Srinivasa Aiyangar, J.
1. Late in the afternoon of Wednesday, last week, the 29th September, Mr. Alladi Krishnaswami Aiyar presented this petition urgently and moved for a rule nisi. The application is by two voters in the Municipal Electorate of the Royapettah or the 29th Division of Madras City and is for a mandatory order under Section 45 of the Specific Relief Act against the Commissioner of the City Corporation restraining him from holding the election of the Divisional Councillor for that division otherwise than in conformity with the rules relating thereto. It was stated that the election had been announced to be held on the following day the 30th September and the application was moved and argued ex parte for an order nisi.
2. Having regard to the short time within which I had to make up my mind and the late stage at which the application was moved and what may be regarded as the serious consequences of stopping an election announced to be held on the following day, I should have been disposed to refuse an interim order, had I not had prima facie grounds to satisfy myself that some of the questions raised were of such importance that even the consequences of the stopping of the election would not comparatively be by any means serious. It was thereupon that I issued an order nisi and made it returnable on the following morning to be heard as the very first motion in the list.
3. The order nisi issued by me was in terms merely restraining the Commissioner from holding the election until further order of Court and it was so made expressly for the purpose of enabling the Commissioner to hold the election on the 30th itself if in the course of the day I should come to the conclusion that the rule should not be made absolute and should be discharged. But as it was, neither side was able to finish the argument on that day and Mr. Rangaswami Aiyangar the learned vakil for the respondent also intimated to me that there was no idea of holding the election that day in any case. The matter has now been argued at great length on both sides by Mr. N. Chandrasekara Iyer for the applicants raising every possible contention and with great ingenuity and astuteness, and by Mr. S. Rangaswami Aiyangar for,the respondent, the Commissioner of the Corporation with great strenuousness and considerable learning and research raising as it seemed to me, every point that could possibly be urged in the matter. And I have also taken time for a consideration of two or three of the many questions that have been urged and argued on both sides, because though in respect of most of the matters I had no difficulty in arriving at conclusions as the discussion proceeded and closed, still with regard to some of the matters I have felt great difficulty in coming to a satisfactory determination. I may also add that having regard to all the circumstances I have deemed it desirable to pronounce my judgment in the case as early as possible.
4. An objection, in its nature preliminary was raised to the sustainability of the application itself on the ground that in the notice of motion, the writ applied for, is, for what is called a mandamus and that under Section 50 of the Specific Relief Act the power of the High Court has been taken away to issue any writ of mandamus. Though I cannot say that the learned vakil for the respondent was not entitled to take the objection, it cannot possibly be regarded as of any substance because the application is expressly entitled in the matter of Section 45 of the Indian Specific Relief Act, and it is well known that in spite of the abolition by Section 50 of the writ of mandamus the profession and the public alike have still continued to refer to an order under Section 45 as a mandamus because, as it may well be, of Section 45 having merely codified the law with regard thereto. I had therefore no hesitation in rejecting such a preliminary objection which could not be regarded as an objection even to the form of the application.
5. For a proper appreciation of the contention raised respectively on both sides, it will be useful at this stage briefly to recapitulate the events and proceedings which ultimately culminated in the present petition.
6. One O. A. O. K. Lakshmanan Chetty was one of two candidates nominated for election as the divisional councillor for the 29th or the Royapettah Division of the City. The last day for the nominations being made was the 17th August 1926. It would appear that this Lakshmanan Chetty having been an Honorary Presidency Magistrate of the City and apparently with a view to obviate any objection to his nomination for election having regard to the terms of Section 52 Clause 1 (b) (4) of the Madras City Municipal Act which disqualifies a Presidency Magistrate for election as a councillor, sent in his resignation as the Honorary Presidency Magistrate on or about 11th August, but that the notification of the Government accepting his resignation did not appear till the 19th of August, that is to say, two days after the date fixed for the nomination of the candidates for the division. On the ground, therefore, that the said Lakshmanan Chetty was at the date of the nomination a Presidency Magistrate, an objection to his nomination was preferred before the Commissioner of the Corporation purporting to be under Rule 4 of the rules framed for the nomination of candidates and for the conduct of divisional elections. The Commissioner upheld the objection and disallowed the candidature of Lakshmanan Chetty, and thereupon under the same rule a revision petition was filed before the Chief Judge of the Small Cause Court at Madras and he delivered his decision confirming the decision of the Commissioner, on the 21st of September 1926.
