State of Bihar vs Rani Sonabati Kumari

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

Court: supreme-court

Case Number: Civil Appeal No. 83 of 1956

Decision Date: 20 September 1960

Coram: N. Rajagopala Ayyangar, S.K. Das, J.L. Kapur, M. Hidayatullah

The Supreme Court delivered its judgment on 20 September 1960 in the matter titled State of Bihar versus Rani Sonabati Kumari. The bench consisted of Justice N. Rajagopala Ayyangar, Justice S. K. Das, Justice J. L. Kapur and Justice M. Hidayatullah. The case is reported in 1961 AIR 221 and 1961 SCR (1) 728, with subsequent citations in R 1963 SC 1241, RF 1964 SC 669, MV 1967 SC 997 and R 1974 SC 555.

Rani Sonabati Kumari, the respondent, instituted a suit against the State of Bihar seeking a declaration that the Bihar Land Reforms Act 1950 was ultra vires, void and unconstitutional. She also prayed for a permanent injunction restraining the State, its officers or agents from issuing any notification under that Act in respect of her estate or from taking possession of the estate. Along with the plaint, she filed a petition for a temporary injunction, and the Court granted that injunction pending the hearing of the suit.

More than a year later the State filed an application under Order 39, rule 4 of the Code of Civil Procedure seeking discharge of the temporary injunction, contending that the impugned Act had been declared valid by the Supreme Court in another proceeding. Before the application could be heard, on 19 May 1952 the State of Bihar issued a notification under section 3(1) of the Bihar Land Reforms Act, authenticated by the Additional Secretary to the Government, declaring that the respondent’s estate had vested in the State pursuant to the provisions of the Act.

In response, the respondent moved the trial court invoking Order 39, rule 2(3) of the Code to enforce the temporary injunction and to punish the State for contempt. The State argued that, in view of Article 31‑B of the Constitution, the issuance of the notification was lawful and therefore could not constitute contempt of court. The subordinate judge rejected that contention, ordered attachment of State property worth Rs 5,000 and held that the State was liable under Order 39, rule 2(3). The High Court, on appeal, affirmed the subordinate judge’s decision.

The Supreme Court held that the courts below had taken the correct view and dismissed the appeal. The Court explained that the procedure prescribed by Order 39, rule 2(3) of the Code of Civil Procedure is a remedial mechanism intended to enforce an order of temporary injunction passed under Order 39, rule 2(1). This mechanism is available against the State, although the specific power of detention may not be applicable to a governmental entity. The Court further observed that the provision is not inconsistent with Article 300 of the Constitution and is not barred by any rule precluding action against the State. The word “person” in the provision, when properly construed, includes the defendant against whom the injunction is directed as well as the defendant’s agents, servants and workmen. Consequently, disobedience of a lawful temporary injunction necessarily attracts the consequences of Order 39, rule 2(3). The Court therefore affirmed the order of attachment and dismissed the appeal.

In this case the Court explained that no civil action can be maintained against the State in tort or for a wrongdoing that requires punishment or compensation, as distinguished in District Board of Bhagalpur v. Province of Bihar, AIR 1954‑729 Pat 529, and Tarafatullah v. S. N. Maitra, AIR 1952 Cal ? ?. The Court rejected the argument that the State is omitted, either expressly or by necessary implication, from Order 0.39 Rule 2(3) of the Code of Civil Procedure. The term “person” in that rule, when properly interpreted, embraces the primary defendant against whom the injunction is directed as well as that defendant’s agents, servants and workmen. Because the Court’s authority to grant a temporary injunction against the State under Order 0.39 Rule 2(1) is undisputed, any deliberate disobedience of such an injunction inevitably attracts the consequences prescribed in Order 0.39 Rule 2(3). The earlier decision in Director of Rationing & Distribution v. Corporation of Calcutta, [1961] 1 SCR 158, was held not to apply. The Court further observed that once the Court issues an order within its jurisdiction, the State, like any private party, is obliged to obey that order for as long as it remains in force. Accordingly, the State Government’s conduct in this matter—issuing a notification while its application for vacating the injunction was still pending, and persisting in that stance after the application under Order 0.39 Rule 2(3) was filed—was disapproved. The judgment was delivered in the civil appellate jurisdiction of Civil Appeal No. 83 of 1956, arising from the Patna High Court judgment and order dated 30 June 1954, which itself was an appeal from Original Order No. 255 of 1952. Counsel for the appellant appeared on behalf of the State of Bihar, while counsel for the respondent represented Rani Sonabati Kumari. The judgment was delivered on 20 September 1960 by Justice Ayyangar. The principal issue before the Court was whether a State could be proceeded against under Order 0.39 Rule 2(3) of the Code of Civil Procedure when it wilfully disobeyed a temporary injunction issued specifically against it. The factual background, though largely uncontested, needed to be set out in order to understand the matters debated. The Bihar Land Reforms Act, 1950—which transferred to the State the interests of proprietors and tenants in estates within Bihar—received presidential assent on 11 September 1950 and was published in the Bihar Gazette on 25 September 1950. Following this enactment, Rani Sonabati Kumari, the proprietress of the Ghatwali Estate of Handwa situated in Bihar, instituted proceedings against the State of Bihar in the Subordinate Court at Dumka.

