DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

2016- 17

Interpretation of Statute

Final Draft

Interpreting Statute Affecting the State

SUBMITTED TO: - SUBMITTED BY:

Mr. Manwendra Kumar Tiwari Shalini Dwivedi

Assistant Prof. ROLL NO:-121

DR.RMLNLU 5th SEMESTER

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ACKNOWLEDGEMENT
I take this opportunity to express my profound gratitude and deep regards to my Assistant
Professor Mr. Manwendra Kumar Tiwari for his exemplary guidance, monitoring and
constant encouragement to give shape to this project. The blessing, help and guidance given by
him time to time shall carry me a long way in the journey of life on which I am about to embark.

I also take this opportunity to express a deep sense of gratitude to my respected seniors who
share their cordial support, valuable information and guidance, which helped me in completing
this task through various stages.

Lastly, I thank the almighty, my parents, brother, sisters and friends for their constant
encouragement without which this assignment would not have been possible.

Shalini

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Table of Content
1) Introduction

2) Rule of Common Law

3) Rule In India

4) Conclusion

5) Bibliography

List of Cases Referred

1) Bombay Province v. Bombay Municipal Corporation AIR 1947
2) Lord Advocate v. Dumbarton District Council (1990) 1 ALL ER 1
3) Director of R&D v. Corporation of Calcutta (1883-84) 9 AC 61
4) State of West Bengal v. Corporation of Calcutta (1861-73) All ER Rep 78 (HL)
5) Lucknow District Authority v. M.K. Gupta AIR 1994 SC 787
6) UOI v. Jubbi AIR 1968(1) SCR 447
7) Samatha v. State of Andhra Pradesh AIR 1997 SC 3297
8) State of Bihar v. Sonabati Kumari AIR 1961 SC 221
9) Coomber v. Berkshire Justices (1883-84) 9 AC 61

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Introduction
The general English rule is that the “king is above the law” and all statute are meant for subject
only and crown is not bound by them. The statute neither control the crown nor the rights or
properties of the crown, unless expressly or by necessity or by implication is named so in the
statute.

The presumption extends not only to the crown but also to the Crown’s servants. The basis of
this is to present an efficient and effective functioning of the ruler and his government for the
welfare of the people.

Illustrations where statutes are not binding on the state

a. Land Transfer Act, 1897.

b. Locomotives Act, 1865.

c. Property Occupied by the servants of the Crown exclusive for the crown.

d. The rule of Common wealth of nations reads that “the executive Government of the State is
not bound by a statute unless that intention is apparent.

e. The custodian of enemy property being a Crown, the servant is not liable to tax.

f. The Statutes regarding limitation were formerly held not to bind the crown.

g. It is a prerogative of the Crown not to pay tolls, rates or other burdens in respect of the
properties owned in his name.

In Rudler v Franks, the court held that the crown is not bound by Rent Restriction Acts under
Order in town and Country Planning Act, 1957. The Crown is not bound to get planning
permission in its own interest. In Cooper v Hawkins, a army driver drove a vehicle on the
crown’s service at a speed exceeding the limit. He was not liable for the breach of the speed limit
in the absence of express words in the statute that the Act binds the Crown.

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Illustrations of statutes that are binding on the crown

Certain Statutes binds the Crown. E.g. Statutes for the advancement of religion or learning, the
statutes for the maintenance of the poor, statutes for the suppression of wrong and statutes to
perform the will of the testator or donor.

If an Act is made for public good, then the crown is bound by such an Act. The crown is not
excluded from the operation of a statute even if the statute includes his prerogative or rights and
if the statute expressly includes the crown or the intention to include him is clear. In V.S Rice an
oil Mills v State of MP, the Supreme Court held that the state is not bound by a statute unless
expressly named therein or included by necessary implications, is applicable to Indian ruler also.

