# STATE OF WEST BENGAL v. CORI'ORATION OF CALCUTTA

- **Citation:** [1967] 2 S.C.R. 170
- **Court:** Supreme Court of India
- **Decided:** 1966-12-07
- **Bench:** K. SlJBBA RAO, K. N. Wanchoo, J.C. Shah, s. M. S!KRI, R. S. Bachawat, V. Ramaswami, J.M. Shelat, V. Bhargava A:>;D C. A. Vaidialinga!.I
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-west-bengal-v-cori-oration-of-calcutta-3979
- **Pages:** 44

## Headnote

Calcutta Municipal Act (W.B. 33 of 1951), ss. 218 and 541-Taklng
out licence to run market-State if bound by statute; if exempted by Implication.
State J1nmunity-Rulc that Crown is not bound by statute unless ex•
pressly named or clearly intended, if applies to India.
J11tcrprctation of Statutes-State immunity
from
stalltles-Common
law rule of construction If proper rule.
B
c
Constitution of lndiq, Art. 372r-Rule of
construction,
If "law In
D
force."
lbe appellant-State of West Bengal was carrying on trade a• owner
and occupier of a market at Calcutta wilhout obtaining a licence 3S
,,,_
quired under s. 218 of lhc Calcutta Municipal Act, 1951. The respondent-Corporation of Calcutta filed a complaint against the State for contravention thereof. The trial Magistrate, accepting lhe Slate's contention
that lhe State was not bound by the provisions of the Act acquitted the
E
Slate. On appeal, the High Coun convicted the Sato and sentenced it
to a fine, holding that the Slate was as much bound as a private citi:r.en
to take out a licence. In appeal to this Court the appellant. relying on
this Court's decision in Dlr.ctor of Rationing v. CorporaJwn of Calcutta,
[1961) I S.C.R. 158, contended that the State was not bound by the provisions of a statute unless it was expressly named or brought in by neces-
<ary implication and this common law rule of construction, accepted u
the law in India, was "law in force" within the meaning of Art. 372 ot
I:'
the Constitution and that in any event by necessary implication the State
was excluded from the operation of s. 218 of the Act.
Held: Per Subba Rao C.J., Wanchoo, Sikri, Bachawat, Ramaswami,
Shelat, Bhargava and Vaidialingam, JJ. (Shah, 1. dissenting) :
The State was not exempt from the operation of 1. 218 of the Calcutta Municipal Act, 1951 and was rightly convicted.
G
Ptr Subba Rao C.1. Wanchoo, Sikri, Ramaswaml, Shelat, Bbarpva
and Vaidialiogam, JJ. (i) The Common Law rule of construction that
the Crown is not, unless expressly named or clearly intended, boaod by
a statute. · was not accepted as a rule of construction throughout India
and even in the Presidency Town•, it was not re~ed as an inftexible
nlle of construction. It was not statutorily recogni7.ed either by inc:orpl>'
rating it in dilfereot Acts or in any General Clauses Act; at the most, it
B
wu relied upon as a rule of general guidance in some parta of the cotmtry. The legislative practice establishes
that the various legislatures of
the country provided specifically
exemptions in favour of the Qown
A
B
c
D
E
F
ff
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.J.) 171
whenever they intended to do so indicating
thereby that they did not
rely upon any presumption but only on express exemptions. Even thooe
courts that accepted it considered it only as a simple canon of construction and not as a rule of substantive law.
In the City of Calcutta there
was no universal recognition of the rule of construction in favour of the
Crown. The Privy Council, in Pruvince of Bombay v. Corporation of
the City of Bombay, (1946) L.R. 73 I.A. 27 gave its approval to the rule
mainly on conoession made by counsel. [180 D-G; 183 H; 184 E-F; 186
D-OJ
The archaic rule based on the prerogative and perfection of the Crown
has no relevance to a democratic republic; it is inconsistent with the rule
of law based on the doctrine of equality and introduces confticts
and
anomalies. The normal construction, namely, that an enactment applies to
citizens as well as to State unless it expressly or by necessary implication
m:empta the State from its operation, steers clear of all the anomalies and
is consistent with tbe philosophy of equality enshrined in the Constitution.
[187 F; 188 BJ
U a rule of construction accepted by this Court is Inconsistent with
the legal pbilooophy of the Constitution It ii the duty of this Court to
correct itself and lay down the right rule. This Court must more readily
do so in constitutional matters than in other branches of law. [

## Text

_Characters 0–39,700 of 127,613. This is a partial read: ask again with offset=39700 for what follows._

SUPERINTENDE!'IT & LEGAL REMEMBRANCER,
A
STATE OF WEST BENGAL
v.
CORI'ORATION OF CALCUTTA
December 7, 1966
[K. SlJBBA RAO, c. J., K. N. WANCHOO, J.C. SHAH, s. M. S!KRI,
R. S. BACHAWAT, V. RAMASWAMI, J.M. SHELAT, V. BHARGAVA
A:>;D C. A. VAIDIALINGA!.I, JJ.j
Calcutta Municipal Act (W.B. 33 of 1951), ss. 218 and 541-Taklng
out licence to run market-State if bound by statute; if exempted by Implication.
