VOL. II v. The Province o[

for agri previous year from lands in the Estate used cultural purposes. The notice was Manager at Agartalla in Tripura State. Thereupon, the State, by its then Ruler, Maharaja Sir Bir Bikram Bahadur, instituted the suit in question on 12th June, 1945, against the Province of Bengal and the Agricul tural Income-tax Officer, Dacca Range, in the Court of the First. Subordinate Judge, Datca, contesting validity of the notice and the proposed assessment on the grounds that the 'Provincial Legislature of Bengal had no authority to impose tax on any income of an Indian State or its Ruler" and that, in any case, "the Income-tax Officer, Dacca Range, had no authority or jurisdiction to issue the said notice to the Manager of the Estate outside British India." The cause of action of the suit was alleged to have arisen in the town of Dacca within the jurisdiction of the Court on 28th February, issued. The reliefs sought were a declaration that the Bengal Agri cultural Income-tax Act, 1944, in so far as it purported to impose a liability to pay agricultural income-tax on Indian State was the plaintiff ultra vires and void case, the in any notice served by the Agricultural Income-tax Officer, Dacca Range, was void and no assessment could be made on the basis of such notice, and a perpetual injunction to restrain the defendants from taking- any the plaintiff to agricultural income-tax. their written statements Before the suit was transferred by the High Court Court of the District Judge, 24 Parganas, and was again transferred Subordinate Judge at Alipore. The ruler who brought the suit having died, the plaint was amended by the· substitution in his pface of his son and heir in June 1947, and the suit was pending ill that Court whe1i the partition of India took effect on the 15th August, 1947. as a Ruler of an that, from that Court to the Court of the defendants filed the notice was to assess ~ On 9th December, 1947, the Province of East BengaJ that the Province of filed a petition stating the original defendant }'lo. -1 in the suit, had Bengal, ceased to exist with effect from 15th August, 1947, and 1950 The State of Tripuro v. The hovince of &Mt llefl8a/ Patanjati Sas1ri J. that "' 6 SYPREME COURT REPORTS [1951] thereof should be condoned and It was accordingly prayed two new Provinces, namely, Province of East Bengal and the Province of West Bengal had come into existence and that, inasmuch as the Province of West Bengal was taking no interest in it was necessary the suit, interest of East Bengal that the suit should be contested and that a written statement should be put in on its behalf such contest. the written statement which was filed with that petition should be accepted. In the written statement it was pleaded that inasmucl} as the Province of East Bengal was a Province of the Dominion of Pakistan and that defendant No. 2 was a Revenue Officer of that Province, the Court had no suit or make an order of jurisdiction to hear the injunction against the Province of East Bengal appeared only to contest the Court. By another written statement filed on the same day defendant No. 2 raised also other pleas in defence but his name was struck off the record at the plaintiff's instance as not being a necessary party the 13th December, the suit. On 1947, the Province of East Bengal was substituted as the defendant in the place of the Province of Bengal which had ceased to exist, and the written statement filed on behalf of the former was accepted. the defendants. It was stated jurisdiction of issue. on Thereupon the Subordinate Judge framed a preli minary the question of jurisdiction and, as stated already, found it for the plaintiff relying on s. 9 of the Indian Independence Act and article 4 of Indian Independence (Legal Proceedings) Order, 1947 the assessment It may be mentioned in passing that of the plaintiff was proceeded with by the Agriculturaf Income-tax Officer, Comilla Range (East Bengal), who, imposed by his order dated the 22nd December, 1947, on the plaintiff a tax of Rs. 1,79,848-12..0 for 1944..45 and Rs. recovery 1,34,326.7-0 for amounts has been deferred under orders of the Court pending the decision on the preliminary issue. 194546, but As pointed out by the Federal Coun in Midnaporc , ,. - S.C.R. SUPREME COURT REPORTS 7 19SO Tlie State of Triplll'a v. The Province of East Bencal Patanjali SaJtri J. Property controversy the Indian India before (I) All proceedings Zemindary Co. ,Ltd. v. The Province of Bengal and Others(1), the orders promulgated on the 14th August, 1947, by the Governor-General of in exercise of the powers confened under partition Indian Independence Act, 1947, and con s. 9 of the taining provisions difficulties arising the new situation created by the partition are binding on both the Dominion of India and the Dominion of Pakistan. Among such Orders those relevant to the Independence present (Legal Proceedings) Order, 1947, the Indian Independence (Rights, Liabilities) . Order, 1947. By to remove specially designed in connection with the transition article 4 of peti'ding the former Order. immediately before in any of the sp.ecial tribunals the appointed day specified in col. 1 of the Schedule to this Order shall be continued in that tribunal as if the said Act had not been passed, and that tribunal shall continue have for the purposes of the said proceedings all immediately jurisdiction and powers which before the appointed day; • • it had • • (3) Effect shall be given within the territories of either of the two Dominions to any order or sentence of any such Special Tribunal as aforesaid and of any as if the High Court in appeal or revision therefrom order or sentence had been passed by a court of compe tent jurisdiction in that Dominion; and by article 12(2) of the latter Order • • Where. any Province from which property, • rights or liabilities are transferred by is, immedi ately before the legal proceedings transfer a party to with respect to that property or those rights or liabili the property, the Province which succeeds rights or liabilities in accordance with the provisions of this Order shall be deemed to be substituted for the other Province as a party to those proceedings and proceedings may continue accordingly. this Order • • • !1) [1949) F.C.R.309. 1950 The State of Tlipura v. The Province of East Bengal Patanjali Sastli J. ' 8 SUPREME COURT REPORTS [1951] entirely reason of the position we "If this provision suhstit1.1ted defendant." With liabilities to have been transferred by the Indian On the effect of these provisions the learned Judges [i.e., of the High Court observed: article 12(2)] applies to the present case, there can be the Province of East Bengal was the suit for the Province of Bengal by substituted in operation the Legal law, a.nd Proceedings Order the suit shall continue in the Court of the Second Subordinate Judge, 24 Parganas, as a suit against the statement of agreed. The learned Judges, however, proceeded to exmine, laying stress on the words "by this Order" in article 12 (2), could be whether any property, rights or Independ 1947, (Rights, Property and Liabilities) Order, from the Province of Bengal to the Province of East the view Bengal, and that neither any liabilities were so transferred property, nor rights, nor under that Order and that, therefore, the continuation of the proceedings against the Province of East ·Ben gal, which was now part of an Independent Sovereign State, was governed by the principles of international law and comity of nations, and that, according to those· principles, East Bengal, being a Province of a sovereign state, co1.1ld not be sued against its will in the munici pal couns of India, with the result that the suit pend ing in the Court at Alipore must abate. They· also them, negatived a apparently for the first that by reason of he petition the Province ot East Bengal for acceptance of its written statement involved and also by reason ot condoning the delay sundry other proceedings for 1nterim relief sou&ht by Province of East Bengal, that Provinae must be the Court. to have submitted On behalf of the appellant, Mr. Sen Gupta challenged the correctness of the decision on both points. plaintiff which were actively raised before the effect filed on behalf of further contention jurisdiction of resisted by time, Betore dealing with these contentions, it will be raised convenient to dispose of two preliminary points by Mr. Faiyaz Ali, Advocate-General of East Bengal. S.C.R. SUPREME COlJRT REPORTS. 9 the present Maharaja first place, he submitted In the the Stafe of Tripura having ::.ince been merged in the ·Dominion of India and a Chief Commissioner having been appointed to administer its territories, the appeal could no longer be prosecuted by through his mother as his next friend. It was however, repre sented to us on his behalf that under the agreement of merger the Estate of Chakla Roshanabad was left to the Maharaja as his personal property and it no longer formed part of the territories of the Tripura State. The Attorney-General, Dominion of India, position. There is thus no substance the objection as any formal defect in the proceeding could be set right by suitably amending the cause appearing on behalf of intervener, confirmed title. 1950 The State of Tripura ·v. The Province of EtM Bengal Paranjali Sastri J. · this Court its provisions Mr. Faiyaz Ali next drew our attention Independence Legal Proceedings) Pakistan (Indian the Governor-General of Order, 1948, promulgated by Pakistan on 13th November, 1948, with retrospective eff!!ct from the 15th August, 1947, and pointed out that in · view that might decree eventually be passed by the Court at Alipore would therefore, it receive no effect in Pakistan and that, the question to decide was unnecessary for of the jurisdiction of the Alipore Court to proceed with the suit. We are unable that view. The effect of the Order referred to above on any decree may eventually be passed in the pending suit may have to be taken note of by the Court trying that suit after hearing that Order which is challenged but we are at present concerned only with Court to try the suit and we cannot at this stage that question merely refuse because any decree that might be passed favour of the plaintiff might prove to give our ruling on the jurisdiction of the validity of the question of arguments on ineffectual. to take Turning now to the main question, it is clear that the Rights, Property and Liabilities liabilities a legal proceedings article 12 (2) of Order applies only which were Province which. was a party rights or the Order transferred by to property

#1. 1930 The State of Tripu111 •• The Province of EQJt Bengal Patanjali Sastrl J. :I> • 10 SUPREME COURT REPORTS [1951] to" As respect liabilities. rely upon there any income of the transfer of property or · those they suit rights "with in question cannot be said to have been instituted with respect to the property the appel transferred, namely, Chakla Roshanabad, lant cannot that property from the Province of Bengal to the Province of East Bengal as part of the territories of Pakistan under the transfer of scheme of partition. Nor was "rights" such as was contemplated under that article, the Province of for the only right with respect to whicli to have been a party Bengal could be said the facts of this case was the pending proceeding on the plaintiff right to tax the agricultural under the provisions of the Bengal Agricultural In that right was not derived by come-tax Act, l~, and the Province s>f East Bengal by Rights, Property and Liabilities Order. As rightly pointed out by the High Court, the right of taxation under the Bengal Act of 1944 passed to the Province of East Bengal as part of the Sovereign Dominion of Pakistan by virtue of the provisions of s. 18 (3) of the Indian Independence Act, "the law of British India and of several parts thereof immediately before the appointed day shall, so far as the necessary adapta applicable and with tions, continue as the law of each of the new Dominions and the several pai; rs the Dominion made by the laws of the legislature of in question or by any other legislature or other autho rity having power in that behalf." 