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PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: RANI SONABATI KUMARI

DATE OF JUDGMENT: 20/09/1960

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA DAS, S.K. KAPUR, J.L. SUBBARAO, K. HIDAYATULLAH, M.

CITATION:  1961 AIR  221            1961 SCR  (1) 728  CITATOR INFO :  R          1963 SC1241  (85)  RF         1964 SC 669  (14)  MV         1967 SC 997  (47,59)  R          1974 SC 555  (78)

ACT: Temporary  injunction-Disobedience by State of order  issued against  it-Proceeding  in  contempt,  against  the   State- Maintainablity-Code  of  Civil  Procedure, 1908  (Act  V  of 1908), 0. 39, r. 2(3)-Constitution of India, Art. 300.

HEADNOTE: The  respondent  sued the State of Bihar for  a  declaration that the Bihar Land Reforms Act, 1950, was ultra vires, void and   unconstitutional  and  for  a   permanent   injunction restraining  the  State  and its  officers  or  agents  from issuing any notification thereunder in respect of her estate or  taking possession thereof and on a petition filed  along with  the plaint obtained an order of  temporary  injunction against  the  State  in terms of  her  prayer,  pending  the hearing of the suit.  More than a year thereafter, the State made  an  application under 0. 39, r. 4 of the  Code  for  a discharge of the order of temporary injunction on the ground that  the  impugned Act had in another  case  been  declarer valid by the Supreme Court.  Before that application  could, however,  be  heard,  the State of Bihar, on  May  19,  1952 issued   a   notification  under  s.  3(1)   of   the   Act, authenticated by the Additional Secretary to the Government, declaring that, amongst others, the respondent’s estate  had vested  in  the State of Bihar under the provisions  of  the Act.   Thereupon  the respondent moved the trial  Court  for taking action against the State under 0. 39, r. 2(3) of  the Code.   The  contention on behalf of the State was  that  in view  of  Art.  31-B of the Constitution the  issue  of  the notification was lawful and could not constitute contempt of Court.  The Subordinate judge held that this was no  defence to the application by the respondent and directed attachment of  the appellant’s property to the value of Rs.  5,000  and the High Court on appeal affirmed that decision.

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Held,  that  the courts below took the correct view  of  the matter and that the appeal must be dismissed. The  procedure  laid down by 0. 39, r. 2(3) of the  Code  of Civil  Procedure  is remedial and essentially  one  for  the enforcement or execution of an order of temporary injunction passed  under  0. 39, r. 2(1) and is available  against  the State although the provision for detention may not apply  to it.   It is wrong to say that it is either contrary to  Art. 300  of the Constitution or hit by the rule that  no  action lies  against  the  State  in  tort  or  for  a  wrong-doing entailing punishment or compensation. District  Board  of Bhagalpur v. Province of  Bihar,  A.I.R. 1954 729 Pat. 529 and Tarafatullah v. S. N. Maitra, A.I.R. 1952  Cal. gig, distinguished. There is also no basis for the contention that the State  is not  expressly or by necessary implication mentioned  in  0. 39,  r.  2(3).   The  word ’person’  used  by  it,  properly construed, includes the defendant against whom the order  of injunction  is  primarily  issued as  also  the  defendant’s agents,  servants and workmen.  Since the court’s  power  to issue  an  order of temporary injunction against  the  State under  0.  39, r. 2(1) cannot be in doubt,  disobedience  of such  an  order when issued necessarily attracts 0.  39,  r. 2(3) of the Code. Director  of  Rationing  & Distribution  v.  Corporation  of Calcutta, [1961] 1 S.C.R. 158, held inapplicable. Held,  further, that when once an order is passed which  the Court has jurisdiction to pass, it is the duty of the  State no  less  than any private party to obey it so  long  as  it stands,  and  the  conduct of the State  Government  in  the instant case in issuing the notification at a time when  its application  for vacating the injunction was  still  pending and the attitude taken up by it after the application  under 0.  39, r. 2(3) was made and persisted in till the end  must be disapproved.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 83 of 1956. Appeal  from the judgment and order dated June 30, 1954,  of the  Patna High Court in Appeal from Original Order No.  255 of 1952. Lal Narayan Sinha and S. P. Varma, for the appellant. A.   V.  Viswanatha Sastri, B. K. Saran, D. P. Singh and  K. L. Mehta, for the respondent. 1960.   September  20.   The  Judgment  of  the  Court   was delivered by AYYANGAR  J.-The  State of Bihar is the  appellant  in  this appeal which comes before us on a certificate granted by the High   Court  of  Patna  under  Art.  133(1)  (c)   of   the Constitution.  The  principal  point  of law raised for  decision  in  the appeal is whether a State is liable to be proceeded  against under 0. 39, r. 2(3) of the Code of Civil Procedure, when it wilfully disobeys-an order of temporary injunction passed of nomine against it. There  is little controversy regarding the facts,  but  they have to be set out to appreciate some of the matters debated before US. 730 The Bihar Land Reforms Act, 1950 (which we shall refer to as the Act), which provided for the transference to the  ’State

