The State Of Tripura vs The Province Of East Bengal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: IV of 1949

Decision Date: 04/12/1950

Coram: Hiralal J. Kania, Saiyid Fazal Ali, B.K. Mukherjea, N. Chandrasekhara Aiyar

In a matter titled The State of Tripura versus The Province of East Bengal, the Supreme Court of India delivered its judgment on 4 December 1950. The bench that heard the case comprised Chief Justice Hiralal J. Kania, Justice Saiyid Fazal Ali, Justice B. K. Mukherjea, and Justice N. Chandrasekhara Aiyar. The petitioner was identified as The State of Tripura and the respondent as The Province of East Bengal, with the Union of India entering the proceedings as an intervener. The judgment was reported in the 1951 volume of the All India Reporter at page 23 and also appears in the Supreme Court Reports at page 1 of the 1951 volume. Subsequent citations of the decision include references in the 1966 and 1969 law reports and in the 1973 report of the Supreme Court.

The factual backdrop involved a notice issued by the Income-tax Officer of Dacca, who was acting under the Bengal Agricultural Income-tax Act of 1944. The notice, sent by registered post, was addressed to the manager of an estate that legally belonged to the State of Tripura but was physically situated within the territory of Bengal. The notice required the manager to file a return concerning the agricultural income generated by the estate during the preceding year. The manager received the notice while he was in Tripura. In response, the State of Tripura, through its then ruler, instituted a suit in June 1946 against the Province of Bengal and the Income-tax Officer. The suit was filed in the court of the Subordinate Judge of Dacca and sought a declaration that the provision of the Bengal Agricultural Income-tax Act imposing a liability to pay agricultural income-tax on the plaintiff was ultra vires and void. Additionally, the State requested a perpetual injunction restraining the defendants from undertaking any assessment proceedings against it.

Subsequent procedural developments saw the suit transferred to the Court of the Subordinate Judge of Alipore. After the partition of India under the Indian Independence Act on 15 August 1947, the Province of East Bengal, in which the estate lay, substituted itself for the Province of Bengal as a defendant by filing an application. In its written statement, the Province of East Bengal contended that the Alipore Court, located in West Bengal, lacked jurisdiction to entertain the suit. The High Court of Calcutta, on appeal, reversed the order of the Subordinate Judge of Alipore and held that the provisions of the Indian Independence (Legal Proceedings) Order of 1947, together with the Indian Independence (Rights, Property and Liabilities) Order of 1947, did not apply to the present dispute. Consequently, the High Court concluded that the matter was governed by the rules of international law and that the Alipore Court was without jurisdiction to proceed.

The Court observed that the Indian Independence (Rights, Property and Liabilities) Order of 1947 was not applicable to the present dispute. Because the matter was therefore governed by the rules of international law, the Subordinate Judge’s Court at Alipore lacked jurisdiction to continue with the suit. This conclusion was recorded by Chief Justice Kania, Justice Patanjali Sastri, Justice Mukherjea and Justice Chandrasekhar Aiyar, with Justice Fazl Ali concurring in the majority opinion.

The Court further held that the suit did not concern any property that had been transferred to East Bengal under the Indian Independence (Rights, Property and Liabilities) Order of 1947, nor did it relate to any “rights” transferred by that Order. The Province of East Bengal had obtained the authority to impose an income-tax not by any conveyance under the Order but by virtue of sovereign powers preserved by section 18(3) of the Indian Independence Act of 1947. Consequently, Article 12(2) of the Order could not be invoked in this case. Justice Fazl Ali expressed a dissenting view on this point.

In the first detailed point, the Court explained that the purpose of the Indian Independence (Rights, Property and Liabilities) Order of 1947 was to allocate the initial distribution of rights, properties and liabilities between the two Dominions and their respective provinces. The Court therefore applied a wide and liberal construction to the Order, as far as its language permitted, so that no gap or lacuna would remain concerning the matters it intended to settle. The expression “liability in respect of an actionable wrong” should not be read narrowly as liability for damages arising from completed acts; instead, it should also encompass liability that can be restrained by injunction from the continuation of illegal or unauthorized acts that have already been commenced, according to the allegations in the plaint.

Accordingly, the Province of Bengal, based on the plaint’s allegations, was liable to be restrained from making an illegal tax assessment. That liability fell within the meaning of “an actionable wrong other than breach of contract” under Article 10(2)(a) of the Order. Because the cause of action arose wholly in Dacca, which lay within the Province of East Bengal, the liability transferred to East Bengal under the same article. Consequently, East Bengal was deemed to be substituted as a party to the suit, and the suit was required to proceed before the Subordinate Judge’s Court at Alipore, pursuant to Article 4 of the Indian Independence (Legal Proceedings) Order of 1947.

In the second point, the Court considered a hypothetical scenario where the cause of action did not arise entirely in Dacca. Under Article 10(9)(c), the liability would still attach to the Province of East Bengal, albeit jointly with the Province of West Bengal.

In the third point, the Court noted that the suit was not brought to set aside or modify any assessment made under the Bengal Agricultural Income-Tax Act of 1944. Therefore, section 65 of that Act did not apply. The suit was thus characterized as proceeding on the basis of an “actionable” wrong within the scope of the Order.

The Court explained that the expression “liability in respect of an actionable wrong other than breach of contract” found in Article 10 of the Indian Independence (Rights, Property and Liabilities) Order 1947 refers only to liability that can be measured in money, such as damages for a tort, and does not denote any abstract or theoretical liability. Even if the terms “actionable wrong” and “liability” are given a broad construction, the Court held that two ingredients are required to constitute an actionable wrong. First, there must be an act or omission that infringes a legal right of a person or that breaches a duty owed to that person. Second, there must be damage or injury that flows from that infringement or breach. The Court observed that the mere issuance of a notice under section 4 of the Bengal Agricultural Income-tax Act 1944 by the Income-Tax Officer does not satisfy these requirements. The notice, by itself, does not infringe any legal right, and consequently no claim for damages can arise from it, even if the Officer had exceeded his statutory authority or acted under an invalid provision. Accordingly, the Court concluded that no “liability for an actionable wrong” was created by the notice, and therefore no such liability could be transferred to the Province of East Bengal under Article 10(2) of the Order in order to permit the plaintiff to maintain the suit against that Province.

In further analysis the Court turned to the full text of section 65 of the Bengal Agricultural Income-tax Act 1944, noting that the latter part of the provision expressly states that no suit or other legal proceeding may be brought against any Crown officer for acts done or intended to be done in good faith under the Act. The Court interpreted this clause as a clear exclusion of court jurisdiction to restrain the Income-Tax Officer from continuing an assessment that has already been initiated. On a plain and fair construction, the provision therefore bars any suit relating to such an assessment, whether the defendant is the State itself or an Income-Tax Officer of the State. Since the statutory scheme precludes any suit or action, the Court held that no liability for an actionable wrong can arise in the circumstances. Consequently, the earlier finding that the suit could proceed against the Province of East Bengal under Article 10(2) was reversed, and the appeal was allowed.

Chandrasekhara Aiyar J rendered a judgment, Patanjali Sastri J authored the principal opinion, and Justices Fazl Ali and Mukherjea each delivered separate judgments. The matter before Patanjali Sastri J was an appeal from a decision of the High Court of Judicature in West Bengal that had set aside a finding of the Second Subordinate Judge of 24 Parganas at Alipore. That lower judge had previously held that he possessed jurisdiction to continue a suit after the plaintiff had substituted the Province of East Bengal (in Pakistan) in place of the former Province of Bengal, which had originally been named as a defendant. The essential facts giving rise to the suit were not contested. The Bengal Agricultural Income-Tax Act had been enacted by the Provincial Legislature of Bengal in 1944 and was made applicable to the entire province. The Act purported to bring within its charge the agricultural income of, among others, “every Ruler of an Indian State.” Pursuant to the provisions of that Act, which became effective on 1 April 1944, the Income-Tax Officer of the Dacca Range dispatched, by registered post, a notice to the manager of the Zemindari Estate known as Chakla Roshanabad. That estate belonged to the State of Tripura but lay geographically within Bengal, outside the territorial limits of Tripura. The notice demanded that the manager furnish a return of the total income that had been derived in the preceding year from lands of the estate used for agricultural purposes. The manager received the notice at Agar-talla in Tripura State.

In response, the State, acting through its then Ruler, Maharaja Sir Bir Bikram Bahadur, instituted the present suit on 12 June 1945 in the Court of the First Subordinate Judge, Dacca. The suit was filed against the Province of Bengal and the Agricultural Income-Tax Officer, Dacca Range, and it challenged both the validity of the notice and the proposed assessment. The plaintiff argued that the Provincial Legislature of Bengal lacked authority to impose tax on any income of an Indian State or its ruler, and further contended that the Income-Tax Officer, Dacca Range, had no jurisdiction to issue the notice to an estate manager situated outside British India. The cause of action was alleged to have arisen in Dacca, the court’s territorial jurisdiction, on 28 February 1945, the date the notice was issued. The reliefs claimed included a declaration that the Bengal Agricultural Income-Tax Act, 1944, insofar as it attempted to impose a liability on the plaintiff as a ruler of an Indian State, was ultra vires and void; a declaration that the notice served by the Income-Tax Officer was itself void and that no assessment could be based upon it; and a perpetual injunction restraining the defendants from taking any steps to assess the plaintiff for agricultural income-tax. Before the defendants filed their written statements, the High Court transferred the suit first to the Court of the District Judge, 24 Parganas, and subsequently from that court to the Court of the Subordinate Judge at Alipore.

