# DIRECTOR OF RATIONING AND DISTRIBUTION v. THE COHPORATION OF CALCUTTA .\ND OTHERS

- **Citation:** [1961] 1 S.C.R. 158
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Crimin&! Appeal No. 158 of 1956
- **Bench:** B. P. Sinha, Jafer Imam, ·A. K. Sarkar, K. N. Wanchoo, J. C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/director-of-rationing-and-distribution-v-the-cohporation-of-calcutta-nd-others-1918
- **Pages:** 33

## Headnote

Statute, interpretation of-State, if bound by stat11te--Pri1iciplcs applicable--" l'ason", if incl11dcs State-Calcutta Municipal
Act, 1923 (Brn. II l of 1923), s. 386(1)(a)-Constit11tion of India,
Art. 372.
The appellant was using certain premises in Calcutta fo
storing rice flour, etc. \vithout taking ~ut any license undc.
s. 386(1)(a) of the Calcutta Municipal Act, 1923.
The respon·
dent f1Jccl a complaint against the appellant for a contravention
of s. 306(1)(a). The trial
~lagistratc acquitted the appellant
holding that the provisions of s. 386(1)(a), neither in terms nor by
necessary implication bound the Government whom the appellant represented.
In revision, the High Court held that the
Government was bound by a statute unless the legislature
excluded it expressly or by necessary implication. The High
Court d•clined to follow the decision o! the Privy Council in
L. R 73 I. A. 271 that the general principle applicable in England applied to Indian legislation also.
H cld, that the State was not bound by the pro,·isions of
s. 386(1)(a) of the Calcutta Municipal Act, 1923, and that the
appellant was not liable to be prosecuted for a contravention of
this section.
!'er Sinha, C. J., Imam and Shah, JJ.-The law applicable to
India before the Constitution was as authoritatively laid down
by the Privy Council in L. R. 73 I. A. 271. The Constitution has
not made any change in the legal position. On the other hand
it has clearly indicated that the laws in force before January 26,
1950, shall continue to have validity even in the new set-up
except in so far as they were in conflict with the express provisions of the Constitution. The rule of interpretation of statutes
that the State is not bound by a statute unless it is so provided
in express terms or by necessary implication, is still good law.
Province of Bombay v. Municipal Corporation of the City of
Bombay, (1946) L.R. 73 I. A. 271, applied.
Bell v. The Municipal Commissioners for the City of Madras,
(1901) l.L.R 25 Mad. 457, disapproved.
The Corporation of Caler.Ila v. Sub-Postmaster, Dharmatala
Post Office, (1948) 54 C. W. N. 429, United States of A""'rica v.
1 S.C.R. SUPREME COUitT REPORTS
159
United Mine Workers of America, (1947) gr L. Ed. 884, United
States of America v. Reginald P. Wittek, (1949) 93 L. Ed. 1406,
Less Larson v. Domestic and Foreign Commerce Corporation, (1949)
93 L. Ed. 1628 and Roberts v. Abern, (1904) l C. L. R. 406, referred to.
There is nothing in the Act to inclica te that the State was
bound by it by necessary implication, nor is there anything in it
to show that ifs. 386 were not held to apply to the State the law
would lose it efficacy or that its working would be hampered in
any way.
Per Sarkar, J.-The rule that the crown is not bound by
the provisions of any statute unless it is directly or by necessary
implication referred to is really a rule of construction of statutes
and is not dependent on royal prerogatives. It has been applied
by courts in India all along before the Constitution and there is
no reason why it should not be applied to the interpretation of
statutes after the Constitution.
Attorney General v. Donaldson, (1842) ro M. & W. II7, Coomber
v. Justices of Berks, (1883) g App. Cas. 61, Roberts v. Ahern, (1904)
1 C.L.R. 406, United States v. United Mine Workers of America,
(1947) 91 L. Ed. 884, United Statesv. The State of California, (1936)
So L. Ed. 567, Bell v. The Municipal Commissioners for the City of
Madras, (1901) I. L. R. 25 Mad. 457, Mersey Docks v. Cameron,
(1865) II H. L. C. 443 and Coomber v. Justice of Berks, (1884) 9
App. Cas. 61, Greig v. University of Edinburgh, (1868) L. R. l
H. L. (Sc.) 348 and Cooper v. Hawkins, [1904] 2 K. B. 164, referred to.
Section 386(1)(a) does not bind the Government by necessary implication ; the fact that certain provision• of the Act
expressly exempt the Government does not raise the necessary
implication. Nor would the purposes 9f the Act be defeated if
the Government were not bound b

## Text

_Characters 0–39,848 of 75,964. This is a partial read: ask again with offset=39848 for what follows._

Augu~r 16.
158
SUPREME COURT REPORTS
DIRECTOR OF RATIONING AND
DISTRIBUTION
v.
THE COHPORATION OF CALCUTTA
.\ND OTHERS
(1961]
(B. P. SINHA, c. J., JAFER IMAM,·A. K. SARKAR,
K. N. WANCHOO and J. C. SHAH, JJ.)
Statute, interpretation of-State, if bound by stat11te--Pri1iciplcs applicable--" l'ason", if incl11dcs State-Calcutta Municipal
Act, 1923 (Brn. II l of 1923), s. 386(1)(a)-Constit11tion of India,
Art. 372.
The appellant was using certain premises in Calcutta fo
storing rice flour, etc. \vithout taking ~ut any license undc.
s. 386(1)(a) of the Calcutta Municipal Act, 1923.
