1. The question whether the territory of Mohurbhunj is within the limits of British India is a question of evidence.
2. There is nothing to show whether the Mahrattas exercised direct authority over this territory, or whether they treated it merely as tributary. From its situation and character, however, the probability would seem, to be that the Mahrattas only exacted tribute from it. Nor does the cession by the Mahrattas to the East India Company throw any further light upon the matter. If the Mahrattas had only the rights of a paramount power, the East India Company could, under the cession, gain no higher rights.
3. In this state of circumstances the Regulations of 1804 and 1805 were passed, the Government being probably in doubt as to what rights they actually took from the Mahrattas. Nothing was done under the Regulation of 1804 (which applies only to the territory ceded by the Mahrattas) to this particular territory. And the Regulation of 1805 seems to me to show that the Executive Government, being in doubt as to its true relation with the territory, determined to deal with it only in a negative way until such doubts were set at rest. It is observable that, in the schedule to the Regulation, this territory is described differently from the other estates dealt with.
4. The Regulations of 1816 and 1821 do not seem to me to carry the case further. They relate only to the exercise of such authority as would properly and naturally be exercised by a paramount power.
5. The treaty engagement of 1829, if it stood alone, would, in my opinion, be conclusive to show that Mohurbhunj was merely tributary. It is of a different period to the engagements with the other mehals. It proceeds from the Raja of Mohurbhunj without any reciprocal instrument in the nature of a patta or sanad from the East India Company; and it speaks of my territories,' of 'a contingent force of my own troops' and of 'my successors,' which is not the language which the Executive Government would be likely to tolerate from a mere subject.
6. Then come the rules of 1839 issued by the Bengal Government. They assume that there was something peculiar in the status of tin's territory; and on the whole they do not seem to me inconsistent with its being tributary. All that they do is to invest a Bengal officer with necessary authority as the representative of the paramount power to act at the request of the Raja.
7. No direct civil jurisdiction has ever been exercised in the territory by the Executive Government of India.
8. Lord Canning's sanad distinctly deals with the territory as independent and not British territory. For example, it ratifies the right of adoption which would have been mere surplusage if addressed to a British Indian subject. We know that both the Government of India and the Government of Bengal consider the territory to be independent.
9. Under these circumstances the question being a more question of evidence, the maxim 'optimus interpres legis consuetudo' applies with very great force.
10. I am of opinion, therefore, that this territory is not within the limits of British India. And if that is so, the conviction seems to be right; for the referring Judges state that 'the prisoners describe themselves as residents of the Balasore or Singhbhum District,' which would bring them within he provisions of Section 9 of Act XXI of 1879.
11. I concur.
Richard Garth, C.J.
12. I agree in the main with my brother Pontifex.
13. Whether the territory of Mohurbhunj forms part of British India or not, is a question of evidence. It depends partly upon documentary evidence, such as Regulations, treaties, and so forth; and partly upon the way in which the territory has been dealt with by the ruling powers, which are principally concerned with it,--that is to say, the Governments of India and Bengal on the one hand, and the Moharaja, the native chief of the territory, on the other. And when we find that the Indian Government and the Moharaja have, for a long series of years, concurred in considering and treating this territory as no part of British India, and when we also find, that Acts of the Indian Legislature, which have been passed for, and have been acted upon throughout, British India, have never been acted upon or considered to be law in this territory, I must say, it seems to me, that such evidence, in the absence of any cogent proof to the contrary, ought, in British Indian Courts, to be almost conclusive upon the point.
14. I say 'almost conclusive,' because I quite think that, under the circumstances of this case, the question is undoubtedly one which the Court is bound to determine; and that no consensus of the powers who are interested in the matter ought to be considered as binding upon it.
15. It is possible, of course, that the Indian Governments and the Moharaja too, may have been under a mistake. But before a Court of Justice ought to find it a mistake, I think the evidence that it is so should be clear and convincing--evidence of a very different character from the negative and equivocal language of the Regulations, to which our attention has been called, or acts of interference by the British authorities, which may have been intended rather as friendly aids to the Moharaja in the management of his own dominions, than as evidencing any wish on the part of the Indian Government to take the rule of the territory out of the Maharaja's hands.
16. Then another point has also been suggested in this case, upon which, as the responsibility of deciding it rests peculiarly with myself, I think it right to explain my views. The question which we have been considering in this reference had previously come in much the same form before two Division Benches of this Court. Both those Benches, each consisting of two Judges, decided that Mohurbhunj was part of British India. But one of those Benches thought it right to refer certain points for the decision of a Full Bench.
