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Judgment
Benson, J.—Major Bell, the accused in this case, is the Superintendent of the Government Gun Carriage Factory in the City of Madras. He
caused certain timber to be brought into the City on account of Government without Obtaining a license and paying the fees prescribed by Section
341 of the City of Madras Municipal Act I of 1884, and for this act he has been prosecuted at the instance of the Municipal Commissioners and
has been fined the nominal sum of one rupee.
The learned Advocate-General asks us, in the exercise of our powers of revision, to set aside the conviction and sentence as contrary to law.
The object of the prosecution and of this revision petition is to obtain an authoritative decision of this Court as to the applicability of Section 341 to
Government timber and firewood. The section enacts that no timber or firewood shall be brought within the City without a license specifying the
place and conditions of storing, to be issued by the President under the bye-laws, on payment of a fee which should not exceed the following rates:
- ""Timber Rs. 5 per ton; firewood Re. 0-6-0 per ton.
There is nothing in the section to limit the liability of Government .timber, though exemptions in favour of Government are found in several, other
sections of the Act. The prima facie inference is that the Legislature intended to make the section applicable to such timber. The learned Advocate-
General, however, contests this inference, and contends that the conviction is bad on three grounds, viz.:.
Because the Magistrate ought to have held that the provisions of Section 341 as to taking out a license for importing wood are merely ancillary
to the provisions of Section 338 as to taking out a license for storing wood and. that the exemption in favour of Government in Section 338 applies
also to Section 341.
Because, if as held by the Magistrate, the license fee leviable u/s 341 is to be treated as a tax on importation it amounts to a toll, and
Government property is expressly exempted by Section 174 from payment of tolls.
Because the Crown is not bound by the taxing provisions of a statute unless there be express words to bind it, or in the absence of express
words, unless the inference that it was intended to bind the Crown is manifest and irresistible, whereas on the true construction of this statute no
such intention is to be found.
The first two grounds appear to me to be clearly untenable. The license mentioned in Section 341 is quite distinct from that mentioned in Section
The latter section requires the occupier of every place used for the sale and storage of wood and certain other inflammable materials to take
out a license, just as other sections require those who keep livery stables, slaughter-houses and bake-houses, or who exercise certain dangerous
and offensive trades, to take out a license, the object being to give the Municipal authorities the power to control such places in the interest of the
public. Section 341, properly understood, is a section which imposes an Octroi or Town duty under the guise of a license fee. This is manifest from
the heavy incidence of the fee and from the proviso in the section for a drawback of nine-tenths of the fee in case the wood is exported, and also
from the fact that the President has no discretion to refuse to grant a license. A person may import wood u/s 341, withou.fr taking it to a place
licensed u/s 338, and a person may keep a place u/s 338 without importing u/s 341. I can see no reason for holding that the exemption from
control in Section 338 in favour of a place occupied by Government wood operates to exempt from taxation u/s 341 the person who imports
Government wood. Nor can it, with any show of reason, be said that the exemption provided by Section 174 in favour of Government as regards
tolls, extends to the fee or Town duty imposed by Section 341. The tolls referred to in Section 174 are those tolls alone, which the Commissioners
are authorised to levy ex nominee by Section 170 and which are specified in Schedule D of the Act.
There remains the contention which was pressed upon us by the Advocate-General with much force and learning, viz., that fees payable u/s 341
are tolls, and that the Crown has a prerogative exemption as regards all tolls, and that, even if they are not ""tolls"", the Crown, or, in this country,
the Secretary of State for India in Council as representing the Crown, is not bound by the taxing provisions of a statute unless there be express
words to bind the Crown or in the absence of express words, unless the inference that it is intended to bind the Crown is manifest and irresistible,
and that such intention is not to be found in the City of Madras Municipal Act. He contended that no intention to render the Crown liable u/s 341
can properly be inferred from the fact that in other sections of the Act, Government is expressly exempted from liability and he quoted a number of
English cases in support of his contention. There is no doubt, abundant authority to show that in England the Crown is by virtue of its prerogative
exempt from the payment of tolls, but it is also clear, from the Indian Councils Act, 1861 (24 and 25, Viet. C. 67) that it is competent for the
Indian Legislatures to make laws which may cut down the prerogative of the Crown in certain matters. This is clear with regard to the Governor-
General in Council from Section 24 which provides that ""no law or regulation made by the Governor-General in Council (subject to the power of
disallowance by the Crown as hereinbefore provided) shall be deemed invalid by reason only that it affects the prerogatives of the Crown.
I had at first some doubt whether the Governor-in-Council of this Presidency and of Bombay are competent to make any law which shall affect
the prerogative Of the Crown. This doubt was caused by the absence of any section similar to Section 24 in regard to the powers of these local
Legislatures, and it was strengthened by finding that Sir C. Ilbert in his work on the ""Government of India"" (pp. 223 and 226), assumed, for the
same reason, that they have no such power. On further consideration, however, and after consultation with my learned colleague, I am of opinion
that the local Legislatures are competent to make such a law, provided it does not affect the prerogative in regard to any matter specially exempted
from their jurisdiction or from the jurisdiction of the Governor-General in Council. The authority to legislate as regards matters which affect the
prerogative is not conferred on the Governor-General in Council by Section 24. The authority is conferred by Section 22 which gives the
Governor-General in Council full legislative authority save in regard to certain specified matters, some of which affect'' the prerogative, and some of
which do not do so. That section in substance reenacts Section 43 of 3 and 4 William IV; C. 85, with this important difference, that it omits the
general words of the latter section which prohibited the Governor-General in Council from ""making any laws or regulations which shall in any way
affect any prerogative of the Crown."" That limitation had, in the interval, been removed by Section 26 of 10 and 17 Viet. C. 95, which provided
that ""no law"" or regulation made by the Governor-General in Council shall be invalid by reason only that the same affects any prerogative of the
Crown, provided,"" etc. Thus Section 22 of the Indian Councils Act, 1861, conferred on the Governor-General in Council a general power to
legislate even in matters affecting the prerogative, except in regard to certain1 specified matters, and Section 24 was enacted eco majore cautela
so as to show beyond all doubt that the important change in the law '' made, subject to a qualification, by Section 26 of 16 and 17 Viet. C. 95
was, without any qualification, maintained in the New Councils Act 24 and 25, Viet, C. 67. The extent of the legislative powers of the Governor-
in-Council of this Presidency and of Bombay is defined and limited in Sections 42 and 43 of this Act. u/s 42, the Governor-in-Council of this
Presidency may ""make laws and regulations for the peace and good government"" of the Presidency"" provided they shall not ""affect any of the
provisions of this Act or any other Act of Parliament in force or hereafter to be in force in such Presidency."" Section 43 then specifies certain
matters which are not to be dealt with by the local Legislature save with the previous sanction of the Governor-General. In neither section is there
any general limitation in regard to matters affecting the prerogative. The limitations imposed on the Governor-General in Council by the latter part
of Section 22 must necessarily be held to apply to the subordinate Legislatures of this Presidency and of Bombay, but, subject thereto, and to the
restrictions imposed by Sections 42 and 43, a law passed by the Legislature of this Presidency for its ""peace and good government"" is not, in my
opinion, invalid by reason only that it affects the prerogative of the Crown. The City of Madras Municipal Act is such a law, and even if the fees
specified in Section 341 thereof are to be regarded as ''tolls'' to which the prerogative of the Crown would apply in England (a proposition which I
think is doubtful), there would be nothing contrary to law in the local Legislature requiring such fees to be paid on Government wood in the same
way as on wood, the property of private persons.