On 20th November 1950 the respondent, Rani Sonabati Kumari, instituted Title Suit 40 of 1950 in the Court of the Subordinate Judge at Dumka. In that suit she sought, inter alia, a declaration that the Bihar Land Reforms Act of 1950 was ultra vires the Bihar Legislature and consequently illegal, void, unconstitutional and inoperative. She prayed that the defendant, the State of Bihar, had no authority to issue any notification under the said Act, to take possession of, or otherwise meddle with or interfere in the management of, the estate that formed the subject of the suit. Additionally, she asked for a permanent injunction restraining the defendant, its officers, servants, employees and agents from issuing any notification pursuant to the Bihar Land Reforms Act in respect of her estate, from taking possession of the estate, and from meddling or interfering in any manner with its management.

Along with the plaint, the respondent filed a petition for a temporary injunction. The prayer in that petition requested that a temporary injunction be granted against the defendant, its officers, employees, servants or agents, restraining them from issuing any notification concerning the plaintiff’s estate under the Bihar Land Reforms Act, 1950 (Act XXX of 1950), and from meddling or interfering with the plaintiff’s possession of the properties in suit, until the final disposal of the suit. The Court initially issued an ex parte ad interim injunction that was apparently in line with the prayer contained in the petition, and it ordered that notice of the petition be served upon the State of Bihar.

The State of Bihar responded by filing a counter‑affidavit on 9 December 1950. In that counter‑affidavit the State opposed the grant of any interim injunction and prayed that the petition be dismissed with costs. The petition was subsequently heard on 19 March 1951 in the presence of both parties. After hearing, the Subordinate Judge transformed the ad interim injunction into an absolute injunction. The order further stated that the defendant shall not issue any notification for taking over possession of the suit properties under the Land Reforms Act and shall not interfere with or disturb the plaintiff’s possession of those properties in any manner under any provision of the aforesaid Act until the suit is finally disposed of by the Court.

The injunction order was appealable under Order 43, rule 1(r) of the Code of Civil Procedure, but the State chose not to file an appeal; consequently, the order became final. On 17 May 1952 the State filed an application seeking to vacate the order. In that application the State argued that the validity of the Bihar Land Reforms Act had already been upheld by this Court in another case involving the same issues, and that, consequently, the plaintiff no longer had a prima facie case to sustain the injunction. Before the hearing of this application, which invoked the powers of the Court under Order 39, rule 4 of the Code and was actually heard on 30 May 1952 with the Court reserving its decision for 2 June 1952, the State of Bihar issued, on 19 May 1952, a notification made under section 3(1) of the Act declaring that the Handwa Raj Estate, which belonged to the respondent, had passed to and become vested in the State under the provisions of the Act. The notification listed the estate in the Second Schedule of the Act, identified the respondent as the tenure‑holder, and was authenticated by the order of the Governor of Bihar, K. K. Mitra, Additional Secretary to the Government. Upon learning of this notification, the respondent moved the Subordinate Judge on 2 June 1952 seeking appropriate action against the State.

The State of Bihar issued, on 19 May 1952, a notification under subsection (1) of section 3 of the Bihar Land Reforms Act, 1950, declaring that the Handwa Raj Estate, which belonged to the respondent as the tenure‑holder, had transferred and become vested in the State in accordance with the provisions of the Act. The notification stated that, pursuant to the powers conferred by subsection (1) of section 3 of the Bihar Land Reforms Act, the Governor of Bihar was pleased to declare that the estates listed in the First Schedule and the tenures listed in the Second Schedule, together with the proprietor and tenure‑holder named therein, had, with effect from the date of publication in the Bihar Gazette, passed to and become vested in the State. The Handwa Raj Estate, bearing the respondent’s name as tenure‑holder, was specifically mentioned in the Second Schedule. The notification was authenticated by an order of the Governor of Bihar signed by K. K. Mitra, Additional Secretary to the Government. Upon learning of this notification, the respondent filed a petition on 2 June 1952 before the Subordinate Judge, seeking contempt proceedings against the State under Order 39, rule 2(3) of the Code of Civil Procedure. When the petition was served on the State, it replied that, in obedience to the order, the State contended that, in view of Article 31B of the Constitution, the notification dated 19 May 1952 and published in the Bihar Gazette on 21 May 1952 was valid, legal, and authorized, and that its publication did not constitute contempt of court. The Subordinate Judge observed that the constitutional validity of the Act, even if affirmed by a constitutional amendment, could not serve as a defence to a breach of an injunction, and that no such defence had been raised before the court. Accordingly, the Subordinate Judge issued an order on 31 July 1952 directing that, because the notification amounted to a breach of the injunction, the State’s property be attached to the extent of Rs 5,000. The plaintiff was instructed to file within seven days a list of properties of that value along with the necessary requisites for the attachment.

