AIR 2008 SC 907
Para 18: It is well-settled that when a power is given to an
authority to do something it includes such incidental or implied powers which
would ensure the proper doing of that thing. In other words, when any power is
expressly granted by the statute, there is impliedly included in the grant,
even without special mention, every power and every control the denial of which
would render the grant itself ineffective. Thus where an Act confers
jurisdiction it impliedly also grants the power of doing all such acts or
employ such means as are essentially necessary to its execution.
Para 19: The reason for
the rule (doctrine of implied power) is quite apparent. Many matters of minor
details are omitted from legislation. As Crawford observes in his Statutory
Construction(3rd edn. page 267):-
If
these details could not be inserted by implication, the drafting of legislation
would be an indeterminable process and the legislative intent would likely be
defeated by a most insignificant omission.
Para 20: In ascertaining a necessary implication, the Court
simply determines the legislative will and makes it effective. What is
necessarily implied is as much part of the statute as if it were specifically
written therein.
Para 21: An express grant
of statutory powers carries with it by necessary implication the authority to
use all reasonable means to make such grant effective. Thus in ITO, Cannanore
v. M.K. Mohammad Kunhi, AIR 1969 SC 430, this
Court held that the income tax appellate tribunal has implied powers to grant
stay, although no such power has been expressly granted to it by the Income Tax
Act.
Para 22: Similar examples
where this Court has affirmed the doctrine of implied powers are Union of India
v. Paras Laminates AIR 1991 SC 696, Reserve Bank of India v. Peerless General
Finance and Investment Company Ltd AIR 1996 SC 646 (at p. 656), Chief Executive
Officer & Vice Chairman Gujarat Maritime Board v. Haji Daud Haji Harun Abu
1996 (11) SCC 23, J.K. Synthetics Ltd. v. Collector of Central Excise, AIR 1996
SC 3527, State of Karnataka v. Vishwabharati House Building Co-op Society 2003
(2) SCC 412 (at p. 432) etc.
Para 23: In Savitri v. Govind Singh Rawat AIR 1986 SC 984
this Court held that the power conferred on the Magistrate under Section 125Cr.P.C.
to grant maintenance to the wife implies the power to grant interim maintenance
during the pendency of the proceeding, otherwise she may starve during this
period.
AIR 1972 SC 2563
Para 30: It is true that Rule 10-A seems to deal only with collection and not with the ascertainment of any deficiency in duty or its cause by a quasi-judicial procedure. If, however, it is read in conjunction with Section 4 of the Act, we think that a quasi-judicial proceeding, in the circumstances of such a case, could take place under an implied power. It is well established rule of construction that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied.
Para 31: The question
whether there was or was not an implied power to hold an enquiry in the
circumstances of the case before us, in view of the provisions of Section 4 of
the Act read with Rule 10-A of the Central Excise Rules, was not examined by
the Calcutta High Court because it erroneously shut out consideration of the
meaning an applicability of Rule 10A. The High Court's view was based on an
application of the rule of construction that where a mode of performing a duty
is laid down by law it must be performed in that mode or not at all. This rule
flows from the maxim: "Expressio unius est exclusio alterius." But,
as was pointed out by Wills, J., in Colquhoun V/s. Brooks, (1888) 21 QBD 52
this maxim "is often a valuable servant, but a dangerous master...".
The rule is subservient to the basic principle that Courts must endeavour to
ascertain the legislative intent and purpose, and then adopt a rule of
construction which effectuates rather than one that may defeat these.
Moreover, the
rule of prohibition by necessary implication could be applied only where a
specified procedure is laid down for the performance of a duty. Although Rule
52 makes as assessment obligatory before good are removed by a manufacturer,
yet, neither that rule nor any other rule, as already indicated above, has
specified the detailed procedure for an assessment. There is no express
prohibition anywhere against an assessment at any other time in the
circumstances of a case like the one before us where no "assessment",
as it is understood in law, took place at all. On the other hand Rule 10A
indicates that there are residuary powers of making a demand in special
circumstances not foreseen by the framers of the Act or the rules. If the
assessee disputes the correctness of the demand an assessment becomes necessary
to protect the interests of the assessee. A case like the one before us falls
more properly within the residuary class of unforeseen cases. We think that,
from the provisions of Section 4 of the Act read with Rule 10A, an implied
power to carry out or complete an assessment, not specifically provided for by
the rules, can be inferred. No Writs of Prohibition or Mandamus were,
therefore, called for in the circumstances of the case.
AIR 1961 SC 1107
Para 17: In this context
learned counsel for the appellants invoked the doctrine of law that an action
of a statutory corporation may be ultra vires its powers without being illegal
and also the principle that when a statute confers an express power, a power
inconsistent with that expressly given cannot be implied. It is not necessary
to consider all the decisions cited, as learned counsel for the respondents
does not canvass the correctness of the said principles. It would, therefore,
be sufficient to notice two of the decisions cited at the Bar.
The decision in
Wenlock (Baroness) V/s. River Dee Co., 1885 10 AC 354 is relied upon in support
of the proposition that when a corporation is authorized to do an act subject
to certain conditions, it must be deemed to have been prohibited to do the said
act except in accordance with the provisions of that Act which confers the
authority on it.
Where by Act 14
and 15 Vict. a company was empowered to borrow at interest for the purposes of
the concerned Acts, subject to certain conditions, it was held that the company
was prohibited by the said Act from borrowing except in accordance with the
provisions of that Act.
Strong reliance
is placed on the decision in Attorney-General V/s. Fulham Corporation, 1921 1 ChD
440. There, in exercise of the powers conferred under the Baths and Wash-houses
Acts, the Metropolitan Borough of Fulham propounded a scheme in substitution of
an earlier one whereunder it installed a wash-house to which persons resorted
for washing their clothes bringing their own wash materials and utilized the
facilities offered by the municipality on payment of the prescribed charges.
Sarjant, J., held that the object of the legislation was to provide for persons
who became customers facilities for doing their own washing, but the scheme
provided for washing by the municipality itself and the, therefore, it was
ultra vires the statute. In coming to that conclusion the learned Judge, after
considering an earlier decision on the subject, applied the following principle
to the facts of the case before him :
"That
recognizes that in every case it is for a corporation of this kind to show that
it has affirmatively an authority to do particular acts; but that in applying
that principle, the rule is not to be applied too narrowly, and the corporation is entitled to do not
only that which is expressly authorized but that which is reasonably incidental
to or consequential upon that which is in terms authorized."
The principle so
stated is unobjectionable.
Sandeep
Jalan
Advocate
Law
Referencer: https://www.vakeelkanumber.com/
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