State J1nmunity-Rulc that Crown is not bound by statute unless ex•
pressly named or clearly intended, if applies to India.
J11tcrprctation of Statutes-State immunity
from
stalltles-Common
law rule of construction If proper rule.
B
c
Constitution of lndiq, Art. 372r-Rule of
construction,
If "law In
D
force."
lbe appellant-State of West Bengal was carrying on trade a• owner
and occupier of a market at Calcutta wilhout obtaining a licence 3S
,,,_
quired under s. 218 of lhc Calcutta Municipal Act, 1951. The respondent-Corporation of Calcutta filed a complaint against the State for contravention thereof. The trial Magistrate, accepting lhe Slate's contention
that lhe State was not bound by the provisions of the Act acquitted the
E
Slate. On appeal, the High Coun convicted the Sato and sentenced it
to a fine, holding that the Slate was as much bound as a private citi:r.en
to take out a licence. In appeal to this Court the appellant. relying on
this Court's decision in Dlr.ctor of Rationing v. CorporaJwn of Calcutta,
[1961) I S.C.R. 158, contended that the State was not bound by the provisions of a statute unless it was expressly named or brought in by neces-
<ary implication and this common law rule of construction, accepted u
the law in India, was "law in force" within the meaning of Art. 372 ot
I:'
the Constitution and that in any event by necessary implication the State
was excluded from the operation of s. 218 of the Act.
Held: Per Subba Rao C.J., Wanchoo, Sikri, Bachawat, Ramaswami,
Shelat, Bhargava and Vaidialingam, JJ. (Shah, 1. dissenting) :
The State was not exempt from the operation of 1. 218 of the Calcutta Municipal Act, 1951 and was rightly convicted.
G
Ptr Subba Rao C.1. Wanchoo, Sikri, Ramaswaml, Shelat, Bbarpva
and Vaidialiogam, JJ. (i) The Common Law rule of construction that
the Crown is not, unless expressly named or clearly intended, boaod by
a statute. · was not accepted as a rule of construction throughout India
and even in the Presidency Town•, it was not re~ed as an inftexible
nlle of construction. It was not statutorily recogni7.ed either by inc:orpl>'
rating it in dilfereot Acts or in any General Clauses Act; at the most, it
B
wu relied upon as a rule of general guidance in some parta of the cotmtry. The legislative practice establishes
that the various legislatures of
the country provided specifically
exemptions in favour of the Qown
A
B
c
D
E
F
ff
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.J.) 171
whenever they intended to do so indicating
thereby that they did not
rely upon any presumption but only on express exemptions. Even thooe
courts that accepted it considered it only as a simple canon of construction and not as a rule of substantive law.
In the City of Calcutta there
was no universal recognition of the rule of construction in favour of the
Crown. The Privy Council, in Pruvince of Bombay v. Corporation of
the City of Bombay, (1946) L.R. 73 I.A. 27 gave its approval to the rule
mainly on conoession made by counsel. [180 D-G; 183 H; 184 E-F; 186
D-OJ
The archaic rule based on the prerogative and perfection of the Crown
has no relevance to a democratic republic; it is inconsistent with the rule
of law based on the doctrine of equality and introduces confticts
and
anomalies. The normal construction, namely, that an enactment applies to
citizens as well as to State unless it expressly or by necessary implication
m:empta the State from its operation, steers clear of all the anomalies and
is consistent with tbe philosophy of equality enshrined in the Constitution.
[187 F; 188 BJ
U a rule of construction accepted by this Court is Inconsistent with
the legal pbilooophy of the Constitution It ii the duty of this Court to
correct itself and lay down the right rule. This Court must more readily
do so in constitutional matters than in other branches of law. [176 B.CJ
Director of Rationing v. Corporation of Calcutta,
[1961J 1 S.C.R.
158, reveraed.
Province of Bombay v. Corporation of the City of Bombay, (1946)
L.R. 73 I.A. 271, held inapplicable.
Bengal Immunity Co. v. State of Bihar, [1955J 2 S.C.R. 603, referred
to.
·
Case Jaw discussed.
(ii) Even assuming that the common law rule of construction was
accepted as a canon of interpretation throughout India the rule is not
"law in force" within the meaning of Article
372 of the Constitution.
There is an essential distinction between a law and a rule of construction.
A rule of construction adopted to ascertain the intention of the legislature is not a rule of law. (187 DJ
(iii) The State is not excluded from the operation of s. 218 of th"
Act by necessary implication. The State' is not the payer as well as the
receiver of the fine, for the fine, when levied goes to the municipal fund.
Though tbe expression 'fine' is used, in effect and substance, section 541
is a mode of realization of the, fee payable in respect of the licence. The
provision for imprisonment in default of fine is only an enabling provision and the court is not bound to direct the imprisonment of the
defaulter. (189 D-H; 190 A-BJ
Per Bachawat, J : (i) This Court should have irr Director of Rationing and Distribution v. Corporation of Calcutta, [l964J 1 S.C.R. 158, refused to recognise the rule that the Crown is not bound by a statute save
by express words or by necessary implication.