7. Thereupon by notification in the Official Gazette dated the 21st of September 1926 the 25th of September was fixed for holding the election of the councillor for the division and in and by that notification the procedure prescribed by Rules 2, 3 and 4 of the said rules was ordered to be dispensed with.
8. In the meantime a Civil Revision Petition having been filed in the High Court against the judgment of the Chief Judge of the Small Cause Court, the election announced for the 25th of September was stayed by an injunction of the High Court but was ultimately dissolved by order of the High Court on the 28th of September.
9. On the same evening another notification was published in the Official Gazette fixing the 30th of September as the date for holding the election. The present application therefore came to be made on the 29th of September as stated above.
10. At this stage it will be convenient to refer to and deal with a point, not exactly a contention, raised in the course of the arguments by the learned vakil for the respondent. Under Section 55 of the Madras City Municipal Act, Clause 2, it is provided that vacancies arising by efflux of time in the office of divisional councillor shall be filled at ordinary elections which shall be fixed by the Commissioner to take place on such days in the months of August and September next preceding the vacancies as he thinks fit. On the wording of this clause it was said the contention would be open that a valid election for the purpose of filling up a vacancy caused by efflux of time could only be held in the months of August and September. It must be admitted that this clause in the section, even like many other sections and clauses in the Act as well as in the rules, is unhappily worded. It is a matter very much to be regretted that in legislative enactments and rules having the force of law it should not have been possible to attain a higher degree of clearness and precision in the language employed. This only points to the great necessity that there is for a trained body of legislative draftsmen co-operating in the task of legislation, having regard to the conditions and hurry in which legislation is at present carried on in the legislative councils of the country. But however loosely and incorrectly the clause above referred to is worded, it is impossible to construe it as prescribing, as a condition for the validity and legality of an election, that it should be held only in the months of August or September. If such had been the intention of the Legislature, the intention might easily have been clearly indicated, for instance by the addition after the words 'filled at ordinary elections' of some such words as ' held in the month of August or September' or by enacting a separate clause for the purpose. As it is, the provision is only in the nature of a direction to the Commissioner and even if the direction shall be regarded as mandatory, it would only indicate that the power of the Commissioner to fix a date is limited to the months of August and September.
11. By Clause 1 of the same section, the noon of the first day of November following is fixed for the purpose of the old term of office ceasing and the term of office of the new councillor beginning and in the following section (Section 56) provisions are made for the contingency of the vacancy not being filled by election. Under Sections 59 and 347 the Governor-in-Council is authorised to make the rules for the purpose of regulating the procedure with regard to elections. Such rules have been framed, and while in those rules provision is made for the Governor-in-Council fixing fresh dates for the election, there is no provision in them preventing the Government from fixing any' date beyond September, that is to say, in the month of October. I should, for my part, be inclined to regard the direction in Clause 2 of Section 55 that the Commissioner should fix a date in the months of August and September merely as directory and not as mandatory. But in any case it is impossible to accept the view that even though the date fixed for the expiry of the old term and the commencement of the new term of office be the first of November, there is no power in any person or authority to hold the election in the month of October if for any reason the holding of the election earlier should be prevented or otherwise turn out to be impossible. It seems to be that the legislature, in fixing the month of August and September as the months during which the Commissioner should hold the election and the first of November as the date for the commencement of the new term of office, must have had in contemplation the intervening month of October as a provision for holding any postponed elections, even though they did not contemplate any postponement beyond 31st October.
12. I have therefore come to the conclusion that there is no force in the view that was put forward that no election could at all be held after the 30th of September. It is because I came to this conclusion at a very early stage in the hearing of the petition, in fact, even when Mr. Alladi Krishnaswami Iyer argued the petition ex parte for the order nisi-that I was satisfied that no serious consequences could really flow from the election being prevented to be held on the 30th of September as notified.
13. I shall now proceed to deal with the various arguments of the learned vakil for the petitioners but not in the same order in which he presented them. It was contended by him that the present notification to hold the election on the 30th of September was purported to be under Rule 5 of the said rules, that the rule provides only for the Governor-in-Council on the contingency referred to in that rule, namely, of the decision of the Commissioner of the Chief Judge of the Small Cause Court being given within three days or the date of the election, fixing a fresh date for election, and does not provide for the Governor-in-Council exercising any such power on any other contingency or more than once. Such argument has become possible and even plausible because of the very unsatisfactory way in which the rules have been loosely worded.