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of  the  interests  of proprietors  and  ,tenure-holders  in estates  within  the  State,  received  the  assent  of  the President  on September 11, 1950, and was published  in  the Bihar  Gazette  on  September  25,  1950.   Thereupon   Rani Sonabati Kumari, the respondent, who was the proprietress of the  Ghatwali  Estate of Handwa situated within  the  State, instituted  against the State of Bihar, in the Court of  the Subordinate Judge, Dumka, on the 20th November, 1950,  Title Suit  40 of 1950, inter alia for a declaration that the  Act was ultra vires of the Bihar Legislature and was therefore " illegal,  void, unconstitutional and inoperative " and  that the defendant had " no right to issue any notification under the  said Act or to take possession or otherwise  meddle  or interfere  with the management of the estate in suit  "  and for a permanent injunction " restraining the defendant,  its officers,  servants, employees and agents from  issuing  any notification under the provisions of the Bihar Land  Reforms Act, in respect of the plaintiff’s estate " and also "  from taking  possession of the said estate and from  meddling  or interfering in any way with the management thereof ". Along with the plaint, the respondent filed a petition for a temporary injunction in which the prayer ran: "  It  is therefore prayed that a  temporary  injunction  be issued  against  the  defendant,  its  officers,  employees, servants  or  agents  restraining  them  from  issuing   any notification with regard to the plaintiff’s estate under the Bihar  Land  Reforms Act, 1950 (Act XXX of  1950)  and  from meddling or interfering with the possession of the plaintiff to the properties in suit, till the disposal of this suit ". The   Court  issued  an  ex  parte  ad  interim   injunction presumably  in  terms  of the prayer in  the  petition,  and directed notice of the petition to be served on the State of Bihar who filed their counter-affidavit on December 9, 1950, opposing  the  grant of any interim injunction  and  praying that the petition be dismissed                             731 with costs.  The petition was heard in the presence of  both the  parties  on March 19, 1951, and the  Subordinate  Judge made  the ad interim injunction absolute and the order  went on  to add " and it is ordered that the defendant shall  not issue  any  notification for taking over possession  of  the suit  properties  under the Land Reforms Act and  shall  not interfere  with  or  disturb in any  manner  the  plaintiffs possession over these properties under any of the  provision of the aforesaid Act until this suit is finally disposed  of by  this Court ". The order was appealable under 0.  43,  r. (1)  (r) of the Code, but the State preferred no appeal  and so it became final. On  May 17, 1952, an application was filed by the State  for vacating  the order, on the ground that the validity of  the Act had been upheld by this Court in another case  involving the  same  points and that thereafter the plaintiff  had  no prima facie case to sustain the injunction.  Before  however this  application invoking the powers of the Court under  0. 39,  r. 4 of the Code came on for hearing-(it  was  actually heard on May 30, 1952, when it reserved it for orders to  be pronounced on June 2, 1952) the State of Bihar issued on May 19, 1952, a notification under s. 3(1) of the Act  declaring that the Handwa Raj Estate belonging to the respondent,  had passed  to  and  became  vested  in  the  State  under   the provisions of the Act.  The notification ran: "In exercise of the powers conferred by sub. section (1)  of section 3 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of  1950), the Governor of Bihar is pleased to declare  that the Estates described in the First Schedule and the  tenures

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described in the Second Schedule hereto annexed belonging to the proprietor and the tenure-holder named in the respective schedules have, with effect from the date of the publication of  this  notification in the Bihar Gazette, passed  to  and became vested in the State under the provisions of this  Act ". The Handwa Raj Estate with the name of the respondent as the tenure holder was specified in the Second Schedule. 732 This was followed by an authentication in these terms:              By order of the Governor of Bihar,                      K. K. Mitra,             Additional Secretary to Government." On coming to know of this notification the respondent  moved the  Subordinate  Judge on June 2, 1952, for  taking  action against the defendant in the suit, for contempt under 0. 39, r. 2(3) of the Code of Civil Procedure. When  notice  of this petition was served on  the  State  it submitted an answer in these terms: "That in obedience to the said order, the defendant begs  to submit that in view of the Article 31B of the  Constitution, the aforesaid Notification, dated 19-5-52, and published  in Bihar Gazette, dated 21.5.52 is valid, legal and  authorised and  the  publication  of  the  same  does,  not  constitute contempt of court." The only matter here set out, viz., that the  constitutional validity of the Act had been affirmed by an amendment of the Constitution,  could  obviously  afford no  defence  to  the breach  of  an  injunction order and  indeed  this  was  not sought.  to be supported before us. The learned  Subordinate Judge passed an order on July 31, 1952, which ran " that  in view  of  the  notification constituting  a  breach  of  the injunction,  the  property of the defendant State  of  Bihar shall be attached to the value of Rs. 5,000.  The  plaintiff is directed to file the list of properties of this value and necessary  requisites  for issue of the attachment  with  in seven-days of this order." From  this order the State preferred an appeal to  the  High Court.  The appeal was, however, dismissed by the High Court by  judgment rendered on June 30, 1954, and by reason  of  a certificate  granted  by  the  learned  Judges  under   Art. ’133(1)(c) the State has preferred this appeal. The  arguments addressed to us by Mr. Lal Narayan Sinha  who appeared  for  the appellant State,  when  closely  analysed resolved themselves into five points:                             733 (1)  That the order of the Subordinate Judge dated March 19, 1951, did not on its’ plain language, interdict the issue of a notification under s. 3(1) of the Act, but merely directed the  State, not to disturb the possession of the  plaintiff. It   was  common  ground  that  beyond  the  issue  of   the notification,  neither  the  State,  nor  its  officers   or servants  had done anything by way of interfering  with  the possession of the plaintiff. (2)  That  at the worst the order of the Subordinate  Judge, having  regard  to  the language  employed,  was  reasonably capable of two interpretations-(a) that the direction to the State included a prohibition against issuing a  notification under  s.  3(1),  and (b) that  there  was  no  interdiction against  notifications  under  s.  3(1)  but  only   against notifications   which   directly  involved   or   authorised interference with the plaintiff’s possession of her  Estate. Proceedings for, contempt even for the enforcement of orders of Civil Courts being quasi-punitive in their nature, it was urged  that a party who bona fide conducted himself  on  the

