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Table of Cases i
Table of Statute... ii
Introduction.. 1
Aim(s)....................... 2
Objectives(s)...2
Review of Literature...............................2
Research Questions.....3
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.
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