In India the Crown never
enjoyed the general prerogative of overriding a statute and standing outside it. The doctrine of the IF.neral Immunity of the Crown from the
operation of statutes so far M 1t Is based upon the royal prerogative was
never lmponed Into India: Nor is there any compelhn11 reason why the
courts in India 1hould not alve
Eull effect to the £Cnernl
words ot a
1tatute on the basis of M>me artlllclat rule of construction prevaU1n11
hi
BnaJand. The bulk ot the Indian leglslatlon proceeds upon the 1ssump•
tion that the Government will be bound unless the contrary Is stated. 'Ibe
172
SUPJlEME COURT llEPOJlTS
[ 196 7] 2 S.C.IL
rule, as a rule of construction, never
gained a llrm foothold in India
until the Privy Council
decision in Province of Bombay v. Munil:ipal
Corporation /or tM Cil)I of Bombay, (1946) L.R. 73 I.A. 271, in l!M6,
till which time there was no scUled course of decisions of tho Indian
courts necessitating or justifying tho al'plication of this rule to the co11&-
truction of Indian stalules; and even 10
this decision the propriety of
applying the rule 10 Indian legislation was not considered. The imposition of this slnct rule of construction by the Privy Council was rcceiYed
very unfavourably in India till this Court's decision in the Director o/
Rationing case wherein Province of Bombay was held to have laid down
the correct law.
But subsequent decisions of this Coun disdosed a tendency 10 relax and soften the rigour of the rule.
Further, in a country
having a federal system of government it is difficult to apply the rule of
Crown exemption from statutes. This
rule was not in force in India
and therefore was not "law in force" within the meaning of Art. 372 of
the Consri1u1ion.
[201 D-E; 202 C; 210 A·B, C-D; 205 F; 208 C, H;
210 H; 211 Fl
This Coun has power to reconsider its previous decisions and this ill
a fit case whNe this power should be exercised. [211 E]
Director of Rationing v. Corporarion of Calcutta,
(1961] l S.C.R.
158, reversed.
Province of Bombay v. Municipal Corporation
for the
City of Bombay, (1946) LR. 73 I.A. 271, held inapplicable.
Shivenkata Seetaramanjaneya Rice & Oil Mills v.
Stale of Andlva
Pradesh, (1964] 7 S.C.R. 456 and Bengal Immunity Co.
v. Stale of
Bihar, (1955] 2 S.C.R. 603, referred to.
Case law discussed.
(ii) On a question of construction of a statute no ratiooal distinction
can be made bcrwecn the trading and non-trading activities of the State.
1210 G]
(iii) There is nothing in ihe Act to indicate that the State should be
excluded from the purview of s. 218(1)
requiring the taking out of a
licence on payment of the prescribed fee and a. 541(1) providing tile
remedy for the recovery of fee in faec of default.
If the State is to be
exempt from the application of a. 541 (I )(b)
it would lead
lo the
anomaly that the Slate is liable to pay the licence fee but the Mtllllcipality will have no remedy for the recovery of the fee.
Also, the fact
that under s. 547(A) the court is competent lo direct imprisonment in
default of line is no rc;a500 why s. 54l(l)(b) should not be applied to
lbe State.
The special
provisions of s. 541(2)
indicate that the lino
realizable under s. 541 is receivable by the Municipality.
It follows that
the Stale Government is the payer but is not the receiver of the line. The
fine, when levied. is taken by the Municipality in full satisfaction of the
demand on account of the licence fee. (212 H; 213 BJ
A
B
c
D
E
F
Stare of Bil1ar v. Rani Sonavati Kumari (1961] 1 S.C.R. 728,
relied
G
on.
Shah, l. (Dissenting); (i) The English Common Law rulo that
the
Crown is not, unless expressly named or clearly intended, bound by a
statute, is a rule of construction and was settled law In India before the
Constitution. [ 197 F; 198 DJ
Tho Common Low of England was adopted in this country subject to
local variations and the personal law of the parties and the coun1 which
functioned in 1he former British India territory were eo]olned to decide
cases not governed by any spcciJlc atatutory
rules according to juallce,
equity and good conscience, which meant rules of Bn1li1h Common L&w
H
r
A
B
c
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.l.) 173
in so far as they were applicable to Indian society. There was practically a consistent course of decisions of the High Courts in India, J>rior
to the Constitution, in support of the view, affirmed
by the Jndicial
Committee in Province of Bombay v. Municipal Corporation of the City
of Bombay, (1946) L.R. 73 .I.A. 271, that the rule that the Crown is not
unless expressly named or clearly intended bound by a statute applied to
India.
It· was accepted as a rule of interpretation of statutes applicable
to all statutes governing state action, authority or property. A difference
may ]lave prevailed in parts of the territories now comprising the Indian
Union. But this is not peculiar to this rule of interpretation adopted by
the Courts in British India.
Where uniform statutes do not apply differences do arise and must be determined according to the law and jurisdic.-
tion inherited by the courts administering justice.
