SUPERINTENDENT & LEGAL REMEMBRANCER, STATE OF WEST BENGAL versus CORPORATION OF CALCUTTA

Citation: [1967] 2 S.C.R. 170 · Decided: 07-12-1966 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed
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Judgment (excerpt)

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 Impli-
cation. 
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 respon-
dent-Corporation of Calcutta filed a complaint against the State for con-
travention 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 pro-
visions 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 Cal-
cutta 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 cotm-
try. 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 construc-
tion 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 Bo
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