Cases: Kasthuri lal v State of UP and Vidyavathi v State of Rajasthan the applicability of a
statute to the crown was operative in ancient days where monarchy was in practice. But now, in
democracies this concept does not apply

Rule of Common law

(a) General Principles

The rule of English law is that no statute binds the Crown unless the Crown is named therein
either expressly or by necessary implication. The reason of the rule has been stated to be, that a
statute is presumed to be enacted for the subjects and not for the king. In other word of
PLOWDEN: “It is to be intended that when the King gives his assent he does not mean to
prejudice himself or to bar himself of his liberty and privileges, but he asserts that it be a law
among his subjects.”1 A modern statement of the rule is found in a passage from the judgment of
Lord DU PARCQ which is as follows: “The maxim of the law in early times was that no statute
bound the Crown unless the Crown was expressly named therein, ‘Roy n’est lie par ascun
statute. Si li ne soit expressment nosme.’ But the rule so laid down is subject to at least one
exception. The crown may be bound, as has often been said ‘by necessary implication’. If, that is
to say, it is manifest from the very terms of statute, that it was the intention of the legislature that
the crown should be bound, then the result is the same as if the Crown had been expressly

1
Willion v. Berkley,(1562)

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named. It must, then be inferred that the Crown, by assenting to the law, agreed to be bound by
its provisions.2

After a review of earlier cases Lord Keith Speaking for the house of lord stated the rule of
construction as follows: “The Crown is not bound by any statutory provision unless there can
somehow we gathered from the terms of relevant act and intention to that affect. The crown can
be bound only by express word or by necessary implication”.3

The rule has been also applied in the colonies and Commonwealth in the sense that “the
executive government of the state is not bound by statute unless that intention is apparent”.

There have been several attempt has been made to laid down certain categories as to when the
Crown is bound although not specifically named. Lord COKE indicated three kinds of statutes
which bound the King without specially naming him:

1) The statute for maintenance of religion, learning and the poor,

2) Statutes for suppression of wrong, and

3) Statutes that tend to perform the will of a founder or donor.

According to BACON: Where an act of parliament is made for public good, the advancement of
religion and to prevent injury and wrong the king shall be bound by such act though not
particularly named therein.

The reason for not drawing a distinction between statute enacted for public good and other
statutes is that statutes of a modern State whether they be directed for imposition of taxes or for
safeguarding the health of community or for any other purpose are all, at least in theory enacted
for public good. This qualification has however very slander limited authority. The only safe
rule, which may be valid in all cases, to decide whether a given statute binds the crown by
‘necessary implication’, is to read the statute as a whole and to see whether it is manifest from
the very terms of the statute, that it was the intention of the legislature that the crown should be
bound.

2
Bombay Province v. Bombay Municipal Corporation AIR 1947
3
Lord Advocate v. Dumbarton District Council, (1990) 1 ALL ER 1

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In Bombay province v. Bombay Municipal Corporation4 the question was whether the provision
of Bombay Municipal Corporation Act, 1888, which authorised the commissioner to carry water-
mains and municipal drains ‘through or under any land whatsoever within the city. The Bombay
High Court in arriving at the conclusion that even Government land within the city was subject
to the statutory power of the corporation to carry water mains observed that if it can be shown
that legislation cannot operate with reasonable efficiency unless the crown is bound. That would
be sufficient reason for saying that the crown is bound by necessary implication. This decision
overruled by Privy Council and said that to interpret the principles in the sense put upon it by the
high court would be to reduce it down and they cannot find any authority which gives to any
support to such an interpretation. So basically the presumption is that the crown or state not
bound would be rebutted and an intention to bind would be clearly made out if it could be shown
from the terms of the statute taken as a whole that the purpose of the statute would be ‘wholly
frustrated’, or ‘the legislation would be unmeaning’ unless the Crown or the state were held to be
bound. When the court is asked to draw this inference, it must always be remembered that, if it
be the intention of the legislature that the Crown shall be bound, nothing is easier than to say so
in plain words.

(b) Extend of the rule

According to English law the protection of the rule of presumption that the Crown is not bound
by statutes extends to three classes of person: (i) the sovereign personality, (ii) his servants or
agents acting as such, and (iii) person who, though not strictly servants or agents, are considered
to be in consimili casu.