14. It seems to me that it will not be a proper construction of the rule to hold that the Governor-in-Council is by the rule vested with any power to be exercised only on the happening of a contingency; but the correct view would be to regard the rule as one providing for the exercise in a specific instance by that authority of the undoubted power vested in the authority and recognized by that rule of fixing a fresh date for the election. It may be doubtful whether the Commissioner himself having once fixed a date for election is empowered to fix another date without reference to the Governor-in-Council if for any reason he should deem fit to do so. But it is clear that under Rule 5, when the particular contingency referred to therein should happen, the Commissioner is required to report the matter to the Governor-in-Council and have a fresh date fixed by them. It is possible that this rule was made specially having reference to the power reserved in the rule for the Governor-in-Council dispensing in special cases with the procedure laid down in Rules 2, 3 and 4, namely, the rules relating to fresh nominations, objections to nominations and the decision on the objections. Having regard therefore to the wording of Rule 5, I am unable to agree with the contention that the rule merely creates a contingent power in the Governor-in-Council, and I am clearly inclined to the view that the rule merely provides for the exercise of the power recognized to exist in the authority on one of the occasions on which such exercise becomes necessary.
15. The second part of the contention with regard to the power to publish the notification was that the rule contemplates only one fresh date being fixed by the Governor-in-Council and not a a series of fresh dates from time to time or as occasion may require. It is impossible also to agree with any such contention. The general principle of interpretation of statutes requires that in the absence of anything to the contrary in the context or otherwise, a power being given for effectuating a purpose may be exercised not only once but as often as may be necessary for effectuating such purpose. Apart from such general principle altogether, there can be no doubt that in this case the rules framed would have, under Clause (c) of Section 348, the same effect as if enacted in the body of the Act itself, and that Clause 13 of the Madras General Clauses Act 1 of 1891 would empower the authority to exercise the power from time to time as occasion requires.
16. The next contention on behalf of the applicants that I shall deal with has again reference to the terms of R. 5. The argument was somewhat as follows: Under Rule 5 the Governor-in-Council is empowered to fix a fresh date for election if there should not be three days between the date on which the decision either of the Commissioner or the Chief Judge of the Small Cause Court is given and the date fixed for election. Though the rule does not say so in express terms, the intendment of the rule is perfectly clear that the fresh date to be fixed by the authority should be such as to afford of three days' notice , being given; because otherwise it would defeat the very primary purpose of the rule. In this case the notification was on the 28th fixing fresh date for election on the 30th. The election therefore notified for the 30th is against the real spirit of Rule 5. There is a great deal of force in this contention. But it seems to me that the three days referred to in Rule 5, are the three days indicated in Rule 6 and not any different period of three days. It strikes me that the framers of the rules intending to provide in Rule 6 three days' notice at least for all elections, made, by way of anticipation, in Rule 5 provision for the date fixed for the election happening to fall less than three days after the decision with regard to the validity of the nominations of candidates. It will therefore be proper and convenient to deal with this objection also only as part of the objection based on R. 6 with which I now proceed to deal.
17. It was argued by the learned vakil for the petitioners that Rule 6 is not one of the rules which can be dispensed with under the provisions of Rule 5 or in other words, the provision in Rule 6 should be observed with regard to all elections, and as that rule, on a proper interpretation, provides for three days' notice being given of all elections the election notified to be held on the 30th without such three days notice is bad.
18. It seems to me that there can really be no answer tc this objection as regards the election notified on the 30th Mr. S. Rangasawmi Aiyangar the learned vakil for the respondent attempted an answer to this objection which I consider to be very ingenious, and in fact, at one stage, was even inclined to regard the answer as satisfactory. He argued that what Rule 6 requires to be done is that at least three days before the election the Commissioner should file a schedule of valid nominations of candidates and publish the same in the manner indicated in the rule, that in the present case there was such a publication on the 21st of September with regard to the election notified to be held on the 25th idem and that therefore the objection was not tenable. Putting it in other words, the argument of the respondent's vakil comes to this: that the schedule of nominated candidates may be published at any time before three days fixed for the election and without notifying the date fixed for the election and that so far as the election itself is concerned, it may be held at any time after three days of such publication without any notice to the voters or candidates.
