Ahmad, J.@mdashThis is an appeal by the defendant State of Bihar under Order 43, Rule 1, Civil P. C. against an order made on 31-7-1952, in title suit No. 40 of 1950 holding that
the issue of notification in question and its publication on 21-5-52 constitute a direct and deliberate breach of the injunction order passed by this Court and as such the same undoubtedly constitutes a gross contempt of the Court by the defendant
and then finally directing that for the breach of the order of injunction the property of the defendant State of Bihar should under O. 39, R. 2(3), Civil P. C. be attached to the value or Rs. 5,000/-.
2. The title suit was instituted on 20-11-1950, by the sole plaintiff Rani Sonabati Kurnari against the sole defendant State of Bihar for a declaration that the Bihar Land Reforms Act (Bihar Act 30 of 1950) was ultra vires of the Bihar Legislature and was 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. It was further prayed therein that a permanent injunction be issued restraining the defendant, its officers, servants, employees and agents from issuing any notification under the provisions of the said Bihar Land Reforms Act (Bihar Act 30 of 1950) 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.
3. On the same day, that is, on 20-11-1950, along with the plaint the plaintiff also filed an application under O. 39, R. 1, Civil P. C. seeking therein that a temporary injunction be issued against the defendant, its officers, employees, servants or agents restraining them from issuing any notification with regard to the plaintiff''s estate under the Bihar Land Reforms Act 1950 (Act 30 of 1950) and from meddling or interfering with the possession of the plaintiff of the properties in suit till the disposal of the case.
4. It appears that on the prayer made in the aforesaid application an ad interim order .was passed ex parte on the same day and the defendant was called upon to show cause why the order should not be made absolute. In answer to that the defendant showed cause, perhaps on 11-12-1950. Therein the main contention submitted was that the Bihar Land Reforms Act 1850 (Act 30 of 1950) was intra vires of the Bihar Legislature, that it did not conflict with any of the provisions of the Constitution of India or any other law in force, and that the facts and circumstances of the case did not disclose any valid and good ground for the issue of an injunction. The court on hearing the parties made the ad interim order of injunction absolute and passed the following order on 19-3-1951 :
Injunction matter taken up with T. S. No. 36 of 1950 and as per order passed in that suit the plaintiff''s prayer for temporary injunction is allowed and the ad interim order of injunction already passed is made absolute and it is ordered that the defendant shall not issue any notification for taking over possession of the suit properties under the Land Reforms Act and shall hot interfere with or disturb in any manner the plaintiff''s possession over these properties under any of the provisions of the aforesaid Act until this suit is finally disposed of by this Court.
5. In the meantime while the suit was still pending for disposal certain amendments were made in the Constitution on 18-6-1951, and Article 31A and Article 31B were added anew to the Constitution by 8s. 4-5 of the Constitution (First Amendment) Act, 1951. The newly added Article 31B reads :
Without prejudice to the generality of the provisions contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or even to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any Court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.
The Ninth Schedule referred to in this Article 31B includes in its list among other Acts and Regulations also the Bihar Land Reforms Act 1950 (Bihar Act 30 of 1950).
5. It may be stated here that the Bihar Land Reforms Act 1950 (Act 30 of 1950), which I shall hereafter for brevity call the Land Reforms Act, was passed by the State Legislature of Bihar on 9-5-1950 and it received the assent of the President on 11-9-1950. On its enactment, the State of Bihar in the exercise of the power given to it under the Act issued a number of notifications u/s 3(1) of the Land Reforms Act against a number of landlords declaring therein that their estates had passed to and had become vested in the State. These notifications gave rise to a number of suits instituted in different Courts by different landlords for the declaration that the Land Reforms Act was ultra vires of the Bihar Legislature and was illegal, void, unconstitutional and inoperative.
This Court on the transfer of some of those suits on its original side disposed them of by its judgment dated 12-3-1951, in the case of - Kameshwar Singh v. State of Bihar AIR 1951 Pat 9 (SB) (A). By that judgment it held that the Act was void on, amongst others, the ground that it contravened the provisions of Article 14 of the Constitution and that the properties of the plaintiffs of that suit had not as a result of the so-called notification issued thereunder vested in the State of Bihar. The State of Bihar being dissatisfied with this judgment took the matter in appeal to the Supreme Court. While the appeal was still pending in the Supreme Court, the Constitution of India as already stated, was amended on 18-6-1951.
6. On the amendment of the Constitution a point was raised in the Supreme Court that the amendment itself was invalid. That contention was on final hearing ultimately negatived and it was held on 5-10-1951, that the amendment was valid and the Land Reforms Act was intra vires :
7. Relying on that judgment the State or Bihar on 17-5-1952 filed an application in the title suit giving rise to this appeal for vacating the order of injunction on the ground that the Land Reforms Act with the exception of its Sections 4(b) and 23 (f) was held intra vires by the Supreme Court and therefore there was no substance left in the suit instituted by the plaintiff. This application was heard on 30-5-1952, and the Court on hearing the parties reserved the order till 2-6-52.
