Chakravartti, J.:— The point involved in this appeal is a short one, but the facts which have given rise to it make a long story. That story must, however, be told in order that the true character of the point may be appreciated.
2. The Appellant is the owner of Touzi No. 1 of the Burdwan Collectorate to which appertains a taluk called Khosalpur. This taluk was settled in putni by a predecessor of the Appellant to a predecessor of Defendant No. 3. The putni fell into arrear, and on the 15th May, 1939, it was sold for a sum of Rs. 11,000. The arrears for which the taluk was sold amounted to Rs. 10,917-6-1p. From the sale price of Rs. 11,000, the sum of Rs. 110 was deducted as costs of the sale under clause Second of sec. 17 of the Putni Regulation (Regulation VIII of 1819), leaving a balance of Rs. 10,890 which was kept in the Collectorate in revenue deposit. It will be noticed that the balance left after deducting the costs of the sale was less than the amount of the arrears, and consequently the whole of the amount was payable to the Appellant under clause Third of sec. 17 of the Putni Regulation. No part of this money could be said to belong to Defendant No. 3, the defaulting putnidar. Meanwhile, on the 19th August, 1938, Defendant No. 2, who was a creditor of Defendant No. 3, had filed a money suit against him and subsequently obtained a decree for Rs. 2,416-7-3p. This decree was put into execution in Execution Case No. 23 of 1938 of the Court of the Second Subordinate Judge of Hooghly, and a prayer was made in that execution case for attachment of an amount equal to the decretal amount out of the sale proceeds of the putni, then lying in deposit with the Collector. This prayer was obviously made on the basis that the sale proceeds of the putni were the property of Defendant No. 3. On that application being made, the Executing Court on the 26th June, 1939, issued a prohibitory order under Or. 21, r. 52 of the Code of Civil Procedure upon the Collector, giving him the usual option to prefer any objections that he might deem fit to take. The Collector, however, did not prefer any objection, but on the other hand, intimated to the Court on the 7th July, 1939, that the order had been noted. On the 17th July, 1939, the Appellant applied to the Collector for payment to him of the amount lying in deposit, but the Collector is said to have turned down the application with the remark that he would rather respect the prohibitory order than make the payment as prayed for. Nothing further was thereafter done by the Appellant to get this order of the Collector set aside. On the 21st July, 1939, the executing court wrote to the Collector for the money, and on the next day, the money was actually sent. On the 25th August, 1939, the Collector offered to the Appellant the remaining sum of Rs. 8,473-8-9, and this amount the Appellant accepted under protest. He then applied to the District Judge of Hooghly for an order against Defendant No. 2 to pay back the money which he had meanwhile withdrawn and on the 22nd November, 1939, the District Judge passed an order, asking Defendant No. 2 to re-deposit the amount. This order was not complied with, and the result was that the Appellant failed to get back the money.
3. The present suit was commenced on the 21st September, 1940, against three Defendants. Defendant No. 1 was the Province of Bengal; Defendant No. 2 the decree-holder who had taken away the money on the footing that it belonged to Defendant No. 3, and Defendant No. 3, the defaulting putnidar. The Appellant's case was that the sum of Rs. 2,416-7-3 which had been taken away by Defendant No. 2 was never the property of Defendant No. 3, and the Collector had been grossly negligent in paying out the sum to Defendant No. 2. Accordingly he sought to recover the sum from the three Defendants, both jointly and severally.
4. We are only concerned with the defence put forward by the Province of Bengal. Their defence was that there had, in fact, been no negligence on the part of the Collector, and that assuming that there had been negligence, the Appellant was not entitled to any relief on that account against the Province of Bengal. The bar of limitation was also pleaded.
5. The trial Court held that the entire sale proceeds belonged to the Appellant and could not legally be attached on the footing that they belonged to Defendant No. 3 and could not legally be paid by the Collector to Defendant No. 2, but the Court also held that the Collector had acted, not negligently but under the pressure of a judicial order. As regards the Subordinate Judge himself, the Court held that he was protected by the Judicial Officers' Protection Act. So far as the claim against the Province of Bengal was concerned, the trial Court held that the suit was barred by limitation under Art. 2, Schedule I of the Limitation Act as it was a suit for compensation which had not been brought within 90 days of the date when the illegal payment had been made. On the merits too, the Court came to the finding that the Province of Bengal was not liable in tort for the negligence of the Collector. The Court, however, made a decree against Defendant No. 2, but dismissed the suit against Defendant No. 1 on contest and against Defendant No. 3 ex parte.
