Mountstuart Elphinstone and Robertson v Bedreechund Another (Executors of Ameerchund Berdachund)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 July 1830 |
| Date | 14 July 1830 |
| Court | Privy Council |
English Reports Citation: 12 E.R. 340
ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT BOMBAY.
S.C. With Full annotations in 2 St. Tr. N.S. 379. On point as to act of state, cf. the following cases: Doss v. Secretary of State for India, in Council, 1875, L.R. 19 Eq. 509; Grant v. Secretary of State for India in Council, 1877, 2 C.P.D. 445; Secretary of State in Council of India v. Kamachee Boye Sahaba, 1859, 13 Moo. P.C. 22, 7 Moo. Ind. App. p. 476; Rajah of Coorg v. East India Co. 1860, 29 Beav. 300; Rajah Salig Ram v. Secretary of State for India in Council, 1872, L.R. Ind. App. Suppt. 119; Forester v. Secretary of State for India in Council, 1872, L.R. Ind. App. Suppt. 10; Sirdar Bhagwan Sing v.Secretary of State for India, 1874, L.R. 2 Ind. App. 38; Walker v. Bawd (1892), A.C. 491; Poll v. Lord Advocate, 1899, 1 Fraser, 823. See Also Ilbert, Government of India, pp. 172-178, and note by the same author on "Act of State" in 1 Rul. Cas. pp. 802 et seq.
I KNAPP, 316 ELPHINSTONE V. BEDRKECHDND [1830] [316] ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT BOMBAY. The Hon. MOUNTSTUART ELPHINSTONE and HENRY DUNDAS ROBERTSON, -Appellants; and HEERACHUND BEDREECHUND, and JELMEL ANOOP-CHUND, Executors of AMEERCHUND BERDACHUND,-Respondents [June 3, 19, July 14, 1830]. The members of the provisional government of a recently conquered country . seized the property of a native of the conquered country, who had been refused the benefit of the articles of capitulation of a fortress, of which he wag governor, but who had been permitted to reside under military surveillance in his own house in the city in which the seizure was made, and which was at a distance from the scene of actual hostilities. Held, that the seizure must be regarded in the light of a hostile seizure, and that a Municipal Court had no jurisdiction on the subject [1 Knapp, 360]. Semble.-The circumstances, that at the time of the seizure the city where it was made had been for some months previously in the undisturbed possession of the provisional government; and that Courts of Justice under the authority of that government were sitting in it for the administration of justice, do not alter the character of the transaction. This was an appeal from a judgment of the Supreme Court of Bombay, dated the 6th of February 1827, awarding to the respondent 1,745,290 rupees, 3 quarters, 32 reas, damages, and 16,303 rupees, 3 quarters, costs. The action, in which it was given had been brought in trover by Ameerchund Berdachund against the appellants and the East India Company, for the recovery of damages for the seizure of treasure to a large amount from Narroba Outia, a nobleman of high rank under the Mahratta government, and formerly treasurer to the Peishwa, to whom Ameerchund was executor. The circumstances under which the seizure took place appeared on the trial to be as follows: On the 16th of November 1817, after the battle [317] of Kirkee, the Peishwa, Bajee Row, left his capital, Poonah, which was the next day taken possession of by the British forces. On the 15th of December 1817, the Marquis of Hastings, the Governor-General of India, appointed the appellant Elphinstone sole commissioner for the settlement of the territory conquered from the Peishwa, with authority over all the civil and military officers employed in it, and also authorized him to nominate a secretary and such other officers, as might be necessary to assist him in the functions of his office. Mr. Elphinstone, on the llth of February 1818, issued a proclamation at Sattara, in which, after setting forth various acts of aggression by the Peishwa against the British Government, he proceeded to state, " that by these acts of perfidy and violence Bajee Row has compelled the British Government to- drive him from his musnud, and to conquer his dominions. For this purpose a force has gone in pursuit of Bajee Row, which will allow him no rest; another is employed in taking his forts ; a third has arrived by the way of Ahmednughur, and a greater force than either is now entering by way of Candeish, under the personal command of his Excellency Sir Thomas Hislop; a force under General Munro is reducing the Car-natic; and a force from Bombay is taking the forts in the Concan, and occupying that country, so that in a short time no trace of Bajee Row will remain. The Raja of Sattara, who is now a, prisoner in Bajee Row's hands, will be released, and placed at the head of an independent sovereignty of such an extent as may maintain the Raja and [318] his family in comfort and dignity. With this view the fort of Sattara has been taken, the Raja's flag has been set. up in it, and his former ministry have been called into employment. Whatever country is assigned to the Raja will be administered by him, and he will be bound to establish a system of justice and order. The rest of the country will be held by the Honourable Company. The revenue will be collected for the Government, but all property real or personal will be secured. 