The respon·
dent f1Jccl a complaint against the appellant for a contravention
of s. 306(1)(a). The trial
~lagistratc acquitted the appellant
holding that the provisions of s. 386(1)(a), neither in terms nor by
necessary implication bound the Government whom the appellant represented.
In revision, the High Court held that the
Government was bound by a statute unless the legislature
excluded it expressly or by necessary implication. The High
Court d•clined to follow the decision o! the Privy Council in
L. R 73 I. A. 271 that the general principle applicable in England applied to Indian legislation also.
H cld, that the State was not bound by the pro,·isions of
s. 386(1)(a) of the Calcutta Municipal Act, 1923, and that the
appellant was not liable to be prosecuted for a contravention of
this section.
!'er Sinha, C. J., Imam and Shah, JJ.-The law applicable to
India before the Constitution was as authoritatively laid down
by the Privy Council in L. R. 73 I. A. 271. The Constitution has
not made any change in the legal position. On the other hand
it has clearly indicated that the laws in force before January 26,
1950, shall continue to have validity even in the new set-up
except in so far as they were in conflict with the express provisions of the Constitution. The rule of interpretation of statutes
that the State is not bound by a statute unless it is so provided
in express terms or by necessary implication, is still good law.
Province of Bombay v. Municipal Corporation of the City of
Bombay, (1946) L.R. 73 I. A. 271, applied.
Bell v. The Municipal Commissioners for the City of Madras,
(1901) l.L.R 25 Mad. 457, disapproved.
The Corporation of Caler.Ila v. Sub-Postmaster, Dharmatala
Post Office, (1948) 54 C. W. N. 429, United States of A""'rica v.
1 S.C.R. SUPREME COUitT REPORTS
159
United Mine Workers of America, (1947) gr L. Ed. 884, United
States of America v. Reginald P. Wittek, (1949) 93 L. Ed. 1406,
Less Larson v. Domestic and Foreign Commerce Corporation, (1949)
93 L. Ed. 1628 and Roberts v. Abern, (1904) l C. L. R. 406, referred to.
There is nothing in the Act to inclica te that the State was
bound by it by necessary implication, nor is there anything in it
to show that ifs. 386 were not held to apply to the State the law
would lose it efficacy or that its working would be hampered in
any way.
Per Sarkar, J.-The rule that the crown is not bound by
the provisions of any statute unless it is directly or by necessary
implication referred to is really a rule of construction of statutes
and is not dependent on royal prerogatives. It has been applied
by courts in India all along before the Constitution and there is
no reason why it should not be applied to the interpretation of
statutes after the Constitution.
Attorney General v. Donaldson, (1842) ro M. & W. II7, Coomber
v. Justices of Berks, (1883) g App. Cas. 61, Roberts v. Ahern, (1904)
1 C.L.R. 406, United States v. United Mine Workers of America,
(1947) 91 L. Ed. 884, United Statesv. The State of California, (1936)
So L. Ed. 567, Bell v. The Municipal Commissioners for the City of
Madras, (1901) I. L. R. 25 Mad. 457, Mersey Docks v. Cameron,
(1865) II H. L. C. 443 and Coomber v. Justice of Berks, (1884) 9
App. Cas. 61, Greig v. University of Edinburgh, (1868) L. R. l
H. L. (Sc.) 348 and Cooper v. Hawkins, [1904] 2 K. B. 164, referred to.
Section 386(1)(a) does not bind the Government by necessary implication ; the fact that certain provision• of the Act
expressly exempt the Government does not raise the necessary
implication. Nor would the purposes 9f the Act be defeated if
the Government were not bound by it.
Hornsey Urban Council v. Hennel, [1902] 2 K. B. 7.l and
Province of Bombay v. Municipal Corporation, Bombay, (1946) L.R.
73 I. A. 271, relied on.
Per Wanchoo, ].-The rule of construction which is based on
the royal prerogative as known to the common law of England
cannot be applied to India now when there is no crown in India
and when the Common law of England is not applicable. The
proper rule of construction which should be applied now is that
the state is bound by a statute unless it is exempted expressly
or by necessasy implication.
Province of Bombay v. Municipal Corporation of the City of
Bombay, (1946) L. R. 73 I. A. 271, not applied.
United States of America v. United Mine Workers of America,
Etc., (1947) 91 L. Ed. 384, United States of America v. Reginald P.
Wittek, (1949) 93 L. Ed. r406, Jess Larson v. Domestic and Foreign
D·ireclor of
Rulionning &
Distribution
v.
The Corporation
of Calcutta
0- Others
1960
Director nf
Ratir111i"C (.-..
Di .~r, ibu 1io11
v.
Tht Corpvratioti
of Calculla
&..- 01/u:r:>
160
SUPRE;\IE COURT REPORTS
[1961]
Commerce Corporatio11, (1949) 93 L. Ed. 1628, H. Snowdm Marshall v. People of the Stale of New York, (1920) 65 L. Ed. 315 and
G11aranty Trust Company of New York v. United States of Amc·rica,
(1938) 82 L. Eel. 1224._ referred to.
The Calcutta Municipal Act, 1923, docs not specifically
exempt the State from its provisions.
As the State c3nnot be
sentenced to imprisop.ment it is exen1pt i>y necessary implication
from all penal provisions provirling for sentences of imprisonment or death. Further, where a statute provides for a fine and
the fine goes to the State, the State is exempted from the provisions by necessary implication as it could never be the intention
that such a prosecution should be launched. The prosecution in
the present case is under s. 488 which provides for a fine for a
breach oJ s. 386, and the fine when imposed and realised goes to
the State. Consequently, the State is exempt from the penal
provisions of s. 488 of the Act by necessary implication.