17. Then, upon the case coming on for argument before this Court, the Advocate,-General on behalf of the Government desired that we should also consider the question, whether Mohurbhunj formed part of British India; and my brother Mitter, J., one of the Judges who had previously decided that point, thought that it ought to be so considered; so, after some discussion, we all agreed to hear the point argued and to decide it. The result has been that three of the Judges of the Full Bench are of opinion that Mohurbhunj is not part of British India, whilst the two other Judges (Mitter, J. and Prinsep, JJ.) are of a contrary opinion. My brother Mitter, J., however, for reasons which he will explain himself, holds, as we do, that the prisoners were rightly convicted.
18. Thus it turns out, that three Judges of the Full Bench have decided one way, whilst four other Judges of the Court have decided the other way; and for this reason it has been suggested to me, that I ought to appoint another Full Bench to consider the question again. If I were to adopt this suggestion, I should appoint a Full Bench consisting of the whole Court; and if I thought that any real good was likely to be gained, or that the interests of justice in the particular case required it, I should certainly adopt that course, the more so because in the argument before us the prisoners were not represented.
19. But as four out of the five Judges of the Full Bench consider (though for different reasons), that the conviction should be confirmed, and there is no reason to suppose that the prisoners have not had a fair trial, I do not think that the interests of justice require that the case should be heard again. The prisoners had of course a perfect right to raise the question of jurisdiction; but it was undoubtedly a technical one, and it has been overruled by the majority of a Full Bench.
20. That being so, I cannot see that any good would be gained by the whole strength of the Court being occupied (perhaps for days), in discussing an abstract question as to the political status of the territory of Mohurbhunj. The result would be either to affirm our present judgment, or else to place the Government of this country in a position of considerable difficulty. And lastly I wish to say, that the alleged reason for appointing another Pull Bench is in point of law no reason at all. It has constantly happened, both here and in England, that the majority of an appeal Court which finally decides a point of difficulty, are numerically fewer than the Judges who have previously decided the point the other way.
21. This was notably so in the Full Bench case of Gujju Lal v. Fatteh Lal I.L.R. 6 Cal. 171 which overruled not only the case of Neamut Ali v. Gooroo Doss 22 W.R. 365 previously decided by the late Chief Justice and Mr. Justice Ainslie, but also several other cases, which had been decided in the same way by other Judges of this Court.
22. And the same thing has often happened in England in the Court of Exchequer Chamber. But in all these cases the judgment of the appeal Court is no less decisive of the question, and is considered to be binding upon all other Courts, until it has either been reversed by the House of Lords, or overruled by some provision of the Legislature.
23. Upon the materials before us I am unable to agree in the conclusion that Mohurbhunj is a foreign territory and not part of British India.
24. Section 2, Clause 8 of Act I of 1868 says: 'British India shall mean the territories for the time being vested in Her Majesty by the Statute 21 and 22 Vict., cap. 106 (an Act for the better government of India), other than the Settlement of Prince of Wales' Island, Singapore and Malacca.' Section 1 of 21 and 22 Vict., cap. 106, is to the following effect: 'The government of the territories now in the possession or under the Government of the East India Company, and all powers in relation to government vested in, or exercised by, the said Company in trust for Her Majesty, shall cease to be vested in, or exercised by, the said Company, and all territories in the possession or under the Government of the said Company, and all rights vested in, or which, if this Act had not been passed, might have been exercised by, the said Company in relation to any territories, shall become vested in Her Majesty, and be exercised in her name; and for the purpose of this Act, India shall mean the territories vested in Her Majesty, as aforesaid, and all territories which may become vested in Her Majesty by virtue of any such rights as aforesaid.' Therefore the question for decision is, whether Mohurbhunj was in the possession or under the Government of the East India Company.
25. That Mohurbhunj is part of Zilla Cuttack is clear from the terms of Reg. IV of 1804, as well as from the concluding section of Reg. XII, XIII and XIV of 1805, and the preamble of Reg. XI of 1816.
26. The Regulation of 1804 was passed almost immediately after that part of the country came into the possession of the East India Company on the close of the Mahratta war, and extended the general criminal law in force under the Government of the East India Company to the Province of Cuttack, including Balasore and its dependencies. That territory being formed into the Zilla or District of Cuttack, any doubt that might exist whether Mohurbhunj, or what is now known as the Tributary Mehals, was dealt with by that Regulation is removed by a reference to the Regulations (XII, XIII, XIV) of the following year, which for 'the present' withdrew all this tract of country from the operation of 'all laws and regulations' which have been or shall be enacted (Reg. XIV, 1805, Section 13). The preamble to Reg. XI of 1816, moreover, describes Mohurbhunj as one of the Tributary Estates in Zilla Cuttack. In the engagement entered into in the year 1829 by the then Raja of Mohurbhunj see Aitchison's Treaties, &c;, Vol. I, p. 184 (Ed. of 1876, p. 109)], he describes himself as 'of Killa Mohurbhunj' of Cuttack. Therefore it is quite clear, both from the Regulations passed by the East India Company and the engagement executed by the Raja of Mohurbhunj, that Mohurbhunj is part of Cuttack.