8. The State of Bihar, however, in the meantime on 19-5-1952, without waiting for the order of the Court, which was reserved for 2-6-1952, issued a notification with regard to the property in dispute u/s 3(1) of the Land Reforms Act, which was published in the Bihar Gazette (Extraordinary) of 21-5-1952, notifying therein that the estates and tenures belonging to the plaintiff had from the date of the publication of the notification in the Bihar Gazette passed to and vested in the State under the provisions of the Act.
9. It is the publication of this notification which is the source of all the troubles under appeal. On the publication of this notification, the plaintiff on 2-6-1952, i.e., on the very day whereon the order on the application of the defendant for vacating the injunction order was to be delivered, filed an application submitting therein that the application of the defendant for vacating the order of injunction should, in the circumstances which then stood, be rejected and suitable action be taken against the State, its officers and servants for contempt. The State of Bihar in answer to that application showed cause on 1-7-1952 and therein its only substantial contention was :
...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 and authorised and the publication of the same does not constitute contempt of Court.
The Court on hearing the parties finally passed on 31-7-1952, the order in appeal, the operative portion of which has already been quoted and referred to above in the earlier part of the judgment.
10. The present appeal was presented on 11-8-1952, and this Court on its admission has in the meantime till its disposal stayed the execution of the order passed by the trial Court.
11. The learned Government Advocate appearing for the State of Bihar has not challenged the fact that a notification, as alleged by the plaintiff, was published in the Gazette on 21-5-1952, nor the facts that an order of injunction was passed by the Court against the State of Bihar on 19-3-1951, and was served on it. The points raised in support of the appeal at the commencement of the argument were only the following :
(1) That the State of Bihar as such cannot in law be guilty for contempt for the infringement of an order of injunction passed in a suit notwithstanding the fact that the State of Bihar itself is a party to the suit,
(2) That in any case there was no intention on the part of the State of Bihar in issuing and publishing the notification to commit any disobedience of the order of injunction passed by the Court on 19-3-1951. In other words, the issuing and publication of the notification, even if they technically amounted to a disobedience of the order of injunction, were the sheer result of inadvertence and mistake on the part of some of the officers of the State and not of any intention to disobey the same.
(3) That the notification dated 19-5-1952, published in the Gazette on 21-5-1952, was made not in the exercise of the power existing on 19-3-1951, but in the exercise of a power altogether new and different which came into existence on 18-6-1951, that is, the day on which the Constitution was amended, and hence the notification did not amount to an infringement of the order passed on or about 11-12-1950.
(4) That the provision of law in O. 39, R. 2 (3), Civil P. O. is not applicable to a case like the present one where steps taken or acts done in disobedience of the order of injunction passed are not retraceable. His contention on this point was that in the present case the publication of the notification u/s 3(1), Land Reforms Act having been once completed, the property notified thereunder automatically vests in the State for ever and it cannot thereafter be divested. Therefore, the action taken under O. 39, R. 2(3), Civil P. C. against the party responsible for the disobedience of that order cannot restore the position intended to be brought about by the order of injunction.
12. In the course of the argument it, however, transpired that the appeal was substantially pressed only on the first point, that is, on the point that the State of Bihar as such cannot in law be guilty for contempt for the infringement of an order of injunction passed against it notwithstanding the fact that it is a party to the suit. I, therefore, take up this point first.
13. The learned Government Advocate in support of his contention on this point has at first laid reliance by way of analogy on the rule of immunity of the State from actions in the Court of law for the tortious liability of its servants and submitted that as in actions for torts so in proceedings in contempts no action can be taken by Court against the State. In my opinion the very basis of his argument that the State is immune from the tortious liability of its servants in all cases is not correct at least so far as Indian jurisprudence is concerned.
14. It is true that in England common law does not recognise an action against Crown on the principle either that "the King can do no wrong" or that the King cannot be sued in his own Court. There the liabilities against Crown under common law are enforced only on a Petition of Right, which extends to detention of the land, chattels or money of the subject, and also as now settled, to breach of contract - Thomas V. Reg (1874) 10 QB 31 (C). The law on the subject in India is, however, in many respects different. The sovereignty in India passed to Crown in England lay the Government of India Act 1858. Immediately before that sovereignty in India for all practical purposes lay in the Company under the Charter of 1833. The company was then engaged in dual functions, firstly in trade and business wherefor it essentially and initially came to India and secondly in the administration of the territories which gradually came to its jurisdiction after the grant of Diwani by the Moguls.