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basis  of one of two possible interpretations could  not  be held guilty of contempt. (3)  That the rule that the Crown or the State could not  be proceeded  against for a tort or wrong-doing applied to  the present  case, since disobedience of an order of  injunction is  virtually a wrong for which 0. 39, r. 2(3) provides  the punishment or compensation. (4)  That  a  State is not bound by a Statute unless  it  is named therein expressly or by necessary implication, and  as there  is no mention of a State in specific terms in 0.  39, r.  2(3), a State cannot, as such, be proceeded against  for disobedience of an order of Court. (5)  Even if a State could be proceeded against for  willful disobedience   of   an  order,  the   publication   of   the notification  under s. 3(1) which was the contempt  alleged, was  not  proved with certainty, to be an act of  the  State Government,  and that in the absence of a definite proof  of this fact, the liability of the State could not arise ;  and that if the notification dated May 19, 1952, constituted the act of disobedience, 734 then  only  the Additional Secretary, Mr. K.  K.  Mitra  who authenticated  the  notification could, if at all,  be  made liable. It  would be convenient to deal with these ’matters in  that order. The first point urged was that the order of the  Subordinate Judge dated March 19, 1951, did not in terms or in substance prohibit  the  State from issuing a  notification  under  s. 3(1). Section 3(1) of the Act runs: "   The  State  Government  may,  from  time  to  time,   by notification,  declare  that  the estates or  tenures  of  a proprietor or tenure-holder, specified in the  notification, have passed to and become vested in the State." It  was  urged  that  the Subordinate  Judge  by  his  order directed  the  State  " not to issue  any  notification  for taking  possession "-and as the notification under  s.  3(1) does  not  proprio  vigore  affect  or  interfere  with  the possession of the proprietor or tenure-holder, the issue  of such  a  notification was not within the  prohibition.   The same  argument  was  addressed to the  High  Court  and  was repelled by the learned Judges and in our opinion correctly. In the first place, the only "notification" contemplated  by the provisions of the Act immediately relevant to the  suit, was  a notification under s. 3(1).  Such a notification  has the statutory effect of divesting the owner of the  notified estate  of  his or her title to the property and  of  trans- ferring  it  to and vesting it in the State.  The  State  is enabled to take possession of the estate and the  properties comprised  in  it  by  acting under s.  4,  but  the  latter provision  does  not  contemplate  any  notification,   only executive  acts  by authorized officers of  the  State.   Of course,  if  action  had  been taken under  s.  4,  and  the possession of the respondent had been interfered with, there would have been a further breach of the order which directed the  State. not to interfere with or disturb in any  manner, the plaintiff’s possession.  What we desire to point out  is that  the order of the Court really consisted of two  parts- the  earlier  directed against the  defendant  publishing  a notification which in the context of the relevant statutory                             735 provisions could only mean a notification under s. 3(1)  and that   which   followed,  against   interfering   with   the plaintiff’s possession and the fact that-the second part  of

