Raj Kumar Vs. Prescribed Authority, Moradabad and ors.

.....fee in face of default. if the state is to be exempt from the application of s. 541(1)(b) it would lead to the anomaly that the state is liable to pay the licence fee but the municipality will have no remedy for the recovery of the fee. also, the fact that under s. 547(a) the court is competent to direct imprisonment in default of fine is no reason why s. 5411 1) (b) should not be applied to the state. the special provisions of s. 541(2) indicate that- the fine realizable under s. 541 is -receivable by the municipality. it follows that the state government is the payer but is not the receiver of the fine. the fine, when levied, is taken by the municipality in full satisfaction of the demand on account of the licence fee. [212 h; 213b] state of bihar v. rani sonavati kumari [1961] 1 s.c.r. 728, relied on. shah, j. (dissenting); (i) the english common law rule that the crown is not, unless expressly named or clearly intended, bound by a statute, is a rule of construction and was settled law in india before the -constitution. the common law of england was adopted in this country subject to local variations and the personal law of the parties and the courts which functioned in the former british india territory were enjoined to cases not governed by any specific statutory rules according to equity and good conscience,, which meant rules of english common law in so far as they were applicable to indian society. them was practically a consistent course of decisions of the high courts in india, prior to the constitution, in support of the view, affirmed by the judicial committee in province of bombay v. municipal corporation of the city of bombay, (1946) l.r. 73 i.a. 271, that the rule that the crown is not unless expressly named or clearly intended bound by a statute applied to india. it was accepted as a rule of interpretation ofstatutes applicable to all statutes governing state action, authority or property. a difference may have prevailed in parts of the.....order1. we find from the judgment of the high court impugned in the present appeal by special leave that the high court did not consider the second application of the appellant on merits but upheld its rejection by the trial court on the ground that the trial court had a discretion in the matter and was not bound to consider the second application on merits. this was clearly an erroneous view because once the high court took the view, and in our opinion, rightly that the second application for setting aside the order for ex parte proceeding was not barred by any principle analogous to res judicata, the high court should have held that the trial court was bound to consider the second application on merits and determine whether there was sufficient cause for the appellant not to file his counter affidavit in time and whether the order for ex parte proceedings was justified. it does appear from the judgment of the high court that though the trial court held that the second application was barred on the principle of res judicata, it did consider the second application on merits but the high court hearing the appeal against the order of the trial court did not consider the second application on merits. we therefore set aside the order passed by the high court and remit the case to the high court for the purpose of considering whether the prescribed authority was right in rejecting the second application on merits. since the case is an old one, we would request the high court to dispose it of at an early date and as far as possible, not later than 30-4-1983.2. there will be no order as to costs of the appeal.