1. Class I-The Sovereign personally

2. Class II-His servants or agents acting as such [Covers Officers of the State with Ministerial
status, sub-ordinate officials, servants holding statutory offices (In determining if a person
holding a statutory office is a servant of the Crown, the degree of control exercised by the Crown
and the amount of discretion left with the holder of the office are relevant and important factors
to be taken into account.

4
ibid

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3. Class III-Persons in consimili casu [Covers persons who though independent of the Crown
perform exclusively or to a limited degree the regal governmental functions such as the
administration of justice, the maintenance of order, the repression of crime, the carrying on of
war, the making of treaties of peace and other consequential functions]

Class II & Class III differentiated: The difference lies in the degree of independence and amount
of discretion, which is very high in case of Class III persons and which is very low in case of
Class II persons. Class III clarified: Persons fall under this category only if the independence
enjoyed and discretion exercised is in respect of matters which are for the purposes of
administration, or those purposes of the Govt. which are according to the theory of the
Constitution, administered by the Sovereign.

Coomber v Berkshire Justices5 Justices of the Courts of Assize claimed immunity from the
payment of tax for the premises occupied by the Courts of Assize. House of Lords granted the
same. Administration of justice is an act performed by a person in consimili casu and thereby
such persons belong to Class III to whom the Crown privileges extend.

British Broadcasting Company v Johns (1964) 1 All ER 923 (CA)BBC which was established
by a royal charter and operated under a license granted by the Postmaster General and to large
extent was under his control claimed immunity from taxation under the Income Tax Act, 1952.
(Under Class III persons)It was held that the corporation was not entitled to the Crowns
exemption from taxation because broadcasting was not a province of the Govt. and the
corporation was an independent corporate body which was not exercising functions required and
created by the Govt. BBC was Commercial Corporation.

Mersey Docks & Harbour Board v Cameron6 A non profit earning statutory corporation, which
was not subject to control by the Crown or a Minister and whose revenues were not Crown’s
revenues, claimed immunity from local rates, on the ground that they were performing a public
duty (and tried to come within the ambit of class III persons).The acts performed by them
couldn’t be proved to be one performed by persons in consimili casu. This is why the privilege
wasn’t granted.

5
(1883-84) 9 AC 61
6
(1861-73) All ER Rep 78 (HL)

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Cooper v Hawkins7 An army engine driver who drove a locomotive on Crown service at a speed
exceeding the limit fixed by regulations under a statute claimed Crown privilege for the same.
The Court granted it as the driver was a servant of the Crown and hence a Class II person to
whom the immunity extends.

Rule in India

In Director of R&D v. Corporation of Calcutta8, it was held that the Common law rule that the
Crown was not bound by a statute unless named expressly or by necessary implication applied to
India before the Constitution as held by Privy Council in Bombay Province v. Municipal
Corporation and it continued to apply after the constitution in the form that the state is not bound
by a statute unless it is so provided in express terms or by necessary implication. But this view
was overruled in State of W.B. v. Corporation of Calcutta9. In this case it was held that the
common law rule of construction was not accepted prior to the constitution throughout India
even in the Presidency towns it was not regarded as an inflexible rule. It was further held, that
the rule of common law which was based on prerogative of the Crown had no relevance to a
democratic republic, and was inconsistent with the rule of law based on the doctrine of equality
enshrined in the constitution. As result of this decision, the rule applies in India is, that a “general
Act applies to the citizen as well as to state unless it expressly or by necessary implication
exempts the state from its operation”. The same rule will apply to Government bodies and
corporations constituted under special acts. In this case the state was bound by Section 218 and
541 of Calcutta municipal Corporation act, 1952 as it was not taken licence to carry on the
business. It must be notice that he fine recovered under sec 541 of the act goes to Municipal
Corporation fund and therefore act contained no implication that state not liable for the offence.