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the order was not contravened is no ground for holding  that there  had  been no breach of the first part.  In  the  next place, the matter is put beyond the pale of controversy,  if the  order were read, as it has to be read,  in  conjunction with  the  plaint  and  the  application  for  a   temporary injunction.  Mr. Sinha did not seriously contend that if the order  of  the  Court were understood in the  light  of  the allegations   and  prayers  in  these  two  documents,   the reference  to  the " notification " in it was  only  to  one under s. 3(1) of the Act, and that the injunction  therefore was  meant  to cover and covered such a  notification.   We, therefore, hold that this objection must fail. (2)  The  second  contention  urged was that even  if  on  a proper  construction of the order, read in the light of  the relevant  pleadings,  the State Government was  directed  to abstain from publishing a notification under s. 3(1) of  the Act,  still, if the order was ambiguious and  equivocal  and reasonably capable of two interpretations, a party who acted on  the  basis of one of such interpretations could  not  be held  to  have wilfully disobeyed the..  order.   Stated  in these  terms, the contention appears  unexceptionable.   For its  being  accepted in any particular  case,  however,  two conditions  have  to be satisfied: (1) that  the  order  was ambiguous  and  was  reasonably capable  of  more  than  one interpretation,  (2) that the party being proceeded  against in  fact did not intend to disobey the order, but  conducted himself in accordance with his interpretation of the  order. We are clearly of the view that the case before us does  not satisfy  either  condition.   In  dealing  with  the   first contention urged by learned Counsel, we have pointed out the true  construction of the order-and in our opinion  that  is the  only construction which it could reasonably bear.   But this  apart,  even  if the order was  equivocal  as  learned Counsel puts it, still, it is of no avail to the  appellant, unless the State Government understood it 94 736 in  the sense, that the order was confined to acts by  which the possession of the plaintiff was directly interfered with and  the notification was issued on that  understanding  and belief.  There are two pieces of conduct on the part of  the State  Government  which are wholly  inconsistent  with  the theory  that  the order was understood by  them  as  learned Counsel   suggested.    The  first  is   that   before   the notification  under s. 3(1) was issued they applied  to  the Court  to vacate the order of injunction so that they  might issue  notification, and it was during the pendency of  this application that the notification was issued-without waiting for  the orders of the Court on their petition.  The  second is  even  more significant.  When notice was issued  to  the defendant  to show cause why it should not be committed  for contempt, one would naturally expect, if the point urged has any  validity,  the  defence  to be based  on  a  denial  of disobedience,  by reference to the sense in which the  order was  understood.   We have already  extracted  the  relevant paragraph  of the counter-affidavit and in this there is  no trace  of the plea now put forward.  Even in the  memorandum of appeal to the High Court against the order of the learned Subordinate  Judge  under  0.  39,  r.  2(3)  there  is   no indication  of the contention now urged and though  a  faint suggestion  of  inadvertence  on the part  of  some  officer appears  to  have  been  put forward  during  the  stage  of argument  before the High Court, the point in this form  was not  urged before the learned Judges of the High  Court,  as seen  from the judgment.  The question whether a  party  has

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understood an order in a particular manner and has conducted himself in accordance with such a construction is  primarily one of-fact, and where the materials before the Court do not support such a state of affairs, the Court cannot  attribute an  innocent intention based on presumptions, for  the  only reason, that ingenuity of Counsel can discover  equivocation in the order which is the subject of enforcement.  The argu- ment  being  in  effect  that a  party  who  had  bona  fide misconstrued the order and acted on that basis, could not be held to have wailfully and deliberately disobeyed                             737 the order, such a plea could obviously be urged only when it is  proved that a party was in fact under a  misapprehension as to the scope of the order, but this was never the plea of the  Government right up to the stage of the hearing  before the High Court.  Besides, if the case of the State was, that acting bona fide it had committed an error in construing the order,  one  would expect an expression of  regret  for  the unintentional  wrong,  but even a, trace  of  contrition  is singular  lacking at any stage of the proceedings.   We  are clearly  of the opinion that there is no factual  basis  for sustaining the second ground urged by learned Counsel. (3)  Turning  to  the  next point  urged,  learned  ’Counsel amplified  it  in these terms.  No doubt, having  regard  to Art.  300 of the Constitution-which  practically  reproduces the  earlier statutory provisions in that behalf going  back to  1858, States are not immune from liability to  be  sued. Learned  Counsel added that he would not dispute that  Title Suit  40  of 1950 was properly laid and that the  Court  had jurisdiction  to entertain it, as also jurisdiction to  pass the  order  of temporary injunction  against  the  defendant State  pending.  the  decision of  the  suit.   But  learned Counsel urged that it did not automatically follow that  the State  was amenable to proceedings, for disobedience of  the injunction.  Proceedings for contempt even for enforcing  an order  of  a  Civil  Court,  he  submitted,  were  really  a punishment for wrong doing and in essence, therefore, quasi- criminal.  For this reason he contended that Art. 300  which permitted suits to be filed against the Union and the States could not be held to authorise proceedings of such a  quasi- criminal nature, and that as a result the Common Law  rules, that the King could do no wrong and that the Crown could not be  sued  for a tort, were attracted.   In  this  connection learned  Counsel invited our attention to the  decisions  in District  Board  of Bhagalpur v. Province  of  Bihar(1)  and Tarafatullah  v.  S. N. Maitra (2).  In the first  of  these cases, a large number of English and Indian decisions on the liability of the Crown in (1) A.I.R. 1954 Pat. 529. (2) A.I.R. 1952 Cal. 919, 927. 738 tort were discussed.  The question for consideration  before the  learned  Judges was whether the suit before  the  Court against the Government could be legally maintainable and  as to  the scope and limits of the rule,, respondent  superior" in such actions against the State-but both these matters are far removed from the pale of the controversy before us. In  regard to the other ruling of the learned Judges of  the Calcutta  High Court, learned Counsel relied not so much  on the  decision  itself but on the following  observations  of Mukerji, J. (1): " A State as such cannot be said to commit contempt.  In the case  of  the  State  the  allegation  must  be  against   a particular  officer or officers of the State.  Where  as  in this  case  an order was obtained against the  State.  in  a

