TaxTMI 
TaxTMI 
1960 (9) TMI 108
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....s and ,tenure-holders in estates within the State, received the assent of the President on September 11, 1950, and was published in the Bihar Gazette on September 25, 1950. Thereupon Rani Sonabati Kumari, the respondent, who was the proprietress of the Ghatwali Estate of Handwa situated within the State, instituted against the State of Bihar, in the Court of the Subordinate Judge, Dumka, on the 20th November, 1950, Title Suit 40 of 1950, inter alia for a declaration that the Act was ultra vires of the Bihar Legislature and was therefore " illegal, void, unconstitutional and inoperative " and that the defendant had " no right to issue any notification under the said Act or to take possession or otherwise meddle or interfere with the management of the estate in suit " and for a permanent injunction " restraining the defendant, its officers, servants, employees and agents from issuing any notification under the provisions of the Bihar Land Reforms Act, in respect of the plaintiff's estate " and also " from taking possession of the said estate and from meddling or interfering in any way with the management thereof ". Along with the plaint, th....
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....pleased to declare that the Estates described in the First Schedule and the tenures described in the Second Schedule hereto annexed belonging to the proprietor and the tenure-holder named in the respective schedules have, with effect from the date of the publication of this notification in the Bihar Gazette, passed to and became vested in the State under the provisions of this Act ". The Handwa Raj Estate with the name of the respondent as the tenure holder was specified in the Second Schedule. This was followed by an authentication in these terms: By order of the Governor of Bihar, K. K. Mitra, Additional Secretary to Government." On coming to know of this notification the respondent moved the Subordinate Judge on June 2, 1952, for taking action against the defendant in the suit, for contempt under 0. 39, r. 2(3) of the Code of Civil Procedure. When notice of this petition was served on the State it submitted an answer in these terms: "That in obedience to the said order, the defendant begs to submit that in view of the Article 31B of the Constitution, the aforesaid Notification, dated 19-5-52, and published in Bihar Gazette, dated 21.5.52 is valid, legal an....
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.... or the State could not be proceeded against for a tort or wrong-doing applied to the present case, since disobedience of an order of injunction is virtually a wrong for which 0. 39, r. 2(3) provides the punishment or compensation. (4) That a State is not bound by a Statute unless it is named therein expressly or by necessary implication, and as there is no mention of a State in specific terms in 0. 39, r. 2(3), a State cannot, as such, be proceeded against for disobedience of an order of Court. (5) Even if a State could be proceeded against for willful disobedience of an order, the publication of the notification under s. 3(1) which was the contempt alleged, was not proved with certainty, to be an act of the State Government, and that in the absence of a definite proof of this fact, the liability of the State could not arise ; and that if the notification dated May 19, 1952, constituted the act of disobedience, then only the Additional Secretary, Mr. K. K. Mitra who authenticated the notification could, if at all, be made liable. It would be convenient to deal with these 'matters in that order. The first point urged was that the order of the Subordinate Judge dated March....
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....r of the Court were understood in the light of the allegations and prayers in these two documents, the reference to the " notification " in it was only to one under s. 3(1) of the Act, and that the injunction therefore was meant to cover and covered such a notification. We, therefore, hold that this objection must fail. (2) The second contention urged was that even if on a proper construction of the order, read in the light of the relevant pleadings, the State Government was directed to abstain from publishing a notification under s. 3(1) of the Act, still, if the order was ambiguious and equivocal and reasonably capable of two interpretations, a party who acted on the basis of one of such interpretations could not be held to have wilfully disobeyed the.. order. Stated in these terms, the contention appears unexceptionable. For its being accepted in any particular case, however, two conditions have to be satisfied: (1) that the order was ambiguous and was reasonably capable of more than one interpretation, (2) that the party being proceeded against in fact did not intend to disobey the order, but conducted himself in accordance with his interpretation of the order. We are....
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....ion in the order which is the subject of enforcement. The argu- ment being in effect that a party who had bona fide misconstrued the order and acted on that basis, could not be held to have wailfully and deliberately disobeyed the order, such a plea could obviously be urged only when it is proved that a party was in fact under a misapprehension as to the scope of the order, but this was never the plea of the Government right up to the stage of the hearing before the High Court. Besides, if the case of the State was, that acting bona fide it had committed an error in construing the order, one would expect an expression of regret for the unintentional wrong, but even a, trace of contrition is singular lacking at any stage of the proceedings. We are clearly of the opinion that there is no factual basis for sustaining the second ground urged by learned Counsel. (3) Turning to the next point urged, learned 'Counsel amplified it in these terms. No doubt, having regard to Art. 300 of the Constitution-which practically reproduces the earlier statutory provisions in that behalf going back to 1858, States are not immune from liability to be sued. Learned Counsel added that he would not d....