The present case concerns the administration of law in the town of Calcutta which has
foe
more than two centuries been governed by the English Common Law
as adopted by the various Acts, Regulations and finally by the Letters
Patent. _[191 A-D; 192 D-E; 194 F, 195 D-F]
Director of Rationing and Distribution v. The Corporation of Calcutta, (1961] 1 S.C.R. 158, followed.
Province of Bombay v. Municipal Corporation of the City of Bom.
bay, L.R. 73 I.A. 271, applied.
lJ
State of West Bengal v. Union, (1964] 1 S.C.R. 371 Srivenkata Seeta•
ramanjaneya Rice & Oil Mills v. State of Andhra Pradesh, [1964] 7 S.C.R.
456, Builders Supply Corporation v. Union of India,
A.I.R. 1965 S.C.
1061, referred to.
E
F
G
H
Case law referred to.
There is no reason to hold that the rule which previously applied to
the interpretation of a statute ceased to apply on the date on which the
Constitution came into force.
The Constitution has not so fundamentally altered our concept of 'State' as to abandon the traditional view
about State privileges, immunities and rights because they had a foreign
origin and on the supposed theory of equality between the State and its
citizens.
The guarantee of equal protection clause of the Constitution
does not extend to any differential treatment
which may result in
the
application of a special rule of interpretation between the State and the
ciuzens nor has the Constitution predicated in all respects equality in
matters of interpretation between the State and its citizens.
A State can,
in the interest of public good, . select itself for special treatinent.
This
being so, there is no re,..on to suppose that a Statute which was framed
on the basis of a well settled rule of pre-Constitution days which accorded the State a special
treatment in the matter of interpretation of
statutes must be deemed to have a different meaning on the supposition
that the Constitution has sought to impose equality between
the State
and the citizens. [198 H-199 Fl
The fact that in the Indian federal set up sovereignty is divided b.,_
tween the Union and the States, and in the application of the rule that
the State is not bound by a Statute, unless
expressly named or clearly
implied, conflict between the State enacting a law and the Union,. or
another State, may arise. does not give rise to any insuperable difficulty
which renders the ru_le inapplicable to the changed circumstances, for, it
is the. State which enacts a legislation in terms general which alone may
claim benefit of the rule of interpretation and not any other State. [199 G]
(ii) The rule of interpretation being a settled rule is "law in force"
within the meaning of Art, 372 of the Constitution.
A rule is not any
174
SUPREME COURT REPORTS
(1967) 2 S.C.R.
the less a rule of law because it is a rule for determination of the intention of the legislature and for its application requires determination of
facts and circumstances oulside the statute. Acceptance of the proposition that a decision of the highest judicial tribunal before the Constitution, is law, docs not involve the view that it is
immutable.
A atatue
may be repealed and even relrospectively, it would then cease to be in
operation; a decision which in the view
of thio Court is erroneous may
be overruled and may cease to be regarded as law, but till then it was
law in force. [198 D-OJ
(iii) The application of the rule cannot be restricled to cases where
an action of the State in its sovereij!D capacity is in issue.
Jn the context of modem notions of the functions of a welfare State, it is difllcult
to regard any particular activity of the State as exclusively trading. (200
A-BJ
(iv) The State of West Bengal waa not bound by the provisions rolaling to the issue of licences for occupation or conduct of a market. [200
FJ
There is no expres.oi reference to the State, nor is there anything peculiar In the nature purpose and object or In tho language used In tho
enactment relating to the issue of licences, which may suggest that the
State must by necessary implication be bound by its provision. (200 BJ
CRIMINAL APPELLA'.\"E JURISDJcnON: Criminal Appeal No.
193 of 1964.
Appeal from the judgment and order dated April 29, 1964
of the Calcutta High Court in Criminal Appeal No. 369 of 1962.
S. D. Banerjee, Advocate-General for the State of West Bengal,
A
B
c
D
B. Sen, P. K. Chatterjee, M. K. Banerjee and P. K. Bose, for the
E
appellant.
M. C. Seta/rad, A. N. Sinha and Sukumar Ghose, for the
respondent
N. S. Bindra, R. H. Dhebar and R. N. Sachthey, for intervener No. I.
F
A. V. Rangam, for intervener No. 2.
V. A. Seyid Muhammad, Advocate-General for the State of
Kera/a and A. G. Puddisery, for intervener No. 3.
0. P. Rana, for intervener No. 4.
I. N. Shroff, for intervener No. 5.
K. B. Mehta, for intervener No. 6.
The Judgment Jf SUBBA RAO, C.J., WANCHOO, Snau, R.AMASWAMI, SHELAT, BHAROAVA and VAIDIALINOAM, JJ. was delivered
by SuBllA RAo, C. 1. BACH~WAT J., delivered a separate concurring
Judgment. SHAH, J. delivered a dissenting Opinion.
Subbarao, C.J. Thia Full Bench of 9 Judges has been constituted to consider the correctness of the decision of this Coun
G
H
\
•
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.J.) 175
A
in Director of Rationing and Distribution v. The Corporation of
Calcutta(').
