Dr.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY

HISTORY-III

Development of Civil Law in Mofussil

SUBMITTED TO – SUBMITTED BY –
DR. VANDANA SINGH Rachit Verma

Associate Professor Enrollment No.- 210101114

(History) B.A. LL.B. (Hons.)

Dr. Ram Manohar Lohiya National Law University 3rd Semester, Section ‘A’
 Table of Contents
Development of Civil Law in Mofussil ........................................................................................................... 1

Table of Contents ............................................................................................................................................. 2

Acknowledgement ............................................................................................................................................ 3

Declaration ........................................................................................................................................................
3

Introduction And Background ....................................................................................................................... 4

Administration Of Justice: First Stage .......................................................................................................... 5

Civil Justice: ...................................................................................................................................................

5

Criminal Justice: ............................................................................................................................................

5

Revenue Administration: ...............................................................................................................................

6

Miscellaneous Provisions: ..............................................................................................................................

6

Demerits of the 1772 Judicial Plan ................................................................................................................

6

Administration Of Justice: Second Stage ...................................................................................................... 7

Revenue: .........................................................................................................................................................
7

Civil Justice: ...................................................................................................................................................

7

Criminal Reforms: ..........................................................................................................................................

7
 Demerit of the 1774 Judicial Plan ..................................................................................................................
7

Administration of Justice: Third Stage .......................................................................................................... 8

Diwani Adalat ................................................................................................................................................

8

Demerits of the 1780 Judicial Plan ................................................................................................................

8

Appointment of Impey at Sadar Diwani Adalat: .......................................................................................... 9

Reforms by Impey: .......................................................................................................................................

10

Recall of Impey ............................................................................................................................................

11

Administration of Justice: Fourth Stage ...................................................................................................... 12

Reforms in the Criminal Judicature .............................................................................................................

12

Conclusion ....................................................................................................................................................... 13

Bibliography ................................................................................................................................................... 14
 Acknowledgement

I have taken efforts in this project. However, it would not have been possible without the kind support and
help of many individuals and organizations. I would like to extend my sincere thanks to all of them. I am
highly indebted to Dr. Vandana Singh for her guidance and constant supervision as well as for providing
necessary information regarding the project, also for her support in completing the project.

I extend my gratitude towards the seniors of my course, who constantly helped me find the best sources for
research. Finally, I acknowledge the authorities of Dr. Madhu Limaye Library, who provided me with the
means to make this project in the form of access to online books and resources.

This project is a result of my efforts combined with all the means and environment that has been provided to
me by Dr. Ram Manohar Lohiya National Law University, Lucknow and its authorities and I am thankful to
them.

Declaration
I hereby declare that the project report of “Development of Civil Law in Mofussil”, submitted by me to Dr.
Ram Manohar Lohiya National Law University, Lucknow, Uttar Pradesh in partial fulfilment requirement
for the award of the degree of B.A. LL.B. (Hons.) is a record of bonafide project work carried out by me
under the guidance of Dr. Vandana Singh. I further declare that the work reported in this project has not
been submitted, and will not be submitted either in part or in full, for the award of any other degree or
diploma in this institute or any other university.

Rachit Verma,

Enrollment No.- 210101114

3rd Semester, Section ‘A’ B.A. LL.B. (Hons.) Dr. Ram Manohar Lohiya National Law
University, Lucknow, Uttar Pradesh
 Introduction And Background

The administration of justice at the time Warren Hasting took over as Governor of Bengal was in a bad
shape. It was almost verging on a total collapse. The dual system of government proved very defective and
unsatisfactory. The courts had become the instruments of power rather than of justice, useless as means of
protection but apt instruments for oppression. On realizing the fact that the system of double government
had failed the company authorized the then Governor Warren Hastings to adopt such regulations and pursue
such measures as shall at once ensure every possible advantage to the Company and free the riots from the
oppression of Zamindars and petty tyrants.