1947, which provided thereof until other provision transfer under The question next arises whether there was a trans fer of any "liability" by the Order as contemplated in article 12(2). Mr. Sen Gupta relied in this connection that "where im on article 10 (2) (a) which provides mediately before the Province of the appointed day Bengal is subject to any such liability (i.e., "any liabi than breach lity in respect of an actionable wrong other -0£ contract") referred to in sub-section (1) that liability shall, where the cause of action arose wholly within that day, are the terri the territories which as from tories of the Province of East Bengal be a liability that Province." the Province It was contended 19SO The State of f"ripura "· 7"e Province of Btut Be111al Patonjali-Sastri J. S.c.R. SUPREME COURT REPORTS 11 (where the basis of the plaintiff's case, of Bengal was, according liable to be restrained from proceeding with the illegal and the notice unauthorised assessment on issued under the Bengal Act of 1944, and that liability, in respect of which the cause of action arose wholly in Dacca the assessment proceeding had been initiated) within the territories of the Province of East Bengal, became a liability of that Province. The High Court rejected this contention on the ground "that ar ticle 10(2) is concerned with the liability for an action able wrong other than breach of contract and it is the plaintiff possible to say that by serving a notice on under the Bengal Agricultural Income-tax Act through one of its officers the Province of Bengal had commit ted an actionable wrong. Assuming it exceeded invalid provision of law, its power or acted under an the plaintiff may have a declaration to that effect but the Act complained of cannot be said to have been a tortious act. But even assuming that it was, it is to that the issue of the notice was an exercise of powers conferred by the Act in relation to the sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its officers done in the course of their official duties imposed by a statute, except where the particular act was specifially direct- ed and the Crown profited by performance ...... No liability for an actionable wrong is thus involved the suit and Dr. Sen Gupta cannot establish a right to proceed against the Province of East Bengal on the basis Province under article 10(2) of the Order." the liability was transferred to remembered We arc unable to share this view. The learned Judges have placed much too narrow a construction on the phrase "liability in respect of an actionable wrong". They have assumed that the phrase cannotes only a liability for damages for a completed tortious act and that the initiation of what according to the plaintiff was an unauthorised and illegal assessment proceeding by purporting to serve a notice requiring total agricul the plaintiff to submit a tural income under s. 24(2) of the Bengal Agricultural return of his 1950 Th State of Tripura .. The Province of East &nga/ Patanja/i Sa!lti J. 12 SUPREME COURT REPORTS [1951] rights, property and liabilities India was directed Income-tax Act, 1944, through an appropriate officer functioning under that Act, the Province of Bengal had not committed an "actionable wrong." This our opinion, is not a correct view of the matter. Under s. 9( l) (b) of the Indian Independence Act, 1947, the Governor-General of British make provision by order "for dividing between the new Dominions and between the new Provinces to be con stituted under this Act, the powers, rights, property, duties and liabilities of the Governor-General in Coun cil or as the case may be of the relevant Provinces which under this Act are to cease to exist", and the Indian Independence (Rights, Property and Liabilities) Order is the only Order by which such provision was made. The intention being thus to provide initial 1istribution of between the two Dominions and their Provinces, a wide and liberal construction, as far as the language used would admit, should be placed upon the terms of the Order, so as to leave no gap or lacuna in relation to to be provided for. There is no the matters sought reason, accordingly, why "liability in res pect of an actionable wrong" should be understood in for com the restricted sense of liability for damages pleted tortious acts. We consider that the words are apt to cover the liability to be restrained by injunction. from completing what on the plaintiff's case was an illegal or unauthorised act already commenced. The service of the notice on the plaintiff under s. 24(2) of the Ben gal Act amounts to much more than a mere threat in the abstract to impose an illegal levy. It is the actual illegal assessment proceeding which, initiation of an in the normal course, will in all probability culminate in an illegal levy of tax. The failure to make a return as required by the notice would result under s. 25(5) of the Act in the Income-tax Officer making an er parte judgment and determin assessment to the basis of ing the sum payable by such assessment. Such failure would also expose plaintiff under s. 32(1) of the Act to· the imposition of the amount of the tax a penalty which may equal assessed on him or to a prosecution as for an offence the assessee on the best of his the words 1950 The State uf Tripura v. The Province of East Bengal Patanjali Sa~trl J, S.C.R. SUPREME COURT REPORTS 13 It is thus plain for an m1unction Income-tax authority. assessment under the Act is a before a Magistrate under s. 53(1), at the option· of that the service of a notice requiring a return of income to be furnished fraught with serious consequences to the assessee, and if the assessment proposed was illegal and unautho rised by reason of the Act itself being ultra vires in so it purported to make the Rulers of Indian far as taxation thereunder as contended for States liable by the plaintiff, the service of such notice marked the commencement of a wrongful act against the plaintiff by the Bengal Government under colour of the Act and there can be no doubt that such wrongful act is actionable in the sense that an action would lie in a civil court restraining its comple tion. That was the liability to which the Province of Bengal was subject according to the plaintiff's case at the time when he instituted the suit, and that liability, in our opinion, passed to the Province of East Bengal by virtue of article 10(2) (a) of the Indian Indepen (Rights, Property and Liabilities) Order, 1947. There is no question here of the liability of the Crown for damages for the negligent or tortious act of its offi cers. On the allegations in the plaint, which must, for the p1,1rpose of deciding the question of jurisdiction as a preliminary issue, be assumed to be well-founded, the Province of Bengal was undoubtedly · liable to be sued for an injunction restraining it from proceeding with the assessment and none the less so because the notice in purported exercise of powers conferred was served by the Bengal Act. The name of Income-tax second defendant as the Officer originally impleaded having been struck off the no question record, regard to his liability arises. suggested Every tort Reference was made to· certain text-books where a "tort" is spoken of as an "actionable wrong" and it was synonymous. is undoubtedly an action the converse does not necessarily able wrong but than breach of follow. in article 10 (1) make it plain that the contract" used expression "actionable wrong" is used in a wider sense 2-8 S. C. India/67 the words "other expressions Indeed, 1950 The State of Tripura y. The Province of East Bengal Pat njali Sastri J. 14 SUPREME COURT REPORTS {1951] which would have included breach of contract but for those limiting words. It was said that even assuming that the service of the notice calling for a return of income was a wrong ful act, it was not "actionable'', as s. 65 of the Bengal Act barred suits in civil courts "to set aside or modify any assessment made under this Act". The short answer to this contention is that the suit in question is not a suit "to set aside or modify an assessment" made under the Act, as no assessment had yet been made when it was subsequent completion of the assessment was made by the Pakistan agreed to between Income-tax authorities on the parties and sanctioned by the Court. The decision of the Privy Council in Raleigh Investment Co. Ltd. v. Governor-General in Council (') relied on in support of is distinguishable, as the main relief the contention claimed have been wrongfully levied under colo~r of an ultra vires provision in the Income-tax Act. Their Indian Lordships observed : repayment of the instituted, and tax alleged there was "In form the relief claimed does not profess In substance modify or set aside the assessment. does, for repayment of part of the sum due by virtue of the notice of demand could not be ordered so long as the assessment the claim declaration cannot be rationally regarded as having any relevance except as leading up to the claim for repayment, and the claim for an injunction is merely verbiage. The cloud of words fails to obscure the point of the suit." stood. Further, subjecting the plaintiff to the haras5ment The pos11:ton here is entirely different. The gist of the wrongful act complained of in the present case trouble by commencing against him an illegal and nnauthorised assessment proceeding which may even tually result in an unlawful imposition and levy of tax. It was suggested, somewhat faintly, that the cause of action for though stated in the plaint to have arisen in Dacca, now in the Province of East the suit, (I) [1947) F.C.R. 59. S.C.R. SUPREME COURT REPORTS 15 Iii_ Bengal, did not arise wholly within the territories of the Province of East Bengal within the meaning of Article 10(2) (a) inasmuch as the notice calling for a return, though issued from Dacca, was received by the Manager of the Estate at Agartalla in Tripura State. Assuming that the contention has any substance it is of no assistance to the respondent, for article 10 (2) ( c) would then be applicable to the case and the Pro vince of East Bengal would still be jointly with the Province of West Bengal. liable, though 1950 The Sta~ of .J'ripura . v. The Province of East Bengal Pattm}ali Sastri J. We are therefore of opinion that the Province of East Bengal having liability to succeeded which the Province of Bengal was subject immediately before the appointed day, the former Province is to be ·deemed to be substituted for the other Province as a ·pa1 cy to the suit and the suit must accordingly con tinue in the Court of the Subordinate Judge at Alipore, jurisdiction to proceed with it under article which has 4 of (Legal Proceedings) Indian Order, 1947. In question of submission to alternative by the appellant. jurisdiction urged Independence this view it in the to consider unnecessary In the result the appeal is allowed, the order of the Court below is set aside and the suit now pending in the Court of the Subordinate Judge at Alipore will be heard and determined by it. The respondent will pay the appellant's costs throughout. F AZL Au J .