After the ruler who had originally instituted the suit died, the plaintiff’s claim was amended in June 1947 by replacing the deceased ruler with his son and heir. The suit remained pending before the Subordinate Judge of Alipore when the partition of India became effective on 15 August 1947. On 9 December 1947 the Province of East Bengal filed a petition asserting that the Province of Bengal, which had been the first defendant in the suit, ceased to exist from 15 August 1947, and that two new provinces—East Bengal and West Bengal—had been created in its place. The petition contended that the Province of West Bengal was not interested in the litigation, and therefore it was necessary, for the interests of East Bengal, that the suit be contested and that a written statement be filed on its behalf. The petition further requested that any delay be condoned and that the written statement accompanying the petition be accepted. In the written statement the Province of East Bengal pleaded that, as a province of the Dominion of Pakistan and with the second defendant being a revenue officer of that province, the Court lacked jurisdiction to hear the suit or to grant an injunction against the defendants. The statement made clear that East Bengal’s appearance before the Court was solely to challenge the Court’s jurisdiction. On the same day a second written statement was filed in which defendant No. 2 raised additional defences; however, at the plaintiff’s request the name of defendant No. 2 was struck off the record as he was not a necessary party to the suit. On 10 December 1947 the Province of East Bengal was formally substituted in place of the now-defunct Province of Bengal as the defendant, and the written statement filed on its behalf was admitted. The Subordinate Judge then formulated a preliminary issue concerning the Court’s jurisdiction and, relying on section 9 of the Indian Independence Act and article 4 of the Indian Independence (Legal Proceedings) Order, 1947, determined the issue in favour of the plaintiff.

The assessment of the plaintiff’s agricultural income-tax was pursued by the Agricultural Income-Tax Officer of the Comilla Range in East Bengal, who on 22 December 1947 issued an order imposing a tax of Rs 1,79,848-12-0 for the year 1944-45 and Rs 1,34,326-7-0 for the year 1945-46. The Court, however, ordered that recovery of these amounts be deferred until the preliminary issue of jurisdiction was finally resolved. The Court noted, with reference to the Federal Court’s decision in Midnapore Zemindary Co. Ltd. v. Province of Bengal and Others, that the orders issued on 14 August 1947 by the Governor-General of India, under the authority of section 9 of the Indian Independence Act, were intended to eliminate the difficulties arising from the partition and were therefore binding on both the Dominion of India and the Dominion of Pakistan. These orders, which formed part of the legal framework relevant to the present dispute, included the Indian Independence (Legal Proceedings) Order, 1947, and the Indian Independence (Rights, Property and Liabilities) Order, 1947.

In this case, the Court observed that orders issued on 14 August 1947 by the Governor-General of India, which were made under section 9 of the Indian Independence Act, 1947 to address problems arising from the partition, were binding on both the Dominion of India and the Dominion of Pakistan. The orders that were pertinent to the dispute were the Indian Independence (Legal Proceedings) Order, 1947, and the Indian Independence (Rights, Property and Liabilities) Order, 1947. Article 4 of the Legal Proceedings Order provided that all proceedings that were pending immediately before the appointed day in any of the special tribunals listed in the Schedule would continue in that tribunal as if the Act had not been passed, and that the tribunal would retain, for the purposes of those proceedings, all jurisdiction and powers it possessed immediately before the appointed day. Article 4 also stipulated that within the territories of either Dominion, any order or sentence of such a Special Tribunal, and any High Court decision on appeal or revision therefrom, would be treated as if it had been made by a court of competent jurisdiction in that Dominion. Article 12(2) of the Rights, Property and Liabilities Order declared that when a province from which property, rights or liabilities were transferred by the Order was, immediately before the transfer, a party to legal proceedings concerning that property, rights or liabilities, the province that succeeded to the property, rights or liabilities under the Order would be deemed to be substituted for the other province as a party to those proceedings, and the proceedings could continue accordingly. The learned judges of the High Court interpreted these provisions to mean that, if article 12(2) applied to the present matter, the Province of East Bengal was, by operation of law, substituted for the Province of Bengal as a defendant, and that, because of the Legal Proceedings Order, the suit would continue in the Court of the Second Subordinate Judge, 24 Parganas, as an action against the substituted defendant. The Court fully agreed with that conclusion. However, the learned judges then examined the phrase “by this Order” in article 12(2) to determine whether any property, rights or liabilities had actually been transferred by the 1947 Rights, Property and Liabilities Order from the Province of Bengal to the Province of East Bengal. They concluded that no such transfer of property, rights or liabilities occurred under that Order; consequently, the continuation of the suit against the Province of East Bengal, which by then formed part of an independent sovereign state, was to be governed by principles of international law and comity of nations. Under those principles, the Court held that a province belonging to a sovereign state could not be subjected to suit in the Indian municipal courts against its will.

In this case the Court observed that the municipal courts of India did not have authority to compel the Province of East Bengal, now a part of an independent sovereign State, to appear before them, and consequently the suit that was pending in the Alipore Court had to be terminated. The Court also rejected a further contention that had been raised for the first time, namely that the filing of a petition on behalf of the Province of East Bengal seeking acceptance of its written statement and the resistance to various interim relief applications by the plaintiff meant that the Province had consented to the jurisdiction of the Alipore Court. Counsel for the appellant, identified as Mr. Sen Gupta in the original record, disputed the correctness of the decision on both of these points. Before addressing those arguments, the Court turned to two preliminary objections presented by the Advocate-General of East Bengal. The first objection concerned the status of the State of Tripura, which had been merged into the Dominion of India and placed under the administration of a Chief Commissioner, making it appear that the present Maharaja could no longer prosecute the appeal through his mother acting as next friend. It was submitted, however, that under the merger agreement the Estate of Chakla Roshanabad remained the personal property of the Maharaja and was no longer part of the territories of the State of Tripura. The Attorney-General for the Dominion of India, appearing as an intervener, confirmed this arrangement. The Court therefore found no substantive basis for the objection and held that any formal defect in the proceedings could be remedied by suitably amending the cause title. The second objection drawn the Court’s attention to the Pakistan (Indian Independence Legal Proceedings) Order of 1948, issued by the Governor-General of Pakistan on 13 November 1948 with retrospective effect from 15 August 1947. The Advocate-General argued that under the provisions of that Order any decree eventually issued by the Alipore Court would have no effect in Pakistan, and hence it was unnecessary for this Court to determine whether the Alipore Court possessed jurisdiction to hear the suit. The Court declined to accept that view. It stated that while the impact of the Order on any eventual decree might have to be considered by the court trying the suit after the validity of the Order is examined, the present consideration was limited to the question of jurisdiction, and the Court could not refuse to rule on that question merely because a subsequent decree might prove ineffective. Turning then to the principal issue, the Court noted that article 12 (2) of the Rights, Property and Liabilities Order applied solely to property rights or liabilities that were transferred by that Order from a province which was a party to the legal proceedings with respect to the transferred property, rights or liabilities.

In the matter before the Court, the Province that had been a party to the earlier legal proceedings was said to be involved “with respect to” the property or the rights or liabilities that were the subject of those proceedings. The present suit, however, could not be characterised as having been instituted with respect to the specific property that had been transferred, namely Chakla Roshanabad. Consequently, the appellant was unable to rely upon the transfer of that particular tract of land from the Province of Bengal to the Province of East Bengal as forming part of the territories allotted to Pakistan under the partition scheme. Moreover, there was no transfer of any “rights” in the sense contemplated by the relevant article of the Rights, Property and Liabilities Order. The only right on which the Province of Bengal could be described as having been a party in the pending proceedings, based on the facts of the case, was the authority to levy tax on the plaintiff’s agricultural income under the Bengal Agricultural Income-Tax Act, 1944. That taxing right was not acquired by the Province of East Bengal through any transfer under the Rights, Property and Liabilities Order. The High Court correctly observed that the authority to tax under the 1944 Act passed to the Province of East Bengal as part of the sovereign dominion of Pakistan by operation of section 18(3) of the Indian Independence Act, 1947, which provides that the law of British India and of its various parts, as it stood immediately before the appointed day, shall continue, subject to necessary adaptations, as the law of each new Dominion until altered by the legislature of that Dominion or by any other competent authority.

The next issue considered was whether any “liability” was transferred by the Order as contemplated in article 12(2). Counsel for the appellant, Mr. Sen Gupta, relied on article 10(2)(a), which declares that where, immediately before the appointed day, the Province of Bengal was subject to any liability described as “any liability in respect of an actionable wrong other than breach of contract” in subsection (1), such liability shall, if the cause of action arose wholly within the territories that from that day became the Province of East Bengal, become a liability of that Province. The plaintiff argued that the Province of Bengal was liable to be restrained from proceeding with an illegal and unauthorised assessment based on a notice issued under the Bengal Agricultural Income-Tax Act, 1944, and that the cause of action had arisen entirely in Dacca, where the assessment proceedings were initiated, a location that lay within the territory of the Province of East Bengal. Accordingly, the plaintiff contended that the liability should now be borne by the Province of East Bengal. The High Court rejected this contention, holding that article 10(2) pertains only to liability for an actionable wrong other than a breach of contract and that it was impossible to say that, by serving a notice on the plaintiff under the Bengal Agricultural Income-Tax Act through one of its officers, the Province of Bengal had committed an actionable wrong.

The Court observed that serving a notice on the plaintiff under the Bengal Agricultural Income-tax Act through an officer of the Province of Bengal did not, by itself, constitute an actionable wrong. It noted that even if the Province had acted beyond its authority or under an invalid statutory provision, the plaintiff might obtain a declaration to that effect, but the statute complained of could not be characterised as a tortious act. The Court further explained that assuming the act was tortious, the issuance of the notice was performed under powers conferred by the Act in relation to the Crown’s sovereign rights, and it is a fundamental principle that the Crown or the State is not liable for negligent or tortious conduct of its officers carried out in the execution of statutory duties, unless the act was specifically directed by the Crown and the Crown derived a profit from its performance. Accordingly, the Court concluded that no liability for an actionable wrong arose in the present suit, and that Dr. Sen Gupta could not establish a cause of action against the Province of East Bengal on the basis that liability had been transferred to that Province under article 10(2) of the Order. The Court held that the learned Judges had adopted an unduly narrow interpretation of the expression “liability in respect of an actionable wrong”. They had presumed that the phrase referred only to liability for damages resulting from a completed tortious act, and consequently had concluded that the commencement of what the plaintiff described as an unauthorized and illegal assessment procedure—by attempting to serve a notice requiring the plaintiff to file a return of his total agricultural income under section 24(2) of the Bengal Agricultural Income-tax Act, 1944, through an officer authorised by that Act—did not amount to an “actionable wrong” by the Province of Bengal. The Court disagreed with that approach. It then referred to section 9(1)(b) of the Indian Independence Act, 1947, which directed the Governor-General of British India to issue an order for dividing among the new Dominions and the newly created Provinces, the powers, rights, property, duties and liabilities of the Governor-General in Council or, as appropriate, of the Provinces that were to cease to exist. The Indian Independence (Rights, Property and Liabilities) Order was identified as the sole instrument effecting that division. Because the purpose of the Order was to set out the initial allocation of rights, property and liabilities between the two Dominions and their Provinces, the Court said a broad and liberal construction, consistent with the language of the Order, should be applied so that no gap or lacuna remains concerning the matters the Order intended to address. Consequently, there was no justification for interpreting the words “liability in respect of an actionable wrong” narrowly as liability only for damages for