B
c
D
E
F
G
H
The relevant facts are simple and are not in dispute. The
State of West Bengal was carrying on the trade of a daily market
at 1, Orphanganj Road, Calcutta, without obtaining a licence as
required under s. 218 of the Calcutta Municipal Act, 1951 (West
Bengal Act 33 of 1951) hereinafter called the Act. The Corporation of Calcutta filed a complaint against the State of West Bengal
in the Court of the Presidency and Municipal Magistrate, Calcutta,
under "· 541 of the Act for contravening the provisions of s. 218
thereof. Under s. 218 of the Act, every person who exercises or
carries on in Calcutta any trade, shall take out a licence and
shall pay for the same such fee as is. mentioned in that behalf
in Schedule IV to the Act. Admittedly for the year 1960-61, the
Government of West Bengal did not take out a licence under the
said section but carried on the said trade. The. main contention
of the Govern'<lent was that the State was not bound by the provisions of the Act. The learned Magistrate, accepting the said
contention, acquitted the State. On appeal, the High Court of
Calcutta held that the State was carrying on the business of running
a market and, therefore, it was as much bound as a private citizen
to take out a licence. It distinguished the decision of this Court
in Director of Rationing and Distribution v. The Corporation of
Calcutta(') on the ground that the said decision was concerned
with the sovereign activity of the State. In the result the State of
West Bengal was convicted under s. 537 of the Act-s. 537 appears
to be a mistake for s. 541-and sentenced to pay a fine of Rs. 250,
with the direction that when realized, it should be paid to the Corporation. Hence the present appeal.
Learned Advocate General of West Bengal raised before. us
the following points: (1) The State is not bound by the provisions
of a statute unless it is expressly named or brought in by necessary
implication; (2) the iaid principle equally applies to sovereign
and non-sovereign activities of a State; and Mr. N. S. Bindra,
learned counsel appearing for the Attorney General raised before
us the third point, namely, this Court has no power under· the
Constitution to review its earlier judgment.
While the learned Advocate General contended that the rule
of construction in favour of the State was part of the common
law of England accepted as the law of this country and, therefore,
was law in force within the meaning of Art. 372 of the Constitution, Mr. N. S. Bindra argued that the said rule of construction
was law of the land in that it was declared to be so by the Judicial
Committee in Province of Bombay v, Municipal Corporation of
(I) J1961) I S.C.ff., l$8.
176
SUPREME COUllT REPORTS
l,1967] 2 S.C.R.
the City of Bombay(•) and, therefore, it was law in force within
the meaning of Art. 372 of the Constitution.
The third contention need not detain us, for it has been rejected
by this Court in The Bengal Immunity Company Limited v. The
State of Bihar(2) • There a Bench of 7 Judges unanimously held
that there was nothing in the Constitution which prevented the
Supreme Court from departing from a previous decision of its
own if it was satisfied of its error and of its baneful effect on the
general interests of the public. If the aforesaid rule of construction accepted by this Court is inconsistent with the legal philosophy
of our Constitution, it is our duty to correct ourselves and lay down
the right rule. In constitutional matters which affect the evolution
of our polity, we must more readily do so than in other branches
of law, as perpetuation of a mistake will be harmful to public
interests. While continuity and consistency are conducive to the
smooth evolution of the rule of law, hesitancy to set right deviations
will retard its growth. In this case, as. we are satisfied that the
said rule of construction is inconsistent with our republican polity
and, if accepted, bristles with anomalies, we have no hesitation to
reconsider our earlier decision.
At the outset it will be convenient to notice the facts of the
decision of this Court in Director of Rationing and Distribution
v. The
Corporation of Calcutta(')
and the reasons given
by this Court for applying the said rule of construction to an Indian
statute. There, the Director of Rationing and Distribution was
using certain premises in Calcutta for storing rice flour, etc. without taking out any licence under s. 385 (l)(a) of the Calcutta Municipal Act, 1923. The Corporation of Calcutta filed a complaint
against the said Director in the Magistrate's Court for the contravention of the said provision. This Court held that the State
was not bound by the provisions of s. 386 (l)(a) of the said Act
and that the appellant was not liable to prosecution for the contravention of the said section. Sinha, C. J., speaking for Imam
and Shah, JJ., gave one judgment, Sarkar, J., gave a separate but
concurrent judgment, and Wanchoo, J., recorded his dissent. The
reasoning of Sinha, C.J., is found in the following passage :
"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 necessarily bound by a statutory
law which binds the subject. This is further enforced
by the rule that the King is not bound by a statute unless
he is expressly named 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." (at
page 170).
(I) [1946) L.H. 73 t.R. 271.
(2) (1955] 2 S.C.R. 603.
(3 :(1961) 1 S.C.R. 158
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.J.) 177
"That was law applicable to India also, as authoritatively laid down by the Privy Council in the case referred
to above [(1946) L. R. 73 I.A. 271)] ..... .it (law in force
under Art. 372 of the Constitution) must be interpreted
as including the common law of England which was
adopted as the law of this country before the Constitution
came into force." (At p. 173).
