Norman Macleod, Kt., C.J.
1. The plaintiff tiled this suit against the Secretary of State to recover his two per cent. Sardeshmukhi Haq in certain villages in Deogad Taluka not on the old Jamabandi but on the survey assessment. The suit was dismissed by the District Judge on the ground that the suit came within Section 4 of the Pensions Act, and that as the plaintiff' had not produced a certificate as provided for by Section 6, he could not proceed any further in the suit.
2. The only ground which has been argued in appeal is that the Pensions Act, so far as it deals with pensions and grants of land revenue in Ratnagiri, is ultra vires. The appellant relies on the decision in Secretary of State for India v. Moment (1912) 10 I.A 48. The question, therefore, arises whether a suit would have lain against the East India Company to recover on a grant of land revenue in Ratnagiri; if such a suit would have lain, then it would also lie against the Secretary of State, and any provision to the contrary contravenes Section 65 of the Government of India Act of 1858.
3. In The Peninsular and Oriental Steam Navigation Co. v. The Secretary of State for India (1861) 5 B.H.R. 1, Sir Barnes Peacock, hief Justice, considered what suits would lie against the Company and what suits would not lie. At page 14 he said: 'Where an act is done or a contract is entered into, in the exercise of powers usually called sovereign powers, by which we mean powers which cannot be lawfully exercised except by a sovereign, or private individual, delegated by a sovereign to exercise them, no action will lie.'
4. In Vasudev Sadaehiv Modak v. Collector of Ratnagiri (1817) L.R.119 the plaintiff filed a writ to recover from Government certain emoluments due to him as Deshmukh of four Mahals, the plaintiff alleging that he was the hereditary Deshmukh thereof. It was held by the Privy Council that the learned trial Judge was right in dismissing the suit on the ground that it was excluded from the jurisdiction of the Civil Courts by the Pensions Act of 1871, Section 4. At page 125 their Lordships say : 'It is difficult to see how the Government could impose upon the ryots the obligation of paying these allowances to their officers, except by the exercise of their sovereign right of imposing and receiving a' revenue from all lands which were not in their nature rent free'.
5. The East India Company, therefore, were exercising their sovereign rights in collecting land revenue. It would follow that if they chose to grant any share of that land revenue to individuals, they were doing so, not as a mere matter of contract in the ordinary affairs of life, but in the exercise of sovereign rights. It would follow then from the passage I have already cited from the judgment of Sir Barnes Peacock, that an action would not lie against the East India Company on a grant of land revenue. It is true that the point was not taken in Vasudev Hadashiv Modak v. Collector of Ratnayiri (1877) L.R. 119 that the Pensions Act, so far as it barred a suit against the Secretary of State on a grant of land revenue, was ultra vires. But in my opinion it would have to be directly pointed out to us that a suit on a grant of land revenue would have lain against the East India Company before we can say that the Pensions Act is ultra vires. I do not think that it can be argued that, because under Regulation XXIX of 1827, which applied only to the Zillas of Poona and Ahmednagar subsequent to the conquest by the Company of the territories of the late Peshwa in the Deccan and Khaudesh, such suits would not lie in those Zillas, it can be deduced therefrom that such suits would have lain as regards grants of land revenue in any other territories of the East India Company in my opinion the real test is whether the East India Company was exercising sovereign rights and powers or was acting as an ordinary individual, as it would be doing, for instance, if it engaged in trade and in the course of such business caused wrongful damage to the inhabitants within its territories. In my opinion, therefore, the judgment of the learned Judge in the Court below was right and the appeal must be dismissed with costs.
5. I concur. The point before us was considered in The Secretary of State for India in Council v. Jawahir Lal I.L.R. (1915) All. 338 where a similar contention was overruled on the ground that the jurisdiction of the Courts had, prior to the enactment of the Pensions Act of 1871, been expressly barred by Regulation XXIV of 1793, Section 17. Accordingly it was held that the East India Company could not have been sued in respect of a pension falling under the Pensions Act at the time of the transfer of the Company's powers and liabilities to the Crown.
6. The appellant's counsel has no doubt been able to show that a similar clear enactment does not apparently exist in regard to the territories administered by the East India Company in the Bombay Presidency, except the Zillas of Poona and Ahmednagar, under Section G of Bombay Regulation XXIX of 1827. The learned Government Pleader has not referred us to any enactment for the other territories which expressly bars claims against Government on account of pensions except Regulation II of 1815, Section 15. That enactment lays down the principle that except in certain specified cases, the continuance or discontinuance of all pensions shall depend solely on the pleasure of Government, and shall not be subject to cognizance or determination in any Court of justice. But the efficacy of this is somewhat weakened by the subsequent provision that, where any person deems himself aggrieved by the act of the Collector in respect to a pension, he can sue for redress in a civil Court. This enactment is also rescinded by Section 1 of Regulation I of 1827; and it is possible to contend that claims against Government on account of pensions fell under the wide terms of Section 21 of Regulation II of 1827. But in view of the clear principle laid down in Regulation XV of 1815, I very much doubt whether in practice claims against Government on account of pensions were taken cognizance of by civil Courts in the time of the East India Company, and no such case has been cited to us. It is possible, therefore, that it was not considered necessary to make an express enactment in regard to the old territories of the. kind specified in Regulation XXIX of 1827.
7. If the question before us depended entirely on this particular point I think further inquiry would be desirable. But I agree with the learned Chief Justice that a suit could not have lain against the East India Company, because the continuance of the pension on which the plaintiff bases his claim was a sovereign act, as is clearly shown by the judgment in the case of Vasudev Sadashiv Modak v. The Collector of Ratnagiri (1877) L.R. 119. Therefore I am of opinion that the contention fails and the appeal should be dismissed with costs.