Shall Not Be Necessary / The Revival of Ray XLV

The expression ‘shall not be necessary’ is used in various statutes and even in the Constitution. This expression is used in the first proviso to Article 311(2) and in proviso to Article 320(3). Some of the cases in which similar expression occurring in statutes was taken into account and effect was given to its plain language are:

i) Proviso to Section 63(3) of The Motor Vehicles Act, 1939 [Ibrahim v. The State Transport Appellate Tribunal, Madras, (1970) 2 SCC 233],

ii) Order XXX, Rule 4 of The Code of Civil Procedure, 1908 [Sohanlal v.  Amir Chand, (1973) 2 SCC 608; Upper India Cable Co. v. Bal Kishan (1984) 3 SCC 462 and in Brij Kishore Sharma v. Ram Singh (1996) 11 SCC 480],

iii) Proviso to Section 68 of The Indian Evidence Act, 1872 [Rasammal Issetheerammal Fernandez v. Joosa Mariyam Fernandez, (2000) 7 SCC 189].

As against the general principle which mandates an action in a particular manner, when an exception is to be carved out, the relevant provisions stipulate “it shall not be necessary” to adhere to and follow the manner mandated by such general principle; and if the contingency contemplated by such exception arises, the general principle is to stand overridden.

Hon’ble Justice U.U. Lalit, Vodafone Idea Ltd. v. Assistant Commissioner of Income Tax Circle 26(1), [Civil Appeal No. 2377 of 2020].