6. On an appeal by the present Appellant, the District Judge held that the appeal was incompetent on the somewhat extraordinary ground that the Appellant, having prayed for a decree against either of the three Defendants and having got a decree against one of them, had no further grievance and could not maintain the appeal. Proceeding next to deal with the merits, the learned Judge held that the suit was barred against the Province of Bengal as held by the trial Court and on the ground which that Court had given for its decision. The learned Judge, however, held that the Collector had been grossly negligent in paying out the money to Defendant No. 2, but thought that for such negligence the Province of Bengal was not answerable in tort. The reason given was that the Province of Bengal had no control over the actions of the Collector in conducting the putni sale and dealing with the sale proceeds, that the Province had not specifically authorised the Collector to act in the way he had done, and lastly, that the Province had derived no profit from the Collector's negligence.
7. All these findings, except the finding that the Collector had been negligent, were challenged before us, but the view we are taking on the main question makes it unnecessary that we should deal with the minor questions in detail or at all. We would, however, make two observations. In deciding both whether the Plaintiff could maintain the appeal and whether his suit was one for compensation, the learned Judge proceeded on a textual construction of the plaint and engaged himself in enquiring whether the plaint had used the word “or” instead of “and”, and whether in describing the money which was sought to be recovered, such language has been used as could only be applied to a claim for compensation. Apart from the general rule that the pleadings in this country are not yet to be construed in too strict a manner, we are of opinion that questions of this kind are not to be treated as matters of pleading. The second observation we would make relates to a criticism made by the learned Judge of the form of the issue relating to the liability of the Province of Bengal. That issue was in the following form:
“Was there any wrongful act or negligence on the part of the Collector or his officers in paying the money under orders of the Civil Court and can the Province of Bengal be made liable?”
8. In the argument on this issue, it was sought to be made out that the position of the Province of Bengal was that of a bailee or a trustee, and the criticism which the learned Judge makes of the issue is that no issue was framed as to whether the Province of Bengal was in the position of a trustee or a bailee. It is only necessary to point out that parties are not required to join issue on every one of the specific legal grounds upon which they ask for or resist a certain relief. Indeed, if the issue had been framed in the way suggested by the learned District Judge, it would have been an extremely ill-framed issue.
9. We may now turn to the examination of the main question which is whether, it being found that the Collector was negligent in paying out the money to Defendant No. 2 to the detriment of the Appellant, the Province of Bengal is liable to make good the loss as the master or the principal of the Collector. Unfortunately, as regards this question, the judgments of the Courts below give no indication of any awareness of the true principle by which the matter falls to be judged. They engaged themselves in a somewhat pointless and profitless relaying of certain reported decisions on the facts of the present case, without regard to the peculiar status of the Province of Bengal which places it altogether apart from an ordinary bailee or an ordinary principal or a private trustee Before us too the learned Advocate for the Appellant started point after point, only to abandon them after a great deal of time had been taken, till at least he was led to the one material question. On that question, he made a single submission to which reference will be made later.
10. The law as to the vicarious liability of the Crown in India for acts or omissions of its subordinate officers or agents is now fairly well established. The text of the law is to be found in sec. 65 of the first Government of India Act of 1858, reenacted as sec. 32 of the Government of India Act of 1919 and sec. 176 of the present Act of 1935, and it may he summarised by saying that every person has the same remedy against the Crown as he might have had against the East India Company, if the Government of India Act of 1858 and the subsequent Government of India Acts had not been passed. The effect of these successive provisions is to preserve the rights, but only those rights, which the subject had against the Crown in the days of the East India Company immediately before the enactment of the Government of India Act of 1858. What those rights were have been explained in a number of cases which form a commentary on the text which I have mentioned, and since that text has never varied, the principles developed by the case-law remain unaffected. In other words, since the rights have always been the same and since even under the present Act, the rights are what they have always been, an elucidation of those rights may properly be looked for in the decided cases explaining them, irrespective of the dates when those decisions were given.