Warren Hastings hence proceeded to make major changes in the administration of justice. This paperwork
views the various reforms made by Warren Hastings during his time in India. This administration of justice
maybe studied in four stages. To start with Warren Hastings realized the very fact that an impartial and
regular administration of justice was extremely essential for creating conditions for a better collection of
land revenue. Thus, changes were made regarding civil and criminal justice while various other provisions
were also introduced. Moreover, one of the major developments which took place was that the three
presidencies—Bengal, Bombay, and Madras— were divided into several districts for the betterment of
administration. Lastly, the appointment of Impey helped in fulfilling the need of reforming the judicial
system under the control and supervision of a powerful authority. In fulfilment of his duties, his work of
compiling the Civil Procedure Code was quite recommendable. It was for the first time that the law was put
on solid and certain grounds so that the people could know as to what the procedure of courts was.

After the Britishers had acquired the Diwani rights of Bengal, Bihar and Orissa in 1765, there came up the
concept of Mofussils which was used to refer to the territories which surrounded the presidency towns that
were brought under the control of Britishers. Though there was well established system of a judicial set up in
the presidency town of Calcutta, Bombay and madras under the garb of Mayor’s court and Court of
Governor-in-council but the same was required in these adjoining areas which were to be called Mofussils.
 Administration Of Justice: First Stage
The Judicial Plan of 1772 as been formulated by Warren Hasting consisted of 37 regulations dealing with
civil and criminal laws. It was the first Anglo-Indian Code, which worked out on the basis of experience and
common observations. An endeavour was made to adopt it to the manners and understandings of the people
and exigencies of the country, adhering as closely as possible to their ancient usages and institutions. The
idea was to retain, as far as possible, the native magistracy and codes of law, recorded and oral, to which the
people had become accustomed. The plan aimed at correcting the defects without destroying the traditions of
the local systems. Thus, the diwani area of Bengal, Bihar, and Orissa was divided into several districts, each
with an English collector as its head. This ‘district’ was the main administrative unit in the plan. The main
features of Judicial Plan of 1772 may be explained under the following headings:

Civil Justice:
A Mofussil Diwani Adalat was established in each district to decide civil cases. The collector was the judge
of this court. The court took cognizance of all civil cases including property, inheritance, succession, caste,
marriage, contracts, accounts etc. In the suits regarding inheritance, marriage, caste and other religious
usages and institutions, the Hindu law was applicable to the Hindus while the laws of Koran were applied to
the Mohammedans. The collector in matters of Hindus and Muslims was helped by pandits and kazis
respectively who expounded the law. Appeals from these courts were to be heard by the Sadar Diwani
Adalat at Calcutta where the subject matter of the case exceeded Rs. 500. This court comprised Governor as
its President and at least two members of the council aided by Diwan Treasury and Chief Kanungos.

Criminal Justice:
A Mofussil Faujdari (or Nizamat) Adalat was established in each district for the trial of crimes and
misdemeanours. This court was assisted by a Kazi or Mufti and two Maulvies who expounded the law, while
the Collector had a general supervision over the court. The court had full power to decide and punish all
criminal cases though they were not empowered to award death sentence. In such cases, the court’s decision
was submitted to Sadar Nizamat Adalat for confirmation and finally to the Nawab for his sentence.

Sadar Nizamat Adalat, established at Calcutta, was presided by an Indian judge known as Daroga-i-Adalat
who was to be assisted by the chief Kazi, chief Mufti and three Maulvies to hear the appeals from the
Faujdari Adalat.
Revenue Administration:
The revenue Boards at Murshidabad and Patna were abolished and a supreme authority called the Board of

Revenue was set up at Calcutta which consisted of the Governor and all the members of the Council. The
Treasury was also shifted to Calcutta. Further, the district supervisors were appointed as Collectors of
revenue and also native Naib Diwans as heads of the native executive in districts.

Moreover, the Board of Revenue comprising Governor and his Councillors at Calcutta sat twice a week for
issuing necessary orders and instructions to the Collectors of Districts and inspecting, auditing, and passing
the revenue accounts.

Miscellaneous Provisions:
A few provisions were made to promote pure and impartial justice. All cases were to be heard in open court.
All Adalats were to maintain proper registers and records. District Adalats were to transmit abstracts of their
records to Sadar Adalats. This precaution was necessary so as to discourage judicial officers from misusing
their power. To make justice inexpensive, the old vexatious impositions on administration of justice were
abolished and moderate fees were prescribed for trial of civil cases which was bound to give relief to people.
To supplement the work of the courts, the method of arbitration was also provided for.