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civil proceeding restraining certain acts of the State,  and it  is  alleged by the complainant or  the  petitioner  that there  has  been  a contempt by breach of  that  order,  the petitioner  for contempt will have to take out the Rule  for contempt against the particular officer or officers who  has or  have  disobeyed  that order.  In  such  a  petition  for contempt  the Rule must be asked against an  individual  and not  against the State.  Article 300 of the Constitution  of India  provides for proceedings by way of suit  against  the State or the Union of India and cannot be extended to  apply to contempt proceedings ". In  order  however  to appreciate  the  observations  it  is necessary  to consider briefly the facts of the  case.   The decision  was  concerned with an application to  commit  the respondents for contempt for disobedience to an order of  ad interim  injunction  granted by a single Judge of  the  High Court  on a petition for the issue of a writ  of  Certiorari under Art. 226 of the Constitution.  No doubt, the order  of temporary injunction was issued against the Government,  but the  disobedience  complained  of was not  any  act  of  the Government  as  such, but of certain  officers.   Not  with. standing  this,  the Secretary to Government  who  had  been formally  impleaded  as  representing  the  Government,  was sought to be proceeded against personally (1)  A.I.R. 1952 Cal. 919. 927.                             739 for  contempt and the prayer being that he  as  representing the   Government   should  be  committed  to   prison.    As Chakravartti,  C.  J.,  pertinently  pointed  out,  a   more ridiculous prayer could not be imagined.  The learned Judges further  found that as a fact no disobedience of  the  order had  been  proved.   The  question  therefore  whether   the Government  could  be  liable to be  proceeded  against  for contempt  for  disobedience of an order which  a  Court  has jurisdiction to pass and which bound the Government, the act constituting  the  contempt being unmistakably  an  act  for which  Government could not as such disclaim  responsibility did not arise for consideration in that case. Having regard to the findings of fact reached by the  Court, the  observations  regarding the scope of the  liability  of Government  were wholly orbiter.  In regard to  the  passage relied on we need only say that observations about the ambit of Art. 300 of the Constitution are too widely expressed and do  not  take  into account, the  provisions  of  the  Civil Procedure  Code  0.  21, r. 32 & 0. 21,  r.  39(2)(3)  which directly  bear  on  the matter and which  we  shall  discuss presently.   Further, they cannot also apply to those  cases where the disobedience takes the form of a formal Government order  as  in this case.  In this connection we  prefer  the approach to the question indicated by the learned C. J., who said: " I do not say that in fit cases a writ for contempt may not be  asked  for against a corporation itself,  or  against  a Government.  In what form, in such a case, any penal  order, if considered necessary, is to be passed and how it is to be enforced  are  different  matters  which  do  not  call  for decision in this case.  In England, there is a specific rule providing for sequestration of the corporate property of the party  concerned, where such party is a corporation.   I  am not  aware  of any similar rule obtaining in  this  country, but,  I do not consider it impossible that in a fit  case  a fine  may  be  imposed and it may  be  realised  by  methods analogous to sequestration which would be a distress warrant directed  against  the properties of the Government  or  the Corporation

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740 Learned Counsel laid considerable stress on the  proceedings under 0. 39, r. 2(3) being quasi-criminal, in an attempt  to establish that the State could not be proceeded against  for such a criminal wrong.  Though undoubtedly proceedings under 0.  39,  r.  2(3), Civil Procedure  Code,  have  a  punitive aspect-as  is evident from the condemner being liable to  be ordered  to  be  detained  in  civil  prison,  they  are  in substance  designed  to  effect the  enforcement  of  or  to execute  the  order.  This is clearly brought out  by  their identity   with  the  procedure  prescribed  by  the   Civil Procedure Code for the execution of a decree for a permanent injunction.   Order 21, r. 32 sets out the method  by  which such  decrees could be executed-and cl. (1)  enacts-"  where the  party  against  whom  a  decree...............  for  an injunction  has  been  passed, has had  an  opportunity  for obeying the decree and has willfully failed to obey it,  the decree    may    be   enforced,   in   the   case    of    a decree .................. for an injunction by his detention in the civil prison, or by the attachment of his property or by  both Clauses 2 and 3 of this rule practically  reproduce the  terms of cls. 4 and 3 respectively of 0. 39, r. 2,  and the  provisions leave no room for doubt that 0. 39, r.  2(3) is  in  essence  only  the  mode  for  the  enforcement   or effectuation  of  an  order of  injunction.   While  on  the provisions  of  0.  21, r. 32, it may be  pointed  out  that learned Counsel for the State does not contend that a  State Government against whom a decree for a permanent  injunction has been passed is not liable to be proceeded against  under this  provision of the Code in the event of the  decree  not being  obeyed  by them.  No doubt the State  Government  not being  a natural person could not be ordered to be  detained in  civil prison, On the analogy of Corporations; for  which special provision is made in 0. 39, r. 5, but beyond  that,, both  when a decree for a permanent injunction  is  executed and  when an order of temporary injunction is  enforced  the liability  of the State Government to be  proceeded  against appears to us clear.  The third point urged lacks  substance and is rejected. Some point was sought to be made of the fact that                             741 as  the State was a juristic entity merely, the wrong  which constituted the disobedience, must have been the act of some servant  or agent of the Government and that except  on  the principle  of  vicarious liability the State  could  not  be liable.   This  argument  which  is  partly  based  on   the observations  of  Mukherji,  J.,  in  the  passage   already extracted  would  if accepted deny that there could  be  any action  by  the  State at all, is really part  of  the  last submission  and could conveniently be dealt with along  with it.   Besides, it need only be mentioned that the fact  that officers  and servants of Government could be dealt with  as individuals bound by the orders passed against the defendant Government,  nor  the  fact that they would  be  liable  in’ contempt  is  no ground at all for holding  that  the  State Government itself would not be liable for their own act. (4)  The  invocation  of the rule of construction  that  the Crown was not bound by a statute unless by express words  or by  necessary  implication  the intention  so  to  bind  was manifested,  was  the next submission  of  learned  Counsel, reliance  being  placed  for the  position,  on  the  recent decision   of  this  Court  in  Director  of   Rationing   & Distribution v. Corporation of Calcutta (1). We shall proceed to consider the soundness of the contention that  on a proper construction of the Civil  Procedure  Code

