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Good morning!!

My project topic is on the legal maxim Generalia specialibus non derogant.

My research objectives are:

To understand the meaning and background of the maxim Generalia specialibus non
derogant
To analyze the application of this maxim in different case laws.
To study the limits and criticisms of the maxim.

My research questions include:

1. What is meant by the maxim Generalia specialibus non derogant?


2. What is the significance of this Maxim?
3. How is this maxim practically applied while interpreting a statute and deciding a case?
4. What are the limits and criticisms of the Maxim?

This is a legal maxim which is used for interpreting and construction of certain statutes when
there are some contradiction arising out of more than one statute or provision dealing with the
same matte.

Background:

This principle has descended from the case of Barker v Edger where there arose a contradiction
between a special act and a general act and has been affirmed and put into effect on many
occasions.
It is based, like other linguistic canons of construction, on the rules of logic, grammar, syntax
and punctuation, and the use of language as a medium of communication generally.
This maxim is invoked inorder to determine the scope of a general enactment with
reference to a special enactment.
The maxim is basically based on the presumption that when the legislature had
considered a subject and made provision regarding the same over the general provisions
on the same subject, there is something significant about the special provision and
therefore it should be given preference over the general provision.
Meaning:

The general meaning of the maxim is that the general statutory provision does not repeal a
specific one. That is, If A Special Provision Has Been Made On A Certain Matter,
That Matter Is Excluded From The General Provisions.

This is elaborated in the case of Barker v. Edger, saying that, When the legislature has given its
attention to a separate subject, and made provisions for it, the presumption is that a subsequent
general enactment is not intended to interfere with special provision unless it manifests that
intention very clearly.

Different wordings are used in different case laws to explain this maxim. A few are:

Explanations given under case laws:

Dor v Verdun,
Lalonde v Sun Life:
R v Greenwood,

The rule may apply either to two separate statutes, or to provisions within the same Act.

But so far this maxim has not been applied when the two provisions deal with remedies, as the
validity of plural remedies cannot be doubted. Even if the two remedies happen to be
inconsistent, they continue for the person concerned to choose from, until he elects one of
them.

The requisite conditions for applying this maxim are:

(1) Both the general enactment and particular enactment must be simultaneously operative,
the general enactment covering the larger field and the particular enactment covering a limited
field out of a larger field covered by the general enactment.

(2) There must be nothing contained in the general provisions indicating the legislative intent
to overrule or set aside the particular provision.
Now let us consider two conditions:

1st special act exists and then general act comes into existence:

And the general act includes the subject of the special act, and is in conflict with special act.

What should be done? Whether we should take into consideration the special act or the general
act?
Generally the decision on this is taken by considering the legislative intent.
That is, unless it is clear that in making the general act, the legislature has had the special
act in its mind and has intended to abrogate it, the provisions of the general act do not
override the special act.

Rohtas v. State of Haryana:

Section 5 of CrPc, 1973 recognizes the continuance of special form of procedure under any law
for the time being in force. In this case it was held that Haryana Childrens Act, 1974 (the special
provision) which came into force on 1st March, 1974 was not repealed by the code (i.e.the
general provision) which came into force on 1st April, 1974. Because the intention of the
legislature is clear from section 5 of Crpc.

The second situation is,

1st there exists a general act and then a special act is enforced with the subject matter relating to
the general act and again the Assumption is made that the legislature had in mind its own general
act when it made the special act and the special act which is in conflict with the general act is
considered as an exception to the general act.

When such situation arises, the special provision is only illustrative and does not in any restirict
the general power which was held in Om PRAKASH V. Uoi.

Subramanian Swamy v. Manmohan Singh:

Section 19(1) of prevention of corruption act, 1988 which is special provision that particularly
deals with sanction from authorities to prosecute public servants. And section 190 of Crpc, 1973
the general provision which was enacted before the special provision deals with the cognizance
of offence. The court in this judgment relied on the special statute to give its judgment.

This maxim acts as an exception to the maxim Leges posteriors priores contraries abrogent
(Later laws abrogate earlier contrary law is subject to the exception embodied in this maxim) But
however if both the laws enacted are special statutes then this maxim will be applied.

As held in Ashoka Marketting ltd v. Punjab National bank.

Anvar v. Basheer

The main issue in this case was whether the General Law relating to Secondary
Evidence is applicable to Electronic Evidences?
The court in this case overruled the judgment given in the case of NCT of
Delhi v. Navjot Sandhu which is famously called as Afsan Guru case. The Afsan guru
case held that Sections 61-65 of the Evidence Act can be used when the conditions
mentioned under section 65B were not met. i.e., even if the requirements under
section 65B(4) were not satisfied, evidence could be produced under sections 63
and 65 of the Evidence Act.

Sections 61-65 deal with the general documentary evidence (hence, the general law),
section 65 A and 65B refers to one special component- electronic records (hence, the
special law).

But supreme court in this case held that the provisions of sections 65A and 65B of
the Evidence Act creates special law that overrides the general law of documentary
evidence by relying on the maxim Generalia specialibus non derrogant.

Cusack v. London Borough of Harrow:

Mr.Cusack has a parking area infront of his building which is infront of a highway for his staffs.
In order to park their vehicles everyone has to cross a pavement. The highway authorities issued
notice to him stating that they are going to raise a barrier inorder to prevent the movement of the
vehicles through the pavement. Mr. Cusak sought injunction to restrain them from constructing
the barriers.