The State appealed the Subordinate Judge’s order to the High Court, but the High Court dismissed the appeal by judgment dated 30 June 1954. On the basis of a certificate granted by the learned High Court judges under Article 133(1)(c), the State sought to contest the matter before this Court. The arguments presented on behalf of the State, as articulated by counsel, were distilled into five principal points. The first point argued that the Subordinate Judge’s order dated 19 March 1951, when read in its plain language, did not prohibit the issuance of a notification under section 3(1) of the Act; rather, it merely directed the State not to disturb the plaintiff’s possession. The counsel maintained that the order was limited to preventing interference with the plaintiff’s possession and did not bar the State from exercising its statutory power to publish a notification under the Land Reforms Act.

In the appeal, the State advanced five distinct contentions. The first contention asserted that the order issued by the Subordinate Judge on 19 March 1951, when read in its ordinary sense, did not expressly forbid the State or its officials from issuing a notification under section 3(1) of the Act; rather, the order merely directed the State not to disturb the plaintiff’s possession of her estate. The second contention maintained that, at worst, the language of the Subordinate Judge’s order could be reasonably interpreted in two ways: either the direction to the State included an explicit prohibition against issuing any notification under section 3(1), or the direction only barred notifications that would directly involve or authorise interference with the plaintiff’s possession. Because proceedings for contempt are quasi‑punitive in nature, the State argued that a party who acted in good faith on the basis of one of the two plausible interpretations could not be held guilty of contempt. The third contention relied upon the rule that the Crown or the State could not be sued for a tort or wrongdoing, contending that this rule applied to the present case since disobeying an injunction amounted to a wrong for which order 39, rule 2(3) provided either punishment or compensation. The fourth contention suggested that a State was not bound by a statutory provision unless it was expressly named or necessarily implied therein; since order 39, rule 2(3) made no specific reference to a State, the State argued that it could not be proceeded against for disobeying a court order. Finally, the fifth contention held that even if the State could be proceeded against for willful disobedience, the alleged contemptuous act – the publication of the notification under section 3(1) – had not been proved conclusively to be an act of the State Government. In the absence of definitive proof, the State asserted that liability could not arise; and if the notification dated 19 May 1952 was indeed the act of disobedience, liability, if any, could only attach to the Additional Secretary, Mr K K Mitra, who had authenticated the notification.

The Court began its analysis with the first point raised by the State, namely that the Subordinate Judge’s order of 19 March 1951 did not, either in terms or in substance, prohibit the State from issuing a notification under section 3(1) of the Act. Section 3(1) of the Act provided that “The State Government may, from time to time, by notification, declare that the estates or tenures of a proprietor or tenure‑holder, specified in the notification, have passed to and become vested in the State.” The State contended that the Subordinate Judge’s order merely directed the State “not to issue any notification for taking possession,” and because a notification under section 3(1) did not, by its very operation, affect or interfere with the proprietor’s possession, the issuance of such a notification fell outside the scope of the prohibition. The State further argued that this line of reasoning had been advanced before the High Court, where it had been rejected by the learned judges. The Court observed that the High Court’s rejection was correct, noting that the order of the Subordinate Judge, when read in its entirety, was intended to prevent the State from taking any step that would result in the disturbance of the plaintiff’s possession, including the issuance of a notification that would, by law, divest title and thus inevitably affect possession. Accordingly, the Court concluded that the first contention of the State could not be sustained.

In the first instance, the Court examined the nature of the “notification” that the statute contemplated as being immediately relevant to the suit. The only type of notification prescribed by the Act was a notification issued under section 3(1). Such a notification, by operation of law, divested the proprietor of the estate identified in the notice of any title to that estate and transferred the title to the State, thereby vesting ownership in the State. The statute further authorised the State to take physical possession of the estate and its constituent properties by exercising the powers conferred by section 4. However, section 4 did not require the issuance of any further notification; it authorized only executive acts to be carried out by officers duly authorised by the State. The Court noted that, had the State acted under section 4 and interfered with the respondent’s possession, that would have constituted an additional breach of the injunction that expressly directed the State not to interfere with or disturb the plaintiff’s possession in any manner. The Court then clarified that the injunction issued by the lower Court comprised two distinct components. The first component prohibited the defendant from publishing a notification – a term that, in the context of the relevant statutory provisions, could refer only to a notification issued under section 3(1). The second component barred any act that would interfere with the plaintiff’s possession. The Court emphasized that the fact that the second component was not violated did not, in itself, negate a breach of the first component. The Court further observed that, when the injunction is read together with the plaint and the application for a temporary injunction, the reference to “notification” unequivocally pertains to a notification under section 3(1), and the injunction was intended to cover such a notification. Consequently, the Court held that the objection raised on this ground must fail.

