
Ouster Clause/Finality clause should be interpreted in narrow
sense
Make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of
this clause shall, to the extent of such contravention be void.
Anisminic Ltd v Foreign Compensation Commission: HL
1969 1 ALL ER 208
English Court held that if the commission assumed a jurisdiction not vested in
it by , wrong construction of law or jurisdictional facts civil Courts will have
jurisdiction.
Section 4(4) of the 1950 Act which provided: ‘The determination by the
Commission of any application made to them under this Act shall not be called
in question in any court of law.’
Court declared order of FCC invalid in spite of sec.4(4) as the order is a
nullity without Jurisdiction.
Sec.9 of Code of Civil Procedure,1908
Section 9: Courts to try all civil suits unless barred: The Courts shall (subject to
the provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred.
Munni Devi & Anr vs Gokal Chand & Ors on 12 September, 1969 1970 SCR
(2) 363
s. 7(2) of the U.P. (Temporary) Control of Rent and Eviction Act,1947, "the
District Magistrate may require a landlord to let or not let to any person any
accommodation which is or has fallen vacant" and S.16 of the Act provides that
"no order made under this Act by the State Government or the District
Magistrate shall be called in question in any court."
Decision of the Court
The Legislature while investing the District Magistrate with power to allot the premises to another
person on the existence of a vacancy has not made his determination of the preliminary state of facts
conclusive.
There is nothing in S.7 or S. 7A which confers jurisdiction upon the District Magistrate to
conclusively determine the facts on the existence of which his jurisdiction arises.
Whether there is a vacancy is a jurisdictional fact which could not be decided by him finally. By
reaching an erroneous decision, he cannot clothe himself with jurisdiction which he does not
posses's. It is only when the order is with jurisdiction that the order is not liable to be challenged in a
civil court by virtue of S.16 of the Act.
When ousting implied
Premier Automobiles Ltd vs Kamlekar Shantaram Wadke Of ... on 26
August, 1975 1976 SCR (1) 427
(1) The principles applicable to the jurisdiction of the civil court in relation to an
industrial dispute are,
(i) if the dispute is not an industrial dispute nor does it relate to enforcement of
any other right under the Act the remedy lies only in the civil court;
(ii) if the dispute is an industrial dispute arising out of a right or liability under
the general or common law and not under the Act, the jurisdiction of the civil
court is alternative, leaving it to the election of the suitor concerned to choose his
remedy for the relief which is competent to be granted in a particular remedy;
(iii) if the industrial dispute relates to the enforcement of a right or an
obligation created under the Act then the only remedy available to the suitor is
to get an adjudication under the Act;
(iv) if the right which is sought to be enforced is a right created under the Act
such as Chapter VA then the remedy for its enforcement is either s. 33C or the
raising of an industrial dispute, as the case may be
N.B.KAARE v. ELECTION COMMISSION AIR 1957 SC
694.
Act. Presidential and VP Election Act 1952.
Election can be challenged either by a candidate or by 10 or more of
electorates.
Petitioner, third party challenged the provisions as they are against
constitution, Parliament has no power to enact 1952 Act, imposing new
restriction and conditions.
Justice B.K.Mukherjee “The right of seeking election, sitting in Parliament /
legislature is creature of constitution.
When constitution provides a special remedy for enforcing the right, not other
remedy by ordinary action in a Court of Law is available for a person in regard
to election disputes”.
Madhav Rao Scindhiya vs UOI
AIR 1971 SC 530 at 576,577
Under Article 363 jurisdiction of all courts including SC is barred in any dispute
arising out of any provision of a treaty etc., or in any dispute in respect of any right,
liability or obligation arising out of “any of the provision of constitution relating to
any treaty etc., “ was strictly construed by SC.
It was held that a dispute that an order of the president derecognizing all the rulers
of Indian states passed under A 366(22) , was in excess of authority and beyond his
powers and that the rulers were entitled to privy purse under A 291, was not barred
by A363.
The words ‘relating to’ in the article were given restricted meaning and it was
observed that the words “provisions of the Constitution relating to any such treaty
etc., “meant provisions having a dominant and Immediate connection with treaty
etc.,”
Nawab Usman Ali khan v.Sagar mal, AIR 1965
SC1978
Sec 86 of CPC, which gives protection to foreign rulers, ambassadors and Envoys,
and read along with Sec 87 B extends the protection to rulers of former Indian states
that they cannot be sued in any court except with the permission of the central Govt ,
has been strictly construed and the phrase “sued in any court” has been held to
confine the protection to suits proper, i.e, to the proceedings in a court which
commence with a plaint or a petition in the nature of a plaint.
It was , therefore, held that the section did not debar the commencement of
proceedings for adjudication of an industrial dispute for two reasons (i) neither party
to the industrial dispute is sued by filing of a plaint as the proceedings start on a
reference by the Govt: and (ii) the Industrial Tribunal is not a court.
