-Module 3 IOS

1) Statutes affecting crown or state

2) Statute affecting jurisdiction of courts
3) Presumption in Interpretation of statute

Statute affecting crown or state;

 (A) General principles
(B) Extent of the rule.

(A) General principles

The rule in English rule is that no statute binds the crown

“ unless the crown is named therein either expressly
or by necessary implication” as statute is presumed to
be enacted for the subjects by the king and not for the
king and he is not bound by the statute.

According to Plowden ; it is to be intended that when the

king gives his assent he does not mean to prejudice himself
of his liberty and his privileges , but he assents that it be a
law among his subjects.

According to Lord Keith “ the crown is not bound by any

statutory provision unless there can some how be gathered
from the terms of the relevant Act an intention to that
effect”. The crown can be bound only by express words or
necessary implication .

(1) Exception to the above rule;

There are three kinds of statutes which bound the king

without specially naming him;
 (a) statutes for maintenance of religious ,
learning and the poor.

(b) statutes for supression of wrong; and

(c) statute that tend to perform the will of a

founder or donor

It is provided in Bacon’s ABRIDGEMENT that

“ where an Act OF Parliament is made for the above three
purposes, then King shall be bound by Act , even without
particularly named ( mentioned) therein.

Above generalization provided is not accepted by modern

writers hence the best rule to decide whether a given
statute binds the crown ‘by necessary implication ‘ will be
valid in all cases when the statute is read as a whole in its
context and if in the terms of statute, the intention of the
legislature is to bind crown also.

Bombay province V Bombay Municipal corporation

In this case the question was whether the provision of

the Bombay Municipal Act, 1948, which authorized
commissioner to carry water mains and municipal
drains through or under any land ‘ whatsoever’ within
the city , were applicable in respect of government land
within the city.
The Bombay High Court concluded that even the
government land within the city were applicable in
respect of government land within the city was subject
to the statutory power of the corporation to carry water
mains.

So general presumption that crown is not bound would

be rebutted and will be made bound if it is shown from
the letter of the statute and that purpose of the statute
would be wholly be futile unless the crown or state were
made bound.

(B) Extent of the Rule

The protection of rule of presumption that

crown is not bound by statute extends to the
three classes of persons;
(a) the sovereign personally
(b) his servants or agents acting as such and
(c) persons who though not strictly servants or
agents.
All the above are considered as “ consimili casu”.

This is referred to servants of the crown , they are

the persons who though independent of the crown
 perform , exclusively or to a limited degree, the regal
government function such as administration of
justice, the carrying on of war , the making of the
treatiesof peace, the repression of crime.

Class (b) covers not only officers of the state with

ministerial status but all subordinate officials as also
servants holding statutory officers.

MERSY DOCKS AND HARBOUR BOARD V

CAMERON
In this case a non profit earning statutory corporation , not
under control of crown or a minister and whose revenue
were not crown revenues claimed immunity from local
rates and the question arose before the House of Lords
whether such a corporation could claim privileges on the
ground that it was performing a public duty . such
privileges were not accorded to the corporation.

Even when property is occupied for the purposes of the

government of the country, including under that head the
police and Administration of justice it is understood as
government property.
This includes property occupied for such purposes by the
servant of great department of state, such as post office ,
House of guards, or Admirality, such occupants are also
included in the above category.

All other occupants for all public purposes of that kind

under sovereign authority is put under the ‘ ‘consimili
casu’.

Regarding the immunity to the state authority the following

proposition are set forth in Bank Voor Handel V
Administration of Hungarian property.

1) The immunity extends at least to include al those officers

of the state and their subordinate’s who now perform
pursuant to statutory authority, functions of public
government which formerly the peculiar prerogative of the
crown.
2) Such functions include the making and carrying on of
the war and the making of treaties of peace and other
consequential international arrangements and the
performance thereof.
3) It is immaterial whether the person in respect of whom
the immunity is claimed is himself an officer of the state
with ministerial status, or is a subordinate official of such
minister, or is himself an executive officer of lower status
than that of a minister.
4) The immunity extends to such persons only so long as
they are acting in the capacity described above.
5) This immunity also extends to persons who do not come
within the class described above but are the owners or
occupiers of property exclusively used for purposes of
Government.

The Rule in India

The Rule which privy council adopted that crown was not
bound by a statute unless named expressly or by necessary
implication was applied by privy council before the
constitution was adopted.

The same was adopted even after the independence till it

was overruled in State of W.B V corporation of Calcutta.

In this case appellant state of west Bengal was carrying on

trade as owner and occupier of a market at Calcutta without
obtaining a license as required under section 218 of the
Calcutta municipal Act , 1951.