CRIMINAL
APPELLATE
JURISDICTION:
Crimin&!
Appeal No. 158 of 1956.
Appeal by special leave from the judgment and
order dated February 9, 1955, of the Calcutta High
Court in Criminal Revision No. 282 of 1954, ari8ing
out of the judgment and order datfld December 15,
1953, of the Second Municipal Magistrate, Calcutta,
in Case No. 2629C of 1952.
1960. Feb. 8, 9, 10.
S. M. Bose, Advocate-General
for the State of West Bengal, A.G. Mitra, B. Sen, P. K.
Bose and D. Gupta, for the appellant.. Threo questions
arise for determination in thi9 appeal: (1) whether
State is a "person" within the meaning of s. 386 of
the Calcutta Municipal Act, 1923, (2) doos the Constit.ution make any change in tho principal of prerogative
as part of the common law and (3) does Art. 372 of
the Constitution keep tho existing law intact, i.e., the
law as declared in L. R. 73 I. A. 271 to the effect that
the Crown i8 not bound by any statute unless it is
expressly named or unless it oan be held to be included by neceBBary implication.
The word " person " has been held not to include
the State. [A.LR. 1954 Punj. 49; A.LR. 57 Punj.
150; A.LR. 53 Nag. 35; A.LR. 1955 Nag. 177; I.L.R.
1953 l Cal. 355; 62 C. W .N. 561.
33 Pat. 603 takes
the contrary view.] If the word "person" included
the State, Art. 300 of the Constitution would not be
i
l
\
J
' J
1 S.C.R. SUPREME COURT REPORTS
Hll
necessary.
How far the Crown is bound by a Statute
not specifically naming it is laid down by the Privy
Council in L.R. 73 I.A. 271.
The dceision of the
Madras High Court taking a contrary view in LL.it.
25 Mad. 457 was not cited before the Privy Council
and is based upon t,he wrong assumption that common
law changed with the change of legi8l>1tion.
'!'he
coming into force of the Constitution does not alter the.
law as laid down in L.K 73 I.A. 271, I.L.R. 1958
Mad. 801 and I.L.R. 58 Born. 635.
Article 372 of the
Constitution includes the common law of the land and
continues the same after the coming into force of the
Constit,ution. [I.L.R. 1956 Cal. 26, I.L.R. 1955 Born.
654]. This common law doctrine of the immunity of
.the Crowu from St.atutes not specifically naming it or
referring to it by necessary implication is ·applicable
in United States also. [52 L. Ed. 82; 65 L. Etl. 315; 82
L. Ed. 1224].
M. G. Setalvad, Attorney.General for India, R. Gana.
pathy Iyer, R.H. Dhebar and T.1"1. Sen, for intervener
.No. 1.
The question is whether the ancient rule of
English common law declared to be applicable to India
by the Privy Council is applicable to the construction
of s. 386 and it has to be examined as to what was
the position before and after the Constitution. The
High Court has decided that even before the Con8titution the principle did not apply in spite of the Privy
Council decision.
The statute of 1923 must be construed in accordance with the rule of interpretation
prevailing in 1923. The makers of statute in 1923 did
not intend to include State in the word" person".
The decision of the Privy Council was the binding law
of the land unless there was . legislation abrogating it
or _taking away its effect.. Article 372 of the Constitution actually continues the law as laid down in L.R. 73
I.A. 271. This Article uses the expression "of the law
in force in India" ancl not the words "existing law ".
The same expression is used in s. 292 of the Government of India Act and was inte~preted in [1940] F.OA'.t-.
llO. There is nothing in the Co,nstitution which takes
away the applicabiliy of the rule. , There is noμiing in
.,
I960
Director of
l?atio11ing
C::~
Distribution
v.
Tlie Corporatian
vf Calcutta
& Others
162
SUPHEllIE COURT REPORTS
[1961]
i96u
that rule or in it8 nat,ure repugnant to any provl8lon
of our ConHtitution.
The rule is illustrated in 152
Dirtltor vj
Rationrng {~
E.R. 406 and I C.L.R. 406.
The rule is applicable to
Dist"""'""'
all forms of Governments and is based on the ground
v.
of public policy and not merely on the ground of
The Corporatwn prerogative. [91 L. Ed. 884; 9:l L. Ed. 1628].
of Calc:ata
V Ji.' 1' Cha . Ad
0
l f
M d
c,. Others
•
•
•
n,
vacate
enera
or
a ras anrl
'I'. M. Sen, for interv1>ncr ~·o. 4. Supported the Advocate-General of Bengal.
H. ld. Seervai, Adrncate-General for Maharashtra and
R.H. Dhehar, for intervener ~o. 5. The word "person" should be gi\·en its normal meaning. It doe8 not
include the Crown or the State. It would not include
the State unless t.he sta.tuto would be meaningless
without such inclusion. [L.K 73 I.A. 271; l C.L.R.
406]. By "necessary implication" is meant that without the inclusion of the crown or tho Statti the bcneficient purposo of tho statut.e would be wholly frustrat.
ed. Tho consensus of j11dicial opinion in Bombay has
•
been the same as expressed in L.R. 73 I.A. 27 l. The
rule has nothing to do with form• of Government. [93
L. Ed. 1406].
Indian decisions have uniformly taken
this view. [5 Born. H.C.R. 23; I.L.R. I Born. 7;
I.L.R. 14 Born. 213; 36 Born. L.R. 820; 37 Born.
