{"id":16380,"date":"1966-12-07T00:00:00","date_gmt":"1966-12-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/superintendent-legal-vs-corporation-of-calcutta-on-7-december-1966"},"modified":"2016-09-03T06:10:36","modified_gmt":"2016-09-03T00:40:36","slug":"superintendent-legal-vs-corporation-of-calcutta-on-7-december-1966","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/superintendent-legal-vs-corporation-of-calcutta-on-7-december-1966","title":{"rendered":"Superintendent & Legal … vs Corporation Of Calcutta on 7 December, 1966"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Superintendent & Legal … vs Corporation Of Calcutta on 7 December, 1966<\/div>\n
Equivalent citations: 1967 AIR 997, \t\t 1967 SCR (2) 170<\/div>\n
Author: K S Rao<\/div>\n
Bench: Rao, K. Subba (Cj), Wanchoo, K.N. & Shah, J.C., Sikri, S.M. & Bachawat, R.S., Ramaswami, V. & Shelat, J.M., Bhargava, Vishishtha & Vaidyialingam, C.A.<\/div>\n
           PETITIONER:\nSUPERINTENDENT & LEGAL REMEMBRANCER,STATE OF WEST BENGAL\n\n\tVs.\n\nRESPONDENT:\nCORPORATION OF CALCUTTA\n\nDATE OF JUDGMENT:\n07\/12\/1966\n\nBENCH:\nRAO, K. SUBBA (CJ)\nBENCH:\nRAO, K. SUBBA (CJ)\nWANCHOO, K.N.\nSHAH, J.C.\nSIKRI, S.M.\nBACHAWAT, R.S.\nRAMASWAMI, V.\nSHELAT, J.M.\nBHARGAVA, VISHISHTHA\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1967 AIR  997\t\t  1967 SCR  (2) 170\n CITATOR INFO :\n R\t    1967 SC1643\t (57)\n D\t    1967 SC1831\t (7)\n F\t    1968 SC 360\t (4,12)\n R\t    1969 SC 843\t (11)\n R\t    1973 SC1425\t (28)\n\n\nACT:\nCalcutta  Municipal Act (W.B. 33 of 1951), ss. 218 and\t541-\nTaking out licence to run market-State if bound by  statute;\nif exempted by implication.\nState  Immunity-Rule  that  Crown is not  bound\t by  statute\nunless\texpressly named or clearly intended, if\t applies  to\nIndia.\nInterpretation\tof  Statutes-State immunity  from  statutes-\nCommon law rule of construction if proper rule.\nConstitution  of  India, Art. 372-Rule of  construction,  if\n\"law in force.\"\n\n\n\nHEADNOTE:\nThe appellant-State of West Bengal was carrying on trade  as\nowner and occupier of a market at Calcutta without obtaining\na licence as required under s. 218 of the Calcutta Municipal\nAct,  1951.  The respondent-Corporation of Calcutta filed  a\ncomplaint against the State for contravention thereof.\t The\ntrial Magistrate, accepting the State's contention that\t the\nState  was not bound by the provisions of the Act  acquitted\nthe State. on appeal, theHigh Court convicted the State\nand sentenced it to a fine, holding thatthe  State  was\nas  much bound as a private citizen to take out\t a  licence.\nIn  appeal to this Court the appellant, relying\t on  this\nCourt's decision inDirector of Rationing v. Corporation\t of\nCalcutta,<\/a> [1961] 1 S.C.R. 158,contended that the  State\nwas  not bound by the provisions of a statute unless it\t was\nexpressly  named or brought in by necessary implication\t and\nthis common law rule of construction, accepted as the law in\nIndia  was \"law in force\" within the meaning of Art. 372  of\nthe  Constitution  and\tthat  in  any  event  by   necessary\nimplication the State was excluded from the operation of  s.\n218 of the Act.\nHeld:Per  Subba\t Rao C.J.,  Wanchoo,  Sikri,  Bachawat,\nRamaswami, Shelat, Bhargava and Vaidialingam, JJ. (Shah,  J.\ndissenting) :\nThe State was not exempt from the operation of s. 218 of the\nCalcutta Municipal Act, 1951 and was rightly convicted.\nPer  Subba  Rao C. J. Wanchoo,\tSikri,\tRamaswami.   Shelat,\nBhargava  and Vaidialingam, JJ. (i) The Common Law  rule  of\nconstruction  that the Crown is not, unless expressly  named\nor  clearly intended, bound by a statute,, was not  accepted\nas  a rule of construction throughout India and even in\t the\nPresidency Towns, it was not regarded as an inflexible\trule\nof  construction.  It was not statutorily recognized  either\nby  incorporating  it in different Acts or  in\tany  General\nClauses\t Act; at the most, it was relied upon as a  rule  of\ngeneral\t  guidance  in\tsome  parts  of\t the  country.\t The\nlegislative   practice\t establishes   that   the    various\nlegislatures of country provided specifically, exemptions in\nfavour of the Crown\n 171\nwhenever they intended to do so indicating thereby that they\ndid  not  rely\tupon any presumption  but  only\t on  express\nexemptions.   Even those courts that accepted it  considered\nit only as a simple canon of construction and not as a\trule\nof  substantive law.  In the City of Calcutta there  was  no\nuniversal recognition of the rule of construction in  favour\nof  the Crown.\tThe Privy Council, in Province of Bombay  v.\nCorporation  of the City of Bombay,<\/a> (1946) L.R. 73  I.A.  27\ngave  its approval to the rule mainly on concession made  by\ncounsel. [180 D-G; 183 H; 184 E-F; 186 D-G]\nThe archaic rule based on the prerogative and perfection  of\nthe  Crown has no 'relevance to a democratic republic it  is\ninconsistent with the rule of law based on the, doctrine  of\nequality and introduces conflicts and anomalies.  The normal\nconstruction, namely, that an enactment applies to  citizens\nas  well  as to State unless it expressly  or  by  necessary\nimplication  exempts  the State from its  operation,  steers\nclear  of  all\tthe anomalies and  is  consistent  with\t the\nphilosophy  of equality enshrined in the Constitution.\t[187\nF; 188 B]\nIf  a  rule  of\t construction  accepted\t by  this  Court  is\ninconsistent  with the legal philosophy of the\tConstitution\nit  is\tthe duty of this Court to correct its self  and\t lay\ndown the right rule.  This Court must more readily do so  in\nconstitutional\tmatters than in other branches of law.\t[176\nB-C]\nDirector  of Rationing v. Corporation of Calcutta,<\/a> [1961]  1\nS.C.R. 158,, reversed.\nProvince  of  Bombay v. Corporation of the City\t of  Bombay,<\/a>\n(1946) L.R. 73 I.A. 271, held inapplicable.\nBengal Immunity Co. v. State of Bihar,<\/a> [1955] 2 S.C.R.\t603,\nreferred to.\nCase law discussed.\n(ii)Even assuming that the common law rule of  construction\nwas  accepted as a canon of interpretation throughout  India\nthe rule is not \"law in force\" within the meaning of Article\n372 of the Constitution.  There is an essential\t distinction\nbetween\t a  law\t and  a rule of\t construction.\t A  rule  of\nconstruction  adopted  to  ascertain the  intention  of\t the\nlegislature is not -a rule of law. [187 D]\n(iii)The State is not excluded from the operation of s.\n218  of the Act by necessary implication.  The State is\t not\nthe payer as well as the receiver of the fine, or the  fine,\nwhen  levied  goes  to\tthe  municipal\tfund.\tThough\t the\nexpression  fine' is used, in effect and substance,  section\n541 is a mode of realization of the, fee payable in  respect\nof  the licence.  The provision for imprisonment in  default\nof  fine is only an enabling provision and the court is\t not\nbound to direct the imprisonment of the defaulter. [189 D-H;\n190 A-B]\nPer Bachawat, J : (i) This Court should have in Director  of\nRationing  and\tDistribution  v.  Corporation  of  Calcutta,<\/a>\n[1964] 1 S.C.R. 158, refused to recognise the rule that\t the\nCrown is not bound by a statute save by express words or  by\nnecessary implication.\tIn India the Crown never enjoyed the\ngeneral\t prerogative of overriding a statute  and  'standing\noutside\t it.   The doctrine of the general immunity  of\t the\nCrown  from the operation of statutes so far as it is  based\nupon  the 'royal prerogative was never imported into  India.\nNor  is there any compelling reason why the courts in  India\nshould\tnot  give  full effect to the  general\twords  of  a\nstatute on the basis of some artificial rule of construction\nprevailing  in England.\t The bulk of the Indian\t legislation\nproceeds  upon\tthe assumption that the Government  will  be\nbound unless the contrary is stated.  The\n172\nrule,as\t rule  of  construction, never\tgained\ta  firm\nfoothold in untilthe  Privy Council decision in\t Province\nof  Bombay v. Municipal Corporation for the City of  Bombay,\n(1946) L.R. 73 I.A. 271, in 1946, till which time there\t was\nno  settled  course  of\t decisions  of\tthe  Indian   courts\nnecessitating or justifying the application of this rule  to\nthe  construction  of  Indian statutes;\t and  even  in\tthis\ndecision  the  propriety  of  applying the  rule  to  Indian\nlegislation  was  not considered.  The\timposition  of\tthis\nstrict\trule  of  construction\tby  the\t Privy\tCouncil\t was\nreceived  very\tunfavourably  in  India\t till  this  Court's\ndecision in the Director of Rationing case wherein  Province\nof  Bombay was held to have laid down the correct law.\t But\nsubsequent  decisions of this Court disclosed a tendency  to\nrelax  and  soften the rigour of the rule.   Further,  in  a\ncountry\t having\t a  federal  system  of\t government  it\t  is\ndifficult  to  apply  the  rule\t of  Crown  exemption\tfrom\nstatutes.  This rule was not in force in India and therefore\nwas not \"law in force\" within the meaning of Art. 372 of the\nConstitution.  [201 D-E; 202 C; 210 A-B, C-D; 205 F; 208  C,\nH; 210 H; 211 F]\nThis  Court has power to reconsider its\t previous  decisions\nand this is a fit case where this power should be exercised.\n[211 E]\nDirector  of Rationing v. Corporation of Calcutta,<\/a> [1961]  1\nS.C.R.\t158,  reversed.\t  Province of  Bombay  v.  Municipal\nCorporation for the City of Bombay, (1946) L.R. 73 I.A. 271,\nheld inapplicable.\nShivenkata  Seetararnanjaneya Rice & Oil Mills v.  State  of\nAndhra Pradesh, [1964] 7 S.C.R. 456 and Bengal Immunity\t Co.\nv. State of Bihar,<\/a> [1955] 2 S.C.R. 603, referred to.\nCase law discussed.\n(ii)On a question of construction of a statute no  rational\ndistinction can be made between the trading and\t non-trading\nactivities of the State. [210 G]\n(iii)There  is nothing in the Act to indicate that  the\nState  should  be  excluded from the purview  of  s.  218(1)\n'requiring  the\t taking out of a licence on payment  of\t the\nprescribed  fee and s. 5441(1) providing the remedy for\t the\nrecovery  of fee in face of default.  If the State is to  be\nexempt from the application of s. 541(1)(b) it would lead to\nthe anomaly that the State is liable to pay the licence\t fee\nbut the Municipality will have no remedy for the recovery of\nthe  fee.  Also, the fact that under s. 547(A) the court  is\ncompetent  to direct imprisonment in default of fine  is  no\nreason\twhy  s.\t 5411 1) (b) should not be  applied  to\t the\nState.\t The special provisions of s. 541(2) indicate  that-\nthe  fine  realizable  under s. 541 is\t-receivable  by\t the\nMunicipality.\tIt follows that the State Government is\t the\npayer  but is not the receiver of the fine.  The fine,\twhen\nlevied, is taken by the Municipality in full satisfaction of\nthe demand on account of the licence fee. [212 H; 213B]\nState of Bihar v. Rani Sonavati Kumari<\/a> [1961] 1 S.C.R.\t728,\nrelied on.\nShah, J. (Dissenting); (i) The English Common Law rule\tthat\nthe  Crown  is\tnot,  unless  expressly\t named\tor   clearly\nintended, bound by a statute, is a rule of construction\t and\nwas  settled law in India before the -Constitution. [197  F;\n198 D]\nThe  Common  Law  of England was  adopted  in  this  country\nsubject\t to  local variations and the personal\tlaw  of\t the\nparties\t and  the  courts which\t functioned  in\t the  former\nBritish India territory were enjoined to cases not  governed\nby any specific statutory rules according to equity and good\nconscience,, which meant rules of English Common Law\n173\nin  so far as they were applicable to Indian society.\tThem\nwas practically a consistent course of decisions of the High\nCourts\tin India, prior to the Constitution, in\t support  of\nthe view, affirmed by the Judicial Committee in Province  of\nBombay\tv.  Municipal  Corporation of the  City\t of  Bombay,<\/a>\n(1946) L.R. 73 I.A. 271, that the rule that the Crown is not\nunless\texpressly  named  or clearly  intended\tbound  by  a\nstatute applied to  India.  It\twas accepted as\t a  rule  of\ninterpretation ofstatutes applicable to\t  all\t statutes\ngoverning state action, authority or property. A  difference\nmay   have  prevailed  in  Parts  of  the  territories\t now\ncomprising theIndian\tUnion. But this is not peculiar\t to\nthis rule of interpretation adoptedby  the  Courts   in\nBritish\t India.\t   Where  uniform  statutes  do\t not   apply\ndifferences do arise and must be determined according to the\nlaw  and jurisdiction inherited by the courts  administering\njustice.   The present case concerns the  administration  of\nlaw  in\t the town of Calcutta which has for  more  than\t two\ncenturies been governed by the English Common Law as adopted\nby the various Acts, Regulations and finally by the  Letters\nPatent. [191 A-D; 192 D-E; 194 F, 195 D-F]\nDirector of Rationing and Distribution v. The Corporation of\nCalcutta,<\/a> [1961] 1 S.C.R. 158, followed.\nProvince  of Bombay v. Municipal Corporation of the City  of\nBom.<\/a> bay, L.R. 73 I.A. 271, applied.\nState  of  West\t Bengal\t v.  Union,<\/a>  [1964]  1\tS.C.R.\t 371\nSrivenkata  Seetaramanjaneya  Rice & Oil Mills v.  State  of\nAndhra\tPradesh,<\/a>  [1964]  7  S.C.R.  456,  Builders   Supply\nCorporation  v.\t Union\tof India,  A.I.R.  1965\t S.C.  1061,\nreferred to.\nCase law referred to.\nThere  is no reason to hold that the rule  which  previously\napplied to the interpretation of a statute ceased to  apply.\non the date on which the Constitution came into force.\t The\nConstitution has not so fundamentally altered our concept of\n'State'\t as  to\t abandon the traditional  view\tabout  State\nprivileges,  immunities\t -and  rights  because\tthey  had  a\nforeign\t origin\t and  on the  supposed\ttheory\tof  equality\nbetween the State and its citizens.  The guarantee of  equal\nprotection clause of the Constitution does not extend to any\ndifferential  treatment which may result in the\t application\nof  a special rule of interpretation between the  State\t and\nthe  citizens  nor has the Constitution\t predicated  in\t all\nrespects  equality in matters of interpretation between\t the\nState  and  its citizens.  A State can, in the\tinterest  of\npublic\tgood,  select itself for  special  treatment.\tThis\nbeing so, there is no reason to suppose that a Statute which\nwas  framed  on\t the basis of a well settled  rule  of\tpre-\nConstitution  days  which  accorded  the  State\t a   special\ntreatment in the matter of interpretation. of statutes\tmust\nbe  deemed  to have a different meaning on  the\t supposition\nthat the Constitution has sought to impose equality  between\nthe State and the citizens. [198 H-199 F]\nThe  fact that in the Indian federal set up  sovereignty  is\ndivided\t between  the  Union  and the  States,\tand  in\t the\napplication  of\t the rule that the State is not bound  by  a\nStatute, unless expressly named or clearly implied, conflict\nbetween-the State enacting a law and the Union,, or  another\nState,\tmay  arise, does not give rise\tto  any\t insuperable\ndifficulty  which  renders  the\t rule  inapplicable  to\t the\nchanged\t circumstances, for, it is the State which enacts  a\nlegislation  in terms general which alone may claim  benefit\nof the rule of interpretation and not any other State.\t[199\nG]\n(ii)The rule of interpretation being a settled rule is \"law\nin force\" within Me meaning of Art. 372 of the Constitution.\nA rule is not any\n174\nthe   less  a  rule  of\t law  because  it  is  a  rule\t for\ndetermination  of the intention of the legislature  and\t for\nits   application  requires  determination  of\t facts\t and\ncircumstances  outside\tthe  statute.\tAcceptance  of\t the\nproposition that a decision of the highest judicial tribunal\nbefore\tthe Constitution, is law, does not involve the\tview\nthat  it is immutable.\tA statue may be repealed,' and\teven\nretrospectively, it would then cease to be in ,operation;  a\ndecision which in the view of this Court is erroneous may be\noverruled and may cease to be regarded as law, but till then\nit was law in force. [198 D-G]\n(iii)The  application of the rule cannot be  restricted\nto  cases  where  an action of the State  in  its  sovereign\ncapacity  is in issue.\tIn the context of modem\t notions  of\nthe functions of a welfare State, it is difficult to  regard\nany particular activity of the State as exclusively trading.\n[200 A-B]\n(iv)The\t State\tof  West  Bengal  was  not  bound  by\tthe\nprovisions relating to the issue of licences for  occupation\nor conduct of a market. [200 F]\nThere  is no, express reference to the State, nor  is  there\nanything peculiar in the nature purpose and object or in the\nlanguage  used\tin the enactment relating to  the  issue  of\nlicences, which may suggest that the State must by necessary\nimplication be bound by its provision. [200 E]\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193  of
\n1964.\n<\/p>\n
Appeal from the judgment and order dated April 29, 1964\t ,of
\nthe Calcutta High Court in Criminal Appeal No. 369 of 1962.
\nS.   D.\t Banerjee,  Advocate-General for the State  of\tWest
\nBengal,
\nB.   Sen,  P. K. Chatterjee, M. K. Banerjee and P. K.  Bose,
\nfor the appellant.\n<\/p>\n
M.C.  Setalvad,\t A. N. Sinha and Sukumar Ghose,\t for  the
\nrespondent,
\nN.S. Bindra, R. H. Dhebar and R. N. Sachthey, for  inter-
\nvener No. 1.\n<\/p>\n
A.   V. Rangam, for intervener No. 2.\n<\/p>\n
V.   A.\t Seyid\tMuhamad, Advocate-General for the  State  of
\nKerala and A. G. Puddisery, for intervener No. 3.