-The question appeal is whether the Subordinate Judge's . Court at Alipore in the State of West Bengal, has jurisdiction to try a suit in which the Province of East Bengal was the 15th August, impleaded as a defendant, after 1947. In what circumstances this · question has arisen will appear from the case which may be briefly stated. to be decided the facts of In 1944, the Bengal Legislature passed an Act called Income-tax Act, 1944 (Bengal Act IV of 1944), which enabled it to impose income of various classes a tax on the agricultural the Bengal Agricultural Faz Ali J 1950 The State of Tripura ~ v. The Province of East Bengal Faz/ All J, 16 SUPREME COURT REPORTS [1951] income for lands within the Manager of of persons including "every Ruler of an Indian State", holding territory of Bengal. The appellant, who is the Ruler of the State of Tripura, holds a zamindary called Chakla Roshanabad Estates, situated in the Province of Bengal and whicl1 was in the District of Sylliet formerly appertaining to the Province of Assam. On the 28th February, 1945, Income-tax Officer, Dacca Range, the Agricultural the Bengal issued a notice under section 24 (2) of the Chakla Roshanabad Act Estates calling upon him to furnish a return of the the previous appellant's total agricultural situated within the Pro year, derived from vince of Bengal. On appellant instituted a suit in the Court of the Subor dinate Judge at Dacca, against the Province of Bengal and the Agricultural Income-tax Officer, Dacca Range, claiming the following reliefs :- that the Bengal Agricul ( 1) For a declaration tural Income-tax Act, 1944, so it imposes a to pay agricultural liability plaintiff is ultra vires and void and that the plaintiff is not bound by the same. (2) For a declaration that in any case the notice served by the Agricultural Income-tax Officer, Dacca Range, above referred to, is void and of no effect and that no assessment can be made on the basis of that notice. far as income-tax June, 1945, the 12th (3) For a perpetual defendants from taking plaintiff to agricultural income-tax. injunction restrain assess the Subordinate Judge at Alipore On the 15th July, 1945, the suit was transferred the Court of the District of 24 Parganas, by an Order of Calcutta High Court. While the ~uit was still pending, the new Province of East Bengal, whicli forms part of the territories of the Dominion of Pakistan, came into existence on the 15th August, 1947, as a result of the Indian Independence Act, 1947, and it appears that the whole of Chakla Roshanabad Estates falls within that Province. After the creation of the new Province, t S.C.R. SUPREME COURT REPORTS 17 field on the 9th December, 1947, on a petition was behalf of the Province of East Bengal, drawing the attention of the Court at Alipore to the fact that the Province of West Bengal, which forms part of the. territories of the Dominion of India, was taking no interest in the suit and asking the Court to accept a written statement which was also filed along with the petition, and in which the only plea taken was that the Alipore Court had no jurisdiction to hear the suit or make any order of injunction against the Province of East Bengal or defendant No. 2. The last paragraph of the written statement was to the following effect :- "The Province of East Bengal appears only to it submits contest the that the suit should be dismissed on that ground." jurisdiction of the court and 19SO The State of Trlpura v. The Province of Ea3tBengal Fazl ;fli J, -f ) suit against the suit and Later on, the Province of East Bengal was im the name of pleaded as a defendant in the Income-tax Officer of Dacca was from . temoved the category of defendants. The Subordinate Judge then proceeded to try the question of jurisdiction as a preliminary issue, and decided that by virtue of the provisions of the Indian Independence (Legal Proceed ings) Order, 1947, read with section 9 of the Indian Independence Act, 1947, the Court had jurisdiction to the new Province. Thereupon, try the the respondent (the Province of East Bengal) moved the High Court at Calcutta under section 115 of the Code of Civil Procedure, against the order of the Subordinate Judge, and a Bench of the High Court consisting of Harries C. J. and Chakravarthi J. allow ed the application and set aside the order of the Subor dinate Judge, giving effect to the objection of the respondent that the Court at Aliporc was not compe tent to try the suit against the Province of East Bengal. One of the points the appellant before the High Court was that the Province of East Bengal had Subordinate Judge's Court, but this point was nega tived. The appellant was thereafter granted a certi ficate under section 205 (1) of the Government of India Act, 1935, and on the basis of it he has pref erred this appeal. raised on behalf of jurisdiction of submitted 1950 The State of 1ilpura v. The Province of Ea'1 Bengal Faz/ Ali I. 18 SUPREME COURT REPORTS [19511 On a reference judgments of the learned Subordinate Judge and the High Court, it appears that three provisions were relied upon by the appellant in support of his contention that the Court at Alipore had jurisdiction to try the suit, these being section 9 of the Indian (Legal Proceedings) Order, 1947, Indian Independence to as 'the Legal Proceedings [hereinafter Order'], and section 12 of Independence (Rights, Property and Liabilities) Order, 1947, [here inafter referred to as 'the Rights, etc., Order']. 1947, article 4 of Independence Act, referred Indian These provisions run as follows :- Section 9 of the Indian Independence Act :- "The Governor-General shall by order make such to be necessary or as appears to him provision expedient- ( a) for bringing the provisions of this Act into effective operation; the new Provinces, (b) for dividing between the new Dominions, to be constituted and between under this Act, the powers, rights, property, duties and liabilities of the Governor-General in Council or, as the case may be, of the relevant Provinces which, under this Act, are to cease to exist. ....... " Section 4 of the Legal Proceedings Order : "Notwithstanding certain new territories from the transfer of certain Provinces and the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947,- creation of the Province of Bengal, ( 1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in PPnjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceed ings all jurisdiction and powers which it had immediately before the appointed day; application appeal or revision in respect of any proceedings so pending in any such (2) any • 19$0 The State of Tripura ·v. The Province of East Bengal Faz! Ali J. S.C.R. SUPREME COURT REPORTS 19 court shall lie in the court which would have appellate, or as the case may be revisional, jurisdiction over that court if the proceedings were that court after the appointed day; and instituted in liabilities transferred by the territories . of judgment, decree, the said court: it had been passed by a court of (3) effect shall be given within either of the two Dominions to any order, or sentence of any proceedings, as if competent jurisdiction within that Dominion." Section 12 of the Rights, etc. Order :- immediately " ( 1) Where before the Governor-General in Council legal proceedings with respect the appointed day, is a party to to any property, rights or the property, rights or Dominion which succeeds to liabilities in accordance with the provisions of Order Governor-General in Council as a party to the proceed precedings may continue accordingly. ings, and (2) Where any Province from which property, transferred by this Order is, rights or liabilities are transfer, - a party to immediately before respect to that property or those proceedings with the Province which succeeds to rights or the property, be deemed to be substituted for the other Province as a party to those proceedings, and the proceedings may continue accordingly. rights or liabilities of this Order shall be deemed this Order, substituted liabilities, to be (3) Any proceedings which, immediately before the appointed day, are pending by or against Secretary of State elsewhere than in the United King dom in respect of any liability of the Governor-General in Council or a Province shall.- (b) in the case of proceedings in respect of the Province of Bengal, the Province of the Punjab, or the Province of Assam, be continued by or against the Province which succeeds to the liability ...... " The learned Subordinate Judge based his ment entirely upon s. 4 of the Legal Proceedings 19SO Th• State of Tripura .... 77rt Province of Ea•t Bengal Faz/ All J. 20 SUPREME COURT REPORTS [ 1951] standing by to continue Order, but the High Court has pointed out that that Order itself can be of no help to the appellant. According to the High Court, that section might have enabled the appellant to prosecute his suit against the Province of Bengai but it could not enable the new Province the suit against invoking s. 12 (2) of the Rights, etc. Order, without which provides among other things that the Province which succeeds to the rights or liabilities of the old · Province of Bengal by virtue of that Order shall be deemed to be substituted for the latter as a party to this is the In my opinion, the pending proceedings. correct view. It was urged before us that a Court which had jurisdiction to try a suit against a party would, by reason of what is provided in s. 4 of the Legal Proceedings Order, naturally have jurisdiction the heir or legal representative of that to substitute speaking, this must be so, but, in party. Generally the present case, the Province of East Bengal which forms part of another sovereign State could not be automatically substituted for the Province of Bengal, unless the substitution was permitted by some provi sion of Independence Act or any of the Orders issued thereunder. The whole case thus rests on the proper construction of section 12(2) of the Rights, In the High Court, it was strenuously etc., Order. urged on behalf of the appellant that section 12(2) is fully applicable to the present case on account of cer tain rights having been transferred to the Province of East Bengal from the old Province of Bengal. This this Court also, but it is argument was reiterated obviously untenable, for in the set out the reasons judgment of the High Court. As has been pointed out by the High Court, s. 12(2) is of no help to the ap pellant, unless the rights in question were transferred by the Rights, etc. Order itself. The learned counsel to point out any for the appellant however failed provision of this Order, by which any of the rights referred to by him had been transferred. the Indian He had therefore to fall back upon an alternative argument based on s. 10(2) of the same Order; and the point to be decided by this Court has • 1950 1le State of Tripura v. The Province of Ea$tBengal Fazl All J, ., S.C.R. SUPREME COURT REPORTS 21 crystallized into one simple issue, namely, whether s. 10(2) of the Order can be of any avail to the appellant. read with s. 10(1). and the Section 10(2) must be material part of sub.sections follows:- . . . . . . . . immediately "10(1) Where immediately before the appointed day the Governor-General in Council is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall,- cause of action arose· wholly within the territories which, as from that day, are the ·territories of the Dominion of India, be a liability of that Dominion; ( a) where · (2) Where before is subject . appointed to any such day the Province of Bengal liability as aforesaid, that liability shall, cause of action (a) where arose wholly within the territories which, as from · that day, are the the Province of East Bengal, be a territories of liability of that Province; · arose wholly that day, are within the the territories of the Province of West Bengal, be a liability of that Province: and territories which. action as from (b) where cause of • • joint liability of ( c) in any other case, be a Provinces of East and West Bengal." • It is quite clear • that for the application of sec tion 10(2), it is necessary to show inter alia that the Province of Bengal was subject to a liability in respect of an actionable wrong other than a breach of contract. A reference to any book on tort will show that the words used in sub.s. (1) are commonly used to define a tort. A tort has been defined in Stroud's Judicial Dictionary, Second Edition, page 2072, as a wrong independent of contract, and so described it is also in the common Law Procedure Act, 1852 (15 & 16 Viet., c. 76), in Halsbury's Laws of England and in "a wrong independent of contract" and "a wrong other than a textbooks. The difference between 1950 The State of Tripura v. The Piovince of East Bengal Faz/ Ail J. 22 SUPREME COURT REPORTS [1951) also often eminent writers breach of contract" is merely verbal and has little significance. A tort is referred to as "an . actionable wrong" and the two expressions have been including synonymously used Sir Frederick Pollock and Professor Burdick of Ame rica, who has designated his well-known book on the law of torts as "a concise liability for to person and property". Whether actionable wrongs the expression can be taken to be a complete defini tion of a tort may be questioned, because as Addison has pointed out in his book on torts, "to say that a tort is an actionable wrong leaves undefined the term 'actionable wrong'." But there can be no doubt that in legal parlance, the two expressions are assum ed to be interchangeable. treatise on civil equitable fact that the remedy is a common the well-recognized There is also another matter to be borne in mind in construing s. 10(2) of the Rights, etc. Order1 and that is the primary and most common remedy for a tort is an action for damages. That this is an important feature of a tort is shown by the fact that in many textbooks an action for damages has been made an integral part of the definition of a tort. A few examples will make this clear. A tort is defined by Salmond as "a civil wrong for which law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other meFely who did not see eye to eye with Salmond on many matters connected with the torts, gives the liability :-"Tortious following definition of a duty primarily liability arises form fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliqui dated damages." is an act or definition omission which is unauthorized by law and indepen' dently of contract infringes (i) some absolute right of rise to an action for another, damages at the suit of the injured party." The learned author after attempting to define a rort ii1 this wa} goes on to state: "A tort is described in die. Common In Underhill's law of torts, follows:-"A tort and (ii) gives the breach of obligation." tortious law of etc., Professor Winfield, · ... . 