The result of this dual character of the Company in the affairs of the State was that the Crown on assuming sovereignty in India after the termination of the rule by the Company not only submitted itself (through its character as the successor of the East India Company) to certain ''remedies'' but it also u/s 65 of the Act of 1858 constituted itself a corporate defendant in the form of the Secretary of State for India in Council as its representative for the purpose of being sued in respect of those ''remedies''. In consequence, therefore, the East India Company and through the Company the Secretary of State for India in Council was placed in a position wholly different to that of the Crown in England under common law - Secretary of State v. J. C Maurice AIR 1937 Rang 89 (SB) (D) and that position originally created by Section 65, Government of India Act, 1858, has been preserved till now in the successive constitutional documents enacted or adopted for the Government of India as Section 32 in the Government of India Act, 1919, as Section 176 in the Government of India Act, 1935, and lastly as Articles 284(b) and 300 of the Constitution of India subject of course to any statute passed in Parliament or State Legislature.
15. The fact that in India State can sue or be sued in certain circumstances is clearly borne out by the very authorities relied upon by the learned Government Advocate in support of his contention that State is immune from action for the tortious acts of its servants. The authorities referred to by him are as follows :
1. Where the act complained of is done in the conduct of undertakings which might be carried on without having sovereign power delegated to it. That is the State is liable for the negligence of its employees in the course of their employment in the same way as any private employer in a similar case, where the act complained of is of a private nature and not done in the exercise of powers usually called sovereign or Governmental power or in the performance of an act of State - Peninsular and Oriental Steam Navigation Co. v. Secy. of State 5 Bom 1 and 16 (Q) a case referred to with approval in the Privy Council by the Lord Chancellor Viscount Haldane in - Secretary of State v. Moment J. 40 Ind App 48 (PC) (R).
2. Where the acts complained of consist in detention by the State of land, goods of chattels belonging to the subject though in fact those acts are done by the officers of the State in the exercise of power given to them under the municipal law. In cases of this class the subject has a right to maintain an action against the State which in England, as already stated above, is done by a Petition of Right. It may be mentioned here that the acts done in the exercise of sovereign powers are broadly divisible into two groups- (i) the first covering the acts of State properly so called, such as, making a treaty, commandeering private property for war purposes, or quelling civil disturbances by force, over which the Court has no jurisdiction - as regards which the agent is protected as well as the principal and (ii) the second covering the acts done under colour of municipal law as to which the agent at any rate is always responsible. These acts done under colour of municipal law are again divisible into two subgroups- (1) those consisting in detention, by the Crown, of land, goods or chattels belonging to the subject and (2) those done by officers of the Crown in the discharge of their official duties. The former, as stated above, constitutes the second exception to the general Rule - 51 Cal 537 (P).
3. As a rule, acts falling in the second sub-group done by the servants in the discharge of their duties imposed upon them by the municipal law do not constitute a liability for action against the State on the principle that in exercising such authority or in exceeding it they cannot be considered to have been the agents of the authority appointing them so as to render the latter liable. In such cases neither the doctrine of Respondent Superior apply- (1864) 143 ER 1148 (O) : - 28 Bom 314 (I)'' and -
Misfeasances, or wrongs, or negligence or omissions of duty of the subordinate officers or agents engaged in the public service, for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs since that would involve it, in all its operations, in endless embarrassments and difficulties and losses which would be subversive of the public interests.
In cases of this class even ratification by the State would make no difference, because there can be no ratification unless the act is done on behalf of the principal in the first instance - Buron v. Denman (1848) 6 St Tr NS 525 (S) and notes to- Armory v. Delamirie (1903) 1 Sm LC 356 (T). In 4 Inst. 317, Lord Coke says :
By the common law he that receiveth a trespass and agreeth to a trespass after it is done, is no trespasser, unless the trespass was done for his use or for his benefit, and then his agreement subsequent amounteth to a commandment, for in that case ''Omnis ratihabitio retrotrahitur et mandato priori aequiparatur''.
But from the very principles stated above it is manifest that where it is proved that the impugned act has been expressly authorised by the State or that the State has been profited by its performance, the State will not be left immune from an action for the liability arising from them - AIR 1915 Mad 434 (J)''. They, therefore, constitute the third exception to the general rule of immunity applicable in favour of the State.
16. These exceptions constituting liability against the State for the tortious acts of its servants and agents fully illustrate that law in India has developed on entirely different lines and I think there is lot of force in the opinion expressed by Mukharji, J. in the case of -
17. In the present Case the allegations made by the plaintiff in the main title suit no. 40 of 1950, which has given rise to the order of injunction, are to the effect, as already stated, that the state by its wrong acts was threatening to take away illegally the property which in law belonged to her. On those allegations she prayed for the declaration that the legislation, under the colour of which the State proposed to take her property, was void and ultra vires and prayed that the State should be permanently restrained from perpetrating the alleged wrongful act on her property, and further got an order of ''interim'' injunction passed against the State for not disturbing her title or possession over the property till the disposal of the suit. Contrary to that order the State did issue the notification and publish it, which even according to the learned Government Advocate himself has vested the property in the State. Therefore, it cannot be contended that it is not an act which has not given rise to the deprivation of the subject of his property by the State for its benefit though it may be true that it is not an act done in pursuance of its commercial activities.