19. No doubt the principal thing to be done, as indicated in the rule, is the publication of the schedule of candidates, and on a literal construction of the rule, it may be possible to agree with the contention of the learned vakil. But I am perfectly satisfied that this is not the true or poper construction and that the adoption of such construction would lead to monstrous and absurd results and could not possibly have been intended by the rule-making authority. The object of the rule is clearly to give notice to the voters and the candidates for the election to be held, and I cannot agree that the rule should be read as though that notice of the election may be given without notifying the date of the election. The expression 'three days' refers to a period of time and the preposition 'before' indicates that what follows that word, even though not in itself a point or period of time, is still regarded for the purposes of the rule as an event from which the period should be computed. The rule clearly contemplates the date of the election having been fixed at the time when the schedule of candidates is published, and as I have already observed the clear and indisputable object of the rule is to give notice of the date of the election and the names and other details with regard to the candidates for the election.
20. If the contention of the learned vakil for the respondent should be accepted, it comes to this that the Commissioner may on the first of a month publish the schedule of candidates for election as divisional councillors for the particular division and may hold the election without at all notifying the date of the election to the voters or candidates or giving only some notice on the previous day. It is impossible to accept a contention that would necessarily lead one to suppose that the rule-making authorities intended any such preposterous result. If this rule should not be construed as providing for notice of the date of the election there is no other rule, providing for such notice, at any rate, in cases where the date of the election is changed. I have therefore very little hesitation in repelling this contention put forward on behalf of the respondent.
21. Though I have thus come to the conclusion that the notification of the 28th of September fixing the election to be held on the 30th was illegal; as being against Rule 6 it does not of course necessarily follow that I would be justified in issuing a mandatory order under Section 45 of the Specific Relief Act, restraining the holding of the election in this case. If it should be held that there remained on the date of the notification only one valid nomination of a candidate for election and that there was no right or possibility of making any other nominations, it follows that in the absence of any contest the election to be held would only be a merely formal election and the absence of three days' notice of the election, even though illegal, would not be calculated to injure in any manner the rights of any person whatsover. In this connexion I may allude to the argument of Mr. N. Chandrasekara Iyer for the petitioners that a right of franchise included a right to canvass for or against a candidate and that the provision as to three days' notice should be regarded as material even in the case of an uncontested election, because it would enable the voters to go about and see that no one voted for some particular candidate.
22. I am unable to regard a right to canvass for or against a candidate as a special right of a voter and much less as part of the franchise of a voter. If indeed it be a right it is a right which a voter enjoys perhaps with thousands of others who are non-voters and it is impossible to recognize or give effect to any such right in law. An election being only the process by which the choice is made by the eleectorate for filling up a vacancy it is the casting of the votes that counts and can be regarded as a legal right. There may no doubt be a conceivable case but merely conceivable where no voter comes to vote for a candidate in an uncontested election; but for the practical purposes of a mandatory order under Section 45 of the Specific Relief Act such contingency may be disregarded.
23. In the result, therefore, if I should come to the conclusion that there is no force or substance in any of the other contentions with regard to the election notified for the 30th of September, I should certainly not be disposed to grant the order simply because there is an illegality in the notice even though the right in protection of which the order is sought be absolutely shadowy or merely fanciful.
24. The next contention of the petitioners' vakil with which I shall deal is, that under terms of Rule 5 the Governor-in-Council can only dispense with or alter the procedure prescribed by rules 2, 3 and 4 in respect of any election for which a new date is fixed, but cannot dispense with or affect the substantive rights of voters in respect of the election. It was argued that an election included nomination, objections to nomination and decision with regard to the objections which are all integral and necessary parts of an election and that in Rule 5 it is provided not that Rules 2, 3 and 4 may be dispensed with but that only the procedure prescribed in Rules 2, 3 and 4 need not be repeated. The real intention of the rule-making authority, it was argued, is that in respect of every election for which a date is fixed the process of nominations of candidates, etc., should be gone through and that the Governor-in-Council may only by special order direct that the prescribed forms or the manner of making objections or the authority to decide objections, may all be dispensed with or altered and that the Governor-in-Council has no authority to dispense with nominations altogether. After giving my earnest consideration to the argument very strenuously advanced by the learned vakil for the applicants on this point, I find it impossible to accede to the contention There is no warrant for the Legislature having intended any distinction between the substantive rights and procedure as indicated in Rules 2, 3 and 4. The word 'repeat' in Rule 5 clearly indicates the time intention of the rule-making authority in the matter. Though nominations may be an integral part of an election still the process by which nominations should be made is regulative of the right and when the Legislature speaks of the process not being repeated, one can only understand it as indicating that the authority may, in its discretion in certain cases, direct that the entire process of nominations etc. need not be gone through again and that the election may be held taking it up at the point at which its further progress became checked. If the true construction should be as contended for on behalf of the applicants, the result will be that even though the authorities may say that Rules 2, 3 and 4 may be dispensed with, still the voters would have a right of nominating or objecting to nominations or getting a decision with regard to their objections, not in the way prescribed in those rules, but in any way they please, which to my mind is a result that could possibly not have been contemplated.
