PAUL ENTERPRISES & ORS. versus RAJIB CHATTERJEE & CO. & ORS.

10. Mr. Joydeep Mazumdar, learned counsel appearing on behalf of the appellants, would contend that the Division Bench of the High Court committeq a serious error insofar as it failed E to take into consideration that the definition of the term 'unemployed youth' as contained in the aforementioned advertisement dated 18.01.2001 was decisive inasmuch as not · o~IY a person who was to apply for allotment of country liquor shop was to be registered with the employment exchange, but ,7 · also a certificate was required to be obtained from the persons specified therein. It was urged that grant of such certificate having an impact on the factual aspect in regard to the person being employed or not and having an element of subjectivity wherefor no parameter or guidelines having been laid down, G the impugned judgment cannot be sustained.

11. Mr. Tara Chandra Sharma, learned counsel appearing on behalf of the State of West Bengal, on the other hand, would draw our attention to Clause 5(3) of the West Bengal Excise (Selection of Person for grant of License at New Sites for Retail PAUL ENTERPRISES & ORS. v. RAJIB CHATTERJEE & 269 · CO. &.ORS. [S.B. SINHA, J.] Sale of Spirit and Certain other intoxicants other than Foreign Liquor on categories of licensee and licenses for Denatured Spirit) Order, 2000 [For short "the said Order"] to contend that some income or some property at the hands of the applicants was necessary as otherwise they would not be in a position to carry out any business in liquor.

12. Mr. Rana Mukherjee, learned counsel appearing on behalf of the respondent Nos. 1 to 3, submitted: (i) Appellants themselves having obtained a certificate granted by the persons specified in the advertisement cannot now question the correctness or otherwise of the certificate (s) granted in favour of the partners of the respondent No. 1. (ii) In any event, no such contention having been raised o before the High Court, this Court should not permit the appellant to raise such contention for the first time before this Court. (iii) Validity and/or legality of the advertisement and/ or the said Order having not been challenged by the appellants, the contentions of the appellants in that behalf are wholly misplaced.

13. The matter relating to grant of licence is governed by the provisions of the West Bengal Excise (Selection of New . F Sites and Grant of license for Retail Sale of Spirit and certain other Intoxicants) Rules, 1993 (for short "the Rules"). In the said Order, it is stated that "unless there is anything repugnant in the subject or context, words and expressions used in this Order and not defined, shall have the meaning respectively assigned to them in the West Bengal Excise (Selection of New Sites and Grant of License for Retail Sale of Spirit and Certain Other Intoxicants) Rules, .1993". Clause 3 of the said Order provides that "the State [2009) 1 S.C.R. A Government may reserve any new site or sites for settlement amongst firms or societies formed by unemployed youths under the provisions of any Jaw for the time being in force" Explanation appended thereto reads as under: "'Unemployed youth' shall mean any person of or above the age of 21 years but not above 37 years, registered as unemployed in any Employment Exchange in the State of West Bengal and certified to be unemployed by any of the authorities mentioned hereunder in whose jurisdiction such c person resides: – (a) Member of Parliament (b) Member of Legislative Assembly (c) Sabhadhipati of a Zilia Parishad (d) Sabhadhipati, Siliguri Mahakuma Parishad; (e) Chairman, Darjeeling Gorkha Hill Council, (f) Chief Executive Officer of a notified area; (g) Mayor or Commissioner of a Municipal Corporation; (h) Chairman of a Municipality" The relevant portion of Clause 5(3) of the said Order reads as ii F under: "(3) To be eligible for a license, an applicant- (i) must have sufficient education to enable him to make and follow the calculation necessary for conducting the business and writing accounts appertaining thereto correctly. Knowledge of English is essential only in the case of a foreign liquor shop; (ii) must be in a position to invest the capital necessary for financing the shop properly without borrowing from PAUL ENTERPRISES & ORS. v. RAJIB CHA TIERJEE & 271 CO. & ORS. [S.B. SINHA, J.] others;"

14. The question posed before us must be answered inter alia keeping in view the aforementioned rule.

15. There are three criteria attached thereto, viz., (i) the age of the applicant, (ii) they have to be registered as unemployed in any employment exchange in the State of West Bengal and (iii) they have to be certified to be unemployed by any of the authorities specified therein.

16. The meaning of the term 'unemployed youth' must be c culled out from the text and context in which the same appeared.

17. In Black's Law Dictionary, 5th edition, 'Unemployment' is defined as 'state of being not employed; lack of employment'. The word 'unemployed' has been explained in the New Shorter D Oxford English Dictionary, 1993 as 'not made use of, use for a particular purpose, not engaged in any occupation, idle, out of paid employment, redundant'.

18. The main thrust in this case, however, appears to be on the registration of a person as unemployed in the employment exchange. Certificate is required to be given by the authorities specified therein as despite such registration and/ or continuation thereof, a person may be employed with a private person or in some other districts or in some other states.

19. In a case of this nature, a person cannot be said to be employed only because he earns his bare subsistence livelihood by engaging himself in some work. In this case, one of the respondents was helping his brother who was owner of G the shop. He was not the owner of the shop. The other respondent used to carry on business which is of seasonal nature. He was, therefore, also not a full fledged businessman. Nothing has been brought on record to show that they were income tax payees or were otherwise established in their life. [2009) 1 S.C.R. A It may be true that the authorities specified in the Explanation appended to Clause 3 of the said Order were required to issue certificate on the basis of their own concept in regard thereto. It is true that no guideline had been issued, but, probably no guideline was required to be issued, as the said authorities B concerned, keeping in view the legal position, would be presumed to be aware of the financial status as also the fact as to whether they remained unemployed. Furthermore, the said Order does not contemplate that the applicants would be absolutely poor or they would not have any property at all. They C were required to establish a business in liquor. They were required to make substantial investment. Their financial capacity was required to be such so as to enable them to carry out the business and furthermore fulfill their obligations both contractual and statutory in terms of the provisions of the Excise Act, the D Rules framed thereunder as also the conditions of licence.