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the  State of Bihar is not within 0. 39, r.  2(3).   Article 300  of  the Constitution permits suits,  which  before  the Constitution  could have been filed against the Central  and Provincial Governments respectively, to be filed against the Union and the State.  As already stated, there is no dispute that’ having regard to the cause of action alleged in   the- plaint, Title Suit 40 of 1950 could be properly laid against the  State and the plaintiff could, if she was able to  make good  her  allegations of fact and law, be  entitled  to  be granted  the  reliefs prayed for in her suit  including  the relief for a permanent injunction restraining the State from issuing  a  notification under a. 3(1) of the Act  and  from interfering with her possession of (1)  [1961] S.C.R. 158. 742 the  estate  of  Handwa.   It  is  also  admitted  that  the Subordinate  Judge  had jurisdiction to pass  the  order  of temporary  injunction against the State Government and  that the order bound them.  What is contended however is that the method  of  enforcing that order provided for in 0.  39,  r. 2(3)  of  the  Code  is  not  available  against  the  State Government,  because  the State Government is not  named  in that  sub-rule expressly or even by  necessary  implication. An examination however of the provisions of the Code and the Scheme  underlying  it in relation  to  proceedings  against Government  establishes  that  this  submission  is   wholly untenable. The  Code of Civil Procedure does not determine whether  any particular suit or class of suits could be filed against the Government  or not, these being matters of substantive  law. But  when  in  law a suit could be  properly  filed  against Government-be it the Union or the State, it makes a complete provision for the procedure applicable to such suits and the type of orders which Courts could pass in such suits and how these  orders  could  be  enforced.  Part  IV  of  the  Code comprising  ss. 79 to 82, sets out the details of  the  pro- cedure to be followed in suits against Government.   Section 79  prescribes  what,  the  cause  title  of  suits  against Government should be, the expression ’Government’ being used to   designate  both  the  Union  as  well  as   the   State Governments.  Section 80 provides-making a special provision not  applicable to suits against private parties, for a  two months’ notice prior to suit.  If Government were a party to a  suit,  it necessarily follows that  where  the  plaintiff succeeds there might be a decree against the  Government-the Union or the State-and s. 82 lays down special rules for the execution of such decrees.  In the 1st Schedule to the Code, there  is  a separate chapter-Chapter  XXVII,  dealing  with suits  against Government, in which provision  is  specially made  for adequate time being granted to it  for  conducting the various stages of the proceedings before Courts. The foregoing, in our opinion, makes it clear that the State is bound by the Code of Civil Procedure, the                             743 scheme  of  the  Code  being that  subject  to  any  special provision  made in that regard, as respects Governments,  it occupies  the  same  position  as  any  other  party  to   a proceeding before the Court. We are further satisfied that even apart from the Scheme  of the Code, the State, as a party defendant is plainly  within the terms of 0. 39, r. 2(3) of the Code. There is here no controversy that the Subordinate Judge  had jurisdiction to pass the interim order of injunction against the State on the terms of 0. 39, r. 2(1) which reads:- "In  any suit for restraining the defendant from  committing