L.R. 499; I.L.R. 2 All. 196]. l.L.R. 25 Mad. 457
accepts tho rnlc but says that it docs not apply to
taxation. This was a wrongful curtailment of the
prerogatiw. [Ha.lsbury, Vol. 7, p. 469, pa.ra. !J8]. The
judgments of the Privy Council delivered before January 26, l!J50, a.re binding on all courts in India. oxcept
the Supremo Court and they a.re binding till the
Supreme Court takes a differont view. [A.I.R. 1953
Cal. 524; A.LR. 1955 !'\ag. 293; 56 Born. L.R. 1084].
Government of India. Act, s. 212 provided tha.t the
judgmen.ts of the J<'cdera.I Court and of the Privy
Council shall be binding a.nd shall be followed.
S. M. Sikri, Advocate-General
of
Punjab
and
D. Gupta, for intervener No. 2.
In pre.Constituiion
siatutes the word " person " could include " tho
Crown " but normally or ordinarily it would not so
include. In I.L.R. 1958 Punj. 201 it wa.s held that
"person " included the State of Punjab and the Union
•
r
'
1 S.C.R. SUPREME COURT REPORTS
163
of India. The rule laid down by the Privy Council is
equally applicable to a Republic. [25 L. Ed. 194; 65
L. Ed. 315; 24 L. Ed. 192 and 85 L. Ed. 1071].
In
A.LR. 1956 Pat. 91 the State has becu held to be a
person.
G. C. Mathur and 0. P. Lal, for intervener No. 3.
AdoptM the arguments of the Advocate-General ofWest Bengal and of the Attorney-General of India.
T. M. Sen, for intervener No. 6. Ado!ited the arguments of the Advocate-General, Bengal and the Attorney-General of India.
N. 0. Cha.tterjee, Siinil K. Basu aud Sukumar
Ghose, for respondents. Section 386 is directed towards
rnaintern;nce of healthy condition etc. and is a wholesome provision for safeguarding the health of the
people by providing for the control or storing houses
aud for the equality of the stores. The financial
aspect, i.e., the recovery of license foes or fine is inconcequential. The prerogative of immunity from
the statutes is only available when the State acts as
State and not when it descends to t.rade and business.
State is a person. Salmond, 11th Edition, p. 35,
defines person as an entity capable of rights and
duties. It has the power to hold and acquire property; it can sue and be sued [Article 300 of the
Constitution; 60 Punj. L. H. 546.].
The correct rule
of interpretation is thftt to exempt the ~tate from the
operation of a statute there must, be express exelusion
in favour of the State. [Friedman in 13 Modern Law
Review, 24].
The mere fact that the State cannot be
sent to jail, does not indicate that it is not a person.
A Corporation is a person. It is the stigma of the
conviction that matters and it is not a question of
hurting the State financially.
[1944] 1 K. B. 146;
[1950] S.C.K 720.
A Corporation can be prosecuted
even where mens rea or state of mind is concerned.
[Paton on ,Jurisprudence, 2nd Edition, p. 279].
Sanctions of criminal law should be available against the
State for enforcing the law.
[72 C. L. R. 409; Willis'
Constitution Law, p. 37]. State is a person. [78 L. Ed.
1307; l. L. }{, [1951] l All. 269]. When State engages
in trade or commerce, it must be treated in the same
r960
Director of
Rationing &
Distribution
v.
The Corporatio1i
of Calcutta
& Others
ni,tclor of
Ratiot:u1g &
J)istribulron
v.
The, Corporatio;ic
of Calcutta
& Other~
164
SlJPRE~fE COURT HEPOHTS
(1961]
way as ordinary citizens. [A. I. H. 1955 Nag. 177;
A. I. R. 1956 Pa.t. 91]. Sta.to is not a person only for
the purposes of Art. 14.
The doctrine of immunity of States from the operation of its laws cannot be invoked in the present
constitutional set up. The rule is based on royal
prerogative.
(1 C. L. R 406; Willis p. 54].
The rule
springs from the prerogativ•J that the King can do no
wrong. [ [1920] 2 A. C. 508]. There is no one equivalent to the King now in India and therefore the
prerogative does not survive.
Law is a scheme of
social control and the command of a superior. If the
State claims immunity, it mnAt be exempted by
express legislation.
Iwmuuit.y cannot ho implied.
Thero has been progressi\•e restriction on I.he immunity of the State. [78 L. Ed. 1307; 90 L. Ed. :rn6].
I. L. R. 25 Mad. 457 lays down the correct law.
After
tho coming into force of the Constitution, the High
Courts are not bound by the ju<lgmellt of th" Privy
Council.
All powers arc derived from the Constitution and no immunities can be implied.
Even if any immunity can be implied, then it
cannot be invoked in respect of any trading or commercial activity. [5 Bom. H. C. R. Appendix 1 at
p. 13; 78 L. Ed. 1307; 90 L. Ed. 326].
The act iv it.v
carried on by the State in storing food grains etc., and
distributing them was trading activity and not exercise of Governmental function.
The State is bound by necessary implication by the
provisions of the Calcutta Municipal Act, 1923. Thero
a.re proviRions in the Act which expressly exempt tho
State from their operation. See s. 126.
S. M. Bose in reply.-Common law can be a.mended
by legislation. See s. 4, Hindu Succession Act (30 of
1956) and Hindu Adoptions and l\1aintena.ncc Act (78
of 1956). There is difference between Civil and Criminal liability. [72 C. L. R. 406, at 409, 424, 4'15]. The
Stat.e is not carrying on any trading activity but is
acting in the exerciso of esRential Governmmita.l functions. [ (1955] 1 S. C. R. 707]. Common law of England
was introduced in the Presidency towns by statutes.