11. The root authority on the point, from which almost the entire body of subsequent case-law has sprung, is the decision of Sir Barnes Peacock in the case of The Peninsular and Oriental Steam Navigation Company v. The Secretary of State for India(1). Complimentary to that decision is the decision in Nabin Chunder Dey v. The Secretary of State for India(2) and the two decisions, between themselves, exhaust the whole ground,—the portion which Sir Barnes Peacock could only cover by obiter dicta having been, by this case, brought under direct decision. Among other decisions of this Court, reference may be made to the case of McInerny v. Secretary of State for India(3) and Secretary of State for India in Council v. Sreegobinda Chaudhuri(4), the latter of which contains an illuminating discussion, both of principle and case-law, by Sir George Rankin. Of peculiar importance to this case is the decision in The Secretary of State for India in Council v. Ramnath Bhatta(5) the facts of which are precisely similar. Among the decisions of other High Courts, reference may be usefully made for an exposition of principle to the decision of Wallis, J., as he then was, in A.M Ross v. Secretary of State for India in Council(6).
12. The principles deducible from these and other cases, as we understand them, are as follows: A distinction must be made between acts done by the Crown in pursuance of ventures which a private individual might undertake equally well, and acts done in exercise of Governmental powers which could not be lawfully exercised save by the sovereign authority or persons to whom the sovereign authority might delegate those powers. Acts of the former class are mercantile operations or operations of like kind in which the East India Company actually engaged itself before and even after it had acquired sovereignty. The reason why an action lies against the Crown with reference to acts of this type is, on the one hand, a historical reason, because actions could, in fact, be brought against the East India Company at the relevant time, and on the other hand, a statutory reason, because a specific provision, saving the right of action in such cases, has been made in all the successive Government of India Acts. Acts of the second class fall under two categories. One class are acts of State, properly so called, such as making a treaty, commandeering private property for war purposes, or quelling civil disturbances by force. Such acts are never justiciable in Courts of law, and since the Crown itself is not answerable for such acts in its Courts, there is no principle upon which it could be made liable for the acts of its officers or subordinates. The immunity is absolute. The other class of acts are those which are done under the sanction of some municipal law or statute and in exercise of powers thereby conferred. This class can be sub-divided further into two classes: (i) those consisting in detention by the Crown of land, goods or chattels belonging to the subject and (ii) those done by officers of the Crown in the discharge of their official duties. With regard to acts of the first sub-class, an action would lie in the Courts in India, and it would seem that even in England, a Petition of Right would lie. With regard to acts of sub-class (ii), however, no action would lie except in cases where it can be proved that the impugned act had been expressly authorised by the Crown or that the Crown had profited by its performance. The reason why no right of action lies except on proof of special authorisation by the Crown is that, in the absence of such proof, the act is considered to have been done in exercise of the power or the discretion vested in the officer by the relevant law and not in pursuance of any implied authority derived from the Government These principles can be enlarged or curtailed by statute in the Dominions and Colonies, and so far as India of the present day is concerned, the Government of India Act of 1935 makes the rule contained in sec. 176 expressly subject
* To any provisions which may be made by any Act of the Federal or a provincial legislature.”
13. If such be the legal position, it may be thought that the law unduly favours the Crown and it is partial to the law-maker. In fact, however, it is not so. It is to be remembered that the liability of the Crown re-acts on the subjects, and any damages awarded against the sovereign authority must be paid out of the public revenues. There is no justice or equity in making the general body of subjects pay for a wrong done to one of them by an officer employed by the Government. The reason for the immunity of the Crown in such cases has nowhere been better stated than in a passage in Story on Agency which has often been quoted but will bear repetition. The passage is to the effect that the Government itself is not responsible for
* Misfeasances, or wrongs, or negligences, or omissions of duty of the subordinate officers or agents engaged in the public service, for it does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs, since that would involve it, in all its operations, in endless embarrassments and difficulties and losses which would be subversive of the public interests.”
14. The law relating to this matter, as it has to be applied in the present case, is to be found, as I have already stated, in the relevant provisions of the Government of India Act, as elucidated in a series of decisions. We are, therefore, utterly unable to comprehend what assistance could be derived from such cases as the decision of the Privy Council in The Eastern Trust Company v. McKenzie Mann & Co., Ltd.(7) or Farnell v. Bowman(8) which the Appellant cited before us. The first of them which dealt with an Act of the Government of Nova Scotia, contains some observations on the duty of the Crown towards the Court, but proceeds to hold that for the laches committed in that case, the Crown was not answerable. The second of the cases merely states that the immunity of the Crown at common law can in Colonies be curtailed by appropriate statutes enacted by the Colonial Legislature.
