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PETITIONER: THE STATE OF TRIPURA

       Vs.

RESPONDENT: THE PROVINCE OF EAST BENGALUNION OF INDIA--INTERVENER

DATE OF JUDGMENT: 04/12/1950

BENCH: SASTRI, M. PATANJALI BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR   23            1951 SCR    1  CITATOR INFO :  E          1966 SC1089  (18,60)  F          1966 SC1412  (3,4,5)  E          1969 SC  78  (5,19)  RF         1969 SC1302  (17)  D          1973 SC 381  (12)

ACT:     Indian Independence Act, 1947, s. 9--Indian Independence (Legal Proceedings) Order,  1947,  Art. 4--Indian  Independ- ence  (Rights, Property and Liabilities) Order, 1947,  Arts. 10 (2), 12 (2)-Notice on Ruler of State for return of income under  Bengal  Agricultural Income tax Act,  1944--Suit  for declaration of invalidity of Act and injunction  restraining Income-tax  Officer from proceeding with  assessment--Parti- tion of India pending suit--Property falling within Province of  East  Bengal--Jurisdiction of court in  West  Bengal  to proceed with suit against Province of East Bengal--Interpre- tation of Orders--"Liability", "actionable wrong other  than breach  of  contract",  meanings  of--Torts  and  actionable wrongs--Bengal  Agricultural  Income-tax Act, 1944,  s.  65- Suit  in  civil court for declaration  and   injunction  re- straining assessment proceedings-Maintainability.

HEADNOTE:      The Income-tax officer,  Dacca,  acting under the Bengal Agricultural Income-tax Act, 1944,  sent by  registered post a notice to the Manager of an Estate belonging to the Tripu- ra State but situated in Bengal,  calling upon the latter to furnish a return of the agricultural income derived from the Estate during the previous year.  The notice was received by the  Manager in the Tripura State.  The State, by  its  then Ruler, instituted a suit in June, 1946, against the Province of  Bengal and the Income-tax Officer, in the court  of  the Subordinate Judge  of Dacca for a declaration that the  said Act  in so far as it purported to impose a liability to  pay agricultural income-tax on the plaintiff was ultra vires and void, and for a perpetual injunction to restrain the defend- ants  from  taking any steps to assess the  plaintiff.   The suit was subsequently transferred to the Court of the Subor-

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dinate  Judge of Alipore.  The partition of India under  the Indian Independence Act took place on the 158h August  1947, and the 2 Province  of East Bengal in which the Estate  was  situated, was substituted as a defendant in the place of the  Province of Bengal on an application made by it,  and in its  written statement  it contended that the court of Alipore which  was situated in West Bengal had no jurisdiction to proceed  with the  suit.  The High Court of Calcutta, reversing the  order of the Subordinate Judge of Alipore held that the provisions of the Indian Independence (Legal Proceedings) Order,  1947, and  the Indian Independence (Rights, Property and  Liabili- ties)Order,  1947,  did not apply to the case  and,  as  the matter was accordingly governed by the rules of internation- al law, the court of Alipore had no jurisdiction to  proceed with the suit:     Held  per  KANIA C.J., PATANJALI SASTRI,  MUKHERJEA  and CHANDRASEKHARA AIYAR JJ. (FAZL ALI J. concurrinG)--The  suit was not one with respect to any property transferred to East Bengal  by  the Indian Independence  (Rights,  Property  and Liabilities)  Order, 1947, nor was it a suit in  respect  of any "rights" transferred by the said Order, inasmuch as  the Province  of East Bengal obtained the right to levy  income- tax  not by means of any transfer under the said Order,  but by virtue of sovereign rights which were preserved by s.  18 (3) of the Indian Independence Act,   1947, and Art. 12  (2) of the said Order had no application to the case.     Held  per  KANIA C.J., PATANJALI SASTRI,  MUKHERJEA  AND CHANDRASEKHARA  AIYAR  J.J. (FAZL ALI  J,  dissenting.)  (i) Since  the  object  of  the  Indian  Independence   (Rights, Property   and Liabilities) Order, 1947, was to provide  for the initial distribution of rights, properties and  liabili- ties  as  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 Order, so as to leave no  gap  or lacuna in relation to the matters sought  to  be provided for.  The words "liability in respect of an action- able  wrong" should not therefore be understood in  the  re- stricted sense of liability for damages for completed  acts, but so as to cover the liability to be restrained by injunc- tion  from completing what on the allegations in the  plaint are illegal or unauthorised acts which have been  commenced. As  the Province of Bengal was, on the: allegations  in  the plaint,  liable  to be restrained from  proceeding  with  an illegal  assessment,  that  liability  was,  accordingly,  a liability  in  respect of "an actionable wrong   other  than breach  of contract" with in the meaning of Art. 10 (2)  (a) of  the above said Order; and, as the cause of action  arose wholly  in  Dacca within the Province of East  Bengal,  that liability  passed to the province of East Bengal under  Art. 10 (2) (a), the latter must be deemed to be substituted as a party to the suit and the suit must continue in the court of the Subordinate Judge of Alipore, under Art.4 of the  Indian Independence (Legal Proceedings) Order, 1947.   (ii)   Assuming  that the cause of action did  not  wholly arise 3 in  Decca, Art. 10 (9.) (c) would apply and the Province  of East  Bengal would still be liable, though jointly with  the Province of West Bengal.     (iii)   As the suit was not one "to set aside or  modify any  assessment  made under the Act", s. 65  of  the  Bengal Agricultural  Income-tax Act, 1944, had no  application  and the  suit  was therefore one in respect of  an  "actionable"

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wrong within the moaning of Art. 10 (2) (a).     Per FAZL ALI J.--The words  "liability in respect of  an actionable  wrong other than breach of contract" in Art.  10 of  the Indian Independence (Rights, Property  and  Liabili- ties) order 1947, refer to liability capable of being ascer- tained  in terms of money such as liability for damages  for tort  and not liability in any abstract or  academic  sense. Even  if  a meaning, as wide’ as they can bear  in  a  legal context,  is  given  to the  words  "actionable  wrong"  and "liability"  two  elements are necessary  to  constitute  an actionable  wrong, namely, (i) an act or omission  amounting to an infringement of a legal right of a person or breach of duty  towards him, and (ii) damage or harm resulting  there- from.     The  mere issuing of a notice under s. 4 of  the  Bengal Agricultural Income-tax Act, 1944, by the Income-tax Officer is not an actionable wrong  because no right known to law is infringed  thereby  and no action for damages can  be  main- tained  in  respect of such an act, even assuming  that  the Income-tax Officer had exceeded his powers  or  acted  under an  invalid provision of law.  No "liability for an  action- able  wrong" was thus involved in the suit and no  liability in  respect of such a wrong could therefore be said to  have been  transferred to the Province of East Bengal within  the meaning  of Art. 10 (2.) of the said Order so as to  entitle the  plaintiff to continue the suit against the Province  of East Bengal under Art. 10 (2).      For  the purpose of understanding the full scope of  s. 65  of  the Bengal Agricultural Income-tax Act, 1944  it  is necessary  also to read the latter part which provides  that no suit or other proceeding shall lie against any officer of the Crown for anything in good faith done or intended to  be done under the Act."  The latter part of the section clearly excludes  the  jurisdiction  of the courts  to  prevent  the Income-tax Officer from proceeding with an assessment  which has been started and the section must on a fair construction be held to bar all suits in connection with such  assessment whether  against the State or an Income-tax Officer  of  the State.  If, therefore, no suit or action lies, there cab  be no liability for an actionable wrong. [The nature of actionable wrongs and torts discussed.] Judgment of the Calcutta High Court reversed. 4

JUDGMENT: APPELLATE JURISDICTION: Case No. IV of 1949.     Appeal  from a judgment of the High Court of  Judicature at  Calcutta (Harries C.J. and Chakravarthi J.  (dated  30th November, 1948, in Civil Revision Case No. 712 of 1948.     N.C.  Sen  Gupta (Ajit Kumar Dutta, with  him)  for  the Appellant.     Faiyaz  Ali,  Advocate-General of East  Bengal  (B.  Sen and Noor-ud-din,  with  him)   for  the Respondent.     M. C, Setalvad, Attorney-General for India, (S. M. Sikri and V.N. Sethi, with him) for the Intervener.     1950.  Dec. 4.   The judgment of Kania  C.J.,  Patanjali Sastri  j.  and  Chandrasekhara  Aiyar J. was  delivered  by Patanjali  Sastri  J. Fazl Ali and Mukherjea  JJ.  delivered separate judgments. PATANJALI  SASTRI J.--This is an appeal from a  judgment  of the  High  Court of Judicature in West  Bengal  reversing  a finding  of the Second Subordinate Judge of 24  Parganas  at Alipore  that  he had jurisdiction to proceed  with  a  suit