If the fees are not to be regarded as tolls with a special prerogative exemption in favour of Government still less can. they be regarded as
necessarily inapplicable to Government if they are, as I think they are, in reality a mere tax or Town duty, similar to the duty imposed by Act I of
1890 (Madras) on all tobacco brought into the City of Madras. It would, no doubt, seem to be the case that in England, owing to historical causes,
the Legislature has proceeded on the view that the Crown is not bound by a statute unless named in it, and we, therefore, find that the Crown is in
many statutes expressly stated to be bound, but it is impossible to say broadly that in India the Crown is not bound by a statute, or the taxing
provisions of a statute unless expressly named in it. Such express inclusion is altogether exceptional. It would be more correct to say that, as a
general rule, the Indian Legislatures have proceeded on the assumption that the Government will be bound by the statute unless expressly or by
necessary implication excluded from its operation. Government, when a party to litigation, pays ''Court fees just as other suitors do because there
is no special exemption in favour of Government in the Court Fees Act. On the other hand, Government is specially exempted from the payment of
stamp duties under the General Stamp Act,1899, Section (3), proviso (i) ""in cases where but for this exemption the Government would be liable to
pay the duty chargeable in respect of such instrument."" This amounts to a statutory declaration that Government would be liable to pay the duty but
for the special exemption. In like manner, goods belonging to Government are specially exempted from duty under the Sea Customs Act and the
Indian Tariff Act, and it would be easy to enumerate many other Acts in which exemptions are made in favour of Government on the evident
assumption that bat for such exemption the Government would be bound. Perhaps, however, the most important Act of all is the ""Municipal
Taxation Act, 1881"" passed by the Governor-General in Council. It t gives the Governor-General in Council power by an order in writing to
prohibit the levy by a Municipal Committee of any specified tax payable by the Secretary of State for India in Council, but provides that in such
case"" the Secretary of State in Council shall be liable to pay to the Municipal Committee, in lieu of such tax,"" such sums (if any) as an officer
appointed by Government may in all the circumstances of the case determine to be fair and reasonable. The preamble to this Act does not allege
that the imposition of a tax payable by the Secretary of State to a Municipal authority is opposed to the prerogative of the Crown. It assumes that
such taxation is legal. The Act, in effect, is an acknowledgment by the supreme legislative authority in India that Municipal taxes may be legally and
properly payable by the Secretary of State for India in Council. We have not been referred to a single local or Municipal Act in which Government
or the Secretary of State is expressly named as liable to taxation. If such nihility did not exist or if it depended, as the Advocate General- contends
that it does, on the Government being expressly named in the statute, this Municipal Taxation Act of 1881 would have had no scope for
application and should have been unnecessary. The Legislature has treated sum taxation as legal and proper, but has provided a special machinery
for its assessment and levy, in order to guard against abuses or inconveniences that might arise if the machinery were that provided by the Acts as
suitable in the case of private persons. A similar policy is embodied in the Indian Tolls (Army) Act II of 1901, and the Government Buildings Act
IV of 1899. It may be noted in passing that in the former Act, Octroi or Town duties are especially excluded from the definition of ''tolls'' from the
payment of which the Act exempts military persons and certain military property and certain property of His Majesty. It is in my opinion,
impossible to hold that these Acts and similar exemptions in other Acts were made by the Legislature in ignorance of the prerogative rights of the
Crown or merely ''ex majore cautela and without any legal necessity. The whole history and tenor of Indian legislation is opposed to the contention,
it may be taken, then, that the local Legislature has power to impose taxation for purposes that make for the peace and good government of the
Presidency, and that such taxation is not invalid by reason only that it is payable by the Secretary of State for India in Council. The question, then,
after all comes to this, whether on the true construction of the City of Madras Municipal Act I of 1884, there is clearly manifest an intention to
make Section 341 applicable to wood imported by Government, and the intention is to be gathered, according to the ordinary rules of
construction, from the general scope and tenor of the Act, and of the legislation in pari materia of which it forms a part. I am of opinion that the
question must be answered in the affirmative. We find that in the City of Madras Municipal Act (V of 1878) which was in force before the Act of
1884, there were provisions for levying taxes on buildings and lands, on professions and salaries and on vehicles and animals, and for levying tolls
on vehicles and animals entering Municipal limits. Government buildings and lands were not exempted from taxation, though the Madras Harbour
Works were exempted, as were also places used for public worship and burial grounds. Besides the general tax on buildings and lands, there were
special taxes livable on buildings and lands, as a water-rate and as a lighting rate. In regard to neither was the Government generally exempt, but
buildings and land in Fort Saint George, which all belong to Government, were exempt from the lighting tax, though Sot from the water tax. This is
notable as showing that the Legislature had in mind the question of exemption of Government buildings and lands, and expressly gave that
exemption in part, though not generally. Military officers were not exempt from the tax on salaries, but gun carriages, ordnance carts and wagons,
cavalry horses and vehicles and animals belonging to Government were exempt from the vehicle and animal taxes, and it was provided that no tolls
should be paid C(for the passage of troops, Government stores, Government vehicles or animals or any other Government property Government
was also exempt from the provisions of the sections which required persons exercising certain dangerous and offensive trades, keeping stables
cart-stands, etc., and places for the storage and sale of wood and other inflammable substances, to take, out licenses and pay fees in respect
thereof.
