Frst, the Determination should be construed in accordance with the maxim ut res magis valeat quam pereat. In Widgee Shire Council v Bonney[1907] HCA 11; (1907) 4 CLR 977 at 983. Griffith CJ said:
"[W]hen a by-law is open to two constructions, on one of which it would be within the powers of the local authority, and on the other outside of these powers, the former construction should be adopted, ut res magis valeat quam pereat."
The rationale behind this principle rests upon the presumed intent of the body promulgating the impugned instrument. In Birch v The Australian Mutual Provident Society [1906] HCA 51; (1906) 4 CLR 324 at 343., Barton J indicated that a construction of a delegated legislative instrument which is intra vires the enabling statute is to be preferred to one which is ultra vires the enabling statute.[Cited from: Airservices Australia v Canadian Airlines [1999] HCA 62; 202 CLR 133; 167 ALR 392; 74 ALJR 76 (2 December 1999)]
Yet in another case we find a clear statement to this regard: "It is manifest that such a construction of the section would lead to a reductio ad absurdum. Another excellent rule in the interpretation of Statutes is that such a construction should be given as will render the legislation efficacious, and not idle. If any construction would render it nugatory it is primâ facie to be rejected."[Perth Local Board of Health v Maley [1904] HCA 28; (1904) 1 CLR 702 (12 October 1904),HIGH COURT OF AUSTRALIA]
In Union of India vs. Elphinstone Spg. and Wvg. Co. Ltd., it was stated:
"9. A statute is construed so as to make it effective and operative. There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will. The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded its fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of construction that if one one construction being given the statute will become ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction." b. AIR 1977 SC 2279 in the matter of R.S. Joshi, etc. vs. Ajit Mills Limited and another, etc. (para 2) "A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois (1876) 94 US 113 (quoted in Labor Board v. Jones and Laughlin, (1936) 301 US 1, 33-34 Corwin, Constitution of the USA, Introduction, p.xxxi) viz., 'that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.' Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognised by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution."[Consortium Self Financing v. State of TN - WP.20212 of 2007 [2007] INTNHC 2130 (2 July 2007)] Observing further, It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided." . Yet another judgment of the Supreme Court reported in (2003) 7 SCC 589 in the case of Indian Handicrafts Emporium and others vs. Union of India & others (paras 99, 102 & 103)
"102. In District Mining Officer v. Tata Iron & Steel Co., this Court stated:
"A statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention, i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed."
103. In State of A.P. v. McDowell & Co., this Court held: "An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the need of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz.,
(i) unreasonableness, which can more appropriately be called irrationality,
(ii) illegality and
(iii) procedural impropriety.
The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled."[Consortium Self Financing v. State of TN - WP.20212 of 2007 [2007] INTNHC 2130 (2 July 2007)]
Yet in another case we find a clear statement to this regard: "It is manifest that such a construction of the section would lead to a reductio ad absurdum. Another excellent rule in the interpretation of Statutes is that such a construction should be given as will render the legislation efficacious, and not idle. If any construction would render it nugatory it is primâ facie to be rejected."[Perth Local Board of Health v Maley [1904] HCA 28; (1904) 1 CLR 702 (12 October 1904),HIGH COURT OF AUSTRALIA]
In Union of India vs. Elphinstone Spg. and Wvg. Co. Ltd., it was stated:
"9. A statute is construed so as to make it effective and operative. There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires. Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will. The aforesaid principle, however, is subject to one exception that if a citizen is able to establish that the legislation has invaded its fundamental rights then the State must justify that the law is saved. It is also a cardinal rule of construction that if one one construction being given the statute will become ultra vires the powers of the legislature whereas on another construction which may be open, the statute remains effective and operative, then the court will prefer the latter, on the ground that the legislature is presumed not to have intended an excess of jurisdiction." b. AIR 1977 SC 2279 in the matter of R.S. Joshi, etc. vs. Ajit Mills Limited and another, etc. (para 2) "A prefatory caveat. When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking, not static, liberal, not verbal in interpreting the organic law of the nation. We must also remember the constitutional proposition enunciated by the U.S. Supreme Court in Munn v. Illinois (1876) 94 US 113 (quoted in Labor Board v. Jones and Laughlin, (1936) 301 US 1, 33-34 Corwin, Constitution of the USA, Introduction, p.xxxi) viz., 'that courts do not substitute their social and economic beliefs for the judgment of legislative bodies.' Moreover, while trespasses will not be forgiven, a presumption of constitutionality must colour judicial construction. These factors, recognised by our Court, are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canopy of the Constitution."[Consortium Self Financing v. State of TN - WP.20212 of 2007 [2007] INTNHC 2130 (2 July 2007)] Observing further, It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided." . Yet another judgment of the Supreme Court reported in (2003) 7 SCC 589 in the case of Indian Handicrafts Emporium and others vs. Union of India & others (paras 99, 102 & 103)
"102. In District Mining Officer v. Tata Iron & Steel Co., this Court stated:
"A statute is an edict of the legislature and in construing a statute, it is necessary to seek the intention of its maker. A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the true intention of the legislature. This task very often raises difficulties because of various reasons, inasmuch as the words used may not be scientific symbols having any precise or definite meaning and the language may be an imperfect medium to convey one's thought or that the assembly of legislatures consisting of persons of various shades of opinion purport to convey a meaning which may be obscure. It is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. Nonetheless, the function of the courts is only to expound and not to legislate. Legislation in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for and words chosen to communicate such indefinite referents are bound to be in many cases, lacking in clarity and precision and thus giving rise to controversial questions of construction. The process of construction combines both literal and purposive approaches. In other words, the legislative intention, i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed."
103. In State of A.P. v. McDowell & Co., this Court held: "An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the need of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz.,
(i) unreasonableness, which can more appropriately be called irrationality,
(ii) illegality and
(iii) procedural impropriety.
The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled."[Consortium Self Financing v. State of TN - WP.20212 of 2007 [2007] INTNHC 2130 (2 July 2007)]
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