1950 The State of Tripura y. The Province of East Bengal Fazl Ali J. S.C.R. SUPREME COURT REPORTS 23 accurate, but Law Procedure Act, 1852, as a wrong independent of If we use the word 'wrong' as equivalent contract. to violation of a right recognized and enforced by law by means of an action for damages, the definition is sufficiently for it gives no due to what constitutes a wrong or violation and enforced by law. It does, of a right recognized essential cha however, emphasize the remedy racteristic of a tort for it is an- action for damages. An act or omission which does not give rise to an action for damages is not a tort." is that the appropriate scarcely very lucid; that an It must be recognized that an injunction may also be an appropriate remedy in a limited number of cases, but it is not a remedy of universal application, and no one has yet suggested that it may be treated as an incident of tort. contemplated In the light of the foregoing discussion, it seems to me to be permissible to infer, firstly, that s. 10 of liability for a tort, the Rights, etc., Order refers to and secondly that what · is . is liability such as liability to damages. The pecuniary word "liability" has a wider meaning and also a narrower meaning, and the latter would appear to be the appropriate meaning where the word is used contrast to assets or something which corresponds to or is· in the nature of assets, and where it is used in plural or is preceded by an indefinite artic:le, e.g., when the . expression liability" is used. We must re member that the purpose of the Rights, etc., Order was, among other things, to divide or distribute the rights, property undivided Province of Bengal between the two new Provinces. Therefore, the view that the liabilities referred to in s. 10 are liabilities capable of being ascertained in terms of money and not liabilities in any abstract or in consonance with the purpose of academic sense, is the Order as well as the well-known fact that for a tort the most common and appropriate remedy is an action for pecuniary damages. This view is further confirmed by rt>ading s. 13 (2) of the Rights, etc., Order, which. runs thus:- liabilities of "a 1950 The State of T1ipura v. The P1ovince of Ea3t Bengal Fa2l A.Ii l. 24 SUPREME COURT REPORTS [1951] "Where by virtue of the preceding provisions of this Order either of the Dominions or any Province becomes subject to any liability, and it is just and that liability towards that a contribution equitable should be made by the other Dominion, or by another Province, as the case may be, the other Dominion shall make to the Dominion or Province primarily liability such contribution in respect subject thereof as, in default of an agreement, may be deter- mined by the Arbitral Tribunal." to the · liability" used in It should be noted that the words "becomes sub ject to the above provision are practically the words which occur in s. 10 of the same Order, and the language of s. 13(2) clearly shows "liability" must have been used in that the word the narrower liability, because sense of pecuniary towards that otherwise no question of contribution liability by the Dominion or Province would arise. It will be also instructive to refer to Part VII, Chapter III of the Government of India Act, 1935, the heading "Property, Contracts, Liabilities, and of which Suits" and upon which the Rights, etc., Order appears to have been moddled. In s. 179 of the Government of India Act, 1935, which occurs in this Chapter, the clue to the meaning of the word 'liability' is furnished by the provision that "any sum ordered to be paid by way of debt, damages or costs in any such proceedings, and any costs or expenses .......... shall be paid out of the revenues of the Federation or the Province, as the case may be ...... " I think that it will be quite a fair construction to hold that what is contemplated 10 of the Rights, etc., Order is that the in section liability referred to therein would be met out of the revenues of the Province concerned. The construction I have suggested appears to me to represent what the framers of the Order must have intended to convey by the words "liability in respect of an actionable wrong'', but, lest it should be said that it is too narrow a construction, I shall deal with the matter more fully giving to the words "actionable wrong" and "liability" as wide a meaning as they can ' ' 1950 The State of Tripura v. The Province oj East Bengal Fazl Ali J. i S.C.R. SUPREME COURT REPORTS 25 bear in a legal context. Proceeding on this footing, the first question to be asked is: What is a wrong In answering this other than a breach of contract? question, it is neither possible nor helpful to ignore all that has been said in authoritative textbooks and in dealing with the question of a tort, judgments because the foundation of every tort is a wrong or a It is true that at one time some of the wrongful act. writers were inclined that "there was no to think English law of tort but there was merely an English law of torts, that is, a list of acts and omissions which under certain conditions were actionable." But, now, the view has considerably broadened, and, generally speaking, it is acknowledged that "torts are infinitely limited or confined" (see Chapman v. various-not Pick_ersgill1), and that wherever there is an injury by the invasion of a right, a wrong or a tort il commit ted. This is often conveyed by the expression injuria sine damnum. The word "wrong" has been used in sections 17, 18 and 19 of the O:xle of Civil Procedure, following extract from Mulla's commentary and .the thereon will show how this word has been construed:- "Wrong means a tort or actionable wrong, i.e., an act which is legally wrongful as prejudicially affecting a legal right of the plaintiff." Underhill also construes "wrong" sense, because a wrong is, according to him, equivalent to violation of a right recognised and enforced by for damages. I think law by means of an action therefore that in view of all that has been written and subject, it may be safely said on the stated that a wrong must consist of the following elements :- ( 1) There must be an act or omission amount ing to an infringement of a legal right of a person or a breach of legal duty towards him; and (2) The act or omission must have caused harm or damage to that person in some way, the damage be ing either actual or presumed. These two elements are denoted by expressions, injuria and damnum. (1) [1762) 2 Wits. ·146, per Pratt C.J. two Latin I have to include 19SO The State of Tripura v. The Pronce of East Bengal Faz! Ali J. 26 SUPREME COURT REPORTS [1951] presumed damage under the second head, because in certain cases mch as trespass, assault, false imprison ment, etc., the invasion of a right may be so flagrant that "the See observations of Lord Wright M. R. in Nicholls v. Ely Beet Sugar Factory('). Such cases are often described as cases of absolute liability or cases where a tort is actionable per se without proof of damage. law conclusively presumes damage." Let us then see whether the two elements of an actionable wrong are present in this case. For this purpose, we must examine the best and most plausible statement of the appellant's case which may be put more or less in the following way :- The issue of a notice, which .has been referred to in paragraph 5 of the plaint calling upon the appellant to furnisR a return of his total agricultural income derived from lands situated within the Province of Bengal, was the first step in the initiation of an illegal assessment proceeding which was likely to lead to an illegal levy of tax, and the commencement of an illegal proceeding in this manner gave a right of action to the injunction appellant and entitled him restraining the pro ceeding. Such being the position, the case is covered by section 10 of the Order under consideration, the words used there being wide enough to cover liability to be restrained by an injunction from completing an illegal or unauthorized act already commenced. Consequently, restrained must be deemed to the liability have been transferred to the Province of East Bengal, by virtue of section 10 of the Rights, etc., Order. to claim an from completing the defendants to be so This may appear to be a plausible way of putting the case, but, when we subject it to a close scrutiny, we find that even on the above statement the true re- · quirements of the material provision are not satisfied. If we confine ourselves to something which has happened, as opposed to something which may happen in future, that is to say, if we look for an act or omis sion which must be the foundation of every wrong, that is said to have. happened in this we find that all (1) [1931) 2 Cb. 84. ' ' ' • 1950 The State of Ttiputa v. The province of East Bengal Fazl Ali J. S.C.R. SUPREME COURT REPORTS 27 case is the issuing of a notice, which is not some un- · authorised or prim a fade unlawful act but is an act done under the authority of a statute and enjoined by It has to be borne in mind that the attack in the it. plaint is not against the whole Act but all that is con tended is that only a particular provision of it is ultra vires. The contention comes to this, that the issuing of a notice against every person other than the Ruler of an Indian State would have been a perfectly legiti mate act, but the issuing of a notice against a Ruler is ultra vires. But that is not enough to constitute a issuing of wron3. What has to be shown is that the the notice is a wrongful act,· i.e., it amounts to an infringement of some right. What known right of person or property or any other description it infrin ges is not at all clear; nor has that been stated in the pleadings. there has been no assessment and no realization of any tax and it could not also be disputed that it was open to the appellant to show that he was not assessable at all. To say that a notice is the .first step the initiation of an illegal assessment proceeding, does not carry the matter further, but it would seem to be merely a piece of verbiage used to obscure the the appellant's case. Cons fund:imental weakness of truing "wrong" as it should be construed, the essen find out is in what way a right has been infringed or there has been a breach of duty. It is the appellant's own case that the suit is for a threat ened or apprehended wrong, but that very expression shows that the suit has been brought before the alleged wrong was committed. to the assessing authority conceded thing to It is The other element· of a wrong, namely, that the person should have sustained some harm or injury, is also wanting in this case. It is not the case of the appellant that the notice has in any way caused any actual damage to him. Nor is it suggested that this is one of those cases in which damage should be presumed. All that is said trouble and harassment entail that by itself will not constitute a wrong. that the notice was likely to the appellant, but 1950 The State of Tripura v. The Province of East Bell/la/ Faz/ All J. a .. • 28 SUPREME COURT REPORTS [1951) its place. the following observation is an action for damages. Such an action The matter may be tested in another way. As Un derhill points out, "an act or omission which does not give rise to an action for damages is not a tort." To the same effect Salmond's Law of Torts :-"No civil injury is to be the appropriate remedy for classed as a tort unless is an tort." Again, essential characteristic of Professor Winfield says that an action for unliquidat ed damages is the one sure test of tortious liability and has cited cases where this statement has received judi I think these statements will be equally cial approval. true if we drop the word "tort" and substitute words "actionable wrong" It follows that one of the tests of an actionable wrong is that while other remedies also may be open to the plaintiff, is the primary remedy for it. an action for damages Can the appellant this case maintain a suit for damages on the allegations made by him in his plaint ? As I have already stated, a reference the plaint that no damages has been either alleged or claimed and it has also not been stated that the appell In Rogers v. Ra;endro ant is entitled to any damage. that "it is essential D11tt(') to an action the act complained of should be the party regards it must prejudicially affect complaining ; it was observed in Kali Kischen Tagoor v. /odoo Lal Mullick(2 "there may be, where a interfered with injuria sine damno sufficient found an action ; but no action can be maintained if there is neither It seems to me therefore that damnum nor iniuria." in the absence ·of the two elements to which I have referred, no case for liability in respect of an action able wrong has been made out, and is wholly· inappropriate to invoke section 10 of the Rights, etc., Order in the present case. the Privy Council stated legal right." Again, legally wrongful as is, in some ) It appears the appellant's arguments has been woven round the following two matters :- the whole of (I) s. Moore's I. A. 103 at p. 135. (2) 6 I.A. 190. 