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Vijaya Ragava Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad466
AppellantVijaya Ragava
RespondentThe Secretary of State for India in Council
Cases ReferredState (see The Secretary of State v. Hari Bhanji I.L.R.
Excerpt:
towns' improvement act (madras act iii of 1871), section 9 - power of governor in council to dismiss elected municipal commissioner. - - ' the preposition for' before 'misconduct' clearly means 'by reason of' or 'on account of' or' because of' misconduct. it was held in that case that where an act complained of is professedly done under the sanction of municipal law and in the exercise of power conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly be done by a private individual, does not oust the jurisdiction of the civil courts. 55), is like the present. the plaintiff' failed to prove his title to the land, but he proved his claim to the arms and recovered his damages for the illegal seizure of his property. the guardians of the.....kernan, j.1. this is an action brought by the plaintiff against the secretary of state for india for alleged wrongful removal by the governor of madras in council of the plaintiff from the office of a municipal commissioner of salem. on the 8th of february 1882, the plaintiff was elected by the rate-payers of salem one of the municipal commissioners of that town, under the provisions of section 9 of the towns' improvement act (madras act iii of 1871).2. notification of his election was published in the gazette of the 23rd of february 1882 and he entered on the duties of his office.3. in 1883 the governor in council made an order, which purported to be under the power given by section 9 of act iii of 1871, removing the plaintiff from being such commissioner. that order was published in the.....
Judgment:

Kernan, J.

1. This is an action brought by the plaintiff against the Secretary of State for India for alleged wrongful removal by the Governor of Madras in Council of the plaintiff from the office of a Municipal Commissioner of Salem. On the 8th of February 1882, the plaintiff was elected by the rate-payers of Salem one of the Municipal Commissioners of that town, under the provisions of Section 9 of the Towns' Improvement Act (Madras Act III of 1871).

2. Notification of his election was published in the gazette of the 23rd of February 1882 and he entered on the duties of his office.

3. In 1883 the Governor in Council made an order, which purported to be under the power given by Section 9 of Act III of 1871, removing the plaintiff from being such Commissioner. That order was published in the gazette, dated the 23rd of May 1883. Section 9 of Act III of 1871 contains the following provision: 'The persons so elected shall continue in office for three years, or until their successors have been elected, and shall be eligible for reelection. The Governor in Council may from time to time accept the resignation of any of the Commissioners so elected, or may remove any of such Commissioners for misconduct or neglect of duty.'

4. The plaintiff alleges in his plaint that he had not been guilty of any misconduct, or of neglect of duty.

5. On the 8th of June 1883 the plaintiff petitioned the Governor in Council for information as to the grounds of his removal, and on the 4th of July was informed in reply that such information was declined.

6. The defendant filed a written statement, stating that the Governor in Council had received information of certain acts and conduct of the plaintiff, and the Governor in Council came to the conclusion that there was reason to believe that plaintiff had been guilty of misconduct, and plaintiff was removed from office under the provisions contained in Section 9 of the Act. The defendant, under an order of this Court, subsequently furnished further particulars of the information received as to the acts and conduct of the plaintiff.

7. The defendant did not, in the written statement, allege that the plaintiff had been guilty of misconduct, or neglect of duty, as Municipal Commissioner. Issues were settled--

(1.) Was the removal of the plaintiff from office legal?

(2.) Did the Governor in Council exercise the discretion vested in him by the Act bond fide and in a legal and proper manner?

(3.) To what damages, if any, is the plaintiff entitled?

(4.) Is the plaintiff entitled to the declarations asked for in the plaint, or to either and which of them, or to any other and what relief?

8. The last issue and the relief in respect of it was abandoned by the plaintiff at the hearing. The principal question in the case arises on the first issue, which again depends on the question--What is the true construction to be put on Section 9 of Act III of 1871?

9. Mr. Branson for plaintiff contended that reading Section 9 and giving the language used its ordinary, natural, and apparent meaning, the Governor in Council had no power to remove the plaintiff from his office, unless the plaintiff had been, before the removal, guilty of misconduct in fact, or had neglected his duty as Commissioner.

10. The Advocate-General for the defendant stated that the defendant did not allege, or intend to offer any evidence, to prove that the plaintiff was in fact guilty of any misconduct or neglect of duty.

11. He stated that certain acts and conduct of the plaintiff were represented to the Governor in Council, who considered them and deemed that he had authority to remove the plaintiff. He contended that, on the construction of Section 9, there was a discretion vested in the Governor in Council to remove a Commissioner without any proof (such as a Court would require) of the fact of misconduct or neglect, and that the Governor in Council was the proper judge of whether the act or conduct of the Commissioner justified his removal, and even though the act or conduct did not amount to misconduct.

12. The short meaning of the argument was that an absolute discretion was vested in the Governor in Council to remove a Commissioner, if he thought the Commissioner had committed any act of misconduct or neglect although in fact he had not, and that as the Governor in Council had, in the exercise of his discretion, so removed the plaintiff, the Court could not interfere with that discretion, or consider the question whether the order of removal was legal or not.

13. In support of this view of a general discretion he referred to The Queen v. Governors of Darlington School 6 Q.B. 696. In that case the Governors were authorized to remove any schoolmaster from the school according to their sound discretion.

14. The Chief Justice refers to the propriety of such discretion being given, even though the circumstance on which it was exercised could not be proved before a jury.

15. That case in its facts is quite a contrast to this, as there the power to remove was entirely discretionary. The Court held that the exercise of such discretion did not depend on whether the schoolmaster had or had not misconducted himself. The letters patent did not refer to misconduct in the master as a cause of removal.

16. The Advocate-General also cited the case of the Attorney-General v. Great Western Railway Company L.R. 4 Ch. D. 743. In that case descretion was given by a special Act to the Board of Trade to act or not on the report of an officer acting under the Board, stating his opinion whether or not a railway or any part of it was fit to be allowed to be opened for traffic. A report was made by the officer and the Board exercised their discretion by refusing to allow the line to be opened until certain requirements were complied with. In that case the Court refused to interfere with the discretion of the Board, as the preliminaries for the exercise of that discretion had been complied with.

17. In this case the preliminaries or pre-requisites for the exercise of discretion do not exist, as plaintiff contends, as there was admittedly no misconduct or neglect by the plaintiff.

18. I am unable to see that the argument of the Advocate-General is consistent with Section 9 of Act III of 1871. If the general discretion contended for was intended by the Legislature, the words 'for misconduct or neglect of duty' may be omitted as useless, inasmuch as the general discretionary power would include the right to remove without any cause, or for the cause of misconduct or any other cause.

19. One of the canons of construction of a statute is that 'a statute should be so construed, that if it can be prevented, no clause, sentence, or word, shall be superfluous, void, or insignificant'--Bacon St. I. 2.

20. The Advocate-General contended that it would be inconvenient construction to hold that the Court should have power to try whether the conduct of the plaintiff, on which the Governor in Council acted in removing the plaintiff, justified the removal. The word 'misconduct or neglect of duty 'must be given effect to. The question is for what purpose do they appear to have been used. Have they been used for the purpose of indicating the circumstance, on the happening of which the discretion to remove is to arise? If so, must not this circumstance first exist before the discretion can arise?