25. There can be no doubt whatever that in the present case the whole trouble appears to have arisen entirely from the manner in which the discretion given in Rule 5 to the authorities to dispense with Rules 2, 3 and 4 has been exercised. One would have supposed that if as in the present case the nomination of a candidate had to be rejected because the resignation by him of his office as Honoary Magistrate happened to be accepted two days after the date fixed for the nominations, all principles of justice, equity and good conscience would have pointed to the authorities not dispensing with Rules 2, 3 and 4 thereby disabling the person from being re-nominated but to their so directing the procedure indicated in those rules as to afford facilities for such nomination. But I fail to see what power the Court has to interfere with the exercise by the authorities of the discretion vested in them. It is possible, having regard to the fact 30th of September was the date fixed, that the authorities felt compelled to dispense with Rules. 2, 3 and 4 merely because of some apprehension, wrong as it may be, that a valid election could only be held before the end of September. Whatever the real reason may be for the authorities having exercised the discretion in the manner they have purported to do, it seems to me that with regard to such a contention as now under discussion I cannot possibly hold that after the authorities so dispensed with Rules 2, 3 and 4, there is still any right of nomination of candidates or any right in the Court to review the discretion so exercised.
26. Mr. Chandrasekara Iyer sought to reinforce his argument about the liability of the respondent to accept fresh or further nominations by pointing out that in Rule 5 the procedure prescribed only by Rules 2 3 and 4 can be dispensed with and that Rule 1 can never be so dispensed with. He argued that the term 'election' includes every process and step taken with a view to filling up a vacancy and as there is no provision to dispense with Rule 1 every time a fresh date for election is fixed under Rule 5 the process indicated in Rule 1 should be followed. It seems to me impossible to accept such a contention. Excepting the time and place of election, Rule 1 has no reference whatever to any process or step with regard to the particular election, and when under rule 5 the date is altered it is absurd to suppose the rule-making authority contemplated a repetition of the process indicated in Rule 1. The scheme indicated in Rule 5 is only to proceed from the stage at which Rule 2 commences, namely, the stage of nomination of candidates with regard to the particular election and then proceed and there is the further provision that even this step might be dispensed with.
27. The argument therefore that was advanced on behalf of the applicants that though a fresh nomination was tendered the respondent refused to accept the same should not be regarded as an independent argument-independent of the arguments based on the various provisions in the rules.
28. I have, however, reserved for the last the argument which really was advanced by Mr. Chandrasekara Iyer as the very first one and which gave me the most trouble. It was that the notification under discussion, namely, that of the 28th of September is not a proper or valid notification such as to entitle the respondent thereon to hold the election on the date fixed by the notification, and acting on the notification to refuse to receive any fresh nominations. It has already been observed that the notification purports to dispense with the procedure prescribed in Rules 2, 3 and 4. Rule 5 is explicit on the point that unless the Governor-in-Council should by special order otherwise direct, the procedure prescribed in Rules 2, 3 and 4 should be repeated. The burden of establishing that there has been a direction to the contrary by properly constitued authority is on the respondent who has claimed exemption from the normal operation of the provisions of Rule 5. The argument with regard to this point may conveniently be divided under two heads: firstly the argument with reference to the authority competent to fix fresh dates for election and for the purpose of such election to dispense with Rules 2, 3 and 4, and secondly the argument with regard to the proof of the notification having been by such authority. As regards the first point that the expression in Rule 5 with regard to the authority to fix a fresh date for election being the Governor-in-Council, it was denied that the notification in question was by the Governor-in-Council; that is to say, by His Excellency the Governor acting with his Executive Council. It is of course clear from the terms of the notification that it does not purport to be a notification by the Governor-in-Council. Even on the part of the respondent it was not sought to be set up that the notification was in fact by the Governor-in-Council. I state this because of the admission made by the learned vakil for the respondent before me in spite of the fact that in the affidavit filed by the respondent he has for some inexplicable reason alleged that the fixing of fresh dates on both the occasions, the making of the notifications, the dispensing with Rules 2, 3 and 4. were all only by the Governor-in-Council.