See Ormond's Rules of Court; I. L. R'. 61 Ca.I. 841.
1 S.C.R.
SUPREME CODRT REPORTS
165
H. M. Seervai, (with the permission of the Court).
It is a settled rule that if a word is not a term of art,
you must take the ordinary meaning and not go to
technical books. [74 C. L. R. l ; 90 L. Ed. 396; Halsbury Vol. 7, p. 221 ].
S. M. Sikri, (with the permission of the Court)
referred to Holdsworth History of the English Law,
Vol. 10, p. 354.
Our. adv. vult.
1960.
August 16.-The Judgment, of Sinha, C. J.,
Imam and Shah, JJ., was delivered by Sinha, C. J.
Sarkar and Wanchoo, JJ., delivered separate judgments.
SINHA C. J.-This appeal by special leave is
directed against the judgment and order of the High
Court at Calcutta dated February 9, 1955, whereby
that Court, in its revisional jurisdiction, set aside an
order of acquittal dated December 15, 19,53;~passed by
the Municipal Magistrate, Calcutta, in respect of the
prosecution launched by the Corporation of Calcutta,
responr,l'ent in this Court, against the appellant.
The relevant facts are these. On July 1, 1952, the
Corporation of Calcutta made an application for summons under s. 488 of Bengal Act III of 1923, which
was substituted by West Benga.! Act XXXIII of 1951,
against "the Director of Rationing and Distribution
representing the Food Department of the Government
of West Beng11! ". The offence complained of was" for
using or permitting to be nsed premises No. 259,
Chit.pm Road, Upper, for the purpose of storing rice
etc., under the provisions of the Bengal Rationing
Order, 1943, without a licence under s. 386 for the year,
1951,52, corresponding s. 437 of the C.M.C. Act, 1951 ".
Section 386(l)(a) of the Calcutta Municipal Act is in
these terms:-·
"No person shall use or permit to be used any
premioes for any of the following purposes without or
otherwise than in couformitv with the t,erms of a
licence granted by the Corporation in this behalf,
namely, any .of the purposes specified in Schedule
XIX".
Director of
Rationing &
Distribution
v.
The Corporation
of Calcutta
6- Others
Sinha C. ].
D1tt"Cf'JT nf
Unt1n111ng &
/)I .I! YI Ii It f I ~J II
v.
Tht Corporo/1011
of Calcutta
6· 0Jhtr5
166
SUPHEl\lE COCRT ltEPORTS
[1!161]
Item 8 of the sai<l Schedule iR "storing, packing,
presRiug, cleansing, preparing or manufacturing, by
any process whate\·er, any of the following articles"
an<l the articles nwntione<! include rice, flour, etc.
The facts alleged by the prosecution w1•rc not denied
on behalf of the Department, which was in tho position (>ft he a1)(!11scd, b.1t it was conten<le<l bv wiw of a
preliminary objection that the pros~cuti~n w~s not
maintr.inablc in law. Aft.er hearing arg11m1mts for the
parties the leu.rned triu.I
Ma~istrat,e passed an order
acquitting the accusc<l relying upon a dcci,ion of the
Calcutta High Court. in t.he case of The Corporation of
Calcutta v. Sub.Postmaster, Dhnrarnta/a Post Office('),
holding th.it the
provision~ of s. 386 of the Act,
neither in tnms nor by necessary implication, bound
the Government. The respondent. rnovc<l the Calcutta
High Court in its re,•isinnal juriMlicLion iu Criminal
Revi8ion No. 282 of 1954, which waH lie;ir<l hy a Division Bench con8ist.ing of ,l. P. :\litter aud S. !\.Gu ha
Hay, JJ. Guha. Kay, J., who deliYcred the judgment
of the Court., Mitter, J., concurring, hdd th•tl the prnvious decision of tlw •arnc High Court, in 'J'hc Corporation
of Calcutta, .. Sub-Postmaster, Dharamtala Post Oj]ice (')
was clearly distinguishable.
The distinction pointed
out w1ts that the preYious decision of the Court had
relied upon the docision of the .Judici;1! Cummittc" of
the Privy Council in l'rovince of Bombay v. Municipal
Corporation of the City of Born/Jay('), i11 a cr>se arising
before the coming into force of the Constitut.io11.
As
the present case itrose after th·, advent of the Constitution, tho High Court did not feel bound by the aforesaid decision of the Privv Council and therefore
"xamined tho legal positi~n afresh. On such an examination, t.he High Court came to the conclusion
that the Indian Legislature in enacting !11ws acted on
the assumption that the Government would ho bound
unless excluded either expressly or by necessary
implication oftener than on the assumption that it
would not be bound, unless the Legislature so provided
expressly or by necessary implication. The High
Court took the view that the decision of the Division
(I) {1948) 54 C,\.\'.~. 429.
(z) (1946) L.R. 73 I.A. z71.
l S.C.R. SUPREME COURT REPORTS
167
Bench of the Madras High Court in Bell v. The Munici:-
pal Commissioners for the City of Madras (1) was more
in consonance with the law in lndia than the opposite
view expressed in the Privy Council judgment aforesaid. They definitely decided that the law of India,
even before the coming into effect of the Constitution,
and even at the time of the passing of the Government
of India Act, 1935, was that the Government was
bound by a Statute unless it was exempted either
expressly or by necessary implication. ln that view
of the matter, the High Court further observed that
the question whether the decision aforesaid of the
Privy Council was still good law under Art. 372 of the
Constitution did not arise and that, if it did, it was
inclined to the view that the law declared by the Privy
Council was not continued by any provision of law.
