SECY OF STATE Vs. SRIGOBINDA CHAUDHURI

JUDGEMENT

(1.) This suit was brought on 14 August 1926. The plaint is exceedingly badly drawn and contains a good deal of extremely inartificial matter its chief character being a lack of reasonable particulars on all essential points; but an examination of the plaint and of a certain other document--a petition which the Court was asked to regard as containing further particulars of the claim reveals the following as the alleged cause of action: It appears that the plaintiff at all material times was the owner of a revenue paying estate and that some time in 1919 his estate became involved in debt; whereupon he applied to the Court of Wards to declare him to be a "disqualified proprietor," (that is to say, proprietor disqualified to manage his own property) and to take over the management of his estate with a view to extricating it from its financial difficulties. The Court made the order on 7 June 1919. It proceeded to appoint a Manager of the estate and in that way the estate came under the Court of Wards until it was released on 18 August 1923. We are not concerned with the reasons for the release. The defence of the Court of Wards states that the debts had been understated and that the estate proved to be inextricable from its financial difficulties. But it was released for one reason or another in August 1923. It further appears that as required by the Court of Wards Act the usual procedure was adopted by which an account was made out and given to the plaintiff, also that a list of papers was made out and certain papers were delivered to the plaintiff in compliance with the rules made under the Act. That narrative being presupposed, the plaintiff's cause of action is in substance that the Manager and the staff employed under him have mismanaged the affairs of the estate. Nothing is clear in the plaint hat it does appear that the complaint is with regard to the Manager and the staff employed under the Manager appointed by the Court of Wards and the claim which the plaintiff makes, when examined, comes to this: He says that if the Manager and those under him had done their duty they could have realised a thousand rupees more than they did in connexion with mutation. The complaint is that they "realized and could realize" which appears to mean that they in fact realized more, that the Manager or his subordinates kept the money in their own pocket, but no particulars are available as to that. He further says that they did not spend on settlement operations as much as they claim to have spent but a thousand rupees less and also that they did not spend upon suits as much as they claim to have spent but a thousand rupees less; that would seem to mean that the Manager or his subordinate have got credit for a thousand rupees too much in their account: in other words, that they have got in each case a thousand rupees in their own pockets. He further says that they could have realized by instituting suits a thousand rupees more in the way of rent than they in fact did.

(2.) Before us Mr. Gupta who represented the plaintiff as appellant has clarified the matter very considerably and he has discussed this case stating that it is no part of the plaintiff's case that the Government itself has any property of the plaintiff in its hands and he has also disclaimed an argument which is to be found in the judgment of the lower appellate Court to the effect that the Government was managing the estate for reward as though it were conducting a sort of business of managing estates. Several issues were settled in the trial Court but the only issue tried was the question whether the suit as framed could be brought against the Secretary of State; and, as very often happens, while the decision of a preliminary issue of this character would be comparatively simple and easy on a proper plaint the chief difficulty in deciding it arises where the plaint is so drawn that it is not easy to see what the cause of action is. I will however for the purposes of this judgment, take what I have already stated as being an exposition (as best I can make it) of the plaintiff's cause of action. I should add that there is a complaint also that certain papers have not been delivered back to the plaintiff. What those papers are does not clearly appear. I do not think that this matter however requires separate discussion. Now, the leading case on this question is of course the case of the P. and O. Steam Navigation Co. V/s. Secy. of State [1861] 5 B.H. C.R. App.1 which was decided in 1861. That was a case where injuries were done to a horse of the plaintiffs by reason of the negligent conduct of certain workmen employed under the Government in connexion with the dockyard at Kidderpore. It was an action in tort and the matter having come before this Court on a reference from the Small Cause Court and it being contended that the Secretary of State for India in Council was not liable, this Court decided that there was a distinction between a business or mercantile concern carried on by the Bast India Company whether for its own private or for public benefit and act done in connexion with governmental power or powers which could not be lawfully exercised save by the sovereign or an individual delegated by the sovereign to exercise such powers. Although therefore the action was in tort and of such a character that in England no petition of right could be utilized it was held that the plaintiffs had a right to sue the Secretary of State because the act done was done in carrying on an ordinary business and not in the exercise of governmental power. I will examine the cases later;, but for the moment, keeping that distinction in mind, I would refer to the position of the Court of Wards.

(3.) Now, the origin and history of the Court of Wards is of course, a consequance of the fact that in 1765 the East India Company obtained the Dewani from the Moghul Emperor Shah Alam. This gave the fiscal administration of that part of the country which it covered and in connexion with the fiscal administration it gave also in substance the power of civil justice. From that time down to a date which may be put at 1858 the East India Company clearly had a dual character--the character of Sovereign and character of trader--and in 1833 came what is called the Charter Act by which it ceased to be a mercantile corporation altogether and really held the Government of India in trust for the Crown. In 1858 came the Government of India Act in which statute Section 65 is to the same effect as Section 32 of the present Government of India Act; that is to say, any suit that could have been brought against the East India Company prior to the Act of 1858 can now be brought properly against the Secretary of State with the result that the public revenue will be answerable for the claim.