9911796707
TMI Blog1954 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ox 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 Order 39, Rule 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 plaintiffs 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des in its list among other Acts and Regulations also the Bihar Land Reforms Act 1950 (Bihar Act 30 of 1050). 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 find it received the assent of the President on 11-8-1950. On its enactment, the State of Bihar in the exercise of the power given to it under the Act issued a number of notifications under Section 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 contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that application showed cause on 1-7-1852 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 bv 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 by the Government of India Act 1838. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch one of these authorities elaborately. It will suffice to say that they unimpeachably establish that by now the general immunity of the State in India in the field of torts has been put to at least three broad exceptions and in those cases the State is liable to an action in Courts for the tortious liabilities of its servants. For a clear appreciation of the problem it may be advantageous to state the three broad exceptions here. They 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 HC App 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 43 (PC) (R). 2. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1348) 6 STNS 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 mandate 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 MLJ 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 ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations made therein on that point are obiter. 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 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 exte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence 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 -- (Y) the State was not a party. The case was confined to the disobedience by a private individual of an order of injunction passed against him in the case and so it is of no assistance in this case. 24. The decisions in the case of -- AIR 1938 SC 295 (W)' and in the case of -- (SB) (X) refer to the same controversy. The former is the decision given in appeal by the Privy Council over the judgment in the latter by this Court. In this case three persons-- (1) the Collector of Shahabad through the Secretary of State for India in Council, (2) one S.N. Ghose described as the manager of the Kalyanpur Lime Works Limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tempt 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 osbtruct 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 proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dis-oebdience 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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, provided it gives rise to the necessary implication of an intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In my opinion, this doctrine of English paw 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 ol 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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 m 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 2-5-1952. 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 or a power altogether new and different, which came into existence on the 18-8-1951. 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 passes in the suit on 19-3-1951, against the State was still in force and had not been recalled. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Rajpramukh 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 361 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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, 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 Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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