Judgment

SUBBA RAO, C. J. (For himself and for Wanchoo, Sikri, Ramaswami, Shelat, Bhargava and Vaidialingam. JJ.) : This Full Bench of 9 Judges has been constituted to consider the correctness of the decision of this Court in Director of Rationing and Distribution v. Corporation of Calcutta, 1961-1 SCR 158.

2. The relevant facts are simple and are not in dispute. The State of West Bengal was carrying on the trade of a daily market at 1, Orphanganj Road, Calcutta, without obtaining a licence as required under S. 218 of the Calcutta Municipal Act, 1951 (West Bengal Act 33 of 1951) (hereinafter called the Act. The Corporation of Calcutta filed a complaint against the State of West Bengal in the Court of the Presidency and Municipal Magistrate, Calcutta under S. 541 of the Act for contravening the provisions of S. 218 thereof. Under S. 218 of the Act, every person who exercises or carries on in Calcutta any trade, shall take out a licence and shall pay for the same such fee as is mentioned in that behalf in Schedule IV to the Act. Admittedly for the year 1960-61, the Government of West Bengal did not take out a licence under the said section but carried on the said trade. The main contention of the Government was that the State was not bound by the provisions of the Act. The learned Magistrate accepting the said contention, acquitted the State. On appeal, the High Court of Calcutta held that the State was carrying on the business of running a market and therefore, it was as much bound as a private citizen to take out a licence. It distinguished the decision of this Court in 1961-1 SCR 158 on the ground that the said decision was concerned with the sovereign activity of the State. In the result the State of West Bengal was convicted under S. 537 of the Act-S.537 appears to be it mistake for S. 541-and sentenced to pay a fine of Rs. 250, with the direction that when realised, it should be paid to the Corporation. Hence the present appeal.

3. Learned Advocate-General of West Bengal raised before us the following points: (1) The State is not bound by the provisions of a statute unless it is expressly named or brought in by necessary implication; (2) the said principle equally applies to sovereign and non-sovereign activities of a State, and Mr. N. S. Bindra, learned counsel appearing for the Attorney-General raised before us the third point, namely, this Court has no power under the Constitution to review its earlier judgment.

4. While the learned Advocate-General contended that the rule of construction in favour of the State was part of the common law of England accepted as the law of this country and. therefore .was law in force within the meaning of Art. 372 of the Constitution. Mr. N. S. Bindra argued that the said rule of construction was law of the land in that it was declared to be so by the Judicial Committee in Province of Bombay v. Municipal Corporation of the City of Bombay,73 Ind App 271: (AIR 1947 PC 34), and. Therefore, it was in force within the meaning of Art. 372 of the Constitution.

5. The third contention need not detain us, for it has been rejected by this Court in Bengal Immunity Co. Ltd. v. State of Bihar. 1955-2. SCR 603.There a Bench of 7 Judges unanimously hold that there was clothing in the Constitution which prevented the SC from departing from a previous decision of its own if it was satisfied of its error and of its baneful effect on the general interests of the public. If the aforesaid rule of construction accepted by this Court is inconsistent with the legal philosophy of our Constitution, it is our duty to correct ourselves and lay down the right rule. In constitutional matters which affect the evolution of our policy we must more readily do so than in other branches of law, as petuation of a mistake will be harmful to public interests. While continuity and consistency are conducive to the smooth evolution of the rule of law, hesitancy, to set right deviations will retard its growth. In this case, as we are