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injury of any kind, whether compensation is claimed in it or not,  the plaintiff may at any time after the filing of  the suitapply  to  the  Court for  a  temporary  injunction  to restrain the defendant from committing the injury complained of......................." The reference to the " defendant " in the sub-rule precludes any  argument against the State being exempt from  or  being outside  the statute.  The entire argument on this  part  of the  case was based on the difference between  the  language employed in cl. (1) extracted above and cl. (3) of the  rule making  provision  for the manner in which  disobedience  to orders passed under cl. (1) could be dealt with.  Clause (3) runs: "In  case of disobedience, or of breach of any  such  terms, the  Court granting an injunction may order the property  of the  person  guilty  of such disobedience or  breach  to  be attached,  and may also order such person to be detained  in the civil prison for a term not exceeding six months, unless in the meantime the Court directs his release." Learned Counsel urged that cl. (3) discarded the use of  the expression  "  defendant " employed in cl. (1)  which  would have  included the " State" in cases where the State  was  a party  defendant, and had designated the party against  whom the injunction order could be enforced as "the person guilty of   the  disobedience  "  and  with  a  further   provision empowering the 95 744 Court  to  order  the detention of such person  "  in  Civil prison.   The word " person it was urged was at the  best  a neutral  expression,  which  in the  absence  of  compelling indication,  was  not  apt  to  include  "  a  State  "  and particularly  so  in the light of the rule  of  Construction approved  by  this  Court in The Director  of  Rationing  v. Corporation of Calcutta (1).  It was further pressed upon us that the construction suggested would not render  injunction orders  passed on the State when it was a  defendant  brutum fulmen,  because, the State as a juristic person  could  act only  through  human agency and there would always  be  some officer-a natural " person guilty of disobedience " in every case where orders passed against a State were disobeyed.  We are  clearly of the opinion that the entire argument  should be rejected. We  feel wholly unable to accept the construction  suggested of  the expression " person guilty of disobedience " in  the clause.   The  reason for the variation in  the  phraseology employed  in cls. (1) and (3) of 0. 39, r. 2 is not  far  to seek.  Under the law when an order of injunction is  passed, that order is binding on and enforceable not merely  against the  persons eo nomine impleaded as a party to the suit  and against  whom the order is passed but against "  the  agents and  servants, etc." of such a party.  If such were not  the law,  orders  of injunction would be rendered  nugatory,  by their  being  contravened  by the  agents  and  servants  of parties.   For that reason, the law provides that  in  order that  a plaintiff might seek to enforce an order  against  a servant or an agent of the defendant, these latter need  not be  added  as defendants to the suit and an  order  obtained specifically  against  the man order against  the  defendant sufficing  for  this purpose.  If such agents  or  servants, etc., are proved to have formal notice of the order and they disobey  the  injunction, they are liable  to  be  proceeded against  for contempt, without any need for a further  order against  them under 0. 39, r. 2(1).  This legal position  is brought  out by the terms of an injunction order set out  in

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Form 8 of Appendix F to the Code which (1)  [1961] 1 S.C.R. 158. 745 reads:"The Court doth order that an injunction be awarded to restrain  the  defendant  C. D., his  servants,  agents  and workmen, from..................... It is not suggested  that the  form which the order of the Subordinate Judge  took  in this case, departed from this model. If such is the scope of an order for injunction, it would be apparent  that  the expression " person " has in 0.  39,  r. 2(3)   been  employed  merely  compendiously  to   designate everyone in the group " Defendant, his agents, servants  and workmen  " and not for excluding any defendant against  whom the order of injunction has primarily been passed.  It would therefore  follow  that  in cases where  the  State  is  the defendant  against  whom  an order of  injunction  has  been issued,  it  is "  expressly " named in the clause  and  not even by necessary implication, and the rule of  construction invoked does not in any manner avail the appellant. The  matter  may also be approached from  a  broader  angle. Where a Court is empowered by statute to issue an injunction against  any defendant, even if the defendant be the  State- the  provision  would be frustrated and the  power  rendered ineffective  and unmeaning if the machinery for  enforcement specially  enacted did not extend to every one against  whom the order of injunction is directed.  Apart, therefore, from a critical examination of the phraseology of 0. 39, r. 2(3), the  obligation  on  the  part of  the  State  to  obey  the injunction  and be proceeded against for disobedience if  it should  take  place  would appear  to  follow  by  necessary implication.   As  Maxwell  (1)  puts  it  "  The  Crown  is sufficiently named in a statute when an intention to include it is manifest ". The only point remaining for consideration is as to  whether the publication of the notification under s. 3(1) which  was treated by the Subordinate Judge to be the disobedience, had been  established  to  be " the act "  of  the  State.   The entirety of the argument on this part of the case was rested on the terms of Art. 154(1) of the Constitution reading: (1) Maxwell on Interpretation of Statutes, 10th Edition,  P. 140.  Cf. Moore V. SMith, (1859) 28 L.J.M.C. 126. 746 "  The executive power of the State shall be vested  in  the Governor  and shall be exercised by him either  directly  or through officers subordinate to him in accordance with  this Constitution". It was urged that the publication of the notification was  " an executive act "-an exercise of the executive power of the State-and  since such a power could be exercised  either  by the  Governor  directly or through officers  subordinate  to him, it could not be predicated, from the mere fact that the notification  was  purported to be made in the name  of  the Governor,  in Conformity with the provisions of Art.  166(1) that  it  was  the  Governor who  was  responsible  for  the notification  and not some officer subordinate to  him.   On this  reasoning the further contention was, that unless  the respondent  proved that it was the Governor himself who  had authorised  the issue of the notification, the State or  the State   Government  could  not  be  fixed   with   liability therefore,  so as to be held guilty of disobedience  of  the order of injunction. The submission of learned Counsel is correct to this  extent that  the  process  of  making  an  order  precedes  and  is different  from  the expression of it, and that  while  Art. 166(1)  merely  prescribes how orders are to  be  made,  the