In effect, the High Court took the view that the State
. was bound by the Statute unless it was excluded from
its operation either expressly or by necessary implication. In that view of the matter, it held thats. 386
of the Act bound the appellant, set aside the order of
acquittyd and sent the case back to the learned Magistrate for disposal according to law. .The appellant
made an application for special leave to appeal from
the aforesa,id judgment and order of the High Court,
and obtained special leave in September 1955. It is
thus clear that this case had remained pending in this
Court for about five years. If this Court agreed with
the view expressed by the High Court, the case would
have to be triud on merits and the trial would begin
more than eight years after the institution of the petition of complaint, but, as will presently appear, this
prosecution was misconceived and therefore, in effect,
no one has been the worse for the long pendency of
the prosecution, which now must come to an end.
The short question for determination in this appeal
is whether any offence had been committed by the
appellant, as alleged against him. If he was bound by
the provisions of the Act to take out a licence on payment of the necessary fees, he must be held to have
contravened the provisions of that Statute. It has
(1) (1901) l.L.R. 25 Mad. 457·
Director of
Rationing &
Distribution
v.
The Corporation
of Calcutta
& Others
Sinha C. ].
Dircc!or of
Uaf1(ln1ng ~~
J)1Sfrii111/IV'I
v.
The Corporalio11
of Calrullu
{--
Otho-.~
5111/ia C. }.
168
SUPREME COURT REPORTS
[1961)
b<>en contended:. by tho' learned Adv?ca.te-General of
Bengal, representing the appellant, that the deciRion
of the Privy Council referred to above is 8till good law
and that. thA contrary decision of the Divi~ion Bench
of tho :\fadras Hig!1 (;ourt (1) did not take the correct
view of the legal position.
The argument further is
that the Privy Council deci;,iun was certuiuly bindii1g
on the Cuurts in India at tho time it was rendered.
That \\'as the law of the le.nd a• declared by the
highest judicial authority.
Has that judicial det.ermination Leen altered by tLe Constitution Y It has
been argued that the law in India, even after the
coming into effect of the Constitution, continues to Le
the same a• the law in England in respect of the
prerogatives of the Crown. The Act in que8tivu does
not make any express proviRion binding the Government and there was nothing in the Act to show to tho
contrary hy necessary implication. 'The Act. 0ould
opera.to with reasonable effic1\cy without being held to
be binding on tho Goverrncnt. It was further p·,intcd
out that the High Court hBd failed to take into consideration the fact that that High Court itself had
construed the Calcutta Municipal Act of 1923, which
was replaced by the present Act of 1951, on the basis
of tho Privy Council decision not to have bound the
(;overnrnent. Tho Act of 1951 did not mako any
provision oxpressly a.Lmgating that view.
Hence, it
is argued the High Court Bhoul<l have felt bound by
the previous decision of that very Court given on tho
basis of the Privy Council decision; and had erred in
taking tho opposite view.
The argument further was
that the State is not a person within the meaning of
the penal Bection with reference to which the prosecu.
tion had Leen launched. The common law could uot
have been overridden impliedly by a course of legislation. The common law applies to India even after
the Constitution, not because there is tho King or the
Queen, but because it is the law in force.
ln other
words, what was the prerogrative of the sovereign has
now become the law of tho land in respect of the sovereignty. of the State. Thus the law of England, which
(1) (1901) l.L.R. 25 Mad. 457·
1 S.C.R. SUPREME COURT REPORTS
Hl!J
in its source was the prerogative of the Crown, was
the common law of the land and was adopted by the
Constitution by Art. 372, subject to the reservatiuns
contained therein. The Attorney-General for India as
also the Advocates-General of Madras and Bombay
supported the contention ·raise<l on behalf of the
appellant.
.Mr. N. C. Chatterjee, who appeared on behalf of
the respondent, contended that. the State is a legal
person as recognised in Art. 300 of the Constitution
and was, therefore, capable of rights and obligations;
that unless there is an express exclusion of the State
by the Legislature, the Act would apply to all, including the State.
He further contended that under the
Constitution there is no King and, therefore, there
cannot be any question of prerogative. Any exemption from the operation of the statute must be found
in express immunity under the law and cannot be
implied.
He went to the length of contending that
a State's prerogative is inconsistent with the whole
Constitution.
Whatever may have been the legal
position before the coming into effect of the Constitution, it has not countenanced the continuance of
any such prerogative as is contended for on behalf of
the appellant. Another line taken by Mr. Chatterjee is
that when the State embarks upon a business, it does
so not in its sovereign capacity, but as a legal person,
subject to the same rights and liabilities as any other
person. In effect, therefore, he contended that the
State is a person within the meaning of s. 386 of the
Act; that the doctrine of immunity of States from the
operation of its laws cannot be invoked after the
advent of the Constitution, and, alternatively, that
even if the immunity is available to the State as a
sovereign power, it is not available to the State when
it embarked upon a commercial undertaking and that,
in any case, the State was bound by the law by applying the rule of necessary implication from the provisions of the Act.
·
In this case it is manifest that it is the Government
of West Bengal which is sought to be prosecuted
••
Ig6o
Director of
Rationing
~.,...
Distriliu!ion
v.
The Corporation
of Calcutta
(?" Others
Sinha C. ].
Direc.!or of
Ratic:ntnJ: CVistril;"t:o11
v.
The Co,·poration
of Calt:;itta
&- Othrrs
Sinha C. J.
170
SCPRE;\IE COURT REPORTS
[1961]
through one of its officers.