Further on the facts disclosed in the plaint the acts impugned by the plaintiff were those which were to be done not by any particular officer of the State in the exercise of the duty imposed upon him under the statute but by the State of Bihar itself in the exercise of the power given to it u/s 3, Land Reforms Act 1950. That reads :
3(1). The State Government may, from time to time, by notification, declare that the estates or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and become vested in the State.
(2) The notification referred to in Sub-section (1) shall be published in the Official Gazette and in at least two issues of two newspapers having circulation in the State of Bihar, and a copy of such notification shall be sent by registered post, with acknowledgment due, to the proprietor of the estate recorded in the general registers of revenue-paying or revenue-free lands maintained under the Land Registration Act, 1876, or in case where the estate is not entered in any such registers and in the case of tenure-holders, to the proprietor of the estate or to the tenure-holder of the tenure if the Collector is in possession of a list of such proprietors or tenure-holders together with their addresses, and such posting shall be deemed to be sufficient service of the notification on such proprietor or, where such notification is sent by post to the tenure-holder, on such tenure-holder for the purposes of this Act.
(3) The publication and posting of such notification, where such notification is sent by post, in the manner provided in Sub-section (2) shall be conclusive evidence of the notice of the declaration to such proprietors or tenure-holders whose interests are affected by the notification.
In view of these provisions in Section 3, Land Reforms Act, the declaration by the notification as contemplated by it cannot be made in law by any officer of the State in exercise of any power given to him under the statute but by the State itself. And in the present case the declaration by notification, which has given rise to the proceeding under O. 39, Rule 2(3) of Civil P. C. for the infringement of the order of injunction, has in fact been done by the State Government itself in the exercise of the power specifically given to it under the statute and that in the name and under the signature of the Governor of the State in whom under Article 154 of the Constitution the executive power of the State vests. Therefore, even on principles, which emerge from the authorities referred to above, this much is certain that for the acts done by the State in this case it would not have been immune from action at least in torts of course subject to the condition that the Land Reforms Act was ultra vires and void. That being so, the analogy, if any, of the law in torts is of no avail to the appellant in the case before us.
18. Next the learned Government Advocate tried to establish his main proposition directly on its own merits and for this he laid reliance on the cases of -
19. In my opinion these cases also do not give much assistance to the decision of the point involved in this appeal.
20. In the case of -
Great reliance was, however, placed on an observation made in that case by Mukharji, J. which is to the following effect :
The State is not a legal and juristic entity in the same sense as a corporation or a joint stock company nor is it to be treated as a minor or a lunatic or a Hindu Deity in the sense of having to be represented by a guardian.
A State as such cannot be said to commit contempt. In the case of the State the allegation must be against a particular officer or officers of the State. Where as in this case an order was obtained against the State in a civil proceeding restraining certain acts of the State, and it is alleged by the complainant or the petitioner that there has been a contempt by breach of that order, the petitioner for contempt will have to take out the Rule for contempt against the particular officer or officers who has or nave disobeyed that order. In such a petition for contempt the Rule must be asked against an individual and not 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.
21. In my opinion, in making this observation the learned Judge was perhaps thinking of the cases where the order made against the State is sought to be enforced by the process of attachment and committal, but not of other cases, otherwise the proposition as laid down would be, if I may say so, too wide. Further, If I may be allowed to say so, the interpretation put by the learned. Judge on the phrase ''proceeding by way of suit" in Article 300 of the Constitution is too narrow. This article as held by the Supreme Court in the case of -
I do not say that in fit cases a writ for contempt may not be asked for against a corporation itself, or against a Government. In what form, in such a case, any penal order, if considered necessary, is to be passed and how it is to be enforced are different matters which do not call decision in this case. In England, there is a specific rule providing for sequestration of the corporate property of the party concerned, where such party is a corporation. I am not aware of any similar rule obtaining in this country, but I do not consider it impossible that in a lit case a fine may be imposed and it may be realised by methods analogous to sequestration which would be a distress warrant directed against the properties of the Government or the Corporation. But, as I have said, that matter does not require to be decided in the present case.
In any view of the matter, however, the observations made in this case on the point under discussion are obiter.
22. The decision in the case of - AIR 1915 SC 108 (2) (V) is one by the Privy Council in an appeal from a judgment of the Supreme Court of Canada. The distinguishing factor of this case is that in Canada there is no right to bring the Crown into Court, as it appears from one of the observations made in that very judgment to the effect that :
The non-existence of any right to bring the Crown into Court, such as exists in England by petition of right, and in many of the Colonies by the appointment of an officer to sue and be sued on behalf of the Crown, does not give the Crown immunity from all law, or authorise the interference by the Crown with private rights at its own mere will.
In that view of the matter, the case was decided on the Common admission of the parties that no injunction could be granted against the Crown. It is, therefore, of no assistance in deciding the point before us.