21. I am unable to see why such words were used except for the purpose of indicating such circumstance. One of the objects of such purpose would apparently be to protect the Commissioner against arbitrary removal. If there is a general discretion given to the Governor in Council without cause, then there is no protection to the Commissioner against the exercise of an arbitrary discretion and without any cause being assigned. The Commissioner undertakes, without any payment, an office, and for his work merely receives the position in society which the possession of the office gives. It would be a very inconsistent and not reasonable construction of the words used in the Act to hold that Commissioners acting under such circumstance should be removable without cause, especially when the words of the Act apparently define the cause, viz., misconduct or neglect of duty. The words of the Act are--

The persons so elected shall continue in office three years, &c.;,' and again 'the Governor in Council may accept the resignation of any of the Commissioners so elected, or may remove any of such Commissioners for misconduct or neglect of duty.' The preposition for' before 'misconduct' clearly means 'by reason of' or 'on account of' or' because of' misconduct. Where the words for misconduct' succeed the words ' may remove,' they cut down the general power and limit it to the removal for 'misconduct, &c.;' If the words 'for misconduct, &c.;,' wore not there, then the power to remove would be a discretionary power.

22. The words of Section 9 enable the Governor in Council to remove the Commissioner by reason of, or on account of, misconduct, &c.;, or as expressed in the Act 'for misconduct.' If it was intended by the Legislature that the Governor in Council should be the judge of whether acts done by a Commissioner justified his removal, the language used would have been different to that in Section 9 of Act III of 1871. The language would have then either given a general discretion uncontrolled and unlimited, or would have given power to the Governor in Council to remove, if the conduct or act of the Commissioner seemed to the Governor in Council to require such removal, or language to that effect.

23. The only discretion vested in the Governor in Council to remove or not does not arise, until the fact of misconduct or neglect is ascertained to have been committed. If the fact of misconduct exists, then there is a discretion vested in the Governor in Council either to remove or not. It may be that, even though misconduct or neglect by the Commissioner is ascertained to exist, yet it may not be politic, convenient or necessary to remove the Commissioner, and accordingly the Governor has a discretion in that case.

24. The power of removal for misconduct is given in the same section as the power of removal for neglect of duty. If a Commissioner cannot be removed for neglect of duty unless he was so guilty, could a Commissioner not guilty of misconduct be removed unless misconduct did exist

25. Suppose a Commissioner was removed on the ground of neglect of duty, and that it was afterwards proved that there was no neglect of duty, could it be held having regard to the Act that the removal was legal. This view, however, does not go further than the view of removal for misconduct. It is in my judgment impossible to have a legal foundation for removal on account of or for misconduct, unless such misconduct was in fact committed and existed as a fact before the order of removal. In my judgment the construction of the Act contended for by the plaintiff is the true one, and as no misconduct or neglect of duty is imputed to the plaintiff, the removal of the plaintiff by the Governor in Council is not legal. It was contended for the defendant that this action being one for an alleged wrong done by the governing power, this Court could not entertain the suit, though it was admitted that any action that could be brought against the East India Company might be brought against the defendant. The case Nobin Chunder Dey v. The Secretary of State for India I.L.R. 1 Cal. 11 was relied on. That case has been considered in the case in The Secretary of State for India v. Hari Bhanji I.L.R. 5 Mad. 273 and has been dissented from by a division bench of this Court. In the latter case the character of the act in respect of which relief against the Secretary of State might be maintained was considered, and after referring to all the authorities, it was held that the East India Company were held liable for negligence or misconduct of its officers in cases in which the sovereign would not have been liable on a petition of right, and it is pointed out that the Company were liable to suits in the Court of the Sovereign, and that they also submitted to the jurisdiction of their own Court. It was held in that case that where an act complained of is professedly done under the sanction of municipal law and in the exercise of power conferred by that law, the fact that it is done by the sovereign power and is not an act which could possibly be done by a private individual, does not oust the jurisdiction of the Civil Courts. A case referred to by the Court (Forester v. The Secretary of State (Ind. App., 1872-73, p. 55), is like the present. There the East India Company seized an estate and a quantity of arms, acting under the municipal law under a claim of title to possession. The action against the Secretary of State was held maintainable. The plaintiff' failed to prove his title to the land, but he proved his claim to the arms and recovered his damages for the illegal seizure of his property.

26. The Governor in Council removed the plaintiff, professing to act under the municipal law, and not under a sovereign right outside that law.

27. It was suggested by the Advocate-General that the principle of Act XVIII of 1850, protecting judicial officers from the consequences of acts done by them bond fide, but on a mistake of law, ought to apply to this case. But the Act does not apply to the Governor in Council, and we cannot apply the principle of that Act, inasmuch as we should be thereby affecting to legislate instead of interpreting the Act. It is not necessary to decide the second issue, as the discretion given to the Governor in Council did not arise there being no misconduct or neglect of duty attributed to, or proved against, the plaintiff. The Governor in Council in removing the plaintiff did not act on any discretionary power, but acted simply without legal authority and wrongfully.

28. On the third issue, the question is--What damages should be awarded to the plaintiff for the removal from his office? No doubt the plaintiff, though he applied before suit for information why he was removed, was refused that information, and before he was removed he was not called on to explain any of the matters, which the defendant states were those which led to his removal. Audi alterant partem is a principle, which, if applied to the plaintiff's case, might have rendered this suit unnecessary.

29. But the absence of such inquiry would not render the removal illegal, if it were otherwise legal. The case The Queen v. The Guardians of the Poor of Lambeth 5 Q.B. 514 was one relating to a public officer, as to which, it is settled in proceeding on mandamus that the party should have been summoned before removal for cause.

30. The office held by the plaintiff' is one of importance in the estimation of the native community and carries with it a certain position of respect. The removal from such office by the Governor implied the censure of Government, and tended to lower the plaintiff' in the estimation of the public. That removal was, it must now be taken, quite undeserved by plaintiff. The plaintiff was certainly entitled to vindicate his conduct by bringing this suit, and he has done so. The defendant repudiates all suggestion of misconduct or neglect of duty. There were no emoluments or fees attached to the plaintiff's office, so that he has not suffered by the removal any pecuniary loss. The plaintiff is, however, entitled to some damages for the wrong done to him, and we award a sum of Rupees 100. The plaintiff will recover his costs of the suit against the defendant.

31. It is unnecessary to find on the fourth issue. In the view I take of this case, it is not, in my judgment, at all material to refer to any of the matters which, the defendant says, formed the ground-work for the plaintiff's removal. They are beside the case, as misconduct is not imputed. For the same reason they cannot bear on the subject of costs.

32. Decree for the plaintiff for Rupees 100 and costs and interest on debt and costs at 6 per cent.

Muttusami Ayyar, J.

33. This is substantially a suit for damages brought by one Vijaya Ragavachari against the Secretary of State. In the plaint, as originally framed, there was a prayer to the effect that the plaintiff might be declared to be entitled to continue in office for the unexpired portion of three years, but it was abandoned at the final hearing. On the 8th February 1882, Vijaya Ragavachari was elected by the rate-payers at Salem as a Municipal Commissioner for that town, on the 9th his election was reported to Government, and on the 28th it was notified in the Fort St. George Gazette. The plaintiff then entered on his office as Municipal Commissioner and continued to hold it until the 29th May 1883, when the Government removed him from it in the exercise of the power vesting in them under Section 9 of Madras Act III of 1871. The plaintiff's case is that he was guilty of no misconduct nor of neglect of duty, and that his removal from the office of Municipal Commissioner was not in accordance with law.

