TMI Blog1960 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ta, in respect of the prosecution launched by the Corporation of Calcutta, respondent 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 Bengal Act XXXIII of 1951, against the Director of Rationing and Distribution representing the Food Department of the Government of West Bengal . The offence complained of was for using or permitting to be used premises No. 259, Chitpur 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(1)(a) of the Calcutta Municipal Act is in these terms:- No person shall use or permit to be used any premises for any of the following purposes without or otherwise than in conformity with the terms of a licence granted by the Corporation in this behalf, namely, any of the purposes specified in Schedule XIX Item 8 of the said Schedule is storing, packing, pressing, cleansing, preparing or manufacturing, by any process whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution, 7 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. In 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 that s. 386 of the Act bound the appellant, set aside the order of acquittal 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 aforesaid 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d been launched. The common law could not have been overridden impliedly by a course of legislation. The common law applies to India even after the Constitution, not because there is the King or the Queen, but because it is the law in force. In other words, what was the prerogrative of the sovereign has now become the law of the land in respect of the sovereignty of the State. Thus the law of England, which 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 reservations contained therein. The Attorney-General for India as also the Advocates-General of Madras and Bombay supported the contention raised 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 exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, now under examination, has taken the view that the earlier decision of the Division Bench of the Madras High Court [1901] I.L.R. 25 Mad. 457 has laid down the correct law, and not the Privy Council decision. We have, therefore, to decide which of the two decisions has taken the correct view of the 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 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. Blackstone (Commentaries, Vol. I, 261-262) accurately summed up the legal position as follows:- The king is not bound by any act of Parliament, unless he be named therein by special and particular words. The most general words that can be devised affect not him in the least, if they may tend to restrain or diminish any of his rights or interests. For it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government is wholly inconsistent with the existence of such a prerogative. In our opinion, there is no warrant for such a contention. The immunity of Government from the operation of certain statutes, and particularly statutes creating offences, is based upon the fundamental concept that the Government or its officers cannot be a party to committing a crime- analogous to the I prerogative of perfection' that the King can do no wrong. Whatever may have been the historical reason of the rule, it has been adopted in our country on grounds of public policy as a rule of interpretation 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 States of America v. United Mine Workers of America (1947) 330 U.S. 258: 91 L. Ed. 884, where it is laid down that restrictions on the issue of injunctions in labour disputes contained in certain statutes do not apply to the United States Government as an employer or to relations between the Government and its employees and that statutes in general terms imposing certain restrictions or divesting certain privileges will not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which includes not only statutory law, but also custom or usage having the force of law, it 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. It is thus clear that far from the Constitution making any change in the legal position, it has clearly indicated that the laws in force continue to have validity, even in the new set up, except in so far as they come in conflict with the express provisions of the Constitution. No such provision has been brought to our notice. That being so, we are definitely of the opinion that 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. But Mr. Chatterjee further contended, alternatively, that even if it were held that the Government as a sovereign power may have the benefit of the immunity claimed, it is not entitled to that immunity when it embarks upon a business and, in that capacity, becomes subject to the penal provisions of the statute equally with other citizens. This question was not raised below and has not been gone into by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the English rule that a statute did not bind the Crown unless expressly or by necessary implication made bound, did not apply to Indian statutes and so the Government would be liable for breach of the provisions of the Calcutta Municipal Act. In this view of the matter, the High Court set aside the order of acquittal and sent the case back to the Magistrate for disposal on the merits. This appeal has been taken from the order of the High Court with special leave granted by this Court. The main question is whether the English rule that The Crown is not bound by the provisions of any statute unless it is directly or by necessary implication referred to applies to India. It is said that the rule is based on the English law of Crown prerogatives and has no application to India since the promulgation of our Constitution as we have now a republican form of government where no question of royal prerogatives can arise. It is pointed out that the prosecution was in this case started since the Constitution came into force and whatever may have been the position earlier, the Government can no longer take shelter under the English rule. I think the rule applies to India even after the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of California (1936) 297 U. S. 175, 186; 80 L. Ed. 567, 574. The presumption is an aid to consistent construction of statutes of the enacting sovereign when their purpose is in doubt . In our country also in Bell v. The Municipal Commissioners for the City of Madras (1901) I.L.R. 25 Mad. 457, 485, a case on which much reliance has been placed by the respondent, it was said after referring to various English cases dealing with the rule, This emphatic statement of the rule being founded upon general principles of construction is undoubtedly applicable as much to Indian enactments as to Colonial or Imperial Statutes . It was also said at the same page, The rule of construction above adverted to cannot itself be regarded as a prerogative of the Crown . Then I find that in England the rule protects from the operation of a statute not only what may strictly be called Crown prerogatives, or whatever is nowadays left of them, but all the Crown's rights, title and interest: see Halsbury's Laws of England (3rd Ed.) Vol. VII, p. 465. In volume XXXI of the Second Edition of the same treatise it is stated with reference to the rule that, The Crown for this purpose me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that he was not liable to prosecution because, The modern sense of the rule, at any rate, is that the Executive Government of the State is not bound by Statutes unless that intention is apparent: p. 418. It was also said that The doctrine is well settled in this sense in