A Section (328) corresponding to Section 338 of the present City of Madras Municipal Act, existed in the Act of 1878, but it had no section
corresponding to Section 341. Strong objections, to a great extent sentimental, were taken by Military Officers to the payment of a profession tax
under the Towns Improvements Act which was then in force in the mofussil Municipalities, and this together with certain abuses which had
occurred in regard to the levy of the tax on Government buildings and lands, led the Legislature to pass Act XI of 1881, the Municipal Taxation
Act already referred to, by which the Governor-General in Council was empowered to prohibit the levy of any specified Municipal tax payable (1)
by Military Officers, (2) by the Secretary of State for India in Council, on certain terms as to compensating the Municipal authorities. It was after
this Act was passed that the present City of Madras Municipal Act, 1884, was passed, and in it we find Section 341 introduced for the first time.
No, exemption in favour of 3 Government is made in this section. The effect of this section is to impose an Octroi or Town duty on timber and
firewood brought into the City. Six years later a similar duty was imposed by, Act 1 of 1890, (Madras) on all tobacco brought into the City, and
again we find no exemption in favour of Government. Looking to the precise manner in which the Government is exempted from payment of
certain taxes and fees and to the absence of any such exemption in the case of other taxes and fees, it seems to me that the clear intention of the
Legislature was to give exemption in the cases specified, and not to give exemptions in cases not specified. The omission of any exemption in the
case of Town duties appears to be intelligible enough, and to be in accordance with the general policy of the Supreme Indian Legislature as
indicated by the Municipal Taxation Act, 1881. Under this Act, Government has, the power to prohibit the levy pf the tax if it sees fit to do so; but
to hold that the Legislature when enacting the City of Madras Municipal Act, 1884, did not mean to make Section 341 applicable to Government,
would, in my judgment, be opposed to the manifest intention of the Act, when construed in its natural sense according to accepted canons of
interpretation applicable to Indian statutes, and with reference to the course of Legislation'' in India and the Acts which have from time to time been
passed in pari materia.
In this view the conviction was right and the Revision Petition must be dismissed.
Bhashyam Aiyangar, J.
The petitioner is the Superintendent of the Gun Carriage Factory at Madras, and in his official capacity caused to be brought within the City of
Madras on the 7th November'' 1900 and the 4th February 1901, 21 logs of timber of the aggregate weight of 14� tons without obtaining a
license from the Municipality of Madras, on payment of the fee prescribed by Section 341 of Madras Act I of 1884. It is admitted that the timber
so brought was the property of Government and was required for the purpose of building gun carriages for His Majesty''s forces, and that if the
same were liable to duty u/s 341, such duty will have to be paid out of the Public Indian Revenue.
The petitioner, having been convicted and fined by the Chief Presidency Magistrate for having brought the timber into the City without
obtaining a license from the Municipality of Madras, this Revision Petition has been preferred for the purpose of determining whether the license
prescribed by Section 341 is necessary in the case of timber brought into the City of Madras by Government. The legality of the conviction of the
petitioner is questioned solely on the ground that ho was not bound to obtain the license prescribed by Section 341, and it is the only question that
has been argued. The learned Advocate-General, who appears for the petitioner bases his contention on three grounds:
i. that Section 341 is merely ancillary to Section 338 and that the exemption in favour of Government in the latter is therefore equally applicable to
the former;
ii. that the exemption from payment of tolls made by Section 174 in favour of Government is applicable to the license fee prescribed by Section
341, such fee amounting in fact to a toll; and
iii. that the Crown is not bound by the taxing provision of a statute unless there be express words to bind it or unless the inference that it was
intended to bind the Crown is manifest and irresistible, whereas on the true construction of Madras Act I of 1884 no such intention is any where to
be found.
The first two grounds are clearly untenable and present no difficulty. Section 338 enjoins that yearly licenses should be obtained in respect of
every place set apart for the sale or storage (for other than private use) of timber or firewood, etc., by the occupier of such place. The fee and the
rate of fee for the issue of such licenses are to be fixed by the Commissioners with the sanction of the Governor-in-Council u/s 420, and, ""the
President may as he in his discretion and under such restrictions and regulations as he thinks fit, grant or refuse such license."" The proviso to
Section 338, exempts from the operation of the section any such place in the occupation or under the control of Government. This Section (338)
was practically in force since 1867. But Section 341 was enacted only in 1884 and is in no sense ancillary to, or dependant upon, Section 338. It
really imposes Octroi duties or Town duties on the importation of timber or firewood, the duty being regulated with reference to its weight. The
importer is required, on payment of the duty, to obtain a license specifying the place and conditions of storing of the timber or firewood and the
President has no discretion to refuse such license. The specification, in the license, of the intended place of storing will enable, the Municipal
Commissioners, to find out, if the occupier of such place of storage, if it be not in the occupation or under the control of Government, has obtained
the license prescribed by Section 338. The primary object of Section 341 is the levy of import duty and that is entirely independent of Section 333.
Incidentally, no doubt, provision is made in Section 341 in view to check the evasion of Section 338 in cases to which; that section is applicable.
Timber or firewood imported by Government may or may not be stored in a place in the occupation or under the control of Government. It is
impossible to connect Section 341 and., Section 338 in such a way as to justify the engrafting on the former of the exemption in favour of
Government contained in the latter.