34. The second and third paragraphs of Section 9 are alone material in the present suit and they are as follows : ' The persons so elected shall continue in office for three years, or until their successors have been elected, and shall be eligible for re-election. The Governor in Council may from time to time accept the resignation of any of the Commissioners so elected, or may remove any of such Commissioners for misconduct or neglect of duty.' The learned Advocate-General, who, we held, had the right to begin, stated in opening the case for the defendant that it was not intended to prove that the plaintiff was actually guilty of any misconduct, and then called a clerk from the Government Office, who deposed that the papers relating to the Salem riots which are now before us were circulated amongst the Members of Government. The Advocate-General then closed the case for the defendant and addressed the Court on the construction of Section 9 and on other points material to the suit. These papers only show what information there was before the Government when the plaintiff was dismissed from the Municipal Commission; but unless the statements they contain are proved, I do not sea my way to accept and treat them as substantive judicial evidence of the plaintiff's misconduct. In the view of the learned Counsel for the defendant, and according to the construction which he suggests as the true construction of Section 9, it is alleged not to be necessary to prove any misconduct by judicial evidence, and the first question therefore is as to the true construction of Section 9 of Act III of 1871, and whether it is sufficient for the defendant to show that, from certain communications received from their officers, the Government had reason to believe and did believe that the plaintiff was guilty of misconduct, although in fact there might be no misconduct.

35. It was argued by the Advocate-General that, according to the true construction of Section 9, Government had a discretionary power, that the Members of Government are the sole judges of the factum of misconduct, and that the conclusion to which they have come from the papers before them is not open to be questioned in a Court of Justice. On the other hand, it was contended by the Council for the plaintiff that the power conferred upon Government by Section 9 was only a power to remove for an existing cause, and that unless the cause actually existed, the power did not arise.

36. The material words in Section 9 are' the Governor in Council may remove for misconduct or neglect of duty. 'Construing them in their ordinary sense, they appear to me to mean that it is lawful for His Excellency the Governor in Council to remove a Municipal Commissioner in case, on account, or because of, misconduct or neglect of duty. Taking them in relation to the right to continue in office for three years which is created by the second paragraph, they seem to presuppose misconduct or neglect of duty as an existing fact, and, with advertence to it, to limit the right by conferring upon His Excellency the Governor in Council a power to remove. As to the contention that the Members of Government are the sole judges of the question of misconduct, I do not find in the section words which indicate an intention that the decision of Government should be final and conclusive. To give it such an effect, it is necessary to introduce additional words which we are not at liberty to do. From the fact, however, that a power is given to Government, it would no doubt follow that even when misconduct or neglect of duty exists, Government may not remove a Municipal Commissioner from office for it, and that to this extent, there is a discretion; but it is not, I think, correct to hold that when a power is given by the Legislature for a specified cause, the power may exist, though the cause does not. If the Government had a general discretion, then, it would include misconduct, and there would be no occasion for mentioning a specific cause. As was pointed out at the final hearing, it would not be reasonable to say that the removal of a Municipal Commissioner for not attending the municipal meetings is in accordance with Section 9, if the Government removed him upon incorrect information for such non-attendance, though it might be shown by the municipal records and other evidence that the person so removed attended every one of the meetings. The cases cited by the learned Advocate-General are not exactly in point. The power exercised in the Queen v. Governors of Darlington School 6. Q.B. 716 is a power to remove according to sound discretion and not a power, as in this case, to remove for a specific cause. In delivering the judgment of the Court, Tindal, C. J., observed--' But looking to the terms of the Letters Patent of Queen Elizabeth, we think the office in question is, in its original creation, determinable at the sound discretion of the Governors whenever such discretion is expressed.' The words in the Letters Patent described the power as one of 'removing the said master, &c.;, from the said school according to their sound discretion and of placing or appointing other or others more fit in their stead or steads.' In Attorney General v. The Great-Western Hallway Company L.R. 4 Ch. D. 743 the pre-requisites of the power given were conceded to have existed. In the ordinary case of master and servant, the power to dismiss for misconduct is a power to dismiss for a cause actually existing. Granting this, the learned Advocate-General contends that it is a case of contract; but it must be observed that it is not without some significance as to the ordinary meaning of the words which simply reserve a power to remove for misconduct. Another contention is that great administrative inconvenience would be the result if the Government were liable to be sued by every Municipal Commissioner who might be removed from office. This may be true but having regard to the rules of construction, we have to look at the language of the section, and to give effect to it when it is clear and unambiguous, unless the result of such construction is manifestly absurd, in which case we have to look at the probable intention and to place such construction as will fairly execute that intention. But when the language is clear, we are not at liberty to vary the construction with reference to our idea of convenience. It was perhaps the intention that Government should have an absolute discretion and that their decision should be final; but we have to deduce it from the language of the section, which, as it stands at present, does not, it seems to me, express such intention. On the other hand, Mr. Branson draws our attention to The Queen v. Smith 5 Q.B. 623 and the kindred class of cases in which it has been held that an incumbent who has in the contemplation of law a freehold in his office could not be legally removed without some sort of inquiry, without being summoned to answer the charge preferred against him, and without proof of that charge. In the English cases to which our attention has been called, a distinction is made between offices held at will, during the pleasure, or at the discretion of the parties appointing to them, and offices held for life or during good behaviour. Although the office of a Municipal Commissioner is not a freehold office, yet the fact that at its creation the Legislature rendered it tenable for three years subject to a power to determine it earlier for a specific cause lends weight to the view that the intention was probably to render the office tenable for a time certain in the absence of misconduct or neglect of duty, and thereby raise it in public estimation above offices which are held only at the will of Government. The real question, however, is, was the office according to the terms of the particular Act which created it determinable at the discretion of Government or for a specified cause, and if the latter, was it to determine for actual misconduct, or because Government believed bond fide that there was misconduct though there was none in fact. It seems to me that the Act created a right to the office for three years, but made it determinable at an earlier date for misconduct, and that unless misconduct actually existed, the right cannot be said to have ceased although when misconduct is shown to have existed, its gravity as an adequate cause of dismissal is a matter which it is for the Government to determine. As to Act XVIII of 1850 it applies to Judicial Officers and to Magistrates acting judicially, and it has no application in this case. I concur, therefore, in the opinion that the power to remove is upon the true construction of Section 9--a power to be exercised for an existing cause, and that as no proof of actual misconduct is offered, the plaintiff's removal is not in accordance with law. Another contention is that no suit would lie in this Court against the Crown and reliance is placed in support of it upon Nobin Chunder Dey v. The Secretary of State for India I.L.R. 1 Cal. 11. I took part in the decision of the case The Secretary of State for India v. Hari Bhanji I.L.R. Mad. 274 in which all the authorities bearing on the question were considered, and 1 still adhere to the opinion then expressed, viz., when the act in question is not an act of State, but one professedly done under the sanction of municipal law, the late East India Company was liable to be sued in Her Majesty's Courts, and according to law, as it stands at present, the Secretary of State is liable to be sued in those cases in which the late East India Company might be sued. The learned Advocate-General next called our attention to Colonel Grant's case L.R. 2 C. P. D. 445 and contended at first that the Secretary of State was not liable to be sued for an act of the Local Government, which he did not order or adopt. But he conceded afterwards that, under Section 416 of the Code of Civil Procedure, the Secretary of State was the proper party to be sued if the Local Government were liable to the claim for damages. I may here notice the contention of Mr. Branson that the misconduct imputed to the plaintiff was considered but by one Member of Council, and that even if the Government had a discretionary power, the discretion was not exercised by the Government as a collective body. But the evidence before us does not bear out this contention. According to Mr. Gainsford, the papers relating to the plaintiff's removal were considered in Council and that he knew it in the course of his duty. Exhibit III a shows that Dr. Macleane's report of the 4th August 1882 was reviewed at length by the Senior Member of Council and His Excellency the Governor recorded his remarks upon it. Again, the endorsement on Exhibit XI indicates that the question of the removal of the Municipal Commissioners including the plaintiff was considered in Council, and Mr. Branson's contention, therefore, which was based on the papers produced for the defendant cannot be supported. Upon the construction of Section 9, however, as already observed, I must find the first issue in favour of the plaintiff. His dismissal from the Municipal Commission not being lawful, it must be taken that he is entitled to some damages. Though it is admitted for him that he has sustained no special pecuniary damage, yet his Counsel contends that this is a case for substantial damages, and for the purpose of determining how far this contention is well founded, I think we ought to come to a finding on the second issue and to consider what information there was before Government insofar as it relates to the plaintiff's conduct at the date of his dismissal. As it is not stated for the defendant for what specific act the plaintiff was removed from his office, as no minutes of consultation are produced and no specific misconduct is set out as the ground of dismissal in the paper of particulars furnished under the order made at the first hearing, it becomes necessary to refer to the several matters mentioned either in the evidence, or during the argument as pertinent to the claim for substantial damages. Of these, however, there are some which have no material bearing on the plaintiffs removal. I may treat as such the plaintiff's conduct in connection with the conservancy of the river at Salem, his vote on the question whether it is feasible to have non-official Presidents for Municipalities, in the provinces, his alleged desire to become the first non-official President if there should be a change in the law in regard to Municipalities, his habit of writing to the newspapers at Madras, the difference of opinion merely as such between him and the President and his professional advocacy in his capacity as Vakil. It is not at all likely that any importance would have been attached to these matters in connection with the plaintiff's dismissal.