\nO.   P. Rana, for intervener No. 4.\n<\/p>\n
I.   N. Shroff, for intervener No. 5.\n<\/p>\n
K.   B. Mehta, for intervener No. 6.\n<\/p>\n
The Judgment of SUBBA RAO, C.J., WANCHOO, SIKRI,  RAMASWAMI,
\nSHELAT,\t BHARGAVA  and VAIDIALINGAM, JJ.  was  delivered  by
\nSBBBA\tRAO,  C.  J.  BACHAWAT\tJ.,  delivered\ta   separate
\nconcurring  Judgment.\tSHAH,  J.  delivered  a\t  dissenting
\nOpinion.\n<\/p>\n
Subbarao,  C.J. This Full Bench of 9 Judges has\t been  cons-
\ntituted to consider the correctness of the decision of\tthis
\nCourt
\n 175<\/span>
\nin Director of Rationing and Distribution v. The Corporation
\nof Calcutta<\/a>(1).\n<\/p>\n
The  relevant facts are simple and are not in dispute.\t The
\nState  of West Bengal was carrying on the trade of  a  daily
\nmarket at 1, Orphanganj Road, Calcutta, without obtaining  a
\nlicence\t as required under s. 218 of the Calcutta  Municipal
\nAct,  1951 (West Bengal Act 33 of 1951)\t hereinafter  called
\nthe  Act.   The Corporation of Calcutta\t filed\ta  complaint
\nagainst\t the  State  of\t West Bengal in\t the  Court  of\t the
\nPresidency and Municipal Magistrate, Calcutta, under s.\t 541
\nof  the\t Act  for  contravening the  provisions\t of  s.\t 218
\nthereof.   Under  s.  218  of  the  Act,  every\t person\t who
\nexercises  or carries on in Calcutta any trade,\t shall\ttake
\nout  a\tlicence and shall pay for the same such\t fee  as  is
\nmentioned  in  that  behalf  in\t Schedule  IV  to  the\tAct.
\nAdmittedly  for\t the year 1960-61, the\tGovernment  of\tWest
\nBengal did not take out a licence under the said section but
\ncarried\t on  the  said trade.  The main\t contention  of\t the
\nGovernment  was\t that the State was not bound  by  the\tpro-
\nvisions\t of the Act.  The learned Magistrate, accepting\t the
\nsaid  contention, acquitted the State.\tOn appeal, the\tHigh
\nCourt  of Calcutta held that the State was carrying  on\t the
\nbusiness of running a market and, therefore, it was as\tmuch
\nbound  as  a  private citizen to take  out  a  licence.\t  It
\ndistinguished  the  decision of this Court  in\tDirector  of
\nRationing and Distribution v. The Corporation of Calcutta<\/a>(1)
\non the ground that the said decision was concerned with\t the
\nsovereign activity of the State.  In the result the State of
\nWest  Bengal  was convicted under s. 537 of the\t Act-s.\t 537
\nappears\t to be a mistake for s. 541-and sentenced to  pay  a
\nfine  of Rs. 250, with the direction that when realized,  it
\nshould\tbe  paid  to the  Corporation.\t Hence\tthe  present
\nappeal.\n<\/p>\n
Learned Advocate General of West Bengal raised before us the
\nfollowing  points:  (1)\t The  State  is\t not  bound  by\t the
\nprovisions  of\ta statute unless it is\texpressly  named  or
\nbrought in by necessary implication; (2) the said  principle
\nequally applies to sovereign and non-sovereign activities of
\na State; and Mr. N. S. Bindra, learned counsel appearing for
\nthe  Attorney  General\traised before us  the  third  point,
\nnamely,\t this Court has no power under the  Constitution  to
\nreview its earlier judgment.\n<\/p>\n
While  the learned Advocate General contended that the\trule
\nof  construction  in  favour of the State was  part  of\t the
\ncommon\tlaw of England accepted as the law of  this  country
\nand, therefore, was law in force within the meaning of\tArt.
\n372  of the Constitution, Mr. N. S. Bindra argued  that\t the
\nsaid rule of construction was law of the land in that it was
\ndeclared  to be so by the Judicial Committee in Province  of
\nBombay v. Municipal Corporation of
\n(1)  [1961] 1 S.C.R. 158.\n<\/p>\n
176<\/span><\/p>\n
the   City of Bombay(1) and, therefore, it was law in  force
\nwithin the meaning of Art. 372 of the Constitution.
\nThe  third  contention need not detain us, for it  has\tbeen
\nrejected  by  this  Court in  The  Bengal  Immunity  Company
\nLimited v. The State of Bihar<\/a>(2). There a Bench of 7  Judges
\nunanimously held that there was nothing in the\tConstitution
\nwhich  prevented  the Supreme Court from  departing  from  a
\nprevious  decision  of its own if it was  satisfied  of\t its
\nerror and of its baneful effect on the general interests  of
\nthe public.  If the aforesaid rule of construction  accepted
\nby  this Court is inconsistent with the legal philosophy  of
\nour  Constitution, it is our duty to correct  ourselves\t and
\nlay  down the right rule.  In constitutional  matters  which
\naffect the evolution of our polity, we must more readily  do
\nso  than  in  other branches of law, as\t perpetuation  of  a
\nmistake\t  will\tbe  harmful  to\t public\t interests.    While
\ncontinuity  and\t consistency  are conducive  to\t the  smooth
\nevolution  of  the  rule  of law,  hesitancy  to  set  right
\ndeviations will retard its growth.  In this case, as we\t are
\nsatisfied that the said rule of construction is inconsistent
\nwith  our republican polity and, if accepted, bristles\twith
\nanomalies, we -have no hesitation to reconsider our  earlier
\ndecision.\n<\/p>\n
At  the outset it will be convenient to notice the facts  of
\nthe  decision  of this Court in Director of  Rationing\tand’
\nDistribution  v.  The  Corporation of  Calcutta<\/a>(3)  and\t the
\nreasons\t given by this Court for applying the said  rule  of
\nconstruction  to an Indian statute.  There, the Director  of
\nRationing  and\tDistribution was using certain\tpremises  in
\nCalcutta for storing rice flour, etc. without taking out any
\nlicence\t under s. 385 (1)(a) of the Calcutta Municipal\tAct,
\n1923.\tThe  Corporation  of,  Calcutta\t filed\ta  complaint
\nagainst the said Director in the Magistrate’s Court for\t the
\ncontravention  of the said provision.  This Court held\tthat
\nthe  State was not bound by the provisions of s. 386  (1)(a)
\nof  the\t said Act and that the appellant was not  liable  to
\nprosecution  for  the  contravention of\t the  said  section.
\nSinha,\tC.  J., speaking for Imam and Shah,  JJ.,  gave\t one
\njudgment,  Sarkar,  J.,\t gave  a  separate  but\t  concurrent
\njudgment,  and\tWanchoo,  J.,  recorded\t his  dissent.\t The
\nreasoning of Sinha, C.J., is found in the following  passage
\n:\n<\/p>\n
\t      “It is well-established that the common law of
\n\t      England  is  that the  King’s  prerogative  is
\n\t      illustrated by the rule that the Sovereign  is
\n\t      not necessarily bound by a statutory law which
\n\t      binds  the subject.  This is further  enforced
\n\t      by  the rule that the King is not bound  by  a
\n\t      statute unless he is expressly named or unless
\n\t      he  is  bound  by\t necessary  implication\t  or
\n\t      unless, the statute being for the public good,
\n\t      it  would be absurd to exclude the  King\tfrom
\n\t      it.” (at page 170).\n<\/p><\/blockquote>\n
(1) [1946] L.H. 73 I.R. 271.\t\t\t  (2) [1955]
\n2 S.C.R. 603.\n<\/p>\n
(3 [1961] 1 S.C.R. 158
\n 177<\/span>
\n\t      “That  was  law applicable to India  also,  as
\n\t      authoritatively laid down by the Privy Council
\n\t      in the case referred to above [(1946) L. R. 73
\n\t      I.A.  271)]…… it (law in force under\tArt.
\n\t      372  of the Constitution) must be\t interpreted
\n\t      as  including the common law of England  which
\n\t      was adopted as the law of this country  before
\n\t      the  Constitution\t came into  force.”  (At  p.\n<\/p>\n
\t      173).\n<\/p>\n
Sinha,\t C.J.,\ttherefore,  held  that\tthe  said  rule\t  of
\nconstruction was, part of the common law of England, that it
\nwas  adopted  by  this, country and that  Art’\t372  of\t the
\nConstitution  continued it.  Sarkar, J., on the other  hand,
\nagreed with the conclusion arrived at by Sinha, C.J., but on
\na  different  ground.  He based his conclusion\tnot  on\t any
\ncommon law doctrine, but simply on the ground that the\tsaid
\nrule  of construction of statutory provisions  was  accepted
\nand followed in England, America and India.  Wanchoo, J., in
\nhis  dissent, put the case in a different perspective.\t The
\nfollowing, passage brings out his line of thought :\n<\/p>\n
\t      “Two   things  are  clear\t from  this   modern
\n\t      conception  of royal prerogative,\t namely\t (1)
\n\t      that there must be a Crown or King to whom the
\n\t      royal  prerogative attaches, and (2) that\t the
\n\t      prerogative must be part of the common law  of
\n\t      England.\t Both these conditions existed\twhen
\n\t      the  Privy  Council decision in  Province1  of
\n\t      Bombay v. Municipal Corporation of the City of
\n\t      Bombay<\/a>(1) was given in October 1946; the\tKing
\n\t      was  still  there and the Privy  Council\theld
\n\t      that the English common law rule of  construc-
\n\t      tion applied to Indian legislation as much  as
\n\t      to English ,statutes.” (At p. 184).
\n\t      “In  our country the Rule of Law prevails\t and
\n\t      our  Constitution\t has guaranteed\t it  by\t the
\n\t      provisions  contained in Part III\t thereof  as
\n\t      well   as\t  by  other  provisions\t  in   other
\n\t      Parts……  It is to my mind inherent in\t the
\n\t      conception of the Rule of Law that the  State,
\n\t      no less than its citizens and others, is bound
\n\t      by the laws of the land.\tWhen the King as the
\n\t      embodiment of all power-executive, legislative
\n\t      and   judicial-has  disappeared  and  in\t our
\n\t      republican  Constitution, sovereign power\t has
\n\t      been distributed among various organs  created
\n\t      ‘thereby,\t it  seems,  to\t me  that  there  is
\n\t      neither\tjustification  nor   necessity\t for
\n\t      continuing  the rule of construction based  on
\n\t      the royal, prerogative.” (At p. 185).<\/p><\/blockquote>\n
\t      “But  where the royal prerogative is merely  a
\n\t      rule of construction of statutes based on\t the
\n\t      existence\t of  the Crown in  England  and\t for
\n\t      historical  reasons,  I fail to see why  in  a
\n\t      democratic  republic,  the courts\t should\t not
\n\t      follow the ordinary principle of\tconstruction
\n\t      that no one
\n(1)  [1946] L.R. 73 I.A. 271.\n<\/p>\n
178<\/span><\/p>\n
\t      is  exempt  from the operation  of  a  statute
\n\t      unless   the  statute  expressly\tgrants\t the
\n\t      exemption or the exemption arises by necessary
\n\t      implication.” (At pp. 188-189).\n<\/p>\n
The conflict between the two views expressed by the  learned
\nJudges\tin the earlier decision mainly rests on the  meaning
\nof  the\t expression  “law  in force”  in  Art.\t372  of\t the
\nConstitution.\tWhile  Sinha, C.J., took the view  that\t the
\ncommon\tlaw of England, including the rule of  construction,
\nwas accepted as the law of this country and was,  therefore,
\nthe  law  in force within the meaning of the  said  Article,
\nWanchoo,  J., took the view that whatever might be  said  of
\nthe substantive laws, ‘a rule of construction adopted by the
\ncommon law of England and accepted by the Privy Council at a
\ntime  when the Crown was functioning in India, was  not\t the
\nlaw in force within the meaning of the said Article.
\nWe shall now consider the validity of the conflicting  views
\nThe  common  law  of England is clear on  the  subject.\t  In
\nHalsbury’s  Laws of England, 3rd Edn., Vol. 7, in Part 5  of
\nthe  Chapter on “Constitutional Law” under the heading\t“The
\nRoyal  Prerogative”, the Royal prerogatives  are  enumerated
\nand their limitations are given.  In para 464 it is stated :\n<\/p>\n
\t      “The general rule is that prerogatives  cannot
\n\t      be  affected  or\tparted with  by\t the  Crown,
\n\t      except by express statutory authority.”\n<\/p><\/blockquote>\n
The  prerogative right can be taken away by law because\t the
\nlaw  is made by the Crown with the assent of the  Lords\t and
\nthe Commons.  It can be taken away only by law to which\t the
\nCrown  is a party.  Whether a particular statute  has  taken
\naway  such  right  pertains to the domain  of  the  rule  of
\nconstruction.  The relevant rule of construction evolved  by
\njudicial decisions in England may be stated thus :\n<\/p>\n
\t      “At  all\tevents,\t the Crown  is\tnot  reached
\n\t      except  by  express  words  or  by   necessary
\n\t      implication  in  any case where  it  would  be
\n\t      ousted   of   an\t existing   prerogative\t  or
\n\t      interest.” (See Perry v. Eames) (1).\n<\/p><\/blockquote>\n
It   is\t  said\tmuch  to  the  same  effect   in   Maxwell’s
\nInterpretation of Statutes, 11th Edn., at page 129, thus :\n<\/p>\n
\t      “It is presumed that the legislature does\t not
\n\t      intend   to   deprive   the   Crown   of\t any
\n\t      prerogative,  right  or  property,  unless  it
\n\t      expresses\t its intention to do so in  explicit
\n\t      terms, or makes the inference irresistible.”
\n\t      The  same rule is given in Bacon’s  Abridgment
\n\t      7th Edn., 9.462. The legal position in England
\n\t      may be summarised thus :\n<\/p><\/blockquote>\n
\t      (1) [1891] 1
\n\t       179<\/span>
\n\t      “The  substantive\t rule  of law  is  that\t the
\n\t      prerogative  of  the Crown can only  be  taken
\n\t      away by law.  The rule of construction evolved
\n\t      by  the  courts to ascertain  the\t legislative
\n\t      intention\t is,  that  it is  presumed  that  a
\n\t      statute  has not taken away  the\tprescriptive
\n\t      right unless it has expressly or by  necessary
\n\t      implication done so.”\n<\/p><\/blockquote>\n
There is an essential distinction between a substantive\t law
\nand  a\trule of construction and that is well  expressed  by
\nCraies\tin  his book “On Statute Law”, 6th Edn., at  p.\t 10,
\nthus :\n<\/p>\n
\t      “A  rule\tof  law,  e.g.,\t the  Rule   against
\n\t      Perpetuities  or\tthe Rule in  Shelley’s\tcase
\n\t      (abolished  in 1925), exists independently  of
\n\t      the  circumstances of the parties to  a  deed,
\n\t      and   is\tinflexible  and\t paramount  to\t the
\n\t      intention\t expressed in the deed.\t A  rule  of
\n\t      law cannot be said to control the construction
\n\t      of a statute, inasmuch as a British statute is
\n\t      itself part of the supreme law of the land and
\n\t      overrides any pre-existing rules with which it
\n\t      is   inconsistent.    A  rule  or\t  canon\t  of
\n\t      construction,   whether  of  will,   deed\t  or
\n\t      statute,\tis not inflexible, but is  merely  a
\n\t      presumption in favour of a particular  meaning
\n\t      in case of ambiguity.  This was well expressed
\n\t      by  Bowen, L.J. in L. N. W. Ry.  v.  Evans:(1)
\n\t      ‘These canons do not override the language  of
\n\t      a\t statute where the language is clear :\tthey
\n\t      are  only\t guides to enable us  to  understand
\n\t      what is inferential.  In each case the Act  of
\n\t      Parliament  is  all  powerful,  and  when\t its
\n\t      meaning\tis   unequivocally   expressed\t the
\n\t      necessity for rules of construction disappears
\n\t      and reaches its vanishing point.”\n<\/p><\/blockquote>\n
The  same principle was stated by Bhashyam Ayyangar, J.,  in
\nBell  v.  The  Municipal  Commissioners\t for  the  City\t  of
\nMadras(2) thus :\n<\/p>\n
\t      “These  compendious canons  of  interpretation
\n\t      which are in the nature of maxims can only  be
\n\t      regarded as mere guides to the  interpretation
\n\t      of Statutes and ought not to be applied as  if
\n\t      they were statutory clauses, enacted with\t all
\n\t      the    precision\t  and\tprovisos    of\t  an
\n\t      Interpretation Act.”<\/p><\/blockquote>\n
\t      Franfurter,  J.,\tsaid to the same  effect  in
\n\t      United  States  v.  United  Mine\tWorkers\t  of
\n\t      America thus : (3)
\n\t      “At best, this canon, like other\tgeneralities
\n\t      about statutory construction, is not a rule of
\n\t      law.   Whatever persuasiveness it may have  in
\n\t      construing a particular
\n(1) [1893] I Ch. 16, 27.\t   (2) I.L.R. [1902] 25 Mad.
\n457, 484.\n<\/p>\n
(3) [1947] 91 L. ed. 923.\n<\/p>\n
180<\/span><\/p>\n
statute derives from the subject-matter and the terms of the
\nenactment in its total environment.”\n<\/p>\n
Even  in  England this rule of interpretation has  not\tbeen
\ntreated\t as  inflexible.  It is gradually losing  ground  in
\nmany  branches\tof  law.  The incongruity  of  the  rule  of
\ndiscrimination\tin  favour of the Crown was pointed  out  by
\nGlanville   L.\t Williams   in\this   treatise\t on   “Crown
\nProceedings”, at p. 53 :\n<\/p>\n
\t      “The rule originated in the Middle Ages,\twhen
\n\t      it   perhaps  had\t some  justification.\t Its
\n\t      survival,\t however, is due to little  but\t the
\n\t      vis inertiae.”\n<\/p><\/blockquote>\n
\t      The author continues at p. 54 :\n<\/p><\/blockquote>\n
\t      “With the great extension in the activities of
\n\t      the State -and the number of servants employed
\n\t      by it, and with the modern idea, expressed  in
\n\t      the  Crown Proceedings Act, [compare  in\tthis
\n\t      connection  Art.\t300  of\t our  Constitution],
\n\t      “that the State should be accountable in\twide
\n\t      measure to the law, the presumption should  be
\n\t      that a statute binds the Crown rather than  it
\n\t      does not.”\n<\/p><\/blockquote>\n
The next question is, how far and to what extent the  common
\nlaw of England relating to the prerogatives of the Crown has
\nbeen  accepted as the law of our country?  Nothing has\tbeen
\nplaced before us to show that the entire body of the  common
\nlaw  pertaining\t to  prerogatives was accepted\tas  the\t law
\nthroughout  India.   India at the  relevant  time  comprised
\nProvinces  and\tNative States.\tAs  Bhashyam  Ayyangar,\t J.,
\npointed\t out in Bell v. The Municipal Commissioners for\t the
\nCity  of Madras() “the prerogatives of the Crown in  India-a
\ncountry in which the title of the British Crown is of a very
\nmixed character-may vary in different provinces, as also  in
\nthe  Presidency\t towns as distinguished from  the  mofussil.