27. The whole Province of Cuttack was ceded to the British Government by a treaty, dated the 17th December 1803, between Roghuji Bhoosla and the Honourable East India Company (see page 97, Aitchison's Treaties, &c;, Vol. III).
28. It has been said that the Mahratta Chief might have possessed only a paramount power over the Rajas of the Tributary Mehals, the sovereign power being vested in them. But by the 2nd article of the aforesaid treaty, the Province of Cuttack, of which Mohurbhunj is a component part, was ceded 'in perpetual sovereignty' to the East India Company.
29. It has been further said that, shortly after the cession of Cuttack, the British Government was not certain as to the exact status and position of the Tributary Rajas, and that therefore the Regulations of 1805 were not extended to them. The language of these Regulations does not show any uncertainty in the mind of the ruling authorities as to the status of these mehals. They were described in Section 36 and 37 of Reg. XII of 1805 as 'jungle or hill zamindaries' or 'estates.' Their 'tributes' are styled as 'quit-rents.' Referring to the settlement of Mohurbhunj, Section 37 says, that it will have to be concluded with the proprietor of that estate for the payment of a fixed annual quit-rent.'
30. The reason for exempting the Tributary Mehals from the operation of the Regulations was not founded upon any uncertainty regarding their status or position, but upon the character of the inhabitants, who are described as 'a rude and uncivilized race of people.' Similar considerations influenced the Government in withdrawing Chota-Nagpore in 1833 from the operations of the Regulations. In fact, it is notorious that this was the cause of the formation of what are called Non-Regulation Districts of British India.
31. Then, in 1816, the Reg. No. XI was passed, vesting an officer under the British Government, vis., the Superintendent of the Tributary Mehals with the power of trying cases of inheritance or succession to these estates. A special procedure was also laid down in that Regulation.
32. It is said that these rules were laid down by the British Government as a paramount power over the native sovereigns. But the Governor-General in Council could not pass any legislative enactment in respect of any foreign territory.
33. It may be noticed here that, in the years 1845 and 1850, the Indian Legislative Council passed laws relating to these mehals, and under Section 43 of 3 and 4 Will. IV, cap. 85, the Governor-General in Council had authority only to legislate in respect of territories under the Government of the Honorable East India Company.
34. It has been already noticed that, in the year 1829 (that is, several years after the British Government had legislated for Mohurbhunj, and had by Reg. XI of 1816 assumed to itself the right of determining the succession to the estate of Mohurbhunj by establishing special Courts and procedure for this purpose), an engagement was executed by the then Raja of Killa Mohurbhunj in favour of the Government of the Honorable East India Company. It is headed in the Collection of Treaties already referred to as a 'treaty engagement.' Whether this heading is to be found in the document itself or not, or whether it is a mere description of it given by the editor of the Collection of Treaties, &c;, I have no means of ascertaining. But in the body of the document itself, it is simply called an engagement. By it the Raja engages to maintain himself in submission and loyalty to the Government of the East India Company, to pay sicca Rs. 1,001 as pesh-kush for the said Killa, to depute a contingent force of his own troops with the forces of Government for certain purposes specified in it, and to relinquish a certain specified claim which he had on 'the Government,' meaning thereby the Government of the East India Company. The two last clauses are very significant, because they contain a distinct admission on the part of the Raja that there was no separate Government of his own within the Killa in question. The Raja called the Government of the East India Company 'the Government,' meaning thereby that there was but one Government in the whole Province of Cuttack, of which Mohurbhunj was a component part.
35. Now it is said that the condition regarding the deputation of a contingent force of the Raja's troops to act with the forces of Government shows that the engagement was not executed by a subject, but by a sovereign. That no such inference can be legitimately drawn from the condition in question is clearly shown in the judgment of a Division Bench of this Court in Hursee Mohapatro v. Dinobundo Patro I.L.R. 7 Cal. 523; the passage is to be found at page 542 of the report. I need not make an extract of it here.
36. In these mehals the administration of civil justice, excepting in cases provided for by Reg. XI of 1816, and Acts XXI of 1845 and XX of 1850, has been left entirely in the hands of the native Rajas, who have no criminal jurisdiction, except in petty cases. The administration of criminal justice is, with that exception, in the hands of the officers under the British Government. Special rules of procedure were framed in 1839 by the then Superintendent of the Tributary Mehals; though they were not formally sanctioned by the Government, yet the officers entrusted with the administration of criminal justice in these mehals were directed to follow the spirit of these rules as closely as possible.