37. Again, there are some matters, which though before Government and highly prejudicial to the plaintiff, if accepted, were not likely to have influenced Government in regard to the plaintiff's removal. I refer to his alleged participation in the riot of August 1882. Three Judges of this Court, who heard the plaintiff's appeal, agreed in acquitting him and their judgments were before Government at the date of his dismissal. We may take it that neither the remarks of Mr. McIver nor of Mr. Wigram as to the plaintiff having been concerned in the second riot were likely to have been accepted as a ground for his removal.

38. As to the riot of the 28th July the papers before the Government do not implicate the plaintiff. The evidence produced for him is that on this occasion he served as a special constable for one night, and that he advised the mob that was assembled to disperse. This is a circumstance in his favour and could have had no connection with his dismissal.

39. As to personal ill-will or malice which the plaintiff imputes to Dr. Macleane I see in the evidence no foundation for it. The plaintiff states that he heard that Dr. Macleane regretted that the High Court acquitted him; but this is only hearsay. He next refers to the inaccurate statements made by Dr. Macleane. But though they are not proved, there is not enough to show that Dr. Macleane did not make them bond fide. In connection with this imputation I may refer to the following passage in Dr. Macleane's letter of the 27th August 1882. 'I confess my first impulse was to send for Vijaya Ragavachari to upbraid him for his folly and ask him to come over to our side. He has given me more trouble than anybody else here, but I confess I admire him.' In another passage relating to the plaintiff, Dr. Macleane says, 'He is more the specially retained counsel of the conspirators than a conspirator himself, 'and then adds I have accused him of nothing but intemperate behaviour as a Municipal Commissioner.' These passages show no doubt that Dr. Macleane considered that the plaintiff's conduct as a Municipal Commissioner was intemperate and that he was not a safe man at the head of public affairs; but they also seem to me to show that whatever inaccuracies there may have been in his statements, Dr. Macleane was not actuated by personal ill-will against the plaintiff.

40. Among the information before Government which was prejudicial to the plaintiff and which probably led to his dismissal, I may mention Dr. Macleane's statements (1) that the plaintiff surreptitiously obtained confidential information from the Collector's office to be communicated to newspapers and made the most unscrupulous use of it; (2) that the sabha or association of which he was a prominent member raised funds for the defence of men who were concerned in the riots of 1882; (3) that the sabha improperly influenced the election of 1882, so that the elected Commissioners were not a representative body, but persons bent on advancing sectarian interests so as to add to the irritation of the Muhammadans in the town of Salem; (4) that his behaviour in connection with the culvert question was intemperate'; and (5) that the Hindu Municipal Commissioners as a body with the plaintiff [481] at their head acted as partisans in furtherance of sectarian views and wilfully betrayed the trust reposed in them as public men, and thereby added to the excitement of the Muhammadans, which precipitated the outbreaks of July and August 1882 to the destruction of life and property in Salem. If matters such as are mentioned above were proved, I should have no hesitation in finding the plaintiff guilty of misconduct within the meaning of Section 9 of Act III of 1871. Dr. Macleane, who urged in his letter of January 1883 in support of his views as to the conduct of the Municipal Commissioners that . it had not till then formed a subject of judicial enquiry, did not go into the witness box to prove those charges, and the counsel for the defendant disavowed any intention to prove actual misconduct. Whilst on the one hand no alternative is left to us but that of saying that misconduct is not proved, I must observe that, acting as the Government did upon the information of the Collector of the district and their other officers, with an earnest desire to prevent the recurrence of the outrages of July and August 1882, they dismissed the plaintiff bond fide in the belief that such removal was necessary in the interests of the public peace. Though in doing so they acted in the ordinary way as observed by the Advocate-General, the procedure followed by them is open to the observation that the judgment they formed was an ex parte judgment, inasmuch as no explanation was demanded from the plaintiff as is usually done in regard to persons in the Government service. As already observed, the Advocate-General suggested that, upon the true construction of Section 9, Members of Government were the sole judges of the fact of misconduct, and even in this view, it is only right that the plaintiff should have been heard in his defence, for, the determination of a statutory right to remain in office for three years depended upon the judgment which was formed regarding his conduct. In August 1882, the plaintiff desired to be heard, and alleged that Dr. Macleane had misrepresented him, but his letter was simply ordered to be lodged. Again, after his removal from office, he sought for information as to the circumstances which induced the Government to remove him, and the order passed on his letter was to the effect that the communication solicited would be declined.