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after   substituting  the  Province  of  East   Bengal   (in Pakistan)in the place of the old Province of Bengal  against which the suit had originally been brought.     The facts leading to the institution of the suit are not in  dispute.   The Bengal Agricultural  Income-tax  Act  was passed by the Provincial Legislature of Bengal in 1944.   It applied to the whole of Bengal and purported to bring  under charge the agricultural income of, inter alia, "every  Ruler of  an Indian State."  Acting  under the provisions of  that Act,  which came into force on 1st April, 1944, the  Income- tax Officer, Dacca Range, sent by registered  post, a notice to  the  Manager of the Zemindari  Estate     called  Chakla Roshanabad belonging to the Tripura   State but situated  in Bengal  outside the territories of that State, calling  upon him to furnish a return of the total income derived in the 5 previous year from lands in the Estate used for agricultural purposes.   The notice was received by the Manager at  Agar- talla  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 Agricultural Income-tax Officer, Dacca Range, in the Court of the First Subordinate Judge, Dacca, contest- ing  the 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, 1945, when the  notice  was issued.   The  reliefs sought were a  declaration  that  the Bengal  Agricultural Income-tax Act: 1944, in so far  as  it purported to impose a liability to pay agricultural  income- tax on the plaintiff as a Ruler of an Indian State was ultra vires and void and that, in any case,  the 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  steps to assess the plaintiff  to  agricultural income-tax. Before the defendants filed their written state- ments  the  suit was transferred by the High  Court  to  the Court  of  the District Judge, 24 Parganas,  and  was  again transferred from that Court to the Court of the  Subordinate Judge  at  Alipore.  The ruler who brought the  suit  having died,  the  plaint was amended by the  substitution  in  his place  of  his son and heir in June 1947, and the  suit  was pending  in  that  Court when the partition  of  India  took effect on the 15th August, 1947     On 9th December, 1947, the Province of East Bengal filed a petition stating that the Province of Bengal, the original defendant  No.  1  in the suit, had  ceased  to  exist  with effect from 15th August, 1947, and 6 in lieu thereof two new Provinces, namely,  the 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 the suit, it was necessary in  the interests  of East Bengal that the suit should be  contested and that a written statement should be put in on its  behalf for  such  contest.  It was accordingly  prayed   that  the’ delay should be condoned and the written statement which was filed with that petition should be accepted. In the  written statement  it was pleaded that inasmuch as the  Province  of

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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 jurisdiction to hear the suit or  make  an order  of injunction against the defendants.  It was  stated that  the Province of East Bengal appeared only  to  contest the jurisdiction of 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  to the suit.  On the 10th December, 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  writ- ten statement filed on behalf of the former was accepted.     Thereupon  the  Subordinate Judge framed  a  preliminary issue  on  the question of jurisdiction and, as  stated  al- ready,  found  it for the plaintiff relying on s. 9  of  the Indian  Independence Act and article 4 of the  Indian  Inde- pendence  (Legal  Proceedings) Order, 1947. It may  be  men- tioned  in passing that the assessment of the plaintiff  was proceeded  with  by  the  Agricultural  Income-tax  Officer, Comilla  Range  (East Bengal), who, by his order  dated  the 22nd  December, 1947, imposed on the plaintiff a tax of  Rs. 1,79,848-12-0 for 1944-45 and Rs. 1,34,326-7-0 for  1945-46, but  the  recovery of the amounts has  been  deferred  under orders of the Court pending the decision on the  preliminary issue.     As pointed out by the Federal Court in Midnapore 7 Zemindary  Co.  Ltd. v. The Province of Bengal  and  ,Others (1), the orders promulgated on-the 14th August, 1947, by the Governor-General  of India before the partition in  exercise of  the powers conferred under s. 9 of the Indian  Independ- ence Act, 1947, and containing provisions specially designed to  remove the difficulties arising in connection  with  the transition to 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  present controversy are the Indian Independence (Legal  Proceedings) Order,  1947, and the Indian Independence (Rights,  Property and  Liabilities)Order,  1947.  By article 4 of  the  former Order     (1)  All  proceedings  pending  immediately  before  the appointed  day in any of the special tribunals 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 to have for the purposes of the said  proceedings all the jurisdiction and powers  which  it had immediately before the appointed day;      *              *              *              *     (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 High Court  in appeal or revision therefrom as if the order or sentence had been  passed  by a court of competent jurisdiction  in  that Dominion;     *         *            *        * and by article 12 (2) of the latter Order     Where  any Province from which property, rights  or  li- abilities  are  transferred by this  Order  is,  immediately before  the transfer a party to legal proceedings  with  re- spect  to that property or those rights or  liabilities  the Province which succeeds to the property, rights or  liabili- ties  in accordance with the provisions of this Order  shall be  deemed  to be substituted for the other  Province  as  a party to those proceedings and the proceedings may  continue

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accordingly. (1) [1949] F.C.R. 309. 8     On the effect of these provisions the learned Judges  of the  High Court observed: "If this provision [i.e.,  article 12 (2)] applies to the present case, there can be  no  doubt that the Province of East Bengal was substituted in the suit for  the  Province of Bengal by operation of  law,  and   by reason   of  the   Legal Proceedings Order  the  suit  shall continue  in the Court of the Second Subordinate  Judge,  24 Parganas,  as  a suit against  the  substituted  defendant." With that statement of the position we entirely agree.   The learned Judges, however, proceeded to examine, laying stress on the words "by this Order" in article 12 (2), whether  any property,  rights or liabilities could be said to have  been transferred by the Indian Independence (Rights, Property and Liabilities)   Order, 1947, from the Province of  Bengal  to the  Province of East Bengal,  and they took the  view  that neither  any property, nor rights, nor liabilities  were  so transferred  under that Order and that, therefore, the  con- tinuation  of the proceedings against the Province  of  East Bengal,  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  princi- ples,  East Bengal, being a Province of a  sovereign  state, could  not be sued against its will in the municipal  courts of India, with the result that the suit pending in the Court at  Alipore must abate.  They also negatived a further  con- tention  raised before them, apparently for the first  time, to the effect that by reason of the petition filed on behalf of the Province of East Bengal for acceptance of its written statement condoning the delay involved and also by reason of sundry  other proceedings for interim relief sought  by  the plaintiff which were actively  resisted  by the Province  of East  Bengal, that Province must be taken to have  submitted to  the jurisdiction of the Court. On behalf of  the  appel- lant, Mr. Sen Gupta challenged the correctness of the  deci- sion on both points.     Before  dealing with these contentions, it will be  con- venient  to dispose of two preliminary points raised by  Mr. Faiyaz Ali, Advocate-General of East Bengal. 9 In  the first place, he submitted that the State of  Tripura having  since  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 the present Maharaja through his mother as his next friend.   It was, however, represented 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, appearing on behalf of the  Dominion of  India, the intervener, confirmed  that position.   There is  thus no substance in the objection as any formal  defect in  the proceeding could be set right by  suitably  amending the cause title.     Mr.  Faiyaz Ali next drew our attention to the  Pakistan (Indian Independence Legal Proceedings) Order, 1948, promul- gated by the Governor-General of Pakistan on 13th  November, 1948, with retrospective effect from the 15th August,  1947, and  pointed out that in view of its provisions  any  decree that  might  eventually be passed by the  Court  at  Alipore would receive no effect in Pakistan and that, therefore,  it was unnecessary for this Court to decide the question of the jurisdiction of the Alipore Court to proceed with the  suit.

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We  are unable to take that view.  The effect of  the  Order referred  to  above  on any decree that  may  eventually  be passed  in the pending suit may have to be taken note of  by the  Court trying that suit after hearing arguments  on  the validity  of  that Order which is challenged but we  are  at present  concerned only  with the question of the  jurisdic- tion  of  that Court to try the suit and we cannot  at  this stage  refuse  to give our ruling  on that  question  merely because  any decree that might be passed in   favour of  the plaintiff might prove ineffectual.     Turning  now  to  the main question, it  is  clear  that article 12 (2) of the Rights, Property and Liabilities Order applies  only to property rights or liabilities which   were transferred  by  the  Order  from  a Province  which was   a party to legal proceedings 2 10 "with respect to" that property or those rights or  liabili- ties.   As the suit in question cannot be said to have  been instituted with respect to the property transferred, namely, Chakla Roshanabad, the appellant cannot rely upon the trans- fer  of  that property from the Province of  Bengal  to  the Province  of  East  Bengal  as part of  the  territories  of Pakistan  under the scheme of partition.  Nor was there  any transfer  of  "rights"such as was  contemplated  under  that article, for the only right with respect to which the  Prov- ince of Bengal could be said to have been a party  to    the pending  proceeding on the facts of this case was the  right to  tax the agricultural income of the plaintiff  under  the provisions of the Bengal Agricultural Income-tax Act,  1944, and  that  right  was not derived by the  Province  of  East Bengal  by transfer under the Rights, Property and  Liabili- ties 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, 1947, which provided that "the  law of British India and of the several parts thereof immediate- ly before the appointed day shall, so far as applicable  and with the necessary adaptations, continue as the law of  each of  the new Dominions and the several parts  thereof,  until other  provision is made by the laws of the  legislature  of the  Dominion  in question or by any  other  legislature  or other authority having power in that behalf."     The  question next arises whether there  was a  transfer of  any "liability" by the Order as contemplated in  article 12(2). Mr. Sen Gupta relied in this connection on article 10 (2)  (a) which provides that "where immediately  before  the appointed day the Province of Bengal is subject to any  such liability (i.e., "any liability in respect of an  actionable wrong  other than breach of contract") referred to  in  sub- section  (1)that liability shall, where the cause of  action arose wholly within the territories which, as from that day, are  the  territories of the Province of East Bengal,  be  a liability  of  that Province."  It was  contended  that  the Province 11 of Bengal was, according to the plaintiff’s case, liable  to be restrained from proceeding with the illegal and  unautho- rised assessment on the basis of the notice issued under the Bengal Act of 1944, and that liability, in respect of  which the  cause of action arose wholly in Dacca (where  the   as- sessment proceeding had been initiated) within the  territo- ries  of the Province of East Bengal, became a liability  of that  Province. The High Court rejected this  contention  on

