The State of Bihar V. Rani Sonabati
Kumari [1960] INSC 155 (20 September 1960)
AYYANGAR, N. RAJAGOPALA DAS, S.K.
KAPUR, J.L.
SUBBARAO, K.
HIDAYATULLAH, M.
CITATION: 1961 AIR 221 1961 SCR (1) 728
CITATOR INFO :
R 1963 SC1241 (85) RF 1964 SC 669 (14) MV
1967 SC 997 (47,59) R 1974 SC 555 (78)
ACT:
Temporary injunction-Disobedience by State of
order issued against it-Proceeding in contempt, against the State-
Maintainablity-Code of Civil Procedure, 1908 (Act V of 1908), 0. 39, r.
2(3)-Constitution of India, Art. 300.
HEADNOTE:
The respondent sued the State of Bihar for a
declaration that the Bihar Land Reforms Act, 1950, was ultra vires, void and
unconstitutional and for a permanent injunction restraining the State and its
officers or agents from issuing any notification there under in respect of her
estate or taking possession thereof and on a petition filed along with the
plaint obtained an order of temporary injunction against the State in terms of
her prayer, pending the hearing of the suit. More than a year thereafter, the
State made an application under 0. 39, r. 4 of the Code for a discharge of the
order of temporary injunction on the ground that the impugned Act had in
another case been declarer valid by the Supreme Court. Before that application
could, however, be heard, the State of Bihar, on May 19, 1952 issued a
notification under s. 3(1) of the Act, authenticated by the Additional
Secretary to the Government, declaring that, amongst others, the respondent's estate
had vested in the State of Bihar under the provisions of the Act. Thereupon the
respondent moved the trial Court for taking action against the State under 0.
39, r. 2(3) of the Code. The contention on behalf of the State was that in view
of Art. 31-B of the Constitution the issue of the notification was lawful and
could not constitute contempt of Court. The Subordinate judge held that this
was no defence to the application by the respondent and directed attachment of
the appellant's property to the value of Rs. 5,000 and the High Court on appeal
affirmed that decision.
Held, that the courts below took the correct
view of the matter and that the appeal must be dismissed.
The procedure laid down by 0. 39, r. 2(3) of
the Code of Civil Procedure is remedial and essentially one for the enforcement
or execution of an order of temporary injunction passed under 0. 39, r. 2(1)
and is available against the State although the provision for detention may not
apply to it. It is wrong to say that it is either contrary to Art.
300 of the Constitution or hit by the rule
that no action lies against the State in tort or for a wrong-doing entailing
punishment or compensation.
District Board of Bhagalpur v. Province of
Bihar, A.I.R.
1954 729 Pat. 529 and Tarafatullah v. S. N.
Maitra, A.I.R. 1952 Cal.
gig, distinguished.
There is also no basis for the contention
that the State is not expressly or by necessary implication mentioned in 0.
39, r. 2(3). The word 'person' used by it,
properly construed, includes the defendant against whom the order of injunction
is primarily issued as also the defendant's agents, servants and workmen. Since
the court's power to issue an order of temporary injunction against the State
under 0. 39, r. 2(1) cannot be in doubt, disobedience of such an order when
issued necessarily attracts 0. 39, r. 2(3) of the Code.
Director of Rationing & Distribution v.
Corporation of Calcutta, [1961] 1 S.C.R. 158, held inapplicable.
Held, further, that when once an order is
passed which the Court has jurisdiction to pass, it is the duty of the State no
less than any private party to obey it so long as it stands, and the conduct of
the State Government in the instant case in issuing the notification at a time
when its application for vacating the injunction was still pending and the
attitude taken up by it after the application under
0. 39, r. 2(3) was made and persisted in till
the end must be disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 83 of 1956.
Appeal from the judgment and order dated June
30, 1954, of the Patna High Court in Appeal from Original Order No. 255 of
1952.
Lal Narayan Sinha and S. P. Varma, for the
appellant.
A. V. Viswanatha Sastri, B. K. Saran, D. P.
Singh and K. L. Mehta, for the respondent.
1960. September 20. The Judgment of the Court
was delivered by AYYANGAR J.-The State of Bihar is the appellant in this appeal
which comes before us on a certificate granted by the High Court of Patna under
Art. 133(1) (c) of the Constitution.
