Expressum facit cessare tacitum-Expression precludes implication

Expressum facit cessare tacitum – Express mention of one thing implies the exclusion of other.  This doctrine has been applied by this Court in various cases to enunciate the principle that expression precludes implication. Union of India v. Tulsiram Patel, AIR 1985 SC 1416. It is always safer to apply plain and primary rule of construction. The first and primary rule of construction is that intention of the legislature is to be found in the words used by the legislature itself. The true or legal meaning of an enactment is derived by construing the meaning of the word in the light of the discernible purpose or object which comprehends the mischief and its remedy to which an enactment is directed. (State of Himachal Pradesh v. Kailash Chand Mahajan, AIR 1992 SC 1277 and Padma Sundara Rao v. State of T.N., AIR 2002 SC 1334).

It is always important for the Court to keep in mind the purpose which lies behind the statute while interpreting the statutory provisions. This was stated by this Court in Padma Sundara Rao’s case (supra) as under:-

11. … The first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature itself. The question is not what may be supposed and has been intended but what has been said. “Statutes should be construed, not as theorems of Euclid”, Judge Learned Hand said, “but words must be construed with some imagination of the purposes which lie behind them”. (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547. The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981.

The maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) applies to the case. As pointed out by this Court in B. Shankara Rao Badami v. State of Mysore (1969) 3 SCR 112 : (AIR 1969 SC 453 at P. 459). This well-known maxim is a principle of logic and common sense and not merely a technical rule of construction.


 

Generalia specialibus non derogant-general law yields to special law

It is a well settled principle of statutory interpretation that when there is a conflict between the general law and the special law then the special law shall prevail. This principle will apply with greater force to special law which is also additionally a local law.

This judicial principle is based on the latin maxim generalia specialibus non derogant, i.e., general law yields to special law should they operate in the same field on the same subject. Reference may be made to the decision of this Court in R.S. Raghunath vs. State of Karnataka & Ors.8, Commercial Tax Officer, Rajasthan vs. Binani Cements Ltd. & Ors.9 and Atma Ram Properties Pvt. Ltd. vs. The Oriental Insurance Co. Ltd[(2018) 2 SCC 27]

Jose Paulo Coutinho Vs. Maria Luiza Valentina Pereira & ANR- 13/09/2019

Legal Maxims applied in Indian Couts

Quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest

When the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable.

Applied in: “The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.

Criminal Procedure Code, 1973—Sections 205, 317 and 482—dismissal of complaint for default—Restoration application dismissed on the ground of availability of an alternative remedy —Trial Court dismissed complaint on a hyper technical ground that since complainant had been appearing in person despite order exempting him from personal appearance—An order of exemption from personal appearance continues to be in force till it is revoked or recalled—Availability of alternative remedy of filing appeal is not an absolute bar in entertaining petition under Section 482—Complaint restored.

Quicquid plantatur solo, solo cedit – What is annexed to the soil goes with the soil

On this admitted position the petitioners cannot be held to be trespassers in respect of the dharmasala, temple and shops; nor can it be held that the dharmasala, temple and shops belonged to the State, irrespective of the question whether the trust created was of a public or private nature. A trustee even of a public trust can be removed only by procedure known to law. He cannot be removed by an executive fiat. It is by now well settled that the maxim, what is annexed to the soil goes with the soil, has not been accepted as an absolute rule of law of this country;

These decisions show that a person who bona fide puts up constructions on land belonging to others with their permission would not be a trespasser, nor would the buildings so constructed vest in the owner of the land by the application of the maxim quicquid plantatur solo, solo cedit.

It is, therefore, impossible to hold (1) (1866) 6 W.R. 228.see Thakoor Chunder Parmanick v. Ramdhone Bhuttacharjee (1); Lala Beni Ram v. Kundan Lall (2) and Narayan Das Khettry v. Jatindranath (3).

(2) (1899) L. R. 26 I.A. 58.

(3) (1927) L.R 54 I.A. 218.

that in respect of the dharmasala, temples and shops, the State has acquired any rights whatsoever merely by reason of their being on the land belonging to the State. If the State thought that the constructions should be removed or that the condition as to resumption of the land should be invoked, it was open to the State to take appropriate legal action for the purpose. Even if the State proceeded on the footing that the trust was a public trust it should have taken appropriate legal action for the removal of the trustee as was opined by the State’s Legal Remembrancer. It is well recognised that a suit under s. 92, Civil Procedure Code, may be brought against persons in possession of the trust property even if they claim adversely to the trust, that is, claim to be owners of the property, or against persons who deny the validity of the trust. Learned Counsel for the respondents has drawn our attention to the statement of Ramji Das made ill 1925 and the order of the Revenue Minister dated December 13, 1954, and has contended that Ramji Das himself admitted that he was a more trustee. Be that so; but that does not give the State or its executive officers the right to take the law into their own hands and remove the trustee by an executive order. We must, therefore, repel the argument based on the contention that the petitioners were trespassers and could be removed by an executive order. The argument is not only specious but highly dangerous by reason of its implications and impact on law and order.


Supreme Court of India in Bishan Das And Others vs The State Of Punjab And Others on 19 April, 1961 [ 1961 AIR 1570, 1962 SCR (2) 69]

Nemo Firut Repente Turpissimus – no one becomes dishonest all on a sudden

In M.S. Bindra Vs. Union of India and Others[(1998) AIR(SC) 3058], it was held:

While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim “Nemo Firut Repente Turpissimus” (no one becomes dishonest all on a sudden) is not unexceptional but still it is salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of “doubtful integrity” it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label ‘doubtful integrity’.

Dura lex sed lex- law is hard but it is law

It is a settled legal position that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute show prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore the provision to relieve what is considers a distress resulting from it operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.Continue Reading

Nemo dat quod non habet means “no one gives what he doesn’t have”

Nemo plus iuris ad alium transferre potest quam ipse habet” rule, which means “one cannot transfer more rights than he has”

Supreme Court of India in The Morvi Mercantile Bank Ltd. And … vs Union Of India, Through The [ 1965 AIR 1954 ]

 

To the general rule expressed by the Maxim nemo dat quod non habet (no one can convey a better title than what he had), to facilitate mercantile transactions. the Indian Law has grafted some exceptions, in favour of bonafide pledgees by transfer of documents of title from persons. whether owners of goods who do not possess the full bundle of rights of ownership at the time the pledges are made, or their mercantile agents. To confer a right to effect a valid pledge by transfer of document of title relating to goods on persons with defects in their title to the goods. and on mercantile agents, and to deny it to the full owners thereof, is to introduce an incongruity into the Act. On the other hand, the real intention of the legislature will be carried out if the said right is conceded to the Full owner of goods and extended by construction to persons with defects in their title to the goods or to mercantile agents. A pledge being a bailment of goods under s. 172 of the Contract Act, the pledgee, as a bailee. will have the same remedies as the owner of the goods would have against a third person for deprivation of
the said goods or injury to them under s. 180 of the Act.

Indian  Contract  Act (9 of 1872), s.  178, Transfer  of Indian  Contract  Act (9 of 1872), s.  178, Transfer  ofProperty  Act (4 of 1882). ss. 4 and 137 and Indian Sale  of goods  Act (3 of 1930), ss. 30 and 53


Compare

Uniform Commercial Code (UCC) USA

Courts of equity[USA]

Sale of Goods Act 1979[UK]