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the ground "that article 10(2) is concerned with the liabil- ity  for an actionable wrong other than breach  of  contract and it is impossible to say that by serving a notice on  the plaintiff  under  the  Bengal  Agricultural  Income-tax  Act through  one  of  its officers the Province  of  Bengal  had committed  an actionable wrong’.  Assuming that it  exceeded its  power or acted under an invalid provision of  law,  the plaintiff may have a declaration to that effect but the  Act complained  of cannot be said to have been a  tortious  act. But  even assuming that it was, it is to be remembered  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  offi- cers done in the course of their official duties imposed  by a statute, except where the particular act was  specifically directed and the Crown profited by performance  .......   No liability  for an actionable wrong is thus involved  in  the suit  and Dr. Sen Gupta cannot establish a right to  proceed against  the Province of East Bengal on the basis  that  the liability  was  transferred to that Province  under  article 10(2) of the Order."     We  are 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 connotes only a liability for  dam- ages  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  the plaintiff to submit a return  of  his total  agricultural  income under s. 24 (2)  of  the  Bengal Agricultural 12 Income-tax  Act, 1944, through an appropriate officer  func- tioning  under  that  Act, the Province of  Bengal  had  not committed  an "actionable wrong".  This, in our opinion,  is not  a correct view of the matter. Under s. 9(1) (b) of  the Indian  Independence  Act,  1947,  the  Governor-General  of British  India was directed to make provision by order  "for dividing  between  the  new Dominions and  between  the  new Provinces  to  be constituted under this  Act,  the  powers, rights,  property, duties and liabilities of  the  Governor- General  in  Council or as the case may be of  the  relevant Provinces  which under this Act are to cease to exist",  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 for the initial  distri- bution  of rights, property and liabilities as  between  the two  Dominions and their Provinces, a wide and liberal  con- struction,  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 the matters sought to be  provided for.   There is no reason, accordingly, why the  words  "li- ability in respect of an actionable wrong" should be  under- stood  in the restricted sense of liability for damages  for completed 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  Bengal  Act amounts  to much more than a mere threat in the abstract  to impose  an illegal levy.  It is the actual initiation of  an illegal  assessment proceeding which, 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

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would  result  under s. 25(5) of the Act in  the  Income-tax Officer  making  an ex parte assessment to the best  of  his judgment and determining the sum payable by the assessee  on the  basis  of  such assessment.  Such  failure  would  also expose the plaintiff under s. 32(1) of the Act to the  impo- sition  of a penalty which may equal the amount of  the  tax assessed on him or to a prosecution as for an offence 13 before  a Magistrate under s. 53 (1), at the option  of  the Income-tax authority.  It is thus plain that the service  of a  notice requiring a return of income to be  furnished  for assessment  under  the Act is a step  fraught  with  serious consequences to the assessee, and if the assessment proposed was  illegal  and unauthorised by reason of the  Act  itself being  ultra  vires in so far as it purported  to  make  the Rulers  of  Indian States liable to taxation  thereunder  as contended  for by the plaintiff, the service of such  notice marked the commencement of a wrongful act against the plain- tiff  by the Bengal Government under colour of the  Act  and there can be no doubt that such a wrongful act is actionable in  the sense that an action would lie in a civil court  for an  injunction  restraining  its completion.  That  was  the liability  to which the Province of Bengal was  subject  ac- cording  to the plaintiff’s case at the time when he  insti- tuted  the suit, and that liability, in our opinion,  passed to the Province of East Bengal by virtue of article 10  (9.) (a) of the Indian Independence (Rights, Property and Liabil- ities)  Order, 1947.  There is no question here of  the  li- ability  of the Crown for damages for the negligent or  tor- tious act of its officers. On the allegations in the plaint, which  must,  for the purpose 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  was served  in  purported exercise of powers  conferred  by  the Bengal  Act.  The name of the Income-tax Officer  originally impleaded as the second defendant having been struck off the record, no question in regard to his liability arises.     Reference was made to certain text-books where a  "tort" is  spoken of as an "actionable wrong" and it was  suggested that   the  two  expressions are synonymous.  Every tort  is undoubtedly  an actionable wrong but the converse  does  not necessarily follow.  Indeed, the words "other than breach of contract"  used  in article 10 (1) make it  plain  that  the expression "actionable wrong" is used in a wider sense 14 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 wrongful 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 instituted, and the subsequent completion  of the assessment was made by the  Pakistan  In- come-tax authorities on terms agreed to between the  parties and  sanctioned  by  the Court. The decision  of  the  Privy Council  in Raleigh Investment Co. Ltd. v.  Governor-General in  Council  (1) relied on in support of the  contention  is distinguishable, as the main relief claimed there was repay- ment of the tax alleged to have been wrongfully levied under colour of an ultra vires provision in the Indian  Income-tax

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Act.  Their Lordships observed:      "In form the relief claimed does not profess to  modify or  set  aside the assessment.   In substance it  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 stood. Further, the claim for the 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."      The  position here is entirely different.  The gist  of the  wrongful act complained of in the present case is  sub- jecting  the   plaintiff to the harassment  and  trouble  by commencing  against him an illegal and unauthorised  assess- ment  proceeding which may eventually result in an  unlawful imposition and levy of tax.      It  was suggested, somewhat faintly, that the cause  of action   for the suit, though stated in the plaint  to  have arisen in Dacca, now in the Province of East (1) [1947] F.C.R. 59. 15 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  Province  of East Bengal would  still  be  liable, though jointly with the Province of West Bengal.     We  are therefore of opinion that the Province  of  East Bengal  having   succeeded  to the liability  to  which  the Province  of Bengal was subject immediately before  the  ap- pointed  day,  the  former Province is to be  deemed  to  be substituted  for the other Province as a party to  the  suit and  the suit must accordingly continue in the Court of  the Subordinate  Judge  at Alipore, which  has  jurisdiction  to proceed  with it under article 4 of the Indian  Independence (Legal Proceedings) Order, 1947.     In this view it is unnecessary to consider the  question of  submission to jurisdiction urged in the  alternative  by the appellant.     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.    FAZL ALI J.--The question to be decided in this 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 impleaded as a defend- ant,  after the 15th August,1947 In what circumstances  this question  has arisen will appear from the facts of the  case which may be briefly stated.     In  1944, the Bengal Legislature passed an  Act   called the Bengal Agricultural Income-tax Act, 1944 (Bengal Act  IV of 1944), which enabled it to impose  a tax on the  agricul- tural income of various classes 16 of  persons  including  "every Ruler of  an  Indian  State," holding  lands within the territory of Bengal.   The  appel- lant,  who  is the Ruler of the State of  Tripura,  holds  a zamindary called Chakla Roshanabad Estates, which was  situ- ated in the Province of Bengal and in the District of Sylhet formerly appertaining to the Province of Assam.  On the 28th

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February,  1945, the Agricultural Income-tax Officer,  Dacca Range,  issued a notice under section 24 (2) of  the  Bengal Act to-the Manager of the Chakla  Roshanabad Estates calling upon him to furnish a return of the appellant’s total  agri- cultural  income for the previous year, derived  from  lands situated within the Province of Bengal.  On the  12th  June, 1945,  the appellant instituted a suit in the Court  of  the Subordinate  Judge at Dacca, against the Province of  Bengal and the Agricultural Income-tax Officer, Dacca Range, claim- ing the following reliefs:-     (1)  For  a  declaration that  the  Bengal  Agricultural Income-tax  Act, 1944, so far as it imposes a  liability  to pay  agricultural   income-tax  on  the 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.     (3)  For a perpetual injunction to restrain the  defend- ants  from  taking any steps  to  assess  the  plaintiff  to agricultural income-tax.     On the 15th July, 1945, the suit was transferred to  the Court of the Subordinate Judge at Alipore in the District of 24  Parganas, by an Order of the Calcutta High Court.  While the suit was still pending, the new Province of East Bengal, which  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, 17 a petition was filed on the 9th December, 1947, on 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 contest the jurisdiction  of  the  court and it submits  that  the  suit should be dismissed on that ground."     Later on, the Province of East Bengal was irapleaded  as a  defendant  in  the suit and the name  of  the  Income-tax Officer  of Dacca was removed from the category  of  defend- ants.   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 Proceedings) Order, 1947, read with section 9 of  the Indian Independence Act, 1947, the Court had jurisdiction to try  the  suit  against the new  Province.   Thereupon,  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. allowed the application and set  aside  the order of the Subordinate Judge, giving effect to the  objec- tion  of  the respondent that the Court at Alipore  was  not competent  to  try  the suit against the  Province  of  East Bengal. One of the points raised on behalf of the  appellant before  the High Court was that the Province of East  Bengal