In this case, the Court considered the meaning of the phrase “completed tortious acts.” It held that the expression should be understood to include liability that can be restrained by an injunction when the plaintiff asserts that an illegal or unauthorized act had already begun. The Court explained that when the plaintiff received a notice under section 24(2) of the Bengal Act, the notice did more than merely threaten an illegal levy in the abstract. The notice actually initiated an illegal assessment proceeding, and, in the ordinary course of events, such a proceeding was very likely to end in the illegal imposition of a tax. The Court pointed out that if the plaintiff failed to file a return as the notice required, section 25(5) of the Act would empower the Income-Tax Officer to make an ex parte assessment based on his own judgment and to fix the amount payable by the assessee on that basis. Moreover, the Court noted that such a failure would also expose the plaintiff, under section 32(1) of the Act, to the imposition of a penalty that could be equal to the tax assessed, or to prosecution for an offence before a Magistrate under section 53(1), at the discretion of the Income-Tax authority. Consequently, the Court found it clear that serving a notice demanding a return of income for assessment under the Act was a step that carried serious consequences for the assessee. If the assessment that was to follow was illegal and unauthorized because the Act itself was ultra vires—specifically because it attempted to tax the Rulers of Indian States—the service of the notice signified the start of a wrongful act by the Bengal Government, carried out under the colour of the Act. The Court further concluded that there could be no doubt that such a wrongful act was actionable, meaning that a civil court could entertain an action seeking an injunction to restrain the completion of the illegal assessment.

The Court observed that, according to the plaintiff’s case, the Province of Bengal was liable for that wrongful act at the time the suit was filed. The Court held that, by virtue of article 10(9)(a) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, that liability passed to the Province of East Bengal. The Court clarified that there was no issue of liability of the Crown for damages arising from any negligent or tortious act of its officers. For the purpose of deciding the preliminary question of jurisdiction, the Court assumed that the allegations in the plaint were well founded. On that assumption, the Court found that the Province of Bengal was unquestionably liable to be sued for an injunction restraining it from proceeding with the assessment, precisely because the notice had been served in what was claimed to be the exercise of powers granted by the Bengal Act. The name of the Income-Tax Officer who had originally been impleaded as the second defendant had been removed from the record, and therefore the Court held that no question of his personal liability arose. The Court’s reasoning established that the Province of East Bengal inherited the same obligation to refrain from completing the assessment, and that an injunction could be granted to prevent the continuation of the illegal process.

In the submissions, counsel referred to certain textbooks that describe a tort as an “actionable wrong” and argued that the two terms are interchangeable. The Court observed that while every tort qualifies as an actionable wrong, the reverse is not necessarily true. The wording “other than breach of contract” found in article 10 (1) indicated that the phrase “actionable wrong” was intended to have a broader meaning, which would have encompassed breach of contract but for those limiting words. It was further submitted that even if the service of the notice demanding a return of income constituted a wrongful act, it could not be described as actionable because section 65 of the Bengal Act prohibited civil suits “to set aside or modify any assessment made under this Act.” The Court replied that the present suit was not a suit “to set aside or modify an assessment” under the Act, since no assessment had been made at the time the suit was filed, and the later completion of the assessment was carried out by the Pakistan income-tax authorities on terms agreed between the parties and approved by the Court. The Court then considered the Privy Council decision in Raleigh Investment Co. Ltd. v. Governor-General in Council, which had been cited in support of the appellant’s argument. The Court distinguished that case because the principal relief sought there was repayment of tax alleged to have been levied ultra vires of the Indian Income-tax Act. Their Lordships had observed that although the form of the relief did not claim to modify or set aside the assessment, the substance did, because repayment of part of the sum could not be ordered while the assessment stood, and the declaration claim was merely a pre-condition to the repayment claim, while the injunction claim was merely verbal. The Court noted that the present suit differed completely, as the alleged wrongful act consisted of subjecting the plaintiff to harassment by initiating an illegal and unauthorized assessment proceeding that could ultimately lead to an unlawful levy of tax. It was also suggested, albeit weakly, that the cause of action, although stated in the plaint to have arisen in Dacca, now in the Province of East Bengal, did not arise entirely within the territory of East Bengal as defined by article 10 (2) (a), because the notice, although issued from Dacca, had been received by the manager of the estate at Agartala in Tripura State. The Court held that even if this argument possessed any merit, it offered no benefit to the respondent, because article 10 (2) (c) would then apply, making the Province of

East Bengal was held to remain liable, albeit jointly with the Province of West Bengal. The Court was of the opinion that, having succeeded to the liability to which the Province of Bengal was subject immediately before the appointed day, the former Province of East Bengal should be deemed to have substituted for the other Province as a party to the suit. Accordingly, the suit was required to continue in the Court of the Subordinate Judge at Alipore, which possessed jurisdiction to proceed with it under article 4 of the Indian Independence (Legal Proceedings) Order, 1947. In this view, it was unnecessary to consider the alternative submission to jurisdiction raised by the appellant. Consequently, the appeal was allowed, the order of the lower Court was set aside, and the suit now pending before the Subordinate Judge at Alipore was directed to be heard and determined by that Court. The respondent was ordered to pay the appellant’s costs throughout.

The question to be decided in the appeal was whether the Subordinate Judge’s Court at Alipore in the State of West Bengal had jurisdiction to try a suit in which the Province of East Bengal was impleaded as a defendant after 15 August 1947. The factual background was as follows. In 1944 the Bengal Legislature enacted the Bengal Agricultural Income-Tax Act, 1944 (Bengal Act IV of 1944), which authorised a tax on the agricultural income of various classes of persons, including “every Ruler of an Indian State” holding lands within the territory of Bengal. The appellant, who was the Ruler of the State of Tripura, owned a zamindari called Chakla Roshanabad Estates, situated in the Province of Bengal and in the District of Sylhet, formerly part of the Province of Assam. On 28 February 1945 the Agricultural Income-Tax Officer of the Dacca Range issued a notice under section 24(2) of the Bengal Act to the Manager of Chakla Roshanabad Estates, requiring him to furnish a return of the appellant’s total agricultural income for the previous year derived from lands situated within the Province of Bengal. On 12 June 1945 the appellant instituted a suit in the Court of the Subordinate Judge at Dacca against the Province of Bengal and the Agricultural Income-Tax Officer, Dacca Range, seeking (1) a declaration that the Bengal Agricultural Income-Tax Act, 1944, insofar as it imposed a liability to pay agricultural income-tax on the plaintiff, was ultra vires and void and that the plaintiff was not bound by it; (2) a declaration that the notice served by the Officer was void and of no effect and that no assessment could be made on its basis; and (3) a perpetual injunction restraining the defendants from taking any steps to assess the plaintiff to agricultural income-tax.

In this case, the Court noted that the plaintiff sought a perpetual injunction to restrain the defendants from taking any steps to assess the plaintiff for agricultural income-tax. The suit, originally filed in the Court of the Subordinate Judge at Dacca, was transferred on 15 July 1945 to the Court of the Subordinate Judge at Alipore in the District of 24 Parganas by an order of the Calcutta High Court. While the proceedings were still pending, the new Province of East Bengal, forming part of the Dominion of Pakistan, came into existence on 15 August 1947 as a consequence of the Indian Independence Act, 1947, and it appeared that the entire Chakla Roshanabad Estates lay within that Province. After the creation of the Province, a petition was filed on 9 December 1947 on behalf of the Province of East Bengal. The petition drew the attention of the Alipore Court to the fact that the Province of West Bengal, which formed part of the Dominion of India, was taking no interest in the suit and asked the Court to accept a written statement filed together with the petition. The written statement contained a single plea, namely that the Alipore Court lacked jurisdiction to hear the suit or to grant any injunction against the Province of East Bengal or defendant number two. The final paragraph of the written statement stated: “The Province of East Bengal appears only to contest the jurisdiction of the court and it submits that the suit should be dismissed on that ground.” Subsequently, the Province of East Bengal was impleaded as a defendant and the name of the Income-tax Officer of Dacca was removed from the list of defendants. The Subordinate Judge then examined the question of jurisdiction as a preliminary issue and held that, by virtue of the provisions of the Indian Independence (Legal Proceedings) Order, 1947 read with section 9 of the Indian Independence Act, 1947, the Court possessed jurisdiction to try the suit against the newly created Province. The respondent, i.e., the Province of East Bengal, then moved the Calcutta High Court under section 115 of the Code of Civil Procedure against the Subordinate Judge’s order. A Bench of the High Court consisting of Chief Justice Harries and Justice Chakravarthi allowed the application and set aside the Subordinate Judge’s order, thereby giving effect to the respondent’s objection that the Alipore Court was not competent to try the suit against the Province of East Bengal. One of the points raised by the appellant before the High Court was that the Province of East Bengal had submitted to the jurisdiction of the Subordinate Judge’s Court; the High Court rejected that contention. The appellant subsequently obtained a certificate under section 205 (1) of the Government of India Act, 1935, and, relying on that certificate, preferred the present appeal. The Court then referred to the judgments of the learned Subordinate Judge and the High Court.

It was observed that the appellant relied on three statutory provisions to support his claim that the Court at Alipore possessed jurisdiction to try the suit. The provisions cited were section 9 of the Indian Independence Act 1947, article 4 of the Indian Independence (Legal Proceedings) Order 1947 (hereinafter referred to as “the Legal Proceedings Order”), and section 12 of the Indian Independence (Rights, Property and Liabilities) Order 1947 (thereafter referred to as “the Rights, etc., Order”). The Court reproduced the text of each provision for consideration.

Section 9 of the Indian Independence Act states: “The Governor-General shall by order make such provision as appears to him to be necessary or expedient—(a) for bringing the provisions of this Act into effective operation; (b) for dividing between the new Dominions, and between the new Provinces, to be constituted under this Act, the powers, rights, property, duties and liabilities of the Governor-General in Council or, as the case may be, of the relevant Provinces which, under this Act, are to cease to exist ……….”

