Province of Bombay v Municipal Corporation of the City of Bombay and Another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1947 |
| Date | 1947 |
| Year | 1947 |
| Court | Privy Council |
Crown - Whether bound by statute - Principles applicable -
The Crown is not bound, either expressly or by necessary implication, by s. 222, sub-s. 1, and s. 265 of the City of Bombay Municipal Act, 1888, which in effect give the Municipality power to carry water-mains for the purposes of water supply through, across or under any street and “into, through or under any land whatsoever within the city.”
The general principle applicable in England in deciding whether the Crown is bound by a statute — that it must be expressly named or be bound “by necessary implication” — applies also to Indian legislation.
To hold that the Crown is bound “by necessary implication” if it can be shown that the legislation cannot operate with reasonable efficiency unless the Crown is bound, is to whittle down the general principle and is unsupported by authority.
The earlier view that whenever a statute is enacted “for the public good” the Crown, though not expressly named, must be held to be bound by its provisions, cannot now be regarded as sound except in a strictly limited sense. If it can be affirmed that, at the time when the statute was passed and received the royal sanction, it was apparent from its terms that its beneficent purpose must be wholly frustrated unless the Crown were bound, then it may be inferred that the Crown has agreed to be bound.
APPEAL (No. 55 of 1945) from a judgment and decree of a Division Bench of the High Court (July 26, 1943) delivered and passed on a special case stated by agreement between the parties under s. 90 and Ord. 36 of the Code of Civil Procedure, 1908.
The question stated in the special case was “whether the Crown is bound by s. 222, sub-s. 1, and s. 265 of the City of Bombay Municipal Act.” Those sections related to certain powers conferred on the municipality in connexion with the city's water supply, and in effect gave the municipality power to carry water-mains for the purposes of water supply through, across or under any street, and into, through or under any land whatsoever in the city.
The High Court (Beaumont C.J. and Rajadhyaksha J.) held that the Crown was bound by the sections in question.
The facts and the terms of the sections appear from the judgment of the Judicial Committee.
1946. July 3, 4, 22. Tucker K.C. and Bagram for the appellant.
W. W. K. Page K.C. and Jopling for the respondents.
Oct. 10. The judgment of their Lordships was delivered by LORD DU PARCQ. By a written agreement, dated March 1, 1943, the parties to this appeal concurred in stating a special case for the opinion of the High Court of Bombay. The question of law for the opinion of the court was:— “Whether the Crown is bound by s. 222, sub-s. 1, and s. 265 of the City of Bombay Municipal Act.” The High Court (Beaumont C.J. and Rajadhyaksha J.) declared that the Crown was bound by these sections, and, in accordance with the agreement between the parties, made an order as to costs in the respondents' favour. The present appeal is against this decision.
The City of Bombay Municipal Act, 1888, has twenty-one chapters and 528 sections and covers, as might be expected, a wide field. Chapter X. deals with water-supply, Section 265, which is in this chapter, is as follows: “The commissioner shall have the same powers and be subject to the same restrictions for carrying, renewing and repairing water-mains, pipes and ducts within or without the city, as he has and is subject to under the provisions hereinbefore contained for carrying, renewing and repairing drains within the city.” The terms of this section thus necessitate a reference to Chapter IX., which has for its subject “Drains and Drainage-works,” and contains s. 222, sub-s. 1, which says:— “The commissioner may carry any municipal drain through, across, or under any street, or any place laid out as or intended for a street, or under any cellar or vault which may be under any street, and, after giving reasonable notice in writing to the...
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