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had  submitted   to  the jurisdiction’  of  the  Subordinate Judge’s Court, but this point was negatived.  The  appellant was  thereafter granted a certificate under section 205  (1) of the Government of India Act, 1935, and on the basis of it he has preferred this appeal. 18      On a reference to the judgments of the learned Subordi- nate Judge and the High Court, it appears that  three provi- sions  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 Independ- ence  Act,   1947,  article 4 of  the   Indian  Independence (Legal  Proceedings) Order, 1947,  [hereinafter referred  to as  ’the Legal Proceedings  Order’], and section 12  of  the Indian  Independence    (Rights, Property  and  Liabilities) Order,  1947,  Therein  after referred to as ’  the  Rights, etc., Order’].      These provisions run as follows :-      Section 9 of the Indian Independence Act :--      "The Governor-General shall by order make such   provi- sion as  appears to him to be necessary or  expedient--      (a) for bringing the provisions of this Act into   effective operation;      (b)  for dividing between the new Dominions,   and  be- tween the new Provinces, to be constituted  under this  Act, the  powers, rights, property,  duties  and  liabilities  of the Governor-General in Council or,  as the case may be,  of the  relevant Provinces which, under this Act, are to  cease to exist  ............"      Section 4 of the Legal Proceedings Order :--      "Notwithstanding  the creation of certain new  Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independ- ence Act, 1947,--     (1)  all  proceedings  pending  immediately  before  the appointed  day in any civil or criminal court (other than  a High  Court) in the Province of Bengal, the Punjab or  Assam shall be continued in that court as if the said Act had  not been  passed, and that court shall continue to have for  the purposes  of the said proceedings all the  jurisdiction  and powers which it had immediately before the appointed day;     (2) any appeal or application for revision in respect of any proceedings so pending in any such 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 instituted in that court after  the appointed day; and     (3) effect shall be given within the territories  either of  the  two Dominions to any judgment,  decree,  order,  or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction  within that Dominion."       Section 12 of the Rights, etc. Order :---     "(1)  Where  immediately before the appointed  day,  the Governor-General in Council is a party to any legal proceed- ings  with  respect to any property, rights  or  liabilities transferred  by this Order, the Dominion which  succeeds  to the  property, rights or liabilities in accordance with  the provisions  of this Order shall be deemed to be  substituted for  the Governor-General in Council as a party to the  pro- ceedings, and the proceedings may continue accordingly.     (2)  Where any Province from which property,  rights  or liabilities  are transferred by this Order  is,  immediately before  the  transfer,  a party to  legal  proceedings  with

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respect to that property or those rights or liabilities, the Province which succeeds to the property, rights or  liabili- ties of this Order shall be deemed to be substituted for the other  Province  as a party to those  proceedings,  and  the proceedings may continue accordingly.     (3)  Any proceedings which, immediately before  the  ap- pointed  day,  are pending by or against  the  Secretary  of State  elsewhere than in the United King dom in  respect  of any liability of the Governor-General in Council or a  Prov- ince shall,-- *                 *            *      *     (b) in the case of proceedings in respect, of the  Prov- ince of Bengal, the Province of the Punjab, or the  Province of Assam, be continued by or against the Province which suc- ceeds to the liability  ............  "     The learned Subordinate Judge based his judgment entire- ly upon s. 4 of the Legal Proceedings 20 Order,  but the High Court has pointed out that  that  Order standing  by  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 Bengal,  but it could not enable ’him to continue  the  suit against  the new Province without invoking s. 12 (2) of  the Rights,  etc. Order, 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  the pending  proceedings.   In my opinion, this is  the  correct view.  It Was urged before us that a Court which had  juris- diction  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 to substitute the heir or  legal representative of that party.  Generally speaking, this must be so, but, in 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  provision  of  the Indian Independence Act or any of the Orders issued thereun- der.   The whole case thus rests on the proper  construction of  section  12(2) of the Rights, etc. Order.  In  the  High Court,  it was strenuously urged on behalf of the  appellant that  section 12(2) is fully applicable to the present  case on account of certain rights having been transferred to  the Province  of  East Bengal from the old Province  of  Bengal. This argument was reiterated in this Court also,  but it  is obviously untenable, for the reasons set out in the judgment of  the  High Court.  As has been pointed out  by  the  High Court, s. 12 (2) is of no help to the appellant, unless  the rights  in  question were transferred by  the  Rights,  etc. Order itself.  The learned counsel for the appellant however failed  to point out any provision of this Order,  by  which any of the rights referred to by him had been transferred.     He had therefore to fall back upon an alternative  argu- ment  based on s. 10(2) of the same Order; and the point  to be decided by this Court has thus 21 crystallized  into  one  simple issue,  namely,  whether  s. 10(2)  of  the Order can be of any avail to  the  appellant. Section 10 (2) must be read with s. 10 (1), and the material part of these two  sub-sections runs as follows :-     "10  (1) Where immediately before the appointed day  the Governor-General  in Council is subject to any liability  in respect  of an actionable wrong other  than breach  of  con- tract, that liability shall,--

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   (a)  where the cause of action arose wholly  within  the territories which, as from  that day, are the territories of the Dominion of India, be a liability of that Dominion;...     (2)  Where  immediately before the   appointed  day  the Province  of  Bengal  is subject to any  such  liability  as aforesaid, that liability shall,     (a)  where  the cause of action arose wholly within  the territories which, as from that day, are the territories  of the  Province of East Bengal, be  a liability of that  Prov- ince;     (b)  where the cause of action arose wholly  within  the territories which, as from that day, are the territories  of the  Province of West Bengal, be a liability of  that  Prov- ince; and     (c)  in  any  other case, be a joint  liability  of  the Provinces of East and West Bengal." *                *                 *              *     It  is quite clear that for the application  of  section 10(2), it is necessary to show inter alia that the  Province of  Bengal was subject to a liability in respect of  an  ac- tionable 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  it  is also so described in the Common Law Procedure Act, 1852  (15 &  16  Vict., c. 76); in Halsbury’s Laws of England  and  in many textbooks.  The difference between "a wrong independent of contract" and "a wrong other than a 22 breach of contract" is merely verbal and has little signifi- cance.   A tort is also often referred to as "an  actionable wrong" and the two expressions have been synonymously   used by  eminent writers including Sir Fredrick Pollock and  Pro- fessor Burdick of America, who has designated his well-known book  on  the law of torts as "a concise treatise  on  civil liability  for  actionable wrongs to person  and  property". Whether 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 assumed to be interchangeable.     There  is  also another matter to be borne  in  mind  in construing s. 10 (2) of the Rights, etc. Order, and that  is the  well-recognized fact that 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  inte- gral 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 the remedy is a common law action for unliq- uidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely  equitable obligation."    Professor Winfield, who did not see  eye  to eye  with Salmond on many matters connected with the law  of torts, gives the following definition of tortious  liability :--"  Tortious  liability arises from the breach of  a  duty primarily  fixed  by the law; this duty is  towards  persons generally  and  its breach is redressible by an  action  for unliquidated  damages."   In Underhill’s law of  torts,  the definition  runs as follows :--"A tort is an act or omission which  is unauthorized by law and independently of  contract infringes (i) some absolute right of another, etc., and (ii) gives  rise  to  an action for damages at the  suit  of  the

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injured  party."  The  learned author  after  attempting  to define  a  tort  in this way goes on to state:  "A  tort  is described in the Common 23 Law Procedure Act, 1852, as a wrong independent of contract. If  we use the word ’wrong’ as equivalent to violation of  a right  recognized and enforced by law by means of an  action for  damages, the definition is sufficiently  accurate,  but scarcely very lucid;for it gives no clue to what constitutes a  wrong or violation of a right recognized and enforced  by law.  It does, however, emphasize the fact that an essential characteristic of a tort is that the appropriate remedy  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."     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.     In the light of the foregoing discussion, it seems to me to  be  permissible  to infer, firstly, that s.  10  of  the Rights,  etc.  Order  refers to liability for  a  tort,  and secondly,  that  what  is contemplated  there  is  pecuniary liability such as liability to damages.  The word  "liabili- ty" has a wider meaning and also a narrower meaning, and the latter would appear to be the appropriate meaning where  the word is used in contrast to assets or something which corre- sponds  to  or is in the nature of assets, and where  it  is used  in  plural or is preceded by  an  indefinite  article, e.g.,  when the expression "a liability" is used.   We  must remember  that  the purpose of the Rights, etc.  Order  was, among  other  things, to divide or  distribute  the  rights, property  and   liabilities  of the  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 academic sense, is in  conso- nance  with  the purpose of 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 reading s. 13 (2) of the Rights,  etc. Order, which runs thus :-- 24     "Where  by  virtue of the preceding provisions  of  this Order  either of the Dominions or any Province becomes  sub- ject  to any liability, and it is just and equitable that  a contribution  towards that liability should be made  by  the other Dominion, or by another Province, as the case may  be, the  other Dominion shall make to the Dominion  or  Province primarily  subject  to the liability  such  contribution  in respect  thereof  as,  in default of an  agreement,  may  be determined by the Arbitral Tribunal."     It  should be noted that the words "becomes  subject  to any  liability" used in 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 that the word  "liabili- ty"  must have been used in the narrower sense of  pecuniary liability,   because otherwise no question  of  contribution towards  that  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  head- ing  of  which  is "Property,  Contracts,  Liabilities,  and Suits," and upon which the Rights, etc. Order appears tohave been  modeled.   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