37. The recent orders of Government regarding the powers to be exercised by these officers are thus succinctly recited in the judgment of Cunningham, J., in the case already referred to (p. 531). 'On the 12th December 1870, the Secretary of the Bengal Government addressed the Magistrate as 'ex officio Assistant Superintendent, Tributary Mehals,' informing him that as ex-officio Assistant Superintendent of the Tributary Mehals, he was empowered to take up for trial all offences committed within the Tributary Mehals not punishable with death, and to pass sentences not exceeding seven years, submitting his proceedings, in each case, to the Superintendent. Trials thus conducted were to be, as far as possible, in accordance with the Criminal Procedure Code.
38. In 1872, the Government of India vested the Superintendent of the Tributary Mehals with the powers exercised by a Sessions Judge in Regulation Districts, and with power to hear appeals from sentences passed by any subordinate officer in Tributary Mehal cases.
On the 30th April 1873, the Government of Bengal addressed the Superintendent of the Tributary Mehals, in answer to a letter submitting a tabular statement of the powers then exercised by officers in the tributary estate of Orissa, and the powers which, in the opinion of the Superintendent, ought to be exercised in accordance with the spirit of the new Criminal Procedure Code; authorised the Superintendent to exercise the powers of Magistrate of a District and of a Sessions Judge under Section 15 of the Act, and gave him power to hear appeals from sentences under Section 36. The Magistrates and ex-officio Assistant Superintendents of the Tributary States were invested with the powers of a Magistrate of the first class and under Sections 36 and 222 of the Code.
39. Upon the materials before us we have therefore these facts established:
(1) The cession of Cuttack, of which Mohurbhunj is a component part, to the Government of the East India Company 'in perpetual sovereignty' in 1803.
(2) In 1804, 1805, several Regulations were passed by the British Government treating the Tributary Mehals as part of Cuttack ceded to them.
(3) Legislative enactments were passed from time to time vesting officers under the British Government with power to decide suits of particular descriptions arising in these Mehals.
(4) An engagement was executed by the Raja of Killa Mohurbhunj in 1829 to pay a certain amount of pesh-kush for the Killa and to maintain himself in submission and loyalty to the Government of the East India Company.
(5) With very insignificant exceptions, British officers administer criminal justice in these mehals.
40. In a case decided by the Judicial Committee of the Privy Council Damodar Gordhan v. Deoram Kanji I.L.R. 1 Bom. 367 a similar question arose viz. whether a village named Gangli which was admittedly in British Territory, was ceded, to a native sovereign or not? In the Province of Kattyad, the Thakur of Bhaunagur held certain taluqs which have never been brought under the ordinary administration of the British Government in India. For these taluqs the Thakur of Bhaunagur used to pay certain tributes to the Peshwa and the Gaikwar. The rights of the Peshwa and Gaikwar in these taluqs were transferred to the East India Company between 1802 and 1820. The judicial administration in these taluqs was left in the hands of the Thakur down to 1831. In that year a Criminal Court of justice in Kattyad was established for the trial of capital crimes in certain cases, the sentence of the Court requiring confirmation by the Bombay Government. By an order of Government, the village Gangli was withdrawn from the ordinary jurisdiction of the British Courts of the Bombay Presidency and made part of these taluqs belonging to the Thakur of Bhaunagur. It was contended that this act of Government amounted to a cession of Gangli to a native sovereign, viz., the Thakur of Bhaunagur. The Judicial Committee held that this act did not amount to a cession of territory, but it was intended to confer upon the Thakur of Bhaunagur within Gangli as large a criminal and civil jurisdiction as that which he exercised in these taluqs. It is clear that the status of Mohurbhunj is very much similar to that of these taluqs of the Thakur of Bhaunagur. The Judicial Committee of the Privy Council was strongly inclined to the opinion that these taluqs formed part of British territory. This point was not expressly decided, because it was not absolutely necessary.
41. Some stress has been laid on the sanad of adoption granted to the Raja of Killa Mohurbhunj by British Government in the year 1862. But such sanads were granted to persons who are admittedly holders of mere zamindaries and jagirs (see Aitchison's Treaties, &c;, Vol. III, pp. 319, 320). On the whole, I am of opinion that Mohurbhunj is within British India.
42. The next question is, whether the conviction of the appellants is right, they not having been tried by the Superintendent of the Tributary Mehals.
43. I think the Tributary Mehals constitute by themselves a district within the meaning of the Criminal Procedure Code, and by the Government order of 1872, the Superintendent was vested with the powers of a Sessions Judge. I am of opinion, therefore, that, having regard to the provisions of Section 70 of the Criminal Procedure Code, the conviction of the prisoners ought not to be set aside.