23. In the case of -
24. The decisions in the case of - AIR 1933 SC 295 (W)'' and in the case of -
each of the three opposite parties has been guilty of contempt, the Government by a breach of the injunction, and the two other respondents toy setting at defiance the authority of the Court, there is no doubt in our minds", and ordered that "we deem it sufficient to direct that the Secretary of State do forthwith pay to the petitioners one half of their costs and that the other respondents, Banerjee and Ghose shall also pay to the petitioners one half of their costs and shall be jointly and severally liable therefor; and we fix the hearing fee of this petition at two hundred and fifty gold mohurs. In view of the correct attitude taken on behalf of the respondents, that they had and have every intention of treating with respect the authority of the Court, we do not make any further order.
This decision of this Court therefore clearly negatives the contention put up on behalf of the appellant in this appeal. The matter, however, did not rest here. It went up in appeal to the Privy Council and there the judgment of this Court was set aside but of course not on the ground, so far as the Secretary of State was concerned, that no proceedings in contempt could be taken against the Secretary of State. In fact, in the course of the argument this question was only reserved on behalf of the Secretary of State as to
whether the proceedings were properly framed against him, firstly because he was sued in his public capacity as Secretary of State in Council and therefore as a body corporate against whom sequestration might be invoked but no order for contempt could be made, and secondly, because in any case he could not be made responsible in contempt for the action of his officials in India.
and the case was argued on the assumption that in a proper case proceedings for contempt could be taken against him - AIR 1938 SC 295 (W)''. On this analysis we therefore find that at least these cases do not at all establish the proposition laid down by the learned Government Advocate. In fact, they on the whole give an indication, if at all, to the contrary that proceedings in contempt under Order 39 Rule 2 (3), Civil P. C. can be taken against the State for the disobedience of an order of injunction passed against it though not in cases of criminal contempts where the position is entirely different.
25. We know "Contempt of court is either (1) criminal contempt consisting of words or acts obstructing, Or tending to obstruct the administration of justice, or (2) contempt in procedure, consisting of disobedience to the judgments, orders, or other process of the Court, and involving a private injury". Criminal contempt is punishable by fine or imprisonment and the superior courts have an inherent jurisdiction to punish criminal contempt by the summary process of attachment or committal. Contempt in procedure may be of two types one unaccompanied by circumstances of misconduct, that is, mere unintentional disobedience to a judgment, order, or process. It is a contempt in theory only and is not punishable by imprisonment - Shpppee v. Nathan (1892) 1 QB 1245 (Z1) but the respondent may be ordered to pay the costs of the application. The other is that which involves misconduct, it bears a twofold character, implying as between the parties to the proceedings merely a right to exercise a liability to submit to a form of civil execution, but as between the party in default and the State, a disciplinary jurisdiction to be exercised by the Court in the public interest.
How far legal entities like corporations i. e. persons other than individuals are liable in law for contempt is well stated, which I may quote here, in Corpus Juris, 1917 Edition, volume XIIL at page 39 :
While the old and minority rule is that a corporation cannot commit contempt, being predicated on the fact that a corporation, cannot be arrested or be taken by attachment or execution, the general and modern rule is that a corporation can commit contempt as well as an individual, in like manner as it may be guilty of tort or crime, and may be fined therefore and its property sequestered; both on principle and modern authority, a corporation may be punished for those contempts which consist in the disobedience of the judgments, decrees, or orders of a court of justice, made in a case within its jurisdiction.
In the present case the contempt alleged is a contempt in procedure or what is called civil contempt and the party arrayed for contempt is the State of Bihar. It is true that the State is not a legal and juristic entity in the same sense as a corporation or a joint stock company, but it cannot be denied that in view of law as it has developed and as it stands now in India, the State can sue and be sued at least in some in the same way as any other corporate body or juristic person. That being so, this appeal can be disposed of on the decision of a short question, namely, whether a proceeding in contempt can be taken against the State for the disobedience of an order passed in a suit which is maintainable in law against it.
This question in the circumstances of this case resolves itself into three points : (1) whether the position of the State of Bihar in title suit No. 40 of 1950 is any way substantially different to that of any other person or corporation as a defendant provided of course that title suit is maintainable against it on the allegations made in the plaint : (2) if there is no substantial difference in the position of the State of Bihar in the suit as a defendant as compared with any other person or corporation, whether an action for contempt can lie in law against the state of Bihar for the disobedience of an order of injunction passed in the suit, provided other conditions for such a step are found to have been fulfilled and (3) if there is a substantial difference between the State of Bihar and other person or corporation as a defendant in the suit, will that make the State of Bihar immune from an action of contempt for the infringement of the order of injunction passed against it in the suit and if so to what extent.
26. So far as the first point is concerned, in my opinion, the answer should be in the negative. In suits maintainable against the State, the State is impleaded as a party therein in accordance with Article 300 of the Constitution of India, That reads :
300 (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces, or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution-
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.
The provision of this article does not, as it appears from the language used in it, create any special immunity either in favour of the Union of India or of the States as compared with any other person or individual as a defendant in a suit provided of course it is maintainable against the State or the Union.