Article 4 of the Legal Proceedings Order provides: “Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947—(1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day; (2) any appeal or application for revision in respect of any proceedings so pending in any such court shall lie in the court which would have appellate, or as the case may be revisional, jurisdiction over that court if the proceedings were instituted in that court after the appointed day; and (3) effect shall be given within the territories either of the two Dominions to any judgment, decree, order, or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion.”

Section 12 of the Rights, etc., Order reads: “(1) Where immediately before the appointed day, the Governor-General in Council is a party to any legal proceedings with respect to any property, rights or liabilities transferred by this Order, the Dominion which succeeds to the property, rights or liabilities in accordance with the provisions of this Order shall be deemed to be substituted for the Governor-General in Council as a party to the proceedings, and the proceedings may continue accordingly. (2) Where any Province from which property, rights or liabilities are transferred by this Order is, immediately before the transfer, a party to legal proceedings with respect to that property or those rights or liabilities, the Province which succeeds to the”

In this matter, the Court examined the effect of the provisions governing the substitution of parties after the transfer of property, rights or liabilities by the Orders issued under the Indian Independence Act. The Court observed that Section 12(2) of the Rights, etc. Order provided that when a Province succeeded to the rights or liabilities of the former Province of Bengal, the succeeding Province was to be deemed substituted for the former Province as a party to any pending proceedings, and that those proceedings could therefore continue. The learned Subordinate Judge had based his entire judgment on Section 4 of the Legal Proceedings Order. However, the High Court had pointed out that this Order, standing alone, could not assist the appellant. According to the High Court, Section 4 might have enabled the appellant to prosecute his suit against the Province of Bengal, but it could not permit him to continue the suit against the new Province without invoking Section 12(2) of the Rights, etc. Order, which expressly provided for the substitution of the succeeding Province as a party. The Court agreed with that view. It was argued before the Court that a court which possessed jurisdiction to try a suit against a particular party would, by virtue of Section 4 of the Legal Proceedings Order, automatically have jurisdiction to substitute the heir or legal representative of that party. While the Court accepted that such a principle generally applied, it held that in the present case the Province of East Bengal, which formed part of another sovereign State, could not be automatically substituted for the Province of Bengal unless such substitution was authorized by a provision of the Indian Independence Act or by one of the Orders issued thereunder. Consequently, the entire dispute turned on the proper construction of Section 12(2) of the Rights, etc. Order. In the High Court, the appellant’s counsel had vigorously maintained that Section 12(2) fully applied because certain rights had been transferred to the Province of East Bengal from the old Province of Bengal. The appellant renewed the same argument before this Court, but the Court found it untenable for the reasons articulated by the High Court. The High Court had explained that Section 12(2) offered no assistance unless the rights in question were transferred by the Rights, etc. Order itself. The appellant’s counsel failed to identify any provision of that Order effecting the transfer of the rights he relied upon, and therefore could not sustain his reliance on Section 12(2). As a result, the appellant was compelled to rely on an alternative argument based on Section 10(2) of the same Order, and the issue for determination by this Court narrowed to whether Section 10(2) could be of any avail to the appellant.

Having been unable to rely on section 12(2) of the Rights, etc. Order, the appellant turned to an alternative contention based on section 10(2) of the same Order, and the issue that the Court was called upon to resolve therefore became a single question: whether section 10(2) of the Order could be of any assistance to the appellant. Section 10(2) could not be interpreted in isolation; it had to be read together with section 10(1). The substantive portions of these two sub-sections were set out as follows: “10 (1) Where immediately before the appointed day the Governor-General in Council is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall— (a) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Dominion of India, be a liability of that Dominion; … (2) Where immediately before the appointed day the Province of Bengal is subject to any such liability as aforesaid, that liability shall, (a) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of East Bengal, be a liability of that Province; (b) where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of West Bengal, be a liability of that Province; and (c) in any other case, be a joint liability of the Provinces of East and West Bengal.” It is clear that, for section 10(2) to operate, it must first be established that the Province of Bengal was subject to a liability for an actionable wrong that was not a breach of contract. Legal textbooks on tort law uniformly employ the phrase “actionable wrong” to describe the kind of wrong that gives rise to tort liability. For example, Stroud’s Judicial Dictionary, Second Edition, defines a tort as a “wrong independent of contract,” a description echoed in the Common Law Procedure Act, 1852 (15 & 16 Vict., c. 76), in Halsbury’s Laws of England, and in numerous other treatises. The distinction between the expressions “a wrong independent of contract” and “a wrong other than a breach of contract” is purely verbal and carries little substantive weight. Both expressions are commonly treated as synonymous with the term “tort,” and eminent scholars such as Sir Frederick Pollock and Professor Burdick of America have used “actionable wrong” interchangeably with “tort” in their writings; Burdick’s well-known treatise on tort law is even subtitled “a concise treatise on civil liability for actionable wrongs to person and property.” While some commentators, notably Addison, have observed that the phrase “an actionable wrong” does not itself define the term “actionable,” the legal community generally accepts the two expressions as equivalent. Consequently, the Court recognized that establishing a liability for an actionable wrong by the Province of Bengal is a prerequisite for the application of section 10(2) of the Rights, etc. Order.

In construing section ten, sub-paragraph two of the Rights, etc. Order, the Court emphasized the well-recognised principle that the chief and most common remedy for a tort is an action for damages.

This principle is underscored by the fact that numerous textbooks have incorporated the entitlement to damages as an essential element of the definition of a tort.

For instance, Salmond defines a tort as a civil wrong for which the remedy is a common-law action for unliquidated damages, expressly excluding breaches of contract, trusts or other purely equitable obligations.

Professor Winfield, while disagreeing with Salmond on several doctrinal points, describes tortious liability as arising from the breach of a duty primarily imposed by law, a duty owed to persons generally, and redressable through an action for unliquidated damages.

Underhill’s treatise further states that a tort consists of an act or omission unauthorised by law, independent of any contract, which infringes an absolute right of another and gives rise to a suit for damages by the injured party.

The learned author then observes that the Common Law Procedure Act of 1852 characterises a tort as a wrong independent of contract, and if the term “wrong” is understood as a violation of a legally recognised right enforceable by damages, the definition remains accurate though not particularly lucid.

He adds that this wording does not explain what specifically constitutes a wrong or a violation of a recognised right, but it does stress that the essential characteristic of a tort is that its appropriate remedy is an action for damages.

Consequently, any act or omission that fails to give rise to a claim for damages cannot be regarded as a tort under this interpretation.

The Court also acknowledged that an injunction may be a suitable remedy in a limited number of circumstances, yet it is not a remedy of universal application and has not been treated as an incident of tort.

Based on the foregoing discussion, the Court found it permissible to infer, first, that section ten of the Rights, etc. Order refers to liability arising from a tort, and second, that the liability contemplated therein is pecuniary, such as liability to pay damages.

The term “liability” possesses both a broader and a narrower meaning, and the narrower sense is appropriate where the word is contrasted with assets or where it appears in the plural or is preceded by an indefinite article.

The Court observed that when the expression “a liability” is used, it is preceded by an indefinite article and therefore the word “liability” must be understood in its narrower sense, namely liability that can be quantified in monetary terms. It was emphasized that the purpose of the Rights, etc. Order was, among other objectives, to allocate the rights, property and liabilities of the undivided Province of Bengal between the two newly created Provinces. Consequently, the view that the liabilities mentioned in section 10 of that Order are liabilities that can be determined in money, rather than abstract or academic liabilities, is consistent both with the purpose of the Order and with the well-known principle that the ordinary remedy for a tort is an action for pecuniary damages. This interpretation is reinforced by a reading of section 13 (2) of the Rights, etc. Order, which provides: “Where by virtue of the preceding provisions of this Order either of the Dominions or any Province becomes subject to any liability, and it is just and equitable that a contribution towards that liability should be made by the other Dominion, or by another Province, as the case may be, the other Dominion shall make to the Dominion or Province primarily subject to the liability such contribution in respect thereof as, in default of an agreement, may be determined by the Arbitral Tribunal.” The Court noted that the phrase “becomes subject to any liability” in section 13 (2) mirrors the language of section 10, and that the wording of section 13 (2) clearly indicates that “liability” was intended in the narrow sense of monetary liability, because otherwise there would be no basis for a contribution by the other Dominion or Province. The Court further referred to Part VII, Chapter III of the Government of India Act, 1935, entitled “Property, Contracts, Liabilities, and Suits,” on which the Rights, etc. Order appears to have been modeled. In section 179 of that Act, the meaning of “liability” is explained by the provision that any sum ordered to be paid as debt, damages or costs in any such proceedings, together with any costs or expenses, shall be paid out of the revenues of the Federation or the Province, as applicable. The Court concluded that it is a fair construction to hold that the liability referred to in section 10 of the Rights, etc. Order is to be met out of the revenues of the concerned Province. This construction, the Court explained, reflects what the drafters of the Order intended to convey by the words “liability in respect of an actionable wrong.”

In this case the Court observed that the expressions “actionable wrong” and “liability” must be interpreted in the widest sense that the law permits. The initial inquiry therefore was to determine what constitutes a wrong apart from a breach of contract. The Court held that it would be neither possible nor useful to disregard the extensive discussion found in respected textbooks and earlier judgments on the nature of torts, because every tort rests on the existence of a wrongful act. The Court noted that historically some commentators had claimed that English law did not possess a general law of tort but merely a catalogue of specific acts and omissions that could be made actionable. However, the Court remarked that modern thinking has moved far beyond that narrow view and that, in general, torts are regarded as “infinitely various – not limited or confined,” as expressed in Chapman v. Pickersgill. The Court further explained that whenever a person’s right is invaded and injury results, a tort is said to have occurred, a principle often captured by the Latin maxim injuria sine damnum. The Court then referred to sections 17, 18 and 19 of the Code of Civil Procedure, quoting Mulla’s commentary that defines “wrong” as a tort or actionable wrong, namely “an act which is legally wrongful as prejudicially affecting a legal right of the plaintiff.” Underhill’s interpretation was cited as agreeing with this meaning, describing a wrong as the violation of a right recognised and enforced by law through a claim for damages.