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"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 in section 10 of the Rights,  etc. Order is that the 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  action- able  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 25 bear  in a legal context.  Proceeding on this  footing,  the first question to be asked is:  What is a wrong other than a breach  of  contract  ? In answering this  question,  it  is neither  possible  nor helpful to ignore all that  has  been said  in  authoritative textbooks and judgments  in  dealing with the question of a tort, because the foundation of every tort  is a wrong or a wrongful act.  It is true that at  one time some of the writers were inclined to think that  "there was  no 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  various--not limited or confined" (see Chapman v. pickersgill), and  that wherever  there is an injury by the invasion of a  right,  a wrong or a tort is committed.  This is often conveyed by the expression  injuria sine damnum.  The word "wrong" has  been used  in sections 17, 18 and 19 of the Code of Civil  Proce- dure,  and  the following extract  from  Mulla’s  commentary 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" in  the  same  sense, because  a wrong is, according to him, equivalent to  viola- tion  of a right recognised and enforced by law by means  of an  action for damages.  I think therefore that in  view  of all that has been written and said on the subject, it may be safely  stated  that a wrong must consist of  the  following elements :---     (1)  There  must be an act or omission amounting  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 being either  actual or presumed.     These two elements are denoted by two Latin expressions, injuria and damnum.  I have to include (1) [1762] 2 Wils. 146, per Pratt C.J. 4 26 presumed  damage under the second head, because  in  certain cases  such as trespass, assault, false  imprisonment,  etc. the  invasion  of a right may be so flagrant that  "the  law conclusively  presumes  damage." (See observations  of  Lord Wright M.R. in Nicholls v. Ely Beet Sugar Factory(1 ).  Such cases are often described as cases of absolute liability  or cases  where  a tort is actionable per se without  proof  of damage.

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   Let  us then see whether the two elements of an  action- able  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  fol- lowing way :--     The  issue  of a notice, which has been referred  to  in paragraph  S  of the plaint calling upon  the  appellant  to furnish  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  pro- ceeding 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 appellant and entitled him  to claim an injunction restraining the defendants from complet- ing  the  proceeding. 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,  the  li- ability  to  be so restrained must be deemed  to  have  been transferred  to  the Province of East Bengal, by  virtue  of section 10 of the Rights, etc. Order.     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  requirements  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 omission which must be  the foundation of every wrong, we find that all that is said  to have happened in this (1) [1931] 2 Ch. 84. 27 case is the issuing of a notice, which is not some  unautho- rised or prima facie unlawful act but is an act done  trader the authority of a statute and enjoined by it.  It has to be borne  in mind that the attack in the plaint is not  against the whole Act but all that is contended is that only a  par- ticular  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 legitimate act, but the issuing of a notice against  a Ruler is ultra vires.  But that is not enough  to constitute a wrong.  What has to be shown is that the  issu- ing of 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 infringes is not at all clear;  nor  has that been stated in the pleadings.   It  is conceded  that there has been no assessment and no  realiza- tion  of any tax and it could not also be disputed  that  it was open to the appellant to show to the assessing authority that he was not assessable at all.  To say that a notice  is the first step , in 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 fundamental  weakness of the appellant’s  case.   Construing "wrong"   as it should be construed, the essential thing  to 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 threatened or apprehended wrong,  but that  very expression shows that the suit has  been  brought before the alleged wrong was committed.     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

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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 is that the notice was likely to entail trouble and harassment to the appellant, but that by  itself will not constitute a wrong. 28     The  matter may be tested in another way.  As  Underhill points out," an act or omission which does not give rise  to an action for damages is not a tort."   To the  same  effect is  the  following observation in Salmond’s Law of  Torts:-" No  civil  injury  is to be classed as  a  tort  unless  the appropriate remedy for it is an action for damages.  Such an action  is an essential characteristic of every true  tort." Again,  Professor Winfield says that an action for  unliqui- dated damages is the one sure test of tortious liability and has  cited cases where this statement has received  judicial approval.  I think these statements will be equally true  if we drop the word "tort" and substitute the words" actionable wrong"  in its place.   It follows that one of the tests  of an actionable wrong is that while other remedies also may be open to the plaintiff, an action for damages is the  primary remedy  for  it. Can the appellant in this case  maintain  a suit  for  damages  on the allegations made by  him  in  his plaint? As I have already stated, a reference to the  plaint shows that no damages has been either alleged or claimed and it  has also not been stated that the appellant is  entitled to  any  damage.   In Rogers v.  Rajendro  Dutt(1)the  Privy Council  stated that "it is essential to an action in   tort that   the act complained of should be legally  wrongful  as regards  the   party complaining;  that is, it must prejudi- cially  affect him in some legal right." Again, it  was  ob- served  in  Kali   Kischen Tagoor v.  Jodoo  Lal  Mullick(2) that"there   may be, where a right is  interfered within ju- ria   sine  damno  sufficient to found an   action;  but  no action  can  be maintained if there is  neither  damnum  nor injuria."   It seems to me therefore that in the absence  of the  two  elements  to which I have referred,  no  case  for liability  in respect of an actionable  wrong has been  made out, and it is wholly inappropriate to invoke section 10  of the Rights, etc. Order in the present case.     It  appears that the whole of the appellant’s  arguments has been woven round the following two matters :-- (1) 8 Moore’s I.A. 103 at p. 135.            (2) 6 I.A. 190. 29 (1) Injunction is a recognized form of action; and (2)  Injunction has been asked for in the present  Case,  in connection  with  something which is said to  be  likely  to culminate in a wrong.     The  situation  as envisaged is  however very  different from what is contemplated in section 10 of the Rights,  etc. Order,  which  is  liability for an actionable wrong and not liability for something which may become a wrong in  future. It is to be remembered that there are two words used in  the section,  viz., actionable and wrong.  The mere fact that  a matter is actionable will not bring the case within the four corners of’ section 10 of the Order, unless all the elements of a wrong are established.    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. It cannot be disputed that injunction is one of the remedies in certain  cases of torts.  As 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

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many  of the more serious wrongs, such as  continuing  tres- passes and nuisances, where a wrongful act has been done and there was an intention to continue doing it. (See  Addison’s Law of Torts, 8th Edn. 111). Injunction will also be granted to prevent a threatened injury or wrong, if it can be  shown that the threatened act if 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 interfer- ence of the court in these cases is rounded on its jurisdic- tion  to give relief in the shape of preventive  justice  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 footings,  and  the liability to an  injunction   does.  not necessarily and always amount to "liability in respect of an actionable  wrong".  The two liabilities may possibly  coin- cide  where there is a continuing wrong and the   injunction is intended to stop its 30 continuance.  But, as I have already stated, where no  wrong has been committed, it would require considerable  straining of  the  meaning of familiar legal expressions to  say  that "liability  in respect of an actionable wrong" is  identical with "liability to an injunction in respect of an apprehend- ed  wrong".  "Liability in respect of an  actionable  wrong" means liability when an actionable wrong has been committed. It cannot mean liability to be prevented from a wrong  which is apprehended. 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.     I  should like to refer here to section 176 (1)  of  the Government of India Act, 1935, which provides as follows :-     "The  Federation may sue or be sued by the name  of  the Federation  of India and a Provincial Government may sue  or be sued by the name of the Province, 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 sued or been sued if this Act had not been passed."     This  section  is divisible 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 Provincial Government  may sue  or  be sued.  To understand the latter  provision,  the section  is to be 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-     "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 31 may have and take the same suits, remedies and  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.).      The  same provision is substantially  made  in  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 as  to whether,  and, if so, in what cases, the Secretary of  State would  be  liable  for a wrong or a tort  committed  by  the