15. Turning now to the facts of the present case, it is obvious that the act of the Collector in holding the putni sale and dealing with the sale proceeds cannot be said to have been an act which a private individual could also do. The Appellant was at considerable pains to establish before us that the Collector, in all his actions relating to putni sales, is controlled by the Commissioner and the Board of Revenue, and thus ultimately controlled by the Crown. In trying to prove this, he was trying to prove the obvious. The status of the Collector, as a servant of the Crown, was never disputed. But if the Appellant's object was to make out that the holding of putni sales is an act of State by the Crown itself, and the Collector merely functions as an agent of the Crown under its direct authority, he was in error for the act is done under the sanction of a particular statute in the discharge of the duties enjoined on the Collector by that statute. It is true that the act of the Collector is an act referable to an exercise by the Crown of its sovereign functions. But it is not an act by which the Crown, acting as such, invades for its own purposes lands or goods or money belonging to a subject or furthers any of its own ends. It is an act done by an officer of the Government in the exercise of powers conferred on him by a statute, viz., the Putni Regulation and done in the course of his official duties. If so, this case comes within the principle laid down in the case of Secretary of State for India in Council v. Sreegobinda Choudhuri and within the facts of The Secretary of State for India in Council v. Ramnath Bhatta. In the latter case, a Sub-Deputy Collector had paid the sale proceeds of a taluk to the recorded proprietor instead of to the purchaser in execution of a mortgage decree prior to the revenue sale, in whose favour an order for payment had been made by the Collector, and it was held that the Secretary of State was not liable to make good the loss caused. The same must be the decision in the present case where there is no suggestion that the particular act complained of was particularly authorised by the Province of Bengal or that the Province retained or utilised the money.
16. The Appellant, however, contended that the act of the Collector was not referable to an exercise of the sovereign functions of the Crown in accordance with a statute, but belonged to the class of private activities in respect of which the East India Company could have been sued before 1859, and in respect of which the Crown could consequently even now be sued. It was stated that the East India Company was formed on the 1st January, 1660, and till the 12th August, 1765, it continued to be a purely trading concern. It was only in 1833, so it was contended, the date of the Charter Act, that the East India Company acquired some sovereign powers, and from that date till 1858, it continued to occupy the dual capacity of king and trader. The date of the Putni Regulation, it was pointed out, was the year 1819, and it was accordingly contended that in 1819, when the Putni Regulation was enacted, there could be no question of the East India Company exercising any sovereign functions.
17. This argument of the Appellant would have been worthy of some consideration, if his dates were not wrong. As pointed out by Field in his celebrated “Introduction,” one of the incidents of sovereignty is the power to exercise legislative functions, and, at least from the year 1773, when the Regulating Act was passed, the East India Company had been legislating freely and copiously for the people of this country. Assuming that the status of the East India Company between 1765, the date of the grant of the Dewani, and 1773, the date of the Regulating Act, was of a dubious character there can be no question that since the latter date, the East India Company was, in fact, a sovereign authority in this country and functioning as such. We are accordingly of opinion that it is impossible to say that the functions entrusted to a Collector under the Putni Regulation are functions referable to some activity of the Crown which is in no way connected with the exercise of its sovereign powers, It might also be interesting to refer to the history of how the Collector came to occupy his present position under the Putni Sale Law. The Appellant framed his argument in a way which seemed to suggest that the Putni Regulation had always stood as it stands now. The fact, however, is that, originally, that part, of the Collector's functions which is of a judicial character used to be performed by the Civil Court, and it was only by subsequent amendments of the Regulation that the entire body of duties came to be reposed in the Collector. An interesting account of the evolution of the Collector's status under the Putni Sale Law will be found in the case of Bhupendra Kumar Sarkar v. Kissori Dasi(9) to which the learned Senior Government pleader drew our attention.
18. It appears to us, for the reasons given above, that on the general principles of law as to the immunity of the Crown, the Province of Bengal cannot, on the facts of the present case, be held answerable for the negligence of the Collector.
19. We would, however, refer to one special fact. When on the 17th July, 1939, the Appellant was told by the Collector that he would rather respect the prohibitory order than make any payment to him, the Appellant did nothing further, but went to sleep over his rights. He had a remedy against the Collector by way of an application or appeal to the Commissioner and by way of a further appeal to the Board of Revenue. He took no steps at all in that direction, and commenced this suit straight away about a year later. In our opinion, if a subject failed to avail himself of remedies which the law gives him against the acts of a servant of the Crown and were then to be permitted to claim damages in tort against the sovereign power, an intolerable position would be created which can in no way be justified or countenanced. The claim of the Appellant must, in our opinion, fail on this ground as well.
20. For the reasons given above, this appeal fails and is dismissed with costs to the Province of Bengal and without costs against the remaining Respondents.
Blank, J.:— I agree.