\n‘The  determination, with anything like legal precision,  of
\nall the prerogatives of the British Crown in India is by  no
\nmeans an easy task.” It is well-known that the Common law of
\nEngland\t was  applied as such in the original sides  of\t the
\nHigh Courts of Calcutta, Bombay and Madras, and that in\t the
\nmofussil  courts the principles embodied in the\t common\t law
\nwere invoked in appropriate cases on the ground of  justice,
\nequity\tand  good  conscience.\t It  cannot,  therefore,  be
\nposited that either the entire body of common law of England
\nrelating  to  prerogatives of the King or even the  rule  of
\nconstruction as forming part of that law was accepted as law
\nin  every  part of the country.\t It has\t to  be\t established
\nwhenever a question arises as to what part of the common law
\nwas accepted as the law in a particular part of the country.
\nLearned\t Advocate General of West Bengal referred us to\t the
\ndecision  of  the  Privy Council in Province  of  Bombay  v.
\nMunicipal
\n(1)  I.L.R. (1902) 25 Mad. 457,484.\n<\/p>\n
181<\/span><\/p>\n
Corporation  of\t the  City of Bomhay(1) in  support  of\t his
\ncontention  that the common law of England was\taccepted  as
\nthe  law  of our country in that regard.  In that  case\t the
\nquestion  was whether the Crown was not bound by  s.  222(1)
\nand  s. 265 of the City of Bombay Municipal Act, 1888  which
\ngave  the  Municipality power to carry water-mains  for\t the
\npurposes of water supply through across or under any  street
\nand  into, through or under any land “whatsoever within\t the
\ncity.”\tWhen the Municipal Corporation wanted to lay  water-
\nmains  through\tthe  land belonging  to\t the  Government  of
\nBombay,\t the Government did not agree except on some  condi-
\ntions.\t Thereafter,  the dispute between  the\tparties\t was
\nreferred  to the High Court.  Ultimately, setting aside\t the
\norder  of  the High Court, the Privy Council held  that\t the
\nrule  that no statute bound the Crown unless the  Crown\t was
\nexpressly or by necessary implication made bound  thereunder
\napplied\t to  the Crown in India and that there was  no\tsuch
\nexpress\t intention  or\tnecessary implication  in  the\tsaid
\nsection.    Indeed,  the  High\tCourt  also  accepted\tthat
\nprinciple,   but  on  the  construction\t of   the   relevant
\nprovisions  it came to the conclusion that there was such  a
\nnecessary implication thereunder.  On the application of the
\nprinciple  there  was no contest before the  Privy  Council.
\nThe  Privy  Council expressly stated so at p. 274,  when  it
\nobserved :\n<\/p>\n
\t      “The  High  Court\t held,\tfollowing   previous
\n\t      decisions of its own, that the principle to be
\n\t      applied  for  the\t decision  of  the  question
\n\t      whether or not the Crown is bound by a statute
\n\t      is   no  different  in  the  case\t of   Indian
\n\t      Legislation  from\t that which  has  long\tbeen
\n\t      applied in England.  The parties concurred  in
\n\t      accepting\t this  view,  and  their   Lordships
\n\t      regard it as correct.”\n<\/p><\/blockquote>\n
The  decision made on a concession made by the parties\teven
\nthough\tthe  principle conceded was accepted  by  the  Privy
\nCouncil\t without discussion, cannot be given the same  value
\nas  one given upon a careful consideration of the  pros\t and
\ncons  of  the  question raised.\t Further,  no  argument\t was
\nraised\tbefore\tthe  Privy Council that the  Common  law  of
\nEngland\t had legal force only in the said  three  Presidency
\ntowns  and  not in the rest of the country,  for  that\tcase
\nhappened  to be one that arose in the City of  Bombay.\t The
\nobservations  of  the  Privy  Council  that  the  principles
\nobtaining  in England also governed the Crown in India\tare,
\nrather\twide.  Nor any argument was raised before the  Privy
\nCounsel making a distinction between substantive branches of
\ncommon\tlaw  and  mere rules of\t construction.\t It  is\t not
\npossible to predicate what the Privy Council would have said
\nif  that distinction had been placed before it.\t Be that  as
\nit  may, this decision cannot be taken as  finally  deciding
\nthe question that is raised before us.\n<\/p>\n
(1)  [1946] L.R. 73 I.A. 271.\n<\/p>\n
182<\/span><\/p>\n
Learned counsel relied upon a series of Indian decisions in.
\nsupport of his contention that this rule of construction had
\nbecome the law of the land.\n<\/p>\n
It was held in The Secretary of State in Council of India v.
\nThe Bombay Landing and Shipping Company (Limited)(1) that in
\na winding up proceedings the Crown was entitled to the\tsame
\nprecedence in regard to the debts due to it, in England,  in
\nGanpat\tPutava v. Collector of Kanara(2) that the Crown\t was
\nentitled to the same precedence in regard to fees payable to
\nit  by\ta pauper plaintiff, in The Secretary  of  State\t for
\nIndia  v. Mathura Bhai() that section 26 of  the  Limitation
\nAct,  1877 being a branch of substantive law did not  affect
\nthe  Crown’s right, in Motilal Virchand v. The Collector  of
\nAhmedabad(4) that the Mamlatdars’ Courts could not entertain
\nand decide a suit to which the collector was a party in\t The
\nGovernment  of Bombay v. Esufali Salebhai(5) that the  Crown
\nhad a prerogative right to intervene and claim\tcompensation
\nin  Land Acquisition proceedings, in Hiranand  Khushiram  v.
\nSecretary  of State(6), that the Crown was not bound by\t the
\nprovision  of the Bombay Municipality Act, in The  Secretary
\nof  State for India v. The Municipal Corporation  of  Bombay
\n(No.  1)(7) that the Crown was subject to a charge under  s.
\n212  of the Bombay City Municipal Act.\tA careful  study  of
\nthese  decisions  discloses  that all  of  them\t related  to
\nparticular prerogatives of the Crown and that the Court held
\neither\tthat the prerogative of the Crown Was taken away  by
\nthe statute or not, having regard to the construction placed
\nby  it on the relevant statute.\t It is true that in some  of
\nthe decisions the said rule of construction was noticed, but
\nas  the\t decisions  turned  upon  the  construction  of\t the
\nrelevant provisions, it could not be said that the said rule
\nhad  been accepted as an inflexible rule of construction  by
\nthe  Bombay  High Court.  In one of the judgments  even\t the
\napplicability of the rule of construction was doubted.
\nA learned thesis on the subject is found in the judgment  of
\nBhashyam   Ayyangar,   J.,   in\t Bell\tv.   The   Municipal
\nCommissioners for the City of Madras(8).  The Superintendent
\nof  the\t Government  Gun-carriage  Factory,  Madras,  having
\nbrought timber belonging to the Government into the City  of
\nMadras\twithout taking out a licence and paying the  licence
\nfees  prescribed by s. 341 of the City of  Madras  Municipal
\nAct, was prosecuted.  There was no mention of Government  in
\nthe said section.  A Division Bench of the Madras High Court
\n  (1) [1868] 5 Ho   H. C. Rep. 23,27.\n<\/p>\n
(3) [1889] I.L.R. 14 Bom. 213.\n<\/p>\n
(5)  [1909] I.L.R. 34 Bom. 618.\n<\/p>\n
(7)  [1935] 37 Bom.  L.R. 499, 509.\n<\/p>\n
(2)  [1875] I.L.R. 1. Dom. 7.\n<\/p>\n
(4)  [1906] I.L.R. 31 Bom. 86.\n<\/p>\n
(6)  A.I.R. 1934 Bom. 379.\n<\/p>\n
(8)  I.L.R. (I 902) 25 Mad. 457, 484.\n<\/p>\n
 183<\/span><\/p>\n
Indian legislation, statutes imposing duties or taxes  bound
\nthe Government unless the very nature of the duty or tax was
\nsuch is to be inapplicable to it.  Bhashyam Ayyangar, J., in
\nhis judgment, after considering all the relevant material on
\nthe  subject statutes and English and Indian  decisions-came
\nto the conclusion that exemption from the payment of  tolls,
\nrates  and  taxes was not in reality a\tprerogative  of\t the
\nCrown, but depended solely upon the right construction to be
\nput  on the Crown grant or the statute in question.   Though
\nthe  learned  Judge  noticed the rule  of  construction\t and
\naffirmed its application both to English and Indian statutes
\nvis-a-vis the Crown, he pointed out that the said rule, like
\nevery  cognate\trule of construction was not really  a\tpre-
\nrogative of the Crown but only a canon of interpretation and
\na  mere guide to the interpretation of statutes.  That\tcase
\narose in the Madras City.  In Madras the_ position was\tthat
\nnon-liability  of the Crown to taxes was not treated as\t its
\nprerogative and the aforesaid rule of construction was\tonly
\ntreated\t as  a\tguide in interpreting the  provisions  of  a
\nstatute.\n<\/p>\n
Now  coming  to Calcutta, a Division Bench of  the  Calcutta
\nHigh  Court  in Corporation of Calcutta\t v.  Bhupal  Chandra
\nSinha(1)  held\tthat the Crown was bound by s.\t421  of\t the
\nCalcutta Municipal Act, 1923 and that the unwholesome barley
\nfound  in the Government stores was liable to be  destroyed.
\nNo doubt, the Court re-stated the said rule of\tconstruction
\nand came to the conclusion that by necessary implication the
\nState was bound by the said provision.\n<\/p>\n
A  Division Bench of the same High Court in  Corporation  of
\nCalcutta  v. Director of Rationing and Distribution(2)\theld
\nthat  the State Government which was carrying on a trade  at
\npremises  No.  259, Upper Chitpur Road,\t Calcutta,  and\t was
\nusing  or  permitting the use of the said premises  for\t the
\npurpose\t of storing rice etc. without licence was liable  to
\nbe  convicted under s. 386(1)(a) of the\t Calcutta  Municipal
\nAct,  1923, read with s. 488 thereof When the said  rule  of
\nconstruction was pressed upon the learned Judges, they\theld
\nthat the law, even after coming into force of the Government
\nof India Act, 1935, was that the Crown or the Government was
\nbound  by  the\tstatute\t unless it  was\t exempted  from\t its
\noperation  either  expressly or\t by  necessary\timplication.
\nThey  did  not, therefore, accept the rule  of\tconstruction
\nlaid  down by the Privy Council.  It cannot,  therefore,  be
\nsaid  that  in the City of Calcutta there  was\ta  universal
\nrecognition  of\t the rule of construction in favour  of\t the
\nCrown.\n<\/p>\n
The  legislative  practice  in India  establishes  that\t the
\nvarious\t Legislatures of the country  provided\tspecifically
\nexemptions in
\n(1 ) A.I.R 1950 Cal. 421.    (2)A.I.R. 1955 Cal.282.\n<\/p>\n
184<\/span><\/p>\n
favour\tof  the\t Crown\twhenever  they\tintended  to  do  so
\nindicating   thereby  that  they  did  not  rely  upon\t any
\npresumption  but  only\ton  express  exemptions,  see,\t for
\ninstance,  s. 74 of the Contract Act, s. 9 of  the  Specific
\nRelief\tAct, s. 90 of the Indian Registration Act,  s.\t2(a)
\nand (b) of the Indian Easements Act, The Crown Grants Act XV
\nof  1895, ss. 295 (proviso), 356(b) and 411 and 616  (a)  of
\nthe  Code of Civil Procedure (old), s. 212 (proviso) of\t the
\nIndian\tCompanies  Act, s. 20 (proviso) of the\tSea  Customs
\nAct, 1878, s. 1(4)(i) of the Indian Ports Act, s. 3, proviso
\n(1)  of the Indian Stamps Act, 1899, and s. 3 of  the  India
\nAct XI of 1881 etc.  What is more, Act XI of 1881  empowered
\nthe  Governor-General  in Council by order to  prohibit\t the
\nlevy by a Municipal Corporation of any specified tax payable
\nby  the\t Secretary  of State for India\tand  to\t direct\t the
\nSecretary  of  State  for  India to  pay  to  the  Municipal
\nCorporation in lieu of such tax some definite amounts.\tThis
\nAct  was a pointer against the contention that there  was  a
\npresumption  in favour of the Crown that a statute  was\t not
\nbinding\t on it.\t It is true that there are other Acts  where
\nthere  are  specific  provisions  to  the  effect  that\t the
\nprovisions  of the Acts shall be binding on the\t Government:
\nsee s. 10 of the Arbitration Act (Act X of 1940), s. 116  of
\nthe  Oil Field Regulation and Development Act (Act  LIII  of
\n1948).\t Subsequent to the making of the  Constitution\talso
\nthere were Acts where such a provision was found.  There  is
\nno firm legislative practice based upon the said presumptive
\nrule of construction.  Different statutes adopted  different
\ndevices\t to achieve their desired results.  The\t legislative
\npractice, therefore, does not support the contention that in
\nIndia  the said rule of construction was accepted.  It\tonly
\nshows that wherever an exemption was intended to be given to
\nthe Government it was expressly mentioned and wherever there
\nmight\thave  been  any\t doubt\tof  the\t liability  of\t the
\nGovernment,  it\t was  expressly made liable.   The  rule  of
\nconstruction  was  not\tstatutorily  recognised\t either\t  by
\nincorporating it in different Acts or in any General Clauses
\nAct;  at the most, it was relied upon as a rule\t of  general
\nguidance in some parts of the country.\n<\/p>\n
Some  of the American decisions may usefully be referred  to
\nat this stage.\tIt was said that in America where the  Crown
\ndid not exist, the same rule of construction was adopted  in
\nthat country as law of the land and therefore by analogy the
\nsame legal position must be accepted in India.
\nThe  decision in H. Snowden Marshall v. People of the  State
\nof New York(1) only lays down that the State of New York has
\nthe common law prerogative right of priority over  unsecured
\ncreditors.   This  case has nothing to do with the  rule  of
\nconstruction  but was based upon the common law\t prerogative
\nof the
\n(1)  (1920) 65 L.cd. 315.\n<\/p>\n
185<\/span><\/p>\n
Crown  expressly embodied in the State’s Constitution.\t The
\ndecision  in Guarantee Trust Company of New York  v.  United
\nStates of America(1) accepted the immunity of the  sovereign
\nfrom he operation of statutes of limitation.  That  decision
\nwas  based  upon the doctrine of public\t policy\t evolved  by
\ncourts,\t though in evolving the said policy the\t courts\t had
\nbeen  influenced,  to some extent, by the  doctrine  of\t the
\npregrogative  of  the Crown.  This decision  also  does\t not
\nexpress any opinion on the rule of construction.
\nThe  decision  in United States of America  v.\tUnited\tMine
\nWorkers\t of America(2) ruled that statutes which in  general
\nterms, divested pre-existing rights and privileges would not
\nbe  applied to the sovereign without express words  to\tthat
\neffect.\t  But Frankfurter, J., after citing the\t said  rule,
\npointed out that
\n“At   best,  this  canon,  like\t other\tgeneralities   about
\nstatutory construction, is not a rule of law.”
\nThe  same  rule\t was again re-stated  in  United  States  of
\nAmerica\t v. Reginald P. Wittek.(3) The\tquestion  there\t was
\nwhether the District of Columbia Emergency Rent Act did\t not
\napply  to  Government-owned defence houses in  the  District
\nsuch as Bellevue Houses.  The Court relied not only upon the
\nsaid rule of construction but also on other circumstances in
\nsupport of the conclusion that the United States was  exempt
\nfrom the operation of that Act by necessary implication.  In
\nJess  Larson,  as  War\tAssets\tAdministrator  and   Surplus
\nProperty  Administrator v. Domestic and\t Foreign,,  Commerce
\nCorporation,(4)\t the purchaser of surplus coal from the\t War
\nAssets\t Administration\t filed\ta  suit\t against  the\tsaid
\nAdministration for an injunction prohibiting the latter from
\nselling\t or  delivering the coal to any other  person.\t The
\nsuit was dismissed on the ground that the sovereign immunity
\nin  suits  for injunction or for  specific  performance\t was
\nbased  upon  public  policy.  But it  was  argued  that\t the
\nprinciple of sovereign immunity was an archaic hangover\t not
\nconsonant  with modern morality; the majority conceded\tthat
\nthere was substance in such a viewpoint as applied to  suits
\nfor  damages.  Mr. Justice Frankfurter in his  dissent\twent
\nfurther\t and  pointed  out that the  doctrine  of  sovereign
\nimmunity   was\tin  disfavour.\t The   American\t  decisions,
\ntherefore, were mainly based either on the provisions of the
\nconstitution of the State or on. the ground of public policy
\nevolved\t by Courts.  The founding fathers carried with\tthem
\nthe  English  doctrine\tof  the\t Crown\tPrerogative  and  it
\ncontinued  to  influence some of the  principles  of  public
\npolicy evolved in that country.\t Even so, the decisions made
\nit clear that the rule of construction was relied upon\tonly
\nas  one\t of  the  guides to arrive at  the  intention  of  a
\nparticular  statute.  That apart, the fact that\t the  common
\nlaw of England pertaining to
\n  2,1.4
\n(1)(1938) 82 L. ed. 1224.\n<\/p>\n
(3)(1949) 93 L. ed. 1406.\n<\/p>\n
M19Sup.C.I.\/66-13
\n(2)  (1947) 91 L. ed. 884,923.\n<\/p>\n
(4)  (1949) 93 L. ed. 1628.\n<\/p>\n
\t\t\t    186<\/span><\/p>\n
prerogatives influenced some of the decisions of the Supreme
\nCourt  ,of the United States cannot help us in coming  to  a
\nconclusion whether the said rule had become part of the\t Law
\nin India.\n<\/p>\n
Mr. Bindra, the learned counsel appearing for the  Attorney-
\nGeneral\t sought to reach at the same result by\ta  different
\nprocess.   He argued that the decision of the Privy  Council
\nin  Province of Bombay v. Municipal Corporation of the\tcity
\nof  Bombay and another(1) is a law of the country.  We\thave
\nalready\t noticed  the  decision\t in  another  context.\t  It
\naccepted  the rule of construction on a concession  made  by
\nthe  counsel.  Even if it was a considered decision  on\t the
\npoint, it was nothing more than an application of a rule  of
\nconstruction with which it was familiar for ascertaining the
\nintention  of statutory provisions applicable to the  Bombay
\ncity.\n<\/p>\n
To  sum up : some of the doctrines of common law of  England
\nwere  administered  as the law in the  Presidency  Towns  of
\nCalcutta, Bombay and Madras.  The Common Law of England\t was
\nnot  adopted  in the rest of India.  Doubtless some  of\t its
\nprinciples were embodied in the statute law of our  country.