20. In the instant case, the Division Bench satisfied itself that the respondents were to be considered as 'unemployed youth' in terms of the aforementioned advertisement.

21. In a situation of this nature, the interpretation clause should be given a contextual meaning. It is not exhaustive. It is trite that when a statutory enactment defines its terms, the same should govern what is proved, authorized or done under or by reference to that enactment. It is also trite that all statutory F definitions have to be read subject to the qualification variously expressed in the interpretation clause, which created them. In Feroze N. Dotivala v. P.M. Wadhwani and Others [(2003) 1 SCC 433], this Court held: "11. It appears that the legislature only intended that in cases where the landlord residing in a premises, parts with possession of a part of it, it would always be open to him to regain the possession of the whole as and when the licensor may so deem necessary. The question of acquiring common lease right by a person not a member PAUL ENTERPRISES & ORS. v. RAJIB CHATiERJEE & 273 CO. & ORS. [S.B. SINHA, J.] of the family may not arise. This is a plain and simple meaning flowing from the definition of the words "paying guest" under the Act. Introducing any other element or ingredient to give meaning to the words "paying guest" as may be prevalent under any other law or under English law will be doing violence to the definition of the words "paying guest" as defined under the Act." In State of Maharashtra v. 8.E. Billimoria [(2003) 7 SCC 336], this Court observed: "32. It is well settled that the provisions of the statule are c to be read in the text and context in which they have been enacted. It is well settled that in construction of a statute an effort should be made to give effect to all the provisions contained therein. It is equally well settled that a statute should be interpreted equitably so as to avoid hardship … " In P. Kasilingam-v. P.S.G. College of Technology [1995 Supp (2) SCC 348], this Court held: "A particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word 'means' indicates that "definition is a hard- and-fast definition, and no other meaning can be assigned )r to the expression than is put down in definition". (See : Gough v. Gough; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court) The word 'includes' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that G they shall include. The words "means and includes", on the other hand, indicate 'an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably .be attached to these words or expressions'." c In K. V. Muthu v. Angamuthu Ammal [(1997) 2 SCC 53], this Court held: "10. Apparently, it appears that the definition is conclusive as the word "means" has been used to specify the members, namely, spouse, son, daughter, grandchild or dependant parent, who would constitute the family. Section 2 of the Act in which various terms have been defined, opens with the words "in this Act, unless the context otherwise requires" which indicates that the definitions, as for example, that of "family", which are indicated to be conclusive may not be treated to be conclusive if it was otherwise required by the context. This implies that a definition, like any other word in a statute, has to be read in the light of the context and scheme of the Act as also the object for which the Act was made by the legislature. 11. While interpreting a definition, it has to be borne in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted. 12. Where the definition or expression, as in the instant case, is· preceded by the words "unless the context otherwise requires", the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied." In Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union [(2007) 4 SCC 685), this Court held: "23. Section 2(bb) of the ID Act as initially introduced by Act 54 of 1949 used the words "means … and includes" PAUL ENTERPRISES & ORS. v. RAJIB CHATIERJEE & 275 CO. & ORS. [S.S. SINHA, J.] and was confined to a "banking company" as defined in Section 5 of the Banking Companies Act, 1949, having branches or other establishments in more than one province and includes Imperial Bank of India. Similarly, Section 2(kk), which was also introduced by Act 54 of 1949, defines insurance company as "an insurance company as defined in Section 2 of the Insurance Act, 1938 (4 of 1938), having branches or other establishments in more than one province". It is trite to say that when in the definition clause given in any statute the word "means" is used, what follows is intended to speak exhaustively. When the word "means" is used in the definition, to borrow the words of Lord Esher, M.R. in Gough v. Gough it is a "hard- and-fast" definition and no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam v. P.S.G. College of Technology.) On the other hand, when the word "includes" is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other." 22. Even if we apply the standards which are applicable in the industrial law meaning thereby Section 178 of the Industrial Disputes Act, 1947 as also a situation where the question arises as to grant of back wages for not being able to gainfully employed, a person living on mere subsistence earning as of necessity is not considered to be gainfully employed. [See Novartis India Ltd. v. State of West Bengal and Ors. [2008 (15) SCALE 470] c {2009] 1 S.C.R. Keeping in view the interpretative tools required to be used in a case of this nature, we are of the opinion, despite the fact that the respondents had been earning some money, the same would not disentitle them to take part in the selection process for grant of a license in terms of the order. The advertisement in question keeping in view the text and context in which it was issued clearly go to show that for the purpose of applying for grant of a liquor shop, the respondents were qualified having been continuing to be registered in the Employment Exchange and having been granted a certificate in that behalf by the person specified in the advertisement. It is not a case where the word 'unemployed' should be given a literal or even the dictionary.meaning. In our view, it is required to be given a purposive meaning; a meaning which is capable of being translated in the action, a meaning which would not lead to an anomaly or absurdity; a meaning which satisfies the text and context in which the word has been used. 23. Furthermore, the appellant No. 1 applied for and was granted the similar certificate. It is, therefore, too late in the day for him to contend now that the provisions relating to grant of certificate being devoid of any guideline or objective criteria should be declared ultra vires . In any event, even otherwise, the validity and/or legality of the said Order has not been c;hallenged. 24. For the reasons aforementioned, the appeals are dismissed. In the facts and circumstances of the case, however, there shall be no order as to costs. G R.P. Appeals dismissed.