The prosecution is not
against a named person, but a.gs.inst tho Direct.or of a.
named Department of the Government. The person
who was tht' Direct,,r of the Depa.rt.men!. at the relevant date, that is to say, in the year 1951-52 may not
be the same person who a.1rnwerec..l that description on
the date the prosecution was launched. In essence,
therefore, it is the Government of West Bengal which
has t-0 answer the charge levelled by the respondent,
the Corporation of Cu.lcutta.
Whether a prosecution
against such an indeterminate person would or wo.ild
not lie is
t> matter which has not been rnised 11,nd,
therefore, need not ho discussed. The question most
canvassed before us in whether the penal section invoked in this case applies to Government. It has
hcen contended, and in our opinion rightly, that the
provisions of the penal section neither by express
terms nor by necessary implication arc meant to be
A.pplied to Government. The decision of the J i;dicial
Committee of tho Privy Council('), if it is good law
even now, completely covers this case, but the decision of the High Court, now under examination, has
ta.ken the vi"w that the earlier decision of the Division
Bench of the J.\Iadras High Court(') ha8 laid down
the correct law, and not the Privy Council decision.
We have, therefore, to decide which of the two decisions has ta.k•m the correct view of tlrn legal position
as it obtained on the day the prosecution was
launched.
It is well-established that the common law of England is that the King's prerogative is illustrated by
the rule that the Sovereign is not neces8arily bound
by a statutory law which binds the subject. This iH
further enforced by the rule that the King is not bound
by a statute unless be is expressely na.m~d or unless he
is bound by necessary implication or unless the
statute, being for the public good, it would be absurd
to exclude the King from it.
Bla.ckst-One (Commentaries, Vol. I, 261-262) accurately summed up the
legal position as follows :-
"The king is not ·bound by a.ny act of Parliament, unless he be named therein by special a.nd
\1) (1946) L.R. 73 I.A. z71.
(1) [1901] °I.L.R. 25 Mad. 457,
1 S.C.R. SUPREME COURT REPORTS
171
pa.rticular words.
The moRt general words that can
be devised ...... affoct not him in the least, if they may
tend Lo restrain or diminish any of his rights or interests.
For it. would be of most mischievous consequence to the public, if the strength of the executive
power were liable to be curtailed without its own
express consent by constructions and implications of
the subject. Yet, when an act, of Parliament is expressly n111de for the preservation of public rights and the
suppression of public wrongs, and does not interfere
with the established rights of the crown, it is ·said to
be binding as well upon the king as upon the subject;
and, likewise, the king may take the benefit of a.ny
particuhr 11.ct., though he be not specially named."
((~noted at p. 355 of Holdsworth, A History of English
Law, Vol. X).
The King's prerogat.ive is thus ere:1tod and limited by
common law and the sovereign can claim no prerogati''''> except such as the law alluws.
(See Halsbury'~
L<tws of Enghnd, Vol. 7, Third Edition, para. 464, at
p. 221).
The prerogative of the Crown in respect of property
is thus stated in the same volume of Halsbury's Laws
of England, para. 980, at p. 465 :-
" The Crown not being bound by any statute
whereby any prerogative right, title, or interest belonging to it may be divested or abridged, unless expressly
named or bound by clear implication, property owned,
and occupied by the Crown is exempt from taxation
nnlcss rendered liable either by express words or
necessary implication. Moreover, an express exemption of particular classes of Crown property in a
statute is not in itself sufficient to raise the implication
that such property only is exempt, and that other
property not falling within the exception is bound,
such clauses being inserted merely ex majore cautela."
. That was the law applicable to India also, as authoritatively laid down by the Privy Council in the case
referred to above. That decision was rightly followed
by the. Calcutta High Court as stated above. That
would be the legal position until the advent of the
Constitution.
Director of
Rationing &
Distrib:tfion
v.
The Corpo1'afion
of Calcutta
& Others
Sinha C. ].
f.1£,r.c.!oY of
Uat>< .. ·11:11J? .;,.
Dis1ri/,11t11J1
v.
Tlit Ccitf'Jt(lflOll
of Calcutta
(,,. Orlicr5
Sit1h:i C. ].
li2
SCPRK\!E COURT REPOHTS
(Hl61]
The question naturally arises: ivhether the Constitution has made any change in that position ? Thera
aro no words in the Constitution which can be cit,ed in
support of the proposition that the position has changed after the republican form of Go\'ernment has been
ndumbrat~d by· our Constitution, It was argued on
behalf of the respondent that the existence of such a
prerogative is negatived by tho·very form of our new
set up, that is to say, it was contended that the republican form of Government is wholly inconsist,ent with
the existence of such a prerogative, In our opinion,
there is no warrant for such a contention, The immunity of Goverumont f1:om tho operation of certain
statutes, and particularly statutes creating offences, is
based upon the fundamental concept that tho Govern,
rnent or its officers can.not he a p:irty to committing a.
crime-analogous to the • preroga.t ive of perfect.ion '
that the King can do no wrong,. Whatever may have
been the historical roe.son of the rule, it has been
adopted in our country on grounds of public policy as
a rule of intorpretat-ion of statutes, That. this rule is
not peculiar or confined to a monarchical form of
Government is illustrated by the decision of the
Supreme Court of U, S. A, in the case of United State.s
of America v, United Mine Workers of America (1),
where it is la.id down that restrictions on the issue of
injunctions in la.hour disputes contained in certain
statutes do not apply to the United States Government as &n employer or t-0 relations between the
Government and its employees and that statutes in
general terms imposing certain restrictions or divesting certain privileges will not be applied to the
sovereign without express words to that effect, Similarly, in the case of United States of America v. Reginald P, Wittek('), the question aroso whether the
District of Columbia Emergency Rent Act applied to
government-owned defence housing or to governmentowned low-rent housing in tho Dist-rict., and it was ruled
by the Supreme Court, reversing the decision of the
Munieipa.1 Court of Appoals, that the statute in question did not apply to the United States Government
(1) (19i7) 330 U.S. l58: 91 L. Ed. SB+.
