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TMI Blog1913 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... , or depot, for the recruited coolies, and to get each cooly's labour contract executed before an appointed officer. Employers may also appoint local agents to supervise them. 3. In the exercise of powers conferred by Section 91. of the Act, as amended, the Government of Madras issued the Notification of 0th October 1909, relaxing or dispensing with the requirements of certain sections of the Act in the case of garden sirdars working ii icier the control of the Assam Labour Supply Association and other bodies on certain specified conditions. One of these conditions required the Association to employ a local agent in each district where recruiting was carried on, for the purpose of representing the, Association in all matters connected with the supervision of the sirdars. Under condition 8 the local agent was to provide suitable accommodation (a depot) for the labourers engaged. Under condition 9 he was responsible for preventing to the best of hiss ability all acts of misconduct on the part of the sirdars; and under condition 10 the license of any local agent, who might be found not to have exercised due care in preventing misconduct on the part of the sirdars, was liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to conform to the more arduous and exacting requirements of the regular procedure. It is I think clear that the District Magistrate's order of the 21st February closing the Berhampore depot to recruiting by garden sirdars working under the Act was ultra vires. 7. The legality of the other part of the order suspending the local agent pending enquiry was questioned at a late stage of the case on the ground that the power to dismiss under condition 10 did not include a power to suspend. The decision, in Barton v. Taylor (1886) 11 A.C. 197 that a Colonial Legislative Assembly has no power to suspend members as well as to expel, proceeded on the ground that suspension would deprive the constituency of its representation and does not appear to cover the present case. The plaintiff has also referred to an American decision--Gregory v. New York (1889) 3 Lawyer's Rep 854 Seshadri Ayyangar v. Nataraja Ayyar (1898) I.L.R. 21 Mad. 179 in support of his contention. I am inclined to think that a statutory power of dismissal does not include a power of suspension; but the plaintiff has failed to show that he incurred any additional damages by reason of the suspension, and in the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt further as in my opinion the suit fails on another ground. 10. Assuming that the action of the Collector was tortious, the next, question is, is the plaintiff entitled to recover unliquidated damages for such tort from the Secretary of State in Council under the provisions of: the Government of India Act, 1858? For the plaintiff reliance was placed on The Secretary of Stale for India v. Hari Bhanji (1882) I.L.R. 5 Mad. 273, Vijaya lidgava v. The Secretary of State for India (1884) I.L.R. 7 Mad. 466 and Jehangir M. Cursetzi v. Secretary of State (1903) I.L.R. 27 Bom. 189 and on appeal Jehangir v. Secretary of State (1904) 6 Bom. L.R. 131 was also referred to. The Advocate-General for the defendant relied mainly on the decision in Shivabhajan v. The Secretary of State for India (1906) I.L.R. 28 Bom. 314, following Rogers v. Rajendro Dutt (1860) 8 M.I.A. 103, Tobin v. The Queen (1864) 16 C.B. (N.S.) 310, Mc Inerny v. The Secretary of State of India (1911) I.L.R. 38 Calc. 797 and The Secretary of State for India in Council v. Kasturi Reddi (1903) I.L.R. 26 Mad. 268 at p. 279. The important decision of the Privy Council in Secretary of State for India v. Moment (1912) 40 I.A. 48, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 344 at pp. 355 and 356, a suit to recover money alleged to have been illegally levied, Innes J. refused to follow the Calcutta case but dismissed the suit on the merits, leaving each party to bear his own costs. Even so an appeal was preferred by the successful defendant on the ground that the Court ought to have declined jurisdiction as the act complained of was done in the exercise of sovereign powers. This contention was over ruled in a learned judgment distinguishing between acts of State over which the Court has no jurisdiction--as regards which the agent is protected as well as the principal--and acts, such as those in that case and in this, done under colour of Municipal law as to which the agent at any rate is always responsible--The Secretary of State for India v. Hari Bhanji (1882) I.L.R. 5 Mad. 273. The only question before the Appellate Court was one of jurisdiction, and they decided nothing as to the grounds on which liability could be brought home to the Company with success for acts done by public servants in India in oases within the jurisdiction of the Courts. This question was however discussed by Innes, J., at the trial. Hari Bhanji v. The Secretary of State f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le; and it is unnecessary to recognise an immunity so extensive for the purposes of the present case. Two decisions of the Irish Courts as to the Lord Lieutenant of Ireland may be cited on one side, and numerous English decisions as to Colonial Governors on the other. 