\nThat  apart, in the mofussil, some principles of Common\t Law
\nwere invoked ‘by courts on the ground of justice, equity and
\ngood  conscience.  It is, therefore, a question of  fact  in
\neach  case whether any particular branch of the\t Common\t Law
\nbecame a part of the law of India or in any particular\tpart
\nthereof.  The aforesaid rule of construction is only a canon
\nof  interpretation,  it is not a rule  of  substantive\tlaw.
\nThough it was noticed in some of the judgments of the Bombay
\nHigh  Court,  the decisions therein mainly turned  upon\t the
\nrelevant statutory provisions.\tOne decision even questioned
\nits  correctness.   There  is nothing to show  that  it\t was
\napplied\t in  other  parts of the country on  the  ground  of
\njustice, good con.science and equity.  In Madras, it was not
\nconsidered to be a binding rule of law, but only as a simple
\ncanon  of construction.\t In Calcutta there was a conflict  :
\none  Bench accepted the construction and the other  rejected
\nit.  The Privy Council gave its approval to the rule  mainly
\non the concession of Advocates and that decision related  to
\nBombay City.  It is, therefore, clear that the said rule  of
\nconstruction  was  not accepted as a  rule  of\tconstruction
\nthroughout India and even in the Presidency towns it was not
\nregarded  as inflexible rule of construction.  In  short  it
\nhas not become a law* of the land.\n<\/p>\n
Let  us\t now  proceed on the assumption\t that  it  has\tbeen
\naccepted  as a rule of construction throughout India.\tThis
\nleads\tus  to\tthe  question  whether\tthe  said  rule\t  of
\nconstruction  is the law of the land after the\tConstitution
\ncame into force.  Under Article 372,
\n(1)73 I.A. 271.\n<\/p>\n
 187<\/span><\/p>\n
all the laws in force in the territory of India\t immediately
\nbefore the commencement of this Constitution shall  continue
\nin force, therein until altered or repealed or amended by  a
\ncompetent Legislature or other competent authority.  Can  it
\nbe  said that the said canon of construction was a  ‘law  in
\nforce’\twhich can only be amended by a\tLegislature?   Under
\nExplanation (1) to the said Article, the expression ‘law  in
\nforce’ shall include a law passed or,. made by a Legislature
\nor  other  competent  authority in the\tterritory  of  India
\nbefore\tthe  commencement of the Constitution. it  has\tbeen
\nheld  by  this court that the said expression  includes\t not
\nonly  enactments  of the Indian Legislatures  but  also\t the
\nCommon\tLaw of the land which was being administered by\t the
\nCourts in India. (See Director of Rationing and Distribution
\nv.  The Corporation of Calcutta and others<\/a>() and V. S.\tRice
\nand  Oil Mills & others v. State of Andhra Pradesh(2).\t But
\nit is not possible to hold. that a mere rule of construction
\nadopted\t by English Courts, and also by some of\t the  Indian
\nCourts\tto ascertain the intention of the Legislature was  a
\nlaw  in force within the meaning of this term.\tThere is  an
\nessential   distinction\t between  a  law  and  a  canon\t  of
\nconstruction.  This distinction between law and the canon of
\nconstruction has been noticed by us earlier and we have held
\nthat  a canon of construction is not a rule of law.  We\t are
\nnot   concerned\t  here.\t  with\tthe   statutory\t  rules\t  of
\ninterpretation.\t  We are,- therefore, of the opinion that  a
\nrule  of  construction is not a ‘law in\t force’\t within\t the
\nmeaning of Article 372.\n<\/p>\n
The  next  question is whether this Court should  adopt\t the
\nrule  of  construction\taccepted by  the  Privy\t Council  in
\ninterpreting  statute vis-a-vis the Crown.  There  are\tmany
\nreasons\t why the said rule of construction  is\tinconsistent
\nwith and incongruous in the present set-up we have no Crown,
\nthe archaic rule based on the prerogative and perfection  of
\nthe  Crown has no relevance to a democratic republic; it  is
\ninconsistent  with the rule of law based on the dictrine  of
\nequality.   It introduces conflicts and\t discrimination.  To
\nillustrates:  (1)  State  “A” made  a  general\tAct  without
\nexpressly making the Act binding on the said State.  In\t the
\nsame  State  States  “B”, “C” and “D”  and  the\t Union\thave
\nproperties.   Would the rule of construction apply  only  to
\nthe properties of State “A?’ or to the properties of all the
\nStates\tand  the  Union ? (2) The Central  Act\toperated  in
\ndifferent  States; the rule of construction was accepted  in
\nsome  States- and rejected in other States.  Is the  Central
\nAct to be construed in different States in different ways  ?
\n(3) Acts in general terms might be made in different States-
\nStates where the said rule of construction was accepted\t and
\nthe States where it was not so accepted.. ‘Should  different
\nStates construe
\n(1) [1961] 1.S.C.R. 158.\t\t       (2) [1965]  3
\nS.C.R. 289
\n188<\/span>
\nthe  General  Acts  in different  ways,\t some  applying\t the
\npresumption and some ignoring it ?\n<\/p>\n
There  is,  therefore, no justification for  this  Court  to
\naccept\tthe  English canon of construction,  for  it  brings
\nabout  diverse\tresults and conflicting decisions.   On\t the
\nother  hand,  the  normal  construction,  namely,  that\t the
\ngeneral\t Act applies to citizens as well as to State  unless
\nit  expressly or by necessary implication exempts the  State
\nfrom its operation, steers clear of all the said  anomalies.
\n‘It prima facie applies to all States and subjects alike,  a
\nconstruction consistent with the philosophy of equality\t en-
\nshrined\t in our Constitution.  This natural approach  avoids
\nthe archaic rule and moves with the modern trends.  This win
\nnot cause any hardship to the State.  The State can make  an
\nAct,  if  it chooses, providing for its exemption  from\t its
\noperation.  Though the State is not expressly exempted\tfrom
\nthe operation of an Act, under certain circumstances such an
\nexemption may necessarily be implied.  Such an Act, provided
\nit  does  not  infringe fundamental rights,  will  give\t the
\nnecessary relief to the State.\tWe, therefore, hold that the
\nsaid canon of construction was not ‘the law in force’ within
\nthe meaning of Art. 372 of the Constitution and that in\t any
\nevent having regard to the foregoing reasons the said  canon
\nof  construction  should  not  be  applied  for\t  construing
\nstatutes  in  India.  In this view it is  not  necessary  to
\nexpress\t our opinion on the question whether  the  aforesaid
\nrule of construction would not apply to the trade activities
\nof   the  State,  even\tif  it\tapplied\t to  its   sovereign
\nactivities.\n<\/p>\n
Even so, it was contended that by necessary implication\t the
\nState was excluded from the operation of s. 218 of the\tAct.
\nIt  was\t contended  that, as the infringement  of  the\tsaid
\nprovision   entailed  a\t prosecution  and,  on\t conviction,
\nimposition  of fine and imprisonment, and that as the  State
\ncould not obviously be put in prison and as the fine imposed
\non  the\t State would merge in the consolidated fund  of\t the
\nState,\tit should necessarily be implied that the State\t was
\noutside\t the scope of the section.  This argument was  based
\nupon  the  reasoning  of  Wanchoo,  J.,\t in  his  dissenting
\njudgment  in  Director\tof  Rationing  and  Distribution  v.
\nCorporation  of Calcutta<\/a>(1).  To appreciate the argument  it
\nis  necessary to notice the relevant provisions of the\tAct.
\nUnder s. 218(1) every person who exercises or carries on  in
\nCalcutta  any of the trades indicated in Schedule  IV  shall
\nannually  take out a licence before the prescribed date\t and
\npay the prescribed fee.\t Section 218 is in Ch.\tXIII.  Under
\ns.  541(1)(b) if any person exercises on or after the  first
\nday  of\t July in any year any profession, trade\t or  calling
\nreferred  to  in  Chapter XIII without\thaving\tthe  licence
\nprescribed by that chapter, he shall be punished with  fine;
\nand under s. 541(2)
\n(1)  [1961] 1 S.C.R. 158.\n<\/p>\n
189<\/span><\/p>\n
such fine, when levied, shall be taken in full\tsatisfaction
\nof  the\t demand on account of the said\tlicence.   Under  s.
\n547A, which was inserted in the Act by s. 96 of the Calcutta
\nMunicipal  (Amendment)\tAct, 1953 (West Bengal\tAct  XIX  of
\n1953),\t in  every  case  of  an  offence  punishable\twith
\nimprisonment  or  fine,\t or with fine  only,  in  which\t the
\noffender is sentenced to pay an fine, it shall be competent to
\nthe  Court to direct that in default of payment of the\tfine
\nthe  offender  shall  suffer imprisonment for such  term  or
\nfurther term   not  exceeding six months as may be fixed  by
\nthe  Court.   Under the Act there is a\tdistinction  between
\nfines imposed under s. 537 and under s. 541 of the Act.\t The
\nfines  under  s. 537 are in respect of\toffences  enumerated
\ntherein and they certainly go to the coffers of the  States.
\nIn respect of such offences it may be contended that, as the
\nfines paid reach the State itself, there is an\timplication’
\nthat  the  State  is not bound\tby  the\t sections  mentioned
\ntherein,  for a person who receives the fine cannot  be\t the
\nsame  person who pays it.  This incongruity may lead to\t the
\nsaid necessary implication.  But the same cannot be said  in
\nrespect of the provisions covered by s. 541.  Under the said
\nsection the -fine recovered for the infringement of the said
\nprovisions, when levied, shall be taken in full satisfaction
\nof   the  demand  on  account  of  the\tlicence\t not   taken
\nthereunder.   Though  the  expression “fine”  is  -used,  in
\neffect and substance, s. 541 is a mode of realization of the
\nfee  payable  in  respect of the licence:  it  goes  to\t the
\nmunicipal  fund and forms part of it.  In this\tcontext,  s.
\n115 of the Act is relevant.  Under that section, there shall
\nbe  one Municipal Fund held by the Corporation in trust\t for
\nthe  purposes  of the Act to which the\tmoneys\trealised  or
\nrealisable  under  the\tAct  (other  than  fine\t levied\t  by
\nMagistrates)  and  all\tmoneys\totherwise  received  by\t the
\ncorporation shall be credited.\tReliance is placed upon\t the
\nwords within the brackets, viz., “other than fine levied  by
\nMagistrates” and an argument is raised that the fine  levied
\nunder  s.  541 will not be credited to the  Municipal  Fund.
\nThat  interpretation brings that section into conflict\twith
\ns.  512.   On the other hand, a harmonious  construction  of
\nthese two provisions makes it clear that the fine  mentioned
\nin s. 115 is the fine imposed under s. 537, for s. 541(2) in
\nterms directs that the fine shall be credited to the demand.
\nAll  amounts credited towards demands, it cannot be  denied,
\nnecessarily have to be credited in the Municipal Fund.\t Nor
\ns. 547A detracts from our conclusion.  Under that section in
\nevery case of an offence where the offender is sentenced  to
\npay  a\tfine, it shall be competent to the court  to  direct
\nthat  in default of payment of the fine the  offender  shall
\nsuffer\t imprisonment.\t It  was  said\tthat  this   section
\nnecessarily  implied that the State could not be, hit by  s.
\n218, as it could not obviously be imprisoned for default  of
\npayment\t of fine.  But it will be noticed that this  section
\nonly  confers  a discretionary power on the  court  and\t the
\ncourt is not bound to
\n190<\/span>
\ndirect\tthe  imprisonment of the defaulter.  It is  only  an
\nenabling provision.  There are other ways of collecting\t the
\nmoney  from ]persons against whom an order under s. 547A  is
\nnot  made.   This enabling provision  does  not\t necessarily
\nimply an exemption in favour of the State.\n<\/p>\n
For all the aforesaid reasons we hold that the State is\t not
\nexempt from the operation of s. 218 of the Act.
\nIn the result we hold that the conclusion arrived at by\t the
\nHigh Court is correct.\tThe appeal fails and is dismissed.
\nShah,  J. The High Court of Calcutta convicted the State  of
\nWest Bengal of the offence of carrying on trade as owner and
\noccupier of a market at Calcutta without obtaining a license
\nunder  s.  218\tof the Calcutta\t Municipal  Act,  1951,\t and
\nimposed a sentence of fine of Rs. 250\/-.  In this appeal, it
\nis  urged that the State not being by express  enactment  or
\nclear intendment bound by the provisions of the Act relating
\nto the obtaining of a license for carrying on trade as owner
\nor  occupier  of a market, the order of\t conviction  is\t not
\nsustainable,  and  reliance is placed upon the\tjudgment  of
\nthis  Court in Director of Rationing & Distribution  v.\t The
\nCorporation  of Calcutta & Ors.<\/a>(1) The Corporation  contends
\nthat since India became a Republic, the rule that “Crown  is
\nnot  bound  by statute unless specially\t named,\t or  clearly
\nintended”  has no application to the interpretation  of\t the
\nCalcutta Municipal Act, 1951.  The argument is urged on\t two
\ngrounds\t : (i) since India has ceased to be governed in\t the
\nname  of  the  British\tCrown, the  rule  in  terms  has  no
\napplication;  and (ii) even if it be assumed that  the\trule
\napplies to the State as the sovereign authority, it must  be
\ndeemed\tto  be\tsuperseded, for to accept  it  would  be  to
\ncountenance  unequal  treatment between the  State  and\t the
\ncitizens.\n<\/p>\n
The  origin  of the rule in England that the  Crown  is\t not
\nbound  by  a  statute  unless  expressly  named\t or  clearly
\nintended  lay undoubtedly in the prerogative of the  British
\nCrown.\t In  Bacon’s  Abridgement, 7th\tEdn.,  p.  462,\t the
\ngeneral\t rule is stated thus: “where a statute\tis  general,
\nand  thereby  any prerogative, right, title or\tinterest  is
\ndivested or taken away from the King, in such case the\tKing
\nshall  not be bound, unless the statute is made\t by  express
\nterms to extend to him.” But the Crown is bound where it  is
\nexpressly  named  or  by clear implication  intended  to  be
\nbound.\tAn inference that the Crown was intended to be bound
\nby implication is, however, not to be raised merely  because
\nthe Crown assented to the statute, for as stated by  Plowden
\n“when  the  King  gives\t his assent  he\t does  not  mean  to
\nprejudice  himself or to bar himself of his liberty and\t his
\nprivilege,  but he assents that it shall be a law among\t his
\nsubjects.”\n<\/p>\n
(1)  [1961]1 S.C.R. 158.\n<\/p>\n
\t\t\t    191<\/span><\/p>\n
The  common  law  of England was  adopted  in  this  country
\nsubject\t to  local variations and the personal\tlaw  of\t the
\nparties, within the Presidency towns by the establishment of
\nMayors’\t Courts\t in  the, 18th\tcentury\t with  the  express,
\ninjunction  to apply that law. In the mufassal of the  three
\nPresidencies  the common law was adopted by the\t Regulations
\nconstituting   tribunals  for  administration\tof   justice
\nenjoining  them\t to decide disputes  according\tto  justice,
\nequity\tand good conscience’, and elsewhere by\tthe  diverse
\nCivil  Courts  Acts imposing similar  injunctions.   In\t the
\nthree  Presidency towns of Calcutta, Madras and\t Bombay\t the
\ncharters  of  1726  which  established\tthe  Mayors’  Courts
\nintroduced within their jurisdiction the English common\t and
\nstatute law in force at the time so far as it was applicable
\nto  Indian circumstances.  By the statute of 1781  (21\tGeo.
\nIII c. 70, s. 17) the Supreme Court at Calcutta was enjoined
\nto apply in the determination of actions against the  Indian
\ninhabitants of the town in matters of succession and inheri-
\ntance to lands, rents, goods, and in all matters of contract
\nand  dealing between party and party, their personal law  if
\nboth parties belonged to the same community, and by the\t law
\nand  usages of the defendant if they belonged  to  different
\ncommunities.   The English common law in its application  to
\nHindus\tand  Mahomedans\t in the matters\t enumerated  in\t the
\nstatute was to that extent superseded, but in other  matters
\nthe  English  common  law unless it  was  inconsistent\twith
\nstatute\t or Indian conditions continued to  apply.   Similar
\nstatutes were passed enjoining the Courts in the  Presidency
\ntowns of Madras and Bombay in 1797 (37 Geo.  III c. 142,  s.\n<\/p>\n
13), to apply in the enumerated matters the personal law  of
\nthe parties. it may however be observed that by the  Supreme
\nCourt  charters,  English law, not in its  entirety  but  as
\nnearly\tas  the\t circumstances\tof  the\t place\tand  of\t the
\ninhabitants  admit, was applied: Advocate General of  Bengal
\nv.  Ranee  Surnomove Dossee.(1) In the\tmufassal  Courts  by
\nBengal\tRegulation  III\t of 1793 in respect  of\t Bengal,  by
\nRegulation 11 of 1802 in respect of Madras, it was  ordained
\nthat  where no specific rule existed the Courts were to\t act
\naccording  to  “justice, equity and good  conscience”  which
\nexpression  was\t interpreted to mean the  rules\t of  English
\ncommon\tlaw  in\t so far as they were  applicable  to  Indian
\nsociety\t  and  circumstances:  Waghela\tRajsanji  v.   Shekh
\nMasludin(2).  The Bombay Regulation IV -of 1827 provided  by
\ns.  26\tthat the law to be observed in the  trial  of  suits
\nshall  be Acts of Parliament and Regulations of\t Government;
\nin the absence of such acts and regulations the usage of the
\ncountry\t in which the suit arose; if none such appears,\t the
\nlaw of the defendant, and in the absence of specific law and
\nusage equity and good conscience.  By the Letters Patents of
\nthe  High Courts of the three principal Courts of  Calcutta,
\nMadras\tand Bombay by cls.  19 in exercise of  the  original
\njurisdiction law or equity to be applied
\n(1) (1864) 9 M. 1. A. 387.\n<\/p>\n
(2) (1887) 14 1. A. 89.\n<\/p>\n
192<\/span><\/p>\n
was such law or equity which would have been applied if\t the
\nLetters\t Patents had not been issued.  By cl. 20 in  respect
\nof  suits  tried in exercise of the  extraordinary  original
\njurisdiction,  and  by cl. 21 in respect  of  the  appellate
\njurisdiction, the High Courts were directed to apply law  or
\nequity\tand the rule of good conscience which the  Court  in
\nwhich  the proceeding was originally instituted\t would\thave
\napplied.   Similar  provisions\twere  made  in\tthe  Letters
\nPatents\t of  the Allahabad, Patna, Lahore  and\tNagpur\tHigh
\nCourts\tby  cls. 13 & 14 and in respect of Jammu  &  Kashmir
\nHigh  Court by cls. 14 & 15, and in respect of Rajasthan  by
\ncls.  33 & 34 of the Rajasthan High Court  Ordinance,  1949.