44. I have had the advantage of seeing the judgments of all my learned colleagues in this case, but I regret to be unable in any respect to alter the opinions expressed by me in the case of Hursee Mohapatro v. Dinobundo Patro I.L.R. 7 Cal. 523. That case was decided by Cunningham, J., and myself, after hearing the arguments of counsel on both sides. In the present case the prisoners, appellants, have not been represented: the case has, therefore, been decided on ex parte arguments.
45. The points for our decision are:
First.--Whether the territory of Mohurbhunj is or is not British India, as defined in the Statutes 21 and 22 Vict., cap. 106
Second.--If it is British India, whether the Indian Penal Code and the Code of Criminal Procedure are in force within that territory?
Third.--If it is not British India, whether the prisoners can be properly tried in British India
46. All those points were fully discussed and decided in the case of Hursee Mohapatro v. Dinobundo Patro I.L.R., 7 Cal., 523, and as, after hearing the matter reargued by the Law Officers of Government, and Mr. Mon Mohun Ghose on behalf of the Raja of Mohurbhunj, I see no reason to modify the opinion expressed in my judgment in that case, I do not propose to give the grounds of my opinion with the same fulness as I expressed them in that judgment. It will be sufficient that I should briefly state them, and at the same time mention the reasons for which I altogether dissent from the opinions of the majority of my learned colleagues.
47. I would first of all observe that it was no part of the argument in the case heard by Cunningham, J., and myself, that there was any difference between the status of Mohurbhunj and the other Tributary Mehals, and though this distinction has been made by my learned colleagues in this case, I find myself unable, for reasons which I shall presently state, to agree in that opinion. It will, I think, be more convenient to deal with the case first as if no such distinction existed.
48. The Province of Orissa as now known, together with the country termed the Tributary Mehals, was conquered by the British from the Mahrattas in 1803, and afterwards formed the subject of a treaty entered into with the chief of the Mahrattas, Sewa Sahib Roghuji Bhoosla, on 13th December 1803, by which the country was ceded to us in 'perpetual sovereignty.' Treaties made by us during the course of the war with some of the chiefs of the Tributary Mehals who are described as feudatories of the Mahrattas, were confirmed by that treaty. Mohurbhunj was not among those feudatories who had joined us, but that is immaterial, as will appear from the narrative of subsequent events. The British Government then proceeded to legislate for this now territory, and passed Reg. IV of 1804 to provide for the administration of criminal justice and the authority of the Police. We learn from this Regulation that our rule dated, not from the date of the treaty of 13th December 1803, but from that of the conquest of Cuttack, 14th October 1803.
49. The Regulation deals with the 'Province of Cuttack, including Balasore and the other dependencies of the said Province,' and forms this country into the Zilla or District of Cuttack with two divisions. Whatever doubt there may be regarding the inclusion of the Tributary Mehals as dependencies of the Province of Cuttack within the operation of this Regulation, is removed by the Regulations passed in the following year. The Reg. IV of 1804 was repealed, and three Regulations were passed (XII, XIII, XIV of 1805) providing respectively for the revenue, criminal, and civil administration in the Province of Cuttack, and every one of these Regulations specially exempts the Tributary Mehals from the operation of those laws which it is declared shall not be construed for the present to extend to the estates of certain hill or jungle rajas or zamindars,' of which a list is given. There would have been no necessity for this provision if the law of 1804 had not been intended to apply, and did not apply, to the estates of these rajas or zamindars, and if, in the opinion of Government, the legislation for the Province of Cuttack would not otherwise extend to these estates.
50. The preamble to Reg. XI of 1816, which was enacted to provide for the trial and determination of 'claims to the right of inheritance or succession in certain tributary estates in Zilla Cuttack,' also confirms this view. Act XXI of 1845, is to the same effect, and so is the preamble to Act XX of 1850, which recites that 'whereas certain jungle or hill zamindaries in the Zilla of Cuttack enumerated in Section 36, Reg. XII, 1803, of the Bengal Code, and the territory of Mohurbhunj in the same zilla, are temporarily exempted by the said Regulation,' &c;, 'and were temporarily exempted from the laws and regulations for the maintenance of the Police and for the administration of justice in criminal cases.' That Act provided for the determination of boundaries of those zamindaries, not only as between them and what may be termed regulation territory, but as between one another.
