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(6) Every contract for or relating to the manufacture, sale, purchase, or supply of goods, or for or relating to affreightment or the carriage of goods, or to insurance, may be entered into, made, and signed on behalf of the Secretary of State by any person upon the permanent establishment of the Secretary of State, duly empowered by the Secretary of State in this behalf, subject to such rules and restrictions as the Secretary of State prescribes. Contracts so entered into, made, and signed are as valid and effectual as if entered into as prescribed by the foregoing provisions of this section. Particulars of all contracts so entered into as aforesaid must be laid before the Secretary of State in such manner and form and within such times as the Secretary of State

prescribes. Power to 33.-(1) The Governor-General in Council and any local execute

Government (a) may, on behalf and in the name of the ances, &c., Secretary of State in Council, and subject to such provisions in India. [22 & 23 or restrictions as the Secretary of State in Council, with the

concurrence of a majority of votes at a meeting of the Council 33 & 34

of India, prescribes, sell and dispose of any movable or immovVict. c. 59, s. 2.] able property (6) whatsoever in India, within the limits of

their respective governments, for the time being vested in His Majesty for the purposes of the government of India, or raise money on any such property by way of mortgage, and make proper assurances for any of these purposes and purchase or acquire any property, movable or immovable (b), in India within the said respective limits, and make any contract for the purposes of the Government of India Act, 1858 (c).

(2) Every assurance and contract made for the purposes of this section must be executed in such manner as the Governor-General in Council by resolution (d) directs or authorizes, and if so executed may be enforced by or against the Secretary of State in Council for the time being.

(3) Neither the Secretary of State nor any member of the Council of India, nor any person executing any such assurance

Vict. c. 41,

ss. I, 2.

or contract, is personally liable in respect thereof, but all liabilities in respect of any such assurance or contract are borne by the revenues of India.

(4) All property acquired in pursuance of this section vests in His Majesty for the service of the government of India.

(a) The words or any officer for the time being entrusted with the government, charge, or care of any presidency, province, or district' have been construed in practice as including only lieutenant-governors and chief commissioners, and not' district officers ’in the special India sense. They are, therefore, represented in the Digest by the expression 'local Government,' as defined by s. 124 of the Digest.

(6) The words in the Act are ' real or personal estate.'

(c) Soon after the passing of the Government of India Act, 1858, it became necessary to legislate for the purpose of determining how contracts on behalf of the Secretary of State in Council were to be made in India. Before that Act it had been held that contracts made in England by the East India Company as a governing power could only be made under seal (Gibson v. East India Company, 5 Bing. N. C. 262). In India, at least in the presidency towns, certain documents required sealing for the purpose of legal validity. The real seal of the Company was in England, but copies were kept in Calcutta, Madras, and Bombay, and documents sealed with these copies were generally accepted as sealed by the Company. Contracts not under seal were made in India on behalf of the Company by various officials. The transfer of the powers of the Company to the Secretary of State in Council disturbed all these arrangements, and the Government of India Act, 1859 (22 & 23 Vict. c. 41), was accordingly passed for determining the officers by whom, and the mode in which, contracts on behalf of the Secretary of State in Council were to be executed in India. The Act was amended by the East India Contracts Act, 1870 (33 & 34 Vict. c. 59).

(d) See the resolution of the Government of India in the Home Department of March 28, 1895, specifying the officers by whom particular classes of instruments may be executed.

34. The Governor-General in Council, and any other Power to person authorized by any Act passed in that behalf by the escheated

dispose of Governor-General in Council, may make any grant or dis- property,

&c. position of any property in India accruing to His Majesty by [16 & 17 forfeiture, escheat, or otherwise, to or in favour of any

relative

15, s. 27.] or connexion of the person from whom the property has accrued, or to or in favour of any other person.

As to escheat, see note (c) on s. 22 above.

Vict. c.

Vict. c.

Rights 35.-(1) The Secretary of State in Council may sue and and liam bilities of be sued as well in India as in England by the name of the Secretary, Secretary of State in Council, as a body corporate (a). Council.

(2) Every person has the same remedies against the [21 & 22

Secretary of State in Council as he might have had against 106, ss. 65, 68.

the East India Company if the Government of India Act, 22 & 23 1858, had not been passed (6). Vict. c. 41, s. 6.]

(3) The property and effects for the time being vested in His Majesty for the purposes of the government of India, or acquired for those purposes, are liable to the same judgements and executions as they would have been liable to in respect of liabilities lawfully incurred by the East India Company if the Government of India Act, 1858, had not been passed.

(4) Neither the Secretary of State nor any member of the Council of India is personally liable in respect of any contract entered into or other liability incurred by the Secretary of State or the Secretary of State in Council in his or their official capacity, nor in respect of any contract, covenant, or engagement of the East India Company, but all such liabilities, and all costs and damages in respect thereof, are borne by the revenues of India.

(a) Although the Secretary of State is a body corporate, or in the same position as a body corporate, for the purpose of contracts, and of suing and being sued, yet he is not a body corporate for the purpose of holding property. Such property as formerly vested, or would have vested, in the East India Company, now vests in the Crown. See the remarks of James, L. J., in Kinlock v. Secretary of State in Council (1880), L. R. 15 Ch. D. 1. The Secretary of State in Council has privileges in respect of debts due to him in India similar to those of the Crown in respect of Crown debts in England (The Secretary of State for India v. Bombay Landing and Shipping Company, 5 Bom. H. C. Rep. 0. C. J. 23). (b) An action does not lie against the Crown in England.

The only legal remedy of a subject against the Crown in England is by petition of right.