\nThe  jurisdiction  of the Assam and Orissa High\t Courts\t was
\nderived\t  from\ttheir  respective  parent  High\t  Courts-the
\nCalcutta High Court and the Patna High Court.  In the Courts
\nin the mufassal, the Civil Courts Acts e.g. Bengal, Agra and
\nAssam  Civil  Courts Act, 1887 s. 37; the Punjab  Laws\tAct,
\n1872, s. 5; the Central Provinces Laws Act, 1875, ss. 5,  6;
\nthe Oudh Laws Act, 1876, S. 3. require the Courts to  decide
\ncases  according  to justice, equity  and  good\t conscience.
\nThere  can  therefore  be no doubt  that  the  Courts  which
\nfunctioned  in\tthe  former  British  India  territory\twere
\nenjoined  to  decide  cases not\t governed  by  any  specific
\nstatutory  rules  according  to\t justice,  equity  and\tgood
\nconscience,  which meant rules of English common law  in  so
\nfar   as  they\twere  applicable  to  Indian   society\t and
\ncircumstances.\n<\/p>\n
By  a long course of decisions of the High Courts  in  India
\nthe  rule of the English common law that the Crown  is\tnot,
\nunless\texpressly  named  or clearly intended,\tbound  by  a
\nstatute was applied in India.  In The Secretary of State  in
\nCouncil of India v. Bombay Landing and Shipping Co.  Ltd.(1)
\nthe  Secretary\tof State for India claimed priority  in\t the
\npayment\t of a debt in the course of winding up of a  company
\nand it was held by the High Court of Bombay that a  judgment
\ndebt  due  to the Crown is in Bombay entitled  to  the\tsame
\nprecedence in execution as a like judgment debt in  England,
\nif there be no special legislative provision affecting\tthat
\nright  in -the particular case.\t The Court held that as\t the
\nCrown  is not, either expressly or by implication, bound  by
\nthe Indian Companies’ Act (X of 1866), and as an order\tmade
\nunder that Act for the winding up of a Company does not work
\nany  alteration\t of  property  against\twhich  execution  is
\nsought, such an order does not enable the Court to stay\t the
\nexecution  of  a judgment debt due to the Crown, or  to\t the
\nSecretary of State in Council for India.  Westropp, J.,\t who
\ndelivered  the\tjudgment of the Court  after  an  exhaustive
\nreview of the earlier authorities observed
\n\t      “The King, by his prerogative, regularly is to
\n\t      be preferred, in payment of his duty or  debt,
\n\t      before any subject although the King’s debt or
\n\t      duty be the latter.”\n<\/p>\n
(1)  5 Bom.  H.C.R O.CJ. 23.\n<\/p>\n
\t\t\t    193<\/span><\/p>\n
The learned Judge also observed that the rule was recognised
\nby the laws of many countries as applicable to the claims of
\nthe Sovereign or the State, e.g. France, Spain, America\t and
\nScotland and that principle was no novelty in India, because
\nat  an\tearlier\t date it was promulgated  by  Hindu  jurists
\nYajnavalkya and others.\n<\/p>\n
In  The\t Secretary  of State for India\tv.  Mathurahbai\t and
\nOrs.(1)\t the  rule was held to apply to India as a  rule  of
\nconstruction of statutes.  In that case the inhabitants of a
\nvillage\t sued  to  establish their right  of  grazing  their
\ncattle\ton  certain Government land and\t for  an  injunction
\nrestraining  the  Government  from  interfering\t with  their
\nright.\t It  was held by the High Court of Bombay  that\t the
\nright of free pasturage which the plaintiffs enjoyed did not
\nnecessarily  confer  that right on any particular  piece  of
\nland,  and that s. 26 of the Limitation Act 15 of  1877\t did
\nnot  bind  the Secretary of State.  It was also\t applied  in
\nthree  later  decisions of the Bombay High  Court:  Hiranand
\nKhushiram Kirpalani v. Secretary of State; (2) Secretary  of
\nState  v.  Municipal  Corporation  Bombay  (No.\t 1)(3)\t and
\nProvince   of  Bombay  v.  The\tMunicipal   Corporation\t  of
\nBombay<\/a>(4).   In\t the first case the Secretary of  State\t was
\nheld  not bound by ss. 305, 489 and 491 of the\tBombay\tCity
\nMunicipal Act, 1888, which deal with levelling, metalling or
\npaving,\t sewering,  draining, channelling  and\tlighting  of
\nprivate\t streets  and  with execution of that  work  to\t the
\nsatisfaction of the Commissioner, if the work be not done in
\naccordance  with  the requisition and for  recovery  of\t the
\nexpenses  incurred in that behalf.  In the second case,\t the
\nCourt held that the Crown was bound by necessary implication
\nin  respect of the charge which arises under s. 212  of\t the
\nBombay\tCity Municipal Act 3 of 1888, that section being  an
\nintegral part of the general scheme of the Act imposing\t tax
\non  land in Bombay including Government land.  In the  third
\ncase  the  Bombay  High\t Court\tobserved  that\tthe  general
\nprinciple  is that the Crown is not bound by legislation  in
\nwhich it is not named expressly or by necessary implication.
\nBut reading the relevant sections in the Act relating to the
\nwater  supply  it appeared that it would  be  impossible  to
\ncarry them out with reasonable efficiency, unless Government
\nwas  bound by them.  The view of the High Court in the\tlast
\njudgment that the Province was bound by the statute by\timp-
\nlication was overruled by the Judicial Committee in Province
\nof Bombay v. Municipal Corporation of the City of Bombay and
\nAnother<\/a>(5) to which I will presently refer.  The Madras High
\nCourt in Bell v. The Municipal Commissioners for the City of
\nMadras(6) also upheld the rule which prevailed in the Bombay
\nHigh  Court that the Crown is not bound by a statute  unless
\nexpressly  named  or  clearly intended.\t In  that  case\t the
\nSuperintendent of the Gun
\n  2,1.5
\n(1)  1. L. R. 14 Bom. 213.\n<\/p>\n
(3)  I.L.R. 59 Bom. 681
\n(5)  I.L.R. 73 I.A. 271.\n<\/p>\n
(2)  I.L.R. 58 Bom. 635.\n<\/p>\n
(4)  I.L.R. [1944] Bom. 45.\n<\/p>\n
(6)  I.L.R. 25 Mad. 457.\n<\/p>\n
194<\/span><\/p>\n
Carriage  Factory  in  Madras brought  timber  belonging  to
\nGovernment  into  Madras without taking out a  licence,\t and
\npaying the license fee prescribed by s. 341 of the’ City  of
\n,  Madras  Municipal Act.  The Court held  that\t the  timber
\nbrought into Madras by or on behalf of Government was liable
\nto  the\t duty  imposed\tby s. 341  of  the  City  of  Madras
\nMunicipal  Act,\t although Government was not  named  in\t the
\nsection.   Bhashyam  Ayyangar, J., entered upon\t a  detailed
\nanalysis  of the case law and set out certain principles  at
\np.  500.  The learned Judge was of the view that “the  canon
\nof interpretation of Statutes that the prerogative or rights
\nof the Crown cannot be taken away except by express words or
\nnecessary  implication,\t is As applicable  to  the  Statutes
\npassed\tby the Indian Legislatures as to  Parliamentary\t and
\nColonial Statutes”.  But he held that “the English law as to
\nthe  exemption of the Crown and Crown property from  payment
\nof  tolls,  poor-rates and other taxes, local  or  imperial,
\nimposed by statutes rests partly upon historical reasons and
\nprincipally  upon  judicial decisions which do\tnot  proceed
\nupon  a\t course\t of reasoning or  principle  which  will  be
\nbinding\t on Indian Courts”.  It is not necessary to  express
\nany  opinion on the question whether the  general  exception
\nengrafted  by the learned Judge on the rule in so far as  it
\nrelates\t to taxing statute is wholly correct and applied  to
\nall taxing statutes in India.\n<\/p>\n
The  Municipal\tCorporation  of\t Calcutta  is,\tit  may\t  be
\nrecalled, seeking to collect the license fee by\t prosecuting
\nthe  State  of West Bengal, but the primary purpose  of\t the
\nprosecution  is to enforce compliance with  the\t pro-visions
\nrelating to the conduct of a market by compelling the  State
\nto take out a license, and paying a fee in lieu of  services
\nrendered to the owners of the markets.\n<\/p>\n
These  decisions were affirmed by the Judicial Committee  in
\nProvince  of Bombay v. Municipal Corporation of the City  of
\nBombay\tand  Another<\/a>(1).   The question\t which\tfell  to  be
\ndetermined  was whether by s. 222(1) and s. 265 of the\tCity
\nof   Bombay   Municipal\t Act,  1888,  which   invested\t the
\nMunicipality with power to carry water-mains through, across
\nor  under any street and “into,, through or under  any\tland
\nwhatsoever  within  the city” bound the Crown  in  whom\t the
\nlands\twere  vested  either  expressly\t or   by   necessary
\nimplication.   The  Judicial  Committee\t observed  that\t the
\ngeneral principle applicable in England in deciding  whether
\nthe  Crown is bound by a statute-that it must  be  expressly
\nnamed or be bound by necessary implication-applies to Indian
\nlegislation.  The Board observed at p. 274 :\n<\/p>\n
\t      “The maxim of the law in early times was\tthat
\n\t      no  statute bound the Crown unless  the  Crown
\n\t      was  expressly named therein, “Roy  n’est\t lie
\n\t      per  ascun statute si il ne  soit\t expressment
\n\t      nosme.” But the rule so laid down is subject
\n(1)  L.A. 73 I.A. 271.\n<\/p><\/blockquote>\n
\t\t\t    195<\/span><\/p>\n
\t      to  at least one exception.  The Crown may  be
\n\t      bound,  as has often been said, “by  necessary
\n\t      implication”.   If,  that\t is to\tsay,  it  is
\n\t      manifest\tfrom the very terms of the  statute,
\n\t      that  it was the intention of the\t legislature
\n\t      that  the\t Crown\tshould be  bound,  then\t the
\n\t      result  is the same as if the Crown  had\tbeen
\n\t      expressly\t named.\t  It must then\tbe  inferred
\n\t      that  the\t Crown,\t by assenting  to  the\tlaw,
\n\t      agreed to be bound by its provisions.”\n<\/p><\/blockquote>\n
It  is\ttrue  that counsel  appearing  before  the  Judicial
\nCommittee  accepted  the correctness of the rule  “that\t the
\nquestion  whether or not the Crown is bound by a statute  is
\nno  different  in the case of Indian legislation  from\tthat
\nwhich has long been applied in England.” But the judgment of
\nthe  Judicial Committee did not proceed upon  a\t concession:
\nthe Board expressly observed that they regarded the rule “as
\ncorrect”.\n<\/p>\n
The  Union  of India now includes territory  of\t the  former
\nIndian\tStates in which the law as originally  existing\t and
\nwhich  the  Courts  are\t enjoined to  apply  may  have\tbeen
\nsomewhat  different.   But  that  is  not  peculiar  to\t the
\napplication of the rule of interpretation which was  adopted
\nby  the Courts in British India that the State shall not  be
\ndeemed\tto be bound by an enactment unless it  is  expressly
\nnamed or by clear intendment included in the statute.\tEven
\nin  respect  of\t matters  of  personal\tlaw,  procedure\t and
\njurisdiction  of  the  Courts and  in  other  matters  where
\nuniform statutes do not apply differences do arise and\tmust
\nbe   determined\t according  to\tthe  law  and\tjurisdiction
\ninherited  by  the Courts administering\t justice.   But\t the
\npresent\t case concerns the administration of the law in\t the
\ntown  of  Calcutta  which  has for  nearly  250\t years\tbeen
\ngoverned by the English common law as adopted by the various
\nActs,  Regulations and finally by the Letters  Patents.\t  It
\nmay also be necessary to observe that we are not called upon
\nto decide whether all the prerogatives of the British  Crown
\nhave been incorporated in our system of law.  Some of  those
\nare  so wholly inconsistent with the system of\tlaw-personal
\nand   common-in\t India,\t that  they  have  not\t been\theld
\napplicable,  e.g.  the rule of\tEnglish\t law  incapacitating
\naliens\tfrom  holding real property to their  own  use,\t and
\ntransmitting  it  by descent or devise has  never  been\t in-
\ntroduced  in India so as to create forfeiture of lands\theld
\nin Calcutta or the mofussil by an alien and devised by\twill
\nfor charitable purposes.  Mayor of the City of Lyons v.\t The
\nEast  India  Company(1): the English law of felo de  se\t and
\nforfeiture  of goods does not extend to a  Hindu  committing
\nsuicide:  Advocate  General  of Bengal\tv.  Ranee  Surnomoye
\nDossee(2).  But the rule that the Crown debt is entitled  to
\npriority  in payment of debts due to it has  been  adopted,.
\nand  the State is entitled to priority in payment  of  debts
\ndue to it :\n<\/p>\n
(1) L.R. I Moare’s I.A. 173.\n<\/p>\n
\t\t    (2) (1864) 9 M.I.A.\n<\/p>\n
196<\/span><\/p>\n
The  Secretary of State for India in Council v.\t The  Bombay
\nLanding\t A  Shipping Co. Ltd.(1) and M\/s.   Builders  Supply
\nCorporation  v. The ‘Union of India(2).\t As I  have  already
\nstated\tthe  adoption  of the English law  was\tnot  in\t its
\nentirety, but as nearly as the circumstances of the case and
\nof  the\t inhabitants  of  the  place  admit.   It  would  be
\nconfusing  the issue to hold that because some\tprerogatives
\nhave not been adopted, no prerogative of the State may\thave
\nany  place in our system of law.  Again in  considering\t the
\nlimited\t question  as  to the application  of  the  rule  of
\ninterpretation\tunder  discussion,  it\twould  be  an\tidle
\nexercise  to  enter  upon  a  detailed\tdiscussion  of\t the
\nprerogatives which have and which have not been\t assimilated
\nin our system of law.\n<\/p>\n
In  Director of Rationing & Distribution v. The\t Corporation
\nof Calcutta & Ors.<\/a>(3) this Court regarded the rule as one of
\ninterpretation,\t and it is so expressly stated in  State  of
\nWest   Bengal\tv.   Union   of\t  India<\/a>(4);   Sri    Vankata
\nSeetaramanjaneva  Rice\tand  Oil Mills v.  State  of  Andhra
\nPradesh(5) and M\/s.  Builders Supply Corporation v. Union of
\nIndia(2).\n<\/p>\n
In England and the Colonies the rule has not been restricted
\nto common Crown actions or the personal prerogatives of\t the
\nCrown.\t It  excludes  from the operation  of  statutes\t all
\npublic servants acting under the authority of the Crown.  It
\nis   well-settled  that\t in  the  Colonies   the   executive
\ngovernment  represents the Crown as it does in England,\t and
\ntherefore  the Executive Government of the  Commonwealth  of
\nAustralia  or  of  a State in Australia is not\tbound  by  a
\nstatute\t unless\t the  intention that it shall  be  bound  is
\napparent : Roberts v. Ahern(6).\t Again because of the origin
\nof  the\t rule,\tits  protection is  not\t restricted  to\t the
\nproperty and rights of the Crown alone, and applies to State
\nproperty, actions and rights.\n<\/p>\n
When   a  statute  expressly  includes\tthe  State  in\t its
\noperation,  no\tdifficulty arises in giving  effect  to\t the
\nstatute.   Even if there be no express provision, the  State
\nmay  be\t bound by clear intendment of  the  statute,  having
\nregard\tto the nature of the legislation, if the  beneficent
\npurpose\t intended  to  be served  thereby  would  be  wholly
\nfrustrated unless the State is bound.  The rule of interpre-
\ntation applies only when the Court has no indication  either
\nby express reference or by clear intendment in the  statute:
\na  presumption arises in such a case that the words  of\t the
\nstatute\t even  though general are not intended to  bind\t the
\nState.\tThe question is one of presumed intention where\t the
\nlanguage,  purpose  and the -nature of the statute  give  no
\nclear indication and mere general words .ire used.
\nIt  was urged that in the Act there are\t certain  provisions
\nwhich ,expressly refer to the liability of the State and the
\nbinding character
\n5 Bom.\tH.C.R. O.C.J. 23.\t\t   (2) A.I.R. [1965]
\nS.C. 1061.\n<\/p>\n
(1)  [1961] 1 S.C.R. 158.\n<\/p>\n
(3)\t\t\t\t\t      4\t  [1964]   1\nS.C.R. 371.\n(5)  [1964]7 S.C.R. 456.\t\t     (6)   [1904]  1\nC.L.R. 406.\n 197<\/span>\n<\/pre>\n
of those provisions against the State is not in doubt.\t But
\nthat  cannot  be  a ground for holding\tthat  the  remaining
\nprovisions  apply to the State. , The Judicial Committee  in
\nProvince  of Bombay v. Municipal Corporation of the City  of
\nBombay and Another<\/a>() observed :\n<\/p>\n
\t      “They  (the Judicial Committee)  were  pressed
\n\t      with the argument that such an inference might
\n\t      be  drawn from certain express  references  to
\n\t      the  Crown in other parts of the\tAct  itself,
\n\t      and  from\t the  fact that\t by  the  Government
\n\t      Building\t Act,  1899,  the  legislature\t had
\n\t      provided\tfor  the  exemption  of\t  Government
\n\t      buildings\t from certain municipal\t laws.\t The
\n\t      argument was that no express provisions saving
\n\t      the rights of the Crown would be necessary  if
\n\t      the Crown were already immune.  This is not an
\n\t      unfamiliar  argument,  but, as has  been\tsaid
\n\t      many  times,  such  provisions  may  often  be
\n\t      inserted in one part of an Act, or in a  later
\n\t      general Act, ex abundanti cautela, and, so far
\n\t      as  the  Act  of\t1899  is  concerned,  it  is
\n\t      fallacious to argue that the legislature which
\n\t      passed it must have had in mind the particular
\n\t      sections\tof  the Act of 1888  which  are\t not
\n\t      under   review,  or  that\t it  was   impliedly
\n\t      interpreting those sections.”\n<\/p><\/blockquote>\n
The  argument that the rule had not received recognition  in
\nthe  High  Courts  in  India, before  the  judgment  of\t the
\nJudicial  Committee  reported  in  Province  of\t Bombay\t  v.