Sinha, C.J., therefore, held that the said rule of construction was
part of the common law of England, that it was adopted by this
country and that Art. 372 of the Constitution continued it. Sarkar,
J., on the otl;ier hand, agreed with the conclusion arrived at by
Sinha, C.J., but on a different ground. He based his conclusion
not on any common law doctrine, but simply on the ground that
the said rule of construction of statutory provisions was accepted
and followed in England, America and India. Wanchoo, J., in
his dissent, put the case in a different perspective. The following
passage brings out his line of thought :
"Two things are clear from this modem conception
of royal prerogative, namely (1) that there must be a
Crown or King to whom the royal prerogative attaches,
and (2) that the prerogative must be part of the common
law of England. Both these conditions existed when
the Privy Council decision in Province of Bombay v. Municipal Corporation of the City of Bombay(•) was given
in October 1946; the King was still there and the Privy
Council held that the English common law rule of construction applied to Indian legislation as much as to English
statutes." (At p. 184).
"In our country the Rule of Law prevails and our
Constitution has guaranteed it by the provisions contained in Part III thereof as well as by other provisions
in other Parts ...... It is to my mind inherent in the
conception of the Rule of Law that the State, no less than
its citizens and others, is bound by the laws of the land.
When the King as the embodiment of all power-executive,
legislative and judicial-has disappeared and in our
republican Constitution, sovereign power has been distributed among various organ~ created. thereby, it seems
to me that there is neither justification nor necessity for
continuing the rule of construction based on the royal
prerogative." (At p. 185).
"But where the royal prerogative is merely a rule
of construction of statutes based on the existence of
the Crown in England and for historical reasons, I fail to
see why in a democratic republic, the courts should not
follow the ordinary principle of construction that no one
(I) [19461 L.R. 73 l.A. 271.
178
SUPRBMB COURT REPORTS
[1967] 2 S.C.R.
is exempt from the operation of a statute unless the statute
expressly grants the exemption or the exemption arises
by necessary implication." (At pp. 188-189).
The conflict between the two views expressed by the learned Judges
in the earlier decision mainly rests on the meaning of the expression
"law in force" in Art. 372 of the Constitution. While Sinha, C.J.,
took the view that the common law of England, including the
rule of construction, was accepted as the law of this country and
was, therefore, the law in force within the meaning of the said
Article, Wanchoo, J., took the view that whatever might be said
of the substantive laws, a rule of construction adopted by the
common law of England and accepted by the Privy Council at
a time when the Crown was functioning in India, was not the law
in force within the meaning of the said Article.
We shall now consider the validity of the conflicting viewsc
The common law of England is clear on the subject. In Halsbury's
Laws of England, 3rd Edn., Vol. 7, in Part 5 of the Chapter on
"Constitutional Law" under the heading "The Royal Prerogative",
the Royal prerogatives are enumerated and their limitations arc
given. In para 464 it is stated :
·.
"The general rule is that prerogatives cannot be
affected or parted with by the Crown, except by express
statutory authority."
The prerogative right can be taken away by law because the law
is made by the Crown with the assent of the Lords and the Commons.
It can be taken away only by law to which the Crown is a party.
Whether a particular statute has taken away such right pertains
to the domain of the rule of construction. The relevant rule of
construction evolved by judicial decisions in England may be stated
thus:
"At all events, the Crown is not reached except by
express words or by necessary implication in any case
where it would be ousted of an existing prerogative or
interest." (See Perry v. Eames) (1).
It is said much to the same effect in Max.well's Interpretation of
Statutes, 11th Edn., at page 129, thus :
-·
"It is presumed that the legislature does not intend to
deprive the Crown of any prerogative, right or property,
unless it expresses its intention to do so in explicit terms,
or makes the inference irresistible."
The same rule is ~vcn in Bacon's Abridgment 7th Edn.,
9.462. The legal position in England may be summarised
thus :
(I) [1891) I Ch. 658,
A
B
c
D
E
F
G
H
B
c
D
E
F
G
H
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.I.) 179
"The substantive rule of law is that the prerogative
of the Crown can only be taken away by law. The rule
of construction evolved by the courts to ascertain the
legislative intention is, that it is presumed that a statute
has not taken away the prescriptive right unless it has
expressly or by necessary implication done so."
There is an essential distinction between a substantive law and
a rule of construction and that is well expressed by Craies in his
book "On Statute Law", 6th Edn., at p. 10, thus :
"A rule of law, e.g., the Rule against Perpetuities
or the Rule in Shelley's case (abolished in 1925), exists
independently of the circumstances of the parties to a
deed, and is infiexible and paramount to the intention
expressed in the deed. A rule of law cannot be said
to control the construction of a statute, inasmuch as
a British statute is itself part of the supreme law of the
land and overrides any pre-existing rules with which it
is inconsistent. A rule or canon of construction, whether
of will, deed or statute, is not infiexible, but is merely
a presumption in favour of a particular meaning in case
of ambiguity. This was well expressed by Bowen, L.J. in
L. N. W. Ry. v. Evans:(t) 'These canons do not override
the language of a statute where the language is clear :
they are only guides to enable us to understand what is
inferential. In each case the Act of Parliament is allpowerful, and when its meaning is unequivocally expressed the necessity for rules of construction disappears
and reaches its vanishing point."
