Casus omissus, interpretation of statutes

an important rule in interpretation of statutes

1. PUKHRAJ AGARWAL CASUS OMISSUS

2. INTRODUCTION Term casus omissus means “cases of omission”. Omission in a statute cannot be supplied by construction. A matter which should have been provided but actually has not been provided in a statute cannot be supplied by the courts, as to do so will be legislation and not construction. Hansraj Gupta v. DMET Co. Ltd. AIR 1933 P.C. 63 Court can interpret the law but cannot legislate. Padma Sundara Rao v. State of T.N.

3. A casus omissus cannot be supplied by the court by judicial interpretative process except in the case of clear necessity and when reason for it is found in the four corners of the statute itself. The language employed in the statute is the determinative factor of the legislative intent. The first and primary rule of the construction is that the intention of the legislature 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. The court only interprets the law and cannot legislate it.

4. Francis J. Mc. Coffery observes that it is a rule of statutory construction that Casus Omissus which means that case omitted from the language of a statute but within the general scope of the statute and which appears to have been omitted due to inadvertence or by overlook cannot be supplied by the court.

5. Some cases S.P. Gupta v. President of India AIR 1982 SC 149 the Supreme Court held that when the language of a statute is clear and unambiguous there is no room for application of the doctrine of Casus Omissus or of pressing into service external aid in such a case, the words used by the statute speak for themselves and it is not the function of the court to add words or expression merely to suit what court thinks is the supposed intention of the legislature.

6. Raghunath Rai Bareja v. Punjab National Bank (2007) 2 SCC 230 The Apex Court observed that even if there is defect or omission in the words used by the Legislature, the Court cannot correct or make up the deficiencies especially when literal reading thereof produces an intelligible result Ramesh Mehta v. Sanwal Chand Siinghvi AIR 2004 SC 2258. The Supreme Court observed that although court cannot supply to casus omissus, it is equally clear that it should not interpret a statute so as to create a casus omissus when there is really none.

7. Hiradevi v. District Board, Shahjahanpur AIR 1952 SC 362 Section 71 and Section 90 of the U.P. District Board Act, 1922 and the Amendment Act 1933 were in question. Section 71 provided that a Board may dismiss its Secretary by special resolution, which was amended in 1933. However , the corresponding Section 90 in the old Act which provided for dismissal of the Secretary pending enquiry was not amended. Therefore, Section 71 was amended but not Section 90 .

8. Justice Bhagwati in this case observed that, it was unfortunate that when legislature came to amend Section 71, it forgot to amend Section 90 in conformity with amendment of Section 71. But this lacuna cannot be supplied by any liberal construction. No doubt, it is the duty of court to try and harmonize the various provisions of an Act passed by the Legislature. But, it is certainly not the duty of the court to stretch the word used by Legislature to fill in gaps or omissions in the provisions of an Act.

9. Also refer to B.N. Sinha v Union of India 1998 (79) FLR SC 747 And Secretary, Shiorai Education Society, Wani v. Presiding Officer, School Tribunal, Aurangabad. 2000 (2) Mh LJ 752 ( Bom . HC)

10. When omitted words can be supplied When the lacuna in the language is of such a nature that unless the omitted word is supplied the statute cannot operate or the true intention of the legislature could not be established, the courts have inserted the missing word in the language of a statute to ensure that law is not turned to nullity. Some of the examples are: Jacob Mathew v State of Punjab (2005) 6 SCC 1 , Section 304-A of the IPC was construed by the Supreme Court and Casus Omissus was supplied. It was held that the word “gross” has not been used in Section 304-A, yet it is settled that in criminal law negligence and recklessness to be so held must be of such a high degree as to be “gross”. The Expression “rash or negligent act” as occurring in Section 304-A has to be read qualified by the word “gross”.

11. Important cases for Casus Omissus and Harmonious Construction Basavantappa v. Gangadhar Narayana Dharwadkar (1986) 4 SCC 273 P.K. Unni v. Nirmala Industries AIR 1990 SC 933 Dadi Jagannadam v. Jammulu Ramulu AIR 2001 SC 2699 These cases relate to construction of Rule 89 of Order 21 of CPC after the Amendment of Article 127 of the Limitation Act, 1963.

12. Rule 89 of Order 21 of CPC provides that if any person claiming an interest in the property sold in execution of a decree applies to have the execution sale aside and deposits within 30 days from the date of sale, 5% of the sale money for payment to the purchaser and the amount payable to the decree holder, ‘the court shall make an order setting aside the sale.’ The period of limitation for applying under Rule 89 was also 30 days which was enlarged to 60 days by way of an amendment in the Limitation Act. The Parliament however failed to make corresponding amendment in the Rule 89 to enlarge the period.

13. The two judge bench in Dharwadkar held that it is implied that the period in both the cases is enlarged to 60 days Which was not accepted in Nirma Industries Case Later in Ramulu’s case Nirma Case was overruled and the Supreme Court held that the court must try to harmonise the conflicting provisions.

14. When two statutes are complementary to each other. One statute cannot be allowed to overrule the other. Instead one statute should be interpreted in such a way to compromise with the another statute. This is called Harmonious construction of Statutes.