The Court concluded that, based on the foregoing authorities, a “wrong” must contain two essential elements. First, there must be an act or omission that infringes a legal right of a person or breaches a legal duty owed to that person. Second, the act or omission must cause harm or damage to that person, whether the damage is actual or presumed. The Court linked these elements to the Latin terms injuria (the wrongful act) and damnum (the damage). The Court also incorporated the proposition from [1762] 2 Wils. 146, per Pratt C.J., that in certain instances—such as trespass, assault, false imprisonment, and similar incursions—the law presumes damage because the invasion of a right is so blatant. The Court quoted Lord Wright M.R.’s observations in Nicholls v. Ely Beet Sugar Factory to illustrate that such instances are often described as cases of absolute liability or as torts actionable per se without the need to prove actual damage. Having set out this framework, the Court turned to the present dispute and examined whether the two elements of an actionable wrong were present. To do so, the Court said it must consider the most credible version of the appellant’s case, which can be summarized in the following manner.

In this case the plaintiff identified a notice mentioned in paragraph S of the plaint, a notice that demanded the appellant to submit a return of his total agricultural income derived from lands situated within the Province of Bengal. The plaintiff asserted that the issuance of that notice constituted the initial step in launching an unlawful assessment procedure that was likely to result in an illegal imposition of tax. By alleging that the commencement of such a procedure gave the appellant a cause of action, the plaintiff claimed that the appellant was entitled to obtain an injunction that would prevent the defendants from completing the proceeding. Relying on this argument, the plaintiff contended that the matter fell within the scope of section 10 of the Order that was under consideration, observing that the language of that provision was sufficiently broad to embrace liability that could be restrained by an injunction where an illegal or unauthorized act had already been set in motion. Accordingly, the plaintiff maintained that, by virtue of section 10 of the Rights, etc. Order, the liability to be restrained must be deemed to have passed to the Province of East Bengal. The plaintiff acknowledged that this formulation might appear plausible, but insisted that a careful examination revealed that the essential requirements of the material provision were not satisfied.

The discussion then turned to the necessity of identifying an act or omission that had actually occurred, rather than a speculative future event, as the foundation of every alleged wrong. The only act that the plaintiff identified as having occurred was the issuance of the notice. The Court observed that this issuance was not an unauthorized or prima facie unlawful act; instead, it was carried out under the authority of a statute and was expressly authorized by that statute. The plaintiff’s complaint was not directed against the entire Act but only against a particular provision, which the plaintiff alleged to be ultra vires. The argument was that a notice addressed to any person except the Ruler of an Indian State would have been a perfectly legitimate exercise of power, whereas a notice addressed to the Ruler was ultra vires. However, the Court noted that such a contention alone did not establish a wrong. To constitute a wrong, it had to be shown that the issuance of the notice amounted to an infringement of a recognised right of person or property, or some other legal right. The pleadings did not specify which right, if any, was infringed. Moreover, it was conceded that no assessment had been made, no tax had been levied, and the appellant could have demonstrated to the assessing authority that he was not assessable. Consequently, merely characterising the notice as the first step in an illegal assessment proceeding did not, on its own, satisfy the requirements for establishing a wrong.

The Court observed that the expression used by the appellant appeared to be only a verbal device intended to hide the basic weakness of the appellant’s case. In interpreting the term “wrong” in its proper sense, the Court said that the first matter to determine is the manner in which a legal right has been infringed or a duty has been breached. The appellant himself argued that the suit was filed for a threatened or apprehended wrong; however, that very phrasing indicated that the suit had been instituted before any alleged wrong had actually occurred. Moreover, the Court noted that the second element required to establish a wrong – namely, that the injured person must have suffered some actual harm or injury – was missing in the present facts. The appellant did not claim that the notice had caused him any real damage, nor did he suggest that the law should presume damage in this situation. The only allegation was that the notice might cause inconvenience, trouble, or harassment to the appellant, but the Court held that such a possibility, by itself, did not amount to a legal wrong. The Court further explained that the issue could be examined through established principles of tort law.

Referring to the authority of Underhill, the Court reiterated that “an act or omission which does not give rise to an action for damages is not a tort.” The Court cited a comparable statement from Salmond’s Law of Torts, which declares that “no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages; such an action is an essential characteristic of every true tort.” The Court also mentioned Professor Winfield’s observation that the availability of an action for unliquidated damages serves as the definitive test of tortious liability, a view that has been endorsed by several cases. The Court argued that the same principle applies when the word “tort” is replaced by the phrase “actionable wrong,” meaning that the primary remedy for an actionable wrong must be an action for damages. Consequently, the Court asked whether the appellant could maintain a claim for damages based on the allegations in his plaint. A review of the plaint showed that the appellant had neither alleged nor claimed any damages, nor had he asserted any entitlement to compensation. Citing Rogers v. Rajendro Dutt, the Court noted that an action in tort requires the complained-of act to be legally wrongful against the complainant, i.e., it must prejudice a legal right. The Court also referred to Kali Kischen Tagoor v. Jodoo Lal Mullick, which observed that an interference with a right without loss (damnum) or injury (injuria) cannot sustain an action. In light of the absence of both a demonstrable infringement of a right and a resulting loss or injury, the Court concluded that no liability for an actionable wrong could be established in the present case.

The Court noted that no actionable wrong had been established in the present matter and therefore it was wholly inappropriate to invoke section ten of the Rights, etc. Order. It observed that the appellant’s whole case was constructed around two specific references: the first being Moore’s I.A. 103 at page 135, and the second being I.A. 190. The appellant relied on the proposition that an injunction is a recognised form of legal action and that he was seeking an injunction to prevent a circumstance that he alleged was likely to culminate in a wrong. The Court explained that the situation envisioned by the appellant is fundamentally different from what section ten of the Order contemplates. That provision deals with liability for an actionable wrong that has already occurred, not with liability for a circumstance that might become a wrong in the future. The Court stressed that the two terms used in the provision—“actionable” and “wrong”—must both be satisfied; the mere fact that a matter is actionable does not bring it within the scope of section ten unless all the elements of a wrong are proven. At this stage the Court considered the nature of an injunction as a remedy where an actionable wrong is alleged to have been committed. It affirmed that an injunction is one of the remedies available in certain tort cases. Referring to Addison’s commentary, the Court explained that the origin of the injunction lies in the inadequacy of damages for serious, continuing wrongs such as trespasses and nuisances, where a wrongful act has been performed with an intention to continue it.

The Court further observed that an injunction may also be granted to prevent a threatened injury or wrong, provided that the threatened act, if carried out, would inevitably violate a legal right. Citing an English decision, the Court noted that judicial intervention in such cases is based on the jurisdiction to provide preventive justice, thereby protecting property and rights from actions that, if completed, would give rise to a cause of action. The Court distinguished two categories of injunctions: one issued to stop a continuing wrong and the other to prevent a threatened wrong. It held that the liability to which an injunction attaches does not automatically amount to “liability in respect of an actionable wrong.” While the two liabilities may coincide when a continuing wrong exists and the injunction seeks to halt it, the Court warned that where no wrongful act has yet occurred, equating “liability in respect of an actionable wrong” with “liability to an injunction in respect of an apprehended wrong” would stretch the ordinary meaning of the terms. Accordingly, the Court concluded that “liability in respect of an actionable wrong” means liability that arises only when an actionable wrong has actually been committed.

The Court observed that liability in respect of an actionable wrong arises only when a wrongful act has actually been committed; it does not extend to liability for preventing a wrongdoing that is merely apprehended. Accordingly, the liability contemplated in section ten of the Rights, etc., Order cannot be generated simply by filing a suit in which an injunction is sought.

The Court then referred to section one hundred seventy-six, clause one, of the Government of India Act, nineteen-thirty-five, which provides that the Federation may sue or be sued by the name of the Federation of India, and a Provincial Government may sue or be sued by the name of the Province. The provision further allows, subject to any enactments made by the Federal or Provincial legislatures under powers conferred by the Act, the respective governments to sue or be sued in matters concerning their affairs in the same way that the Secretary of State in Council could have sued or been sued if the Act had not been enacted.

The Court explained that this section consists of two parts. The first part deals with the appropriate name to be used for a plaintiff or a defendant when a suit is brought against the Crown or the Government. The second part addresses the circumstances in which the Federal or Provincial Government may sue or be sued. To understand the latter part, the Court indicated that it must be read in conjunction with section sixty-five of the Government of India Act, eighteen-fifty-eight, and section thirty-two of the Government of India Act, nineteen-fifteen.

Section sixty-five of the eighteen-fifty-eight Act declared that the Secretary of State in Council could sue and be sued both in India and in England under the name of the Secretary of State in Council as a body corporate, and that all persons and bodies politic could pursue the same legal and equitable remedies against the Secretary of State in Council of India as they could against the East India Company. Section thirty-two of the nineteen-fifteen Act incorporated substantially the same provision.

From this statutory background, the Court noted that a long line of cases has examined whether, and under what circumstances, the Secretary of State could be held liable for a tort or other wrong committed by servants of the Crown. It has now been definitively held that the Secretary of State may be liable in certain situations.

For the purposes of the present discussion, the Court identified three material points derived from a careful review of numerous authorities. First, the principles of the law of torts have been applied consistently in all cases concerning the liability of the Secretary of State for wrongs perpetrated by servants or agents of the Crown or the Government. Second, it is settled law that

In this case, the Court observed that the Secretary of State cannot be held liable for wrongs committed by servants of the Crown when those servants are acting under duties imposed by legislation; the Court referred to earlier authorities such as Shivabhajan v. Secretary of State for India (1), James Evans v. Secretary of State (2), Tobin v. Reg (3) and Ross v. Secretary of State (4), where the principle is fully explained and the reasons for it are set out. The Court further noted that it is well settled that where a statute expressly authorises a particular person to perform an act that would otherwise be unlawful or actionable, no civil action may lie for the performance of that act. Applying these principles, the Court concluded that neither the Agricultural Income-tax Officer, who has now been dismissed from office, nor the Province of East Bengal can be said to be liable for an actionable wrong, assuming that such a wrong has in fact occurred. It must be stated, with reference to the authorities I.L.R. 28 Bom. 314 (1), 16 C.B.N.S. 310 (3), A.I.R. 1920 Lah. 364 (2) and I.L.R. 1915 Mad. 434 (4), that this conclusion rests on the assumption that the Court’s construction of what constitutes an actionable wrong is correct. The appeal was premised on the contention that, for the purpose of deciding the case, all facts alleged in the plaint must be taken as true, including the view that the Bengal Act is ultra vires and that the notice issued under it was without authority. The Court pointed out that only one specific provision of the Act, not the entire Act, is alleged to be ultra vires, and that even if that assumption were accepted, the case would not fall within section 10 of the Rights, etc. Order. The learned Attorney-General of India, appearing for the Union of India, supported the High Court judgment on three grounds: first, that the language of section 10 of the Rights, etc. Order does not apply because no actual wrong has been committed and a threatened wrong is distinct from an actual wrong; second, that section 65 of the Bengal Agricultural Income-tax Act bars the suit; and third, that the suit is bound to result in an infructuous decree and therefore should not be allowed to proceed. The Court had already dealt with the first ground and observed that the point raised by the Attorney-General is not specifically pleaded in the Memorandum of Appeal or in the Statement of Case. The only point raised in those documents is that section 12 of the Rights, etc. Order is applicable because certain rights have been transferred from the old Province of Bengal to the Province of East Bengal.

