dedol-hf/india-case-legal-rag huggingface dataset:
in this respect by certain enactments.
    The other branch of the contention is that under section
176  of  the Constitution Act, no action of  this  character
could be brought against the Province of Bombay, and in  any
view  the  expressions "sue or be sued" as used  in  section
176, do not include an application for a writ of certiorari.
    As  regards the first branch of the argument it may  may
be pointed out at the outset that no definition of the  term
"Provincial  Government" has been given in the  Constitution
Act,  1935.  Part  1II of the Act  deals    with   Governors'
Provinces.   Section 49 (1) which occurs in this  Part  pro-
vides that  "the executive authority of a Province shall  be
exercised  on behalf of His Majesty by the Governor,  either
directly  or through officers subordinate to him."   Section
50 lays down that" there shall be a Council of Ministers  to
aid  and  advise the Governor in the exercise of  his  func-
tions,  except in so far as he is by or under this  Act  re-
quired  to  exercise  his functions or any of  them  in  his
discretion."  Section 51 provides inter alia how the  minis-
ters are to be chosen and section 52 deals with the  special
responsibilities  of the Governor.  Section  59  (1)provides
that  "all executive action of the Government of a  Province
shall  be  expressed  to  be  taken  in  the  name  of   the
Governor."The  Governor  is thus the executive head   of   a
Province  and all executive acts are done in his name.  This
does not mean that Government of a Province is vested solely
in  the  Governor, or that the  expressions  "Governor"  and
"Provincial  Government" have the same meaning and  connota-
tion in the Constitution Act.
689
It  is  only a form adopted for purpose  of  convenience
that  in a Governor's Province, all acts of  the  Provincial
Government  would  be done in the name of the  Governor,  no
matter  wherever under the Constitution, the  responsibility
might actually lie. Section 3 (43) (a)of the General Clauses
Act  (as amended by the Adaptation Order Of 1947)  which  is
relied  upon in this connection does not in any  way  affect
this position. It says that" as respects anything done or to
be  done after the establishment of the Dominion  of  India,
'Provincial  Government' shall mean in the Governor's  Prov-
ince  the Governor." This is a mere description as  will  be
apparent  from  the 'fact that under the  same  clause,  the
expression" Provincial Government" used with reference to  a
Chief Commissioner's Province means the Central  Government.
Section 806 (1) of the Constitution Act however is based  on
an  absolutely different principle and it is  not  concerned
with  the  acts of any Provincial Government  no  matter  in
whose name the acts are expressed to be taken.  The  section
runs as follows:
    "No proceedings whatsoever shall lie in, and no  process
whatsoever shall issue from, any court in India against  the
Governor-General,  against  the Governor of a  Province,  or
against the Secretary of State, whether in a personal capac-
ity  or  otherwise,  and, except with the  sanction  of  His
Majesty  in Council, no proceedings whatsoever shall lie  in
any  court  in India against any person, who  has  been  the
Governor-General, the Governor of a Province, or the  Secre-
tary  of State in respect of anything done or omitted to  be
done by any of them during his term of office in performance
or purported performance of the duties thereof:
    Provided that nothing in this section shall be construed
as restricting the right of any person to bring against  the
Federation,  a  Province,  or the Secretary  of  State  such
proceedings  as are mentioned in Chapter III of Part VII  of
this Act."
