Civil court access against Government preserved under the 1858 Act, and a later exclusion provision was held ultra vires.

Section 65 of the Government of India Act, 1858 was treated as preserving a substantive right for subjects to sue the Government in civil court on the same basis as claims against the East India Company. Section 22 of the Indian Councils Act, 1861 was read as conferring legislative power subject to the limitation that it could not repeal or impair that protected right. On that construction, Section 41(b) of Act IV of 1898 (Burma) was ultra vires to the extent it excluded civil court jurisdiction in such claims against the Government. The appeal therefore failed.

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Issues: Whether Section 41(b) of Act IV of 1898 (Burma) was validly enacted in light of Section 65 of the Government of India Act, 1858 and Section 22 of the Indian Councils Act, 1861, so as to exclude the jurisdiction of civil courts in claims against the Government.

Analysis: Section 65 of the Government of India Act, 1858 preserved for subjects the same remedies against the Secretary of State in Council as they had against the East India Company. The provision was treated as conferring a substantive right to sue in civil court, not merely a procedural formality. Section 22 of the Indian Councils Act, 1861 conferred legislative power but expressly withheld authority to repeal or affect provisions of the Government of India Act, 1858. On that construction, legislation could regulate procedure only so long as it did not destroy the substantive right to proceed in a civil court against the Government in a case where such a suit would previously have lain against the Company.

Conclusion: Section 41(b) was ultra vires to the extent that it deprived a subject of the right to sue the Government in a civil court, and the appeal failed.

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