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servants  of the Crown, and it has now been definitely  held that  he  may  be liable in certain cases.  So  far  as  the present discussion is concerned, the following three  points which  emerge  from a careful perusal of a large  number  of cases  bearing  on  the  subject,  seem to be material :--     (1)  The principles of the law of torts have  been  con- sistently  applied in all cases dealing  with the  liability of the Secretary of State for wrongs committed by the  serv- ants or agents of the crown or the Government.     (2) It is settled law that the Secretary of State cannot be  held liable for wrongs committed by the servants of  the Crown  in the performance of duties imposed by the  Legisla- ture:  [See Shivabhajan v. Secretary of State for  India(1). James Evans v. Secretary of State(2). Tobin v. Reg(3).  Ross v.  Secretary of State(4), in which this principle is  fully explained and the reasons upon which it is based, are clear- ly set out].     (3)  It is also well-settled that where a  statute  spe- cially  authorizes  a certain act to be done  by  a  certain person, which would otherwise be unlawful or actionable,  no action will lie for the doing of the act.     On  these principles, it would 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 an  action- able  wrong,  assuming that an actionable  wrong  has   been committed.  It  must   (1) I.L.R. 28 Bom. 314.      (3) 16 C.B.N.S. 310.   (2) A.I.R. 1920 Lah. 364.    (4) I.L.R. 1915 Mad. 434. 32 however  be stated that this  conclusion rests on  the.  as- sumption  that  my construction of an  actionable  wrong  is correct.     It was contended that in deciding the present appeal, we must assume all the facts stated in the plaint to be correct and therefore assume that the Bengal Act is ultra vires  and the  notice  issued was without authority.  I  have  already pointed out that 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, the learned Attorney-General  of  India, who  intervened on behalf of the Union of India in  the  ap- peal, supported the judgment of the High Court on three main grounds, which may be summed up as follows :--     (1)  that  the words used in section 10 of  the  Rights, etc. Order do not cover this case, because here no wrong has been actually committed and a threatened wrong is  different from an actual wrong;     (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  in  an infructuous decree and should not be allowed to be pursued.     I  have  already dealt with the first  point,  and  wish simply  to  add that the point which is now pressed  is  not specifically raised in the Memorandum of Appeal presented in this Court, nor is there any trace of it in the Statement of Case  filed by the appellant.  The point which is  mentioned in  the  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  trans- ferred  from the old Province of Bengal to the  Province  of East  Bengal.  There is however no mention of section 10  of the Order, nor is it stated that liability to an  injunction

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brings the case within that 33 section.  Thus, a notable feature of the case is that almost every argument which was advanced in the courts below is  to be  discarded,  and we are asked to base our decision  on  a point, which is not urged in the Statement of the Case,  and which,   in accordance with the rules  of  practice of  this Court,  cannot ordinarily be entertained.     The  second  point  urged by Mr. Setalvad  is  based  on section 65 of the Bengal  Act, which runs as follows :-     "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 assessment  and  ex facie  the appellant’s suit cannot be regarded as a suit  to set  aside  or modify any assessment. Mr.  Setalvad  however contends that this section must be read with the decision of the Privy Council in Raleigh  Investment  Co.  v.   Governor General  in  Council(1). That was a case  under  the  Indian Incometax Act, 1922, the provisions of which are similar  to the  provisions of the Bengal Act and which contains a  sec- tion  (section67)  which  is almost identical in terms  with section  65  of the latter Act.  In that case,  an  assessee paid  under  protest  the tax assessed  on  him  and    then brought a suit  for the following reliefs :-     (a)    a declaration that certain provisions of the Income-tax Act on which the assessment was based were  ultra vires and so the assessment was illegal;     (b)   an injunction restraining the. Income-tax  Depart- ment from making the assessments in future;     (c)  repayment of the sum assessed.     It  was  strongly contended upon the facts of  the  case that  section 67 of the Income-tax Act had  no  application, but  it was held by the Privy Council that "though  in  form the relief claimed did not profess to  (1) [1947] F.C.R. 59.  5 34 modify  or  set  aside  the  assessment,  in  substance   it did,because the repayment  could not be ordered  so long  as the  assessment stood’ ’.  It was further held that  an  as- sessment  made under the machinery provided 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 machin- ery which enabled an assessee to raise the question  whether or  not  a particular provision of the Act  bearing  on  the assessment made upon him was ultra vires and that  jurisdic- tion to question the assessment otherwise than by use of 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 :--    "In construing the section it is pertinent in their Lord- ships’  opinion,   to  ascertain whether  the  Act  contains machinery which enables an assessee effectively to raise  in the Courts the question whether the particular provision  of the  Income-tax Act bearing on the assessment made is or  is not  ultra vires. The presence of such machinery, though  by no  means  conclusive, marches with a  construction  of  the section which denies an alternative jurisdiction to  enquire into the same subject-matter.  The absence of such machinery

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would  greatly assist the appellant on the question of  con- struction  and, indeed, it may be added that, if there  were no  such machinery and if the section affected  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,  fell within the competence of the Legislature.         In  their Lordships  view it is clear that  the  In- come-tax  Act, 1922, as it stood at the  relevant,  date,did give the assessee the right effectively to raise  inrelation 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 complaint was that effect  had been given in the assessment 35 to  a  provision which he contended was  ultra  vires  might appeal  against  the assessment.   If he  were  dissatisfied with  the  decision on appeal--the details relating  to  the procedure are immaterial--the assessee could ask for a  case to  be stated on any question of law for 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 included in the questions of law which might be raised  by a case stated is any question as to the  validity of  any  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 appropriate 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.     In  conclusion  their Lordships would observe  that  the scheme of the Act is to set up a particular machinery 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 so ascertained and  only  by reference to such total income.  Under the Act (s. 45) there arises a duty to pay the amount of tax demanded on the basis of  that assessment of total income.  Jurisdiction to  ques- tion  the assessment otherwise than by use of the  machinery expressly provided by the Act would appear to be  inconsist- ent  with the statutory obligation to pay arising by  virtue of  the assessment.  The only doubt, indeed, in their  Lord- ships’  mind, is whether an express provision was  necessary in  order  to exclude jurisdiction in a civil Court  to  set aside or modify an assessment."     The authority of this decision was not questioned before us, but it was pointed out firstly that the present 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  as- sessment,  and secondly, that if the case is not covered  by section65,  the  decision of the Privy  Council,  which  was based on the construction of section 36 67  of the Income-tax Act, is not applicable. Mr.  Setalvad, replying to the first contention, has urged that we must not look merely to the letter of the section but to the  princi- ple  underlying it, and he has particularly referred  us  to the fact that, strictly speaking, the reliefs claimed in the above  mentioned case do not fall within the letter of  sec- tion  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  sub-

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stance 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 in arriving at their decision,  were influenced  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 question of ultra 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  Lord- ships  added: "The only doubt, indeed, in  their  Lordships’ mind, is whether an express provision was necessary in order to  exclude  jurisdiction in a civil court to set  aside  or modify  an  assessment."    think that, for the  purpose  of understanding the full scope of section 65, we must read not only  the first part of the section which bars suits to  set aside  or  modify an assessment, but also  its  latter  part which  provides that "no suit or other proceeding shall  lie against  any  officer  of the Crown  for  anything  in  good faith...intended  to  be done under this Act."   The  latter part of the section clearly excludes the jurisdiction of the court to prevent the Income-tax Officer from proceeding With an assessment which has already been started. Reference  may here  be  made  to  Secretary  of State v. Meyyappa  Chetti- ar(1) where it was held that the expression  "intended to be done"   signified  futurity so as to  preclude   suits   for injunction 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 (1) I1946] 14 I.T.R. 341, at 352. 37 could hardly have been the intention of the Legislature that though  that  Officer is not liable to  be  restrained  from proceeding  with an assessment, the provision which  ensures such  a  result may be rendered nugatory  by  permitting  an injunction  to be claimed against the Provincial  Government or the State.  In my opinion, it will be a strange construc- tion  of the section to hold that although it bars suits  to modify  or set aside an assessment  and though it  bars  all proceedings  to restrain the Officer who is making  the  as- sessment 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 Provincial  Government or the State at all in the  first  or the  second part of the section, but the section as a  whole concerns  only with excluding the jurisdiction of the  civil court in regard to certain acts done  or intended to be done in  connection with the assessment of  agricultural  income- tax, and,  on  a fair construction,  it must be held to  bar all suits in connection with such assessment.     In urging his third point,  the learned Attorney General relied  on an Ordinance passed  by  the Governor-General  of Pakistan on the 13th November, 1948, section 2 whereof  runs as follows :-     "No  judgment, decree, order or sentence referred to  in paragraph (3) of Article 4 of the Indian Independence (Legal Proceedings)  Order, 1947, shall affect the  legislative  or executive  right or authority of the Central or any  Provin- cial Government of Pakistan and where such right or authori- ty  has been at issue, the judgment,  decree, order or  sen- tence   shall  be  invalid and inoperative  subject  to  any decision that may be obtained from a competent court, of the Province concerned."     It was pointed out that by reason of this Ordinance, any