    The language of the section is perfectly clear and indi-
cates that its whole object is to grant personal
690
immunity to the Governor-General, the Secretary of State  or
the Governor of a Province from all proceedings in or  proc-
esses from any court in India, both during the term of their
office  and  afterwards.   The protection is  given  in  the
interests of the administration itself, for it would  really
be  productive of disastrous consequences if  the  Governor-
General  or  the Governor of a Province could be  hauled  up
before  any court in India in respect of acts  committed  by
them  in  their personal capacity or otherwise.   That  this
protection  is  purely  personal follows  clearly  from  the
latter part of the section which interdicts  any  proceeding
against the  Governor General, the Governor of a Province or
the  Secretary  of State, after they  have ceased to  be  in
office,  for  any act of omission or commission  during  the
term   of their office.  This part  of  the   section  would
be  wholly   devoid  of any meaning, if the  Governor  of  a
Province,  is  taken to be synonymous  with  the  Provincial
Government.  The Governor of a Province is certainly a  part
of  the  Government of the Province and formally he  is  the
mouthpiece  of all executive acts done in the Province,  but
section  306  (1)  does not purport to protect  any  of  the
official acts.  It grants a personal exemption to the Gover-
nor from any judicial processes in India, no matter  whether
they arise out of official or non-official acts committed by
him,  and this exemption continues even after he has  ceased
to be in office, except where  His Majesty chooses to  relax
the rule.  I agree with the learned Judges of the High Court
in holding that even the possibility of a misconstruction of
this  section has been removed by the proviso  engrafted  on
it,  which lays down in clear terms that the  provisions  of
the section shall not be construed as restricting in any way
the  right of any person to bring against the Federation,  a
Province, or the Secretary of State  such proceedings as are
mentioned in Chapter III of Part VII of the Act.
The material provision in Chapter III of Part VII of the
Act  is  that contained in section 176, and I will  come  to
that presently; but before I do so, it would
691
be  convenient to dispose of the other point raised  by  the
learned Attorney-General in connection with the first branch
of  his argument.  The point raised is that apart  from  the
protection  afforded by section 306 (1) of the  Constitution
Act  there is a limitation on the powers of the High  Court,
to grant processes against the Provincial Government and  we
have  been referred in this connection to section 1  of  the
East  India Company Act (21 George III, Ch. 17) and  certain
provisions in the Act of 1823 under which the Supreme  Court
was  established  in Bombay.  This contention again,  in  my
opinion, would be of no avail, if as I have  stated   above,
the   Provincial  Government is not identifiable. with   the
Governor  personally.  It  may be mentioned  here  that  the
Supreme Court was established  at  Fort  William in   Bengal
under the Statute (13 George III, Ch. 63) commonly known  as
the  Regulating Act, and the Charter establishing the  Court
was  issued  by King George III on March 26,1774.  It  is  a
historical  fact  that  there was conflict  of  an  unseemly
character  between the Judges of the Supreme Court  and  the
Executive  Government  headed  by  the  Governor-General  in
Council.  In view of this conflict an Act was passed in 1781
(21 George III, Ch. 17) section 1 of which provided that the
Governor General in Council in Bengal "should not be subject
to the jurisdiction of the Supreme Court for or by reason of
any  act  or order or any other matter of  thing  whatsoever
counselled or ordered or done by them in their public capac-
ity  only."   Bombay got its Supreme Court  in  1823,  under
Statute, 3 George IV, Ch. 71, and clause VII laid down "that
it  shall be lawful for His Majesty to establish  a  Supreme
Court  at Bombay, to be invested with 'such powers  and  au-
thorities  and  privileges,  limitations,  restrictions  and
control  .........  as the said Supreme Court of  Judicature
at  Fort  Wiliam  in Bengal by virtue of  any  law,  now  in
force  .........is invested or subject to."
   The  Charter  expressly provided that "the  Governor  and
Council  at Bombay and the Governor-General and  Council  of
Fort William shall enjoy the same
692
exemptions  and no other from the authority of  the  Supreme
Court  to  be erected at Bombay as is enjoyed  by  the  said
Governor  in Council at Fort William from the Judicature  of
the    Supreme   Court   of   Judicature    there    already
established."   Assuming that these powers and  disabilities
of the Supreme Court continued even after the  establishment
of  High  Courts by reason of section 9 of the  High  Courts
Act,  186  1,  and that these  limitations  were  implicitly
recognised  in section 106 of the Government of  India  Act,
1915, and section 223 of the Act of 1935, it is quite  clear
from the language of the provisions set out above that  they
granted  only a personal exemption to the Governor and  Mem-
bers of the Council.  As the Governor in his personal capac-
ity  is  different  from the  Provincial  Government,  these
provisions  are  of no assistance to the  appellant  in  the
present case.  It would be seen that these exempting  provi-
sions  were  substantially embodied in section  110  of  the
Government of India Act, 1915, and were later on placed in a
much  more  comprehensive  form in section 306  (1)  of  the
Constitution  Act.  As the jurisdiction of the  old  Supreme
Court was inherited by the Original Side of the three Presi-
dency  High Courts, section 110 of the Government  of  India
Act, 1915, granted  exemption to the  Governor-General,  the
Governor   and  members of the  Council  from  the  Original
Jurisdiction  of  High Courts both civil and  criminal,  the
only exception being when there were charges of treason  and
felony  against these officials. Section 306 (1) of the  Act
of  1935 is more comprehensive and includes proceedings  and
processes of any kind either civil or criminal, and  started
either in the Original Side of a High Court, or in any other
Court  in  the  mofusil.  As there were no  members  of  the
Council  under  the Constitution Act of 1935,  there  is  no
mention of such members in section 306 (1) of the Act.