Demerits of the 1772 Judicial Plan

• A grave defect in the plan was that the Collector acted as the administrator; the Judge and the
Magistrate in the district i.e., there was over-centralisation of powers in a single official.
• The Judicial Plan had a limited application only in the territory of Bengal, Bihar and Orissa. It was
based on an erroneous assumption of Hastings that Indian population consisted of only the Hindus
and Muslims. There were other communities and races for which there was no provision made in the
Judicial Plan.
• Though the functioning of Adalats was under the supervision and control of the Sadar Adalat at
Calcutta, but in absence of adequate means of communications it was almost impossible for the
government at Calcutta to keep a constant watch on the working of the Collectors of the districts. In
absence of an effective control, the Collectors indulged in private trading and misused their position
and power for personal gains.
 • The functions of revenue collection and civil administration were combined in a single official, the
Collector. Therefore, there was no separation between revenue collection and civil administration.
Obviously, the Collector paid more attention to revenue collection than the civil administration.

Administration Of Justice: Second Stage

Revenue:
Collectors were re-called from the districts and in their place an Indian officer, called Diwan or Amil, was
appointed. He was to act as a judge of the Mofussil Diwani Adalat and collect land revenue. The entire
Mofussil area in Bengal, Bihar and Orissa was divided into six divisions with the Headquarters as Calcutta,
Burdwan, Murshidabad, Dinajpore, Dacca and Patna. Each division had a Provincial Council consisting of a
Chief and four senior servants of the Company. A Committee of Revenue was instituted at Calcutta for
superintending that Division, consisting of two members of the Council and three senior servants, assisted
by a Diwan and others. The Councils and the Committee were to supervise the collection of revenue in their
Divisions and Indian Naib Diwans were appointed in the districts under each Provincial Council. Complaints
against the Head Farmers, Naib Diwans, Zamindars and other principal officers of the government were to
be decided by the Provincial Councils. Aggrieved parties might ultimately go to the Board of Revenue at
Calcutta.

Civil Justice:
The provisions relating to appeals in civil cases were also considerably liberalised under the plan of 1774.
Now all cases decided by the Mofussil Diwani Adalats were appealable to the Provincial Council
irrespective of the value of the subject matter of the suit. There was also a provision for second appeal to the
Sadar Diwani Adalat in cases exceeding the value of Rs. 1000/-.

Criminal Reforms:
The Officers of the Faujdari Adalats were forbidden to hold farms or other offices in the Mofussil and were
obliged to reside in their districts on pain of forfeiting their employments. Complaints against them were to
be lodged with the Governor-General who would refer them to the Sadar Nizamat Adalat for inquiry and
determination.
Demerit of the 1774 Judicial Plan
Although the new system was an improvement over the earlier one, the change did not give good results for
long. The Council took the place of the Collector in creating the difficulties and monopolising the trade
within its jurisdiction. Warren Hastings detected this defect very soon but he could not make any change till
1780 when entirely a new modified system was established.

Administration of Justice: Third Stage

The defects of the system set up in 1774 were seen in the Patna Case which is concerned with the conflict
between the jurisdiction of Supreme Court and function of Adalat in mofussil areas. The defect when came
to the knowledge of Warren Hastings, could not continue any longer and he remedied it by giving a new
judicial plan promulgated on 11 April 1780.

The basic feature of this plan was the separation of revenue matters from judicial matters. Henceforth, there
were established separate authorities
(a) To deal with the collection of land revenue and to decide the disputes arising there from and (b)
For the purpose of deciding other disputes.

Under this system the provincial councils were left only with the function of collecting the land revenue and
deciding revenue disputes and other judicial functions were taken away from their hands.

Diwani Adalat
A new court, called the Provincial Court of Diwani Adalat was established at each of the headquarters of the
six divisions. This Adalat was presided over by an English covenanted servant of the Company who was
called the Superintendent of the Diwani Adalat. He was to be appointed by the Governor-General and
Council. This Court was to hold its sittings thrice a week and decide civil cases pertaining to property,
inheritance and contracts. It was also empowered to hear cases relating to inheritance and succession of
Zamindari and Talukedari which were hitherto within the purview of the Governor and Council. The
decision of the Provincial Court of Diwani Adalat in cases up to the value of Rs.1000/- was final and in
cases exceeding this value, an appeal lay to the Sadar Diwani Adalat at Calcutta which consisted of the
Governor General and Council.