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decree  which may be obtained in the present suit  would  be wholly  infructuous and in this view this was a  meaningless litigation  which should not be allowed to continue.   There is force in this argument, 38 but  the point need not be pursued, as, in my  opinion,  the first  two points raised by the Attorney-General are  suffi- cient  to  meet  the principal contention  advanced  by  the appellant.      The  question of  submission  to  jurisdiction  appears to me to be unarguable upon the facts stated, and it was not seriously argued before us.  The Province of East Bengal did intervene and apply for permission to file a written  state- ment,  but the only statement made by it was that the  Court had  no  jurisdiction to proceed with the suit.   It  cannot therefore be held that it had submitted to the  jurisdiction of the Court.     I  have  tried to deal with the question posed  in  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 Income-tax Act by the Agricultural Income-tax Officer cannot be held to be an actionable wrong, because no right known to law can be said to have been infringed thereby.  One of the  recognized tests  of an actionable wrong is that, while other  remedies 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.  I am however certain that no  action for damages can be maintained on the  allegations made  by  the  appellant in his plaint.  I  think  that  the entire  argument urged on behalf of the appellant  has  been sufficiently  answered  by the High Court in  the  following passage,  which appears to me to sum up the  legal  position accurately and concisely :--     "Nor  was Dr. Sen Gupta right in relying on  article  10 (2)  for the transfer of liabilities. That Article  is  con- cerned  with  liability for an actionable wrong  other  than breach  of  contract  and it is impossible to  say  that  by serving a notice on the plaintiff under the Bengal  Agricul- tural Income Tax Act through one of its officers, the  Prov- ince of Bengal had committed an actionable wrong.   Assuming it exceeded  its powers or acted under an invalid  provision of law, the plaintiff may have a declaration to that effect, but the 39 act  complained  of cannot be said to have been  a  tortious act.  But even assuming it was, it is to be remembered  that the issue of the notice was in exercise of powers  conferred by the Act in relation to the Sovereign rights of the  Crown and  it  is elementary that the Crown or the  State  is  not answerable for even negligent or tortious acts of its  offi- cers done in the Course of their official duties imposed  by statute,  except where the particular act  was  specifically directed  and the Crown profited by its performance.   There is  no  such allegation in the plaint in the  present  case. The plaintiff could not therefore have sued the Province  of Bengal for an actionable wrong and the suit actually brought is not a suit of that character.  It is a suit for  ,certain declarations and an injunction and does not seek to make the Province  liable  for any actionable wrong in any  way.   No liability  for an actionable wrong is thus involved  in  the suit  and Dr. Sen Gupta cannot establish a right to  proceed against  the Province of East Bengal on the basis  that  the liability was transferred to that Province under article  10 (2) of the Order."

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    In the result, I would dismiss this appeal with costs.     MUKHERJEA J---I 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  ar- rived 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 centers round the  point as to whether the suit which was instituted by the plaintiff appellant against the Province 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 existence, as a part of the Dominion of Pakistan, upon the 40 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 Proceedings Order nor article 12 (2) of the Indian  Independence  (Rights,  Property  and   Liabilities) Order,  1947, could confer upon the plaintiff any  right  to continue the suit against the Province of East Bengal.   The Alipore  Court,  it has been held, has  no  jurisdiction  to proceed with the suit and no jurisdiction has been conferred upon  it by reason of the Province of East Bengal  appearing in the suit and putting in a written statement only for  the purpose  of challenging the competency of the court  to  try the  same.   It is the propriety of this decision  that  has been challenged before us in this appeal.     The  first point that requires consideration is  whether article 4 (11 of the Legal Proceedings Order has any  appli- cation to the facts of the present case. In my opinion,  the answer to this question must be in the negative and the view taken  by  the High Court on this point seems to  me  to  be perfectly sound and unassailable.     The  Legal  Proceedings Order as well as  several  other orders dealing with various constitutional matters 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 Independence Act which made it a duty on the part of  the  Governor-General to make  suitable  provisions  for removing  the  difficulties arising in connection  with  the transition to the new constitutional order.  As the two 41 Dominions came into existence under the  Indian Independence Act  passed by the British Parliament and these orders  were made  by  the Governor-General of India in exercise  of  the authority conferred upon him by the Independence Act,  there cannot be any doubt that the provisions  of these orders are fully binding on India as well as the Dominion of  Pakistan; and 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  ordinarily

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govern the relations between two sovereign States.     Article 4(1) of the Legal Proceedings Order is worded as follows:     "Notwithstanding  the creation of certain new  Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independ- ence Act, 1947,--     (1)  all  proceedings  pending  immediately  before  the appointed  day in any civil or criminal court (other than  a High  Court) in the Province of Bengal, the Punjab or  Assam shall be continued in that court as if the said Act had  not been  passed, and that court shall continue to have for  the purposes  of the said proceedings all the  jurisdiction  and powers which it had immediately before the appointed day."     The  clause of the article is couched in very wide  lan- guage  and under it all proceedings pending in any civil  or criminal  court  in the Province of Bengal,  the  Punjab  or Assam  immediately  before the 15th of August,  1947,  would continue  as  before and be heard and tried  by  the  courts before which they are pending irrespective of the fact  that such proceedings might relate to persons or property situat- ed  in  the other Dominion. I agree with the High  Court  in holding  that  comprehensive  though the  provision  is,  by itself  it can render no assistance to the plaintiff  appel- lant.  The suit was commenced here by the plaintiff  against the  old  Province  of Bengal as  the  party  defendant  and against 42 that  defendant the suit may be  continued if the  plaintiff so chooses under article 4(1) of the Legal Proceedings Order mentioned  above. But this would be of no benefit or  advan- tage  to  the  plaintiff for what he  wants  is  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 Bengal. Dr. Sen Gupta argues that  if  the court  has  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  provi- sions of law which regulate the conduct of such suits. There is  no provision of any municipal law which contemplates  or authorises  the  substitution  of one  sovereign  state  for another  in  a pending suit. If,  therefore,  the  plaintiff wants to proceed against the new Province of East Bengal, he must  find warrant for it in some of the provisions made  by the Governor General of Indian exercise of the powers vested in him under the Indian Independence Act.  Admittedly  there is no such provision in the Legal Proceedings Act and  reli- ance is, therefore, placed by the plaintiff upon article  12 (2) of the  Rights,  Property  and Liabilities  Order, 1947, which is in the following terms :--     "Where  any  Province  from which  property,  rights  or liabilities  are transferred by this Order  is,  immediately before  the transfer, a party to legal proceeding  with  re- spect to that  property or those rights or liabilities,  the Province which succeeds to the property, rights or  liabili- ties in  accordance  with the provisions of this Order shall be  deemed  to be substituted for the other Province   as  a party  to those proceedings, and the  proceedings may   con- tinue accordingly.     It  is not disputed that in order to attract the  opera- tion  of this provision, it is incumbent upon the  plaintiff to  show that the right or liability to which his  suit  re- lates  has been transferred from the Province of Bengal,  as it existed prior to the 15th of August, 1947,

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43 to  the  Province of East Bengal in Pakistan  in  accordance with the provisions of this Order. To establish this,  reli- ance  was  placed on behalf of the  plaintiff  upon  several provisions  of the Rights, Property and  Liabililies  Order, 1947,  and  none  of his contentions in  this  respect  were accepted  as sound by the learned Judges of the High  Court. In  this  court Dr. Sen Gupta took his stand on  a  two-fold ground.  He argued in the first place that for the   purpose of invoking the aid of article 12(2) of the Rights,  Proper- ty’  and  Liabilities  Order it is not  necessary  that  the transfer of the right and liability to which the  proceeding relates should 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  provi- sions of the Order and would attract the operation of  arti- cle 12(2).     This  argument is manifestly unsound and cannot  be  ac- cepted.    If the right referred to by the  learned  Counsel means the fight to impose tax on agricultural income  earned within its territory, the State of Pakistan did not  acquire such right by transfer from the Province of Bengal.  It is a right  inherent in sovereignty itself which the Dominion  of Pakistan  got under the Indian Independence Act.   Again  if the  right has been created by the Bengal  Agricultural  In- come-tax Act, the Province of East Bengal would certainly be entitled to avail itself of the provisions of that Act under section 18(3) of the Independence Act.  Apart from this, Dr. Sen  Gupta has not referred us to any agreement between  the two Dominions or the two Provinces or to the decision of any arbitral tribunal 44 under  which  the right in dispute in the present  case  was transferred to the Province of East Bengal.  This contention must therefore fail.     I have now to consider the other argument on this  point advanced   by the learned Counsel that the liability of  the Province  of Bengal in respect to the cause of  action  upon which the plaintiff’s suit had been rounded became a liabil- ity  of the Province of East Bengal under the  provision  of article 10(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  respect  of  an actionable  wrong other than a breach of contract,  the  li- ability shall     (a)  when  the cause of action arose wholly  within  the territory which as from that day are the territories of  the Province of East Bengal be a liability of that Province."     If  the allegations made by the plaintiff in the  plaint are assumed to be correct, the Province of Bengal was liable