1 If S.C.R. SUPREME COURT REPORTS 29 (1) Injunction is a recognized form of action; and (2) Injunction has been asked for in the J)t"esent case, in connection with something which is said to be likely to culmffiate in a wrong. The situation envisaged etc., Order, which is liability is however very different from what is contemplated in section 10 of the Rights, for an actionable wrong and not liability for something which may become a wrong in future. It is to be remembered the section, viz., that there are two words used in actionable adn wring. The mere fact that a matter actionable will not bring the corners of section 10 of the Order, unless all elements of a wrong are established. case within 1950 The State of Tripura The Province of East Bengal Fazl Ali J. intention to continue doing It cannot be disputed I think it will be appropriate at this stage to say a few words about the remedy by way of an injunction in cases where an actionable wrong is said to have been committed. that injunction remedies in certain cases of torts. As is one of the Addison has pointed out, "the origin of the remedy by way of an injunction is to be found in the inadequacy of the legal remedy by way of damages in many of the more serious wrongs, such as continuing trespasses a wrongful act has been done and nuisances, where and there was an it. (See Addision's Law of Torts, 8th Edn. 111). Injunc tion will also be granted to prevent a threatened injury or wrong, if it can be shown that the threatened act jf carried into execution will lead to violation of. a right and such will be the inevitable result. As was pointed out in an English case, the interference of the court in these cases is founded on its jurisdiction to give relief in order to protect properties and rights from that which, if completed, would give a right of action. These two cases in which an injunction may be issued stand on two different to an m1unction does liability footings, and not necessarily and always amount to "liability respect of an actionable wrong". The two liabilities is a continuing may possibly coincide where wrong and the injunction the shape of preventive justice intended 3-8 S. C, Jndia/67 1950 The State of Tripura v. The Province of East Bengal Faz/ Ali J 30 SUPREME COURT REPORTS LI951J , continuance. But, as I have already stated, where no wrong has been committed, it would require consider able straining of the meaning of familiar legal expres "liability in respect of an actionable sions to say that wrong" is identical with "liability to an injunction in in res respect of an apprehended wrong". pact of an actionable wrong" means liability when an It cannot mean actionable wrong has been committed. liability to be prevented from a wrong which is appre hended. Nor can the liability which is contemplated in section 10 of the Rights, etc., Order be created by the mere filing of a suit in which an injunction is claimed. "Liability I should like to refer here to section 176 (1) of the India Act, 1935, which provides as Government of follows:- "The Federation may sue or be sued by the name of the Federation of India and a Provincial Govern ment may sue or be sued by the name of the Province, and, without prejudice to the subsequent provisions of this chapter, may, subject to any provisions which may be made by Act of the Federal Legislature or a Provincial Legislature enacted by virtue of powers conferred on the Legislature by this Act, sue or be sued in relation to their respective affairs in like cases as the Secretary of State in Council might have or been sued if this Act had not been passed." This section is d ivisible into two parts. The first part states as to which authority should be named as a plaintiff or as a defendant in a suit brought by or against the Crown or the Government, and the second part deals with cases in which the Federal or the sued. To Provincial Government may is to be understand the latter provision read with section 65 of the Government of India Act, 1858, and section 32 of the Government of India Act, 1915. Section 65 of the Act of · 1858 enacted that- sue or be the section "the Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate; and all persons and bodies politic shall and • • 1950 The State of Tripma v. The Province of East Bengal Faz/ Ali J. ' , S.C.R. SUPREME COURT REPORTS 31 take the remedies and same suits, may have proceedings, legal and equitable against the Secretary of State in Council of India as they could have done against the said Company." (East India Co.) to whether, and, substantially made The same provlSlon section 32 of the Act of 1915. Such being the law, the question has been posed in a number of cases from very early days if so, in what cases, the Secretary of State would be liable for a wrong or a tort committed by the servants of the Crown, end it has now been definitely held that he may be liable in certain cases. So far as the present discussion three points which emerge from a careful perusal of a large number material:- is concerned, be:u:ing on following subject, (1) The principles of the law of torts have been consistently applied liability of the Secretary of State for wrongs committed Government. in all cases dealing with servants or agents of the Crown or the Legislature : (2) It is settled law liable for wrongs committed by the Secretary of State cannot be held the performance of duties servants of the Crown in [See Shivabhajan imposed by v. Secretary of State for India(1). James Evans v. Secre tary of state(2). Tobin v.Reg( 3 ). Ross v. Secretary of State('), in which this principle is fully explained and the reasons upon which it is based, are clearly set out]. (3) It is also well-settled that where a statute specially authorizes a certain act to be done by a certain person, which would otherwise be unlawful or actionable, on action will lie for the doing of the act. these principles, it would 1 appear that neither the Agricultural Income-tax Officer, who has now been dismissed out of action, nor the Province of East Bengal, could be said to be subject to a liability in respect of that an It must actionable wrong has {I) I.L.R. 28 Born. 314. (2) A.I.R. 1920 Lah. 364. an actionable wrong, assuming (3) 16 C.B.N.S. 310. (4) I.L.R. 1915 Mad. 434. committed. On 1950 The State of Tripu1a v. The Province of East Bengal Fail Ali /. ' • • ' 32 SuPREME COURT REPORTS [1951) however be stated assumption wrong is correct. this conclusion rests on the that my construction of an actionabk stated therefore assume It was contended in deciding the present the facts 3ppeal, we must assume all plaint to be correct and that the Bengal Act is ultra vires and the notice issued was I have already pointed out that without authority. the whole Act is not attacked, but only one single provision thereof is said to be ultra vires, and I shall show later, when I deal with section 65 of the Bengal Act, that even the assumption we are asked to make will not bring the case within section 10 of the Rights, etc., Order. Mr. Setalvad, learned Attorney-General of India, who intervened on behalf of the Union of India in the appeal, supported the judgment of the High Court on three main grounds, which may be summed up as follows :- (1) that the words used Rights, etc., Order do not cover this case, hecause here no wrong has been actually committed and a threaten ed wrong is different from an actual wrong ; in section 10 of (2) that section 65 of the Bengal Agricultural Income-tax Act is a bar to the suit; and (3) that the present suit must in any event end m an infructuous decree and should not he allowed to be pursued. the point which I have already dealt with to add in this Court, nor is the Statement of Case filed by the first point, and is now wish simply in the Memorandum pressed is not specifically raised of Appeal presented there any trace of it in appellant. The point which Memorandum of Appeal and the Statement of Case is that section 12 of the Rights, etc., Order is applicable to the present case, because certain rights have been transferred from the old Province of Bengal to the Province of East Bengal. There is however no men tion of section IO of the Order, nor is it stated that liability to an injunction brings the case within that is mentioned S.C.R. SUPREME COURT REPORTS 33 Thus, a notable feature of the case is that section. almost every argument which was advanced courts below is to be discarded, and we are asked to base our decision on a point, which is not urged in the in accordance the Case, and which, Statement of this Court, cannot ordinarily be entertained. rules of practice of The second point urged by Mr. Setalvad is based the Bengal Act, which runs as on section 65 of follows:- 1950 The State of Tripura v. The Province of Ea3t Bengal Faz/ Ali J. "No suit shall be brought in any Civil Court to set aside or modify any assessment made under this Act, and no prosecution, suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to be done under this Act." Strictly speaking, this section does not apply to the present case, as there has yet been no assess ment and ex facie the appellant's suit cannot be regard to set aside or modify any asst:ssment. ed as a suit this section must Mr. Setalvad however contends that the decision of the Privy Council in Raleigh Council(1 ). That was a case under the Indian Income tax Act, 1922, the provisions of which are similar to the provisions of the Bengal Act and which contains a section (section 67) which identical in In that case, terms with section 65 of the latter Act. tax assessed on assessee paid under protest him and following reliefs :- v. Governor-General then brought a Investment Co. read with is almost (a) a declaration Income-tax Act on which were ultra vires and so the assessment was illegal; thdt certain provisions of the the .assessment was based (b) an injunction restraining Department from making the assessments in Income-tax future ; (c) repayment of the sum assessed. It was strongly contended upon the the section 67 of facts of the the Income-tax Act had no application, but it was held by the Privy Council that the relief claimed did not profess to "though in form (1) [1947] F.C.R. 59. 