The second ground urged proceeds upon the assumptions that the scope of Section 174 is much wider than it really is and that the duty livable
u/s 341 can be regarded as a ''Toll,'' A reference to Section 98, particularly to Clause 9, shows that tolls leviable under the Act are only in respect
of vehicles and animals entering the Municipal limits. Such tolls are dealt with in Sections 170-178 under the heading of-'' tolls on animals and
vehicles entering the Municipal limits'' and the rates of tolls and the vehicles and animals in respect of which tolls are leviable are specified in
Schedule D. A reference to the schedule shows that the rate of tolls varies according as the animals or vehicles are laden or not laden. So far as
Government is concerned Section 174 exempts Government vehicles or animals, Government stores or any other Government property. The
exemption can only relate to tolls leviable as such u/s 170 of the Act, and they are specified in Schedule D. I do not advert to the amendment of
that section by the Indian Tolls (Army) Act (II of 1901) as the amendment does not affect the question under consideration. The duty leviable u/s
341 is not for the passage of timber or firewood, within the meaning of Section 174, but for importing the same into the City, The exemption in
favour of Government in Section 174, can only apply to duties leviable under the Act as ''tolls'' (Section 170) and cannot be extended to Section
341 even if the duty prescribed by the latter can be regarded as a ''toll'' in its general sense. In my opinion, the duty imposed by Section 341 on
timber or firewood imported into the City of Madras is really an Octroi duty and that it is such is made perfectly clear by the amendment of that
section by Madras Act II of 1892 providing for drawback upon timber or firewood exported from Madras, in respect of which import duty has
been paid.
I do not think that ''toll'' even in its wide acceptation can comprise such a tax. ''Toll'' is defined in the Century Dictionary as ca tax paid or duty
imposed for some use or privilege or other reasonable consideration'' and this definition, I think, brings out best the meaning of the word ''toll'' from
a legal point of view. The learned Advocate-General relying upon the definition of ''toll given in Sheppard''s Abridgment urges that the term will
include Octroi duties or Town duties on the import of goods. That definition is quoted in the argument of Counsel in Westover v. Perkins 2 Ellis
and Ellis, pp. 61-62 and I am by no means satisfied that an Octroi duty payable by the owner of goods--and not by the buyer as stated in
Sheppard''s definition--falls within the definition. It seems to me that the definition quoted above from the Century Dictionary succinctly expresses
the idea conveyed by the definition in Sheppard''s Abridgment. I may here refer to the definition of '' ''tolls'' given in the Indian Tolls (Army) Act II
of 1901, Section 2(h) which, while more comprehensive than ''toll'' referred to as such in Madras Act 1 of 1884, expressly excludes customs-
duties and Octroi-duties or Town-duties on the import of goods.
The learned Advocate-General bases his contention chiefly on the third ground. The substance of his argument is that the Crown is not bound
to pay the duty imposed by Section 341 because Government is neither expressly nor by necessary implication included within the purview of that
section and that the express exemption of the Crown from taxes imposed under several other sections of the Act cannot legitimately lead to the
necessary implication that the Crown is liable to pay taxes imposed by Section 341 and certain other sections in regard to which there is no similar
exemption. The question was argued on both sides with reference to certain English and Indian decisions, in some of which it was held, that the
Crown was not bound because it was not expressly joined, and in others, it was bound though not expressly named. The extent to which decisions
in English Courts, passed with reference to statutes of Parliament and the prerogatives of the Crown under the English Law, will be a safe guide to
the interpretation of Acts passed by the Indian Legislature and the prerogatives of the Crown in India, will depend very much upon the policy and
course of Indian Legislation and the powers of the Indian Legislature--especially of the Provincial Legislatures, whose competence to affect by
legislation the prerogatives of the Crown is seriously doubted by Sir Courtenay Ilbert in his recent work on the ""Government of India"" (at pp. 228
and 226).
It is unnecessary to advert to the powers of the Indian legislature and the course of Indian legislation prior to 3 and 4 William (1833) 4 C. 85
which vested the legislative power of the Indian Government exclusively in the Governor-General in Council. Section 43 of that Act defined the
powers of the Indian Legislature as follows:
And be it enacted that the said Governor-General in Council shall have power to make laws and regulations for repealing, amending or altering any
laws or regulations whatever, now in force, or hereafter to be in force in the said territories or any part thereof arid to make laws and regulations
for all persons, whether British or native, foreigners or others and for all Courts of Justice whether established by His Majesty''s charters or
otherwise and the jurisdictions thereof, and for all places and things whatsoever within and throughout the whole and every part of the said
territories and for all servants of the said company within the dominion of princes and states in alliance with the said company; save and except that
the said Governor General in Council shall not have the power of making any laws or regulations which shall in any way repeal, vary, suspend or
affect any of the provisions of this Act or any of the provisions of the Acts, for punishing mutiny and desertion of Officers and Soldiers whether in
the service of His Majesty or of the said company, or any provisions of any Act hereafter to be passed in and wise affecting the said company or
the said territories or the inhabitants thereof or any laws or regulations which shall in any way affect any prerogative of the Crown, or the authority
of Parliament or the constitution or rights of the said company or any pan of the unwritten laws or constitution of the United Kingdom of Great
Britain and Ireland whereon may depend in any degree the allegiance of any person to the Crown of the United Kingdom or the sovereignty or
dominion of the said Crown over any part of the said territories."" By Section 59 of the same statute it was provided that the Provincial Governors
in Council were no longer to have the power of making laws except in case of urgent necessity and then only until the decision of the Governor-
General of India in Council be signified thereon. It will be noticed that by Section 43 the Governor-General in Council was prohibited from making
any law affecting the prerogative of the Crown. This provision, however, was modified by 16 and 17 Vic: C. 95 Section 26, which provided as
follows: - ""No law or regulation made by the Governor-General in Council shall be invalid by reason only that the same affects any prerogative of
the Crown, provided such law or regulation shall have received the previous sanction of the Crown signified under the Royal Sign Manual of Her
Majesty, countersigned by the President of the Board of Commissioners for the affairs of India.