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to   be  restrained from  proceeding  to  levy  agricultural income-tax  upon the plaintiff which was illegal,  as  being imposed by a statute which so far as it affected the  plain- tiff was unconstitutional and void. The question is  whether this  can be said to be a liability in respect of an action- able  wrong  other  than a breach  of  contract  within  the meaning of  that expression occurring in article 10 set  out above.  It 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  contract" is  synonymous with ’tort’.  It has held that the  act  com- plained of cannot be a tortious act and 45 even  if it is so, no action would lie upon it, it being  an established proposition of law that the State is not answer- able  for  any  tortious acts of its officers  done  in  the course of official duties imposed by a Statute.  It seems to me that the learned Judges have attached a narrow and  some- what  restricted  meaning to the words of the  Article  men- tioned  above and that the plain language of  the  provision read in the light of the context would demand and justify  a wider and more liberal interpretation.  In my opinion, there can  be  an 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 understood 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.     The  word "wrong" in ordinary legal language  means  and signifies  "privation  of right".  An act  is  wrongful   it infringes the legal right of another, and "actionable" means nothing else than that it affords grounds for action in law. Ordinarily,  the word "injury" is used in the same sense  of actionable  wrong,  while "damage in  contrast  with  injury means loss or harm occurring in fact whether  actionable  as injury  or not"(1).  In English law "tort" is a  species  of civil  injury and so is a breach of contract; but it is  not quite correct to say that the two together exhaust all forms of actionable wrongs known to English law. It is true that a tort  is often described as wrong independent  of  contract. As  a  legal definition this description, as  I  shall  show presently,  is  not  quite accurate and  unless  taken  with certain limitations is apt to be misleading.     It  is  well  known that in England  the  principles  of modern  law of contract and tort emerged solely out  of  the intricacies  of the old "Forms of Action’" under 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 Ltd v. Vetch [1942] A.C. 435, 442. 46 and trespass on the case.  The latter was more elastic  than the  former and was capable of being adapted to new  circum- stances  and  to new types of injuries. There was  no  clear line  of demarcation in those days between  contractual  and tortious  liability and in fact tile aCtiOn  of  "assumpsit" -which  was the method of enforcing simple contracts  was  a variety of action on the case and was made use of for recov- ery  of compensation from a party who failed to perform  his agreement  on  the ground that such failure  amounted  to  a wrong in the nature of deceit(1).     When the principles of substantive law gradually  extri- cated  themselves  from the entanglements of  for  realistic

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procedure,  a  distinction was drawn between  liability  for breach  of contract and that for tort.  In a breach of  con- tract the right violated owes its origin to the agreement of the parties while in tort the right infringed is one created by  tile general law of the land. From about the  middle  of the 19th century the assumption current in England was  that all  civil causes of action must be rounded either  on  con- tract or on tort and all injuries which were not breaches of contract  would come under the category of torts.  This  as- sumption as Sir Frederick Pollock observes has no historical foundation  to rest upon(2).  In 1852 the Common Law  Proce- dure  Act was passed and a tort was described in the Act  as "a wrong independent of contract".  It cannot be denied that this  mode  of expression became very common in  legal  par- lance;  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 with  certain limitations;  taken  literally  it would not  be  a  correct statement of law.     It has been observed by Underhill in his "Law of  Torts" that a description like this would be accurate in law if the word "wrong" is taken in the restricted and technical  sense as equivalent to "violation of a right     (1)  Vide  Pollock on Contract, 12th  Edition,  p.  111; Winfield on Tort pp, 3-4 (4th Edition).  (2) Vide Pollock’s Article on Tort, Encyc. Brit. Vol.22, p. 307. 47 recognised  and  enforced by law by means of an  action  for damages".   Taken  in this form, 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  f9r  it  is  an  action  for damages(1).  It is really this characteristic that differen- tiates a tort from other forms of civil injury or actionable wrong  even though the latter are unconnected with any  con- tract.   There may be other remedies besides damages  avail- able  to the plaintiff against a tortfeasor in the shape  of restitution,  injunction  etc.,  but no  "civil  injury"  as Salmond  observes "can be classed as tort unless the  appro- priate  remedy  for it is an action for  damages.   Such  an action   is  an  essential  characteristic  of  every   true tort."(2)  Other remedies like injunction or restitution can be claimed by the plaintiff but it is solely by virtue of  a right to damages that the wrong complained of can be regard- ed as a tort.  By way of 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 refusal to perform a statu- tory duty is not a tort 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 sum of money.  A breach of trust is certainly an  actionable wrong   independent  of contract and the  beneficiaries  can claim compensation if the trustee has misappropriated  trust property;   but  as  the claim cannot  be  for  unliquidated damages,  it  is not regarded as a  tort(3).   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 the special jurisdiction of  equity courts.   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   (1) Vide Underbill’s Law of Torts. 16th Edn., p. 4.

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(2) Vide Salmond’s Law of Torts, 10th Edn., pp. 7 & 8.  (3) Vide Winfield’s Law of  Tort, p. 11 48 to  demarcate  the boundary of the law of torts  in  English common law.     Thus  tort  is  a civil injury other than  a  breach  of contract which is capable of sustaining an action for unliq- uidated  damages  in  a court of law.   If  the  appropriate 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.     By way of illustration I may refer to the case of Halsey v.  Brotherhood(1) which was decided by Sir  George  Jessel. Both the plaintiff and defendant in this case were engineers and  held  patents for the manufacture of certain  types  of engines.   The plaintiff brought an action against  the  de- fendant  alleging  that the latter had threatened  to  bring legal proceedings against several persons who were actual or intending purchasers of engines  from the plaintiff  assert- ing  that the engines manufactured  by  the  plaintiff  were infringements of the defendant’s patent.  There was a  claim for  damages  and also for injunction.  It was held  by  Sir George Jessel that the plaintiff could not claim damages  on the  basis of slander of title, as he nowhere  alleged  that the defendant’s statements or representations were not  bona fide.  But even though the statements had been made 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 proper  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 from threatening the plaintiff’s  customers.  This threat to customers  was  thus held to be an actionable wrong but as the remedy was injunc- tion  and not damages, it was not a tort in the legal  sense of the term.     In  the case before  us  the act  of the   Province   of Bengal  complained  of   by the  plaintiff is  not   a  tort according to  the  technical rules (1) 15 Ch. D. 514. 49 of English  law,  but  is  certainly an  actionable wrong as it  can be sued upon in a court of  law and remedied  in  an effective  manner.  The appropriate remedy for the wrong  is not unliquidated damages which is essential in a tort but an injunction  restraining the defendant from  proceeding  with the illegal assessment or from realising the amount assessed if assessment has actually taken place.     If, as the plaintiff alleges, the relevant provision  of the  Bengal  Agricultural Income-tax Act,  under  which  the plaintiff  is  sought to be assessed, is illegal  and  ultra vires,  the issuing of the notice by the Income-tax  Officer is certainly the first and the essential step in the commis- sion 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 remedy by way of injunction can  be claimed against a State or Province unless the   act complained  of  amounts to an ’act of State’ in  its  strict sense  and  is not purported to be done in exercise  of  the powers  conferred upon the Government by any municipal  law. As the avowed object of the Rights, Property and Liabilities Order  is  to distribute and adjust as far as  possible  the

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rights, properties and liabilities between the two Dominions which were to come into being under the Indian  Independence Act, the language of the Order should be construed as liber- ally  as  possible, and there is no warrant for  putting  an interpretation upon the words used more restricted than they would bear in English law.     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 was issued  by  the Income-tax  Officer of Dacca which is in Pakistan  territory though it was received by the plaintiff’s manager at Agarta- la  which  was  outside British India at that time.  In  any event, the Province 50 of  East Bengal cannot escape liability on this  ground.  It would  be  jointly liable with the Province of  West  Bengal under article 10(2) (c) of the Rights, Property and Liabili- ties Order.   In  view of my decision on this point, the other  question raised by Dr. Sen Gupta as to whether the defendant  submit- ted to the jurisdiction of the Alipore Court or not does not fall for determination.     The  learned Attorney-General, who intervened on  behalf of  the  Union  of India,  put  forward  certain  additional 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 Agricultural Income-tax  Act  con- stitutes  a bar to the suit which, therefore, should not  be allowed to ’continue.   The other material point is that the suit cannot but result in an infructuous decree, and  conse- quently  there is no justification for allowing it  to  pro- ceed.   It is pointed out that an Ordinance has been  passed by the GovernorGeneral 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  Independence (Legal Proceedings) Order,  1947, shall, in any way,  affect the  legislative  or  executive right or  authority  of  the Central  or any Provincial Government of Pakistan and  where such  authority  or right has been at issue,  the  judgment, decree  or  order shall be invalid  and  inoperative".   The first point has been dealt with by my learned brother Patan- jali  Sastri  J. in his judgment and I concur  with  him  in holding  that section 65 of the Bengal Agricultural  Income- tax Act has no application to the present case.  The  second point, I must say, embarrassed me to some extent and if  the effect  of  the  Ordinance is, as has  been  stated  by  the learned  Attorney-General,  a doubt may  legitimately  arise whether it would be worthwhile for the plaintiff to  proceed with the suit and whether it would not be more to his advan- tage  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 this character could  override  the provisions of the 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.                                       Appeal allowed. Agent for the Appellant: R.R. Biswas. Agent for the Respondent: P.K. Bose. Agent for the Inervener: P. A, Mehta.

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