\nMunicipal Corporation of the City of Bombay and Anr.<\/a>(1)\t was
\npronounced,   is  belied  by  the  course   of\t authorities
\nsummarised  earlier.   There was  practically  a  consistent
\ncourse\tof authorities prior to the Constitution in  support
\nof  the\t principle  which  was\taffirmed  by  the   Judicial
\nCommittee in Province of Bombay v. Municipal Corporation  of
\nthe City of Bombay and Another<\/a>(1).\n<\/p>\n
The  origin of the rule undoubtedly was in  the\t prerogative
\nof the Crown, but there is even in the country of its origin
\nauthority  for the view that the rule is regarded  primarily
\nas   one  of  construction.   In  Madras   Electric   Supply
\nCorporation  Ltd.  v.  Boarland(2),  in\t dealing  with\t the
\nquestion whether “the immunity” of the Crown “from  taxation
\ndepends\t on the construction of the statute or arises,\tfrom
\nthe prerogative in some other way”, Lord MacDermott observed
\n:\n<\/p>\n
\t      “Whatever ideas may once have prevailed on the
\n\t      subject it is, in my opinion, today impossible
\n\t      to uphold the view that the Crown can find  in
\n\t      the  prerogative an immunity from tax  if\t the
\n\t      statute  in  question, according to  its\ttrue
\n\t      construction, includes the Crown amongst those
\n\t      made  liable  to\tthe  tax  it  imposes.\t The
\n\t      appropriate rule as I under-\n<\/p><\/blockquote>\n
(1) L.R. 73 I.A. 271.\n<\/p>\n
(2) [1955] A.C. 667 H.L.-\n<\/p>\n
198<\/span><\/p>\n
\t      stand  it\t is that, in an Act  of\t Parliament,
\n\t      general words shall not bind the Crown to\t its
\n\t      prejudice\t unless\t by  express  provision\t  or
\n\t      necessary implication.  That, however, is, and
\n\t      has   long  been,\t regarded  as  a   rule\t  of
\n\t      construction.\n<\/p><\/blockquote>\n
Lord  Reid concurred in the view that the  immunity  depends
\nupon  construction  of\tthe statute  rather  than  on  royal
\nprerogative.   Lord Keith of Avonholm appeared to express  a
\ndifferent  view.  In India the rule has been accepted  as  a
\nrule  of  interpretation of statutes and applicable  to\t all
\nstatutes   which  governed  State  actions,   authority\t  or
\nproperty.\n<\/p>\n
Is  there any reason then to hold that on January 26,  1950,
\nthe  rule  which  previously applied  to  interpretation  of
\nstatutes  ceased to apply thereto on the date on  which\t the
\nConstitution came into force ?\n<\/p>\n
The rule of interpretation was, as already stated, a settled
\nrule  and was law in force in the territory of India  within
\nthe meaning of Art. 372 of the Constitution.  I am unable to
\nagree  with the contention that a rule of interpretation  is
\nnot “law in force” within the meaning of Art. 372.  There is
\nno  warrant for holding that a rule of interpretation  which
\nis incorporated in a statute e.g. The Indian Succession Act,
\nor  the General Clauses Act is law in force, and not a\trule
\nwhich was enunciated by the highest Court in the realm.\t The
\ncircumstance  that  a rule of interpretation is a  rule\t for
\ndetermination  of intention of the legislature and  for\t its
\napplication    requires\t  determination\t  of\tfacts\t and
\ncircumstances  outside the statute will not make it any\t the
\nless  a rule of law.  Acceptance of the proposition  that  a
\ndecision  of  the  highest  judicial  tribunal\tbefore\t the
\nConstitution  is  law does not involve the view that  it  is
\nimmutable.    A\t  statute   may\t be   repealed,\t  and\teven
\nretrospectively, it would- then cease to be in operation : a
\ndecision which in the view of this Court is erroneous may be
\noverruled  and\tmay cease -to be regarded as law,  but\ttill
\nthen  it  is law in force.  It may be pertinent to  bear  in
\nmind  that it was never seriously argued before us that\t the
\njudgment  of the Judicial Committee which affirmed the\tview
\nexpressed in a long course of decisions was erroneous in the
\ncircumstances then prevailing.\n<\/p>\n
It was said by counsel for the Corporation that it is one of
\nthe fundamental principles of our Constitution that there is
\nequality   between   the   State  and\tthe   citizens\t and
\ndiscrimination\tis not permissible in the application  of  a
\nlaw  generally\texpressed.  it was  claimed  that  if  other
\noccupiers of markets take out licenses, and comply with\t the
\nregulatory  provisions\tof  the Act, and the  State  is\t not
\nobliged\t to  abide  by the rules,  there  would\t be  unequal
\ntreatment  between  owners similarly situate  and  that\t the
\nState may ignore
\n 199<\/span>
\nthe  rules regulating the markets, and on that\taccount\t the
\npublic interest would suffer.  There is no reason however to
\nassume that the State under a democratic Constitution  would
\nbe impervious to public opinion, and would merely because it
\nis not bound by a regulatory Act perpetuate ‘a nuisance.  If
\nit  be assumed that such be the attitude of the State  there
\nwould be nothing to prevent the State from enacting  express
\nlegislation  excluding\titself\tfrom the  operation  of\t the
\nregulatory  laws relating to markets.  I do not\t think\tthat
\nthe  guarantee\tof  the\t equal\tprotection  clause  of\t the
\nConstitution extends to any differential treatment which may
\nresult\t in   the   application\t of  a\t special   rule\t  of
\ninterpretation between the State and the citizens.  Nor\t can
\nit  be said that under our Constitution equality in  matters
\nof  interpretation  between the State and  the\tcitizens  is
\npredicated in all respects.  It must be remembered that\t our
\nConstitutional\tset-up\tis  built up not anew,\tbut  on\t the
\nfoundations  of our old institutions.  The political set  up
\nis indisputably changed, but can it be said that our concept
\nof a State is so fundamentally altered that the\t traditional
\nview  about State privileges, immunities and rights must  be
\nabandoned  because  they  had a foreign origin,\t an  on\t the
\nsupposed  theory  of  equality between\tthe  State  and\t the
\ncitizens  a theory which seeks to equate common good of\t the
\npeople\trepresented  by\t the  State  with  the\trights\t and
\nobligations  of the individual-the Court should\t decline  to
\ngive  effect to the State privileges and immunities ? If  it
\nbe  granted  that the State in making laws  is\tentitled  to
\nselect\titself\tfor  special treatment\tdifferent  from\t the
\ntreatment accorded to the citizen-and it is not denied\tthat
\nin  order to achieve public good it can do so even if  there
\nis  a  differential  treatment between\tthe  State  and\t the
\ncitizen-is there any reason to suppose that a statute  which
\nevidently  was framed on the basis of the well-settled\trule
\nof  the pre-Constitution days which accorded to the State  a
\nspecial\t treatment  in\tthe  matter  of\t interpretation\t  of
\nstatutes  must be deemed to have a different meaning on\t the
\nsupposition  that  the\tConstitution has  sought  to  impose
\nequality between the State and the citizen ?  The fact\tthat
\nin  our\t federal set-up sovereignty is divided\tbetween\t the
\nUnion  and  the States, and in the application of  the\trule
\nthat  the State is not bound by a statute, unless  expressly
\nnamed  or  clearly  implied,  conflicts\t between  the  State
\nenacting  a  law and the Union, or another State  may  arise
\ndoes  not  give\t rise to any  insuperable  difficulty  which
\nrenders the rule in applicable to the changed circumstances,
\nfor  it\t is the State which enacts a  legislation  in  terms
\ngeneral\t which\talone  may  claim benefit  of  the  rule  of
\ninterpretation, and not any other State.\n<\/p>\n
It  was urged that even if the rule that the State  is\tnot,
\nunless expressly named or by necessary implication intended,
\nto be bound, applies, its application must be restricted  to
\ncases where an action of the State in its sovereign capacity
\nis in issue.  Where, however,
\n200<\/span>
\nthe State is following a commercial or trading activity, the
\nrule  can have no application.\tBut in the context of  modem
\nnotions of the functions of a welfare State, it is difficult
\nto   regard  any  particular  activity\tof  the\t  State\t  as
\nexclusively  trading.  The State was originally regarded  as
\nmerely concerned with the maintenance of law and order,\t and
\nwas  not concerned with any trading activity.  But  that  is
\nnow an exploded doctrine.  For the welfare of the people the
\nState  does  and is required in modern times to\t enter\tinto
\nmany  trading  activities,  e.g. to  effectuate\t control  of
\nprices, prevent hoarding and distribute commodities in short
\nsupply,\t besides  maintenance  of  departments\tlike  Posts,
\nTelegraphs, Railways, Telephones etc., activities which\t may
\nhave been regarded as -trading activities in the past.\t But
\nif  initiation and completion of schemes for social  welfare
\nof the people be regarded as an attribute of the exercise of
\nsovereign  authority, it is difficult to  regard  activities
\nundertaken by the State for setting up markets for effective
\ndistribution  of  goods as merely  trading.   Assuming\tthat
\nconducting  a market in a metropolitan town may be  regarded
\nin  a sense as a trading activity there is, in my  judgment,
\nno  sufficient\treason\tto justify any\tdistinction  in\t the
\napplication  of\t the  rule  of\tinterpretation\tto  statutes
\nconcerning sovereign authority and trading activity.
\nUnder the provisions of the Calcutta Municipal Act the owner
\nor  occupier of a market is required to take out a  license.
\nBut there is no express reference to the State: nor is there
\nanything  peculiar in the nature, purpose and object  or  in
\nthe language used in the enactment relating to the issue  of
\nlicenses which may suggest that the State must by  necessary
\nimplication be bound by its provisions.\t I am, therefore, of
\nthe  view that the High Court was in error in  holding\tthat
\nthe  State  of\tWest  Bengal was  bound\t by  the  provisions
\nrelating to the issue of licenses for occupation or  conduct
\nof a market.\n<\/p>\n
I  do  not deem it necessary to consider the  argument\tthat
\nsince  the State cannot be imprisoned in enforcement of\t the
\ngeneral provisions, and imposing a fine upon the State would
\nbe  futile  because the hand which pays and the\t hand  which
\nreceives the fine is the same, an implication arises that it
\nwas not intended that the State should be bound by s. 218 of
\nthe  Calcutta Municipal Act. in my view the penal  provision
\nof s.541 is, though in form a provision creating an offence,
\nintended  to enable the Corporation to collect\tthe  license
\nfee.   The offender and the recipient of fine are  therefore
\nnot the same bodies.\n<\/p>\n
Bachawat, J. By the common law of England, the Crown is\t not
\nbound  by a statute save by express provision  or  necessary
\nimplication.  This rule was applied to Indian legislation in
\n 201<\/span>
\nProvince  of Bombay v. Municipal Corporation of the City  of
\nBombay<\/a>(1).  In The Director of Rationing and Distribution v.
\nCorporation  of Calcutta<\/a>(2), this Court followed  the  Privy
\nCouncil decision.\n<\/p>\n
   On  the  subject  of\t the  royal  prerogative   regarding
\nstatutes Chitty in his book on “Prerogatives of the Crown at
\nP.  382 said “The general rule clearly is, that\t though\t the
\nKing  may  avail himself of the provisions of  any  Acts  of
\nParliament,  he is not bound by such as do not\tparticularly
\nand  expressly\tmention\t him’.\tIt has been  said  that\t the
\nreason of the rule is that “it is inferred prima facie, that
\nthe law made by the Crown, with the assent of the Lords\t and
\nthe  Commons,  is  made for the subjects, and  not  for\t the
\nCrown” per Alderson, B. in A.G. v. Bonaldson (3).  Two rules
\nfollow from the proposition that the law is prima facie made
\nfor  subjects  and not for the Crown: (i) the Crown  is\t not
\nbound  by  a statute save by express words or  by  necessary
\nimplication,  (ii)  that the Crown may take advantage  of  a
\nstatute,  though  not  bound  by  it,  unless  expressly  or
\nimpliedly   prohibited\t from\tdoing\tso.    This    Court
\ncategorically rejected the second rule in V. S. Rice and Oil
\nMills v. State of Andhra Pradesh(4) and held that the  State
\ncannot\tbe permitted to rely upon the artificial  rule\tthat
\nthe  State can take advantage of a statute though not  bound
\nby  it.\t  I  think that this Court should  have\t refused  to
\nrecognise the first rule also.\n<\/p>\n
   The exception of the Crown from the operation of statutes
\nis  based sometimes on the royal prerogative, and  sometimes
\non  a rule of construction.  Originally, the  exemption\t was
\nclaimed\t and allowed on the ground of the prerogative.\t The
\nKing by virtue of his prerogative could claim that a statute
\nwas  made  for subjects only and he stood  outside  it.\t  He
\nwaived\tthis  prerogative right by assenting  to  a  statute
\nwhich bound him expressly or by necessary implication.\t The
\nimmunity  of the Crown is now couched in the form of a\trule
\nof construction.  In spite of this modem disguise, there  is
\nhigh  authority\t for the view that this\t immunity  is  still
\nbased  upon  the  prerogative.\tIn  Madras  Electric  Supply
\nCorporation Ltd v.  Boarland(5) Lord Keith said:\n<\/p>\n
\t       “The true explanation, easily  understandable
\n\t      on  his  torical and legal  grounds,  is\tthat
\n\t      words in a statute capable of applying to\t the
\n\t      Crown may be overridden in the exercise of the
\n\t      prerogative.  That is necessarily involved  in
\n\t      the  oft-repeated phrase that the King is\t not
\n\t      bound by a statute
\n(1) [1946] L.R. 73 I.A. 271.\t    (2) [1961] 1 S.C.R. 158.\n<\/p><\/blockquote>\n
(3) 10 M. & W. 117,124.\t\t    (4) [1964] 7 S.C.R. 456,
\n\t      463, 463-4.\n<\/p>\n
(5) [1955] A.C. 667, 694.\n<\/p>\n
sup.  CI\/66-14
\n202<\/span>
\n\t       unless\tby   express  words  or\t  by   clear
\n\t      implication.  If the statute does not apply to
\n\t      him  there  can be no question  of  his  being
\n\t      bound by it.  It is only because it can  apply
\n\t      to  him  that  appeal to\tthe  prerogative  is
\n\t      necessary.  The conception of the prerogative,
\n\t      in  my  view,  is\t of  something\tthat  stands
\n\t      outside  the statute, on which the  Crown\t can
\n\t      rely, to control the operation of the  statute
\n\t      so far as it prejudices the Crown”.\n<\/p>\n
But  the  prerogative right of overriding statutes  did\t not
\nextend to India.  When the Crown of England became sovereign
\nin  India,  it\tacquired such  prerogative  rights  as\twere
\nenjoyed\t by  the  former Indian sovereigns  and\t such  other
\nprerogative  rights  as\t may  be said  to  inhere  in  every
\nsovereign  power.   But\t the common  law  was  never  bodily
\nimported  into India and the Crown never possessed in  India
\nall  the  prerogatives allowed to the Crown by\tthe  law  of
\nEngland.   In  The Mayor of the City of Lyons v.  Hon.\tEast
\nIndia Company(1), the Privy Council held that the common law
\nas  to alienage and the royal prerogative of  forfeiture  of
\nthe  lands  held by a deceased alien on the  ground  of\t the
\nincapacity  of the alien to hold real property and  transmit
\nit  by\tdevise\tor  descent was\t never’\t introduced  in\t the
\nPresidency  town of Calcutta or the mofussil.  Such a  right
\nwas  not  enjoyed  by the Indian sovereign,  nor  was  it  a
\nnecessary  incident of sovereignty.  Lord Brougham  said  at
\npp. 280, 281, 282 and 286 of the Report:\n<\/p>\n
\t       “But  it seems to be contended both here\t and
\n\t      below,  that  there is something\tin  the\t law
\n\t      incapacitating  aliens, which makes it, so  to
\n\t      speak,  of necessary  application\t wheresoever
\n\t      the  sovereignty of the Crown is\testablished,
\n\t      as  if  it  were inherent\t in  the  nature  of
\n\t      sovereign power.\tTo this a sufficient  answer
\n\t      has been already afforded, if the acts of\t the
\n\t      sovereign\t power\tto which we  have  referred,
\n\t      show  that no such application to Bengal\tever
\n\t      was contemplated, unless direct authority\t can
\n\t      be   produced  to\t show  that  the  right\t  is
\n\t      inseparable  from the sovereignty, and, as  it
\n\t      were,    an    essential\t  part\t  of\t it.\n<\/p><\/blockquote>\n
\t      It   certainly   is   not\t  an   incident\t  to
\n\t      sovereignty;   in\t  several   countries\t the
\n\t      sovereign\t  has\tno   such   right………..
\n\t      Besides,\t if   reference\t be  made   to\t the
\n\t      prerogative   of\tthe  English   Crown,\tthat
\n\t      prerogative in other particulars is of as high
\n\t      a nature, being given for the same purpose  of
\n\t      protecting the State; and it is not  contended
\n\t      that  these branches are extended\t to  Bengal.<\/p><\/blockquote>\n
\t      Mines of precious metals, treasuretrove, royal
\n\t      fish,  are  all vested in the Crown,  for\t the
\n\t      purpose of maintaining its power, and enabling
\n\t      it  to defend the State. They are not  enjoyed
\n\t      by the sovereign in all or even in most
\n(1)  [1837] 1 M.I.A. 173.\n<\/p>\n
 203<\/span><\/p>\n
\t       countries,  and\tno one has  said  that\tthey
\n\t      extend  to the East Indian possessions of\t the
\n\t      British Crown………..\n<\/p>\n
\t       Upon  the  whole,  their\t Lordships  are\t  of
\n\t      opinion  that the law,  incapacitating  aliens
\n\t      from  holding real property to their own\tuse,
\n\t      and transmitting it by descent or devise,\t has
\n\t      never been introduced into Calcutta.”\n<\/p>\n
The  common law of attainder or corruption of blood and\t the
\nprerogative right of forfeiture or escheat on conviction  of
\ntreason or felony now abolished by the Forfeiture Act,\t1870
\n(33 & 34 Vict. c. 23) did not prevail in India, see  Papamma
\nv.  Appa Rau(1)’ Nor did the English law as felo de  se\t and
\nthe forfeiture of goods and chattels consequent upon suicide
\napply  to  a  Hindu, though a  British\tsubject,  committing
\nsuicide\t at  Calcutta, see Advocate-General of\tCalcutta  v.
\nRanee Surnomoye Dossee(2).\n<\/p>\n
At  Common  law,  no proceedings, civil\t or  criminal,\twere
\nmaintainable  against  the Sovereign in person for,  it\t was
\nsaid,  that  as the Courts were her own they could  have  no
\njurisdiction  over her, see Halsbury’s Law of England,\tVol.
\n7, Art. 544, p. 249.  In India, the government did not enjoy
\na general immunity from suits and legal proceedings, see The
\nPeninsular  and\t Oriental Steam Navigation  Company  v.\t The
\nSecretary  of  State  for India.(1) The\t subjection  of\t the
\nGovernment  to suits where it was liable to be\tsued  before
\nthe  Constitution  is preserved by Art. 300 of\tthe  Consti-
\ntution.\t  Though  orders of mandamus and  injunction  cannot
\nissue  to  the\tCrown in England,  see\tHalsbury’s  Laws  of
\nEngland, 3rd Edn.  Vol. II, Art. 25 and 184 pages 16 and 98,
\nsuch  orders can issue to Government under Arts. 32 and\t 226
\nof  the Constitution.  See also State of Bihar\tv.  Sonavati
\nKumari(4).   Province of Bombay v. Khusaldas Advani<\/a>(5).\t  In
\nEngland the King by his prerogative may sue in what Court he
\npleases,  see Craies on Statute law, 6th Edn., p. 435.\t The
\nprerogative  of choice of Courts by the Crown never  applied
\nin  India.  The State can sue only in a Court  competent  to
\nentertain the suit under the general law.  In England it was
\nthe  prerogative  of  the  Crown not to\t pay  costs  in\t any
\njudicial proceeding, see Craies on Statute Law, 6th edn,  p.\n<\/p>\n
432.   But this prerogative was never recognised  in  India.
\nThe State pays and receives costs like a private individual.