The respondent filed a complaint against state of W.B for

contravention thereof .
The trail court on accepted contention that state was not
bound by the provision of the Act and acquitted the state.

On appeal, the appellant court held that the state was not
exempt from the operation of section 218 of the Calcutta
municipal Act , 1951 and was rightly convicted.
Bench further viewed that the common law rule of
construction was not accepted prior to the constitution
through out in India, and even in presidency towns it was
not accepted as an inflexible (inalterable) rule .

It was further stated that common law is based on

prerogative of the crown , had no relevance to democratic
republic . It was in consistent with the rule of law having
its roots in doctrine of equality enshrined in the
constitution . As a result of this decision the rule applies in
India, that , general act applies to citizens as well as to the
states unless expressly or by necessary implication
exempts the state from its operation.

In LDA V M.K.GUPTA it was held that , c.p.Act,1986

applied to a statutory and govt. or semi- Govt or local
authority in the same way as
its applies to private bodies for the Act , does‘nt either expressly
or impliedly indicate that these bodies are excluded from the scope
of the Act.
Statutes affecting jurisdiction of courts;
1) General principles
(A) Exclusion must be explicitly expressed or
clearly implied.
(B) Three classes of cases
(C) Cases of breach of statutory duty
(D) Omission to exercise statutory power

2) Extent OF exclusion
(A) Conclusion of exclusionary clauses
(B) Cases of Nullity
(C) Rule of conclusive Evidence

3) Exclusion of jurisdiction of superior courts.

(A) Exclusion must be explicitly expressed or

clearly implied;

The provision in a statute if it is meant to exclude

jurisdiction of a civil courts and conferring the same
on the authorities other than civil courts are always
construed strictly , only on the basis of express
provision .

It is a strong presumption that civil courts have

jurisdiction to decide all question of civil nature.
Exclusion of such jurisdiction cannot be readily
inferred and such exclusion must be ‘ explicitly
expressed or clearly implied’. When ever there is ouster
of jurisdiction over a subject – matter it cannot be
implied and must be express.

Burden of proof ;

The power to decide matter on the civil nature is a

general rule and exclusion is an exception of this rule.
Therefore , the burden of proof to show that
jurisdiction is excluded in any particular is on the
party who raises such contention .

Right to justice being provided in legal system , when

there are exclusion to jurisdiction , same
may not be readily inferred.

Even in case of criminal courts if the jurisdiction is

excluded it can be done through setting up of a court
of limited jurisdiction.
Eg ; Article 363 of the constitution was interpreted
strictly which bars the jurisdiction of all the courts in
any dispute arising out of any provision in a treaty etc .,
or in any dispute in respect of any right, liability or
obligation arising out of ‘ any of the provision of the
constitution relating to any such treaty etc.

(B) Three classes of cases;

Classes of cases here dealt with are the liability

might be established, or found upon the statute.
(i)where there was a liability existing at
common law , and that liability is affirmed by a
statute which gives a special and peculiar form
of remedy different from which existed at
common law; there , unless the statute contains
words which expressly or by necessary
implication exclude the common law remedy ,
party suing has his election to pursue either that
or the statutory remedy.

(ii) the second class is where the statute gives the

right to sue merely and do not provide any
particular remedy; here the party can only
proceed for an action at common law .

(iii) where a liability is not existing at common

law is created by a statute which at same time
gives special remedy for enforcing it – the
remedy provided by the statute must be
followed.
 Where a new right or liability is created by a
statute which gives a special remedy for
enforcing it , the ordinary remedy of
approaching the civil court is impliedly
excluded.

Rohtas Industries Ltd. V. Rohtas Industries Staff

Union

It was held that for wrongs created by the Act the

only remedy is what is provided in the Act .Therefore , in
case of a strike which is illegal the employer can have the
workers punished under section 26 but he has no right to
claim compensation for loss of business caused by the
illegal strike.

(c)cases of breach of statutory duties;

When an act creates an obligation and enforces the
performance in a specified manner, we take it to general
rule that performance cannot be enforced in any other
manner.

If an obligation is created but no mode of enforcing its

performance is ordained (specified), the common law may ,
in general find mode suited to the particular nature of the
case.
 In Pasmore V Oswaldtwistle urban District council, the
question was to maintainability of an action for mandamus
for enforcing the statutory duty of local authority under
section 15 of the Public Health Act ,1875, to provide
sufficient number of sewers for draining their
district .Section 299 of the Act provided a remedy for
enforcing the statutory duty by a complaint to the Local
board ad therefore , it was held that there was no remedy
outside the Act.
When a statute creating the duty provides
For he only manner of enforcing the duty.