340 ELPHINSTONE V. BEDREECHUND [1830] I KNAPP, 319 All Whuttan and Enam (hereditary property), Wurshausun (annual stipends), and all religious, and charitable establishments, will be protected, and all religious sects will be tolerated, and their customs maintained, as far as it is just and reasonable. The farming system is abolished. Officers shall be forthwith appointed to collect a regular and moderate revenue on the part of the British Government, to administer justice, and to encourage the cultivators of the soil: they will be authorized to allow of remissions in consideration of the circumstances of the times. All persons are prohibited from paying revenue to Bajee Bow or his adherents, or assisting them in any shape. No reduction will be made from the revenue in consequence of such payments. Wuttundars, and other holders of lands, are required to quit his standard, and repair to their villages within two months from this time. The Zemindars will report the names of those who remain, and all who fail to appear in that time shall forfeit their lands, and be pursued without remission until they are entirely crushed. All persons, whether belonging to the army or otherwise, who may attempt to lay waste the country, or to plunder [319] the roads, will be put to death wherever they are found." Mr. Elphinstone, by a letter, dated the 6th of February 1818, appointed the other appellant, Captain Eobertson, provisional collector and magistrate of the city of Poonah, and the adjacent country. He had been previously nominated by General Sir Lionel Smith to the command of the guards there, and he retained this command until September 1818, when he relinquished it to Major Fearon. Mr. Elphinstone's letter proceeded in these terms, " The extent of your district will hereafter nearly correspond with that of the Pra.unt of Poonah; but until the neighbouring districts shall have been settled I beg you not to confine your exertions to those limits, but endeavour to bring under your authority as much of the country as may be within your power. The first consideration therefore is to' deprive the enemy of his resources, and in this and all other points every thing must be made subservient to the conduct of the war. All arrangements that interfere with that object must be reserved for times of greater tranquillity." The letter then proceeded to give instructions as to taking possession of the enemy's country; for rewarding the potails and villages which might declare in our favour; and for sending native agents and parties of sebundies * to places where their presence might be useful, and to authorize Captain Robertson to entertain a thousand sebundies, or [320] more if he should find them necessary. " Some organization," it was observed, " might be resorted to, by which this species of soldiery might be improved; but it was to be remembered, that it did not suit our policy to preserve a military spirit amongst them, but to allow them to sink into judges and collectors peons. When a village has once submitted, any practices in favour of the enemy must be punished, as acts of rebellion, by martial law. The commander in chief at Poonah will be directed to assemble a court-martial, for the trial of such persons as you may think fit to bring before it, and to inflict capital punishment immediately on conviction. The same course must be adopted with regard to. persons at Poonah who shall conspire against our government, and likewise with all banditti who may assemble in the neighbourhood of the capital. I particularly call your attention to the necessity of inflicting prompt and severe punishment on persons of this description. Prisoners taken from the body of Bajee Row's troops, who* may pass through your district in the course of military operation, must for the present be regarded as regular troops; but parties sent to plunder the country are in all cases to be considered as freebooters, and either refused quarter, or put to death after a summary inquiry, when there is any doubt of their guilt. All other crimes you will investigate according to the forms of justice usual in the country, modified as you may think expedient; and in all cases you will endeavour to enforce the existing laws and customs, unless where they are clearly [321] repugnant to reason and natural equity. The samt rules apply to civil trials, in which I particularly recommend the adoption, of that system of arbitration already prevalent, subject to. your confirmation. You will not fail to bear in mind the necessity of adhering to the customs of the country * Irregular native soldiers employed in the service of the revenue and police. See Glossary, by Wilkins, to Fifth Report of Committee of the House of Commons on the Affairs of the East India Company. 341 I...
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