\nThe Indian law did not deny that the Crown had certain\tpre-
\nrogatives.  The Crown inherited the prerogatives enjoyed  by
\nthe  former  Indian Sovereigns and  had\t other\tprerogatives
\ninherent   in  the  nature  of\tsovereignty.   It  was\t the
\nprerogative  of\t the  King in Council to  hear\tappeals\t and
\npetitions from his Indian subjects,
\n(1) 1. L. R. 16 Mad. 384,396.\t(2) 9 M.I.A. 387.
\n(3) 5 Bom.  H.C.R. Appendix 1.\t  (4) [1961] 1 S.C.R. 728.
\n(5)  [1950] S.C.R. 621,697.\n<\/p>\n
204<\/span><\/p>\n
see   Modee  Kai  Khocscroo  Hormusjee\tv.   Cooverbhaee(1).
\nprerogative was taken away by the Abolition of Privy Council
\nJurisdiction Act 1949.\tWhen there is a failure of heirs  on
\na  person  dying intestate, the Crown  had  the\t prerogative
\nright  to take his property by escheat, and this  right\t was
\nsaid to rest on grounds of general or universal law, see the
\nCollector  of Masulipatam v. Cavaly  Vencata  Narrainapa(2),
\nSonet  Koor v. Himmut Bahadoor(3) Mussammat Khursaidi  Begun
\nv.  Secretary  of  State for India(4).\t The  right  of\t the
\nGovernment  to take the property by escheat or lapse on\t the
\nfailure of heirs or as bona vacantia for want of a  rightful
\nowner  is recognised by Art. 300 of the\t Constitution.\t The
\nprerogative right of the Crown to priority in payment of its
\nclaims was recognised on the ground that this right did\t not
\narise out of any peculiar quality in the writ of extent\t and
\nthe Hindu, Muhammadan and Poituguese Sovereigns had  enjoyed
\na similar right, see Secretary of State for India v.  Bombay
\nLanding\t and  Shipping\tcompany(5).   The  extent  of\tthis
\nprerogative  right may be limited by a statutory  scheme  of
\nadministration, see GrovernorGeneral in Council v. Shiromani
\nSugar Mills Ltd. (in liquidation)(6).  It has been held that
\nthe Government continues to enjoy this prerogative right  of
\nprecedence  after  the\tConstitution came  into\t force,\t see
\nBuilders  Supply Corporation v. Union of India (7), Bank  of
\nIndia  v.  J. Boman(8).\t The Crown as  parens  partriae\t had
\nother  prerogative rights.  The Crown may have also  enjoyed
\nin  India certain prerogative rights which were not  allowed
\nto  the\t Crown\tof  England by\tthe  common  law  and  those
\nprerogatives  might vary in  different parts of\t India,\t see
\nBell\tv.Municipal   Commissioners   for   the\t  City\t  of
\nMadras(9).Gopalan v. State of Madras (10).  But in India the
\nCrown never enjoyed the general prerogative of overriding  a
\nstatute\t and  standing\toutside it.  Such  a  right  is\t not
\nindigenous  to\t India, nor is it a  necessary\tincident  of
\nsovereignty.\n<\/p>\n
In  The\t Secretary of State for India in Council  v.  Bombay
\nLanding\t and Shipping Company(5), Ganpat Putava v. The\tCol-
\nlector\tof  Canars (11) the Bombay High Court  held  that  a
\nprerogative  of\t the Crown cannot be taken  away  except  by
\nexpress\t words or by necessary implication.   To  appreciate
\nthese  rulings, it is necessary to remember that until\t1861
\nthere  were constitutional restrictions on the power of\t the
\nIndian\tlegislature to affect the prerogative of the  Crown,
\nsee Statutes 3 and 4 William cap.  LXXV S. 43 and 16 and  17
\nVict.  cap  XCV\t S.  43, which\twere  swept  away  by  later
\nstatutes,  see\tthe  Indian Councils Act, 1861\ts.  24,\t the
\nGovernment of India Act 1915, s. 84 (1) (A), the  Government
\nof
\n(1)  6 M.I.A. 448,455.\n<\/p>\n
(3)  [1876] I.L.R. I Cal.391.\n<\/p>\n
(5)  (1868) 5 Bom.  H.C.R. 23.\n<\/p>\n
(7)  [1965] 2 S.C.R. 289.\n<\/p>\n
(9)  I.L.R. 25 Mad. 457.\n<\/p>\n
(2)  [1859-61] 8 M.I.A. 500.\n<\/p>\n
(4)  [1925] I.L.R. 5 Patna 538.\n<\/p>\n
(6)  [1946] F.C.R. 40.\n<\/p>\n
(8)  A.I.R. 1956 Bom. 305
\n(10) [1902] I.L.R. 1958 Mad. 798,802.\n<\/p>\n
(11) [1875] I.L.R. I Bom. 1.\n<\/p>\n
205<\/span><\/p>\n
India  (Amendment)  Act, 1917, s. 2 as\tinterpreted  in\t The
\nSecretary  of  State  v. Bombay\t Municipality(1),  with\t one
\nexception  introduced by the Government of India Act,  1935,
\ns.   1\t10(b)(ii).   Having   regard  to   this\t  historical
\nbackground,  it was considered that the prerogative  of\t the
\nCrown  was a very special subject matter and in the  absence
\nof  express  words or necessary implication,  it  should  be
\npresumed  that\tgeneral\t words of an  Indian  Act  were\t not
\nintended  to affect the prerogative.  In Bells\tcase(2)\t Sir
\nBhashyam Ayyangar J.therefore pointed out that the  doctrine
\nthat the prerogative could not be taken away save by express
\nwords  or  by necessary implication could be  based  on\t the
\nmaxim  generalia specialibus non derogant.  This maxim\tdoes
\nnot  exempt  the  Crown\t from  the  operation  of   statutes
\ngenerally  whenever a statute prejudicially affects it.\t  In
\norder  to  invoke this doctrine, the Crown  must,  establish
\nthat  it  has some prerogative right which it claims  to  be
\noutside the purview of the statute.\n<\/p>\n
As pointed out already under the Indian law the Crown  could
\nnot claim a general exemption from statutes on the ground of
\nthe  prerogative.  But there is high authority for the\tview
\nthat such an exemption is allowed to the Crown in England on
\nthe  basis  of a rule of construction.\tIn  Madras  Electric
\nSupply Corporation v. Boarland(3) at p. 685 Lord  Macdermott
\nsaid  that  the rule that in an Act  of\t Parliament  general
\nwords  shall not bind the Crown to its prejudice  unless  by
\nexpress\t words\tor by necessary implication  has  long\tbeen
\nregarded  as a rule of construction.  This rule has  a\twide
\nsweep,\tand  is not limited to cases where  the\t prerogative
\nright or property of the Crown is in question.\tIt  protects
\nthe  Crown whenever general words in a statute\tmay  operate
\nto,  its prejudice.  See Broom’ s Legal Maxims,\t 10th  Edn.,
\npp.  39-40, Glanville L.  Willams’ Crown Proceedings, p.  48
\n(f. n.). A review of the decided cases shows that until\t the
\ndecision  of  the Privy Council in the Province\t of  Bombays
\ncase(4)\t this wide rule of construction had not\t obtained  a
\nfirm  foothold\tin India.  In Verubai v.  The  Collector  of
\nNasik(5), the Bombay High Court held that the Government was
\nbound  by Art. 167 of Schedule 11 of the  Indian  Limitation
\nAct, 1877.  Westropp, C.J. said:\n<\/p>\n
\t       “The  legislature in passing  the  Limitation
\n\t      Act of 1871, which is applicable to this case,
\n\t      where it intends that Government should have a
\n\t      longer  period  than  the\t subject,  has\tbeen
\n\t      careful expressly to say so, as for  instance,
\n\t      in  article  150\tof Schedule  II,  where\t the
\n\t      period  assigned\tto  suits  brought  by\t the
\n\t      Secretary\t of  State is sixty years  from\t the
\n\t      time  of the accruer of the cause\t of  action;<\/p><\/blockquote>\n
\t      but   the\t Legislature  makes  no\t  difference
\n\t      between Government and its subjects
\n (1) 37 Bom.  L.R. 499.\t\t    (2) I.L.R. 25 Mad. 457.
\n (3)[1955] A.C. 667,685.\t(4) [1946] L.R. 73 I.A. 271.
\n (5) I.L.R. 7 Bom. 552.\n<\/p>\n
   206<\/span><\/p>\n
\t       in  the case of appeals\tor  applications-see
\n\t      Govind Lakshman v. Narayan Moreshvar(1)”.
\n   In Appava v. The Collector of Vizagapatam (2), the Madras High
\n   Court held that the Government was bound by Art. 178 of the
\n   Indian Limitation Act, 1877.\t Turner, C.J. and Muttusami Ayyar,
\n   J.said:\n<\/p>\n
\t       “If  the maxim on which the counsel  for\t the
\n\t      Crown  relies applies to this country-and\t the
\n\t      Crown  is not bound by the provisions  of\t any
\n\t      Act unless they are expressly declared binding
\n\t      on  the  Crown-it\t may be\t inferred  from\t the
\n\t      circumstance that this Act contains provisions
\n\t      prescribing a Limitation to the Government for
\n\t      the  institution of suits and presentation  of
\n\t      criminal\t appeals   that\t  the\t Legislature
\n\t      contemplated that the Crown should be  subject
\n\t      to the provisions of the Act and should  enjoy
\n\t      a\t privilege  to the extent expressed  and  no
\n\t      further-expressum facit cessare tacitum”\n<\/p><\/blockquote>\n
In  the last two cases, the Courts did not apply the  strict
\nEnglish\t rule that the Crown under the prerogative  was\t not
\nbound by the statute of limitation, see Bank Voor Handel  v.
\nHungarian  Administrator(3).  In The Secretary of State\t for
\nIndia v. Mathurabhai(4) Sargent, C. J. was inclined to apply
\nthe  English rule that the Crown is not included in  an\t Act
\nunless\tthere are words to that effect and to hold that\t the
\nGovernment  was not bound by S. 26 of the Indian  Limitation
\nAct,  1877.   But he observed that it was not  necessary  to
\nexpress\t a  decided  opinion on\t the  question.\t  In  Bells,
\ncase(5), the Madras High Court held that the Government\t was
\nbound  by  the taxing provisions of s. 341 of  the  City  of
\nMadras\tMunicipal  Act,\t 1884,\tthough\tnot  named  in\tthat
\nsection.   Sir\tBhashyam Ayyangar, J. reviewed\tthe  earlier
\ncases and decisively rejected the general claim of  immunity
\nof  the Crown from a statute imposing a tax on the basis  of
\nany  prerogative right or supposed rule of construction.  In
\nMotilal v. The Collector of Ahmedabad(6).  Russel, Acting C.
\nJ.  and\t Beaman, J. doubted the application of\tthe  English
\nrule of construction in this country.  They said:\n<\/p>\n
\t       “It  is contended that the maxim\t of  English
\n\t      law  that\t the Crown cannot be  bound  by\t any
\n\t      statute\tunless\t expressly   named   therein
\n\t      applies, and reference is made to the cases of
\n\t      Ganpat  Putaya v. The Collector  of  Kanara(7)
\n\t      The   Secretary\tof  State   for\t  India\t  v.
\n\t      Mathurabhai(8).  Without in any way wishing to
\n\t      prejudge\t the  question\tor   fetter   future
\n\t      argument,
\n\t       (1)  11 Bom H.C.R. 1 1 1.\n<\/p><\/blockquote>\n
\t       (2)  [1882] I.L.R.4 Mad. 135.\n<\/p><\/blockquote>\n
\t       (3)  [1954] 1 A.E.R. 969, 984 (H.L).
\n\t       (4)  [1889] I.L.R. 14 Bom. 213.\n<\/p><\/blockquote>\n
\t       (5)  I.L.R. 25 Mad. 457.\n<\/p><\/blockquote>\n
\t       (6)  [1906] I.L.R. 31 Bom. 86, 89.\n<\/p><\/blockquote>\n
\t       (7)  [1875] I.L.R. I Bom. 1
\n\t       (8)  [1889] I.L.R. 14 Bom. 213.\n<\/p><\/blockquote>\n
   207<\/span><\/p>\n
\t       we  may\tsay that as at\tpresent\t advised  we
\n\t      entertain some doubt whether an exact  analogy
\n\t      exists  between the privileges and  immunities
\n\t      of  the Crown under the Constitutional Law  of
\n\t      England  and those of servants of\t the  Indian
\n\t      Government.”\n<\/p><\/blockquote>\n
The full Bench left the question open.\tIn The Secretary  of
\nState  v.  Mohammed Yysuf(1), Pratt J. held that  ss.  17(2)\n<\/p>\n
(vii) and 90 of the Indian Registration Act, 1908  contained
\nan  implication\t that the Crown was bound by  the  Act.\t  In
\nHiranand  Khushiram  v.\t Secretary of  State  for  India(2),
\nBeaumont, C. J. and Rangnekar, J. applied the strict English
\nrule  of construction and held that since the Crown was\t not
\nnamed  either expressly or by necessary implication  in\t ss.
\n305, 489 and 491 of the City of Bombay Municipal Act,  1888,
\nthe Crown was not bound by those sections.  Soon thereafter,
\nthe same learned Judges held in Secretary of State for India
\nv.  The Municipal Corporation of Bombay(3), that  the  Crown
\nwas  bound  by s. 212 of the City of Bombay  Municipal\tAct,
\n1888  by necessary implication, though not  expressly  named
\ntherein.  In Province of Bombay v. The Municipal Corporation
\nfor   the   City   of  Bombay(4),  Beaumont,   C.   J.\t and
\nRajadhayaksha,\tJ. held that ss. 222(1) and 265 of the\tCity
\nof Bombay Municipal Act, 1888 by necessary implication bound
\nthe Crown.  They refused to follow the dictum of Day, J.  in
\nCorton\tLocal Board v. Prison Commissioner(5) that the\ttest
\nof necessary implication binding the Crown involves that the
\nlegislation  is unmeaning unless the Crown is  bound.\tThey
\nsaid:\n<\/p>\n
\t       “……….   if\t  it  can  be\tshown\tthat
\n\t      legislation  cannot  operate  with  reasonable
\n\t      efficiency,  unless the Crown is\tbound,\tthat
\n\t      would  be a sufficient reason for saying\tthat
\n\t      the  Crown is bound by necessary\timplication.
\n\t      ”\n<\/p><\/blockquote>\n
This decision was reversed by the Privy Council on appeal in
\nProvince  of Bombay’s case(6).\tThe Privy  Council  rejected
\nthe test laid down by the Bombay High Court.  They held that
\nthe strict English rule of construction exempting the  Crown
\nfrom the operation of statutes applied in the case of Indian
\nlegislation.  The parties appearing before the Privy Council
\nconcurred  in  accepting this view.  The  attention  of\t the
\nPrivy  Council\twas  not drawn to  Bell’s  case(7)  and\t the
\npropriety of applying the English rule to Indian legislation
\nwas not considered.  Lord Du Parcq said:\n<\/p>\n
\t       “If it can be affirmed that, at the time when
\n\t      the statute was passed and received the  royal
\n\t      sanction, it was apparent from its terms\tthat
\n\t      its   beneficient\t purpose  must\t be   wholly
\n\t      frustrated  unless the Crown were bound,\tthen
\n\t      it  may be inferred that the Crown has  agreed
\n\t      to be bound.”\n<\/p><\/blockquote>\n
\t\t(1)  [1919]  21\t Bom.  L.R.  1120,  1136.(2)
\n\t       [1934] I.L.R. 58 Bom. 635.\n<\/p><\/blockquote>\n
\t       (3) 37 Bom. L.R. 499.\t(4) I.L.R. 1944 Dom.\n<\/p><\/blockquote>\n
\t      95.
\n\t       (5) [1904] 2 K.B. 165.\t(6)  (1946) L.R.  73
\n\t      I.A. 271.\n<\/p><\/blockquote>\n
\t\t\t     (7)   I. L. R. 25 Mad. 457.\n<\/p><\/blockquote>\n
   208<\/span><\/p>\n
They held that the Crown was not bound by ss. 222(1) and 265
\nof  the City of Bombay Municipal Act, 1888 and an  inference
\nof  necessary  implication binding the Crown  could  not  be
\ndrawn from certain express references to the Crown in  other
\nparts of the same Act and from the exemption of the Crown in
\na later general Act since such provisions are often inserted
\nex  abundanti cautela.\tIt is to be noticed that in  several
\nearlier\t decisions  the\t Bombay\t High  Court  had  drawn  an
\ninference  of  necessary implication binding  the  Crown  in
\nother sections of the same Act.\t Moreover, except the Bombay
\nHigh Court,  no other High Court held that the English c  of
\nCrown  exemption  from statutes applied to India.   Even  in
\nBombay, some of the Judges doubted the applicability of\t the
\nrule  to  Indian conditions.  The imposition of\t the  strict
\nrule  of  construction\tby the Privy  Council  decision\t was
\nreceived  very\tunfavourably in India.\t In  Corporation  of
\nCalcutta v. Sub Postmaster, Dharamtala(1), the Calcutta High
\nCourt  felt bound to follow the Privy Council decision,\t and
\nheld that the Government was not bound by the provisions  of
\nthe  Calcutta Municipal Act, 1923.  Mookerjee, J.,  however,
\nsaid:\n<\/p>\n
\t       “Had the question been res integra and had it
\n\t      been  open  ,-to us to consider  the  question
\n\t      untrammelled  by\ta decision of  the  Judicial
\n\t      Committee\t  we  might  have   considered\t the
\n\t      reasonableness  and propriety of applying\t the
\n\t      principles as enunciated by the English Courts
\n\t      and  also\t how far they should be\t applied  to
\n\t      Indian  conditions.  For some years  past\t the
\n\t      position of the Crown with regard to liability
\n\t      and  procedure  has  been\t considered  by\t the
\n\t      lawyers  in  England as being  antiquated\t and
\n\t      absurd  as  contrasted with that\tof  ordinary
\n\t      individuals  and\treform in this\trespect\t has
\n\t      been considered to be long overdue.”\n<\/p><\/blockquote>\n
In The Corporation of Calcutta v. Director of Rationing\t and
\nDistribution(2),  the Calcutta High Court refused to  follow
\nthe Privy Council decision and held that the State was bound
\nby s. 386(1) (a) of the Calcutta Municipal Act, 1923.\tThis
\ndecision  was  reversed\t in The Director  of  Rationing\t and
\nDistribution’s\tcase (3) and a majority of a Bench  of\tthis
\nCourt  held  that  the law was correctly laid  down  in\t the
\nProvince of Bombay’s case(4) and continued to apply in\tthis
\ncountry even after the Constitution came into force, and the
\nState  was  not\t bound\tby s. 386(1)  (a)  of  the  Calcutta
\nMunicipal  Act, 1923.  Wanchoo, J. dissented and  held\tthat
\nthe rule laid down by the Privy Council did not apply to the
\nconstruction of Indian statutes after the Constitution-came
\ninto  force.   Later  decisions of  this  Court\t disclose  a
\ntendency to relax and soften the rigour of
\n(1)  [1948]54 C. W. N. 429.\t (3)\t[1961] 1 S.C.R. 158.