(C) omission to Exercise statutory power.

Under common law there is no liabilityin damages
for the breach arising out of omission to exercise of
a statutory duty provided with statutory power.

Since there was no remedy in common law for the

above it was laid down that minimum
preconditions for basing a duty of care upon the
existence of statutory power in respect of an
omission to exercise the power;

(a) in the given circumstances it would have been

irrational for the authority not have
excercised the power, so that in effect public
law duty to act
(b) if statute provides for right to compensation
on a person on exceptional grounds , who
suffered loss if the power was not excercised.
The rule was accepted and found to be satisfied by the
supreme court in the following case.

Union of India V united India InsuranceCo . Ltd

In this case, an express train had collided with a passenger

bus at an unmanned level crossing and the union of India
owning the Railway was held guilty of negligence being in
breach of its common law duty for failing to convert the
unmanned level crossing into manned level crossing
having in consideration volume of traffic and in providing
proper signboard foe warning the road traffic . The union
of India was also held liable for omission to exercise the
power under section 13 0f Railways Act which provides
that the Central Government’may require ‘a railway
administration to erect fences , screengates, etc.
II)The extent of the exclusion;

(A)Construction of Exclusionary clauses

If there is no provision to enable an authority or tribunal

for holding an inquiry on a particular question is indictive
that jurisdiction of civil court on that question is not
excluded .

When jurisdiction of civil court on a particular matter is

excluded by transferring the jurisdiction from civil court
to tribunals or authorities , it is presumed that such
tribunals or authorities can draw upon the principles of
procedure in civil procedure code, even without express
provision .

Where jurisdiction is excluded by use of prima facie

comprehensive language, it is open to civil courts which are
the courts of general jurisdiction to decide whether a court,
or tribunal or authority having limited Jurisdiction has
acted in excess of its statutory powers.

Where the matters on which the jurisdiction of civil court is

excluded , neither consent of the parties nor an order of the
of special tribunal which has jurisdiction to decide to
decide those matters , can confer jurisdiction on the civil
courts.
Gaekwar Sarkar of Bombay VGandhi kachra Bai

Section 10 of the Indian Railways Act was considered.

The section provides that railway administration shall do

as little damage possible if the damage done in excess of
its power for construction and maintenance of work and
compensation shall be paid for any damage caused by
the exercise thereof , there shall be no suit to recover
such compensation .
But in case of dispute regarding amount then to make an
application to the collector , be determined paid in
accordance the provision of land Acquisition Act , 1894.
A person brought a suit claiming damages for injury
caused by negligence of railway in construction of certain
works. It was contended that suit was barred by section 10
of the Railways Act. This contention was valid only when
railway administration had not exceeded or, abused its
powers and was not guilty of negligence.

As summed up in HALSBURY’ S LAWS OF ENGLAND

That when statutory powers are conferred upon a person
it is the duty of the person not to exceed the powers by
acting in excess of their power , when they do so they are
deprived of the protection conferred upon them by statute
in question and will be subject to common law
remedies , as a result an injunction may be provided
restraining the person from acting
beyond his powers and to recover the damages.

Note ; the extent of exclusion is really a question of

construction of each particular statute, in doing so the applicable
general principle are subordinate to actual words used by the
legislature.

Refer the cases (1) Mohammad Din V Imamdin

(2)State of Rajasthan VUnion of India

Cases of Nullity
The cases of nullity arises “when an order passed by a tribunal or
authority of limited jurisdiction is held as nullity of cases”.
The jurisdiction of a tribunal is determinable at commencement of
a proceeding and if jurisdiction is properly assumed any order
passed thereafter will be within jurisdiction and conclusive though
it may be erroneous in fact or law.

The pure theory of jurisdiction has provided a modern theory

of jurisdiction according to which defects in jurisdiction can
arise even during or at the conclusion of a proceeding .

Here the court should make distinction between jurisdictional question

of fact or law and questions of fact or law which are not jurisdictional.

If the question of fact or law is jurisdictional , the tribunal though competent

to inquire into that question cannot decide it conclusively and wrong
determination of the case shall turn final decision in excess of jurisdiction

If it is a question of fact is non – jurisdictional the tribunal’s decision is

final and conclusive , as long as the tribunal exercises the power
conferred upon it.

