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Rights

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35. (1) The Secretary of State in Council may sue and 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).

of State in
Council.
[21 & 22

Vict. c.
106, ss.
65, 68.

22 & 23

Vict. c. 41, s. 6.]

(2) Every person has the same remedies against the Secretary of State in Council as he might have had against the East India Company if the Government of India Act, 1858, had not been passed (b).

(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. O. 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 lic. 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. & O. 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 it 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. 1 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.

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A suit or action against the Secretary of State in Council may some. times 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.

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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), 1 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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in delivering judgement, remarked that the general principle of law could not, with any colour of reason, be disputed. The transactions of independent States between each other are governed by other laws than those which municipal courts administer. Such courts have neither the means of deciding what is right nor the power of enforcing any decision which they make.' It was held that the act complained of fell within this principle. Of the propriety or justice of that act,' remarked Lord Kingsdown, 'neither the Court below nor the Judicial Committee have the means of forming, or the right of expressing if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy.'

In the Coorg case, Raja of Coorg v. East India Company (1860), 29 Beav. 300, the East India Company had made war against the Raja of Coorg, annexed his territory, and taken his property, including some of the Company's notes. The raja filed a bill against the East India Company, but it was held that the Company had acted in their sovereign capacity, and the bill was dismissed.

In the Delhi case, Raja Salig Ram v. Secretary of State for India in Council (1872), L. R. Ind. App. Supp. Vol., p. 119, the question was as to the validity of the seizure, after the Indian Mutiny, of estates formerly belonging to the titular King of Delhi. Here also it was held that the seizure was an act of State, and as such was not to be questioned in a municipal court.

In Sirdar Bhagwan Singh v. Secretary of State for India in Council (1874), L. R. 2 Ind. App. Cas. 38, an estate belonging to a former chief in the Punjab had been seized by the Crown, and the question was whether it had been so seized in right of conquest or by virtue of a legal title, such as lapse or escheat. It was held that the seizure had been made in right of conquest, and as such must be regarded as an act of State, and was not liable to be questioned in a municipal court.

Forester and others v. Secretary of State for India in Council (1872), L. R. Ind. App. Supp. Vol., p. 10, is a case on the other side of the line. In this case the Government of India had, on the death of Begum Sumroo, resumed property formerly belonging to her, and the legality of their action was questioned by her heirs. It appeared that the Begum had very nearly, but not quite acquired the position of a petty Indian sovereign, but that she was a British subject at the time of her death, and that the seizure in question was not the seizure, by arbitrary power, of territories which up to that time belonged to another sovereign State, but was the resumption, under colour of a legal title, of lands previously held from the Government by a subject under a particular tenure, on the alleged determination of that tenure; and that consequently the questions raised by the suit were recognizable by a municipal court.

Doss v. Secretary of State for India in Council (1875), L. R. 19 Eq. 509, was a case arising out of the extinction of a sovereign power in India, though not in consequence of hostilities. It was a suit brought in the English Court of Chancery by creditors of the late King of Oudh against the Secretary of State as his successor. It was held that as the debt had been incurred by the late king in his capacity as sovereign, and could not have been enforced against him as a legal claim, it did not, upon the annexation of the kingdom of Oudh, become a legal obligation upon the East India Company, and therefore was not, by the Act of 1858, transferred as a legal obligation against the Secretary of State; and on this ground a demurrer to the bill was allowed.

In the case of Grant v. Secretary of State for India in Council (1877), 2 C. P. D. 445; 46 L. J. C. 681, a demurrer was allowed to an action by an officer of the East India Company's service who had been compulsorily retired under the order of the Government of India. Here the plaintiff was clearly a British subject, but nothing turned upon this. For the order was held, as an act of administration in the public service, to be within the high powers of government formerly entrusted to the East India Company (not as a trading company, but as a subordinate Government) and now to be exercised by the Government of India. In effect the question was not of a sovereign act, but of the powers of high (but still subordinate) officers of Government.

In Kinlock v. Secretary of State for India (1879), L. R. 15 Ch. D. 1 and 7 App. Cas. 619, which was one of the Banda and Kirwee cases, it was held that a royal warrant granting booty of war to the Secretary of State for India in Council in trust to distribute amongst the persons found entitled to share it by the decree of the Court of Admiralty, did not operate as a transfer of property, or create a trust, and that the defendant, being merely the agent of the sovereign, was not liable to account to any of the parties found entitled.

In Walker v. Baird, [1892] App. Cas. 491, which was an appeal to the Privy Council from the Supreme Court of Newfoundland, it was held that the plea of 'act of State,' in the sense of an act, the justification of which on constitutional grounds cannot be inquired into, cannot be admitted between British subjects in a British colony. In this case the plaintiff complained of interference with his lobster factory, and the defendant, a captain of one of Her Majesty's ships, pleaded that he was acting in the execution of his duty, in carrying out an agreement between the Queen and the Republic of France. But the defence was not allowed.

In Cook v. Sprigg, [1899] A. C. 572, it was held that grantees of concessions made by the paramount chief of Pondoland could not, after the annexation of Pondoland by the Queen, enforce against the Crown the privileges and rights conferred by the concessions. The language used in the Tanjore case was quoted with approval.

In West Rand Central Gold Mining Company Limited v. The King, [1905] 2 K. B. 391, it was held, on demurrer to a petition of right, that damages could not be recovered against the Crown in respect of gold

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