Function of a proviso

Proviso means

In Nagar Palika Nigam vs. Krishi Upaj Mandi Samiti and others (supra), this Court held:

“8. 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 vs. Treasurer of Survey 1880 (5) QBD 170, (referred to in Shah Bhojraj Kuverji Oil Mills and Ginning Factory vs. Subhash Chandra Yograj Sinha (AIR 1961 SC 1596) and Calcutta Tramways Co. Ltd. vs. Corporation 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 vs. Metropolitan Life Assurance Co. 1897 AC 647 (HL). 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 and others vs. Raje Ram Sheoram and others (AIR 1991 SC 1406), Tribhovandas Haribhai Tamboli vs. Gujarat Revenue Tribunal and others (AIR 1991 SC 1538) and Kerala State Housing Board and others vs. Ramapriya Hotels (P) Ltd. and others (1994) 5 SCC 672).”

Ref: AIR 2010 SC 112 : (2009) 12 SCR 929 : (2009) 16 SCC 1