The principal point of law raised for
decision in the appeal is whether a State is liable to be proceeded against
under 0. 39, r. 2(3) of the Code of Civil Procedure, when it wilfully
disobeys-an order of temporary injunction passed of nomine against it.
There is little controversy regarding the
facts, but they have to be set out to appreciate some of the matters debated
before US.
730 The Bihar Land Reforms Act, 1950 (which
we shall refer to as the Act), which provided for the transference to the
'State of the interests of proprietors 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, the respondent filed a
petition for a temporary injunction in which the prayer ran:
" It is therefore prayed 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 XXX of
1950) and from meddling or interfering with the possession of the plaintiff to
the properties in suit, till the disposal of this suit ".
The Court issued an ex parte ad interim
injunction presumably in terms of the prayer in the petition, and directed
notice of the petition to be served on the State of Bihar who filed their
counter-affidavit on December 9, 1950, opposing the grant of any interim
injunction and praying that the petition be dismissed 731 with costs. The
petition was heard in the presence of both the parties on March 19, 1951, and
the Subordinate Judge made the ad interim injunction absolute and the order
went on to add " 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 not interfere with or disturb in any manner the
plaintiffs possession over these properties under any of the provision of the
aforesaid Act until this suit is finally disposed of by this Court ". The
order was appealable under 0. 43, r.
(1) (r) of the Code, but the State preferred
no appeal and so it became final.
On May 17, 1952, an application was filed by
the State for vacating the order, on the ground that the validity of the Act
had been upheld by this Court in another case involving the same points and
that thereafter the plaintiff had no prima facie case to sustain the
injunction. Before however this application invoking the powers of the Court
under 39, r. 4 of the Code came on for hearing-(it was actually heard on May
30, 1952, when it reserved it for orders to be pronounced on June 2, 1952) the
State of Bihar issued on May 19, 1952, a notification under s. 3(1) of the Act
declaring that the Handwa Raj Estate belonging to the respondent, had passed to
and became vested in the State under the provisions of the Act. The
notification ran:
"In exercise of the powers conferred by
sub. section (1) of section 3 of the Bihar Land Reforms Act, 1950 (Bihar Act
XXX of 1950), the Governor of Bihar is 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.
732 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 and authorised and the publication of
the same does, not constitute contempt of court." The only matter here set
out, viz., that the constitutional validity of the Act had been affirmed by an
amendment of the Constitution, could obviously afford no defence to the breach
of an injunction order and indeed this was not sought. to be supported before
us. The learned Subordinate Judge passed an order on July 31, 1952, which ran
" that in view of the notification constituting a breach of the
injunction, the property of the defendant State of Bihar shall be attached to
the value of Rs. 5,000. The plaintiff is directed to file the list of
properties of this value and necessary requisites for issue of the attachment within
seven-days of this order." From this order the State preferred an appeal
to the High Court. The appeal was, however, dismissed by the High Court by
judgment rendered on June 30, 1954, and by reason of a certificate granted by
the learned Judges under Art.
'133(1)(c) the State has preferred this
appeal.
The arguments addressed to us by Mr. Lal
Narayan Sinha who appeared for the appellant State, when closely analysed
resolved themselves into five points:
733 (1) That the order of the Subordinate
Judge dated March 19, 1951, did not on its' plain language, interdict the issue
of a notification under s. 3(1) of the Act, but merely directed the State, not
to disturb the possession of the plaintiff.
It was common ground that beyond the issue of
the notification, neither the State, nor its officers or servants had done
anything by way of interfering with the possession of the plaintiff.
(2) That at the worst the order of the
Subordinate Judge, having regard to the language employed, was reasonably
capable of two interpretations-(a) that the direction to the State included a
prohibition against issuing a notification under s. 3(1), and (b) that there
was no interdiction against notifications under s. 3(1) but only against
notifications which directly involved or authorised interference with the
plaintiff's possession of her Estate.
Proceedings for, contempt even for the
enforcement of orders of Civil Courts being quasi-punitive in their nature, it
was urged that a party who bona fide conducted himself on the basis of one of
two possible interpretations could not be held guilty of contempt.
(3) That the rule that the Crown 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, 734 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 19, 1951, did not in terms or in substance
prohibit the State from issuing a notification under s. 3(1).