1950 The State of Tripura v. The Province of East Bengal Faz! All J. 34 SUPREME COURT REPORTS Ll951J repayment could not be ordered the assessment stood". It was modify or set aside the assessment, in substance it did, because long as further held that an assessment made under the machinery provid ed by the Act, if based on a provision subsequently held to be ultra vires was not a nullity but a mistake of law in the course of its exercise. Lastly, it was held that the Act contained machinery which enabled an assessee to raise the question whether or not a parti cular provision of the Act bearing on the assessment made upon him was ultra vires and that jurisdiction the assessment otherwise than by use of to question the machinery expressly provided by the Act appeared to be inconsistent with the statutory obligation to pay arising by virtue of the assessment. The material part of the judgment' on the last point runs as follows :- to ascertain whether "In construing the section it is pertinent in their Lordships' opinion, the Act contains machinery which enables an assessee effectively to raise in the Courts the question whether the parti cular provision of the Income-tax Act bearing on the assessment made is or is not ultra vires. The presence of though by no means conclusive, such machinery, construction of marches with a the section which into the jurisdiction denies an alternative same subject-matter. The absence of such machinery would greatly assist the appellant on the question of that if construction and, there were no such machinery and if the section affect ed to preclude the High Court in its ordinary civil jurisdiction from considering a point of ultra vires, there would be a serious question whether the opening part of the section so far as it debarred the question of ultra vires being debated, the competence of the Legislature. it may be added fell within to enquire indeed, .... • ' • • is clear the assessee In their Lordships' view Income-tax Act, 1922, as it stood at the relevant date, did give the right effectively to raise in relation to an assessment made upon him the question whether or not a provision in the Act was ultra vires. Under section 30, an assessee whose only, ground of com plaint was that effect had been given in the assessment 1950 The State of Tripura v. The Province of East Bengal Faz/ Ali J. S.C.R. SUPREME COURT REPORTS 35 the assessment. to a provision which he contended was ultra titres If he were might appeal against the decision on appeal-the details dissatisfied with relating to the procedure are immaterial-the assessee could ask for a case to be stated on any question of law the opinion of the High Court and, if his request were refused, he might apply to the High Court for an order requiring a case to be stated and to be referred to the High Court ........ It cannot be doubted that in cluded raised by a case stated is any question as to the validity of taxing provision in the Income-tax Act to which effect has been given in the assessment under review. Any decision of the High Court upon that question of law can be reviewed on appeal. Effective_ and approp riate machinery is therefore provided by the Act itself for the review on grounds of law of any assessment. It is in that setting that section 67 has to be construed. law which might be in questions of In conclusion their Lordships would observe that the scheme of the Act is to. set up a particular machi nery by the use of which alone total income assessable for income-tax is to be ascertained. The income-tax exigible is determined by reference to the total income to such total so ascertained and only by reference income. Under the Act (s. 45) there arises a duty to pay the amount of tax demanded on the basis of that assessment of to question the assessment otherwise than by use of the machinery expressly provided by the Act would appear to be in consistent with the statutory obligation to pay arising by virtue of the assessment. The only doubt, indeed, in their Lordships' mind, is whether an express provi sion was necessary in order to exclude jurisdiction in a civil Court to set aside or modify an assessment." Jurisdiction income. The authority of this decision was not questioned before us, but it was pointed out firstly that the pre sent suit is not hit by the first part of section 65 of the Bengal Act, which refers only to suits to set aside or modify any assessment and secondly, that if the case is not covered by section 65, the decision of the Privy Cour1cil, which was based on the construction of section 1950 The State of Tripura V• The Province of East Bengal Faz/ Ali J. ,.. l 36 SUPREME COURT REPORTS [1951] replying in arriving at their decision, were 67 of the Income-tax Act, is not applicable. Mr. Setal vad, first contention, has urged that we must not look merely to the letter of the section but to the principle underlying it, and he has parti cularly, referred us to the fact that, strictly speaking, the reliefs claimed in the abovementioned case do not fall within the letter of section 67 of the Income-tax Act and hence the Privy Council observed in that case : "In form the relief claimed does not profess to modify or set aside the assessment. In substance it does ....... . The cloud of words fails to obscure the point of the suit." However that may be, it seems to me that the Privy Council fluenced not only by the language of section 67 of the Income-tax Act but also by the complete machinery furnished by that Act for dealing with all questions arising in regard to the assessment, including the ques tion of ultttl vires as would appear from the fact that while laying down that there was no jurisdiction to question the assessment except by use of the machinery expressly provided by the Act, their Lordships added : "The only doubt, indeed, in their Lordships' mind, is whether an express provision was necessary in order to exclude jurisdiction to set aside or modify an assessme t." I think that, for the purpose of understanding tl full scope of section 65. we must read not only the rst part of the section which bars suits to sot aside or modify an assessment, but also its latter part which E ovides that "no suit or other pro ceeding shall lie ag inst any officer of the Crown for anything in good fa h ...... intended to be done under this Act." The la er part of the section clearly ex cludes the jurisdicti< t of the court to prevent the In come-tax Officer frc ll proceeding with an assessment which has already be n started. Reference may here be State v. Meyyappa Chettt:zr(') made to Secretary tat the expression "intended to be where it was held done" signified futud~y so as to preclude suits for in iunction in respect of proceedings 'intended' to be taken by the Income-tax Officer. It is true that in terms the provision concerns the Income-tax Officer only, but it in a civil court t (1 )[1946] 14 l.T.R. 341, at 3S2. 1950 The State of Tripura v. The Province oJ East Bengal Faz/ Ali J, , S.C.R. SUPREME COURT REPORTS 37 ' the State. proceeding with an assessment, could hardly have been the intention of the Legislature that though that Officer is not liable to be restrained the provision which ensures such a result may be rendered nugatory by permitting an injunction to be claimed against the In my opinion, Provincial Government or it will be a strange construction of the section to hold that although it bars suits to modify or set aside an :assessment and though it bars all proceedings to res train the Officer who is making the assessment from proceeding with it, yet it leaves it open to a party to stop an assessment by claiming an injunction against the Provincial Government or the State instead of the Officer concerned. There is no reference to the Pro vincial Government or the State at all in the first for the second part of the section, but the section as a whole concerns only with excluding the jurisdiction of the civil court intended to be done in connection with the assessment -0£ agricultural income-tax, and, on a fair construc tion, it must be held to bar all suits in connection with such assessment. regard to certain acts done or . In urging his third point, the learned Attorney relied on an Ordinance passed by General Governor-General of Pakistan on the 13th November, 1948, section 2 whereof runs as follows :- "No referred judgment, decree, order or sentence to in paragraph (3) of Article 4 of the Indian Inde predence ·(Legal Proceedings) Order, 1947, shall affect the legislative or executive right or authority of the Central or any Provincial Government of Pakistan and where such right or authority has been at issue, judgment, decree, order or sentence shall be invalid and may be obtained Province concerned." inoperative subject to any decision from a competent court of It was pointed out that by reason of this Ordi nance, any decree which may be obtained in the present infructuous and in suit would be wholly this view litigation which should not be this was a meaningless allowed to continue. There is force in this argument, 1950 The State of Tripura v. The Province of East Bengal Faz/ Ali J. 38 SUPREME COURT REPORTS [1951] but the point need not be pursued, as, in my opinion, two points raised by the Attorney-General are the first sufficient to meet the principal contention advanced by the appellant. it was submission it was not The question to deal with the question posed jurisdiction appears to me to be unarguable upon the facts stated, seriously argued before us. The Province of East Bengal did intervene and apply for to file a written statement, but the onli permission the Court had no statement made by jurisdiction to proceed with the suit. It cannot there fore be held that it had submitted to the jurisdiction of the Court. I have this appeal in all its material aspects, but it can, I think, be disposed of on the simple ground that the mere issuing of a notice under section 4 of the Bengal Agricultural the Agricultural Income-tax Officer cannot be held to be an actionable wrong, because no right known to law can be said to thereby. One of the recognized have been infringed tests of an actionable wrong that, while other re medies may also be open to the person to whom the wrong is done, he can always maintain an action for damages, on the principle that every injury imports damage. that no action for damages can be maintained on the allegations made I think that the entire by the appellant in his plaip.t. argument urged on behalf of the appellant has been sufficiently answered by the High Court in , the follow ing passage which appears to me to sum up the legal position accurately and concisely :- I am however certain Income-tax Act liability "Nor was Dr. Sen Gupta right in relying on article 10(2) for the fransfer of liabilities. That article is concerned with for an actionable wrong other than breach of contract and it is impossible to say that by sen ing a notice on the plaintiff under the Bengal Agricultural through one of its officers, the Province of Bengal had committed an actionable wrong. powers or acted under an invalid provision of law, the plaintiff may ha~e a declaration to that effect, but the Income-tax· Act Assuming exceeded • • 1950 The State of Tripura . v. TheProvince oJ East Bengal Faz/ Ali J. Mukherjea J. S.C.R SUPREME COURT REPORTS 39 the Act in act complained of cannot be said to have been a tortious act. But even assuming it was, it to be remembered that the issue of the notice was in exercise relation to the of powers conferred by Sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its officers done in the course of their official duties imposed by statute, ex. cept where the particular act was specifically directed and the Crown profited by its performance. There is no such allegation in the plaint in the present case. The therefore have sued the Province plaintiff could not of Bengal for an actionable wrong and the suit actual- ! y brought is not a suit of that character. It is a suit for certain declarations and an injunction and does not liable for any actionable seek to make in any way. No liability for an actionable wrong is thus involved in the suit and Dr. Sen Gupta cannot establish a right to proceed against the Pro- vince of East Bengal on the basis that the liability was transferred to that Province under article 10(2) of the Order." the Province In the result, costs. I would dismiss this appeal with MuKHERJEA J.