14. While the immunity of the Crown in respect of tortious acts committed by its servants has always boon based on the legal maxim, the King can do no wrong, yet the Courts, in particular cases where the act had neither been ordered nor ratified by the Crown, have been careful to point out that there were less technical grounds on which such immunity could be justified, grounds which appear to be equally applicable to the East India Company. Thus in Canterbury v. Reg. (1843) 4 St. Tr. N.S. 767, where an ex-speaker oil the House of Commons sought to recover damages for the loss of his furniture in the fire which destroyed the Houses of Parliament and was occasioned by the negligence of the servants of the Commissioners of Woods and Forests who were in charge of the building, Lord Lyndhurst, L.C., pointed out that the Commissioners were public officers appointed to perform certain duties entrusted to them by the Legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointment was not fitly or properly made. 15. In Dhakjee Dadajee v. East-India Co. (1843) 2 Mor. Dig. 307 the Supreme Court of Bombay held that an action of trespass for alleged trespass in breaking and entering the plaintiff's house and taking away books under a warrant from the Governor of Bombay in Council would not lie against the East India Company, unless it was shown to have ordered or ratified the act complained of--thus negativing the position that the Company could be made responsible like an ordinary principal merely on the ground that the act was done by the agent in the course of employment. The decision in Peninsular and Oriental Steam Navigation Co. v. The Secretary of State (1861) 5 Bom. H.C.R. Apps. 1, which has been already examined, only makes an. exception in the case of undertakings of a private nature carried on by the Company, and in no way affects the application of the principle to acts done by the servants of the Company in the exercise of the sovereign powers delegated to it. 16. The plaintiff however relies on the decision of Kernan, Muthuswami Ayyar and Hutchins, JJ. in Vijaya Ragava v. The Secretary of State for India (1884) I.L.R. 7 Mad. At p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir Lordships of the Judicial Committee in Secretary of State v. Moment (1912) L.R. 40 I.A. 48, that an enactment adding to or taking away from the Usability of the Secretary of State in Council to be sued as settled by the Government of India Act, 1858, is ultra vires of the India Legislature, as opposed to the provisions of the Indian Council's Act, 1861. It appears to me therefore that the decision in Vijaya Ragava v. The Secretary of State for India (1884) I.L.R. 7 Mad. 466 is no longer of authority, and in any case does not preclude mo from holding on the authorities already cited that the Company could not have been made liable for the tortious acts done by their servants in India, in the exorcise of sovereign powers, which it had not ordered or ratified, merely on the ground that they wore done in the course of employment. 17. If the Company could not have been held liable for acts such as these on the ground that they were done by its servants in the course of their employment, the only other ground of liability I can think of as applicable to the present case is that the acts were ordered or ratified by it. In the present case the plaintiff relies on an alleged rat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him as incidental to the statutory power, conferred upon hi in by the Act of 1901 as amended and the notification made thereunder, to dismiss the local agent; and, if this be so, it to well nettled that in exercising such authority or in exceeding it he cannot be considered to have been the agent of the authority appointing him so as to render the latter liable. This was the first ground of decision in Tobin v. The Queen (1864) 16 C.B.N.S. 310 at p. 349, already referred to, in which it was held that, independently of the doctrine that the King can do no wrong, the Crown could not be made liable for the action of a Naval Captain purporting to act under the Slave Trade Acts in seizing and destroying the plaintiff's vessel, as he was not acting in obedience to the command of Her Majesty but in the supposed performance of a duty imposed upon him by Act of Parliament, in that case Erle, C.J., observes: Then as Captain Douglas would not have been an agent of the Crown if ho had lawfully seized and kept the vessel under the statute, still less ought he to be hold, such agent in seizing and destroying it illegally. Applying this principle it has been held in Shivabhajan v. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of State, or on his behalf and afterwards ratified by him. A similar conclusion was arrived at by Chandavarkar, J. in Jehangir v. Secretary of State (1904) 6 Bom. L.R. 131, to whom the case was referred on a, difference of opinion between Batty and Jacob, JJ. sitting on appeal from the Judgment of Tyabji, in Jehangir M. Cursetji v. Secretary of State (1903) I.L.R. 27 Bom. 189. 23. Even, if the suit had been brought against the members of the Madras Government at the date of the order, and this Court had jurisdiction to entertain such a suit, it must still in my opinion have failed on the ground that the publication having been made by such Government in the execution of its duty, and without exceeding it, is absolutely privileged. In Oliver v. Lord Bentinck (1811) 3 Taun. 346 S.C. 128 E.R. 181, the plaintiff sued the defendant in the Court of Common Pleas at Westminister for publishing in the Gazette at Madras, whilst Governor and Commander-in-Chief in the Presidency, a notification that the Court of Directors had. resolved to dismiss the plaintiff who was a military officer for gross violation of the trust reposed in him as Commander-in-Chief of the Molucca Islands; and on d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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