\n(2)  A.I.R. 1955  Cal. 282.\n<\/p>\n
(4)  (1964) L.R. 73 I.A. 271.\n<\/p>\n
   209<\/span><\/p>\n
this  rule.   In Sri Venkata Seetaramanjaneya Rice  and\t Oil
\nMills  and others v. State of Andhra Pradesh<\/a>(1)\t this  Court
\nheld that an inference of necessary implication binding\t the
\nState may be drawn if “the conclusion that the State is\t not
\nbound  by  the specific provision of a given  statute  would
\nhamper\tthe  working of the statute, or would  lead  to\t the
\nanomalous position that the statute may lose its  efficacy”.
\nIn other words, the Court was inclined to revive the  Bombay
\nheresy rejected by the Privy Council.\n<\/p>\n
With  regard  to this rule of exemption of  the\t Crown\tfrom
\nstatutes,  Glanville  L.  Williams in  his  book  on  “Crown
\nProceedings”, 1948, pp. 53 and 54 said:\n<\/p>\n
\t       “The rule originated in the Middle Ages, when
\n\t      it   perhaps  had\t some  justification.\t Its
\n\t      survival,\t however, is due to little  but\t the
\n\t      vis inertiae.  The chief objection to the rule
\n\t      is its difficulty of application …. With the
\n\t      great extension in the activities of the State
\n\t      and the number of servants employed by it, and
\n\t      with  the modern idea, expressed in the  Crown
\n\t      Proceedings  Act,\t that the  State  should  be
\n\t      accountable  in wide measure to the  law,\t the
\n\t      presumption should be that a statute binds the
\n\t      Crown rather than that it does not.”\n<\/p><\/blockquote>\n
Thus,  the artificial rule of construction has\tnot  escaped
\ncriticism  even\t in England.  This rule of  construction  is
\nunsuitable  to Indian conditions and should never have\tbeen
\napplied\t to India.  Before 1946 there was no settled  course
\nof   decisions\tof  the\t Indian\t Courts\t  necessitating\t  or
\njustifying the application of this rule to the\tconstruction
\nof  Indian statutes.  Rules of English law which  could\t not
\nsuitably be applied to Indian conditions were not introduced
\neven in the Presidency Town of Calcutta by 13 Geo HI c 63 or
\n21  Geo\t III  c 70 or any other cognate statute\t or  by\t the
\nCharter\t of Charles II in 1661 see The Mayor of the City  of
\nLyons  v.  The\tHon.  East  India  Company(2)  The  Advocate
\nGeneral\t  of   Calcutta\t v.  Ranee   Surnomoyee\t  Dossee(3).
\nTechnical rules of English common law were not applied\teven
\nin  the Presidency Towns if they clashed with principles  of
\njustice,  equity  and good conscience, see Abdul  Kawder  v.
\nMahomed\t Mera  (4) Mool Chand v. Alwar Chetty (5).   In\t the
\nmofussil,  common  law had no force proprio vigore  but\t the
\nJudges\twere free to adopt and apply any rule of common\t law
\nif  it was consonant with principles of justice, equity\t and
\ngood  conscience.  Artificial rules of Common Law  based  on
\nfeudal notions had no application in India.  In Mithibai  v.
\nLimii  Nowroji Benaji(6), the Bombay High Court\t refused  to
\napply  the rule in Shelley’s case in a case arising  between
\nParsis\tin the mofussil.  In The State of Rajasthan v.\tMst.
\nVidyawati<\/a>(7)
\n(1)  [1964] 7 S.C.R. 456, 462
\n(2) [1837]1 M. A. 175, 246-9, 274-5.\n<\/p>\n
(4) I.L.R 4 Mad 410
\n(5)  I.L.R. 39 Mad. 584, 553. Bom. 506,531.\n<\/p>\n
(3) 9 M.I.A,387, 407-13, 424-30.\n<\/p>\n
 (7) [1962] 2 Supp.  S.C.R 989, 1007.\n<\/p>\n
(6)  (1881) I.L.R 5 Bom. 506, 531.\n<\/p>\n
210<\/span><\/p>\n
this  Court refused to apply rules of immunity of the  Crown
\nbased  on  old,\t feudalistic  notions.\t In  interpreting  a
\nstatute,  it is the duty of the Court to give effect to\t the
\nexpressed  intentions  of  the\tlegislature.   There  is  no
\ncompelling  reason why the Courts in India should  not\tgive
\nfull  effect to the general words of a statute on the  basis
\nof  some  artificial  rule  of\tconstruction  prevailing  in
\nEngland.\n<\/p>\n
No doubt, there are many Indian Acts which expressly provide
\nthat  the  Crown or the Government shall be bound  by  their
\nprovisions.  See the Indian Arbitration Act No. 10 of  1940,
\ns.  43, Trades and Merchandise Marks Act No. 43 of 1958,  s.
\n130,  the  Factories  Act No. 63 of 1948, s.  116,  the\t Oil
\nFields (Regulation and Development) Act No. 53 of 1948,\t the
\nMines Act, 1952, s. 85.\t Some of these Acts are modelled  on
\nEnglish statutes which contain similar provisions.  In\tsome
\nActs,  the  express  provision\tbinding\t the  Government  is
\ninserted  by way of abundant caution.  But the bulk  of\t the
\nIndian\tlegislation  proceeds upon the assumption  that\t the
\nGovernment  will  be bound unless the  contrary\t is  stated.
\nMany  Acts  like the Code of Civil Procedure, 1908  and\t the
\nIndian\tContract  Act 1872 make special provisions  for\t the
\nGovernment   in\t respect  of  particular  matters   on\t the
\nassumption  that  in  respect  of  all\tother  matters\t the
\nGovernment  will be bound by the general provisions  of\t the
\nAct.   The  Indian Limitation Act 1882\tprovided  a  special
\nperiod\tof  limitation for suits by the\t Government  on\t the
\nassumption  that  the Government like the subjects  will  be
\nbound  by  its\tother  general\tprovisions.   To  apply\t the
\ntechnical rule of construction exempting the Crown from\t the
\noperation  of  Indian  statutes\t will  be  to  stultify\t the
\nintention  of  the legislature in most cases.\tThe  English
\nCourts have gone to the length of deciding that the Crown is
\nnot  bound even by general regulations as to public  safety,
\nsee  Cooper  v. Hawkins(1).  Such a result has\tnot  escaped
\ncriticism  even\t in England.  In India, no one\thas  doubted
\nthat  general  regulations  as to  public  safety  bind\t the
\nGovernment equally like the citizens.\n<\/p>\n
The  Director of Rationing and Distribution’s  case(2)\tleft
\nopen  the  question whether the State could  claim  immunity
\nfrom the provisions of a statute with regard to its  trading
\nor  commercial activities.  But the executive power  of\t the
\nState extends to the carrying on of a trade or business, see
\nArt. 298 of the Constitution.  On a question of construction
\nof  a statute, no rational distinction can be  made  between
\nthe trading and non-trading activities of the State.  If the
\nState  is not bound by a statute, it would seem that  it  is
\nnot so bound in respect of all its activities.
\nin  a country having a federal system of government,  it  is
\ndifficult  to  apply  the  rule\t of  Crown  exemption\tfrom
\nstatutes.  In
\n(1) [1904] 2 K.B. 164.\n<\/p>\n
   (2) [1961] 1 S.C.R. 158.\n<\/p>\n
    211<\/span><\/p>\n
R  v. Sutton(1), the High Court of Australia held that\tthis
\npresumption  should  not, be applied so as  to\tbring  about
\neither\t State\texemption  from\t federal  laws\tor   federal
\nexemption  from\t State statutes.  But the  contrary  opinion
\nseems  to  have prevailed in later cases,  see\tMinister  of
\nWorks (W.A.) v. Gulson(2).  The Commonwealth of Australia v.
\nBogle(3).   This  branch of Australian law is  discussed  in
\ndetail\tby Dr. Wynes in his book on  Legislative,  Executive
\nand Judicial Powers, 3rd Edition pp. 518 to 544.  We  should
\nnot  import  in\t this country either  the  English  rule  of
\nimplied\t exception of the Crown or the\tsubtle\tdistinctions
\nengrafted  on  it by the Australian Courts.  Our  system  of
\nGovernment  is\tfederal in character.  The taxing  power  is
\nvested both in the Union and the States.  Subject to certain
\nconstitutional restrictions, the Union can tax the State and
\nthe  State  can\t tax  the Union.  There\t is  no\t ground\t for
\npresuming  that the States are excluded from the scope of  a
\ngeneral\t taxing\t statute enacted by Parliament or  that\t the
\nUnion  is  outside  the purview of the general\twords  of  a
\ntaxing statute enacted by a State legislature.
\nI am therefore of the opinion that the rule that the Govern-
\nment is not bound by a statute unless it is expressly  named
\nor  bound by necessary implication does not prevail in\tthis
\ncountry\t and  the  decisions in\t the  Province\tof  Bombay’s
\ncase(4)\t and  The Director of Rationing\t and  Distribution’s
\ncase(s)\t and the subsequent decisions applying the  rule  to
\nthe construction of Indian Acts should not be followed.\t The
\nimposition  of this artificial rule has been harmful to\t our
\nbody  politic.\t We have power to  reconsider  our  previous
\ndecisions, see The Bengal Immunity Company Ltd. v. The State
\nof  Bihar<\/a>(6).  This is a fit case where we  should  exercise
\nthis  power.   If  the rule of common  law  controlling\t the
\noperation  of  a statute on the ground\tof  the\t prerogative
\napplied\t to  India, it would be a law in  force\t before\t the
\nConstitution and would continue to be in force by virtue  of
\nArt. 372 of the Constitution.  It would be the law in  force
\nbecause\t it  would limit and control the  operation  of\t the
\nexisting  Indian Acts.\tBut we have ample power to say\tthat
\nthis  rule was not in force in India and the Indian law\t was
\nnot correctly laid down by the Privy Council in the Province
\nof Bombay’s case(4) and the decisions which followed it.
\nThere is no presumption that the provisions of an Act do not
\nbind   the  State  (using  the\texpression  “State”   in   a
\ncompendious  sense as including the Union and  the  States).
\nIn  each case, it is a question of fair construction of\t the
\nAct whether or not any particular provision of the Act binds
\nthe  State.   The  intention of the legislature\t has  to  be
\ngathered  on  a\t careful scrutiny of the  Act  in  question.
\nParticular  care  should be taken in scrutinising  the\tpro-
\nvisions\t of a taxing or a penal Act.  If the application  of
\nthe Act
\n   (1) [1908] 5 C. L. R. 789.\n<\/p>\n
   (3) [1953] 89 C. L. R. 229, 254.\n<\/p>\n
   (5) [1961] 1. S.C.R. 158.\n<\/p>\n
   (2) [1944] 69 C. L. R. 338.\n<\/p>\n
   (4) [1946] L.R. 73 I.A. 271.\n<\/p>\n
   (6) [1955] 2 S.C.R. 603.\n<\/p>\n
   212<\/span><\/p>\n
leads  to some absurdity, that may be a ground\tfor  holding
\nthat  the State is excluded from its operation by  necessary
\nimplication.   If  the\tonly  penalty  for  an\toffence\t  is
\nimprisonment, the State cannot be convicted of the  offence,
\nfor the State cannot be locked up in prison.  If the penalty
\nfor   the  offence  is\tfine  and  the\tfine  goes  to\t the
\nconsolidated fund of the State, it may be presumed that\t the
\npenal provision does not bind the State, for the legislature
\ncould not have intended that the State will be the payer  as
\nwell as the receiver of the fine.  Presumably, the Union  is
\nnot  bound by the Central Income-tax Act because if it\tpaid
\nincome-tax,  it\t will be both the payer\t and  the  receiver.
\nLikewise,  a  State  is prima facie not\t bound\tby  a  State
\nAgricultural  Income-tax Act where the tax is receivable  by
\nit.   Moreover\tcases  may conceivably\tarise  where  “press
\nprovisions  in\ta statute binding the State  in\t respect  of
\ncertain\t specific  matters may give rise  to  the  necessary
\nimplication that the State is not bound in respect of  other
\nmatters.\n<\/p>\n
The Calcutta Municipal Act, 1951 contains special provisions
\nexempting  the\tGovernment  from  some\tof  its\t provisions.
\nSection\t 167(2) exempts from the consolidated  rate  certain
\nopen spaces and parade grounds which are the property of the
\nGovernment.  Section 208(1)(b) exempts certain carriages and
\nanimals\t belonging to the Government from payment of tax  on
\ncarriages  and animals.\t Section 225(1) (c) proviso  exempts
\ncarts which are the property of the Government from  payment
\nof  registration  fees.\t Sections 218(1) and  541(1)(b)\t are
\nhowever framed in general terms and do not expressly  exempt
\nthe Government from their operation.  Under s. 218(1) it  is
\nthe  duty  of  every person carrying on any  of\t the  trades
\nmentioned  in schedule TV to take out a licence and  to\t pay
\nthe prescribed fee.  Under s. 541(1) (b) any person carrying
\non such a trade without taking out the licence is punishable
\nwith  fine.  Prima facie, the two provisions  apply  to\t all
\npersons\t including the State Government.  Section 218  is  a
\ntaxing\tsection\t and its object is to levy revenue  for\t the
\nmunicipality.\tThere is no reason why the State  Government
\nlike any other person should not take out a license and\t pay
\nthe  prescribed fee if it chooses to exercise or carry on  a
\ntrade  and why it should not be punished with fine under  S.
\n541(1)(b) if it chooses to carry on a trade without taking a
\nlicense.  By S. 541(2), such fine, when levied, is taken  by
\nthe  Municipality  in  full satisfaction of  the  demand  on
\naccount\t of  the license Fee.  Section II 5 of\tthe  Act  no
\ndoubt provides that all monies realised or realisable  under
\nthe  Act  (other than fine levied by magistrates)  shall  be
\ncredited  to the municipal fund.  Reading sections  115\t and
\n541(2)\ttogether it appears that the excepting words  “other
\nthan  fine levied by magistrates” in s. 115 do not refer  to
\nthe fine levied under s. 541.  The general provisions of  s.
\n115  must  be read subject to the special provisions  of  s.
\n541(2) and the fine realisable under s. 541 is receivby\t the
\nMunicipality.  It follows that the State Government is
\n    213<\/span>
\nthe  payer  but is not the receiver of the fine.   There  is
\nnothing\t to  indicate that the State  Government  should  be
\nexcluded  from\tthe purview of s. 218(1) and  s.  541(1)(b).
\nSection 218 renders the State liable to pay the license fee.
\nSection\t 541(1) provides the remedy for the recovery of\t the
\nfee in case of default in taking out the license and payment
\nof  the fee.  If we are to hold that s. 218 (1)\t applies  to
\nthe  State but s. 541(1) (b) does not, the result  would  be
\nthat though the State is liable to pay the license fee,\t the
\nMunicipality  will have no remedy against the State for\t the
\nrecovery  of  the  fee.\t  The  legislature  could  not\thave
\ncontemplated such a result.\n<\/p>\n
Section\t 541 (1)(b) is a penal provision.  But the State  is
\nnot  necessarily  exempt  from the operation  of  a  statute
\nhaving\ta  punitive aspect.  No doubt, under s.\t 547(A)\t the
\nCourt is competent to direct imprisonment of the offender in
\ndefault\t  of  the  payment  of\tfine  under  s.\t  547(1)(b).
\nObviously,  this provision cannot be applied to\t the  State,
\nbecause\t the State cannot be detained in prison.  But  there
\nis no reason why s. 541(1) (b) should not be applied to\t the
\nState.\t In  Rani Sonavati Kumari v. The State\tof  Bihar(‘)
\nthis  Court held that under the punitive provisions of\t0  –
\n39, r. 2(3) of the Code of Civil Procedure, 1908, the  Court
\ncould  direct  attachment of the property of the  State\t for
\nbreach of an order of injunction, though the Court could not
\ndirect detention of the State in civil prison.
\nThe  High  Court  found that the State of  West\t Bengal\t was
\ncarrying  on  a\t trade referred to in  schedule\t IV  of\t the
\nCalcutta  Municipal Act, 1951, and was bound to take  out  a
\nlicense\t under s. 218(1).  It is common case that the  State
\ndid  not  take\tout a license for  1960-61.  The  State\t was
\ntherefore  rightly  convicted  by the High  Court  under  s.
\n541(1).\t  In the judgment of the High Court it is stated  by
\ninadvertence that the conviction was under s. 537, but\tfrom
\nthe materials on the record it is clear that the High  Court
\nintended  to pass the order of conviction under s.  541.  It
\nwas argued that the State was the owner of a market and\t did
\nnot carry on any business. it was suggested that the trades,
\nif  any, in the market were carried on by the  stall-holders
\nand not by the Government.  But the High Court has  recorded
\nthe finding that the Government carried on a trade.  In this
\nappeal under Art. 136 of the Constitution, I do not  propose
\nto interfere with this finding Of fact.\t This judgment\twill
\nnot preclude the Government from proving in any future\tcase
\nthat  it  is  not carrying on any trade or  business  at  1,
\nOrphanage Road, Calcutta,
\n   The appeal is dismissed.\n<\/p>\n
       ORDER
\nIn  accordance with the opinion of the majority, the  appeal
\nis dismissed.\n<\/p>\n
   Y. P.\n<\/p>\n
   (1) [1961] S.C.R.728.\n<\/p>\n
214<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Superintendent & Legal … vs Corporation Of Calcutta on 7 December, 1966 Equivalent citations: 1967 AIR 997, 1967 SCR (2) 170 Author: K S Rao Bench: Rao, K. Subba (Cj), Wanchoo, K.N. & Shah, J.C., Sikri, S.M. & Bachawat, R.S., Ramaswami, V. & Shelat, J.M., Bhargava, Vishishtha & Vaidyialingam, C.A. PETITIONER: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-16380","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSuperintendent & Legal ... vs Corporation Of Calcutta on 7 December, 1966 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/superintendent-legal-vs-corporation-of-calcutta-on-7-december-1966\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Superintendent & Legal ... vs Corporation Of Calcutta on 7 December, 1966 - 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