In this case the Court observed that the rights transferred from the old Province of Bengal to the Province of East Bengal were invoked, but the submission made no reference to section ten of the Order, nor did it argue that the liability for an injunction brought the suit within that provision. Consequently, the Court noted that almost every argument previously advanced in the lower courts was to be set aside, and the present application sought a decision on a point that had not been raised in the Statement of the Case. According to the Court’s practice rules, a point not pleaded in the pleadings could not ordinarily be taken up for consideration. The second argument, presented by counsel for the appellant, relied on section sixty-five of the Bengal Agricultural Income-Tax Act, which provides that no suit may be instituted in any civil court to set aside or modify any assessment made under the Act, and that no prosecution, suit or other proceeding shall lie against any Crown officer for any act done or intended to be done in good faith under the Act. The Court pointed out that this provision did not apply to the present matter because no assessment had yet been made and, on its face, the appellant’s suit could not be characterised as one seeking to set aside or modify an assessment. Nevertheless, counsel for the appellant argued that section sixty-five must be read in conjunction with the decision of the Privy Council in Raleigh Investment Co. v. Governor-General in Council (1947) F.C.R. 59. That precedent involved the Indian Income-Tax Act, 1922, whose provisions were similar to those of the Bengal Act, and which contained a section sixty-seven that was almost identical in wording to section sixty-five of the Bengal statute. In the Raleigh case the taxpayer had paid the assessed tax under protest and then filed suit seeking (a) a declaration that the provisions of the Income-Tax Act on which the assessment was based were ultra vires and therefore illegal, (b) an injunction restraining the Income-Tax Department from making further assessments, and (c) repayment of the amount assessed. Although it was strongly contended that section sixty-seven was inapplicable, the Privy Council held that, although the relief claimed did not expressly state a modification or setting aside of the assessment, in substance it did so, because repayment could not be ordered while the assessment remained in force. The Council further held that an assessment made under the statutory machinery, even if based on a provision later held to be ultra vires, was not a nullity but a mistake of law made in the exercise of the Act. Finally, the Council observed that the Act contained a mechanism that allowed a taxpayer to raise, before the courts, the question whether a particular provision affecting his assessment was ultra vires, and that such a mechanism provided a jurisdiction to challenge the assessment beyond the ordinary civil jurisdiction of the High Court.

In the judgment the Court explained that attempting to question an assessment without using the procedures expressly laid down in the statute would be inconsistent with the legal duty to pay tax that arises from that assessment. The Court then set out the essential part of its reasoning on this issue. It began by stating that, when interpreting the relevant provision, it was necessary to determine whether the Income-tax Act provided a mechanism that allowed a taxpayer to raise, before the courts, the question of whether a particular provision of the Act that formed the basis of the assessment was ultra vires. The Court observed that the existence of such a mechanism, although not decisive on its own, supported a construction of the provision that did not create a separate jurisdiction for examining the same matter. Conversely, the Court noted that if the statute lacked such a mechanism, this would greatly aid the appellant’s argument on construction, and it might even raise a serious constitutional question as to whether the introductory part of the provision, which purported to bar consideration of ultra vires issues, was within the legislative competence. The Court continued by affirming that, at the relevant date, the Income-tax Act of 1922 did indeed grant the assessee an effective right to challenge, in relation to an assessment, the validity of any provision of the Act that he claimed to be ultra vires. Under section 30, a taxpayer whose sole ground of objection was that the assessment relied on a provision he considered ultra vires could appeal against the assessment. If the taxpayer was dissatisfied with the result of that appeal – the specific procedural details being irrelevant – he could request that a case be stated on any point of law for the High Court’s opinion. Should the authority refuse that request, the taxpayer could approach the High Court for an order compelling the case to be stated and referred for judicial consideration. The Court emphasized that it was unmistakable that the range of legal questions that could be raised through a case stated included any question concerning the validity of a taxing provision that had been applied in the assessment under review. Moreover, any decision of the High Court on such a point of law was itself subject to appellate review. Consequently, the Act itself supplied an effective and appropriate mechanism for reviewing, on a legal ground, any assessment. The Court therefore concluded that section 67 must be interpreted in the context of this scheme. It observed that the overall design of the Act was to establish a specific procedural machinery, through which the total assessable income for tax purposes was to be determined, and that the tax liability was to be calculated solely on the basis of that total income as ascertained by the prescribed process.

Section 45 of the Act imposes a legal duty on the taxpayer to pay the amount of tax that is demanded on the basis of the assessment of total income. The Court observed that permitting a challenge to the assessment by any means other than the specific procedure set out in the Act would be inconsistent with the statutory obligation to pay that tax. The only uncertainty, in the Court’s view, was whether a provision expressly excluding the jurisdiction of a civil court to set aside or modify an assessment was required in order to prevent such challenges.

The Court noted that, although the authority of the earlier decision was not placed in dispute before it, two important points were raised. First, the present suit does not fall within the scope of the first part of section 65 of the Bengal Act, which deals solely with suits that aim to set aside or modify an assessment. Second, because the suit is outside the ambit of section 65, the Privy Council’s ruling—based on its construction of section 67 of the Income-tax Act—cannot be applied to the present case. Counsel for the respondent responded to the first contention by urging that the analysis should not be limited to the literal wording of the section but should also consider the principle underlying it. Counsel highlighted that, strictly speaking, the reliefs sought in the referenced case did not fit within the literal terms of section 67, and therefore the Privy Council observed that “In form the relief claimed does not profess to modify or set aside the assessment. In substance it does … The cloud of words fails to obscure the point of the suit.” The Court agreed that the Privy Council’s decision was influenced not only by the language of section 67 but also by the comprehensive mechanism provided by the Act for dealing with all questions arising from an assessment, including questions of ultra vires. The Court recalled that, while the Privy Council affirmed that there was no jurisdiction to question the assessment except through the machinery expressly provided by the Act, it added that “the only doubt, indeed, in their Lordships’ mind, is whether an express provision was necessary in order to exclude jurisdiction in a civil court to set aside or modify an assessment.”

Finally, the Court held that a full understanding of the scope of section 65 requires reading both its opening clause, which bars suits to set aside or modify an assessment, and its subsequent clause, which provides that “no suit or other proceeding shall lie against any officer of the Crown for anything done in good faith… intended to be done under this Act.” The latter clause clearly removes the jurisdiction of the court to impede the Income-tax Officer from continuing an assessment that has already been commenced. In this sense, the Court concluded that the statutory scheme is designed to ensure that the assessment process proceeds unhindered, and that any attempt to obtain an injunction against the Officer or the assessing authority would be inconsistent with the express intention of the legislation.

In referring to the decision in Secretary of State v. Meyyappa Chetti- ar(1), the Court noted that the phrase “intended to be done” was interpreted to signify a future action and therefore to preclude injunctions against proceedings that the Income-tax Officer "intended" to commence. While the provision in question explicitly concerns the Income-tax Officer, the Court observed that it would be difficult to accept that the Legislature intended the Officer to be immune from restraint on the one hand, yet to allow the effect of that protection to be nullified by permitting an injunction against the Provincial Government or the State. In the Court’s view, it would be a puzzling construction of the statute to hold that, although the section bars suits to modify or set aside an assessment and bars all proceedings to restrain the Officer from carrying out the assessment, it nevertheless leaves open the possibility for a litigant to halt the assessment by obtaining an injunction against the Provincial Government or the State in lieu of an injunction against the Officer concerned. The Court further pointed out that the text of either part of the section contains no reference to the Provincial Government or the State, and that, taken as a whole, the section is concerned solely with excluding the jurisdiction of the civil courts with respect to acts done or intended to be done in connection with the assessment of agricultural income-tax. Accordingly, a fair construction, the Court held, requires that the provision bar all suits relating to such an assessment. In advancing his third argument, the learned Attorney-General relied upon an Ordinance issued by the Governor-General of Pakistan on 13 November 1948, specifically section 2, which provides that “No judgment, decree, order or sentence referred to in paragraph (3) of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, shall affect the legislative or executive right or authority of the Central or any Provincial Government of Pakistan and where such right or authority has been at issue, the judgment, decree, order or sentence shall be invalid and inoperative subject to any decision that may be obtained from a competent court, of the Province concerned.” It was argued that, by virtue of this Ordinance, any decree that might be obtained in the present suit would be wholly ineffective, rendering the litigation meaningless and unsuitable for continuation. Although the Court recognised that there was some merit in this line of reasoning, it deemed it unnecessary to pursue further because, in its opinion, the first two points raised by the Attorney-General sufficiently addressed the principal contention advanced by the appellant. The Court further considered that the issue of submission to jurisdiction was unarguable on the facts of the case and had not been seriously contested before it. The Province of East Bengal had intervened and sought permission to file a written statement, but the only statement submitted was that the Court lacked jurisdiction to proceed with the suit, which did not amount to a submission to the Court’s jurisdiction.