The second contention advanced by the learned counsel was that, even assuming a proper construction of the injunction as directing the State Government to refrain from publishing a notification under section 3(1), the order might still be ambiguous, equivocal, and capable of more than one reasonable interpretation. The counsel argued that a party who acted in good faith on the basis of one such interpretation could not be said to have wilfully disobeyed the order. The Court identified two conditions that must be satisfied for this argument to succeed: first, the order must indeed be ambiguous and capable of multiple reasonable interpretations; second, the party against whom proceedings are instituted must have acted without an intention to defy the order, adhering instead to his own reasonable interpretation of it. After careful analysis, the Court concluded that neither of these conditions was satisfied in the present case. The order was not ambiguous; it plainly prohibited the State from issuing a notification under section 3(1). Moreover, the State Government’s conduct demonstrated a clear intention to disregard the injunction, rather than a genuine misunderstanding. Accordingly, the Court rejected the second contention.

The Court observed that it had already identified the correct construction of the order and that, in its view, that construction was the only one that could reasonably be ascribed to the order. Nevertheless, even assuming, as counsel suggested, that the order was ambiguous, that ambiguity did not benefit the appellant unless the State Government had understood the order to be limited solely to acts that directly interfered with the plaintiff’s possession and had issued the notification on that basis. The Court noted two distinct actions by the State Government that were wholly inconsistent with the theory that the State had adopted such a limited understanding. First, before the notification contemplated under section 3(1) of the Act was issued, the State had applied to the Court for a decree vacating the injunction so that it could proceed with the notification; during the pendency of that application the State issued the notification without waiting for the Court’s decision on the petition. Second, and more importantly, when a notice was served on the defendant requiring it to show cause why it should not be held in contempt, the Court would ordinarily expect, if the defence relied on the alleged ambiguity, that the defence would deny any disobedience by referring to the understanding of the order that the State purportedly held. However, the Court found that the counter‑affidavit previously extracted contained no reference to such a plea, and that the memorandum of appeal filed in the High Court against the order of the learned Subordinate Judge under Order 39, rule 2(3), likewise made no mention of the contention now being raised. Although a faint suggestion of inadvertence by some officer was advanced during the arguments before the High Court, that suggestion was not formally pleaded before the High Court judges, as the judgment reveals. The Court explained that whether a party truly understood an order in a particular way and acted in accordance with that understanding is a question of fact; when the material before the Court does not support such a situation, the Court cannot impute an innocent intention on the basis of mere presumption that counsel has identified equivocation in the order. The argument that a party who bona‑fide misinterpreted an order and acted on that misinterpretation cannot be held to have willfully and deliberately disobeyed the order can be advanced only if it is proven that the party was actually under a misapprehension as to the scope of the order. The Court observed that the State Government never advanced that plea at any stage up to the hearing before the High Court. Moreover, if the State’s position were that it had acted in good faith but had erred in construing the order, one would expect an expression of regret for the unintentional mistake; no such contrition was evident at any stage of the proceedings. Consequently, the Court concluded that there was no factual basis for sustaining the second ground raised by counsel.

The Court observed that when a party mistakenly interprets an order, an expression of regret for the unintended breach would normally be expected. In the present proceedings no trace of such contrition appeared at any stage, and consequently the Court found no factual foundation to uphold the second ground advanced by counsel. Turning to the next matter raised, counsel elaborated that Article 300 of the Constitution, which essentially reproduces the earlier statutory provisions dating back to 1858, makes clear that States are not immune from being sued. Counsel further stated that he did not dispute the propriety of filing Title Suit 40 of 1950, nor the jurisdiction of the Court to entertain that suit and to grant a temporary injunction against the defendant State pending determination of the suit. However, counsel argued that the existence of a properly granted injunction does not automatically render the State liable to contempt proceedings for alleged disobedience of that injunction. He submitted that proceedings for contempt, even when they arise from the enforcement of a civil court order, constitute a punitive measure for wrongdoing and are therefore of a quasi‑criminal character. For this reason, counsel contended that Article 300, which authorises civil suits against the Union and the States, cannot be interpreted to permit the initiation of quasi‑criminal contempt proceedings, and that the traditional common‑law doctrines—that the sovereign cannot be sued and that the Crown is immune from tort liability—should consequently apply. In support of this position, counsel referred to the decisions in District Board of Bhagalpur v. Province of Bihar and Tarafatullah v. S. N. Maitra. In the former case, a large number of English and Indian authorities on Crown liability in tort were examined, and the judges were asked to determine whether a suit against the Government could be legally maintained and to delineate the scope and limits of the “respondeat‑superior” rule in actions against the State. The Court noted that both of those issues lie outside the controversy presently before it. Counsel also invoked observations of Justice Mukerji in a Calcutta High Court judgment, emphasizing that a State as an entity cannot be said to commit contempt; instead, any allegation of contempt must be directed against specific officers of the State. Accordingly, when an order restraining certain acts of the State is issued in a civil proceeding and a complainant alleges contempt for breach of that order, the contempt petition must name the particular officer or officers who failed to comply, rather than the State itself.