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authentication  referred  to in Art.  166(2)  indicates  the manner in which a previously made order should be  embodied. As observed by the Privy Council in King Emperor v.  Sibnath Banerji (1)with reference to the term " executive power " in Ch.  2  of  Part 3 of the Government  of  India  Act,  1935, corresponding to Part VI, Ch. 11 of the Constitution) "  the term  ’executive’ is used in the broader sense as  including both  a  decision as to action and the carrying out  of  the decision ". Section  3(1)  of  the  Act confers  the  power  of  issuing notifications under it, not on any officer but on the  State Government  as such though the exercise of that power  would be governed by the rules of business framed by the  Governor under  Art. 166(3) of the Constitution.  But this  does  not afford  any  assistance  to the  appellant.   The  order  of Government in the (1) (1945) L. R. 72 I. A. 241 747 present  case is expressed to be made " in the name  of  the Governor  "  and  is authenticated  as  prescribed  by  Art. 166(2),  and  consequently " the validity of  the  order  or instrument  cannot be called in question on the ground  that it  is  not an order or instrument made or executed  by  the Governor ". Authorities  have, no doubt, laid down that the validity  of the order may be questioned on grounds other than those  set out in the Article, but we do not have here a case where the order  of the Government is impugned on the ground  that  it was not passed by the proper authority.  Its validity as  an order of Government is not in controversy at all. The only point canvassed is whether it was an order made  by the  Governor or by someone duly authorised by him  in  that behalf within Art. 154(1).  Even assuming that the order did not  originate from the Governor personally, it  avails  the State  nothing because the Governor remains responsible  for the  action  of  his subordinates taken  in  his  name.   In Emperor  v. Sibnath Banerji (1), already referred  to,  Lord Thankerton  pointing out the distinction between  delegation by  virtue of statutory power therefore and the case of  the exercise of the Governor’s power by authorized  subordinates under the terms of a. 49(1) of the Government of India  Act, 1935 (corresponding to Art. 154(1) ), said: "  Sub-a.  5  of s. 2 (of the Defence of  India  Act,  1939) provides  a means of delegation in the strict sense  of  the word, namely, a transfer of the power or duty to the officer or   authority   defined  in  the  sub.  section,   with   a corresponding   divestiture   of   the   Governor   of   any responsibility in the matter, whereas under s. 49(1) of  the Act of 1935, the Governor remains responsible for the action of his subordinates taken in his name." This  last point also is therefore without force and has  to be rejected. Before  concluding, we consider it proper to draw  attention to one aspect of the case.  It is of the essence of the rule of law that every authority within the State (1)  (1945) L.R. 72 I.A. 241. 748 ’including  the Executive Government should consider  itself bound by and obey the Law.  It is fundamental to the  system of  polity that India has adopted and which is  embodied  in the Constitution that the Courts of the land are vested with the powers of interpreting the law and of applying it to the facts of the cases which are properly brought before  them.. If   any party to the proceedings considers that  any  Court has committed any error, in the understanding of the law  or

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in  its  application, resort must be had to such  review  or appeals  as the law provides.  When once an order  has  been passed  which the Court has jurisdiction to pass, it is  the duty of all persons bound by it to obey the order so long as it  stands, and it would tend to the subversion of,  orderly administration  and  civil  Government,  if  parties   could disobey  orders with impunity.  If such is the  position  as regard  private  parties, the duty to obey is all  the  more imperative   in  the  case  of   Governmental   authorities, otherwise  there would be a conflict between one  branch  of the State polity, viz., the executive and another branch-the Judicial.   If  disobedience could go  unchecked,  it  would result  in orders of Courts ceasing to have any meaning  and judicial  power itself becoming a mockery.  When  the  State Government  obeys  a law, or gives effect to an order  of  a Court  passed  against it, it is not  doing  anything  which detracts  from its dignity, but rather, invests the law  and the  Courts  with  the dignity which are  their  due,  which enhances the prestige of the executive Government itself, in a democratic set-up.  We consider that on the facts of  this case there was no justification, legal or otherwise for  the State  Government to have rushed the notification  under  s. 3(1), when its application to modify or vacate the order for interim injunction was pending before the Subordinate Court. But  more than that, when possibly by failure to  appreciate their  error, the notification had been published,  and  the propriety  and legality of its action was brought up  before the  Court  by  an application under 0.  39,  r.  2(3),  the attitude  taken up by the State Government and persisted  in upto hearing before us, has been one which we can                             740 hardly commend.  If the Government had deliberately intended to  disobey the order of the Court, because for  any  reason they  considered  it  wrong,  their  conduct  deserves   the severest condemnation.  If on the other hand it was merely a case  of inadvertence and arose out of error, nothing  would have  been lost and there was everything to be gained,  even in the matter of the prestige of the Government, by a  frank avowal  of the error committed by them and an expression  of regret for the lapse, and it is lamentable that even at  the stage  of the hearing before us, there was no trace  of  any such attitude. The appeal fails and is dismissed with costs.                      Appeal dismissed. 96 750