When the Indian Councils Act, 1861 (24 and 25 Vic. C. 67) was passed, Section 43 of 3 and 4 William IV C. 85 and Section 26 of 16 and
17 Vic, C. 95 were, among others, repealed and the legislative powers of the Provincial Governors in Council were restored. Section 22 of the
Indian ''Councils Act defines the legislative powers of the Governor-General in Council, and it substantially corresponds to Section 43 of 3 and 4
William IV C. 85, except in one important particular, i.e., that the prerogative of the Crown is not excepted from the Legislative authority of the
Governor-General in Council save, of course, in so far as the matters specially excepted may comprise certain prerogatives of the Crown. Section
24 expressly provides that a law made by the Governor-General in Council shall not be deemed invalid by reason only that it affects the
prerogatives of the Crown. This is simply a reproduction of the first part of Section 26 of 16 and 17 Vic. C. 95 which section was repealed. This
section is really superfluous, and can be regarded as inserted only ''ex majore cautela,'' as an important change was made in the law by subjecting
the prerogative of the Crown to the legislative authority of the Governor General in Council, except in so far as such prerogative may relate to the
allegiance of any person to the Crown or to the sovereignty or dominion of the Crown over any part of the Indian territories--which are specially
excepted by the concluding paragraph of Section 22. Section 42 empowers the Provincial Governors in Council to make laws and regulations ''for
the peace and good government of the Provinces'' subject to the condition that no Act of Parliament then in force or thereafter to be in force in the
Provinces is to be affected by any provincial legislation. It will be noted that the matters which may be dealt with by the Provincial Legislatures are
not specifically enumerated as in the case of the Governor-General Council, nor are the matters comprised in the last paragraph of Section 22,
which are excepted from the legislative authority of the Governor-General in Council, specially excepted in Section 42 from that of the Provincial
Governors in Council. It seems probable that it was considered unnecessary that the exceptions covered, by the last paragraph of Section 22,
should be engrafted on Section 42 in as much as Section 42 empowers Provincial Governors in Council to make laws only for the '' peace and
good government'' of the Province, and that such power cannot possibly extend to any of the matters comprised in the last paragraph of Section
Whether this is so or not, it is obvious that matters excepted from the legislative authority of the Governor-General in Council cannot be within
the powers of subordinate Provincial Legislatures. It is true, as pointed out by Sir C. Ilbert that there is no section, with respect to the laws passed
by Provincial Legislatures corresponding to Section 24 which relates only to laws passed by the Governor-General in Council affecting the
prerogative of the Crown. Does this warrant the inference drawn by Sir Courtenay Ilbert that the Provincial Legislatures do not possess the power
which the Governor-General in Council has of making laws which may affect the prerogative of the Crown ? If the power of the Governor-General
in Council, to pass such a law was conferred by Section 24, no doubt the inference would be irresistible, that in the absence of such a section the
Provincial Legislature can pass no such law. The power of the Governor-General in Council to pass a law affecting the prerogative of the Crown is
derived not from Section 24 but from Section 22 which unlike the corresponding Section 43 of 3 and 4 William IV. C. 85, does not except the
prerogative of the Crown generally from the legislative jurisdiction of the Governor-General in Council. Section 42 donning the powers of the
Provincial Legislatures does not except the prerogative of the Crown generally from their jurisdiction and it can hardly be contended that there
would be no need or occasion to affect any prerogative of the Crown in making effective laws and regulations for the ''peace and good
government'' of the province.
The phrase ''peace, order and good government'' is used in several Acts of Parliament conferring legislative powers on Colonial Assemblies.
The 91st section of the British North America Act, 1867, provides that it shall be lawful for the Queen, with the advice and consent of the Senate
and the House of Commons, to make laws for the ''peace, order and good government'' of Canada, in relation to all matters not coming within the
class of subjects by this Act assigned exclusively to the Legislatures of the Provinces. In Russell v. The Queen L.R. 7 A.C. 829 a question was
raised as to the validity of the Canada Temperance Act, 1878, passed by the Dominion Parliament and it was held by the Privy Council that the
Act did not come within one of the classes of subjects assigned to the Provincial Legislatures and was intra vires of the Dominion Parliament being
of a nature which fell within the general authority of Parliament to make laws for the order and good government of Canada. In Ashbury v. Ellis
(1893) A.C. 339 a contention was raised that the Act of Parliament 15 and 16 Vic. C. 72 which gave to the Legislature of New Zealand power
''to make laws for the peace, order ant good government of New Zealand provided that no such law be repugnant to the laws of England did not
give power to subject to its judicial tribunals persons who neither by themselves nor by their agents were present in the colony. It was argued that
though the law was not repugnant to the laws of England, yet the moment an attempt was made by the Legislature of New Zealand to affect
persons out of New Zealand, that moment the local limitations of the jurisdiction were exceeded and the attempt was nugatory. Their Lordships of
the Privy Council overruled the objection, it being in their opinion clear that it is for the peace, order and good government of New Zealand that
the Courts in New Zealand should in any case of contracts made or to be performed in New Zealand have the power of judging whether they will
or will not proceed in the absence of the defendant"" and that whether a foreign Court will or will not enforce a judgment passed 1 in the absence of
the defendant under such circumstances, it is '' sufficient for trying ""the validity of New Zealand laws in New Zealand to say that the peace, order
and good government of New Zealand are promoted by the enforcement of the decrees of their own Courts in New Zealand."" Though no question
of prerogative being affected by the Colonial Legislature was involved in either of the above cases, they afford illustrations of the liberal
interpretation which has been placed by the Judicial Committee of the Privy Council on the expression ""peace, order and good government.
In Cushing v. Dupuy L.R. 5 A. C. 409 the question arose as to whether the Dominion Enactment''40 Vic. C. 41 Section 28, amending the
Canadian Insolvency Act providing that the judgment of the Court of Appeal in matters of insolvency should be ''final'' could'' and did derogate
from the prerogative of the Crown to allow appeals as an act of grace. Their Lordships of the Privy Council thought it unnecessary to consider and
decide whether the Parliament of Canada had power to interfere, by legislation, with the royal prerogative, as in their opinion the 28th section of
the Insolvency Act did not profess to touch it and that upon the general principle that the rights of the Crown can be taken, away only by express
words, the power of the Queen to allow appeals as an act of grace was not affected by an enactment. The attention of the Privy Council was
drawn to an Act of the Parliament of Canada 31 Vic. C. 1, enacting rules of interpretation to be applied to all future legislation, when not
inconsistent with the Act or the context, which, among others, provides that no provision or enactment in any Act shall affect in any manner or way
whatsoever, the rights of Her Majesty, her heirs, or successors, unless it is expressly stated therein that Her Majesty shall be bound thereby.