41. There is one more matter to which the Advocate-General drew our attention in his reply, viz., the plaintiff's conduct, as shown by his own evidence in connection with the culvert question, at the municipal meeting of the 5th July 1882. The learned Counsel argued that though the plaintiff acted within his own legal rights as Municipal Commissioner, there was much indiscretion in his behaviour, that it added to the irritation of the Muhammadans, and that those who are responsible for the peace of the Presidency would not desire to keep men guilty of such indiscretion at the head of public affairs. The culvert referred to is situated on one side of the mosque at Sevvaipet. Sometime in 1882 one Manika Mudali, who was in charge of the Sevvaipet division as a Municipal Commissioner, caused some additional stones to be placed so as to widen it. The purpose alleged by him was that of conveying with case materials for the repair of the dilapidated temple beyond the culvert. The Muhammadans complained that this was an act of aggression on behalf of the Hindu residents of Sevvaipet in extension of their right to have processions attended with music by the mosque. The question argued was--What was the purpose for which this work was intended? The plaintiff states in his evidence that whether the culvert was narrow or wide, processions might take place, and that it was not therefore an act of aggression. As to the allegation of the Muhammadans that pigs might be slaughtered so as to shock their religious feeling, it is not usual for Chetties and Weavers to sacrifice pigs in their temples or religious processions, and if they are sacrificed, it must be done wantonly and contrary to religious usage to irritate the Muhammadans; and the plaintiff's statement therefore that there was nothing in the specific objection taken by the Muhammadans may have been bona fide. His evidence, however, as to the purpose of the extension of the culvert is open to this remark, viz., that the widening of the culvert would afford an increased facility for processions on another side of the mosque, and that although there is no evidence that such processions were immediately contemplated, their possibility might not be deemed to be remote, regard being had to the fact that, when sectarian feeling runs high, new processions and festivals might be easily instituted unless they should be forbidden by the Magistrate. To this extent, therefore, the contention for the defendant that the extension of the culvert favored sectarian views is entitled to weight. There is another stand-point, from which also the matter may be looked at as suggested by Mr. Branson. The High Court judgment had recognized the right of the Hindus in regard to processions, subject to the exigency of the public peace and subject also to the freedom from disturbance due to Muhammadans whilst engaged in public worship in the mosque. Judging of the plaintiff's intention with reference to this exposition of the law, the extension of the culvert may have been regarded as an act within the legal rights of the Hindus, provided that the limitations above indicated were not intended to be ignored. There is a further standpoint. The Muhammadans appeared to be not satisfied with the High Court judgment in so far as it allowed processions with music at all. The Hindus appeared to be not satisfied in so far as it imposed limitations upon their civil right but only sought to enforce it subject to the limitations. Amidst this antagonism of feeling, the Magistrate who would naturally be anxious to prevent any addition to sectarian bitterness would properly desire that matters should remain in statu-quo. This was the view taken by Mr. Small, Mr. Stokes, and Dr. Macleane; for it appears from the evidence that Dr. Macleane said so expressly at the meeting of the 5th July that Mr. Small removed the additional stones placed under the order of Manika Mudali, and that Mr. Stokes removed one additional stone which had been newly placed but which had not been removed by Mr. Small. Apart from the nature of the act itself, there were certain irregularities of procedure which tended to irritate some of the Municipal Commissioners against one another. Manika Mudali's procedure in placing additional stones without the previous sanction of the Municipality was an act in excess of his authority as Municipal Commissioner, who was placed in charge of a division only for executive purposes. Mr. Small's procedure in removing the stones without speaking to Manika Mudali and without the sanction of the Municipal Commissioners was also irregular. There is one other matter to which I should also allude as having a bearing on the feeling of the parties concerned. In December 1881 Mr. Stokes allowed the Hindus to have their procession by the mosque, and had summoned Police men from the adjoining districts to prevent a possible breach of the peace on the occasion. Subsequently there was an order of Government in which it was pointed out that where the available Police force was insufficient to render sectarian processions innocuous, the High Court's judgment recognized the authority of the Magistracy to subordinate the civil right of the sectarians to the exigencies of the public peace. This was calculated to raise a doubt whether processions would be allowed as regularly as the Hindus at Salem desired to have. It was in this state of facts that the culvert affair came up for discussion at the meeting of the 5th July. It is not denied that during the discussion at this meeting that Dr. Macleane called attention to the sectarian aspect of the question, and suggested that the culvert be allowed to remain in its former condition. It is not also denied by the plaintiff's witnesses that the Hindu Commissioners as a body voted for the extension of the culvert and for the work being entrusted to Manika Mudali for execution. Nor is it denied that there was a petition from the Muhammadans condemning the proposal. There were some Hindus and Muhammadans in the verandah, outside the hall where the Commissioners were assembled; there was no Muhammadan in the Commission; the plaintiff spoke in an excited manner the other Hindu Commissioners voted with him. The plaintiff argued that the objection taken by the Muhammadans was frivolous, and said that if the Commissioners yielded to it, they would show want of courage. It is denied, however, that the plaintiff alluded to any High Court judgment being on the side of the Hindus and that the Hindu Municipal Commissioners were engaged in criticising the conduct of Mr. Stokes in connection with the culvert as Dr. Macleane entered the Municipal office. Dr. Macleane did not go into the witness-box to contradict the plaintiff's witnesses. I may however say that I do not attach weight to this part of the evidence, for the existence of the High Court judgment was a fact well known both to the Hindus and Muhammadans, and the vote of the Hindu Commissioners was a silent condemnation of Mr. Stokes' procedure even if there was no express criticism. Now two questions arise upon this evidence--(1) Does it show misconduct within the meaning of Section 9? (2) Does it show want of discretion as observed by the Advocate-General? As to the first, I must answer it in the negative. In the first place, the plaintiff acted as conceded by the Advocate-General within his legal rights as a Municipal Commissioner. Secondly, there is no evidence to show that he foresaw that a riot would ensue and that, with that knowledge he persisted in pressing the proposal. Thirdly, his remark to the assembled mob on the 28th July that they could gain nothing by violent conduct and that they should disperse negatives an intention that breach of the peace should be the result of his behaviour. Fourthly, his behaviour is consistent with a belief that the opposition made by the Muhammadans in regard to processions might give way, and required only to be dealt with a strong determination as was done in December 1881. Fifthly, the evidence for the plaintiff is intended to show that there was no misbehaviour, but that the plaintiff stated what he felt according to the best of his judgment without any intention or desire to imperil the public peace. Sixthly, no evidence is tendered for the defendant that there was any intention to betray the trust reposed in the plaintiff. Seventhly, it happens sometimes in public assemblies that elected members seek to advance what they believe to be the legal rights of their constituents, though they may relate to sectarian matters in order to satisfy them, whilst such conduct is usually rendered innocuous by a provision made for the representation of adverse interests so as to counteract such tendencies. Eighthly, the immediate cause of the riot of the 28th July was the infringement of Mr. Stokes' order, while the riot of the 16th August was due to the feeling among the Hindu residents of Sevvaipet that their right in regard to processions might be indefinitely postponed. Ninthly, there is no evidence in support of Dr. Macleane's statement that the public peace was imminently in peril on the 5th July. As the Government acted in this case under the sanction of the municipal law and their decision has to be considered with reference to its requirements, it is not possible to come to the conclusion upon plaintiff's own evidence (for there is no evidence to the contrary) that the plaintiff' intentionally betrayed the trust reposed in him as Municipal Commissioner and wilfully endangered the public peace, and that the misconduct which it is necessary to prove is made out on his own showing. I must however add that though the evidence produced for the plaintiff shows no misconduct within the meaning of Section 9, Dr. Macleane's suggestion that the culvert had better be left in its original condition was reasonable, regard being had to the state of feeling between the Hindus and Muhammadans at Salem at the time. A Municipal Commissioner acting with moderation and forethought would have felt that it was inopportune to complicate and embitter the misunderstanding already existing on the subject of processions by pressing the extension of the culvert. The contention that the plaintiff's behaviour was intemperate and indiscreet though within his legal rights is therefore entitled to weight. The plaintiff's allusion to want of courage was highly improper. The conclusion I come to, therefore, is that the Government acted bona fide in removing the plaintiff from the Municipal Commission but not in accordance with law, that the procedure was defective in that no explanation was demanded and considered, and that upon the plaintiff's own evidence his conduct at the meeting of the 5th July was indiscreet though he acted within his legal rights. Under all the circumstances I also think that 100 rupees may be awarded as damages in addition to costs.

Hutchins, J.

42. On the 8th February 1882 the plaintiff in this case was elected to be a Municipal Commissioner of Salem under Section 9 of the Towns' Improvement Act (Madras Act III), 1871, and under the provisions of that section he was entitled to continue in office for three years. The section, however, goes on to provide that 'the Governor in Council may from time to time accept the resignation of any of the Commissioners so elected, or may remove any of such Commissioners for misconduct or neglect of duty.'

43. On the 29th May 1883 the Governor in Council published a notification in the Fort St. George Gazette, purporting to remove the plaintiff' and three other members of the Commission from office under Sections 7 and 9 of the Act. The material provisions of Section 7 are identical with those of Section 9, but it relates to Commissioners who have been appointed by the Governor in Council himself. In neither case can the Governor in Council remove a Commissioner except 'for misconduct or neglect of duty.' The removal of the plaintiff must therefore have been for one or other of these causes and the one alleged for the defence is misconduct. The plaintiff's case is that his removal was illegal and noperative.