In this case, the Court explained that a contempt petition must be directed against a specific individual rather than against the State itself. The Court noted that Article 300 of the Constitution of India authorises suits to be filed against the State or the Union of India, but that provision does not extend to contempt proceedings. To understand the observations made by the Court, it was necessary to examine briefly the factual background of the matter that had been before the Court. The earlier decision concerned an application seeking to commit the respondents to prison for disobeying an order of ad interim injunction that had been granted by a single Judge of the High Court. That injunction had been issued in the course of a petition under Article 226 of the Constitution for the issuance of a writ of certiorari. While the temporary injunction was indeed directed against the Government, the alleged disobedience was not an act committed by the Government as a whole; rather, it was an act of certain individual officers. Despite this distinction, the Secretary to the Government, who had been formally impleaded as the representative of the Government, was the individual against whom contempt proceedings were sought, as reported in A.I.R. 1952 Cal. 919 and 927. The prayer in the contempt petition was that the Secretary, in his capacity as the Government’s representative, should be committed to prison. Chief Justice Chakravartti sharply observed that such a prayer was almost absurd. The learned Judges further found, on a factual basis, that no disobedience of the injunction order had been proven. Consequently, the question of whether the Government itself could be held liable for contempt for violating an order that a Court is empowered to make, and which binds the Government, did not arise for consideration in that case. The Court held that, given the findings of fact, the remarks concerning the scope of governmental liability were wholly irrelevant. Regarding the passage that had been relied upon, the Court observed that the statements about the ambit of Article 300 of the Constitution were overly broad and failed to consider the relevant provisions of the Civil Procedure Code, namely Order 21, Rule 32 and Order 21, Rule 39(2)(3), which directly relate to the issue and would be discussed later. Moreover, those statements could not be applied to situations where the alleged disobedience takes the form of a formal Government order, as was the situation in the present case. In this connection, the Court adopted the approach suggested by the learned Chief Justice, who had said that the Court did not intend to rule out the possibility that, in appropriate cases, a writ for contempt might be issued against a corporation or against the Government itself. However, the Court noted that the form such a penal order would take, if deemed necessary, and the method of its enforcement are separate questions that did not require resolution in the present matter. The Chief Justice further observed that, in England, there exists a specific rule that allows for the sequestration of the corporate property of a party that is a corporation, and while no analogous rule is known to exist in this country, the Court did not consider it impossible that, in a suitable case, a fine could be imposed and collected by means analogous to sequestration, such as a distress warrant directed against the properties of the Government or a corporation.

The Court noted that no rule comparable to the English provision for sequestration of corporate property existed in this country, yet it was not considered impossible that, in a suitable case, a fine could be imposed and enforced by means analogous to sequestration, for example by issuing a distress warrant directed against the property of the Government or a corporation. Counsel for the State placed considerable emphasis on the character of proceedings initiated under Order 0. 39, rule 2(3) as quasi‑criminal, seeking to demonstrate that the State could not be proceeded against for such a criminal wrong. The Court observed that, although proceedings under Order 0. 39, rule 2(3) of the Civil Procedure Code possess a punitive aspect—evidenced by the fact that the condemner may be ordered to be detained in civil prison—they are essentially intended to effect the enforcement or execution of an order. This character is made clear by the identity of those proceedings with the procedure prescribed by the Code for executing a decree of permanent injunction. Order 21, rule 32 specifies the method for executing such decrees, and clause (1) enacts that where a party against whom a decree for an injunction has been passed has had an opportunity to obey the decree and willfully fails to do so, the decree may be enforced, in the case of an injunction, by detention in civil prison, by attachment of the party’s property, or by both. Clauses 2 and 3 of Order 21, rule 32 practically reproduce the terms of clauses 4 and 3 respectively of Order 0. 39, rule 2, leaving no doubt that Order 0. 39, rule 2(3) is, in essence, merely the mode for enforcing an injunction. While discussing Order 21, rule 32, the Court pointed out that counsel for the State did not argue that a State Government, against which a decree of permanent injunction has been passed, is immune from proceeding under this provision when the decree is disobeyed. The Court acknowledged that, because a State Government is not a natural person, it cannot be ordered to be detained in civil prison, similar to the special provision made for corporations in Order 0. 39, rule 5. Nevertheless, the Court held that both when a decree of permanent injunction is executed and when an order of temporary injunction is enforced, the liability of the State Government to be proceeded against is clear. The Court rejected the third point raised, finding it lacking substance. The argument that, since the State is merely a juristic entity, the wrongful act constituting disobedience must be that of a servant or agent and that, except under the principle of vicarious liability, the State could not be liable, was also dismissed. This argument drew partly on the observations of Mukherji, J., cited earlier.