Section 3(1) of the Act runs:
" 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." It was urged that the Subordinate Judge by his order
directed the State " not to issue any notification for taking possession
"-and as the notification under s. 3(1) does not proprio vigore affect or
interfere with the possession of the proprietor or tenure-holder, the issue of
such a notification was not within the prohibition. The same argument was
addressed to the High Court and was repelled by the learned Judges and in our
opinion correctly.
In the first place, the only
"notification" contemplated by the provisions of the Act immediately
relevant to the suit, was a notification under s. 3(1). Such a notification has
the statutory effect of divesting the owner of the notified estate of his or
her title to the property and of trans- ferring it to and vesting it in the
State. The State is enabled to take possession of the estate and the properties
comprised in it by acting under s. 4, but the latter provision does not
contemplate any notification, only executive acts by authorized officers of the
State. Of course, if action had been taken under s. 4, and the possession of the
respondent had been interfered with, there would have been a further breach of
the order which directed the State. not to interfere with or disturb in any
manner, the plaintiff's possession. What we desire to point out is that the
order of the Court really consisted of two parts- the earlier directed against
the defendant publishing a notification which in the context of the relevant
statutory 735 provisions could only mean a notification under s. 3(1) and that
which followed, against interfering with the plaintiff's possession and the
fact that-the second part of the order was not contravened is no ground for
holding that there had been no breach of the first part. In the next place, the
matter is put beyond the pale of controversy, if the order were read, as it has
to be read, in conjunction with the plaint and the application for a temporary
injunction. Mr. Sinha did not seriously contend that if the order 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 willfully
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 clearly of the view that the case
before us does not satisfy either condition. In dealing with the first
contention urged by learned Counsel, we have pointed out the true construction
of the order-and in our opinion that is the only construction which it could
reasonably bear. But this apart, even if the order was equivocal as learned
Counsel puts it, still, it is of no avail to the appellant, unless the State
Government understood it 94 736 in the sense, that the order was confined to
acts by which the possession of the plaintiff was directly interfered with and
the notification was issued on that understanding and belief. There are two
pieces of conduct on the part of the State Government which are wholly
inconsistent with the theory that the order was understood by them as learned
Counsel suggested. The first is that before the notification under s. 3(1) was
issued they applied to the Court to vacate the order of injunction so that they
might issue notification, and it was during the pendency of this application
that the notification was issued-without waiting for the orders of the Court on
their petition. The second is even more significant. When notice was issued to
the defendant to show cause why it should not be committed for contempt, one
would naturally expect, if the point urged has any validity, the defence to be
based on a denial of disobedience, by reference to the sense in which the order
was understood. We have already extracted the relevant paragraph of the
counter-affidavit and in this there is no trace of the plea now put forward.
Even in the memorandum of appeal to the High Court against the order of the
learned Subordinate Judge under 0. 39, r. 2(3) there is no indication of the
contention now urged and though a faint suggestion of inadvertence on the part
of some officer appears to have been put forward during the stage of argument
before the High Court, the point in this form was not urged before the learned
Judges of the High Court, as seen from the judgment. The question whether a
party has understood an order in a particular manner and has conducted himself
in accordance with such a construction is primarily one of-fact, and where the
materials before the Court do not support such a state of affairs, the Court
cannot attribute an innocent intention based on presumptions, for the only
reason, that ingenuity of Counsel can discover equivocation 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 737 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
dispute that Title Suit 40 of 1950 was properly laid and that the Court had
jurisdiction to entertain it, as also jurisdiction to pass the order of
temporary injunction against the defendant State pending. the decision of the
suit. But learned Counsel urged that it did not automatically follow that the
State was amenable to proceedings, for disobedience of the injunction.
Proceedings for contempt even for enforcing an order of a Civil Court, he
submitted, were really a punishment for wrong doing and in essence, therefore,
quasi- criminal. For this reason he contended that Art. 300 which permitted
suits to be filed against the Union and the States could not be held to authorise
proceedings of such a quasi- criminal nature, and that as a result the Common
Law rules, that the King could do no wrong and that the Crown could not be sued
for a tort, were attracted. In this connection learned Counsel invited our
attention to the decisions in District Board of Bhagalpur v. Province of
Bihar(1) and Tarafatullah v. S. N. Maitra (2). In the first of these cases, a
large number of English and Indian decisions on the liability of the Crown in
(1) A.I.R. 1954 Pat. 529.
