S.S.

JAIN SUBHODH LAW COLLAGE, JAIPUR

SESSION: 2017-2018

SUBJECT – LAW OF TORTS

TOPICE – COMPOSITE NEGLIGENCE

SUBMITTED TO: - SUBMITTED BY:

Hasir Ahmed MS. VIDHUE KOSHER
(BA.LLB) Sem.-I (A) ASST.PROFESSOR
 INTRODUCTION

The Government of India Act, 1915 was an act of the Parliament of the United Kingdom,
which consolidated prior Acts of Parliament concerning India into a single act. It was passed
in July 1915 and went into effect on January 1, 1916 (5 & 6 Geo. V, c. 61).1

The act repealed 47 prior acts of Parliament, starting with an act of 1770, and replaced them
with a single act containing 135 sections and five schedules. It was introduced first to the
House of Lords, where it was referred to a joint committee of Parliament chaired by Lord
Lore burn. The committee removed several provisions which went beyond the simple
consolidation of existing law.

A supplemental act, mostly technical in nature and including several of the provisions struck
out of the consolidation act, was introduced and passed in 1916, becoming the "Government
of India (Amendment) Act, 1916" (6 & 7 Geo. V, c. 37).

The Government of India Act, 1915 and its supplemental act the following year "made the
English statute law relating to India easier to understand, and therefore easier to
amend."2 The Government of India Act, 1919 made substantial changes to the law.

1
Ilbert, Sir Courtenay Peregrine. The Government of India, Third Edition, revised and updated. Clarendon
Press, 1922. p 122.
2
Ilbert, Sir Courtenay Peregrine. The Government of India, Third Edition, revised and updated. Clarendon
Press, 1922. p 123
 HIGH COURT UNDER THE GOVERNMENT OF INDIA ACT, 1915

The government of India (consolidating) act 1915 was passed by the British
parliament on July 27, 1915 for consolidating and re-enacting all the provision as
relating to Indian high court act enacted earlier. Under this act, the existing high
courts were repealed and several changes were introduced in the composition,
jurisdiction and the laws applicable in this courts.

The act of 1915 provided that each high court was to consist of a chief justice and as many
judges as appointed by his majesty not exceeding twenty. The governor general in council
was empowered to appoint additional judges for a period not exceeding two years.

The qualifications for appointment of a person as a judge of high court were as

follows:-

I. He should be a barrister or an advocate of Great Britain of not less than five years
standing.
II. A member of Indian civil service for not less then ten years including experience of
three years as a district judge.
III. A person who has held judicial office, not inferior to that of a small cause court for a
period of not less then five years.
IV. A person who has a pleader of high court for not less then ten years.

The act specifically provided that in all cases at least one-third judges of a high court
including the chief justice but excluding the additional judges, had to barristers or advocates
and at least one-third of them were required to be the members of the Indian civil services.
The judges held office during the pleasure of the crown.

All the high court were to be the courts of record. They enjoyed the same power and authority
for administration of justice as were vested in then at the commencement of the act.
However, they did not have any jurisdiction in the revenue maters. The high court could
make rules and prescribe from for regulating the procedure for its subordinate courts and had
power of superintendence over all the court which were subject to its appellate jurisdiction.
The high court was to apply personal law or customary law of the natives in the deciding
there cases relating to inheritance and succession of lands, rent and goods or contract
provided both the parties were subject to same personal or customary law. If the parties were
subject to different personal laws and customs, then the suit was to be decided according to
the law of the defendant.

The act provided that the governor general, governors, lieutenant governors, chief
commissioners and the members of the government’s executive council were immune from
the original jurisdiction of the high court for anything ordered or done in their official
capacity nor could they be arrested or tried in any proceeding in the high courts as except for
the offence of treason or felony.
 REASON TO PASS THIS ACT

Purpose behind this act was to consolidate and reenact existing statutes relating to the
government of India.
The act reenacted all the provisions made by the Indian High courts acts of 1861 and 1911 in
relation to the High courts.
This act made one change with respect to the ordinary original civil jurisdiction of the High
court’s of Calcutta, Madras, and Bombay, the act laid down that these courts may not
exercise any original jurisdiction in any matter concerning revenue or concerning any act
ordered or done in the collection thereof according to the usage and practice of the country or
the law for the time being in force.
This provision did not serve any purpose.

This act made a very wrong provision in the act.