Until 1874 it was doubtful whether a petition of right would lie except for restitution of property detained by the Crown. But in that year it was decided that a petition would lie for damages for breach of contract (R. v. Thomas, L. R. 10 Q. B. 31); and that decision has been followed in subsequent cases. A petition of right does not

lie for a tort except where the wrong complained of is detention of property, the reason alleged being the maxim that the king can do no wrong. For a wrong done by a person in obedience or professed obedience to the Crown the remedy is against the wrongdoer himself and not against his official superior, because the ultimate superior, the Crown, is not liable. See Clode, Law and Practice of Petition of Right, and R. v. Lords Commissioners of the Treasury, 7 Q. B. 387, and Raleigh v. Goschen, [1898] 1 Ch. 73.

A petition of right does not lie in respect of property detained or a contract broken in India.

In the case of Frith v. Reg., L. R. 7 Ex. 365 (1872), the suppliant, by petition of right, sought to recover from the Crown a debt alleged to have become due to the person whom he represented from the Sovereign of Oudh, before that province was annexed in 1856 to the territories of the East India Company. But it was held that, assuming the East India Company became liable to pay the debt by reason of the annexation of the province, the Secretary of State for India in Council, and not the Crown, was, under the provisions of the Government of India Act, 1858, the person against whom the suppliant must seek his remedy, and that consequently a petition of right would not lie. It was pointed out that the remedy by petition of right was inapplicable, as it was plain that the revenues of England could not be liable to pay the claim, and that consequently a judgement for the suppliant would be barren. See also Doss v. The Secretary of State for India in Council, L. R. 19 Ex. 509, and Reiner v. Marquis of Salisbury, L. R. 2 Ch. D. 378.

Under the enactments reproduced by this section there is a statutory remedy against the Secretary of State in Council, and that remedy is not confined to the classes of cases for which a petition of right would lie in England. See the judgement of Sir Barnes Peacock, C. J., in the case of the P. & 0. Company v. Secretary of State for India in Council (1861), 2 Bourke 166; 5 Bom. H. C. R. Appendix A; and Mayne's Criminal Law of India, pp. 299 sqq. On the other hand would appear that, apart from special statutory provisions, the only suits which could have been brought against the East India Company, and which can be brought against the Secretary of State in Council as successor of the Company, are suits in respect of acts done in the conduct of undertakings which might be carried on by private individuals without sovereign powers. See Nobin Chunder Dey v. The Secretary of State for India, I. L. R. i Cal. 11 (1875); Jehangir M. Cursetji v. Secretary of State for India in Council (1902), I. L. R. 27 Bom. 189; Shivabhajan v. Secretary of State for India, I. L. R. 28 Bom. 314.

A suit or action against the Secretary of State in Council may sometimes be met by the plea that the act complained of falls within the category of 'acts of State,' and accordingly cannot be questioned by a municipal court. A plea of this kind was raised successfully in several cases by the East India Company with respect to proceedings taken by them, not in their character of trading company but in their character of territorial sovereigns. (As to the distinction between these two characters, see Gibson v. East India Company (1839), 5 Bing. N. C. 262; Raja of Coorg v. East India Company (1860), 29 Beav. 300, at p. 308; and the cases noted below.) And the principles laid down in these cases have been followed in the case of similar proceedings against the Secretary of State in Council.

The question whether the East India Company were acting as a sovereign power or as a private company was raised in Moodalay v. The East India Company (1785), i Bro. C. C. 469 (referred to in Prioleau v. United States (1866), L. R. 2 Eq. 659), but the first reported case in which the Company successfully raised the defence that they were acting as sovereigns, and that the acts complained of were 'acts of State,' appears to have been The Nabob of the Carnatic v. East India Company (1793), 1 Ves. Jr. 371 ; 2 Ves. Jr. 56; 3 Bro. C. C. 292 ; 4 Bro. C. C. 100. This was a suit for an account brought by the Nabob of Arcot against the East India Company. On the hearing it appeared by the Company's answer that the subject matter of the suit was a matter of political treaty between the Nabob and the Company, the Company having acted throughout the transaction in their political capacity, and having been dealt with by the Nabob as if they were an independent sovereign. On this ground the bill was dismissed.

The same principle was followed in the case of The East India Company v. Syed Ally (1827), 7 Moo. Ind. App. 555, where it was held that the resumption by the Madras Government of a ‘jaghire' granted by former Nawabs of the Carnatic before the date of cession to the East India Company and the regrant by the Madras Government to another, was such an act of sovereign power as precluded the Courts from taking cognizance of the question in a suit by the heirs of the original grantee.

The case of Bedreechund v. Elphinstone (1830), 2 State Trials, N. S. 379; 1 Knapp P. C. 316, raised the question as to the title to booty taken at Poonah, and alleged to be the property of the Peishwa. It was held that the transaction having been that of a hostile seizure made, if not flagrante yet nondum cessante bello, a municipal court had no jurisdiction to adjudge on the subject; and that if anything had been done amiss, recourse could be had only to the Government for redress. This decision was followed in Ex pte. D. F. Marais (1902),

A. C. 109.

In the Tanjore case, Secretary of State in Council of India v. Kamachee Boye Sahaba (1859), 13 Moo. P. C. 22, a bill was filed on the equity side of the Supreme Court of Madras to establish a claim as private property to certain property of which the Government had taken possession, and for an account. The acts in question had been done on behalf of the Government by a commissioner appointed by them in connexion with the taking over of Tanjore on the death of the Raja Sivaji without heirs. It was held that as the seizure was made by the British Government, acting as a sovereign Power, through its delegate, the East India Company, it was an act of State, to inquire into the propriety of which a municipal court had no jurisdiction. Lord Kingsdown,

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