Compilation of Judgements for use of the phrases-“Notwithstanding anything contained in”, “subject to”, “without prejudice”, “save as otherwise provided”; Use of Same or different Words in repealed/re-enacted/amending statute
Below is the compilation of the some of Judgements on the use of above phrases. Just for starting CGST Act uses these phrases as follows-
-“Notwithstanding anything”-54 Times
-“Subject to”-80 Times
-“Without Prejudice”-12 Times
-“Save as otherwise provided”-10 Times
a) What does a Provisions starting with “Notwithstanding anything in” Means-Chandavarkar Sita Ratna Rao vs Ashalata S. Guram on 25 September, 1986-(SC)-1987 AIR 117, 1986 SCR (3) 866
A clause beginning with the expression “notwithstanding any thing contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract” is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non-obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P) Ltd. v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215- 4 SCR 280.
b) Meaning of Phrase “Notwithstanding anything in any other law”- P. Virudhachalam & Ors vs The Management Of Lotus Mills & Anr on 9 December, 1997
The phrase “Notwithstanding anything in any other law” would only mean that if anything inconsistent with the provisions of the Act are found to have been laid down by any other law, then they will have no effect. However, this phrase would not have overriding effect on the provisions of the Act in which the section is contained. Therefore, this phrase would have an overriding effect over the provisions of other acts but not over the provisions of the act in which it is contained.
c) Meaning of Phrase “Notwithstanding anything contained in this Act”- Satya Narayan Sharma vs State Of Rajasthan on 25 September, 2001
The phrase “Notwithstanding anything contained in this Act” would only mean that the provisions of the section would have an overriding effect over anything contrary contained in the Act. However, it does not mean that the provisions of the section would have an overriding effect over anything contrary contained in any other law other than the Act in which section is contained.
d) What does a Provisions starting with “subject to” Means- The South India Corporation(P) … vs The Secretary, Board Of … on 13 August, 1963 Equivalent citations: 1964 AIR 207, 1964 SCR (4) 280
The expression “subject to” conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject.
e) Meaning of Phrase “without prejudice”- The meaning to the phrase has to be understood in the context in which it has been used-
A.P. State Financial Corpn vs Gar Re-Rolling Mills on 10 February, 1994 Equivalent citations: 1994 AIR 2151, 1994 SCC (2) 647
The use of the expression “without prejudice to the provisions of Section 29 of the Act” in Section 31 cannot be read to mean that the Corporation after obtaining a final order under Section 31 of the Act from a court of competent jurisdiction, is denuded of its rights under Section 29 of the Act. To hold so would render the above-quoted expression redundant in Section 31 of the Act and the courts do not lean in favour of rendering words used by the Legislature in the statutory provisions redundant. The Corporation which has the right to make the choice may make the choice initially whether to proceed under Section 29 of the Act or Section 31 of the Act, but its rights under Section 29 of the Act are not extinguished, if it decides to take recourse to the provisions of Section 31 of the Act. It can abandon the proceedings under Section 31 of the Act at any stage, including the stage of execution, if it finds it more practical, and may initiate proceedings under Section 29 of the Act.
Inst.Of Chartered Accountants Of … vs Vimal Kumar Surana & Anr on 1 December, 2010 Author: G Singhvi Bench: G.S. Singhvi, Asok Kumar Ganguly
The expression `without prejudice to any other proceedings, which may be taken against him’ used in sub-section (2) of Sections 24A, 25 and 26 of the Act means that any person who contravenes these provisions can be punished by levy of fine and/or imprisonment and also prosecuted for offence(s) under the IPC.
f) Meaning of the Phrase “save as otherwise provided’- Supreme Court of India Lalu Prasad Yadav & Anr vs State Of Bihar & Anr on 1 April, 2010
In Williams v. Milotin, the High Court of Australia, while construing the words “save as otherwise provided in this Act” stated:-
“.In fact the words “save as otherwise provided in this Act” are a reflexion of the words “except” – or “save” – “as hereinafter excepted”.
Hon’ble Apex Court referring to the above meaning held that the opening words of sub-section (1) which contains- “save as otherwise provided in sub- section (2)” – are in the nature of exception intended to exclude the class of cases mentioned in sub-section (2) out of operation of the body of sub-section (1). These words have no other meaning in the context but to qualify the operation of sub-section (1) and take out of its purview two types of cases referred in sub-section (2).
g) Use of Same or different Words in repealed/re-enacted/amending statute-Lalu Prasad Yadav & Anr vs State Of Bihar & Anr on 1 April, 2010 Author: R Lodha Bench: K.G. Balakrishnan, R.M. Lodha, B.S. Chauhan
28. In The Bengal Immunity Company Limited v. The State of Bihar and others Venkatarama Ayyar, J. observed :
“…..It is a well-settled rule of construction that when a statute is repealed and re-enacted and words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act, because the Legislature is presumed to be acquainted with the construction which the Courts have put upon the words, and when they repeat the same words, they must be taken to have accepted the interpretation put on them by the Court as correctly reflecting the legislative mind……”
29. However, if the latter statute does not use the same language as in the earlier one, the alteration must be taken to have been made deliberately. In his classic work, Principles of Statutory Interpretation by G.P. Singh, 12th Edition, 2010 at page 310, the following statement of law has been made:
“Just as use of same language in a later statute as was used in an earlier one in pari materia is suggestive of (1955) 2 SCR 603 the intention of the Legislature that the language so used in the later statute is used in the same sense as in the earlier one, change of language in a later statute in pari materia is suggestive that change of interpretation is intended.”
The learned author also refers to the observations of Lord MacMillan in D.R. Fraser & Co. Ltd. v. The Minister of National Revenue: “When an amending Act alters the language of the principal Statute, the alteration must be taken to have been made deliberately”.