(2) (1949) 337 U.S. 346; 93 L. Ed. r4o6.
I l
1 S.C.R. SUPREME COv_RT ftEPORTS. -
173
which was not a. "landlord " within the meaning of
r960
the Act.
The decision was based bn the· rule that a
1
·
·
· ·
d
·
Director of
genera statute imposmg restr1ct1t>ns oes · 11ot impo.se
.....
Ralioni~ig &
them upon the Government itself· without a clear
D!et_rib,.eionexpression or implication to that effect.• Another
y.
illustration of the rule· is to be found in the case of Tho Corporation
Jess Larson v. Domestic and Fo?eig'f!' 'Commerce Oor-·
0! Calcutta
poration ('). In tha.t case a suit by a citizeQ, in effect,
& Others
against the Govern'ment (War Assets Administration)
Sin/:--;;. 1_
for an injunction was dismissed by the D.i!itrict Court
on the_ground that the Court dia not ~ave jurisdiction,
because the suit was one against .the United States.•
The Supreme Com:t, by majority, -held that the suit as
against the United States must fail on the ground that
according to the laws of the country the sovereign
enjoyed an immuqity which was not enjoyed .b)':. the
citizens. The case of Roberts v. Ahern(•) is another
illnstratfon of the same rule. It was held by the High
Court of Australia in that case that the Executive
Government of the Commonwealth or of a State is not
-bound by a statute unless the intention that it shall
be so bound is apparent.
On the other hand, Art. 372 of the:Qonstitution has
specifically provided that subject to the Other provisiCl.ll.S of the Cdnst.itution all the la.ws in force in this
country immediately before the commencement of the
Constitution shall continue in force until altered or
repealed or ii.mended by a competent Ligislature or by
other competent authority. The expression "law in
-force" has been used in a very comprehensive s'ense as
would appear from the provisions of sub-els. (a) and (b)
of cl, (3) of Art. 13 of-the Constitution .. If we, compare
theprovisions of A'rt. 366(10) which defines "existing
Jaw " which has reference to Jaw made· by a legislati've
agency in contradistinction to "Jaws in force" which
include!! not only statutory law, but also custom or
usage having the force of law, it must be interpreted as
including thl3 common law of Englljond which was
adopted as the law of this country befoi;e the Constitution came into force. It is thqs clear that far from
(1) (1949) 337 U.S. 682 : 93 L. Ed. 1628.
(2) (1904) 1 C.L.R. 406.
Director .of
Rationing 6Distribulion
v:
T_he Corporation
of Calcutta
6- Others
Si.nhfl- C. J.
174
-SUPREM}l: COUR.T REPORTS
[1961]
the Con.stitution ma~ing'.'any change in the legal position, it has· clearly ..indicated that the Ia.ws in force
continue to have validity, even in the new set up,
except in so far as they cor:μe in confifot with the
express provisions·of the Qonstitntion. No such provision has been broqg1;it to our 'notice. That being so,
we arc definitely of the opinion that 'the r,ule of inter-.
pre1:ation. :9£:stattitei;) ~hat the.State is 'not bonncfby a
'statute, unless.it.is so provided iri express t~rms or by
neces.~ary.Jmplication, is still good law.
.
But Mr. Chatt'2,rjee further contended; alternatively,
thae even if it were held that the Government as a
spvereign ·pow~r inay,have. the. ~enefit·of the immlrnity
claimed, it is not !llltitled .to that immuniiy when it
embarks upon a business and, in that. cap;i.oity,
becomes su\Jject to the penal provisions of the statute
equally with other citizens. This" question wa.s not
raisl'd below and has not been gone i'llto by the High
Court, nor is it clear on 1.he record, as it.stands, that
the Food Department of .the Government of West
llenga.J, which undertook rationing and distribution of
food on a rational basis had -embarked upon any trade
or business. In the a'bsence of any 'indic111ion to the
contrary, apparently this Department of the GovornmeJlt was djscharging the elementary duty of a
sqvrreign to ensure proper and equitable distribution
of aui.llable. fpod-stuffs with a v.iew to maintaining
pca9e and good Governmen~. Therefore, the alternative argument suggested J.,y Mr. Chatterjee has no
fouudation in fact.
1 t only remains to consider the .other alternative
argument that even if the Seate has· not been bound
by the pe1)al seotion in the statute in question in
express terms, it must be deemed to be bound by it by
necessary implicatiou. But no specific provisions of
the statute in questiop h;i.ve been brought to our n6tice
which. could lend any support to this alternative argument. It has not been shown to us that if the section
which was sought to be applied against the Government were held not expressly to apply to Government,
the law will lose any qf its efficacy., or that its working
will be hampered in auy way. It must, thorefore, be
,
r
11 S.C.R. SUPitEME COURT REPORT&
17q
held that there is. no substance irt this contention .
eithei:.
·
~
The appeal· is accordingly allowea, the judgment
under appeal set aside and the acq'uitta) of· the appel-
"lant confirmed.
• ·
- ·-- • -
·
SARKAR J.-The appellant ·is an. officer of the
Government.oJ West Bengal.