The Court observed that the sole statement made by the Province of East Bengal when it intervened was that the Court lacked jurisdiction to proceed with the suit; consequently, the Province could not be deemed to have submitted to the Court’s jurisdiction. The Court then considered the appeal and found that it could be disposed of on a straightforward ground: the issuance of a notice under section 4 of the Bengal Agricultural Income-tax Act by the Agricultural Income-tax Officer did not constitute an actionable wrong, because no legally recognised right was infringed by that notice. The Court explained that a recognised test for an actionable wrong requires, at a minimum, that the injured party be able to maintain an action for damages, based on the principle that every injury entails damage. It was further held that under the facts alleged in the plaintiff’s plaint, no such action for damages could be sustained.

The Court noted that the arguments advanced by the appellant had already been fully addressed by the High Court, and it reproduced the pertinent passage to summarise the legal position: “Nor was Dr. Sen Gupta right in relying on article 10 (2) for the transfer of liabilities. That Article is concerned with liability for an actionable wrong other than breach of contract and it is impossible to say that by serving a notice on the plaintiff under the Bengal Agricultural Income Tax Act through one of its officers, the Province of Bengal had committed an actionable wrong. Assuming it exceeded its powers or acted under an invalid provision of law, the plaintiff may have a declaration to that effect, but the act complained of cannot be said to have been a tortious act. But even assuming it was, it is to be remembered that the issue of the notice was in exercise of powers conferred by the Act in relation to the Sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its officers done in the course of their official duties imposed by statute, except where the particular act was specifically directed and the Crown profited by its performance. There is no such allegation in the plaint in the present case. The plaintiff could not therefore have sued the Province of Bengal for an actionable wrong and the suit actually brought is not a suit of that character. It is a suit for certain declarations and an injunction and does not seek to make the Province liable for any actionable wrong in any way. No liability for an actionable wrong is thus involved in the suit and Dr. Sen Gupta cannot establish a right to proceed against the Province of East Bengal on the basis that the liability was transferred to that Province under article 10 (2).”

Accordingly, the Court concluded that the plaintiff could not claim that the Province of East Bengal was liable for an actionable wrong, because the suit sought only declaratory relief and an injunction, not a remedy for a tortious act, and article 10 (2) did not transfer such liability to the Province.

The judge initially indicated that the appeal ought to be dismissed with costs, but subsequently expressed agreement with a colleague that the appeal should be allowed. He then desired to outline briefly the reasons that led him to reach a conclusion different from that reached by the judges of the Calcutta High Court. All material facts relating to the case had already been set out in full detail in the High Court judgment, and therefore it was unnecessary to repeat them. The controversy centred on whether the suit filed by the plaintiff-appellant against the Province of Bengal before 15 August 1947 could be continued against the Province of East Bengal after partition. The suit remained pending before the Subordinate Judge at Alipore, and the question arose whether that court, situated in the Dominion of India, retained jurisdiction to try the case. The Subordinate Judge answered these questions in favour of the plaintiff-appellant. He based his decision entirely on article 4(1) of the Indian Independence (Legal Proceedings) Order, 1947, read with section 9 of the Indian Independence Act. On revision, the High Court set aside the Subordinate Judge’s order. It held that article 4(1) of the Legal Proceedings Order did not give the plaintiff a right to continue the suit against the Province of East Bengal. It also held that article 12(2) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, likewise conferred no such right. The High Court further concluded that the Alipore court lacked jurisdiction to proceed with the suit. It also held that no jurisdiction was created merely because the Province of East Bengal appeared in the pleadings and filed a written statement to challenge the court’s competence. That decision was the subject of the appeal before this Court. The first issue to consider was whether article 4(1) of the Legal Proceedings Order applied to the facts of the present case. The judge found that the answer to that question must be negative, and he regarded the High Court’s view on this point as perfectly sound and unassailable. The Legal Proceedings Order and several other orders dealing with constitutional matters affecting the two Dominions that were to come into existence on and from 15 August 1947 had been promulgated by the Governor-General of India on the preceding day, 14 August 1947. This promulgation was done in pursuance of section 9(1) of the Indian Independence Act.

It was incumbent upon the Governor-General to devise appropriate measures for removing the difficulties that arose as the constitutional order changed. The two Dominions had been brought into existence by the Indian Independence Act passed by the British Parliament, and the orders in question had been issued by the Governor-General of India while exercising the authority granted to him by that Act. Consequently, there could be no doubt that the provisions contained in those orders were fully binding on both India and the Dominion of Pakistan. Because those provisions were intended to apply only for the transitional period, it was unnecessary to examine whether they conformed strictly to the principles of international law that normally govern relations between two sovereign states.

Article 4(1) of the Legal Proceedings Order was worded as follows: “Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947, (1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed day.” The clause employed very wide language, so that every proceeding that was pending in any civil or criminal court in the Provinces of Bengal, Punjab or Assam immediately before 15 August 1947 would continue as before and would be heard and tried by the courts in which they were already pending, even if those proceedings involved persons or property situated in the other Dominion.

The Court agreed with the High Court that, although the provision was comprehensive, it could not assist the plaintiff-appellant. The suit had been instituted against the former Province of Bengal as the defendant, and under article 4(1) the suit could have been continued against that defendant if the plaintiff so desired. However, such continuation would not have benefited the plaintiff, because his objective was to pursue the case against the Province of East Bengal, which now formed part of the Dominion of Pakistan, as a substituted defendant in place of the Province of Bengal. Dr Sen Gupta argued that once the court possessed jurisdiction to continue the suit, it necessarily possessed the power to make any appropriate substitution orders that the court deemed necessary. The Court observed, however, that any such substitution could be effected only under the ordinary provisions of law that regulate the conduct of such suits, and that no municipal law provision existed that contemplated or authorised the substitution of one sovereign state for another in a pending suit. Accordingly, the plaintiff could not rely on the Legal Proceedings Order to obtain the substitution he sought.

In this matter the Court noted that the existing municipal legislation did not contain any provision that contemplated or authorised the substitution of one sovereign state for another in a suit that was already pending. Consequently, when the plaintiff sought to continue the action against the newly created Province of East Bengal, he was required to locate a source of authority for such substitution within the powers exercised by the Governor-General of India under the Indian Independence Act. The Court acknowledged that the Legal Proceedings Act contained no such authority, and therefore the plaintiff relied upon article 12(2) of the Rights, Property and Liabilities Order 1947. That article was quoted in full as follows: “Where any Province from which property, rights or liabilities are transferred by this Order is, immediately before the transfer, a party to legal proceeding with respect to that property or those rights or liabilities, the Province which succeeds to the property, rights or liabilities in accordance with the provisions of this Order shall be deemed to be substituted for the other Province as a party to those proceedings, and the proceedings may continue accordingly.” The Court observed that it was not contested that, for the operation of this provision to apply, the plaintiff had to demonstrate that the right or liability forming the subject of his suit had been transferred from the Province of Bengal, as it existed before 15 August 1947, to the Province of East Bengal in Pakistan in accordance with the provisions of the Order. To meet this burden, the plaintiff placed reliance on several sections of the Rights, Property and Liabilities Order 1947, but the learned Judges of the High Court had rejected every one of his contentions as unsound. When the matter reached this Court, counsel for the plaintiff advanced a two-fold argument. First, he contended that, for the purposes of invoking article 12(2), it was unnecessary that the transfer of the relevant right or liability occurred under any of the specific articles enumerated in the Order; it would suffice, he argued, if a transfer took place by or under any mechanism that the Order established or authorised. He further asserted that, because the Province of East Bengal was assessing and levying agricultural income-tax on the plaintiff for a period preceding 15 August 1947, the authority to do so could have vested in that Province either through an agreement between the two Dominions or the two Provinces, or through an award of an arbitral tribunal as contemplated by article 3 of the Rights, Property and Liabilities Order. In either scenario, he maintained, such a transfer would fall within the scope of the Order and would therefore trigger the operation of article 12(2). The Court found this line of reasoning manifestly unsound and unable to be accepted, emphasizing that if the right in question was the power to impose a tax on agricultural income earned within its territory, such a right was not acquired by transfer from the Province of Bengal but derived directly from the sovereign authority granted to the Dominion of Pakistan by the Indian Independence Act.

In the present matter, the learned counsel contended that the authority to impose a tax on agricultural income earned within the territory of the Dominion of Pakistan was not obtained by any transfer from the Province of Bengal. He argued that such taxing power was inherent in the very sovereignty of Pakistan and that the Dominion had acquired it under the provisions of the Indian Independence Act. The counsel further submitted that, were the right to tax created by the Bengal Agricultural Income-Tax Act, the Province of East Bengal would nevertheless be entitled to invoke the provisions of that Act pursuant to section 18(3) of the Independence Act. However, Dr Sen Gupta did not point to any treaty or agreement between the two Dominions or between the two Provinces, nor did he refer to any award of an arbitral tribunal that might have transferred the contested right to the Province of East Bengal. In the absence of any such evidence, the Court held that this line of argument could not succeed.

The Court then turned to the second contention advanced by counsel, namely that the liability of the Province of Bengal with respect to the cause of action on which the plaintiff’s suit was based had, by operation of article 10(2) of the Rights, Property and Liabilities Order, become a liability of the Province of East Bengal. The Court observed that it was not disputed that, should this contention be accepted, the plaintiff would be entitled to the benefit conferred by clause (2) of article 12 of the Order. The Court explained that clause (2) of article 10 must be read together with clause (1) of the same article, and that, taken conjointly, article 10(2) provides: “Where immediately before the appointed day the Province of Bengal is subject to any liability in respect of an actionable wrong other than a breach of contract, the liability shall (a) when the cause of action arose wholly within the territory which as from that day are the territories of the Province of East Bengal be a liability of that Province.” Assuming, for the sake of argument, that the plaintiff’s allegations are correct, the Province of Bengal was indeed liable to be restrained from levying an agricultural income-tax on the plaintiff, a tax that was illegal, unconstitutional and void as applied to the plaintiff. The pivotal question, therefore, was whether this liability fell within the meaning of “an actionable wrong other than a breach of contract” contemplated by article 10. The Court noted that articles 8 and 9 of the Order dealt with rights and liabilities arising from contracts, and that the High Court had interpreted the phrase “actionable wrong other than a breach of contract” as being synonymous with the concept of a tort. Moreover, the High Court had held that the act complained of could not be characterised as a tortious act, and even if it were, no cause of action would lie because, as a settled principle of law, the State is not liable for tortious acts committed by its officers in the performance of their official duties under a statute.