51. This is all the legislation on the subject, and from this, to my mind, it clearly appears that all the Tributary Mehals have been regarded as country ordinarily subject to the laws in force under the British Government, but specially exempted 'for the present' from their operation. The Tributary Mehals have also uniformly been described as estates or zamindaries in Zilla Cuttack, of which they were first made part by Reg. IV of 1804. I regard the terms of the Regulations and Acts to which I have referred as clear and express on this point, and I cannot consider the legislation of the Government in thus temporarily exempting the Tributary Mehals from the operation of the general laws and regulations,--in authorizing the Collector of Cuttack to conclude a settlement for the payment of a fixed annual quit-rent,--in providing for the determination of all claims of inheritance or succession to those estates,--in empowering the Governor-General in Council to prescribe rules for the guidance of such agents and their subordinates as he shall appoint and for the powers to be exercised by them in civil suits and criminal trials,--and in investing the Superintendent of the Tributary Mehals with power to determine all disputes regarding the boundaries between the several estates, as negative or of any doubtful meaning. If any further indication of the intention of Government is necessary, it is to be found in the orders passed by Government in 1814 when creating the office of Superintendent of the Tributary Mehals, which I shall presently quote.
52. I will next refer to what may be termed the executive or political action of Government with regard to the Tributary Mehals. Section 37, Reg. XII of 1805, declared that 'it shall be the duty of the Collector of the Zilla (Cuttack) to conclude a settlement of that estate (i.e., the lands known as the Territory of Mohurbhunj) for the payment of a fixed annual quit-rent, on the principles on which a settlement has been concluded with the other hill or jungle zamindars, specified in the foregoing section.' These other zamindars are the chiefs of the other Tributary Mehals.
53. In accordance with the terms of Section 37, the settlement, which appears in Aitchison's Treaties, etc., Vol. I, page 184, was in 1829 made with the Raja of Mohurbhunj. The engagements with the rajas or zamindars of the other estates known as the Tributary Mehals were made several years earlier; in fact, they are referred to in Section 36 of Reg. XII of 1805 as having been already entered into.
54. Some stress has been laid on the terms of the engagement entered into by the Raja of Mohurbhunj in 1829 as showing that he was not a subject of the British Government. That engagement is similar in all its terms to those entered into by all the other Rajas, except the Raja of Keonjhur, and, as I have already stated, the engagements of all those Rajas formed the subject of Section 36, Reg. XII of 1805, and are mentioned as settlements for the payment of a fixed annual quit-rent.' The terms 'estate,' 'zamindar,' 'settlement' and 'rent' applied to all the Rajas of the Tributary Mehals leave no doubt in my mind of their status with respect to the British Government. I have already in my judgment in the previous case noticed the terms in the engagement which, in my opinion, do not bear the interpretation put on them by my learned colleagues. The Raja styles himself as of Killa Mohurbhunj of Cuttack.' Zilla Cuttack has, since its conquest in 1803, invariably been a part of British territory and British India, and therefore the reference to Zilla Cuttack would, in my opinion, only be an additional indication of the fact that Mohurbbunj was, as set forth in Reg. IV of 1804, a dependency of the Province of Cuttack, and from that time a part of that Zilla. The expressions quoted from the treaty in the judgment of my learned colleagues appear to me of little significance. The succession to all these Rajas has always been assured to them, and the British Government has gone further to establish special Courts to determine claims to the right of succession or inheritance (Reg. XI of 1826). The Government, moreover, in its desire to be guided by local customs, in 1826, circulated among all these Rajas 25 questions to ascertain the customs in their families, and their answers have always been used by our Courts in determining all questions of inheritance in that part of the country. The papers known as the Pachees Sawal (25 questions) have always been regarded as authoritative by our Courts, and have more than once been quoted to me without any objection in cases tried by me in this Court. The expression 'my successors' in the treaty engagement is thus easily explained. The country having sometimes been described in the Regulation as the Territory of Mohurbhunj, I see no special force in the expression 'my territory.' As regards the co-operation of 'a contingent force of my own troops,' I would only again refer to the preamble to Reg. XIII of 1805, which describes the origin of the maintenance of such 'troops' throughout Orissa, and shows that after all they are merely police levies kept for the protection of the country. The Orissa paiks are well known to every one who has been officially connected with that part of India. The treaty engagement, too, is similar to those entered into by the other Rajas, which were referred to with approval in Section 36, Reg. XII of 1805, and this was a Regulation for the settlement of the revenue of the Province or Zilla of Cuttack. So far then as its terms go, I cannot regard this treaty engagement otherwise than as the result of the settlement which it was the duty of the Collector of Cuttack (Section 37, Reg., XII of 1805) to conclude for the payment of a fixed annual quit-rent, not tribute.