The governor general, governor, lieutenant governor, chief commissioner, members

of the executive council of the governor general or the governor or lieutenant
governor and a minister were to be exempt from the original jurisdiction of the High
court’s for anything counseled, ordered or done by any of them in his public capacity.
None of these officials was to be liable to be arrested or imprisoned in any suit or
proceeding in any high courts on its original side or was to be subject to the original
criminal jurisdiction of a high court in respect of any offence not being treason or
felony.
A high court of judicature was set up at Patna through letters patent issued by his
majesty on February 9, 1916, in pursuance of S.113 of the Government of India act
1915.

In 1865, the Punjab Chief court was established at Lahore through an act of the Indian
legislature act XXIII of 1865.

The chief court was raised to the statues of the High court on 21 March 1919 by a
charter issued by George V in pursuance of the Government of India 1915.
The High court was to have jurisdiction over the Punjab and Delhi.
 GOVERNMENT OF INDIA ACT OF 1915- CONSOLIDATING
STATUTES.

Primarily focused at the establishment of High Courts which was in boom during this period:
The Government of India Act 1915 re-instated the provisions provided for in the
Indian HighCourts Act of 1861 and 1911.

By virtue of the powers conferred by Section 113 of the Government of India Act, 1915, the
Crown by Letters Patent dated March 20, 1919 had established at Lahore, the HighCourt of
judicature for the provinces of Punjab and Delhi to be called 'the HighCourt of judicature at
Lahore'. The HighCourt of judicature at Lahore was a court of record.

The Government of India Act of 1915 bought about one firm reform and this was with
regards to the jurisdiction of the HighCourts. It was held in this act that no HighCourt could
exert original jurisdiction over matters concerning Revenue, or any act done concerning or
relation to it.
The act of 1861 had not provided for such provisions and it is unclear as to why it was re-
instated.

This author believes here that by taking revenue collection out of the original jurisdiction of
these courts the British in India could enforce stronger and harsher revenue collection tactics
without actually having to be questioned.

The mystery lies in why the courts were allowed appellate jurisdiction of such matters but not
original.

The act also re-instated provisions provided for in the Regulating Act of 1773, and the Act of
Settlement 1781. Under these provision's the Governor-general, Governor, lieutenant-
governor, Chief Commissioner; members of the executive Council of the Governor-general,
Governor or lieutenant-governor, and a minister would be exempt.

Thus we see a clear attempt on part of the British to again escape the liability of these courts,
and set up a ground of difference between themselves and the Indians. This further justifies
the writer's belief as to the re-incarnation of the Revenue Collection changes being in
connection to escape of liability for British Subjects.

Further privileges seemed to don upon the British Subjects as now the Chief Justices and
other judges were also exempt from being held liable in the HighCourt. Surely, a clear
indication as to the direction they were heading towards. The principle of natural justice was
clearly being flouted in their path towards establishing themselves as a strong power.

The customs and traditions and laws of the parties were to be applicable, if both parties up
front the Presidency high Court, were from the same custom group. Thus we see that the
British are now going back in time. Retrospective laws are being introduced. In a time where
development for the future was the key, we see old laws being reinstated and progress being
hindered.

While exercising their original jurisdiction in suits against the inhabitants regarding
inheritance and succession to land, and goods , and contracts between party and party the
their presidency high courts of Calcutta, madras and Bombay were empowered to apply the
personal law or custom having the force of law when both parties were subject to the same
custom of law. The law or custom of the defendant was to be applied only where the parties
were subject to a different personal law or custom.

The act of 1915 also empowered his majesty to establish new high courts in any territory.
 High Court at Patna

Patna High Court is the High Court of the state of Bihar. It was established on 3 February
1916 and later affiliated under the Government of India Act 1915. The court is headquartered
in Patna, the administrative capital of the state.

In exercise of the powers given by the act of 1915 his majesty, by letters patent dated 9 th
February 1916 established a separate high court at Patna. Its necessity was realized due to the
proclamation of the governor general to India to form a separate province of Bihar and
Orissa. Earlier, they were under the territorial jurisdiction of the Calcutta high court. The
Patna high court was given the same status as that for the Allahabad high court and therefore
was given the same privileges and powers.

A court formed in 1916 to serve then Bihar province. Situated in the heart of city, it is one of
the architectural marvels of British time in Patna. The Patna High Court is the High Court of
the state of Bihar. It was established on September 2, 1916 under the Government of India
Act,1915.
The court is headquartered in Patna, the administrative capital of the state. The court has
sanctioned judge strength of 43. Patna High Court is the High Court of the state of Bihar. It
was established on 3 February 1916 and later affiliated under the Government of India Act,
1915. The court is headquartered in Patna, the administrative capital of the state.

