Cossijurah's Case (1779)

This is the case to cite when the question asks why Parliament intervened in 1781. Executive force was used against judicial process: the Governor-General sent soldiers to arrest the sheriff who was executing the court's writ. Once that had happened, a legislative settlement was unavoidable.

It also answers the fourth silence of the Regulating Act 1773. The Act did not say whether Zamindars who collected revenue were servants of the Company, and therefore within the Supreme Court's jurisdiction over persons employed by the Company. The Supreme Council held they were immune; the court disagreed; this litigation is the collision of the two views.

Kashinath was a creditor of the Raja of Cossijurah and had failed to recover his money through the Board of Revenue. He sued the Raja in the Supreme Court, submitting that the Raja, as a Zamindar employed in revenue collections, was within its jurisdiction.

The court issued a writ of capias to arrest the Raja or to take bail for three lakhs. The Raja hid, and the writ was returned unserved.

The Collector informed the Governor-in-Council that the Raja's hiding was costing revenue. The matter went to the Advocate-General, who advised that the Supreme Court had no jurisdiction over the Raja. On that opinion the Governor-General in Council notified that Zamindars were not subject to the jurisdiction of the Supreme Court, and the Raja thereafter ignored the court's process.

The Supreme Court entertained the suit against a Zamindar on the footing that a person employed in revenue collection was within its jurisdiction, and issued process accordingly — first a writ of capias, then a writ to seize the Raja's property.

The Supreme Council's answer was not an appeal but a notification to the contrary, followed by force. The sheriff went with a small armed force to execute the writ. Warren Hastings, the Governor-General, sent an army to arrest the sheriff and those with him; they were arrested and brought to Calcutta. Kashinath then sued Hastings for trespass. The Governor-General appeared once and thereafter defied the process of the court.

There is no considered judgment to set out, and an answer should say so. What can be set out is the chain of positions, which is what the paper tests.

1. The court's jurisdiction under the Charter of 1774 extended to persons in the employment of the Company. A Zamindar collected revenue for the Company; the plaintiff therefore submitted that he was so employed.
2. The Council's contrary position rested on the Advocate-General's opinion. Note its form: an executive notification declaring the limits of a court's jurisdiction, made in a matter in which the executive was itself interested in the revenue outcome.
3. Once the notification issued, the Raja had the executive's authority for ignoring the court, and the court had nothing left but process against the person and the property.
4. The final step is the constitutional one. Where two organs each claim the last word and neither can be appealed against, the stronger uses force. That is what makes the case an argument for a legislated boundary rather than for either side's view of the law.

It is the leading illustration of the conflict arising out of the dual judicial system, and the direct occasion of the Act of Settlement 1781. Its first provision — that the Governor-General and Council were immune from the jurisdiction of the Supreme Court — is the answer to Cossijurah.

Use it as the top of the ladder. Kamaluddin and Saroop Chand reach the revenue officers; Patna reaches the Company's judicial officers; Cossijurah reaches the Governor-General himself.

Use it also on the independence-of-the-judiciary questions in Module III, as the historical example of what the seven modern devices are designed to prevent: an executive that decides for itself the limits of the court's jurisdiction and then resists its process.

What it does not decide: nothing was finally decided. The Raja was never brought in, the trespass suit against Hastings was not carried through against a defendant who defied the process, and the question whether Zamindars were within the jurisdiction was settled by Parliament rather than by the court.