'l'be same principle was stated by Bhashyam Ayyangar, J., in
Bell v. The Municipal Commissioners for the City of Madras(Z)
thus :
"These compendious canons of interpretation which
are in the nature of maxims can only be regarded as
mere guides to the interpretation of Statutes and ought
not to be applied as if they were statutory clauses, enacted
with all the precision and provisos of an Interpretation
Act."
Franfurter, J., said to the same effect in United States v. United
Mine Workers of America thus : (3)
"At best, this canon, like other generalities about
statutory construction, is not a rule of law .. Whatever
persuasiveness it may have in construing a particular
(1) (1893) I Cb. 16, '¥1.
(2} I.L.R. (1902] 25 Mad. 4S7, 484.
(3) (1947) 91 L. ed. 923.
180
SUPREME COURT REPORTS
[1967] 2 S.C.R.
statute derives from the subject-matter and the terms
of the enactment in its total environment."
Even in England this rule of interpretation has not been treated
as inflexible. It is gradually losing ground in many branches
of law. The incongruity of the rule of discrimination in favour
of the Crown was pointed out by Glanville L. Williams in his
treatise on "Crown Proceedings", at p. 53 :
"The rule originated in the Middle Ages, when it
perhaps had some justification. Its survival, however,
is due to little but the 1•i.< inertiae."
The author continues, at p. 54 :
"With the great extension in the .1ct1v1t1es of the
State and the number of servants employed by it, and
with the modern idea, expressed in the Crown Proceedings
Act, [compare in this connection Art. 300 of our Constitution], "that the State should be accountable in wide
measure to the law, the presumption should be that a
statute binds the Crown rather than it docs not."
The next question is, how far and to what extent the common
law of England relating to the prerogatives of the Crown has been
accepted as the law of our country?
Nothing has been placed
before us to show that the entire body of the common law pertaining to rrcrogativcs was accepted as the law throughout India.
India at the relevant time comprised Provinces and Native States.
As Bhashyam Ayyangar, J., rointed out in Bell v. The Municipal
Commissioners for the City of Madras(') "the prerogatives of the
Crown in India-a country in which the title of the British Crown
is of a very mixed character-may vary in different provinces,
as ·also in the Presidency towns as distinguished from the mofussil.
The detennination, with anything like legal precision, of all the
prerogatives of the British Crown in India is by no means an easy
task." It is well-known that the Common law of England was
applied as such in the original sides of the High Courts of Calcutta,
Bombay and Madras, and that in the mofussil courts the principles
embodied in the common law were invoked in appropriate cases
on the ground of justice, equity and good conscience. It cannot,
therefore, be posited that either the entire body of common law
of England relating to prerogatives of the King or even the rule
of constructton as forming part of that law was accepted as law
in every part of the country. It has to be established whenever
a question arises as to what part of the common law was accepted
as the law in a particular part of the country.
Learned Advocate General of West Bengal referred us to the
decision of the Privy Council in Pro1·ince ofBombay v. Municipal
(1) l.L.R. (1902) 25 Mad. 457, 484.
A
B
c
D
E
F
G
H
B
c
D
E
F
lG
H
LEGAL llEMBMBRANCER v. CALCUTTA CORP. (Subba Rao, C.J.) 181
Co,.,oration of the City of Bombay(•) in support of his contention
that the common law of England was accepted as the law of our
country in that regard. In that case the question was whether the
Crown was not bound bys. 222(1) ands. 265 of the City of Bombay
Municipal Act, 1888 which gave the Municipality power to carry
water-mains for the purposes' of water supply through across or
under any street and into, through or under any land "whatsoever
within the city." When the Municipal Corporation wanted to
lay water-mains through the land belonging to the Governrtlent
of Bombay, the Government di\! not agree except on some conditions. Thereafter, the dispute between the parties was referred
to the High Court. Ultimately, setting aside the order of the
High Court, the Privy Council held that the rule that no statute
bound the Crown unless the Crown was expressly or by necessary
implication made bound thereunder applied to the Crown in India
and that there was no such express intention or necessary implication in the said section. Indeed, the High Court also accepted
that principle, but on the construction of the relevant provisions it
came to the conclusion that there was such a necessary implication
thereunder. On the application of the principle there was no contest before the Privy Council. The Privy Council expressly stated
so at p. 274, when it observed :
"The High Court held, following previous decisions
of its own, that the principle to be applied for the decision
of the question whether or not the Crown is bound by
a statute is no different in the case of Indian Legislation
from that which has long be.en applied in England.
The parties concurred in accepting this view, and their
Lordships regard it as correct."
The decision made on a concession made by the parties even though
the principle conceded was accepted by the Privy Council without
discussion, cannot be given the same value as one given upon a
careful consideration of the pros and cons of the question raised.
Further, no argument was raised before the Privy Council that
the Common law of England had legal force only in the said three
Presidency towns and not in the rest of the country, for that case
happened to be one that arose in the City of Bombay. The observations of the Privy Council that the principles obtaining in England
also governed the Crown in India are, rather wide.