the United States of America: (p. 418). It is unnecessary to multiply instances where acts of the executive government have received the protection of the rule. All this would seem to put it beyond doubt, that whatever its origin, the rule has long been regarded only as a rule of construction. It has been widely used to exempt executive governments from the operation of statutes quite apart from protecting prerogative rights of the British Crown strictly so called. It has been held reasonable to presume that the legislature intended that executive governments are not to be bound by statutes unless made bound expressly or by necessary implication. It would be equally reason. able to do so in our country even under the present set up for the presumption has all along been raised in the past and especially as the applicability of the rule can no longer be made to depend on the prevailing form of govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded on the basis that the decisions were correct and the rule was to be applied to the statutes passed by them. That being so, an examination of the course of Indian legislation would be irrelevant. The cases where the Government was expressly excluded must be taken to be instances of exemptions ex majori cautila: see Hornsey Urban Council v. Hennel [1902] 2 K.B. 73. Furthermore, it seems to me that a comparison of the number of statutes where the Government had been specially excluded from their operation with the number where the statutes are silent on the subject, is, at best, a very unsafe guide for deciding whether the rule should be applied to Indian enactments. I therefore dissent from the view expressed in Bell's case (1901) I.L.R. 25 Mad. 457, that the rule does not apply in India. Now it seems to me that in storing the rice in the present case, the Government of West Bengal was performing one of its governmental functions. It was storing rice for purposes of rationing, that is, making food-stuff available to citizens in time of scarcity. That such activity is a part of the government's duty is unquestionable. The act for which the appellant was prosecuted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court set aside and that of the Magistrate restored. WANCHOO J.-I have had the advantage of reading the judgments prepared by my Lord the Chief Justice and my brother Sarkar J. I agree with their conclusion but my reasons are different. I therefore proceed to state my reasons for coming to the same conclusion. The facts have already been stated in the judgment of my Lord the Chief Justice and I will not therefore repeat them. Suffice it to say that the Corporation of Calcutta initiated this prosecution, in substance, of the State of West Bengal through its Director of Rationing and Distribution under s. 488 of the Calcutta Municipal Act, No. 111 of 1923, (now equivalent to s. 537 of the Calcutta Municipal Act, No. XXXIII of 1951), for using or permitting to be used certain premises for the purpose of storing rice, etc. under the provisions of the Bengal Rationing Order, 1943, without a licence under s. 386 of Act III of 1923, (now equivalent to s. 437 of Act XXXIII of 1951). The State did not deny the facts; but it was contended on its behalf that the prosecution was not maintainable in law. The Magistrate held that the provisions of s. 386 of the 1923 Act did not apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the same way as they decided any other question of law. If a, prerogative was clearly established, they could take the same judicial notice of it as they took of any other rule of law: (see Halsbury's Laws of England, 3rd Edition, Vol. 7, p. 221, para. 464). The question of royal prerogative was also considered in Attorney-General v. De Keyser's Royal Hotel Limited [1920] A.C. 508. It was held there in that even where there was prerogative it could be curtailed by a statute, if the statute dealt with something which before it could be affected by the prerogative, inasmuch as the Crown was a party to every Act of Parliament. Thus in modern times, the royal prerogative is the residue of discretionary or arbitrary authority which at any time is legally left in the hands of the Crown and is recognised under the common law of England. Two things are clear from this modern 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 organs created thereby, it seems to me that there is neither justification nor necessity for continuing the rule of construction based on the royal prerogative. It is said that though the King has gone, sovereignty still exists and therefore what was the prerogative of the King has become the prerogative of the sovereign. There is to my mind a misconception here. It is true that sovereignty must exist under our Constitution but there is no sovereign as such now. In England, however, the King is synonymous with the sovereign and so arose the royal prerogative. But in our country it would be impossible now to point to one person or institution and to say that he or it is the sovereign under the Constitution. A further question may arise, if one is in search of a sovereign now, whether the State Government with which one is concerned here is sovereign in the same sense as the English King (though it may have plenary powers under the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over which the court in the absence of consent had no jurisdiction. There is no discussion in this case of the royal prerogative having continued in the United States and the decision seems to have turned on some law of that country which provides that a suit against the Government could not be tried in a court in the absence of consent. As against these decisions I may refer to H. Snowden Marshall v. People of the State of New York (1920) 254 U.S. 38o65 L. Ed. 315 to show that royal prerogative as such is losing ground in the United States, if nothing more. When dealing with the priority of a State over the unsecured creditors in payment of debts out of the assets of the debtor, the Supreme Court held that whether the priority was a prerogative right or merely a right of administration was a matter of local law and the decision of the highest court of the State as to the existence of the right and its incidents would be accepted by the Federal Supreme Court as conclusive. Again in Guaranty Trust Company of New York v. United States of America (1938) 304 U.S. 126: 82 L. Ed. 1224, the Supreme Court held that the immunity of the sovereign from the operation of statutes of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 is exempt from the operation of a statute unless the statute expressly grants the exemption or the exemption arises by necessary implication. On the whole therefore I am of opinion that the proper rule of construction which should now be applied, at any rate after January 26, 1950, is that the State in India whether in the Centre or in the States is bound by the law unless there is an express exemption in favour of the State or an exemption can be inferred by necessary implication. The view taken by the Calcutta High Court in this connection should be accepted and the view expressed by the Privy Council in Province of Bombay v. Municipal Corporation of the City of Bombay (1946) L.R. 73 I.A. 271 should no longer be accepted as the rule for construction of statutes passed by Indian legislatures. Let me then come to the question whether on the view I have taken of the rule of construction, the prosecution in this case can be allowed to continue. There is nothing in the Act of 1923 or in the Act of 1951 exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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