Likewise when a penal enactment providing for imprisonment or fine. Then it is made applicable
to government or government department, it will generally indicate the officers who is liable to
be punished for the offence. For example, when a lottery organised, conducted or promoted by a
department of a State Government in contravention of Lotteries Regulation Act, 1988, the Head

7
(1904) 2 KB 164
8
AIR 1960 SC 1355
9
AIR 1967 SC 997

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of the Department is liable under section 7(1) to be punished with rigorous imprisonment which
may extend to two years or with fine or both.

In Union of India v. Jubbi10, the question was whether section 11 of the Himachal Pradesh
Abolition of Big Landed estates and Land Reforms Act, 1953, applied to the Union. The section
conferred on tenants the right to acquire the interests of landlord on payment of compensation,
and it was contended by the union that the section was not applicable to cases where Government
was landlord. This contention was rejected and the court observed: “The provision is now that a
statute applies to State as much as it does to a citizen unless it expressly or by necessary
implication exempts the state from its operation. Neither section 11 nor any other provision in
the act contains any express exemption. Broadly stated, if the legislature intended to exclude the
applicability of the act to the state it could have stated in section 11itself or by a separate
provision that the Act is not to be applied to the union of the land held by it. In the absence of
such provision, in a constitutional set up as the one we have in this country, and of which the
overriding basis is the broad concept of equality, free from any arbitrary discrimination, the
presumption would be that a law of which the avowed object is to free the tenant of landlordism
and to ensure to him security of tenure would bind all landlords irrespective of whether such a
landlord is ordinary individual or the Union.

The word ‘person’ in Regulation 3(1) (a) of the Andhra Pradesh Scheduled Area Land Transfer
Regulations, 1959 which prohibits any ‘person’ to transfer land to non-tribals was held to include
also the State, thus prohibiting the transfer of any Government land to non-tribals11.

In State of Bihar v. Sonabati Kumari12 it has been held that if a state disobeys a temporary
injunction, its property is liable to be attached under Order 39, Rule 2(3) of the Civil Procedure
Code, 1908. The position is that “the state is bound by the Civil Procedure Code, the scheme of
the Code being that subject to any special provision made in that regard as respects Government,
it occupies the same provision made in that regard as respects government, and it occupies the
same position as any other party to a proceeding before the court”.

10
AIR 1968 SC 360
11
Samatha v. State of Andhra Pradesh, AIR 1997 SC 3297
12
AIR 1961 SC 221

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In Lucknow Development Authority v. M.K. Gupta13 it has been held that the Consumer
protection Act, 1986 applies to a statutory authority and a Government or semi-government body
or a local authority in the same way as it applies to private bodies for the act does not either
expressly or impliedly indicate that these bodies are excluded from the purview of the Act.

Conclusion

The reason of the rule has been stated to be, that a statute is presumed to be enacted for the
subjects and not for the king. It is to be intended that when the King gives his assent he does not
mean to prejudice himself or to bar himself of his liberty and privileges, but he asserts that it be a
law among his subjects. The rule in India ‘A statute applies to State as much as it does to a
citizen unless it expressly or by necessary implication exempts the State from its operation.’
Reason: Consistent with the rule of law based on the doctrine of equality enshrined in the
Constitution. As it was opined in a case that the Common law rule the Crown was not bound by
a statute unless named expressly or by necessary implication applied to India before the
Constitution. The decision in Bombay Province v Bombay Municipal Corporation was used by
the Court to prove the same. But in State of W.B. v Corporation of Calcutta (AIR 1967 SC 997)
it was opined that the Common law rule was not accepted prior to the Constitution throughout
India and even in the Presidency towns it was not regarded as an inflexible rule. In this
connection it was pointed out that Bombay Province v Bombay Municipal Corporation was one
of the various exceptions and that the legislative practice in India established that the various
legislatures of the country provided specific exemptions in favour of the Crown whenever they
intended to do so and did not rely upon any presumption.

13
AIR 1994 SC 787

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Bibliography
Book:

1) Principles of Statutory Interpretation, by Justice G.P. Singh

Online Resources:

1) www.scconline.com

2) www.Manupatra.com

3) Hein Online

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