Nor any
argument was raised before· the Privy Council making a distinction
between substantive branches of common law and mere rules of
construction. It is not possible to predicate what the Privy Council
would have said if that distinction had been placed before it.
Be
that as it may, this decision cannot be taken as finally deciding
the question that is raised before us.
(I) (1~ L.R. 73 I.A. 271.
182
SUPIU!MB couar JlBPORTS
(1967) 2 S.C.R.
Learned counsel relied upon a series of Indian dcciaions in
support of his contention that this rule of construction had becolJIC
the law of the land.
It was held in The Secretary of State in Council of India v.
A
The Bombay Landing and Shipping Company (Limited)(!) that in a
winding up proceedings the Crown was entitled to the same preB
cedence in regard to the debts due to it, in England, .in Ganpat
Putava v. Collector of Kanara(2) that the Crown was entitled to
the same precedence in regard to fees payable to it by a pauper
plaintiff, in The Secretary of State for India v. Mathura Bhai()
that section 26 of the Limitation Act, 1877 being a branch of substantive law did not affect the Crown's right, in Motilal Virchand c
v. The Collector of Ahmedabad(4) that the Mamlatdars' Courts
could not entertain and decide a suit to which the collector was.
a party in The Government of Bombay v. Esufali Salebhai(S) that
the Crown had a prerogative right to intervene and claim compensation in Land Acquisition proceedings, in Hiranand Khushiram
v. Secretary of State(6), that the Crown was not bound by the provision of the Bombay Municipality Act, in The Secretary of State
for India v. The Municipal Corporation of Bombay (No. !)(') that
the Crown was subject to a charge under s. 212 of the Bombay
City Municipal Act. A careful study of these. decisions discloses
that all of them related to particular prerogatives of the Crown
and that the Court held either that the prerogative of the Crown
was taken away by the statute or not, having regard to the construction pl8ced by it on the relevant statute. It is true that in
.some of the decisions the said rule of construction was noticed,
but a:s the decisions turned upon the construction of the relevant
provislons, it could not be said that the said rule had been accepted
as an inflexible rule of construction by the Bombay High Court.
In one of the judgments even the applicability of the rule of construction was doubted.
D
E
JI
A learned thesis on the subject is found in the judgment of
Bhashyam Ayyangar, J.,in Bell v. The Municipal Commissioners for
the City of Madras(&).
The Superintendent of the Government
Gun-carriage Factory, Madras, having brought timber belonging
G
to the Government into the City of Madras without taking out a
licence and paying the licence fees prescribed by s. 341 of the City
of Madras Municipal Act, was prosecuted. There was no mention
of Govcmincnt in the said section. A Division Bench of the Madras
High Court held that according to the well-known codes of the
(I) (1868) S Hom. H. C. Rep. 23, 27.
(3) (1189) LL.R. 14 Bom. 213.
(5) (1909) LL.ll. 34 Born. 618.
(7) (193S) 37 Born. LR. 499, S09.
(2) [187S) I.L.R. I. Bom. 7.
H
(4) [1906! I.L.R. 31 Bom. 86.
(6) A.I.R. 1934 Dom. 379.
(8) I.L.R. (1902) 2S Mad. 457, 484.
B
c
D
E
F
G
H
LEGAL REMEMBRANCER v. CALCUTTA CORP. (Subba Rao, C.J.) 183
Indian legislation, statutes imposing duties or taxes bound the
Government unless the very nature of the duty or tax was such
as to be inapplicable to it. Bhashyam Ayyangar, J., in his judgment, after considering all the relevant material on the subjectstatutes and English and Indian decisions-<:ame to the conclusion
that exemption from the payment of tolls, rates and taxes was
not in reality a prerogative of the Crown, but depended solely
upon the right construction to be put on the Crown grant or the
statute in question. Though the learned Judge noticed the rule
of construction and affirmed its application both ·" English and
Indian statutes vis-a-vis the Crown, he pointed out that the said
rule, like every cognate rule of construction was not really a prerogative of the Crown but only a canon of interpretation imd a
mere guide to the interpretation of statutes. That case arose in
the Madras City. In Madras the position was that non-liability
of the Crown to taxes was not treated as its prerogative and the
aforesaid rule of construction was only treated as a guide in interpreting the provisions of a statute.
Now coming to Calcutta, a Division Bench of the Calcutta
High Court in Corporation of Calcutta v. Bhupal Chandra Sinha(')
hCid that the Crown was bound bys. 421 of the Calcutta Municipal
Act, 1923 and that the unwholesome barley found in the Government stores was liable to be destroyed. No doubt, the Court
re-stated the said rule of construction and came to the conclusion
that by necessary implication the State was bound by the said
provision.
A Division Bench of the same High Court in Corporation
of Calcutta v. Director of Rationing and Distribution(2) held that
the State Government which was carryino on a trade at premises
No. 259, Upper Chitpur Road, Calcutt:i, and ·was using or permitting the use of the said premises for the purpose of storing rice etc.
without licence was liable to be convicted under s. 386(l)(a) of
the Calcutta Municipal Act, 1923, read with s. 488 thereof.