In Ujjam Bai v. State of U.P. , it was held that an adjudication by a

tribunal of limited jurisdiction is void when

a) Action is taken under an ultra vires statute

b) The subject matter of adjudication is beyond its competence or
the order passed is such which it has no authority to pass
c) The adjudication is procedurally ultra vires in contravention to
fundamental principles of judicial procedure, and
d) Jurisdiction is assumed by wrongly deciding jurisdictional
question of law or fact
Cases of nullity

May arise when there is lack of jurisdiction at the stage of commencement of

enquiry e.g., when

a) Authority is assumed under an ultra vires statute

b) Tribunal is not properly constituted
c) The subject matter or the parties are such over which the tribunal has
no authority to inquire
d) There is a need for fulfilment of essential preliminaries prescribed by
law for the commencement of the inquiry

Rule of conclusive proof;

By enacting rules of conclusive proof or conclusive evidence the

legislature may make certain matter non- justiciable.

Izhar Ahmed V Union of India;

Whether Rule 3 of citizenship Rules , 1956 framed by the Central

Government undersection 9(2) of the citizenship ,Act, was valid or not.
Section provided that the fact that a citizen of India has obtained on any
date a pass port from the government of any other count shall be
conclusive proof of his having voluntarily acquired citizenship of the
country before that date this rule was held to be evidence and therefore
valid .

The effect of a conclusive evidence clause is subject at least to two

qualification;

(i) A conclusive evidence clause may be held to be invalid as an

unreasonable restriction of fundamental rights.
 (ii) The insertion of such clauses in statutes conferring power may fail to
shut out basic defect of jurisdiction in exercise of power. It may turn out to
be effective to control an attack on the ground of fraud or colourable
exercise of power.

3)Exclusion of jurisdiction of superior courts ;

The jurisdiction conferred by the Constitution can be taken away only by

amending the Constitution and not by statutory enactments.
If the legislature states that the decision or order of a court or tribunal shall
be final and conclusive , the remedies available under the constitution
remain undisturbed.
Section 115 of code of civil procedure , 1908 provides for
supervisory powers to the High court of India and same powers are
provided under the constitution on all the subordinate courts.

This power of revision under section 115 of the act can be removed only by
express provision to that effect.
Presumptions in interpretation of satutes
A)COMMENCEMENT

B) GENERAL PRINCIPLES
1. POWER TO MAKE RETROSPECTIVE LAWS
2.STATUTES DEALING WITH SUBSTANTIVE RIGHTS
3.RECENT STATEMENT OF RULE AGAINST
RETROSPECTIVITY.

C) PRESUMPTION AGAINST EXCEEDING CONSTITUTTIONAL

POWERS
(1) LEGISLATURE POWERS
(2) PRESUMPTION OF CONSTITUTIONALITY

(D)PRESUMPTION AGAINST EXCEEDING TERRITORIAL

NEXUS
(1) PRINCIPAL OF TERRITORIAL NEXUS
(2) LEGISLATION UNDER GOVERNMENT OF INDIA
ACT
 (3) LEGISLATION UNDER CONSTITUTION OF INDIA.

(A) Commencement
Commencement of an act means the day on which the Act comes
into operation .

A central Act comes into operation on the day it receives the

presidential Assent and it is construed as coming into operation
immediately on the expiry of the day preceding its commencement.

A State Act comes into force on the day when the assent of the
governor or the president as the case may be , is first published in
the official gazette of the state.

An Act may be brought into operation by legislative enactment or by

exercise of authority by a delegated authority
 If the enforcement of the legislature is postponed to some specified
date or to such date as the appropriate government may by
notification in the official gazette appoint, then act is applicable
only from that time .

(B) GENERAL PRINCIPLES

Every statute is prima facie prospective unless it is expressly or by

necessary implication made have a retrospective operation .

This rule is applicable where the object of the statute is to affect vested
right or to impose new burdens or to impair existing obligation. If the
object of the act is to impair the existing rights then it is prospective
only.

This above principle is based on maxim “nova constitutio futuris

forman imponere debet non praeteritis applies i.e., new law ought to
regulate what is to follow , not the past.

In the absence of the express provision relating to retrospective

operation it is not determinable of being prospective or retrospective.

Guide lines to determine prospective or retrospective operation;

(1) general scope and purview of the statute.

(2) The remedy sought to be applied.
(3) The former state of law
(4) What it was that the legislature contemplated.
1. Power to make retrospective laws;
The union parliament and the state legislature have plenary
powers to create limits in legislation , legislate prospectively
or retrospectively.
This power of the legislature will always enable amending
Act .

The retrospective operation is always useful to cure

prior executive act and remove the defects.

Hence it is understood it as curative and validating acts.

(3) RECENT STATEMENT OF THE RULE AGAINST

RETROSPECTIVE.