An earlier decision of the Privy Council to the contrary in Cuvillier v. Aylwin 2 P.C. 72 which was followed in R. v. Eduljee Byramjee 3
M.I.A. 468 and in R. v. Alloo Paroo 3. M.I.A. 496 was virtually, if not expressly, overruled on the ground that the decision in that case ""if not
expressly overruled has not been followed and later decisions are opposed to it."" A similar question arose before the Privy Council in 1856 in an
appeal from the Sudr Dewanny Adaulat of Bombay, in Modee Khaikooserow Hormusjee v. Cooverbhall 6 M.I.A. 448 as to the operation of Act
III of 1843 in barring the prerogative of the Crown from admitting appeals against an order rejecting a special appeal to the Sudr Dewanny
Adaulat which order was declared ''final'' by that Act. Their Lordships of the Privy Council held that the Act would have no such operation as the
Indian Legislature had no power to limit or affect the prerogative of the Crown without its previous sanction and it did not appear that the said Act
was passed after obtaining such sanction. It was for the same, reason that Act VI of 1856 (an Act for granting exclusive privileges to Inventors]
passed by the Legislative Council of India was disallowed by the Court of Directors on the advice of Her Majesty''s law officers (Vide Preamble
to Act XV of 1859) that the exclusive privilege of the Crown to grant patents for inventions was affected by the Act. The Act VI of 1856 was
accordingly repealed by Act IX of 1857, but was virtually re-enacted as Act XV of 1859 after having obtained previously the sanction of Her
Majesty as required by Section 26 of 16 and 17 Vic, C. 95.
The Indian Councils Act, however, removed such limitation of the powers of the Indian Legislature., In that Act itself there is internal evidence
that there is no such limitation even in respect of the powers of the Provincial Legislatures, for Section 43 contemplates provincial legislation, with
the previous sanction of the Governor-General, for regulating coins and patents or affecting the relations of Government with foreign princes or
states. A reference to Sections 19 and 38 will show that both in the Governor-Generals Council and in the Provincial Councils, bills may be
introduced, with the previous sanction of the Governor-General or Governor as the case may be, affecting the Public Revenue of India or imposing
any charge on such Revenue. I draw attention to this special provision in connection with certain English decisions to be referred to hereafter in
which it was held that although there is no special exemption of the King, yet he is exempted by virtue of his prerogative from the operation of
every Act imposing a duty or a tax.
It has now been definitely decided by the Judicial Committee of the Privy Council in more cases than one, both from India and the Colonies,
that an Indian or Colonial Legislature is not a delegate of the Imperial Legislature, that it is restricted in the area '' of its powers, but within that area
it is unrestricted. In R. v. Burah L.R. 3 A.C. 889 their Lordships of the Privy Council, in overruling a Pull Bench decision of the Calcutta High
Court, that Section 9 of Act XXIII of 1869 was ultra vires of the Indian Legislature, laid down the general law in these terms:--""The Indian
Legislature has powers expressly limited by the Act of the Imperial Parliament which created it and it can of course do nothing beyond the limits
which circumscribe those powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has,
and was intended to have, plenary powers of legislation, as large and of the same nature as those of Parliament itself."" The same doctrine was laid
down in a later case, Hodge v. the Queen L.R. 9 A.C. 117 by their Lordships of the Privy Council in the following terms--"" It appears to their
Lordships, however, that the objections thus raised by the appellant is founded on an entire misapprehension of the true character and position of
Provincial Legislatures. They are in no sense delegates of, or acting under mandates from, the Imperial Parliament. When the British North
American Act enacted that there should be a Legislature for Ontario and that its legislative assembly should have exclusive authority to make laws
for the Province and for Provincial purposes, in relation to the matters enumerated in Section 92, it conferred powers not in any sense to be
exercised by delegation from, or as agent of, the Imperial Parliament but authority, as plenary and as ample, within the limits, prescribed by Section
92, as the Imperial Parliament in the plenitude of its power possessed or could bestow. Within these limits of subjects and area, the local
Legislature is supreme and has the same authority as the Imperial Parliament."" This principle was approved of and followed in an appeal from N.
South Wales in Powell v. Apollo Candle Co. L.R. 10 A.C. 282. The same doctrine virtually finds legislative declaration in Section 45 of 3 and 4
William IV, C. 85.
In my opinion, therefore, there can be no reasonable doubt as to the competence of Provincial Legislatures to pass laws within the area of their
powers--which is narrower than the area of the powers of the Governor-General in Council--though such laws may affect the prerogative of the
Crown. If it were otherwise, the powers of the Provincial Legislature to make laws for the peace, order and good government of the Province will
be unduly hampered. There is no small degree of urtcertainty as to the extent of the prerogatives of the Crown in India and the validity of no few
enactments of the Provincial Legislature will be called into question in Courts on the ground that they directly or indirectly affect the royal
prerogative.
But in construing the general words of an enactment it may be '' important to consider whether any prerogative of the Crown will be affected
by a literal construction and for the purposes of this case, it will be necessary to consider whether exemption from statutory duties and taxes is in
the real sense of the expression, a ''Crown prerogative.'' In the Mayor of Lyons v. East India Co. 1 M. I.A. 175 the principle of law bearing upon
the prerogatives of the Crown in ''India was indicated by Lord Brougham in the following terms :--"" It is agreed on all hands that a foreign
settlement obtained in an inhabited country by conquest or by cession from another power stands on a different relation to the present question
from a settlement made by colonizing, i.e., peopling an uninhabited country. In the latter case, it is said that the subjects of the Crown carry with
them the laws of England, there being of course no lex loci. In the former case it is allowed that the law of the country continues until the Crown or
the Legislature changes it Vide also Cooper v. Stuart L.R. 14 A.C. 286. Then, is Calcutta to be considered as an uninhabited district settled by
English subjects or as an inhabited district obtained by conquest or cession? If it falls within the latter description, has the English law incapacitating
aliens ever been introduced? If that law has never been introduced, has there been such an introduction of English law generally that those parts
which have been introduced draw along with them the law touching aliens? An answer to these three questions * * * * will include a consideration
of the only reason for the proposition upon which the judgment below is mainly rested, viz., that the royal prerogative extends necessarily and
immediately to all Requisitions however made and that the forfeiture of aliens'' real estate is parcel of that prerogative."" In considering these three
questions, their Lordships after'' adverting to the contention that there is something in the law incapacitating aliens, which makes it, so to speak, of
necessary application wheresoever the sovereignty of the Crown is established, as if it were inherent in the nature of the sovereign power, and
pointing out with reference to the laws of various countries, that there is no warrant in the nature of the thing, J for the position that this right is an
incident of sovereignty, observe as follows: - ""Besides, if reference be made to the prerogative of the English Crown, that prerogative in other
particulars is of as high a nature, being given for the same purpose of protecting the state and it is not contended that those branches are extended
to Bengal. Mines of precious metals, treasure trove, royal fish are all vested in the Crown for the purpose of maintaining its power and enabling it
to defend the State. They are not enjoyed by the sovereign in all or even in most countries and no one has said that they extend to the East Indian
possessions of the British Crown."" In the Advocate-General of Bengal v. Ranee Surnamayee Dasi 9 M.I.A. 391 Lord Kingsdown, after adverting
to the introduction and establishment of the English Criminal Law in India and its application to Natives as well as Europeans with reference to the
prerogatives of the Crown (pp. 428-30), to forfeiture of the personal property of persons committing suicide in Calcutta, arrived at the conclusion
that the English law '' felo de se'' and forfeiture of goods and chattels did not extend to a Native Hindu though a . British subject, committing suicide
at Calcutta. It is unnecessary to refer to various other instances which will readily occur to one''s mind, which according to the Common law of
England are comprised in the Royal Prerogative, but in the very nature of things are either inapplicable to or have not been introduced into India.