(2) A.I.R. 1952 Cal. 919, 927.
738 tort were discussed. The question for
consideration before the learned Judges was whether the suit before the Court
against the Government could be legally maintainable and as to the scope and
limits of the rule,, respondent superior" in such actions against the
State-but both these matters are far removed from the pale of the controversy
before us.
In regard to the other ruling of the learned
Judges of the Calcutta High Court, learned Counsel relied not so much on the
decision itself but on the following observations of Mukerji, J. (1):
" 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 have 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 ".
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 (1) A.I.R. 1952 Cal. 919. 927.
739 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 the order
had been proved. The question therefore whether the Government could be liable
to be proceeded against for contempt for disobedience of an order which a Court
has jurisdiction to pass and which bound the Government, the act constituting
the contempt being unmistakably an act for which Government could not as such
disclaim responsibility did not arise for consideration in that case.
Having regard to the findings of fact reached
by the Court, the observations regarding the scope of the liability of
Government were wholly orbiter. In regard to the passage relied on we need only
say that observations about the ambit of Art. 300 of the Constitution are too
widely expressed and do not take into account, the provisions of the Civil
Procedure Code 0. 21, r. 32 & 0. 21, r. 39(2)(3) which directly bear on the
matter and which we shall discuss presently. Further, they cannot also apply to
those cases where the disobedience takes the form of a formal Government order
as in this case. In this connection we prefer the approach to the question
indicated by the learned C. J., who said:
" 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 for 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
fit 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 740 Learned Counsel laid considerable
stress on the proceedings under 0. 39, r. 2(3) being quasi-criminal, in an
attempt to establish that the State could not be proceeded against for such a
criminal wrong. Though undoubtedly proceedings under
0. 39, r. 2(3), Civil Procedure Code, have a
punitive aspect-as is evident from the condemner being liable to be ordered to
be detained in civil prison, they are in substance designed to effect the
enforcement of or to execute the order. This is clearly brought out by their
identity with the 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 person could not be ordered to
be detained in civil prison, On the analogy of Corporations; for which special
provision is made in 0. 39, r. 5, but beyond that,, both when a decree for a
permanent injunction is executed and when an order of temporary injunction is
enforced the liability of the State Government to be proceeded against appears
to us clear. The third point urged lacks substance and is rejected.
Some point was sought to be made of the fact
that 741 as the State was a juristic entity merely, the wrong which constituted
the disobedience, must have been the act of some servant or agent of the
Government and that except on the principle of vicarious liability the State
could not be liable. This argument which is partly based on the observations of
Mukherji, J., in the passage already extracted would if accepted deny that
there could be any action by the State at all, is really part of the last
submission and could conveniently be dealt with along with it. Besides, it need
only be mentioned that the fact that officers and servants of Government could
be dealt with as individuals bound by the orders passed against the defendant
Government, nor the fact that they would be liable in' contempt is no ground at
all for holding that the State Government itself would not be liable for their
own act.
(4) The invocation of the rule of
construction that the Crown was not bound by a statute unless by express words
or by necessary implication the intention so to bind was manifested, was the
next submission of learned Counsel, reliance being placed for the position, on
the recent decision of this Court in Director of Rationing & Distribution
v. Corporation of Calcutta (1).
We shall proceed to consider the soundness of
the contention that on a proper construction of the Civil Procedure Code the
State of Bihar is not within 0. 39, r. 2(3). Article 300 of the Constitution
permits suits, which before the Constitution could have been filed against the
Central and Provincial Governments respectively, to be filed against the Union
and the State. As already stated, there is no dispute that' having regard to
the cause of action alleged in the- plaint, Title Suit 40 of 1950 could be
properly laid against the State and the plaintiff could, if she was able to
make good her allegations of fact and law, be entitled to be granted the
reliefs prayed for in her suit 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 (1) [1961] S.C.R. 158.
742 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 in such suits and how these orders could be enforced.
Part IV of the Code comprising ss. 79 to 82, sets out the details of the pro-
cedure to be followed in suits against Government. Section 79 prescribes what,
the cause title of suits against Government should be, the expression
'Government' being used to designate both the Union as well as the State
Governments. Section 80 provides-making a special provision not applicable to
suits against private parties, for a two months' notice prior to suit. If
Government were a party to a suit, it necessarily follows that where the
plaintiff succeeds there might be a decree against the Government-the Union or
the State-and s. 82 lays down special rules for the execution of such decrees.