44. The defendant is the Secretary of State for India in Council. The alleged wrong was the Act of the Madras Government, but Section 416 of the Code of Civil Procedure requires that all suits--there is no exception--' brought by or against the Government shall be instituted by or against (as the case may be) the Secretary of State in Council.' It was objected by the learned Advocate-General that the Secretary of State could not be made answerable in damages for an act which he had not done, authorized or ratified, but he ultimately conceded that, if the Government would have been answerable otherwise, Section 416 would make the Secretary of State liable, and I have no doubt that this is so.

45. The issues framed were as follows:

(1) Was the removal of the plaintiff from office legal?

(2) Did the Governor in Council exercise the discretion vested in him by the Act bond fide, and in a legal and proper manner?

(3) To what damages, if any, is the plaintiff entitled?

(4) Is the plaintiff entitled to the declarations asked for in the plaint, or to either, and which of them, or to any other and what relief?

46. The plaintiff originally asked not only for 10,000 rupees as damages, but for declarations (l) that his removal was null and void, and (2) that he was entitled to hold office as a Commissioner for the residue of his three years. At the final hearing he withdrew the prayer for the latter declaration, and he further stated that he did not allege any special pecuniary damage and would be content with such sum as the Court might award on a consideration of the conduct of Government towards him. We, therefore, called upon the defendant to begin.

47. Thereupon, the Advocate-General stated that no evidence of any actual misconduct by the plaintiff would be offered; and, after addressing us upon the construction of the Act, he proceeded to put in certain reports which had been addressed to Government by the Collector of Salem and the Inspector-General of Police with reference to the Salem riots, and having called a Clerk in the Chief Secretary's Office to prove that these papers had been circulated to the Members of Government, he announced that his case had been closed.

48. The plaintiff went into the witness-box himself and called five other persons connected with the Municipal Commission, and a native association called the mahajana sabha of Salem, and their evidence goes to contradict or explain certain statements made in the reports filed by Government. These reports, however, are not in themselves any evidence of misconduct, and, if it is incumbent on the Government to prove misconduct, it must be taken that the suit is practically undefended. The proper construction of the Act is therefore the first point to be considered.

49. The contention for the defence is that an absolute discretion is vested in the Governor in Council, and that, if he has satisfied himself that the plaintiff was guilty of misconduct, his judgment upon the point is conclusive. I have carefully considered the words of the section, and I am of opinion that, although it is not improbable that the Government, when framing the Act, intended to reserve to themselves such an absolute discretion, and to constitute themselves a special tribunal to judge of Commissioners' conduct, they have not done so, Granted that there has been misconduct, or at all events misconduct of such a nature that the question whether the Commissioner should be removed or not could reasonably suggest itself, the Governor in Council has an absolute power to decide that question, and, if he resolves to remove him, he has the further summary power to do all that is necessary to give effect to his decision. But the power is only a power to remove for a specific cause--for misconduct or neglect of duty--and it does not arise unless there has been misconduct or neglect of duty. There are no words to the effect that the Governor in Council alone shall determine whether there has been misconduct or no, and without such express words the plaintiff cannot be, deprived of his ordinary right to come into Court and show that there has been no misconduct. It may well be that he would have declined to put himself forward for election, if the Act had informed him that his character would be at the mercy of officers entitled, in the ordinary course of business, to submit confidential reports to Government.

50. Mr. Justice KERNAN suggested a case which goes far to support this view of the section. He asked the Advocate-General at the hearing to test his construction with reference to a neglect of duty. ' Suppose a Commissioner, entitled to hold office for three years unless he neglects his duty, to have devoted himself diligently to his duties and attended every meeting, and suppose that there has been a confidential report that he constantly absents himself from the meetings, and that the Government believed this report and notified his removal on the express ground that he had not attended such and such meetings. Could he not come into Court and prove that there had been no such neglect of duty and that therefore his dismissal was wrongful? The Advocate-General was, of course, obliged to contend that he could not, but it seems to me that he most certainly could, unless the Act expressly or by clear implication has taken away his ordinary right. I may perhaps make this clearer by suggesting a still more extreme case, although it is not actually within the words of the section. Suppose the Government had taken power to remove a Commissioner on his attaining the age of 55, and had removed the plaintiff because they believed him to be 55, and suppose him to be only 50 and to have accepted office only because he knew he was certain to retain it for his full term. In such circumstances could be not come into Court and prove that the case, in which alone the Government had power to remove him, had not arisen; that his removal was therefore absolutely illegal?

51. The cases referred to by the Advocate-General were sufficiently disposed of during the argument. In The Queen v. Governors of Darlington School 6 Q.B. 696 the defendants had acted under a statute which gave them power to remove according to their sound discretion. That is very different from the power reserved to Government by the Act now in question. In the Attorney-General v. The Greed Western Railway L.R. 4 C.H.D. 743 the Board of Trade had acted on the report of an Inspector and the statute expressly authorized them to do so. The preliminaries required by the Legislature had therefore been complied with. Here the Legislature requires that there should be misconduct in fact. There being no evidence of any misconduct, and much less of any misconduct which could reasonably justify dismissal, it must be taken that there was no misconduct; and if there was no misconduct, the cause alleged to have given rise to the power which the Government assumed to exercise, has not itself arisen. Consequently the power itself has never come into existence, and the act, purporting to have been done under the power, was an illegal and wrongful act.

52. Upon this view of the construction of the section the evidence put in on behalf of Government can only be considered with reference to the question of damages. It seems clear to me that plaintiff is entitled to some damages beyond his costs. This follows from the finding that his removal was a wrongful act and from the Advocate-General's admission that it was not an act of State (see The Secretary of State v. Hari Bhanji I.L.R. 5 Mad. 273 Act XVIII of 1850 protects Magistrates and others acting judicially, and in good faith believing themselves to have jurisdiction, but it cannot be pretended that Government were acting judicially, and I fail to see any foundation for the Advocate-General's suggestion that a protection, necessarily given to persons acting judicially, can be extended by analogy to other persons who have acted otherwise than judicially.

53. The plaintiff has, however, admitted that he has not sustained, or at all events he does not prove, any special pecuniary loss. The damages can only be assessed therefore upon a consideration of the grounds upon which the Government acted and any special features in their behaviour towards the plaintiff. In this view it becomes necessary to examine in some little detail the evidence adduced on either side. In order to do this I have been obliged to read through almost all the voluminous reports and judgments connected with the Salem riots, but I think the material points can be stated shortly when it is borne in mind that three Judges of this Court have unanimously declared the plaintiff, innocent of any actual participation in the riots.