Demerits of the 1780 Judicial Plan

• The Superintendents of the Diwani Adalats were not selected from the senior servants of the Company.
Some of them were illiterate, ignorant of the Eastern languages and most extravagant, dissipated young
men.
• There was a tendency of the new Adalats to come into conflict with the Provincial Councils. The
Governor-General-in-Council had no time to sit at the Sadar Court to hear appeals and supervise the

work of these Courts. Without the support and control of some powerful authority, it was impossible for
them even to subsist; there was possibility of their sinking into contempt or becoming instruments of
oppression.
• There were only six Diwani Adalats. This number was very small in a vast area of Bengal, Bihar and
Orissa. This resulted into great expense on the part of the suitors, waste of their time and energy and
inconveniences they suffered from, on account of long journeys. Even those persons, whose cases, not
exceeding Rs. 100 in value, were referred to Zamindars or public officers, had to come at least once to
the Divisional Headquarters for such reference. The Zamindars or public officers as honorary Judges.
There was thus a danger of their abusing the authority to their own advantage. Further the paucity of the
Courts put a very heavy strain on the Diwani Adalats.
• The Provincial Council which was left only with revenue functions also had the power to decide the
disputes relating to revenue matters and to that extent it worked as a court in its own cause which was
against the principles of natural justice.
Appointment of Impey at Sadar Diwani Adalat:

There was an urgent need of reforming the judicial system under the control and supervision of a powerful
authority. From the beginning, the business of the Sadar Diwani Adalats was not only to receive appeals
from the inferior Courts in all cases exceeding a certain amount but to receive and revise their proceedings,
to attend to their conduct, to remedy their defects and to form generally such regulations and checks as
experience should prove to be necessary to the purpose of their institution.

The Governor-General and Council, who previously constituted the Sadar Diwani Adalat, admitted their
incapacity of exercising these powers and expressly stipulated that Chief Justice Sir Elijah lmpey should act
as the sole Judge of the Sadar Diwani Adalat on a salary at their pleasure. They thought that this would
lessen the tension between the Council and the Court, would facilitate and give vigour to the course of
justice, lessen the burden of the Council and add, to its leisure for occupations more urgent and better suited
to the genius and principles of Government. The Governor-General and the Councillors were non-lawyers.
Impey, being an experienced and trained lawyer was expected to discharge judicial functions in a far better
way and curb out evils from the judicial establishment of the Company.

Elijah Impey was, therefore, appointed the sole Judge of the Sadar Diwani Adalat in October 1780. He
continued in this office till November 1782 when he was recalled to England. In fulfilment of his new
duties, Impey prepared thirteen articles of Regulations for the guidance of the Civil Courts. They were
afterwards incorporated, with additions and amendments, in a revised Code, consisting of ninety-five
articles, which was passed in July 1781. This was the first Civil Procedure Code of India. The aims were to
explain such rules, orders, and regulations as might be ambiguous, to revoke such as might be repugnant or
obsolete to frame a consistent Code, to formulate the procedure and jurisdiction of the civil courts, to
prescribe a general table of fees, to make the law of civil procedure cognizable to the people, to provide for
arbitration and appeals to the Sadar Diwani Adalat, to provide for the limitation of suits, giving in most cases
a term of twelve years, to protect the litigating people from the extortions or frauds of the unscrupulous
officers of the Courts, and so on.