55. Next in order come the rules of 1839. These were prepared by the then Superintendent of the Tributary Mehals, Mr. H. Ricketts, and submitted by his successor, Mr. Moffat Mills, for the sanction of Government. That sanction was never accorded. Instructions were, however, issued, that the officers were to act up to the spirit of those rules. I can find no authority for asserting that the action of these officers was to be exercised at the request of the Raja of Mohurbhunj, or any other Raja. On the contrary, the Government officers have always assumed a superior authority up to the present day, which seems to me to go far to indicate the exact position occupied by all these Rajas. That such, a state of things existed and has been continued is (to use the words of the Regulations of 1805) 'owing to the rude and uncivilized race of people occupying those hill and jungle zamindaries,' not, as has been stated, in consequence of any doubt on the part of Government regarding its true relations with that territory.
56. But if it be necessary to refer to other evidence of the intention and policy of Government in their relations with the Tributary Mehals, I would quote the orders of the Governor-General in Council in 1814 when the appointment of Superintendent of the Tributary Mehals was created. These orders are particularly important from the early date on which they were issued, as well as from the occasion which called for them. The letter is addressed to the officer who was appointed the first Superintendent of the Tributary Mehals.
57. With respect to the office of Superintendent of the Tributary Estates, your attention is desired to the following remarks and instructions:
58. Under the existing Regulations (Sections 36 and 37, Reg. XII, 1805; Section 13, Reg. XIII, 1805) certain estates situated within the limits of the. District of Cuttack are exempt from the operation of the general regulations, but pay a fixed annual revenue to Government.
59. The Governor-General in Council does not understand that such exemption was founded upon any claims which the proprietors of those estates have to the exercise of independent authority. On the contrary, his Lordship in Council apprehends that it originated entirely from the opinion which was entertained of the uncivilized manners of the zamindars themselves, and of the inhabitants generally of those places, combined with the nature of the country, which was supposed to consist for the most part of hills and jungles. These circumstances, of course, render it extremely difficult to execute any process of the Courts of judicature, or otherwise to give effect to any orders which the Judge, the Magistrate or Collector in the discharge of their public functions may have occasion to enforce in any of those places.
60. From this short review of the subject it follows that the continuance of the above-mentioned estates on their present footing is a mere question of expediency, and that there is not anything in the nature of our connection with the proprietors of them which should preclude us from placing them under the ordinary jurisdiction of the Civil and Criminal Courts, should it at any time be thought advisable with reference to the points noticed in the preceding paragraph to do so. It will of course be understood that, in adopting any arrangements of that nature, no alteration is to be made in the amount of the revenue payable by the proprietors of the above-mentioned estates respectively which has been declared (Section 36, Reg. XII of 1805) to be fixed in perpetuity.
Under the circumstances above noticed, it will be one of the first objects of your consideration to inform yourself whether any of the mehals to which the foregoing paragraphs refer can be conveniently brought under the ordinary jurisdiction of the Civil and Criminal Courts, and to report the result of your enquiries on that subject to Government.
61. I further find from a selection of official papers published by Government in 1867 as 'papers of the settlement of Cuttack and on the state of the Tributary Mehals,' that various Superintendents have, from time to time, endeavoured to obtain the introduction of some definite law into the Tributary Mehals, the necessity being generally recognized, until in 1839 some rules were proposed by Mr. Moffat Mills, the then Superintendent, but that the Government, probably for the same considerations as influenced them in enacting the Regulations of 1805, has hesitated to introduce any regular system. All those attempts were altogether in accordance with the directions of the Governor-General in Council in his orders of 1814, in which, by requiring the Superintendent, then appointed, to inform himself whether any of the mehals can be conveniently brought under the ordinary jurisdiction of the Civil and Criminal Courts, and to report the result of his enquiries on that subject to Government,' he declared the policy of Government to be to make these mehals, as soon as circumstances would permit, subject to the general law in force elsewhere.
62. It has been suggested that none of these acts of Government show that they even took possession of this territory, but that all that the Government has done is to exercise a sovereign control as the paramount power over the conduct of the Raja, and has allowed him to rule the territory as an independent state.
63. I cannot accept this view for the following reasons:
64. The British Government has repeatedly legislated for Mohurbhunj. The treaty engagement of 1829 was entered into under authority of a Revenue Regulation of 1805, declaring it to be the duty of the Collector to make a settlement with the Raja for the payment of a fixed annual quit-rent for his estate, and even to the present time British officers have assumed to themselves the sole right to try in British India even inhabitants of Mohurbhunj for heinous offences committed by them in Mohurbhunj. Added to all these facts we have the orders of Government of 1814.
65. These papers of 1814 were not placed in my hands when I decided the case of Hursee Mohapatro v. Dinobundo Patro I.L.R. 7 Cal. 523 and I refer to them with much satisfaction as confirming the opinion I then expressed and still entertain. Moreover, when, even up to the present day, officers of Government are directed to try in, what is beyond question, British India, inhabitants of all these Tributary Mehals whenever charged with any heinous offence, I cannot agree that there has been any consensus between the British Government and the Maharaja of Mohurbhunj that the territory of Mohurbhunj should be no part of British India.
