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ADMINISTRATIVE IMMUNITY FROM STATUTE OPERATION HAS DESTROYED

THE BASIC PRINCIPLES OF ADMINISTRATIVE LAW: AN EVALUATION


Content

Table of Cases i

Table of Statute... ii

Table of Abbreviations ........................................ii

Introduction.. 1

Aim(s)....................... 2

Objectives(s)...2

Scope and Limitations... 2

Review of Literature...............................2

Research Questions.....3

Research Methods ......


The general principle of the common law is that the king is not bound by a statute unless a
clear intention appears to that effect from the statute or from the express terms of the Crown
Proceedings Act, 1947 or by necessary implication. This principle is based on two well-
known maxims: 1) the king can do no wrong; and 2) the king cannot be tried in the courts of
his own creation. Applying the same principle in India, the Privy Council held in Province of
Bombay v. Municipal Corpn. of Bombay1 that the government is not bound by the statute. In
this case, the government had agreed to the proposal of the Municipality to lay down water
pipes through government land. Under the provisions of the City of Bombay Municipal Act,
1888, the Municipality had the power "to carry water mains within and without the city". The
question was whether the government was bound by the Municipal Act? The Privy Council
answered it in the negative.

Applying the doctrine of English Law, which envisages that the Crown is not bound by its
own law unless so bound either expressly or by necessary implication, the Supreme Court
held in a much-debated judgment delivered in Director of Rationing and Distribution v.
Corpn. of Calcutta2 that the State in India is not bound by its own statutes unless they are
made applicable to it expressly or by necessary implication. In case, Section of the Calcutta
Municipalities Act, 1923, as substituted by the later Act 33 of 1951, provided that every
person storing rice within the municipal limits can do so only under a licence issued by the
Corporation. This measure was adopted to avoid the spread of epidemics through rats. The
Director of Rationing and Distribution as representative of the Food Department of the
Government of West Bengal, when prosecuted for a violation of this provision, pleaded that
the State is not bound by a law Of its own creation unless expressly mentioned therein, or by
necessary implication extended to it. The Supreme Court, by a majority, held that the
common-law principle will be adopted as a rule of interpretation and, therefore, the State
shall not be bound by its own statute unless made applicable to it either expressly or by
necessary implication. The main criticism of the case was that it engrafted a common-law
immunity rule which had its roots in feudalistic society in a democratic and welfare society.
The decision also missed the point which even the common-law immunity rule recognises as
an exception where the statute is for the public benefit. This was a seven-judge decision
wherein Subba Rao J recorded his dissent.

1 AIR 1947 PC 34.

2 AIR 1960 SC 1355


Shortly after this decision, Subba Rao J became the Chief Justice of the Supreme Court and
constituted a Bench of 11 judges to reconsider this decision in Supt. and Remembrancer of
Legal Affairs v. Corpn. of Calcutta 3. He persuaded eight of his colleagues on the Bench that
the

English common-law theory "king can do no wrong" was subversive of the rule of law, and
that it had been given up in England after the Crown Proceedings Act, 1947, hence, it cannot
be permitted under the Indian Constitution. Thus, the earlier case was overruled. In this case,

Section 218 of the Calcutta Municipalities Act, 1951 provided that any person carrying on the
business of running a market can do so only under a licence issued by the Corporation. The
State of West Bengal which was running a daily market was prosecuted for not obtaining a
licence under the provisions of the Act. The Supreme Court, overruling its earlier decision,
held that the State is bound by its own law unless excluded either expressly or by necessary
implication. This case has another message that "Howsoever high you may be, the law is
above you". This message had a great influence on the later course of development of
administrative law and on the supremacy of the judiciary in testing the validity of all
executive and legislative actions.

This principle was affirmed in Union of India v. Jubbi4. In this case, the statute provided that
the tenants can acquire proprietary rights in the land by paying compensation to the
landowner in the manner laid down in the statute. The question was whether the benefit of
this statute can be availed of by tenants holding land owned by the State. The Supreme Court
held that the statute binds the State because the State is not excluded from its operation either
expressly or by necessary implication.

It is not difficult to ascertain if the State has been expressly exempted from the operation of a
statute, but where it has been exempted by "necessary implication", it may pose a problem.
Nevertheless, it may be mentioned that in cases where a statute provides for criminal
prosecution involving imprisonment, or in cases where a penalty of fine is imposed, the
money would go to the same coffer, the State is excluded by necessary implication.

In State of Maharashtra v. Indian Medical Assn. 5 , the Supreme Court came to the conclusion
that Section 64 of the Maharashtra University of Health Sciences Act, 1998, which provided

3 AIR 1967 SC 997

4 AIR 1968 SC 360


that all applications for permission to open a medical college should be routed through the
University to the State Government, does not bind the government, if it intends to open a
government run medical college. The court pointed out that expression "management"
occurring in Section 64 refers to private management and, hence, State is not bound by law
by any necessary implication.

5 (2002) I SCC 589

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