On the other hand, it is probably true that the Crown has, according to the Common law of India, certain prerogatives which it may exercise in
India through not in England, notably the prerogative of imposing by an executive act assessment on lands and varying the same from time to time.
The prerogatives of the Crown in India--a country in which the title of the British Crown is of a very mixed character--may vary in different
provinces, as also in the Presidency towns as distinguished from the Mofussil. The determination, with anything like legal precision, of all the
prerogatives of the British Crown in India is by no means an easy task.
I shall now proceed to consider how far the canon of interpretation commonly stated in the form ''that the Crown is not bound by a statute
unless named in it'' can be safely applied to Acts of the Indian Legislature and in particular to taxing Acts. The various cases in the English reports,
in which this canon of interpretation was considered and in some of which it was held that the Crown was not bound because it was not expressly
named or included by necessary implication, and others in which the Crown was held bound though not so named or included will be found
collected in Maxwell''s ""Interpretation of Statutes"" (3rd edition) pp. 186-193 and Hardcastie''s ''Construction of Statutory Law'' (2nd edition) pp.
401-421. It may not be easy to reconcile all the cases or to deduce therefrom certain definite rules of interpretation. The leading canon seems to
be that laid down by Lord Coke in the Magdalene College case, which the Master of the Bolls states as follows in Ex parte Post Master-General,
in re Bonham L.R. 10 Ch. D. 601: - ""Where an Act of Parliament is made for the public good, the advancement of religion and justice, and to
prevent injury and wrong, the King shall be bound by such Act though not particularly named therein; but where a statute is general and any
prerogative, right, title or interest is thereby divested or taken from the King, in such case the King shall not be bound unless the statute is made by
express terms to. extend to him."" The Master of the Rolls after observing that that is the general rule and that the point came before the Court of
Exchequer in Attorney-General v. Donaldson 10 M. &W. 117 and there Baron Alderson in delivering the judgment of the Court said '' It is a well
established rule, generally speaking, in the construction of Acts of Parliament that the King is not included unless there be words to that effect held
that although the Crown was named in some of the sections of the Bankruptcy Act, 1869, it was not bound, by the other provisions of the Act so
as to deprive it of its undoubted prerogative of ''Extent.'' This is one of the cases which the learned Advocate-General relies upon. A reference to
the judgment of the Master of the Bolls will show that the decision is based not only upon the general canon of interpretation, but also upon the
positive conclusion he arrived at from the wording of the sections, that the Legislature intended not to deprive the Crown of its undoubted
prerogative.
Adverting to the first portion of Lord Coke''s rule, Maxwell (at p. 193) points out that it would probably be more accurate to say that the
Crown is not excluded from the operation of a statute where neither its prerogative rights nor property are m question. As regards the latter portion
of the rule, judicial decisions have clearly established that the Crown is sufficiently named in a statute, within the meaning of the rule, when the
intention of the Legislature to include it is clear and manifest. The canon of interpretation simply amounts to this, that it is to be presumed that the
Legislature does not intend to deprive the Crown of any prerogative right, or property unless it expresses its intention to do so in explicit terms or
makes the inference irresistible. V Such a rule of interpretation is not peculiar to the Crown. It is analogous to and founded upon the principle on
which for instance, the following canons of interpretation are equally applicable to the construction of statutes--viz : i, it is a sound rule to construe a
statute in conformity with the Common Law rather than against it, except where and so far as the statute is plainly intended to alter the course of
the Common Law. R. v. Morris L.R. C.R. 95 ii, it is a maxim that a statute made in the affirmative, without any negative, expressed or implied,
Hoes not take away the Common Law (Coke), iii, ''where there are general words in a later Act capable of reasonable and sensible application,
without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered or
derogated from merely by force of such general words without any indication of a particular intention to do so''--''generalia specialibus non
derogant'' Seward v. Vera Cruz L.R. 10 A.C. 68 iv, the general rule undoubtedly is that the jurisdiction of superior Courts is not taken away
except by express words or necessary implication. Albon v. Pyke 4 M. & Gr. 424. These compendious canons of interpretation which are in the
nature of maxims can only be regarded as mere guides to the interpretation of statutes and ought not to be applied as if they were statutory clauses,
enacted with all the precision and provisos of an Interpretation Act.
In Theberge v. Laudry L.R. 2 A.C 102 the Lord Chancellor in an appeal from the Superior Court of Quebec in Canada, while holding in that
particular case that the Crown had not the prerogative of admitting an appeal from a judgment of the Superior Court under the "" Quebec
Controverted Elections Act, 1875 ,"" affirmed the general principle of construction in the following words: - ""Their Lordships wish to state distinctly
that they do not imply any doubt whatever as to the general principle that the prerogative of the Crown cannot be taken away except by express
words; and that they would be prepared to uphold, as often has been held before, that in any case where the prerogative of the Crown has existed,
precise words must be shown to take away that prerogative.
This emphatic statement of the rule being founded upon general principles of construction is undoubtedly applicable as much to Indian
enactments as to Colonial or Imperial statutes; and if general words of an Indian enactment are such as according to their literal interpretation
would divest the Crown of, or take away from it, any prerogative, right, title, or interest, they would certainly have to be construed in a limited
sense so as not to produce such a result which, it may be reasonable to infer, could not have been in the contemplation of the Legislature, in the
absence of a clear indication of an intention to the contrary. But it is unduly stretching the language of the rule, to bring within its scope general
words of a statute imposing a tax and claim exemption for the Crown on the ground that the Crown is divested of any prerogative, right, title or
interest, by giving full effect to the general words.