The Court observed that the argument extracted from the last submission, which would, if accepted, deny any action by the State altogether, formed only a part of that final submission and could be dealt with together with it. It further noted that the mere fact that officers and servants of the Government could be proceeded against as individuals, bound by orders directed against the defendant Government, and that they could be held in contempt, does not provide any basis for concluding that the State Government itself would escape liability for the acts of those officials. The Court then turned to the next contention raised by counsel, namely that, according to the rule of construction, the Crown is not bound by a statute unless the statute expressly says so or it is necessary to imply such intention. Counsel relied on the recent decision of this Court in Director of Rationing & Distribution v. Corporation of Calcutta (1) for that position. The Court indicated that it would examine the validity of the claim that, when the Civil Procedure Code is properly construed, the State of Bihar does not fall within the ambit of Order 39, Rule 2(3). The Court recalled that Article 300 of the Constitution permits suits that earlier could have been instituted against the Central and Provincial Governments to be now filed against the Union and the State. It was not in dispute that, considering the cause of action alleged in the plaint, Title Suit 40 of 1950 could properly be brought against the State, and that the plaintiff, if she successfully established her factual and legal allegations, would be entitled to the reliefs sought, including a permanent injunction restraining the State from issuing a notification under Section 3(1) of the Act and from interfering with her possession of the estate of Handwa. The Court also acknowledged that the Subordinate Judge possessed jurisdiction to grant a temporary injunction against the State Government and that such order was binding upon the State.

What remained contested, the Court said, was the method of enforcing that order as provided in Order 39, Rule 2(3) of the Code, on the ground that the State Government was not named in that sub‑rule either expressly or by necessary implication. Upon examining the provisions of the Code and the underlying scheme concerning proceedings against the Government, the Court found the submission untenable. It explained that the Code of Civil Procedure does not decide whether a particular suit or class of suits may be filed against the Government; that determination belongs to substantive law. However, once substantive law permits a suit against the Government, whether Union or State, the Code furnishes a complete procedural framework for such suits, including the nature of orders that courts may pass and the modes of enforcing those orders. The Court pointed out that Part IV of the Code, comprising Sections 79 to 82, sets out the procedural details for suits against the Government. Consequently, the Court concluded that the State is bound by the Code of Civil Procedure, whose scheme provides that, unless a special provision excludes it, the enforcement mechanisms in Order 39, Rule 2(3) apply equally to the State Government.

In this case the Court explained that Part IV of the Code of Civil Procedure contains sections 79 to 82, which set out the procedure applicable to suits filed against the Government. Section 79 dictates the proper cause‑title for such suits and clarifies that the term “Government” includes both the Union Government and the State Governments. Section 80 creates a special procedural requirement that does not apply to suits against private parties; it requires that a notice of two months be given before instituting a suit against the Government. Where the Government is named as a party, it follows that a successful plaintiff may obtain a decree against the Government, whether the decree is against the Union or a State, and Section 82 then prescribes special rules for executing such decrees. Chapter XXVII in the First Schedule of the Code contains a separate chapter dealing specifically with suits against the Government and provides that the Government shall be granted adequate time to meet the various stages of the proceedings before the courts. The Court therefore concluded that the State is bound by the provisions of the Code of Civil Procedure. The scheme of the Code provides that, subject to any special provision that may be made for Governments, a State occupies the same position as any other litigant before the Court. Moreover, the Court found that even apart from the general scheme, the State, as a defendant, falls plainly within the terms of Order 39, Rule 2(3) of the Code. There was no dispute that the Subordinate Judge possessed jurisdiction to grant an interim injunction against the State in accordance with Order 39, Rule 2(1), which provides that in any suit for restraining a defendant from committing any injury, the plaintiff may at any time after filing the suit apply to the Court for a temporary injunction to restrain the defendant from committing the alleged injury. The reference to “defendant” in that sub‑rule prevents any argument that the State is exempt from the provision. The parties’ argument on this point focused on the difference in wording between clause (1) above and clause (3) of the same rule, which deals with the consequences of disobedience to an injunction. Clause (3) states that in case of disobedience or breach of any term, the Court may order the property of the “person guilty” of such disobedience or breach to be attached and may also order detention of that person in civil prison for a period not exceeding six months, unless the Court directs his release. Counsel argued that clause (3) omits the word “defendant” used in clause (1), and therefore the party against whom the injunction could be enforced should be described as “the person guilty” rather than the State as defendant.