In the 1st Schedule to the Code, there is a separate chapter-Chapter XXVII,
dealing with suits against Government, in which provision is specially made for
adequate time being granted to it for conducting the various stages of the
proceedings before Courts.
The foregoing, in our opinion, makes it clear
that the State is bound by the Code of Civil Procedure, the 743 scheme of the Code
being that subject to any special provision made in that regard, as respects
Governments, it occupies the same position as any other party to a proceeding
before the Court.
We are further satisfied that even apart from
the Scheme of the Code, the State, as a party defendant is plainly within the
terms of 0. 39, r. 2(3) of the Code.
There is here no controversy that the
Subordinate Judge had jurisdiction to pass the interim order of injunction
against the State on the terms of 0. 39, r. 2(1) which reads:- "In any
suit for restraining the defendant from committing injury of any kind, whether
compensation is claimed in it or not, the plaintiff may at any time after the
filing of the suit apply to the Court for a temporary injunction to restrain
the defendant from committing the injury complained
of......................." The reference to the " defendant " in
the sub-rule precludes any argument against the State being exempt from or
being outside the statute. The entire argument on this part of the case was
based on the difference between the language employed in cl. (1) extracted
above and cl. (3) of the rule making provision for the manner in which
disobedience to orders passed under cl. (1) could be dealt with.
Clause (3) runs:
"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 95 744
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 (1). It was further
pressed upon us that the construction suggested would not render injunction
orders passed on the State when it was a defendant brutum fulmen, because, the
State as a juristic person could act only through human agency and there would
always be some officer-a natural " person guilty of disobedience " in
every case where orders passed against a State were disobeyed. We are clearly
of the opinion that the entire argument should be rejected.
We feel wholly unable to accept the
construction suggested of the expression " person guilty of disobedience
" in the clause. The reason for the variation in the phraseology employed
in cls. (1) and (3) of 0. 39, r. 2 is not far to seek. Under the law when an
order of injunction is passed, that order is binding on and enforceable not
merely against the persons eo nomine impleaded as a party to the suit and
against whom the order is passed but against " the agents and servants,
etc." of such a party. If such were not the law, orders of injunction
would be rendered nugatory, by their being contravened by the agents and
servants of parties. For that reason, the law provides that in order that a
plaintiff might seek to enforce an order against a servant or an agent of the
defendant, these latter need not be added as defendants to the suit and an
order obtained specifically against the man order against the defendant
sufficing for this purpose. If such agents or servants, etc., are proved to
have formal notice of the order and they disobey the injunction, they are
liable to be proceeded against for contempt, without any need for a further
order against them under 0. 39, r. 2(1). This legal position is brought out by
the terms of an injunction order set out in Form 8 of Appendix F to the Code
which (1) [1961] 1 S.C.R. 158.
745 reads:"The Court doth order that an
injunction be awarded to restrain the defendant C. D., his servants, agents and
workmen, from..................... It is not suggested that the form which the
order of the Subordinate Judge took in this case, departed from this model.
If such is the scope of an order for
injunction, it would be apparent that the expression " person " has
in 0. 39, r.
2(3) been employed merely compendiously to
designate everyone in the group " Defendant, his agents, servants and
workmen " and not for excluding any defendant against whom the order of
injunction has primarily been passed. It would therefore 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 Subordinate Judge to be the disobedience, had been established
to be " the act " of the State. The entirety of the argument on this
part of the case was rested on the terms of Art. 154(1) of the Constitution
reading:
(1) Maxwell on Interpretation of Statutes,
10th Edition, P. 140. Cf. Moore V. SMith, (1859) 28 L.J.M.C. 126.
746 " The executive power of the State
shall be vested in the Governor and shall be exercised by him either directly
or through officers subordinate to him in accordance with this
Constitution".
It was urged that the publication of the
notification was " an executive act "-an exercise of the executive
power of the State-and since such a power could be exercised either by the
Governor directly or through officers subordinate to him, it could not be
predicated, from the mere fact that the notification was purported to be made
in the name of the Governor, in Conformity with the provisions of Art. 166(1)
that it was the Governor who was responsible for the notification and not some
officer subordinate to him. On this reasoning the further contention was, that
unless the respondent proved that it was the Governor himself who had
authorised the issue of the notification, the State or the State Government
could not be fixed with liability therefore, so as to be held guilty of
disobedience of the order of injunction.