   The  first  branch of the contention  advanced  by  the
learned  Attorney-General   cannot  therefore  be supported.
     As regards the other  branch of the appellant's conten-
tion the decision really  hinges on the true
693
construction of section 176 of the Constitution Act. Section
176 (1) stands 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 or
a  Provincial Legislature enacted by virtue of  powers  con-
ferred  on that Legislature by this Act, sue or be  sued  in
relation  to their respective affairs in the like  cases  as
the  Secretary of State in Council might have sued  or  been
sued if this Act had not been passed."
    The first part of the sub-section relates to parties and
procedure, and lays down in what form a suit is to be insti-
tuted  against Government in respect to matters relating  to
the  Federation  or  Provinces of India.   The  latter  part
enacts that subject to any statutory provision that might be
made,  suits would lie against the Provincial Government  in
the name of the Province, and against the Federal Government
in the name of the Federation of India, in relation to their
respective affairs, where such suits would have laid against
the Secretary of State in Council if the Act of 1935 had not
been passed.  The present proceeding which has been  started
against the Province of Bombay, would therefore be competent
if  such proceeding could have been instituted  against  the
Secretary  of  State in Council under the law  as  it  stood
prior to the passing of the Constitution Act.
The  right and liability of the Secretary of  State  for
India  to sue or to be sued were created for the first  time
by section 65 of Act 21 and 22 Victoria, Ch. 106, which  was
passed  in 1858 on the transfer of the Government  of  India
from the East India Company to the Crown.  The section  runs
as follows:
    "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
694
may  have and take the same suits, remedies and  proceedings
legal and equitable against the Secretary of State in  Coun-
cil  of  India,  as they could have done  against  the  said
company."
    The object of the Act was to transfer to Her Majesty the
possession  and  government of the  British  territories  in
India  which were then vested in the East India  Company  in
trust  for the Crown; but as the Queen could not be sued  in
her  own court, it was provided that the Secretary of  State
in Council as a body corporate would have the same rights of
suit  as the East India Company had and would be subject  to
the  same liability of being sued as previously attached  to
the East India Company.
    This  provision  of the Act of 1858  was  reproduced  in
section  32  of the Government of India Act,  1915,  in  the
following terms:
"(1)  The Secretary of State in Council may sue  and  be
sued  by the name of the Secretary of State in Council as  a
body corporate.
    (2)  Every person shall have 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, and this Act had not been passed."
   The question therefore narrows down to this as to wheth-
er an action of the character that has been brought  against
the  Province of Bombay could have been brought against  the
East India Company prior to 1858.  In my opinion the  answer
to this question must be given in the affirmative.  All  the
relevant authorities on this point have been very  carefully
reviewed by the learned Judges of the Bombay High Court, and
I  am in entire agreement with the reasons assigned by  them
in  support of their conclusion.  It is true that  the  East
India  Company was invested with powers and functions  of  a
two-fold  character.   They had on the one  hand  powers  to
carry  on  trade as merchants; on the other  hand  they  had
delegated  to  them  powers to acquire,  retain  and  govern
territories
695
to raise and maintain armies and to make peace and war  with
native powers in India.  But the liability of the East India
Company  to be sued was not restricted altogether to  claims
arising  out  of undertakings which might be carried  on  by
private persons; but other claims if not arising out of acts
of  State could be entertained by civil courts, if the  acts
were done under sanction of municipal law and in exercise of
powers  conferred  by such law.  The law on this  point  was
discussed very ably by the Madras High Court in Secretary of
State  v.  Hari Bhanji (1).  The learned  Chief  Justice  in
course of his judgment contrasted the decisions in Secretary
of  State v  Kamachee Boye Saheba (2) with that in  Forester
v.  Secretary of State(3). In the first of these  cases,  on
the death of Raja Sivaji who enjoyed the status of a  sover-
eign the East India Company seized the whole of his property
as  an escheat to the Paramount Power.  A bill was filed  by
the  widow  of  the deceased to recover  possession  of  the
properties.  It was held by the Privy Council that the  suit
was not maintainable.