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.... against the State. Article 300 of the Constitution of India provides for proceedings by way of suit against the State or the Union of India and cannot be extended to apply to contempt proceedings ". In order however to appreciate the observations it is necessary to consider briefly the facts of the case. The decision was concerned with an application to commit the respondents for contempt for disobedience to an order of ad interim injunction granted by a single Judge of the High Court on a petition for the issue of a writ of Certiorari under Art. 226 of the Constitution. No doubt, the order of temporary injunction was issued against the Government, but the disobedience complained of was not any act of the Government as such, but of certain officers. Not with. standing this, the Secretary to Government who had been formally impleaded as representing the Government, was sought to be proceeded against personally for contempt and the prayer being that he as representing the Government should be committed to prison. As Chakravartti, C. J., pertinently pointed out, a more ridiculous prayer could not be imagined. The learned Judges further found that as a fact no disobedience of th....
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....e procedure prescribed by the Civil Procedure Code for the execution of a decree for a permanent injunction. Order 21, r. 32 sets out the method by which such decrees could be executed-and cl. (1) enacts-" where the party against whom a decree............... for an injunction has been passed, has had an opportunity for obeying the decree and has willfully failed to obey it, the decree may be enforced, in the case of a decree .................. for an injunction by his detention in the civil prison, or by the attachment of his property or by both Clauses 2 and 3 of this rule practically reproduce the terms of cls. 4 and 3 respectively of 0. 39, r. 2, and the provisions leave no room for doubt that 0. 39, r. 2(3) is in essence only the mode for the enforcement or effectuation of an order of injunction. While on the provisions of 0. 21, r. 32, it may be pointed out that learned Counsel for the State does not contend that a State Government against whom a decree for a permanent injunction has been passed is not liable to be proceeded against under this provision of the Code in the event of the decree not being obeyed by them. No doubt the State Government not being a natural per....
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....uit including the relief for a permanent injunction restraining the State from issuing a notification under a. 3(1) of the Act and from interfering with her possession of the estate of Handwa. It is also admitted that the Subordinate Judge had jurisdiction to pass the order of temporary injunction against the State Government and that the order bound them. What is contended however is that the method of enforcing that order provided for in 0. 39, r. 2(3) of the Code is not available against the State Government, because the State Government is not named in that sub-rule expressly or even by necessary implication. An examination however of the provisions of the Code and the Scheme underlying it in relation to proceedings against Government establishes that this submission is wholly untenable. The Code of Civil Procedure does not determine whether any particular suit or class of suits could be filed against the Government or not, these being matters of substantive law. But when in law a suit could be properly filed against Government-be it the Union or the State, it makes a complete provision for the procedure applicable to such suits and the type of orders which Courts could pass i....
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.... "In case of disobedience, or of breach of any such terms, the Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release." Learned Counsel urged that cl. (3) discarded the use of the expression " defendant " employed in cl. (1) which would have included the " State" in cases where the State was a party defendant, and had designated the party against whom the injunction order could be enforced as "the person guilty of the disobedience " and with a further provision empowering the Court to order the detention of such person " in Civil prison. The word " person it was urged was at the best a neutral expression, which in the absence of compelling indication, was not apt to include " a State " and particularly so in the light of the rule of Construction approved by this Court in The Director of Rationing v. Corporation of Calcutta ([1961] 1 S.C.R. 158). It was further pressed upon us that the construction sugg....
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....e follow that in cases where the State is the defendant against whom an order of injunction has been issued, it is " expressly " named in the clause and not even by necessary implication, and the rule of construction invoked does not in any manner avail the appellant. The matter may also be approached from a broader angle. Where a Court is empowered by statute to issue an injunction against any defendant, even if the defendant be the State- the provision would be frustrated and the power rendered ineffective and unmeaning if the machinery for enforcement specially enacted did not extend to every one against whom the order of injunction is directed. Apart, therefore, from a critical examination of the phraseology of 0. 39, r. 2(3), the obligation on the part of the State to obey the injunction and be proceeded against for disobedience if it should take place would appear to follow by necessary implication. As Maxwell (1) puts it " The Crown is sufficiently named in a statute when an intention to include it is manifest ". The only point remaining for consideration is as to whether the publication of the notification under s. 3(1) which was treated by the Subord....
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..... But this does not afford any assistance to the appellant. The order of Government in the present case is expressed to be made " in the name of the Governor " and is authenticated as prescribed by Art. 166(2), and consequently " the validity of the order or instrument cannot be called in question on the ground that it is not an order or instrument made or executed by the Governor ". Authorities have, no doubt, laid down that the validity of the order may be questioned on grounds other than those set out in the Article, but we do not have here a case where the order of the Government is impugned on the ground that it was not passed by the proper authority. Its validity as an order of Government is not in controversy at all. The only point canvassed is whether it was an order made by the Governor or by someone duly authorised by him in that behalf within Art. 154(1). Even assuming that the order did not originate from the Governor personally, it avails the State nothing because the Governor remains responsible for the action of his subordinates taken in his name. In Emperor v. Sibnath Banerji (1945) L.R. 72 I.A. 241), already referred to, Lord Thankerton pointin....