In this case, the Court examined the argument that the term “person” in the phrase “person guilty of disobedience” was a neutral expression that should not be understood to include the State, especially in view of the construction rule laid down in The Director of Rationing v. Corporation of Calcutta. The argument further claimed that because a State could act only through its officers, there would always be a natural “person guilty of disobedience” whenever an injunction against the State was ignored, and that therefore the construction would not make an injunction against the State a “brutum fulmen.” The Court rejected this entire line of reasoning. It held that the differing wording in clauses (1) and (3) of Order 39, Rule 2 was readily explainable. Under the law, an injunction binds not only the parties named in the suit but also the agents, servants and workmen of those parties. If the law did not extend the injunction to such agents, the order would be rendered ineffective because it could be evaded by those acting on behalf of the defendant. Consequently, the law permits a plaintiff to enforce an injunction against a servant or agent without having to add that person as a defendant in the suit; the original injunction against the defendant suffices for this purpose. When an agent or servant, having received formal notice of the injunction, disobeys it, that individual becomes liable for contempt without any additional order under Order 39, Rule 2(1). This principle is reflected in the wording of an injunction order shown in Form 8 of Appendix F to the Code, which reads: “The Court doth order that an injunction be awarded to restrain the defendant C. D., his servants, agents and workmen, from ….” The Court noted that the form of the order issued by the Subordinate Judge in the present matter did not deviate from this model. Therefore, the expression “person” in Order 39, Rule 2(3) was employed simply as a shorthand to refer to the entire group comprising the defendant, his agents, servants and workmen, and was not intended to exclude any defendant against whom the injunction was directed.

In this case the Court observed that when the State is the party against whom an injunction is directed, the order must name the State expressly in the operative clause; it cannot rely merely on implication. The Court explained that the rule of construction cited by the appellant does not benefit him. The Court also considered the question from a wider perspective. It noted that if a statute authorises a court to grant an injunction against any defendant, including the State, the statutory scheme would be frustrated and the power would become ineffective unless the enforcement mechanism created by the statute applies to every person against whom the injunction is directed. Accordingly, apart from a detailed analysis of the wording of Order 39, rule 2(3), the Court held that the State’s duty to obey the injunction and to face contempt proceedings for any breach follows necessarily from the language of the provision. The Court quoted Maxwell, stating that “The Crown is sufficiently named in a statute when an intention to include it is manifest.” The remaining point for consideration, the Court said, was whether the publication of the notification under section 3(1), which the Subordinate Judge treated as the act of disobedience, could be regarded as “the act” of the State.

The Court noted that the argument on this point rested on Article 154(1) of the Constitution. It cited Maxwell’s treatise on statutory interpretation and referred to the decision in Moore v. Smith. The Constitution provides that the executive power of the State is vested in the Governor and may be exercised by him directly or through officers subordinate to him in accordance with the Constitution. Counsel for the respondent argued that the publication of the notification was an executive act, i.e., an exercise of the State’s executive power, and that such power could be exercised either by the Governor himself or by his subordinates. Therefore, the mere fact that the notification was issued in the name of the Governor, in compliance with Article 166(1), did not automatically make the Governor personally responsible for the notification. The counsel further contended that unless the respondent could prove that the Governor himself had authorized the notification, the State or the State Government could not be held liable for contempt of the injunction. The Court agreed with this submission to the extent that the process of making an order precedes and is distinct from its expression. While Article 166(1) merely prescribes the procedure for making orders, the authentication requirement in Article 166(2) sets out how a previously made order must be embodied.

In the earlier decision of the Privy Council in King Emperor v. Sibnath Banerji (1), the Court explained the expression “executive power” that appears in Chapter 2 of Part 3 of the Government of India Act, 1935 (the provision that corresponds to Part VI, Chapter 11 of the Constitution). The Privy Council held that the term “executive” must be understood in a wide sense, encompassing both the decision to act and the performance of that decision. Section 3(1) of the 1935 Act vested the authority to issue notifications not in any particular officer but in the State Government as a whole, although the manner of exercising that authority was to be regulated by the rules of business that the Governor frames under Article 166(3) of the Constitution. That observation, however, does not provide any benefit to the appellant in the present matter.