Reforms by Impey:
• Sir Impey remained in his office for about a year but during this time he made very important reforms
in the administration of judiciary of that time. He issued regulations for the improvement of all the
courts existing in the Mofussil area. By those regulations the following new changes were made.
• The Diwani Adalat at the divisions were directed to hear all the cases in the open court after
administering proper oath to the witnesses. The law officers should be used only for the purpose of
expounding the law on the facts which the court had decided, i.e., the law officers had no power to
decide the facts or hear the witnesses or the parties. The procedure which was found to have been
followed in Patna Case of reporting the matter to the court by the law officers was stopped by this
Regulation.
• The number of the Diwani Adalats was increased from 6 to 18 so as to avoid the inconvenience to the
people coming from long distances and also to reduce the arrears of work.
• The most distinguished work which Impey did was the compilation of a Civil procedure Code which
was first of its kind ever introduced in this country. The Code was promulgated by the Governor
General and Council on 5 July 1781. Although the Code did not make very far-reaching Changes, it
put the law on solid and certain grounds so that the people could know as to what the procedure of
courts was. It also bound down the courts to follow the procedure specified in it. The Code consisted
of 95 clauses.
• The provision regarding the application of personal laws in certain categories of cases viz.,
inheritance, marriage, caste and other religious usages or institutions was incomplete so far as the rule
of decision in other cases was concerned. Besides, adding the word 'succession' to the word
'inheritance', Impey filled up the gap by providing that in all cases for which no specific directions
were given, the Sadar Diwani Adalat and the Mofussil Diwani Adalats were to act according to
justice, equity and good conscience, this was a remarkable provision which completed the rule of
decision in all civil cases of Hindus and Mohammedans.

• • Impey brought the union of the powers of a Board of Superintendence with those of a Court of
Appeal. Laziness, laxity, impatience and want of method were the faults of which young,
inexperienced Judges, devoid of any legal know1edge and having only an imperfect knowledge of
languages of their respective huge districts, were guilty. Superintendence was, therefore, as urgent as
appeal. The Sadar
• Diwani Adalat was, therefore, to perform the following functions: (a) To hear appeals from the lower
• Courts in cases exceeding Rs. 1,000; (b) to decide any matter of civil nature referred to it by the
Governor-General-in-Council; (c) to exercise control and supervision over the lower Court, firstly, by
receiving an original complaint, cognizable by a lower Court which refuses to entertain it, and then
referring it to Mofussil Diwani Adalat for expeditious disposal, and secondly, by suspending a Judge
 of a lower Court on ground of misconduct and reporting the matter to the Governor-General-in-
Council for final decision.

Recall of Impey
The appointment of Impey to the Sadar Diwani Adalat was actually a good step for the reformation of judicial
system and he himself also worked very vigorously and sincerely to reform it. But his holding the twin offices
of the Chief Justice of the Supreme Court and the Judge of the Sadar Diwani Adalat was not favoured by the
authorities in England. They thought it was a violation of The Regulating Act which had established a judicial
system at Calcutta independent of all control from the Company. To them, by accepting the judgeship of the
Sadar Diwani Adalat, Chief Justice, Impey had put himself under the subordination of the Company from
whom he got his appointment and also the salary as judge of the Sadar Diwani Adalat. Although after few
months Impey refused to draw his salary as judge of the Sadar Diwani Adalat unless the Lord Chancellor gave
him a clearance. His sincerity was doubted in England and he was recalled on May 3, 1782 from his office of
judgeship of the Sadar Diwani Adalat as well as from the Chief Justiceship of the Supreme Court. After the
recall of Impey the Sadar Diwani Adalat again came into its previous from, i.e., the court was again constituted
of Governor General Council. Though Impey was accused of compromising his judicial independence as a
Crown's Judge, and was, therefore, called back, he gave no opportunity to anyone to say that he, as the sole
Judge of the Sadar Diwani Adalat, acted in a way which compromised his judicial independence as the Chief
Justice of the
Supreme Court. Whatever the criticism, his Code was an extraordinary contribution giving new directions to
Judges of the Diwani Adalats and litigants. Its compilation was the first attempt of its kind in India, and it made
the law of civil procedure certain to some extent. Under the judgeship of Impey the whole judicial system
indefinitely became much better. Thus, the act of appointing Impey was later regarded as one of the wisest
measures which Warren Hastings carried through.
 Administration of Justice: Fourth Stage

Under the Plan of 1772, a Sadar Nizamat Adalat was established at Calcutta. In 1775, it was shifted to

Murshidabad probably to avoid any interference from, and conflict as to jurisdiction with, the Supreme Court.
There it was put under the authority of the Naib-Nazim Reza Khan. In 1776, a plan for criminal justice from
Reza Khan was adopted, under which twenty-three Fauzdari Adalats in all were established in the districts.
But as the system had once become loose and the Collector or the Governor-General and Council could not
get enough time to have an effective control over these courts, they failed to provide justice to the people.
Justice was neither given in time nor any principles of justice was taken into consideration. The accused had
to remain in detention for years before his trial was finalised. The conditions of prisons were inhuman. There
were number of defects in the system which required total overhauling of criminal administration of justice.
The Mohammedan law of crimes was also very defective. Warren Hastings was quite conscious of all this and
in the year 1781 he drew a scheme for some reforms in the criminal judicial administration.