The statute at issues are: Section 66(2) and 80(1) of the Highways Act 1980 (the Act)

Section 66(2)gives authority to protect the highway maintainable under the authority by raising
pillars, walls, rails or fence.And by virtue of section 66(8), a highway authority is obliged to pay
compensation to any person sustaining damage due to works undertaken by the highway
authority under section 66(2).

Section 80(1)(a) of the Act allows a highway authority to erect and maintain fences or posts for
the purpose of preventing access tothe lands maintainable by the authority at public expense
by them.

Unlike section 66, however, section 80 contains no provision requiring compensation to be paid
to any person who sustains damage by reason of the exercise of the power in question.

The County Court and the High Court ignored the application of the maxim Generalia
specialibus Nonderrogant and accepted the Councils contention that it could proceed under
section 66(2) or under section 80(1)(a) of the Act. And hence the highway authorities proceeded
under section 80(1) and paid no compensation to Mr. Cusak.

But the court of appeal took a different view by applying the maxim stating that section 66(2) is
a specific provision which prevails over the general provision section 80(1)(a).

Sultan Begum v. Premchand Jain

Appellant is the landlady of the premises, "Pink City Hotel", Mumtaz Bagh, Jaipur, which was in
occupation of the respondent as a tenant against whom a suit for eviction was filed, which
ultimately ended in a compromise.

The compromise decree which was passed provided that the respondent would vacate the
premises and hand-over its possession to the appellant or to her attorney. The appellant filed an
application for execution. But the respondent contented that her power of attorney allowed the
respondent to remain in possession of the premises.

The trial court and the high court allowed the objections of the respondent.

Then the appellant appealed in the supreme court contending that, the agreement set out by the
respondent under section 47 of CPC that the possession of the disputed premises as handed over
to the appellants authority in pursuance of the compromise decree and that the attorney allowed
him to stay on the premises as a licencee on payment of licence fee amounted to the adjustment
of the decree within the meaning of Order XXI Rule 2 of CPC and therefore couldnot be
recognized by the executing court in view of the bar under the subrule 3.

Therefore here arise the conflict between section 47 and Order XXI rule 2 subrule 3 of Cpc
which was sorted out by using the maxim.

Section 47 gives full jurisdiction and power to the executing court to decide all questions relating
to execution, discharge and satisfaction of the decree. Order XXI Rule 2 including the subrule 3,
however, places a restraint on the exercise of that power by providing that the executing court
shall not recognise or look into any uncertified payment of money or any adjustment of decree.

Hutch v. the governor of wheatfield prison:

The main issue in this case was whether a young person who is of between the ages 15 and 17
years who had been convicted of an indictable offence tried summarily, could be sentenced for
the period of detention applicable to an adult (under the criminal justice act, 1951), or

whether the sentence was limited to three months imprisonment under the terms of the summary
jurisdiction over children (Ireland) act, 1884.
The court held that since the 1951 act was a general act, and the 1884 act had a special
application, the maxim generalia specialibus non derogant applied. Therefore, the 1884 act was
not impliedly amended or repealed by the 1951 act, and the possible sentence was limited to
three months imprisonment.

State Of Gujarat & Anr. Etc. Etc v. Patel Ranjibhai Dhanbhai & Ors:

The respondent an unregistered dealer had not pay tax.


Section 33 (6) of Bombay Sales Tax Act is the special provision that deals with unregistered
dealers who evades tax. Section 35 of the act deals generally with the people who evade tax.
Thus the court considered both the provisions and said that in 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.

Limits:

when there is a conflict between basic natural rights, even though not specifically declared by the
constitution, and the provisions of any general or special law, it is the basic right of natural
justice that would prevail, and such provisions being in conflict with it must consequently give
way.

Subal Paul v. Malina Paul:

In this case it was held that the appellate jurisdiction of the superior court would not be excluded
simply because the lower court exercises its special jurisdiction under the 1925 act

An exception to the said rule would be when the special Act sets out a self contained code, in
which case the applicability of the general law procedure would be impliedly excluded

S.Prakash v. KM Kurian

If the language of the general provision is clear and unqualified, it would prevail over
earlier special provisions, and special provisions must give way to general provisions.

If the intention of the rule-making authority is to sweep away all special rules and to establish a
uniform pattern, the special rules ought to give way

Criticisms:

This maxim is often confused and applied interchangeably with the maxim EXPRESSIO
UNIUS.(To express onething to exclude other things)
The courts in many cases fails to locate the corresponding special statute of the general
statute and give worng judgments due to which again the cases are filed on an appeal and
the courts time is wasted.
The maxim is often left unapplied due to the existence of the other maxim Leges
posteriors priores contraries abrogent (Later law prevails over the general law) which
is contrary the this maxim.
Often when situations come to look upon the legislative intent of the newly enacted
provision to apply the same different courts understands the legislative intention in
different manner and hence the judgments differ even though the subject matter is one
and the same.

Conclusion:

The maxim is an efficient tool of interpretation which helps in determining the scope of general
provisions with reference to special provisions. Even though there are some criticism s faced by
this maxim, it would be difficult to interpret general and special provisions without this maxim
and hence this maxim should be in practice.

Thank you.