-1 agree with my learned brother Patanjali Sastri J. that this appeal should be allowed and I would desire to indicate briefly the reasons that have weighed with me in coming to a conclusion different from that arrived at by the learned Judges of the Calcutta High Court. All the material facts in relation to this case have been set out with elaborate fullness in the judgment of the High Court and I deem it quite unnecessary to state them over again. The whole controversy centres round the point as to whether the suit which was the Pro instituted by the plaintiff appellant against vince of Bengal , as it was prior to the 15th of August, 1947, and which is still pending in the Court of the Subordinate Judge at Alipore can be continued against the Province of East Bengal which has come into exist ence, as a part of the Dominion of Pakistan, upon the 1950 The State of Tripura v. The Province of East Bengal Mukherjea J. 40 SUPREME COURT REPORTS [1951] partition of Bengal under the Indian Independence Act ; and whether the court of the Subordinate Judge of Alipore which is a court in the Dominion of India has any jurisdiction to proceed with and try such suit. The Subordinate Judge decided these questions in favour of the plaintiff appellant basing his decision entirely upon article 4(1) of the Indian Independence (Legal Proceedings) Order, 1947, read with s. 9 of the Indian Independence Act. The High Court in revision set aside the order of the Subordinate Judge holding . inter alia that neither article 4(1) of the Legal Proceed ings Order nor article 12(2) of the Indian Indepen (Rights, Property and Liabilities) Order, 1947, could confer upon the plaintiff any right to continue the suit against the Province of East Bengal. The Ali- pore Court, it has been held, has no jurisdiction to pro ceed with the suit and no jurisdiction has been confer red upon it by reason of the Province of East Bengal appearing in the suit and putting in a written state- the purpose . of challenging the compe- mem only for tency of the court to try the same. It is the propriety of this decision that has been challenged before us in this appeal. The the Legal Proceedings Order whether article 4(1) of has any application the facts of the present case. In my opinion, the answer to this question tnust be in the negative and the view taken by the High Court on this point seems to me to be perfectly sound and un assailable. consideration first point requires The Legal Proceedings Order as well as several other orders dealing with various constitutional mat- ters affecting the two Dominions which were to come into being on and from the 15th of August, 1947, were promulgated by the Governor-General of India just on the previous day, that is to say, the 14th of August, 1947, in pursuance of section 9(1) of the Indian Inde- pendence Act which made it a duty on the part of the Governor-General · removing the difficulties arising in connection with the transition to the new constitutional order. As the two suitable provisions to make • • i. ~ • 1950 The State of Ttipura y. The Province of East Bengal MukherieaJ. S.C.R. SUPREME COURT REPORTS 41 Independence Act, into existence under Indian Dominions came tih.e Britiish Parliament Independence Act passed by and these orders were made by the Governor-General of India in exercise of the authority conferred upon him by the there cannot be any doubt that the provisions of these orders are fully binding on India as well as the Dominion of Pakistan; they being provisions made to be applicable only for the transitional period, the question does not really arise as to whether or not they are in strict conformity with the principles of International Law which would two sovereign ordinarily govern the relations between States. Article 4(1) of the Legal Proceedings Order is worded as follows : <t "Notwithstanding of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947,- creation ( l) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the Province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court the said shall continue proceedings all the jurisdiction and powers which had immediately before the appointed day." to have for the purposes of immediately before The clause of the article is couched in very wide language and under it all proceedings pending in any civil or criminal court in the Province of Bengal, the the 15th of Punjab or Assam August, 1947, would continue as before and be heard tried by the courts before which they are pending irrespective of that such proceedings might the other relate Dominion. I agree with the High Court in 1io1ding that comprehensive though the provision is, by itself it can render no assistance to the plaintiff appellant. The suit the plaintiff against the old was commenced here by Province of Bengal as the party defendant and against to persons or property situated the fact 1950 The State of Tripu a v. "The Province of EaJt Bengal Mukherjea J. 42 SUPREME COURT REPORTS [1951] (1) of suit may be continued if the that defendant plaintiff so chooses under article 4 the Legal Proceedings Order mentioned above. But this would be of no benefit or advantage to the plaintiff for what he wants to proceed against the Province of East Bengal which is a part of the Dominion of Pakistan as a substituted defendant in place of the Province of that if the court has Bengal. Dr. Sen Gupta argues jurisdiction to continue the suit, this would necessarily carry with it the power to make proper orders for substitution as the court considers necessary. But such substitution could be made only under the ordinary provisions of law which regulate the conduct of such suits. There is no provision of any municipal law which contemplates or substitution of one authorises If, there- sovereign state for another in a pending suit. fore, the new to proceed against Province of East Bengal, he must find warrant for it the Governor in some of the provisions made by General of India in exercise of him under the Indian Independence Act. Admittedly is no such provision in the Legal Proceedings the plaintiff Act and reliance is, upon article 12 the Rights, Property and Liabilities Orders, 1947, which in the following terms:- therefore, placed by the powers vested the plaitiff wants (2) o! respect "Where any Province from which property, rights transferred by this Order is, imme or liabilities are diately before the transfer, a party to legal proceeding those rights or that property or liabilities, the pro perty, provisions of this Order shall be deemed to be substi the other Province as a party proceedings, proceedings may continue accordingly." the Province which succeeds in accordance with rights or liabilities It is not disputed that in order to attract the opera- tion of this provision, it is incumbent upon the plaintiff to which his suit to show the Province of relates has been Bengal, as it existed prior to the 15th of August, 1947, that the right or liability transferred • • ( I 1950 The State of Tripura v. The P1ovince of Ea•t Bengal Mukherjea J. S.C.R. SUPREME COURT REPORTS 43 invoking the purpose of to the Province of East Bengal in Pakistan in accord ance with the provisions of this Order. To establish this, reliance was placed on behalf of the plaintiff upon several provisions of the Rights, Property and Liabi lities Order, 1947, and none of his contentions in this respect were accepted as sound by the learned Judges In this court Dr: Sen Gupta took of the High Court. his stand on a two-fold ground. He argued in the first place that for the aid of article 12 (2) of the Rights, Property and Liabilities Order it is not necessary that the transfer of the right relates should and· liability to which the proceeding take place under any of the specific articles enumerated in the Order. It would be enough according to him, if there is a transfer by or under any machinery which the Order sets up or authorises. What he says is that as the Province of East Bengal is proceeding to assess and levy agricultural income-tax upon the plaintiff in respect of a period anterior to 15th of August, 1947, the "right to do so can vest in the Province either under an agreement between the two Dominions or the two Provinces or on the basis of an award by an arbitral tribunal as contemplated by article 3 of the Rights, Property and Liabilities Order. In either case it would amount to transfer of rights under the provisions of the Order and would attract the operation of article 12 (2). This argument is manifestly unsound and cannot If the right referred to by the learned be accepted. Counsel means the right to impose tax on agricultural income earned within its territory, the State · of Pakis tan did not acquire such right by transfer from the Pro It is a right inherent in sovereignty vince of Bengal. itself which the Dominion of Pakistan got under the if the right has Indian Independence Act. been created by Income-tax Act, the Province of East Bengal would certainly be entitled that Act to avail itself of the provisions of under section 18 (3) of the Independence Act. Apart from this, Dr. Sen Gupta has not referred us to any agreement between Provinces or to the decision of any arbitral tribunal the Bengal Agricultural two Dominions or Again 1950 The State of T1ipura v. The Province of East Benaal Mukherjea J. SUPREME COURT REPORTS [1951] under which the right in dispute in the present case was transferred to the Province of East Bengal. This contention must therefore fail. learned Counsel I have now to consider the other argument on this point advanced by liability of the Province of Bengal in respect cause of action upon which the plaintiff's suit had been founded became a liability or the Province of East Bengal under the provision of article 1 (2) of the Rights, Property and Liabilities Order. It is not disputed that if this contention succeeds, the plaintiff would be entitled to the benefit of clause (2) of article 12 of the Order. Clause (2) of article 10 has to be read with clause (1) of that article and taking the two clauses together the provision of article 10 (2) would stand thus :- "Where immediately before the appointed day the Province of Bengal is subject to any liability in res pect of an actionable wrong other than. a brea~h of contract, the liability shall- ( a) when the cause of action arose wholly within the territory which as from that d~y are the territories of the Province of East Bengal be a liability of ·that Province." • to be restrained from proceeding is whether this can be said If the allegations made by the plaintiff in the plaint are · assumed to be correct, the Province of Bengal was liable agricultural income-tax upon the plaintiff which was illegal, as being imposed by a statute which so far as it affected the plaintiff was unconstitutional and void. to be a The question liability in respect of an actionable wrong other than a breach of contract within It expression occurring may be noted here that the rights and liabilities arising out of contracts have been dealt with in articles 8 and 9 of the Order. The High Court took the view that the expression "actionable wrong other than a breach of contract" is synonymous with 'tort'. It has held that the act complained of cannot be a tortious act and in article 10 set out above. the meaning of _. 'f <I ~ > S.C.R. SUPREME COURT REPORTS 45 law that even if it is so, no action would lie upon it, it being an established proposition of the State is not answerable for any tortious acts of its officers done in It the course of official duties imposed by a Statute. seems to me that the learned Judges have attached a narrow and somewhat restricted meaning to the words of the Article mentioned above and that the plain language of the provision read in the light of the con- justify a wider and more text would demand and In my opinion, there can be an liberal interpretation. actionable wrong which does not arise out of a breach of contract and at the same time does not answer to the description of a 'tort' as it is unoerstood in English law ; and if the plaintiff's allegations are correct, it is an actionable wrong precisely of that type which we have in the present case. 19SO The State of Tripura v. The Province of Ea3t Bengal Mukltetjea J. in the same sense of The word "wrom( in ordinary legal language means and signifies "privation of right". An act is wrongful if it infringes the legal right of another, and "action able" means nothing else than that it affords grounds for action in law. Ordinarily, the word "injury" actionable wrong while loss or harm "damage in contrast with injury means injury or occurring In English law "tort" is a species of civil not" injury and so is not quite correct to say two together exhaust all forms of actionable wrongs known to English law. It is true that a ton is often described as wrong independ ent of contract. As a legal definition this description, as I shall show presently, is not quite accurate and unless to be misleading. is a breach of contract ; but fact whether actionable as taken with certain limitations that the is apt (1). It is well known that in England the principles of mod~rn law of contract and tort emerged solely out of the old "Forms of Action" under the intricacies of which they lay buried for ages. The injuries which in modern law are described as torts were remedied in early time by certain writs, known as writs of trespass (1) Vide the observation of Viscount Simon in Crofter, etc., Company d. v. Veitch {1942] A.C. 43S, 442. 