27. This article on the other hand, when read with Article 299(2) of the Constitution, which does create certain immunities in favour of the President, the Governor and the Rajpramukh, suggests that framers of the Constitution did not intend to create any immunity in favour of the State from any consequential proceeding against it is a suit wherein the State is a party and Which is maintainable in law against, it
28. Further the term of clause (3) of rule 2 of Order 39 of the CPC is also very wide. Order 39 Rule 2 reads :
2(1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account giving security, or otherwise as the Court thinks fit.
(3) In case of disobedience, or of breach of any each 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.
(4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.
In this also there is exception whatsoever made in favour of the State. In my opinion, therefore, in cases where suits are maintainable against the State, the State is a person within the meaning of Order 39 Rule 2(3), Civil P. C. and as such open to the liabilities contemplated by it.
29. The State has always the power and the ultimate will to surrender its immunity whenever it likes from actions in courts either by special legislation or even by a legislation in general, pro-vided it gives rise to the necessary implication of an intention on the part of the State to surrender its immunity in matters referred to therein. In - Joseph D. Beers v. The State of Arkansas (1858) 20 How 527 (Z2) Chief Justice Taney of the American Supreme Court has on the subject observed :
It is an established principle of jurisprudence in all civilised nations that a sovereign state cannot be sued in its own Courts or in any other without its consent and permission : but it may if it thinks proper waive this privilege and permit itself to be made a defendant in a suit by individuals or by another State and as this permission is altogether voluntary on the part of the sovereign, it follows that it may prescribe the terms and conditions on which it consents to be sued and the manner in which the suit shall be conducted and may withdraw its consent whenever it may suppose that justice to the public requires it.
The question as to whether the State has or has not surrendered its immunity in a particular matter under a Statute depends in each case on the construction of that statute. In England the Crown is not bound by a statute unless expressly named therein or by necessary implication (Maxwell 9th Edition page 140). In the case of - Province of Bombay v. Municipal Corporation of the City of Bombay AIR 1947 SC 34 (Z3) their Lordships have observed :
The general principle to be applied in considering whether or not the Crown is bound by general words in a statute is not in doubt. The maxim of the law in early times was that no statute bound the Crown unless the Crown was expressly named therein, ''Royn''est lie par ascun statute si il no soit expressment nosme". But the rule so laid down is subject to at least one exception. The Crown may be bound, as has often been said, ''by necessary implication.'' If, that is to say, it is manifest from the very terms of the statute, that it was the intention of the Legislature that the Crown should be bound, then the result is the same as if the Crown had been expressly named. It must then be inferred that the Crown, by assenting to the law, agreed to be bound by its provisions.
Great reliance was placed by the learned Government Advocate on this English doctrine in support of his contention that the provision of law in Order 39, Rule 2 (3), Civil P. C., as it stands, can-not be read to mean that the State also is bound by it. In my opinion, this doctrine of English law at least now has no force left for its applicability in Indian Law. Under the Constitution there being no question of royal prerogative, there appears to be much force now in the observation made in Sedgwick, Interpretation of statutory and constitutional law at pages 36 and 106 :
The English precedents are based on the old fuedal idea of royal dignity and prerogative; and where the terms of an act are sweeping and universal, I see no good reason for excluding the Government, if not specially named, merely because it is the Government.
Even, however, if it be accepted, which I think is the correct view to take, that in India at least till the time the prerogative of the Crown extended to it the English doctrine was generally followed, the very terms of Order 39, Rule 2 (3), Civil P. C. specially when read with section 176 of the Government of India Act, 1935 make it abundantly clear that the intention of the legislature in enacting that provision was that the Crown should also be bound by it. Looked at, therefore, from any point of view, it is manifest that the terms of Order 39, Rule 2(3), Civil P. C. are applicable to the State as well at least in a suit in which it is a party. Once, therefore, it is held that a suit giving rise to the order of injunction is maintainable in law against the State of Bihar as defendant, its position comes to that of any other defendant in the suit subject no doubt to the necessary consequential variations which may arise due to the inherent differences in the character possessed by the State, or, as a matter of fact, by any other corporate body unlike that of individuals.
The State as any other corporation is inherently incapable of acting itself. It always acts through its servants and agents. In that view of the matter, the form of the disciplinary action taken against it for the enforcement of the order passed to the proceeding will have to be varied. That, however, gives rise to a variation in the form of the disciplinary action that can be taken against the State but not to any immunity in favour of the State for the simple reason that the defendant in the suit is the State and not an individual. This, in my view, disposes of the first point.
30. Coming now to the second point as to whether action under O. 39, B. 2 (3), Civil P. C. for contempt against the State for the disobedience of the order of injunction passed against it can or cannot lie, it is enough to say that the answer to it in the affirmative follows as a necessary corollary from the decision given on the first point. In case this position is denied in law the very purpose of the suit in many cases against the State will fail; and not only in that case the plaintiff will be put to unnecessary harassment and fruitless efforts but court will also feel itself paralysed in giving proper and necessary relief to an actor in that suit.
