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Q. 5 Explain - Generalia specialibus non derogant, utres magis valeat quan pareat, expressum facit cessare tacitum

Generalia specialibus non derogant

Where there is a special provision specifically dealing with a subject, a general provision, howsoever widely worded must yield to the former.  This principle is expressed by the maxim Generalia specialibus non derogant.

The aforesaid rule of construction was applied by the Supreme Court in Venkataramana Devaru Vs State of Mysore, AIR 1958. In that case the Supreme Court applied the rule to resolve conflict between Article 25 (2)(b) and 26 (b) of the Constitution. It was held that the right of every religious denomination or any Section thereof to manage its own affairs in matter of religion is subject to a law made by a State providing for social welfare and reform or throwing open of Hindu religious institution of a public character to all classes and sections of Hindus.

Article 25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
       (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
       (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Article 26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
        (a) to establish and maintain institutions for religious and charitable purposes;
        (b) to manage its own affairs in matters of religion;
        (c) to own and acquire movable and immovable property; and
        (d) to administer such property in accordance with law.

In State of Gujarat Vs. Ramji Bhai, AIR 1979 Supreme Court taking note of the principle observed as follows:
“ Generalia Specialibus non derogant is a cardinal principle of interpretation. It means that the general provisions must always yield to the special provisions. Construed in accordance with this fundamental principle, the special class of unregistered dealer covered by Section 33 (6) must be taken to have been excluded from the purview of the general provisions in Section 35. Thus considered, it is clear that the case of an unregistered dealer who evades tax by committing the double default specified in Section 33(6), action can be taken only under that Section and not under Section 35”.

Thus, it is well settled that if a special provision is made on a certain matter, that matter is excluded from the general provision. In the event of conflict between a general and a special provision, the latter must prevail. Differently stated the principle is that general words in a Statute should not be held to repeal or rip up a specific provision upon a particular matter. A general rule though stated in wide terms must be taken to be not interfering with matters covered by a special provision.

In South India Corporation (P) Ltd. Vs Secretary, Board of Revenue, Trivendrum AIR 1964, it was held that the general provision under Article 372 of the Constitution regarding continuance of existing laws is subject to Article 277 of the Constitution, which is a special provision relating to taxes, duties, cesses or fees lawfully levied at the commencement of the Constitution. In this regard, the Supreme Court observed as follows:-
“With this background let u now consider the following two questions raised before us: (i) whether Article 372 of the Constitution is subject to Article 277 thereof; and (ii) whether Article 372 is subject to Article 278 thereof. Article 372 is a general provision’; and Article 277 is a special provision. It is settled law that special provision should be given effect to the extent of its scope, leaving the general provision to control cases where the special provision does not apply. The earlier discussion makes it abundantly clear that the constitution gives a separate treatment to the subject of finance and Article 277 saves the existing taxes etc. levied by states, if the conditions mentioned therein are complied with. While Article 372 saves all pre-Constitution valid laws, Article 277 is confined only to taxes, duties, cesses or fees lawfully levied immediately before the Constitution. Therefore, Article 372 cannot be construed in such a way as to enlarge the scope of the savings of taxes, duties, cesses or fees. To state it differently, Article 372 must be read subject to Article 277. We have already held that an agreement can be entered into between the Union and the States in terms of Article 278 abrogating or modifying the power preserved to the State under Article 277”.

In Gujarat State Co-operative Land Development Bank Vs P.R. Mankad, (1979), the Supreme Court applying the maxim generalia specialibus non-derogant held that a general provision must yield to the special provision. Lord Hobhouse in Barker Vs Edgar (1898) AC 749 opined that when the legislature had given its consent to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly.

Ut res magis valeat quam pereat
Literal meaning - Such a construction is to be made that lets the thing have effect rather than let it fail. Aka Rule of Effectiveness.

Avtar Singh vs State of Punjab, AIR 1955 SC 1107 166 - Appellant was convicted of theft of electricity under Section 39 of Electricity Act, 1990. He contented that the proceeding were illegal because they were not initiated by any of the persons as mandated by Section 50 of the act. It was held that under this principle, the requirement of Section 50 should be given effect.

Corporation of Calcutta vs Liberty Cinema, AIR 1965 SC 661 170 -

Under a. 413 of the Calcutta Municipal Act, 1951, no person shall without a license granted by the Corporation of Calcutta, keep open any cinema house for public amusement in Calcutta. Under s. 548(2), for every license under the Act, a fee may be charged at such rate as may from time to time be fixed by the Corporation. In 1948, the appellant (Corporation) fixed fees on the basis of annual valuation of the cinema house. The respondent, who was the owner and licensee of a cinema theater, had been paying a license fee of Rs. 400 per year on that basis. In 1958, the appellant, by a Resolution, changed the basis of assessment of the fee.

Under the new method the fee was to be assessed at rates prescribed per show according to the sanctioned seating capacity of the cinema house; and the respondent had to pay a fee of Rs. 6,000 per year. The respondent, therefore moved the High Court for the issue of a writ quashing the resolution and the application was allowed.

In the appeal to the Supreme Court the appellant contended that (i) the levy was a tax and not a fee in return for services and (ii) s. 548(2) does not suffer from the vice of excessive delegation; While the respondent contended that (i) the levy was a fee in return for services to be rendered and not a tax, and as it was not commensurate with the costs incurred by the Corporation in providing the services, the levy was invalid; (ii) if s. 548 authorized the levy of a tax, as distinct from a fee in return for service rendered, it was invalid, as it amounted to an illegal delegation of legislative functions to the appellant to fix the amount of a tax without any guidance for the purpose and (iii) the levy was invalid as violating Art. 19(1) (f) and (g) of the Constitute.

HELD (per Sarkar, Raghubar Dayal and Mudholkar JJ) : (i) The was not a fee but a tax.

The word "fee" in s. 548 must be read as referring to a tax as any other reading would make the section invalid, and in interpreting a statute, it ought to be made valid if possible.

expressum facit cessare tacitum

That which is expressed makes that which is implied to cease (that is, supersedes it, or controls its effect). Thus, an implied covenant in a deed is in all cases controlled by an express covenant. Where a law sets down plainly its whole meaning the court is prevented from making it mean what the court pleases.