Reforms in the Criminal Judicature

• The following reforms were made by Warren Hastings in the Criminal Judicature:

In order to devise a machinery to arrest criminals and to bring them to trial, the Judges of the Mofussil
Diwani Adalats were appointed as Magistrates also. They were, however, not given, for the time
being any jurisdiction to try them. They were to apprehend those persons who were suspected of
having committed crimes and send them to the nearest Faujdari Adalats for trial with written
accusations.
• To have an effective supervision over the proceedings of the criminal courts including the Sadar
Nizamat Adalat, Warren Hastings created a separate department at Calcutta to receive monthly reports
and returns of proceedings, lists of persons apprehended and sent for trials by Magistrates, details of
charges levelled against them, and the lists of persons released, convicted, and put in confinement by
the criminal courts.
• A covenanted servant of the Company was appointed to act under the Governor-General as head of
this Department, with the title of the Remembrancer of the Criminal Courts. He was in charge of all
the reports dispatched by various Magistrates and courts. He was to analyse these reports, prepare
extracts and arrange them in a proper way. This is how a check was to be maintained on all persons
entrusted with the administration of criminal justice.
• But the control exercised by this officer was very weak and imperfect. The system did not prove to be
effective. The Remembrancer depended for information on the reports of various courts and it was not
difficult for the latter to manipulate them so as to present a favourable picture of the things and to
conceal the real state of affairs from the Government.
• In 1782, the number of Faujdari Adalats was reduced from twenty-three to eighteen. While in 1785, for
more speedy and effectual administration of criminal justice, the Magistrates were empowered to try
petty offences; but in all cases affecting either the life or limb of the accused persons or subjecting them
to imprisonment of more than four days or to corporal punishment exceeding fifteen stripes, the
Magistrates could not try the accused themselves but to send them to the Faujdari Adalats. This
particular provision was made soon after the departure of Warren Hastings to England.
 Conclusion

The work of Warren Hastings has left a deep impact on the History of India. Though on one hand his
contributions to the administration of justice are appreciable to some extent, but on the other hand the
reforms made by him had its own flaws.

Appreciating his contributions, the various reforms implemented by him justify that he was not only a
capable administrator but also a great inventive genius. He adopted the method of “trial and error” in
uprooting the evils of the existing judicial and executive systems and never hesitated even in taking bold
steps to remove such evils. As the first Governor-General he proved himself as one of the most faithful
servants of the English East India Company, who played a vital role in further strengthening the foundation,
which was earlier laid down by Clive, for the future expansion of the British Empire in India.

Now taking into account his flaws, one may notice that, certain areas like the constitution of criminal courts,
the defects and severity of Muslim criminal law, the mode of trial and proceedings in the criminal courts,
which mainly required vital reforms and special attention were left untouched by him. While on the other
hand, he only touched the fringe of the whole problem of improving the criminal justice.

But considering his limitations which arose due to his conflict with hostile Members of the Council,

wavering support of the Company’s Directors in England, antagonistic interests of political parties in

England prejudicing his reputation, his failure to implement his ideas and plans in this regard, is justifiable.
 Bibliography

Books Referred

• Dr. N.V. Paranjape, Indian Legal & Constitutional History, 5th Ed., Central Law Agency
• M.P Singh, Outlines of Indian Legal & Constitutional History, 7th Ed., Universal Law Publishing

Co. Pvt. Ltd.

• Prof. J.K. Mittal, Indian Legal & Constitutional History, 1st Ed., Allahabad Law Agency.
• Prof. M.P. Jain, Outlines of Indian Legal &Constitutional History, 6th Ed., Wadhwa and Company

Nagpur.

Websites Referred

• Development of Adalat System during the time of Warren Hastings (legalservicesindia.com)

• Judicial Reforms of Warren Hastings and the Advent of Adalat System - iPleaders
• Development of Adalat System During The Time of Warren Hastings | PDF | Supreme Courts |Judge
(scribd.com)