31. The third point has already been answered in the course of the discussion on the first point. The difference in the character of the State as contradistinguished from that of an individual will only affect the form of the disciplinary action. The disciplinary actions provided in Clause (3) of Rule 2 Of Order 39, Civil P. C, are two e.g., the attachment of the property of the contemner or his detention and the two modes of punishment as laid down in the case of - Ottapurakkal Thazath Suppi v. Keyanna Koya Kunki Koya AIR 1916 Mad 446 (24) are only alternative. Therefore, keeping in view the special character of the State the punishment will be confined only to the attachment of the property. For the reasons stated I hold that an action in contempt under Order 39, Rule 2 (3), Civil P. C. may be taken against the State or the Government for its disobedience of an order passed in a suit wherein the State Is a party.
32. Before I close the discussion on this point I may mention here that Mr. B. C. De appearing for the respondent laid down an astounding proposition perhaps with a view to avoid all the difficulties which he might have felt in meeting the points raised by Mr. Sinha. His contention was that the State of Bihar is not in any respect a sovereign body. It is in his opinion only a local body with no sovereign power. This proposition on the face of it is so untenable that I need not discuss it any further and leave it merely by making a reference to its having been, submitted in the course of argument by Mr. De.
33. Next point raised by the learned Government Advocate was that in any case there was no intention on the part of the State of Bihar in issuing and publishing the notification to commit any disobedience of the order of injunction. What, I think, he meant by this was that the issuing and the publication of the notification were done inadvertently and by mistake on the part of some of the officers of the State and with no intention to disobey the order. I have already referred to in the earlier part of my judgment that a disobedience to a judgment, order or process of the Court even without any misconduct is a contempt in theory though in that case the respondent may be ordered only to pay the costs of the application. Here, however, it is difficult to say that the disobedience which is alleged to have been done by the State was mere unintentional. The word used in clause (3) of Rule 2 of Order 39, Civil P. C. is "disobedience" without any qualifications. As against that in the corresponding provision of law in England, that is, in Order 42 Rule 31 of its Code, the word "disobedience" is qualified by the word ''wilful''. Even then in the case of - Stancomb v. Trowbridge Urban Council 1910-2 Ch 190 (25) Warrington, J. observed :
In my judgment, if a person or a corporation is. restrained by injunction from doing a particular act, that person or corporation commits a breach of the injunction, and is liable for process for contempt, if he or it in fact does the act, and. it is no answer to say that the act was not contumacious in the sense that, in doing it, there was no direct intention to disobey the order. I think the expression ''wilfully'' in Order 42, Rule 31, is intended to exclude only such causal or accidental and unintentional acts as are referred to in - Fairclough v. Manchester Ship Canal Co. 1897 WN 7 (26). I think this view, though not of course expressed in the same words, is to all intents and purposes the view expressed in - Attorney General v. Walthamstow Urban District Council (1895) 11 TLR 533 (27). In my opinion, further, the act need not be done by the person himself. In the case of a corporation. it cannot be done by the corporation itself, at any rate in the case of such a corporation as an; urban district council. Such a body can only act by its agents or servants; and I think, if the act is in fact done, it is no answer to say that, done, as it must be, by an officer or servant of the council, the council is not liable for it, even though it may have been done by the servant through carelessness, neglect, or even. in dereliction of his duty. That seems to me to follow from - Rantzen v. Rothachild (1865) 14 WR 96 (Z8).
In this case the State had filed an application on 17-5-1952, for vacating the order of injunction and that application had already been heard. The order on that application was to be given on 2-6-1952. There was, therefore, no occasion for any hurry on the part of the State to issue the notification and get it published in the Gazette on 21-5-1952, without caring to wait for the order to be passed on 2-6-1952. This cannot be said, in view of the authority referred to above, to have been done inadvertently or by mistake. I, therefore, think that there is no substance in this . point.
34. The third point raised by the learned Government Advocate was that the notification dated 19-5-1952, which was published in the Gazette dated 21-5-1952, was made not in the exercise of the power existing On 19-3-1951, but in the exercise of a power altogether new and different which came into existence on the 18-6-1951. I must confess that this part of the argument was not very intelligible to me. It is very clear on the face of it that the order of injunction passed in the suit on 19-3-1951, against the state was still in force and had not been recalled. In that state of affairs it was not open to any party to disregard it. The amendment of the Constitution on 18-6-1951, had nothing to do with the order of injunction passed in the suit. It has been rightly pointed out by Countney-Terrell, C, J. in the case of -
If the Government had had any doubt as to their position after the injunction in the matter of abiding by the contract with the Kulyanpur Co. they should have asked for directions from the Court. As was said by their Lord-ships of the Privy Council in the case of - AIR 1915 SC 106 (2) (V) at pp. 109-110''.
It is the duty of the Crown and of every branch of the executive to abide by and obey the law. If there is any difficulty in ascertaining it, the Courts are open to the Crown to sue, and it is the duty of the executive in cases of doubt to ascertain the law, in order to obey it, not to disregard it.