In this case the Court observed that the State could not be held liable for tortious acts committed by its officers while carrying out duties imposed by a statute. The Court thought that the learned judges had given a narrow and somewhat restricted meaning to the words of the Article under discussion, but that the plain language of the provision, read in the context of the statute, required a broader and more liberal construction. The Court further stated that there can exist an actionable wrong which does not arise from a breach of contract and at the same time does not fit the description of a “tort” as understood in English law; if the plaintiff’s allegations are correct, the present dispute concerns exactly such a wrong. The term “wrong” in ordinary legal language means a deprivation of right. An act is wrongful when it infringes the legal right of another, and “actionable” simply means that the act provides a ground for a legal action. Normally the word “injury” is used in the same sense as actionable wrong, whereas “damage”, contrasted with injury, denotes loss or harm that may exist in fact whether or not it is actionable (1). Under English law a tort is a species of civil injury and a breach of contract is also a species of civil injury, but it is not correct to say that these two categories exhaust all forms of actionable wrongs recognized by English law. It is true that a tort is often described as a wrong independent of contract; however, that description is not entirely accurate and, unless qualified, can be misleading. The Court noted that in England the modern principles of contract and tort law emerged from the old “Forms of Action” which had been buried for many years. Injuries now described as torts were originally remedied by writs such as the writ of trespass (1) and the writ of trespass on the case, as observed by Viscount Simon in Crofter etc. Company Ltd v. Vetch [1942] A.C. 435, 442. The latter writ was more elastic than the former and could be adapted to new circumstances and new types of injury. At that time there was no clear line of demarcation between contractual and tortious liability. Indeed, the action of “assumpsit”, which enforced simple contracts, was a variety of an action on the case and was used to obtain compensation from a party who failed to perform his agreement on the ground that such failure amounted to a deceitful wrong (1). As substantive law gradually extricated itself from the procedural complexities of the old system, a distinction was drawn between liability for breach of contract and liability for tort. In a breach of contract the right that is violated originates from the agreement of the parties, whereas in tort the right infringed is created by the general law of the land.

The Court explained that the right protected in a contract originates from the agreement of the parties, while the right infringed in a tort is a right recognised and enforced by general law of the land. From the middle of the nineteenth century, English jurists commonly assumed that every civil cause of action could be classified either as contract or as tort, and that any injury not arising from a breach of contract would fall within the category of torts. Sir Frederick Pollock has observed that this assumption lacks any historical foundation (2). In 1852 the Common Law Procedure Act defined a tort as “a wrong independent of contract”. Although that phrasing became frequent in legal literature, modern writers on tort law have warned that the description must be read with specific qualifications; taken literally it does not accurately describe the law. Underhill, in his treatise “Law of Torts”, points out that the definition is correct only if the word “wrong” is understood in the restricted technical sense of “violation of a right recognised and enforced by law by means of an action for damages” (1) Vide Pollock on Contract, 12th Edition, p. 111; Winfield on Tort pp., 3-4 (4th Edition). (2) Vide Pollock’s Article on Tort, Encyc. Brit. Vol. 22, p. 307. In that sense the definition, although silent on what exactly constitutes a wrong, stresses the essential characteristic of a tort: the appropriate remedy is an action for damages (1). That characteristic distinguishes a tort from other civil injuries or actionable wrongs that are unrelated to any contract. While a plaintiff may also obtain remedies such as restitution or injunction against a tortfeasor, only a right to damages qualifies the wrong as a tort. As Salmond observes, no “civil injury” can be classed as a tort unless the proper remedy is an action for damages; the right to damages is an essential element of every true tort (2). Other remedies, for example injunctions or restitution, may be claimed by the plaintiff, but it is solely the entitlement to damages that allows the complaint to be regarded as a tort. By way of illustration, the author notes that a public nuisance is not a tort because the civil remedy is an injunction that may be obtained by the Attorney-General. Likewise, a refusal to perform a statutory duty is not a tort if the remedy is a mandamus, and a wrong is not a tort if the remedy is a liquidated sum rather than unliquidated damages. A breach of trust is certainly an actionable wrong independent of contract, but because the claim is for a liquidated sum rather than unliquidated damages, it is not classified as a tort.

The Court explained that a breach of contract allowed the beneficiaries of a trust to claim compensation when a trustee misappropriated trust property, but because such a claim could not be for unliquidated damages, it did not qualify as a tort under the established definition. The Court referenced Salmond’s observation that this exclusion was rooted solely in historical practice, since a breach of trust or any other equitable duty had traditionally fallen within the special jurisdiction of equity courts. The Court noted with interest that, although the modern legal system no longer distinguishes between equitable and common-law jurisdictions, the old rule continued to be applied, as shown by the authorities cited: Underbill’s Law of Torts, sixteenth edition, page four; Salmond’s Law of Torts, tenth edition, pages seven and eight; and Winfield’s Law of Tort, page eleven, which together delineate the boundary of tort law in English common law.

The Court then articulated the contemporary definition of tort as a civil injury, other than a breach of contract, that is capable of sustaining an action for unliquidated damages in a court of law. The Court clarified that when the appropriate remedy for a wrong is an injunction or some other form of relief rather than a claim for unliquidated damages, the wrong does not rank as a tort, although it remains an actionable wrong. To illustrate this principle, the Court referred to the case of Halsey v. Brotherhood, decided by Sir George Jessel. In that case, both parties were engineers who held patents for particular engine types. The plaintiff alleged that the defendant had threatened to initiate legal proceedings against several actual or prospective purchasers of the plaintiff’s engines, claiming that those engines infringed the defendant’s patent. The plaintiff sought both damages and an injunction.

Sir George Jessel held that the plaintiff could not recover damages on the basis of slander of title because the plaintiff had not alleged that the defendant’s statements were made in bad faith. Nevertheless, the Court observed that even where the defendant’s statements were made in good faith, the plaintiff could obtain an injunction if he proved that the allegations of infringement were false. Because the plaintiff’s complaint did not properly plead a claim for injunction, the action was dismissed. However, the Court granted the plaintiff leave to bring a new suit in the correct form, seeking an injunction to restrain the defendant from threatening the plaintiff’s customers. The Court therefore classified the threat to customers as an actionable wrong, but pronounced that, since the appropriate remedy was an injunction rather than damages, the wrong did not constitute a tort in the precise legal sense.

Applying this analysis to the present matter, the Court concluded that the act complained of by the plaintiff against the Province of Bengal did not satisfy the technical criteria of a tort under English law, specifically reference 15 Ch. D. 514. Nevertheless, the Court recognized that the act constituted an actionable wrong because it could be sued upon in a court of law and could be remedied accordingly.

In this case the Court noted that the appropriate remedy for the grievance asserted by the plaintiff was not an award of unliquidated damages, which are the characteristic relief in a tort, but rather an injunction restraining the defendant from carrying out the illegal assessment or from collecting any amount that may have already been assessed. The Court explained that, if the plaintiff’s allegation that the provision of the Bengal Agricultural Income-tax Act under which the assessment was sought is illegal and ultra vires is correct, then the issuance of the notice by the Income-tax Officer constitutes the first and essential step in the commission of the wrongful act and therefore provides a sufficient cause of action for the suit. Because the claim does not arise in the context of a tort, the Court held that the established principle that a State is not liable for damages arising from the tortious acts of its servants could not be invoked as a bar to the suit. The Court further affirmed that an injunction may be claimed against a State or Province unless the act complained of amounts to an ‘act of State’ in its strict sense and is not undertaken in the exercise of powers granted by any municipal law. Regarding the interpretation of the Rights, Property and Liabilities Order, the Court observed that the purpose of the Order is to distribute and adjust, as far as possible, the rights, properties and liabilities between the two Dominions created under the Indian Independence Act, and therefore the language of the Order must be read as liberally as possible, without imposing a restriction stricter than that which would be applied under English law. The Court rejected the argument that article 10(2)(a) of the Order did not apply because the cause of action did not arise entirely within the territory of the Province of East Bengal. It pointed out that the notice was issued by the Income-tax Officer of Dacca, which lay in Pakistan territory, although the notice was received by the plaintiff’s manager at Agartala, a place then outside British India. Consequently, the Court held that the Province of East Bengal could not escape liability on that basis and would be jointly liable with the Province of West Bengal under article 10(2)(c) of the Order. In light of this determination, the Court found that the additional question raised by Dr Sen Gupta concerning whether the defendant had submitted to the jurisdiction of the Alipore Court was no longer open for determination. The learned Attorney-General, appearing for the Union of India, advanced further grounds supporting the order of the High Court. One of those grounds was the contention that section 65 of the Bengal Agricultural Income-tax Act barred the suit and therefore the suit should not be permitted to continue. The Attorney-General also argued that the suit would inevitably result in an ineffectual decree, and consequently there was no justification for allowing it to proceed.

The Court found that there was no justification for permitting the suit to proceed. It was brought to the Court’s attention that the Governor-General of Pakistan had issued an Ordinance on 13 November 1948. The Ordinance provides that “no judgment, decree or order referred to in paragraph 3 of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, shall, in any way, affect the legislative or executive right or authority of the Central or any Provincial Government of Pakistan and where such authority or right has been at issue, the judgment, decree or order shall be invalid and inoperative.” The first matter raised concerned the applicability of section 65 of the Bengal Agricultural Income-tax Act. Justice Patanjali Sastri had already considered this issue in his earlier judgment, and this Court agreed with him that section 65 of the Bengal Agricultural Income-tax Act has no bearing on the present case. The second matter concerned the possible effect of the aforementioned Ordinance. The Court acknowledged that, as the learned Attorney-General had suggested, the Ordinance might create a legitimate doubt as to whether it would be worthwhile for the plaintiff to continue the suit, or whether it would be more advantageous for him to seek relief in the Court of Dacca. However, because this question had not been raised before the High Court, and because the legal question of whether an Ordinance of this nature can override the provisions of the Orders made by the Governor-General of India under the Indian Independence Act remained unsettled, the Court refrained from expressing any opinion on that point. In the result, the Court held that the appeal should be allowed and it concurred with the order made by Justice Patanjali Sastri. Accordingly, the appeal was allowed. The agents appearing for the parties were recorded as follows: the appellant was represented by R.R. Biswas; the respondent was represented by P.K. Bose; and the intervenor was represented by P. A. Mehta.