    Lord Kingsdown laid down that the real point for  deter-
mination  in  such  cases was whether ''it  was  seizure  by
arbitrary power on behalf of the Crown of the dominions  and
property  of a neighbouring State, an act not  affecting  to
justify  itself on grounds of municipal law; or  whether  it
was  in  whole or in part a possession taken  by  the  Crown
under colour of legal title of the property of the late Raja
of  Tanjore in trust for those who by law might be  entitled
to  it on the death of the last possessor.  On the facts  of
the  case  it was held that the seizure was an  exercise  of
sovereign power effected at the arbitrary discretion of  the
company  by the aid of military force and  consequently  the
court  had no jurisdiction to try the case.    In the  other
case  the  Government had recovered the lands  held  by  one
Begum  Sumaroo as a Jagirdar after her death and the  plain-
tiff filed a suit to recover the property, on the basis of a
deed   of  will  executed  by
 (1)  [1882] 5 Mad. 273.           (2) [1859] 7 M.I.A.  461.
[1871-72] I.A. Supplement Vol., p. 10.
696
her. It was held by the Privy Council that as Begum  Sumaroo
was  not a Sovereign Princess and the act of resumption  was
done  under colour of legal title of lands  previously  held
from  Government by a subject,  it was not an act of  State,
and the suit was consequently triable by a civil court.   As
was  observed  by Lord Atkin in Eshugbayi Eleko  v.  Officer
Administering   the  Government of Nigeria ,   "This  phrase
(act of State) is capable of being misunderstood. As applied
to  an act of the sovereign power directed  against  another
sovereign  power or the subjects of another sovereign  power
not  owing temporary allegiance, in pursuance  of  sovereign
rights  of waging war or maintaining peace on the high  seas
or  abroad,  it may give rise to no legal  remedy.   But  as
applied to acts of the executive directed to subjects within
the territorial jurisdiction it has no special meaning,  and
can  give no immunity from the jurisdiction of the court  to
enquire into the legality of the Act."
  Much  importance, cannot in my opinion be attached to  the
observations  of Sir B. Peacock in peninsular  and  Oriental
Steam  Navigation Company v. The Secretary of State (2).  In
that  case the only point for consideration was  whether  in
the  case of a tort committed in the conduct of  a  business
the  Secretary of State for India could be sued.  The  ques-
tion  was answered in the affirmative.  Whether he could  be
sued  in cases not connected with the conduct of a  business
or commercial undertaking was not really a question for  the
court to decide.
    In  the  case before us the act of  requisition  which
purports  to have been done under the sanction of  municipal
law, and in exercise of powers conferred by such law  cannot
be  an act of State.  An action on the ground of the  powers
being illegally exercised could certainly have been  brought
against  the Secretary of State, if the Constitution Act  of
1935 had not been passed.
       I  am  not  much impressed by  the  argument  of  the
learned  Attorney-General that the expression ''sue  or
(1)[1931] A.C. 662, 671.     (2) [1861] 5 Bom. H.C.R. App,1.
697
be sued" occurring in section 176 does not include an appli-
cation  for a writ of certiorari.  The expression  'sue'  in
its plain grammatical sense connotes  the "enforcement of  a
claim  or civil right by means of legal  proceedings."   The
proceedings may be initiated by a plaint or by a petition of
motion,   and  it cannot  be  said  that  what  section  176
of   the Constitution  Act  contemplates  is  a   proceeding
which   must  begin  with a plaint  and end in a  decree  as
laid down in the Civil Procedure Code.