54. Unfortunately we have not been favoured with any minutes, or order of Government, showing definitely of what misconduct they considered plaintiff had been guilty. When the plaintiff himself applied for information upon this point it was refused, and when, upon the first hearing of this suit, I ordered particulars to be given, instead of furnishing a succinct statement of facts found and believed, the advisers of Government put in a statement which appears to be a mere disjointed collection of disparaging observations culled from the various documents which have been filed in extenso. This shows indeed what information was before the Government, but it does not show how much of it they believed, why they believed it, or upon what definite facts they mainly relied. I must take it, however, that they accepted this Court's decision as to participation in the actual riots, and, after what has fallen from Mr. Advocate-General, I may, I think, assume that the only misconduct imputed to the plaintiff is that he was a partizan; that instead of exercising his functions as a Commissioner impartially and for the equal benefit of all classes of the community, he leagued himself with others of his own religion to carry violent measures to which the Muhammadans reasonably objected, and which to his knowledge might lead, and actually did lead, to very disastrous riots. I can see no foundation for the suggestion that the matter was the work of only one member of Council and not of the Governor in Council. It is true the removal must be by the Governor in Council and it is quite clear that it was so. The actual evidence is that the papers were circulated generally. It was not elicited that they were only sent to one member and many of them bear remarks or initials which show conclusively that they went to more than one member. For instance, the most important paper, to my mind, is exhibit III, and the care with which that was considered is evident from the very unusual fact that the entire 'order thereon' is in one of the members' own handwriting, while in the margin there are remarks by His Excellency the Governor showing that the alleged conduct of the Municipal Commissioners had received his special attention. Again, it is clear that the question which of the Commissioners should be removed was considered in the Council room. The original draft included five men, but it contains the following endorsement by one of the members of Council: 'It was settled last Council that the other men mentioned in this draft should be removed, but not Chinna Basava Chetti--Correct the order.' It is not otherwise proved that this endorsement correctly represents the facts, but the clerk did swear that he was sure the matter had been considered in Council and I think I am justified in assuming that the endorsement is true, at all events for the purpose of assessing damages. The act therefore which the law requires to be done by the Governor in Council was so done, and it is unnecessary to consider how far the powers of the Governor in Council can be exercised by a single member.

55. I now pass to the question whether, on the evidence or information before it, the Government could reasonably have come to the conclusion, to which it seems to have come, that the plaintiff was guilty of the misconduct which I have just described. If so, it might reasonably have dismissed him, for I suppose there can be no doubt that a man who abuses powers entrusted to him for the public good to favour the particular section of the community to which he himself belongs, and recklessly endangers the public peace, is guilty of misconduct : and it must be conceded that, if a Commissioner is guilty of misconduct, the Government is the sole judge whether he should be dismissed or not. Partizanship, such as I have described, is a totally different thing from mere opposition to the Collector, and even from factious opposition.

56. Exhibits A to E are proceedings of the Salem mahajana sabha, and several of them relate specially to the electioneering measures by which it secured the return of its own nominees. Exhibit I is Mr. Stokes's report on the result of the election, and exhibit II merely gazetted those elected. The sabha's proceedings were perfectly fair and constitutional, and to all appearance loyal and praiseworthy. They need not have been referred to but for certain statements made in Dr. Macleane's report, exhibit III.

57. This (III) is the report on the first of the riots, which occurred on the 28th and 29th July 1882. This is a confidential report, and apparently a well considered one, purporting to sum up for the information of Government everything which led to the disturbance. Of course it was not before this Court in the criminal cases, nor could it affect the question of this plaintiff's criminal responsibility, but it was one of the papers upon which the Government would ordinarily act and was entitled to act, and upon which the Legislature may reasonably be supposed to have intended that it should act. It commences by describing the origin of the mosque and the antagonism between the Muhammadans of Sevvaipet and 'a well organized body of Chetties,' who represent the Hindus of the quarter and are wealthy and monopolize the civic authority of the town. In December 1881 a Hindu car and procession had been forcibly carried past a side of the mosque under the protection of the police. At the beginning of February a further step had been taken by the Hindus--a term which I understand to mean here the Sevvaipet Chetties--under pretext of a desire to convey materials to repair an old pagoda, but, as the Collector was convinced, in order to force their processions past another side, and that the front of the mosque, these Sevvaipet Chetties prevailed on Manikam (one of the Commissioners, since convicted) to widen a culvert. Although a Divisional Commissioner, his powers were limited to inspection : there was no petition for widening the culvert before the Commissioners : but at the instance of the Chetties and with the assistance of Hindu bystanders he arbitrarily put down seven stones where there had been but two, and converted a mere foot-bridge into one capable of being used for carts, and, so far as appears, for a processional car. The Vice-President having discovered this, removed four of the new stones and Mr. Stokes the fifth.

58. In this position of affairs Dr. Macleane took charge of the district, and he first met the Commissioners, including the plaintiff, on the 4th July. What follows he asserts upon his own knowledge. On first entering, he found the Commissioners vehemently criticizing Mr. Stokes's action: this has been contradicted now, but it represents Dr. Macleane's own impression and was stated to Government as a fact. The statement that it was not on the agenda 'is unimportant: it had not come on in the regular course. When it did come on (I am quoting the substance of the report), there was much excited speaking : it was evident all had agreed to vote for the widening of the culvert and that the Commissioners were entirely going beyond their functions as impartial guardians of the public interests. The principal speaker was this plaintiff--this is not denied--and he is a loud and energetic speaker. His remarks were to the effect that he did not see why they should be afraid of the Muhammadans--this is admitted : that they had now a High Court judgment in their favour--this is denied, but Dr. Macleane can hardly have imagined it, and it is impossible for the plaintiff, or any one else, at this distance of time to remember all that he stated. What follows are remarks which Dr. Macleane puts into his own mouth; they are denied in great part, but it is conceded that he did draw attention to a religious dispute being involved, and recommended that the Commissioners should decline to alter the status quo. It is also admitted that the three European or East Indian Commissioners took this view, but that all the Hindus persisted in voting the other way and carried their resolution.

59. The elected Commissioners, it is continued, can carry the meeting and are identical with the Hindu religious party. Then comes an account of the sabha, in which no doubt there are some inaccuracies, but this part of the letter is not of much importance. What follows relates more particularly to the plaintiff himself. The above shows the line adopted by the Commissioners in dealing with a religious party-question. Plaintiff has been defending all the prisoners arrested in the late riots. To-day (that is six days after the first riots) he argued at length a petition from the Hindus for leave to force another procession past the mosque as in last December, but pleading is his profession and I (Dr. Macleane) would not attach too much importance to these last two facts. But, he says, I am desirous of pointing out that he is at present the leading figure in the Commission and mouth-piece of the Hindu religious party in all its affairs (the Hindu party has now come to include all the Hindus, for all had supported the Sevvaipet Chetties), and the utterly indiscreet behaviour of the Commissioners in the culvert matter has increased the irritation between the two sects and precipitated the outbreak. The Muhammadans now look on the Commissioners as equally their enemies with the Chetties of their own quarter. On the 9th July they presented a petition asking for protection against the Commissioners.

60. Such was the information submitted to Government. The material part of its order (IIIa) was to the effect that there were strong grounds for believing that...certain action of the Municipal Commissioners, described by the District Magistrate, was designed to favour the procession taking the obnoxious route contemplated. This is the only approach to a finding of fact by Government which I can discover among the records.

61. The Police Report (IV) of the same date as III contains nothing material.

62. Exhibit V is a memorandum by Dr. Macleane regarding certain individuals. He says that this plaintiff was in the habit of obtaining official information from the kacheri for two newspapers and that unscrupulous use had been made of it, one of the individuals named being supposed to be the go-between. The plaintiff denies having obtained the information surreptitiously; he merely communicated what he heard talked about, and states, rightly enough, that confidential matters often leak out through guesses and piecing small facts together.

63. Exhibit VI is a demi-official report by Dr. Macleane written soon after the second riots. As to the plaintiff, he writes that he seemed more the specially retained counsel of the conspirators than a conspirator himself. I have accused him of nothing but intemperate behaviour as a Commissioner...I thought of sending for him, upbraiding him for his folly, and asking him to come over to our side. He has given me more trouble than anybody else here, but I confess I admire him...I am of opinion that as an act of State, Government will eventually have to disband the Commission. This letter is, I think, a sufficient answer to the plaintiff's insinuation that Dr. Macleane entertained a personal spite against him. If any other is needed, it may be found in the fact, noted in the Chief Justice's judgment on plaintiff's appeal, that the District Magistrate had properly refrained from issuing a warrant against him--a fact which the plaintiff relies on as showing spite, but which really negatives it.