66. The last public document is the sanad of Lord Canning of 1862. The right of adoption which it confirmed was one which I have already shown has been recognized by the British Government since 1829. Mitter, J., has further pointed out that similar sanads were granted to individuals who were undoubtedly British subjects.
67. No special importance can, in my opinion, be attached to the grant of such a sanad. It has not been contended that this sanad made any alteration in the previously existing status of the Raja, or that at any time there has been anything amounting to a cession of territory to the Raja; but it has been stated that this sanad is an indication that Government dealt with this territory as independent and not as British territory, and that it is evidence that it has at no time formed part of British territory. Such an interpretation is certainly not consistent with the Government orders of 1814, already quoted by me. But, for the reasons above stated, I can attach no force to that sanad.
68. Other papers, however--official correspondence--have been laid before us. So far from the Government having, as has been said, concurred in considering and treating this territory as no part of British India, I find that more than one Lieutenant-Governor of Bengal has not only insisted on its being under his Government, but has repudiated the idea of its being independent. There has certainly been no such admission, though other Lieutenant-Governors have allowed the matter to remain in doubt. The exemption of this territory from the ordinary legislation and the application to it of special legislation on special subjects seem to me, as I stated in my previous judgment, rather to show that it has always been regarded as under our dominion and Government, and I am confirmed in this opinion by the orders of the Governor-General in Council passed in 1814, which I have already quoted. There is no precedent that I am aware of, in which our relations with any foreign states have been regulated by legislation, or that which has been termed our 'paramount power' has been exercised in this manner. Legislative powers have been given by Statutes from time to time to be exercised over our own subjects and within our own dominions.
69. For these reasons I agree with Mitter, J., that Mohurbhunj, like other Tributary Mehals, is British India; but I regret to differ from him that all Acts extended to British India apply also to it. It appeals to me rather these territories have been expressly placed beyond the ordinary legislation; and that, until this exemption has been specifically removed, the laws in force generally throughout British India are not in operation in those parts. That the Legislature recognized such a contingency will appear from the preamble to Act XVI of 1874.
70. I am further unable to find any distinction between Mohurbhunj and other Tributary Mehals as regards its relations with Government. As I have before stated, this was never asserted by the Advocate-General or the Standing Counsel when they appeared before Cunningham, J. and myself in the case of Hursee Mohapatro v. Dinobundo Patro I.L.R. 7 Cal. 523; but because Mohurbhunj was separately dealt with in Reg. XII of 1805, and because the treaty or engagement with the Raja was not entered into until 1829, several years after those with the other chiefs of the Tributary Mehals, it is sought to make some distinction between them and Mohurbhunj.
71. The reason why Mohurbhunj was separately dealt with by Reg. XII of 1805 appears from the terms of the two Sections (36 and 37) which refer to it and the other Tributary Mehals. The Regulation was for the settlement of the land-revenue of the District of Cuttack. Section 36 confirmed the settlements for the payment of a fixed annual quit-rent by the zamindars of the Cuttack Estates, all mentioned by name and since known as the Tributary Mehals of Cuttack; and as no such settlement has been made with the Raja of Mohurbhunj, Section 37 empowered the Collector of Cuttack to make a similar settlement with him. This settlement was the result of the treaty or engagement of 1829, which, as I have already pointed out, is precisely similar in its terms with the treaties or engagements entered into with the Rajas of all the other Tributary Mehals, except that of Keonjhur.
72. In conclusion, I must express my great regret at the unsatisfactory termination of this case. Not only has a bare majority of the Judges in a Bench of five overruled the opinions of four Judges that Mohurbhunj is in British India, but this has happened in a case tried ex parte. How far this may be considered binding is doubtful. But the result is the more particularly unsatisfactory, because the grounds upon which the decision of the majority has proceeded distinguish between Mohurbhunj and the other Tributary Mehals, and the relations between the Government and these mehals remain in the same position as they were before the hearing of this case. Lastly, the present case concerns British subjects under trial for an offence committed in Mohurbhunj, whereas the Government has assumed to itself the right of trying in Cuttack and other places out of the Tributary Mehals, residents of those mehals who cannot, in the view of the majority of my learned colleagues, be regarded as British subjects whenever any offence of a serious character has been committed in those mehals. That was the jurisdiction which I had to consider in the case of Hursee Mohapatro v. Dinobundo Patro I.L.R. 7 Cal. 523; but this point is not covered by the judgments now delivered. How far the exercise of this power is justifiable I need not at present determine, but to me it seems to negative this proposition that the Indian Government and the Maharaja have, for a long series of years, concurred in considering or treating these territories as no part of British India.