The submission of learned Counsel is correct
to this extent that the process of making an order precedes and is different
from the expression of it, and that while Art.
166(1) merely prescribes how orders are to be
made, the authentication referred to in Art. 166(2) indicates the manner in
which a previously made order should be embodied.
As observed by the Privy Council in King
Emperor v. Sibnath Banerji (1)with reference to the term " executive power
" in Ch. 2 of Part 3 of the Government of India Act, 1935, corresponding
to Part VI, Ch. 11 of the Constitution) " the term 'executive' is used in
the broader sense as including both a decision as to action and the carrying
out of the decision ".
Section 3(1) of the Act confers the power of
issuing notifications under it, not on any officer but on the State Government
as such though the exercise of that power would be governed by the rules of
business framed by the Governor under Art. 166(3) of the Constitution. But this
does not afford any assistance to the appellant. The order of Government in the
(1) (1945) L. R. 72 I. A. 241 747 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 (1), already referred to, Lord Thankerton pointing out the distinction
between delegation by virtue of statutory power therefore and the case of the
exercise of the Governor's power by authorized subordinates under the terms of
a. 49(1) of the Government of India Act, 1935 (corresponding to Art. 154(1) ),
said:
" Sub-a. 5 of s. 2 (of the Defence of
India Act, 1939) provides a means of delegation in the strict sense of the
word, namely, a transfer of the power or duty to the officer or authority
defined in the sub. section, with a corresponding divestiture of the Governor
of any responsibility in the matter, whereas under s. 49(1) of the Act of 1935,
the Governor remains responsible for the action of his subordinates taken in
his name." This last point also is therefore without force and has to be
rejected.
Before concluding, we consider it proper to
draw attention to one aspect of the case. It is of the essence of the rule of
law that every authority within the State (1) (1945) L.R. 72 I.A. 241.
748 'including the Executive Government
should consider itself bound by and obey the Law. It is fundamental to the
system of polity that India has adopted and which is embodied in the
Constitution that the Courts of the land are vested with the powers of
interpreting the law and of applying it to the facts of the cases which are
properly brought before them..
If any party to the proceedings considers
that any Court has committed any error, in the understanding of the law or in
its application, resort must be had to such review or appeals as the law
provides. When once an order has been passed which the Court has jurisdiction
to pass, it is the duty of all persons bound by it to obey the order so long as
it stands, and it would tend to the subversion of, orderly administration and
civil Government, if parties could disobey orders with impunity. If such is the
position as regard private parties, the duty to obey is all the more imperative
in the case of Governmental authorities, otherwise there would be a conflict
between one branch of the State polity, viz., the executive and another
branch-the Judicial. If disobedience could go unchecked, it would result in
orders of Courts ceasing to have any meaning and judicial power itself becoming
a mockery. When the State Government obeys a law, or gives effect to an order
of a Court passed against it, it is not doing anything which detracts from its
dignity, but rather, invests the law and the Courts with the dignity which are
their due, which enhances the prestige of the executive Government itself, in a
democratic set-up. We consider that on the facts of this case there was no
justification, legal or otherwise for the State Government to have rushed the
notification under s.
3(1), when its application to modify or
vacate the order for interim injunction was pending before the Subordinate Court.
But more than that, when possibly by failure
to appreciate their error, the notification had been published, and the
propriety and legality of its action was brought up before the Court by an
application under 0. 39, r. 2(3), the attitude taken up by the State Government
and persisted in upto hearing before us, has been one which we can 740 hardly
commend. If the Government had deliberately intended to disobey the order of
the Court, because for any reason they considered it wrong, their conduct deserves
the severest condemnation. If on the other hand it was merely a case of
inadvertence and arose out of error, nothing would have been lost and there was
everything to be gained, even in the matter of the prestige of the Government,
by a frank avowal of the error committed by them and an expression of regret
for the lapse, and it is lamentable that even at the stage of the hearing
before us, there was no trace of any such attitude.
The appeal fails and is dismissed with costs.
Appeal dismissed.
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