4-8 S. C, Jndia/68 19SO The State of Trlpura v. The P1ovince of Ea:rt Bengal Mukhcrjea J. 46 SUPREME COURT REPORTS [1951] and trespass on the case. The latter was more elastic than the former and was capable of being adapted to new circumstances and to new types of injuries. There was no clear line of demarcation in those days between contractual .and tortious liability and in fact the action of "assumpsit" which was the method of enforcing simple contracts was a variety of action on the case for recovery of compensation and was made use of from a party who failed to perform his agreement on the ground that su•h failure amounted to a wrong in the nature of deceit('). the 19th century in England was When the principles of substantive law gradually extricated themselves from the entanglements of forma listic procedure, a distinction was drawn between liabi lity for breach of contract and that for tort. In a breach of contract the right violated owes its origin to the agreement of the parties while in tort the right infringed is one created by the general law of the land. From about the middle of assumption current that all civil causes of action must be founded either on contract or tort and all injuries which were not breaches of contract would come under torts. This assumption as Sir Frederick Pollock observes has no historical foundation to rest upon('). In 1852 the Common Law Procedure Act was passed and a tort was described in the Act as "a wrong independent of It cannot be denied this mode of contract". expression became very common legal parlance ; but as more than one modern writer on the law of torts have pointed out, the words in such description would have to be interpreted in a particular way and it would not limitations; taken with certain be a correct statement of law. the category of literally • .. It has been observed by Underhill in his "Law of like this would be accurate Torts" that a description in law if the word 'wrong' is taken in the restricted and technical sense as equivalent to "violation of a right (I) Vide Pollock on Contract, !2th Edition, p. I JI; Winfield on Tott, pp. 3-4 (4th Edition). . (2) Vide Pollock's Article on Tort, Encyc. Brit., VoL22, p. 307. 1950 The Stat~ of 1ilpu a v. The .Province of EmtBengal Mukherjea J. S.C.R. SUPREME COURT REPORTS 47 form, tort unless It is really tort froni other forms of recognised . and enforced by law by means of an action for damages". Taken the definition though it gives no clue as to what constitutes a wrong, certainly does lay stress on the essential characteristic -of a tort, viz., that the appropriate remedy for it is an action for damages(1). this characteristic that differentiates a injury or actionable wrong even though the latter are unconnected with any contract. There may be other remedies besides damages available the plaintiff against a tortfeasor in the shape of restitution, injunc tion, etc., but no. "civil injury" as Salmond observes the appropriate remedy "can .be classed as for it is an action for damages. Such an action is an tort." (2) Other essential characteristic of every remedies like injunction or restitution can be claimed by the plaintiff but it is solely by virtue ot a right to damages that the wrong complained of can be regarded as a tort. By way 0£ illustration the author points out that a public nuisance is not to be deemed a tort, because the civil remedy by way of injunction may be obtained at the suit of the Attorney-General. A refu to perform a statutory duty is not a tori if the · remedy is by way of mandamus. Nor would any wrong be regarded as a tort if the remedy is not an action for unliquidated damages but for a liquidated trust is certainly an sum of money. A breach of actionable wrong beneficiaries can claim compensation if the trustee has misappropriated the claim trust property; but cannot be for unliquidated damages, it is not regarded as a tort( 8 ). According to Salmond, the 'reason for this exclusion is purely historical as a breach of trust or any other equitable obligation was considered to be within It is interesting to observe that although . the difference between equitable and common law jurisdiction is not existent at the present day, the old rule is still applied independent of contract and jurisdiction of equity courts. the special > ) (1} Vide UnderhilJ's Law of Torts, 16th Edn., p. 4. (2) VideSalmond'sLaw of Torts, IOthEdn.,pp. 7 & 8. t3) Vide Winfield's Law of Tort, p. 11. 19SO The State of Tr pura v. The Province of East Benaal Mukherjea J. 48 SUPREME COURT REPORTS [1951] to demarcate the boundary of English common Jaw. the law of torts m Thus tort is a civil miury other than a breach of contract which is capable of sustaining an action for unliquidated damages in a court of law. If the appro priate remedy is not a claim for unliquidated damages but for injunction or some other relief, it would not rank as a tort though all the same it would be an actionable wrong. • to bring engines manufactured by By way of illustration I may refer to the case of Halsey v. Brotherhood(') which was decided by Sir George Jessel. Both the plaintiff and defendant in this case were engineers and held patents for manufacture of certain types of engines. The plaintiff brought an action against the defendant alleging that legal proceedings the latter had threatened against several persons who were actual or intending purchasers of engines from the plaintiff asserting that the plaintiff were There was infringements of the defendant's patent. a claim for damages and also for injunction. It was held by Sir George Jessel that the plaintiff could not the basis of slander of title, as he claim damages on the defendant's statements ·or nowhere alleged representation were not bona fide. But even though in good faith, the plaintiff would be entitled to an injunction against the defendant if he succeeded in proving that the latter's allegations of infringement were not true. As no pro per case for injunction on this basis was made in the claim, the action was dismissed ; but liberty was given to the plaintiff to bring an action in the proper form claiming an injunction to restrain the defendant frqm threatening the plaintiff's customers. This threat to to be an actionable wrong customers was but as the remedy was injunction and not damages, it was not a tort in the legal sense of the term. statements had been made thus held In the case before us the act of the Province of the plaintiff is not a tort law, Bengal complained of by according rnies of English technical (I) IS Ch. D. SJ4. S.C.R. SUPREME COURT REPORTS 49 in a court of law and remedied ·an actionable wrong as ·it can be but is certainly in an sued upon effective manner. The appropriate , remedy wrong is not unliquidated damages which is essential in a restraining the defen injunction ilkgal assessment or from realising if assessment has actually taken place. tort but an from proceeding with the amount assessed 19~0 The State of Triplll'a v. The Province of East Bengal Mukherjea J. If, as the plaintiff alleges, the Bengal Agricultural relevant provision ·of Income-tax Act, under which the plaintiff is sought to be assessed, is illegal and ultra tJires, the issuing of the notice by the Income tax Officer is certainly the first and the essential step in the commission of the wrongful act which furnishes a sufficient cause of action for the suit. As this is not a case of tort, the principle of law, according to which a state is not liable to any damages for tortious acts of .its servants, cannot be invoked as a bar to the suit. A injunction can be claimed against remedy by way of the act complained of a State or Province unless amounts to an 'act of State' in its strict sense and is not purported to be done in exercise of the powers con the Government by any municipal law. ferred upon the Rights, Property and As Liabilities Order to distribute and adjust as far as rights, properties and liabilities betweeri possible the two Dominions which were into being the language of under the the Order should be construed as liberally as possible, . is no warrant for putting an interpretation and there upon the words used more restricted than tliey would bear in English law. Indian Independence Act, the avowed object of to come It is argued that article 10(2) (a) does not apply to this case as the cause of action did not wholly arise within the territory of the Province of East Bengal. The argument does not impress me at all. The notice Income-tax Officer of Dacca which is in Pakistan territory though it was received by the plaintiff's manager at Agartala which was outside In any event, the Province British India at that time. issued by the .,. :> 19'0 The State ~I Tripura v. The Prow'nce of East Bengal Mukhtrj"a J. 50 SUPREME COURT REPORTS (1951] this ground. of East Bengal cannot escape liability on It would be jointly liable with the Province of \Vest Bengal under article 10(2) (c) of the Rights, Property and Liabilities Order. In view of my decision on this point, the other ques tion raised by Dr. Sen Gupta as to whether the defen dant submitted the Alipore Court or not docs not fall for determination. jurisdiction of a bar therefore, should not be allowed The learned Attorney-General, who intervened behalf of the Union of India, put forward certain ad ditional grounds in support of the order made by the learned Judges of the High Court. One of the points raised by him is that section 65 of the Bengal Agricul- tural Income-tax Act the suit constitutes which, to continue. The other material point is that the suit cannot but re- sult in an infructuous decree, and consequently there is no justification for allowing it to proceed. It is pointed out that an Ordinance has been passed by the Govemor General of Pakistan on the 13th of November, 1948 under which "no judgment, decree or order referred to in paragraph 3 of Article 4 of the Indian Indepen dence (Legal Proceedings) Order, 1947, shall, in way, affect the legislative or executive right or author- ity of the Central or any Provincial Government of Pakistan and where such authority or right has been at issue, the judgment, decree or order shall be invalid and inoperative". The first point . has been dealt with by my learned brother Patanjali Sastri J. in his judg- ment and I concur with him in holding that section 65 of the Bengal Agricu lmral Income-tax Act has no ap- plication to the present case. The second point, I must say, embarrassed me to some extent 2nd if the effect of the Ordinance is as has been stated by the learned Attorney-General, a doubt may whether it would be worthwhile for the plaintiff to the suit and whether it would not be proceed with more to his advantage to seek relief in the court of Dacca. But as this point was not raised before the High Court and the question whether an Ordinance of the provisions of the this character could override legitimately • • • <. < S.C.R. SUPREME COURT REPORTS 51 Orders passed by the Governor-General of India under the Indian Independence Act has still to be decided, I refrain from expressing any opinion on this point. In the result, the appeal, in my opinion, should be allowed and I concur in the order which has been made by my learned brother Patanjali Sastri, J. 1950 Th• State of Trip11ra v. Tiie ProviHce oj Eayt Bengal Appeal allowed . ' the Appellant : R. R. Biswas. .Agent for Agent for the Respondent : P. K. Bose. Agent for the Intervener: P. A. Mehta. STATE OF BOMBAY "· NAROTHAMDASJETIIABAIAND ANOTIIER - (SAIYID FAZL Au, PATANJALI SAsTRI, MEHR CHAND MAHAJAN, MuKHERJEA and DAs JJ.J 1950 Dec. 20 Bombay City Civil Court Act (XL of 1948)-Provi11cial Act constituting City Civil Court to try suits of civil nature of value up to Rs, 10,000-Provision empowering Provincial GQl/ernmmt to invest court with jurisdiction up to Rs. 25,000-Validity of Act Power of Provincial Legislature to make laws relating to ju•isdic· tion of courts-Delegation of legislative powers-Condition11l lr:gis· lation-Governmetit of India Act, 1935, Seventh Schedule, List I, items 28 & 53; List II, items 1 & 2; List Ill, items 15-Powei· to make laws as to /ustice" and "Constitution to define and organisation of courts", whether "/urisdiction and powers" of courts-Interpretatio11 of Lists-Re ference to legislative practice-Doctrine of pith and substance. 'Administration of includes power The Bombay City Civil Court Act of 1948, an Act passed by the Provincial Legislature of Bombay, provided by s. 3 that the Provincial Government may, by notification official Gazette, establish the Greater Bombay a court to be called the , Bombay City Ci,·il Court, and that this court shall, notwith standing anything contained in any law, have jurisdiction to re ceive, try and dispose of all suits and other proceedings of a civil nature not exceeding Rs. 10,000 in value arising within Greater Bombay except certain kinds of suits which were specified in tection. Section 4 of the Act provided that subject to the excep-: tions :specified in s. 3 the Provincial Government may, by notifica-,