I, therefore, think that this point also is without any substance.
35. The last point pressed by the learned Government Advocate in support of the appeal was that the provision of Order 39, Rule 2 (3), Civil P. C. is not applicable in the circumstances of this case for the reason that the acts done in disobedience of the order of injunction passed are not retrace-able. That, in my opinion, even if true, that is, even if the notification and its publication in the Gazette by the State cannot be withdrawn, serves more to aggravate the situation than to allay it and in any case it cannot be a ground for holding that no contempt was committed. In a proceeding for contempt under Order 39, Rule 2 (3), Civil P. C, the court is not concerned with the legal effect of the order but its main concern is to see how far the act done in disobedience of its order is in disregard to its authority. I, therefore, hold that this point also fails.
36. In the result, therefore, I find no substance in this appeal and it is accordingly dismissed with costs.
Sahai, J.
37. The question whether the State is liable for tortious acts of its servants does not directly arise for consideration in this case. As the points which arise for determination can be disposed of without reference to that question, I do not wish to express any opinion on it.
38. I agree with my learned brother''s conclusions on the other points raised by the learned Government Advocate, and I also agree that the appeal should be dismissed with costs. I merely wish to say a few words in connection with the point substantially pressed by the learned Government Advocate on behalf of the State, namely, that the State of Bihar is immune from liability under Order 39, Rule 2 (3), Civil P. C. for disobedience of an order of injunction passed against it.
39. Article 299 of the Constitution provides for exemption of the President, or the Governor or the Bajpramukh from personal liability in respect of any contract an assurance made or executed on their behalf as representing the Union of India or a particular State. The same exemption from personal liability has been extended to those who make or execute any such contract or assurance on their behalf. Clause (1) of Article 331 of the Constitution provides for immunity of the President, a Governor or a Rajpramukh for official acts, but the second proviso to this Article makes it clear that the right of any person to bring appropriate proceedings against the Government of India or the Government of a State is not restricted by this clause. Article 300 of the Constitution lays down that the Government of India or the Government of a State may sue or be sued by the name of the Union of India or by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of the State, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued before the Constitution came into force. In view of this Article read with the second proviso to Clause (1) of Article 361, it is perfectly clear that the Government of a State may be sued even in respect of official acts in certain circumstances.
40. No provision has been made in the Constitution or in any other enactment, restricting the right of a person to make a prayer for injunction against a State in suitable cases. Rule 2 of O. 39, Civil P. C. contemplates a suit in which the plaintiff seeking relief that the defendant be restrained from committing a breach of contract or other injury of any kind. There is nothing to show that a suit of this kind cannot be instituted against a State, nor is there anything to show that temporary injunction cannot be granted against a State in accordance with the provisions of Clause (2) of Rule 2. u/s 10 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, the Governor General has provided for division of the liabilities of the Governor General in Council and the Province of Bengal and the Punjab in respect of an actionable wrong between the new dominions and the new provinces.
In the case of the -
41. In the present case, the plaintiff sought and obtained an order of temporary injunction against the State of Bihar on 19-3-1951. The defendant, the State of Bihar, was restrained from issuing "any notification for taking over possession of the suit properties under the Land Reforms Act". In view of what I have said above, this order of temporary injunction could be and was properly issued by the Court. Indeed, the learned Government Advocate has not found any fault with it. The only question, therefore, is whether the State of Bihar is liable to be dealt with under Order 39, Rule 2 (3), Civil P. C., for disobedience of the order by issuing the notification dated the 19-5-1952 and published in the Bihar Gazette (Extra-ordinary) dated 21-5-1952.
This notification has been issued under Sub-section (1) of Section 3 of the Bihar Land Reforms Act. It is the State Government which is empowered under that provision to issue the necessary notification. Thus, I the position is that the State of Bihar which alone had power to issue this notification has issued it and has thereby infringed the order of injunction which was passed against it. in its capacity as the defendant in Title suit No. 40 of 1950. There being no provision in the Constitution or in any other enactment providing for immunity of the State from being dealt with under Order 39, Rule 2 (3), Civil P. C., there seems to be no warrant for holding that the State of Bihar is not liable for action under that provision.
This conclusion receives full support from a comparison of the provisions of Article 300 and the second proviso to Article 381 of the Constitution with the provisions relating to the immunity of the President, or the Governor or the Rajpramukh of a State for official acts in an action in a Court. As the Government, like any other corporation, is incapable of acting for itself and has necessarily to act through its servants, the only action for disobedience of an order of injunction which can be taken against it is to order its property to be attached. The other alternative remedy of detention in civil prison cannot apply to a corporation and it will not apply to a State. That, however, does not, in my opinion, militate against the liability of the State of Bihar to be dealt with under Order 39, Rule 2 (3), Civil P. C. Thus it is clear that the State is not immune from liability as contended for by the learned Government Advocate.