In the long years since its inception, it has carved a niche for itself in delivering justice,
fearlessly and impartially. It has come a long way establishing itself as the guiding star for
other branches of government.
 High court at Lahore

As earlier as 1865 the Indian legislature established a chief court at Punjab3. The status of the
chief court was raised to the High Court in 1919. George V, by a Charter under the authority
of the Government of Indian Act, 1915, established a High Court at Punjab on 21st March
1919. It exercised jurisdiction over Punjab and Delhi territories with power similar to the
Allahabad High Court.

After the partition of India, the Constitution of India was framed. However, before the
partition, there was the Government of India Act, 1915. By virtue of the powers conferred by
Section 113 of the Government of India Act,1915, the Crown by Letters Patent dated March
20, 1919 had established at Lahore, the High Court of judicature for the provinces of Punjab
and Delhi to be called 'the High Court of judicature at Lahore'. The High Court of judicature
at Lahore was a court of record.
On the establishment of the Lahore High Court, the Chief Court of Punjab, which was
functioning for the last 53 years, was abolished. The High Court at Lahore by virtue of
Letters Patent and Section 106 and 113 of the Government of India Act, 1915 was vested
with all the appellate and superintending powers, authority and jurisdiction of the Chief
Court. The Lahore High Court by its Letters Patent was also vested with original jurisdiction
in certain special matters as were possessed by the Chief Court. These special matters
included disciplinary action against Advocates (Clause 8); Guardianship (Clause 12);
testamentary and intestate (Clause 24)and matrimonial matters (Clause 22). The High Court
had no ordinary original civil jurisdiction. However, it had ordinary original criminal
jurisdiction to a limited extent. The original criminal jurisdiction of the Lahore High court
was co-extensive with that of the chief court of Punjab which had no original criminal
jurisdiction to try any person, except European British subjects. As per Clause 9 of the
Letters Patent, it was empowered to remove, try and determine any civil case from courts
subordinate to it. In exercise of its appellate jurisdiction, the Lahore High Court was
authorized to hear appeals from the decisions of all the criminal and other courts of the
provinces of Punjab, Delhi and all other Courts subject to its superintendence. It could hear
appeals in Benches of two or more Judges of its own Court sitting on the civil side.
It was also declared to be Court of reference and revision from the criminal courts subject to
its appellate jurisdiction. It had the powerto transfer any criminal case or appeal from any

3
Act XXIII of 1865
court to any other court of equal or superior jurisdiction. It had no power to issue writs except
to the extent as it was empowered to issue orders in the nature of habeas corpus under Section
491 of the Code of Criminal Procedure along with other High Courts

After independence of India, the old province of Punjab was divided into West Punjab
(Pakistan) and East Punjab (India). The High Court at Lahore being in Pakistan, ceased to
have jurisdiction over Delhi and East Punjab. The question of location of the new High Court
for these provinces arose. Shimla was selected as the seat of the new High Court.

The East Punjab High Court of judicature was established at Shimla on August 15, 1947 by
the Governor General's High Court (Punjab) Order 1947 issued under Section 9 of the Indian
Independence Act, 1947. In exercise of the powers conferred by Section 229 (1) of the
Government of India Act, 1935, the High Court of East Punjab was also made a court of
record and as provided by Clause 5 of the said order, it had in respect of the provinces of
Punjab and Delhi, all such original, appellate and other jurisdictions as under the law in force
immediately before the August 15, 1947, was exercisable in respect of those territories by the
High Court at Lahore. The East Punjab High Court was the successor and continuation of the
High Court at Lahore. The decisions of Lahore High Court were binding on the Punjab High
Court on the principle of stare decisis. The Constitution of India came into force on January
26, 1950. The State of East Punjab came to be known as the Punjab now. Accordingly, the
name of the High Court was also changed. As per Article 214(2) of the Constitution of India,
the High Court was to be continued along with other High Courts. The Constitution of India
also conferred on the Punjab High Court, along with all other High Courts, the power to issue
directions, orders including writs in the nature of habeas corpus, mandamus, prohibition, quo-
warranto and certiorari in the enforcement of fundamental rights or for any other purpose.
The East Punjab High Court did not have the power to issue writs. However, the seat of the
High Court continued to remain at Shimla
 Bibliography:

1. Jain Prof. M.P., Outlines Of Indian Legal And Constitutional History ( Lexis Nexis
Butterworth’s Waxhaw, Nagpur, Sixth Edition Reprint 2009)
2. Gandhi, B.M., Landmark in Indian Legal and Constitutional History (Eastern Book
Company, Allahabad, 9th edition, 2009)
3. PARANJAPE N.V, INDIAN LEGAL AND CONSTITUTIONAL HISTORY (Central
Law Agency, Allahabad, Reprint edition 2017)