    No  argument can also in my opinion be rounded upon  the
fact that there was no express mention of prerogative  writs
in clause (13) of the Charter by which the Supreme Court was
first established in Bengal. The Supreme Court was  invested
under  clause  (5) of the Charter with all  the  powers  and
privileges of the Court of King's Bench in England and these
undoubtedly  included  the power of issuing  certiorari  and
other  prerogative writs.  There are reported cases to  show
that  the writs of mandamus were issued to the Directors  of
East  India Company by the Court of King's Bench in  England
(1).
On the whole, it seems to me that the view taken by  the
learned Judges of the appeal Bench of the Bombay High  Court
is right, and this appeal should stand dismissed with costs.
    DAS J.--In my opinion this appeal should be allowed.  As
I  have taken a view different from those of  three  eminent
Judges  of  the  Bombay High Court and some  of  my  learned
brethren  of this Court, for all of whom I always  have  the
highest respect, I consider it right to give the reasons for
my conclusions in some detail.
    This  appeal is directed against the judgment and  order
of an appellate Bench of the Bombay High Court (Chagla  C.J.
and Tendolkar J.) affirming an order of Bhagwati J.  sitting
on the Original Side of that Court. The order appealed  from
is a mandate in the nature of
 (1) Vide The King v. The Directors of East India Company, 4
B.  and Ad. 580; The King v. The Court of Directors  of  the
East India Company, 4 M & S.279
698
a  writ of certiorari quashing an order of requisition of  a
certain premises in Bombay made by the appellant in exercise
of powers vested in it by Bombay Ordinance No. V of 1947.
    There is no substantial dispute as to the facts  leading
up  to the proceedings out of which the present  appeal  has
arisen.  They have been sufficiently stated in the Judgments
just delivered and need not be recapitulated by me.
    Learned  Attorney-General  appearing in support  of  the
present  appeal.  has confined himself to two  main  points,
namely, (i) that, having regard to the provisions of  Bombay
Ordinance V of 1947 under which the impugned order was made,
a  writ of certiorari does not lie at all, and (ii)  that  a
writ  of  certiorari does not lie against  the  Province  of
Bombay.   Mr.  Seervai appearing for  the  respondents  has,
quite  properly,  not  sought to raise any  of  the  several
subsidiary  points  which  were  unsuccessfully    canvassed
before  the  Courts  below and his endeavour   has  been  to
support  the  judgment under appeal on the two  points  men-
tioned above and to reinforce them with fresh reasoning  and
rulings.
    The writ of certiorari is a very well known ancient high
prerogative  writ  that used to be issued by  the  Court  of
King's  Bench to correct the errors of the  inferior  Courts
strictly so called.  It is with this writ that the Judges of
the  King's  Bench used to exercise control over  Courts  of
inferior jurisdiction where the latter acted without  juris-
diction or in excess of it or in violation of the principles
of  natural justice. Gradually the scope of these writs  was
enlarged so as to exercise control over various bodies which
were  not, strictly speaking,  Courts  at  all,  but   which
were   by statute vested with powers and duties that  resem-
bled, those of the ordinary inferior Courts. These statutory
bodies  were called  quasi-judicial bodies and  their  deci-
sions  were  called  quasi-judicial acts and  the  Court  of
King's  Bench freely began to bring up the records of  these
quasi-judicial  bodies,  examine them and, if  thought  fit,
quash them.  The real reason for this
699
extension  of  the scope of the writ of certiorari  was  the
distrust  with  which the Judges looked  upon  the  numerous
statutory bodies that were being brought into existence  and
vested  with  large powers of affecting the  rights  of  the
subject and this extension was rounded on the plausible plea
that  these statutory bodies exercised quasi-judicial  func-
tions.   The law is now well settled that a writ of  certio-
rari will lie to control a statutory body if it purports  to
act without jurisdiction or in excess of it or in  violation
of  the principles of natural justice, provided that,  on  a
true  construction of the statute creating the body, it  can
be said to be a quasi-judicial body entrusted with  quasiju-
dicial functions.  It is equally well settled that a certio-
rari will not lie to correct the errors of a statutory  body
which is entrusted with purely administrative functions.  It
is, therefore, necessary, in order to determine the correct-
ness  of  the  order appealed from, to  ascertain  the  true