So far as exemption from any tax imposed by a statute is concerned, the question for determination is whether according to the right
construction of the statute, the Crown is or is not made liable to pay the tax. In the former case, it is bound to pay; in the latter, it is not; in neither
case is there any question of prerogative. The rule of construction above adverted to cannot itself be regarded as a prerogative of the Crown. A
statute imposing a tax upon Crown property--which tax will be payable out of the public revenue, cannot reasonably be regarded as divesting the
Crown of any right, title or interest, within the meaning of the above rules--especially when such tax is levied for purposes connected with the good
government of the country, for which purpose, such revenues are, in India vested in trust in the Crown, by Section 39 of 21 and 22. Vic. Ch. 106.
In the English reports, the above canon of interpretation has often been referred to, as in Attorney-General v. Donaldson, as a well-established
rule, according to which, generally speaking, the Crown is not included in a statute unless there be words to that effect'', and the exemption of the
Crown from payment of rates imposed"" by statutes is referred to as an implied prerogative right of the Crown. The state of the English Law on this
question was fully reviewed and considered by the House of Lords in Coomber v. Justices of Berks L.R. 9 A. C. 61. I cannot do better than
quote the following extracts from the judgments of Lords Blackburn, Watson and Bramwell in that case. Lord Blackburn (pp. 65-66): - ""In Rex v.
Cook 3 T.R 519 the general principle as to the construction of statutes imposing charges as containing an exemption of the Crown was laid down.
That Vas a case raising the question whether the duty on post horses wag eligible in respect of post horses carrying an express from the Governor
of Portsmouth to one of His Majesty''s Principal Secretaries of State, which was not on any private business whatever, but wholly related to the
public concern of this kingdom. It was held that it was not eligible. Lord Kenyon, delivering the judgment of the Court, says ''now, although there is
no special exemption of the King in this Act of Parliament 25 Geo. 3. C. 51, yet I am of opinion that he is -exempted by virtue of his prerogative in
the same manner as he is virtually exempted from the 43rd Eliz. and every other Act imposing a duty or tax on the subjects.'' There may well be
expressions in an Act imposing a duty or tax on the subjects such as to show that the intention of the Legislature was to impose the duty on some
property belonging to the Crown. But I do not think it made out that there is any such, intention shown in the Income Tax Act. Reliance was
placed in the argument on the general words of the rule ''which rule shall be construed to extend to all lands, tenements and here determents or
heritages capable of actual occupation of whatever nature and of whatever purpose occupied or enjoyed.'' But I do not think this can be construed
as taking away the exemption by virtue of the prerogative, of property actually occupied or enjoyed by the Crown. I should rather infer that those
was framed the Act thought that unless expressly named, such an occupation would have been exempted. There had been a considerable number
of decisions on the poor-rate, which laid down a much wider principle than that laid down in Rev v. Cook, namely, that whenever property was
occupied for public purposes ''it was exempted from poor-rate. In the Mersey Docks v. Cameron 11 H.L.C. 443 it was decided by this House
that the exemption to such an extent could not be supported. But whilst this was decided, it was not said that all the cases which established
exemption on the ground indicated in Rex v. Cook were wrong. The passage at pp. 464, 465, in the opinion of the majority of the judges, which I
delivered and which ha3 been so often quoted, shows that those who joined in that opinion thought that many of them, such as those deciding that
buildings occupied by the Post Office, the Horse Guards, or the Admiralty were exempt, were obviously right and that those which decided that
buildings occupied for Police and for the Assize Courts were exempt, though not so obviously right, were capable of being supported on a ground
that did not touch the case then before the House. I do not think that opinion can be properly cited as an authority that those cases were rightly
decided, but certainly their authority was not weakened by anything said in that opinion. The House in Mersey Docks v. Cameron, did not decide
that those cases to which I have referred were rightly decided ; but the language of the Lord Chancellor (Lord Westbury) at p. 505, seems to me
adds to their authority. He there says, that the '' public purposes '' to make an exemption, ''must be such as are required and created by the
Government of the country and are, therefore, to be deemed part of the use and service of the Crown'' ; and in Greig v. University of Edinburgh
L.R. 1 H.L. 354 he more clearly shows what was his view, by using this language : ''property occupied by servants of the Crown and (according
to the theory of the constitution) property occupied for the purposes of the administration of the Government of the country became exempt from
liability to the poor-rate.'' Lord Cranworth 11 H.L.C. 508 by using the words '' more or less sound'' seems to me to guard against being supposed
to decide that those cases which proceeded on this ground were all right in deciding that the purposes were those of the public Government, to
such an extent as to bring them within the principle of Rex v. Cook, but he certainly does not at all impeach them. The Scotch cases on the Scotch
poor law proceed on a similar ground. It has been pointed out that in, the Scottish poor law, half the poor-rate is imposed on the owner in respect
of property, and so far the case is more closely analogous to that of the Income Tax; but, I think, that whether the rate is eligible in respect of
property or in respect of occupation, the ground of exemption must be the same, viz , as said by the Lord Chancellor (Cairns) in Greig v.
University of Edinburgh, ''the Crown not being named in the English or Scotch statutes on the subject of assessment, and not being bound by
statutes when not expressly named, any property which is in the occupation of the Crown or'' of persons using it exclusively in or for the service of
the Crown is not rateable to the relief of the poor'' (pp. 67 69). I do not say that the Assize Courts maintained by the county for the administration
of the Queen''s justice in the Queen''s Courts are quite so clearly occupied by the servants of the Crown, as those Courts which are maintained by
the Woods and Forests, out of the general revenue of the country. Nor do I say that the Police Station maintained by the county for the
maintenance of the Police is quite so clearly occupied by servants of the Crown as a barrack maintained for soldiers and paid for out of the general
revenues of the country. But I think there is great reason for saying that both are maintained for the purposes of the administration or those
purposes of the Government- which are, according to the theory of the constitution, administered by the Sovereign. If it was a new point whether
buildings occupied for the purpose of County Courts and County Police were liable to be rated for the poor-rate, I think, there would be
considerable force in the argument that the county occupying property in order to fulfil a duty to the Crown which it is required to fulfil at its own
expense, is not