The order that is the subject of the present proceedings is described as having been made “in the name of the Governor” and it bears the authentication required by Article 166(2). Consequently, the validity of the order or instrument cannot be attacked on the ground that it was not an order or instrument made or executed by the Governor himself. While authorities have recognised that an order may be challenged on grounds other than those specified in the article, the present case does not raise an objection on the basis that the order was not passed by the proper authority. The validity of the order as a Government order is not in dispute. The only issue that has been raised is whether the order was issued by the Governor personally or by a person duly authorised by the Governor under Article 154(1). Even if the order did not originate directly from the Governor, that circumstance does not assist the State because the Governor remains accountable for the acts of his subordinates when they act in his name.

Lord Thankerton, in Emperor v. Sibnath Banerji (1), distinguished between a statutory delegation that transfers power and relieves the Governor of responsibility, and the situation created by Section 49(1) of the Government of India Act, 1935 (corresponding to Article 154(1) of the Constitution), where the Governor retains responsibility for the acts of his subordinates performed in his name. He explained that sub‑section 5 of section 2 of the Defence of India Act, 1939 provides a true delegation, effecting a transfer of power and discharging the Governor of any liability, whereas under section 49(1) of the 1935 Act the Governor continues to bear responsibility for the actions of his subordinates. That distinction has been reiterated, and the present argument that the Governor’s responsibility is thereby removed must be rejected.

Before reaching a final conclusion, the Court notes that an essential principle of the rule of law requires every authority within the State, including the Executive Government, to consider itself bound by law and to obey lawful orders. This principle underlies the constitutional system and the judicial function of interpreting and applying law to the facts of properly brought cases.

In the judgment the Court noted that, as articulated in the decision reported in within the State (1) (1945) L.R. 72 I.A. 241, the Executive Government, like every other authority within the State, must regard itself as bound by and obligated to obey the law. The Court stressed that it is fundamental to the system of polity adopted by India and embodied in the Constitution that the courts of the land possess the power to interpret the law and to apply that interpretation to the facts of cases that are properly brought before them. The Court further observed that whenever any party to proceedings believes that a court has erred either in its understanding of the law or in its application, the appropriate recourse is to seek review or to file an appeal in accordance with the procedural mechanisms provided by law. The Court explained that once a court of competent jurisdiction has issued an order, every person who is bound by that order has a duty to obey it for as long as the order remains in force. To allow parties to disregard such orders with impunity would, the Court warned, undermine orderly administration and the functioning of civil government. While the same principle applies to private individuals, the Court emphasized that the duty to obey is even more imperative for governmental authorities, because failure to do so would create a conflict between two branches of the State polity – the executive and the judicial. Unchecked disobedience, the Court warned, would render judicial orders meaningless and would reduce the whole judicial power to a mockery. The Court added that when the State Government complies with the law or gives effect to a court order issued against it, it does not diminish its own dignity; rather, such compliance invests the law and the courts with the dignity they deserve and consequently enhances the prestige of the executive in a democratic system. Applying these principles to the facts of the present case, the Court found that there was no legal or any other justification for the State Government to have hurried the issuance of a notification under section 3(1) while an application for modification or vacating of the interim injunction order was still pending before the subordinate court. Moreover, the Court observed that the notification appears to have been published possibly because the State Government failed to recognise its own error, and that the propriety and legality of the notification were subsequently challenged before the court by an application under Order 39, rule 2(3). The Court held that the attitude adopted by the State Government and its persistence in that stance up to the hearing before this Court could scarcely be praised. If the Government had deliberately chosen to defy the court’s order because it considered the order wrong, the Court said such conduct warranted the severest condemnation. Conversely, if the breach resulted merely from inadvertence or mistake, the Court noted that nothing would have been lost and that the Government could have gained considerably, including in terms of its own prestige, by openly admitting the error and expressing regret for the lapse. The Court expressed disappointment that even at the stage of the hearing before it, no such admission or apology was forthcoming.

In the final portion of its judgment, the Court referred back to the attitude that had been described in the preceding discussion and noted that this attitude was a material consideration in its overall assessment. After examining the arguments presented by the appellant and the record of proceedings, the Court concluded that the appellant had not established any merit for the relief sought, and consequently the appeal could not be sustained. As a result, the Court directed that the appeal be dismissed in its entirety. In addition to dismissing the appeal, the Court ordered that the appellant be required to bear the costs of the litigation, meaning that the expenses incurred by the other party in defending the proceedings were to be paid by the appellant. The order expressly stated that the appeal was dismissed, thereby terminating the matter at the appellate level. By imposing the costs order together with the dismissal, the Court signified that the appellant would be responsible for the financial burden associated with the proceedings. The disposition of the case therefore comprised a complete dismissal of the appeal and an award of costs against the appellant, bringing the judicial process in this matter to a close.