64. The concluding words of letter VI had prepared the Government for a proposal to 'suspend the action of the Municipality on the ground of the Commissioners' misbehaviour in connection with the religious disputes of the town.' The letter VII, written 29th January 1883, after the plaintiff's acquittal by this Court, contains the proposal and points out, correctly enough, that this Court had not had before it any impeachment of the Commissioners as a body for disregard of the trust placed in them. After recapitulating much that had been said in exhibit III Dr. Macleane reasserts, from the keen impressions of a new-comer, that at the meeting of July 4th and 5th one and all thought only of the advancement of sectarian affairs. He made some remarks as to the elections and the sabha as leading up to this conclusion, but there are some pencil notes in the margin of the letter, which seem to show that neither of those points is likely to have influenced Government. With regard to the plaintiff Dr. Macleane stated that his opinion as expressed above in exhibit III remained unaltered, that he was a notoriety hunter' whose head could easily be turned, that he had been obliged to resign his mastership in the school because unable to get on with Mr. Small. The Commissioners were accused as a body of having greatly helped to excite the fanatical feelings of the people, notwithstanding warnings, and the outward sign of their disposition, and that by which they must be judged, was stated to be the culvert affair. An enclosure to this report shows that even before the elections in February the Muhammadans had alleged that the Sevvaipet Chetties intended to take their processions down the new road and were striving to get their partizans nominated as Commissioners. Exhibit VIII is Dr. Macleane's note or precis of everything connected with the riots. It bears date 25th April. The clerk shows that all the papers were circulated again about the middle of May and a final despatch sent to the Secretary of State towards the end of that month. The Council, at which it was resolved to remove the plaintiff, was the one preceding the 21st May (XI). There is nothing strange therefore in the fact that his removal was four months after this Court's judgment. The only part of exhibit VIII which needs notice is paragraph 34. In the first few days of August, it is represented, Sundaram evidently thought the troops would enable him to force the car past the mosque as in December. On the 4th August this plaintiff, so prominent in leading the Commissioners on the culvert question, petitioned on behalf of Sundaram that the troops might be recalled from the station and line the streets during the procession. Plaintiff admits that he did so, and that he put forward this as his reason for wishing the troops to be retained, though he asserts that his real reason, not mentioned to the Collector, was that the people were still in an excited state. Immediately after he despatched a telegram in the name of a third party, another Chetti and a Municipal Commissioner, asking Government to prevent the troops from leaving. Dr. Macleane believes, and apparently not without reason, that his motive was not to preserve the peace so much as to force on the procession, but of course the plaintiff denies this.

65. Exhibit IX is the file of judgments in the criminal cases. The first two extracts are from Mr. McIver's register and describe the plaintiff, in his highly coloured diction, as having taken an active share in the war against the Moslem (largely, it is admitted, in a professional capacity), as having been prominent in the Municipal action against the Muhammadans and as having inflamed the Municipal Commissioners to revolt. It cannot be supposed that Government were at all influenced by exaggerated language of this description, and it is a pity that it was ever allowed to be inserted in the statement of particulars.

66. Then comes Rama Rau's evidence as to what took place at the meeting of 4th and 5th July. He also mentioned another meeting at which the plaintiff opposed a measure brought forward by the late Collector, but the opposition on that occasion was clearly reasonable and may be put out of consideration. So also may the plaintiff's desire for a non-official President.

67. Exhibit IX (e) is an extract from Mr. Wigram's judgment, which has been overruled by this Court so far as plaintiff is concerned. The material part is that, in his opinion, plaintiff had identified himself in the Commission with the Hindu party, which was resolved to have a voice in their own affairs and had very little idea of justice to the Muhammadans, and that he was far too acute to be a tool in the hands of Sundaram, or any of his colleagues.

68. Then come the High Court's judgments. In the first case the learned Chief Justice made but a brief allusion to the culvert affair. He thought the conveyance of materials for the repair of the culvert was not unreasonable explanation of the Hindu Commissioners' action and remarked that the incident had no other bearing on the case before him than that the excitement created by it illustrated the temper of the townspeople. In referring to the petition presented on the 4th August by the plaintiff for Sundaram, he remarked that the petition itself--the arguments of the plaintiff were not before him--was drawn with moderation, except in one part which insinuated that the Collector ought to insist on the widening of the culvert, lest on the one hand the Muhammadans should think he gave way because they were a powerful class, or the Hindus on. the other because the Muhammadans gave trouble and were specially favoured by Government.

69. In the plaintiff's own case all the Judges referred with disapproval to Mr. Wigram's remarks as seeming to assume that constitutional opposition to the Collector indicated a lawless spirit and a disregard for lawful authority. Much of the plaintiff's conduct appeared to the Chief Justice to have been inspired by an earnest desire to secure the tranquillity of the town, and as for the meeting of the 5th July it was remarked that Sitaramayyar, another Commissioner who voted with the plaintiff though he was not on terms with him, stated in explanation of his vote that he had inspected the spot and considered the Muhammadans' objections unsustainable. Upon this point, however, it may be remarked that Sitaramayyar's dislike for the Muhammadans may have outweighed his dislike for the plaintiff, and that the mere existence of a plausible pretext cannot disprove an ulterior design. Mr. Justice INNES could find no evidence that plaintiff exceeded his rights as a Commissioner, indulged in factious opposition or advocated the widening of the culvert otherwise than as a convenience to which the Hindus were entitled. He regretted that plaintiff's independent and constitutional discharge of his functions as a Commissioner should have been put forward as relevent to the charge of abetting the outbreak.

70. I have, however, already remarked that there was good deal before Government which was not before the High Court. They had in particular the decided and reiterated opinions of their most confidential officer, in great part based on his own observations, that the plaintiff had leagued himself with the Sevvaipet Chetties, and that, notwithstanding warnings and with the full knowledge of Sundaram's object which his trusted adviser and advocate was likely to possess, he had insisted on carrying the measure which was the immediate cause of the outbreak. I do not of course say that this is proved--no attempt has been made to prove it, and probably it is to a great extent incapable of proof. I do not even say that I should have come to the same opinion myself, but only that this was a view which the Government may reasonably have adopted upon the information before them and which they must be taken to have adopted. That being so, I should have declined to award more than nominal damages but for another feature in the case to which I shall now advert.

71. On the 9th August 1882 the plaintiff submitted to Government his petition H. He stated that he had learnt that the Collector had reported unfavorably about him (in exhibit III), probably owing to the misrepresentations of Mr. Small, and he prayed for a copy of the report and for an opportunity of defending himself. This was simply 'lodged,' and I observe that His Excellency the Governor did not see it. Probably there was then no intention of dismissing the plaintiff, and it is just possible that his request was afterwards lost sight of, but it is curious that a Government, which most properly insists on the meanest of its own servants having the fullest opportunity of being heard before dismissal, should have overlooked the fact that an elected Commissioner' had at least an equal right. It is still more strange that this petition should have been inserted among the particulars of unfavorable information given to the plaintiff after the first hearing, and that Mr. Advocate-General should have referred to it as showing that, to a certain extent, the plaintiff had been heard. He had not been heard, except to say that the Collector had been prejudiced and that he wished to meet what had been alleged against him. Then again, after his removal, he asked by H for information as to the nature of the misconduct or neglect of duty, of which he was supposed to have been guilty, and for copies of the papers. Both requests were curtly refused.

72. Taking all this into account, I concur in awarding the plaintiff Rupees 100 as damages besides his costs.


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