29. When I questioned Mr. Rangasami Aiyangar as to how such allegations came to be made, he answered that the expression was used in the affidavit in order to correspond to the expression used in the rules and merely for the purpose of indicating that the authority was the proper authority. The real contention on behalf of the respondent with regard to this matter was that after the passing of the City Muncipal Act and also after the enactment of the rules under consideration the Government of India Act of 1919 came into operation and Section 46 of that Act provided for the transfer of various subjects to be administered by the Governor acting with ministers and that local self-Government being on of the transferred subjects the authority vested by the City Municipal Act in the Governor-in-Council should be deemed to have been transferred to the Governor acting with his ministers.
30. In support of this contention reference was also made to Section 31 included in the General Clauses Act by the Government of India Act XXXI of 1920. That Section runs as follows:
In any enactment made by any authority in British India before the date on which Section 3 of the Government of India Act 1919, comes into operation and in any rule order, notification, scheme, bye-law or other document made under or with reference to any such enactment, any reference by whatever form of words to an authority authorized by law, at the time the enactment was made, to administer executive Government in any part of British India, shall, where a corresponding new authority has been constituted by the Government of India Act, 1919, be construed for all purposes after the above mentioned date, as a reference to such new authority.
31. There is no doubt that Section 3 of the Government of India Act, 1919, came into operation in this Presidency only after even the rules under consideration were promulgated and published.
32. The question then resolves into whether the reference in the City Municipal Act to the Governor-in-Council should be regarded as reference to an authority authorized by law to administer executive Government in any part of British India, and whether after the introduction of diarchy the ministerialist part of the Government is the corresponding new authority.
33. The contention on behalf of the applicants appeared to be that the Governor-in-Council was a sort of persona designata appointed by the Act for the purpose of exercising the various powers referred to in the rules. If the expression used was the Local Government, then undoubtedly the reference must be regarded as being to an authority authorized by law to administer executive Government. It cannot of course be denied that the Governor-in-Council is such an authority; but when the question is raised whether the reference to the Governor-in-Council is a reference to the body as the executive Government of the Province at the time there may no doubt be some room for argument. In other places in the same City Municipal Act the expression 'Local Government' is used. But I believe it is for the purpose of covering and comprising all such cases that the language was employed in Section 31 of Act XXXI of 1920, that whatever may be the form of words, it is sufficient if the reference is to an authority authorized to administer executive Government. After carefully considering the matter, I have come to the conclusion that the reference to the Governor-in-Council in the Act could not in consonance with the general intent, be regarded as anything other than a reference to the executive Government. There would even then of course remain the further question whether there is anything in Section 31 above cited to show that the powers reserved under the Act to the Governor-in-Council even as executive Government should be regarded as pertaining to the transferred subjects and transferred to the ministerialist part of the Government. I should have felt great difficulty in dermining the question satisfactorily as a matter of legal construction had it not been for the word 'corresponding' in Section 31. The reference being to corresponding new authority full effect can be given to the word 'corresponding' only if we should take into consideration the departmental exercise of power and the transfer of such departments. There is also no reason to suppose why when the whole subject of local self-government became transferred from the Governor-in-Council to the Governor with the ministers the power er-served to the executive Government under an enactment relating to local self-government should not properly be regrades 'MISSING TEXT'mspired in the transfer. It seem to me therefore clear that the expression 'Governor-in-Council' in the City Municipal Act should now be read as the Governor acting with ministers as provided in Section 46 of the Government of India Act, 1919.
34. But then there remains the further question whether the present notification has been shown to have been by the Governor acting with the Ministers. Section 49 of the Government of India Act, 1919, Clause 1 provides as follows:
All orders and other proceedings of the government of a Governor's province shall be expressed to be made by the Government of the province and shall be authenticated as the Governor may by rule direct so, however, that provision shall be made by rule for distinguishing orders and other proceedings relating to transferred subjects from other orders and proceedings. Orders and proceedings authenticated as aforesaid shall not be called into question in any legal proceeding on the ground that they were not duly made by the Government of the Province.
35. As the authority and validity of the notification was questioned on behalf of the applicants, It became necessary for the respondent to satisfy the Court that the notification was by the proper authority and properly authenticated. No doubt the second clause in the section above cited provides for orders and proceedings not being called into question in legal proceedings, but it is only orders and proceedings authenticated as aforesaid, that is to say, authenticated as set out in the previous clause, namely, as the Governor may by rule direct. No such rules have been produced before me. It is not known whether any such rules have been framed and neither side was in a position to draw my attention to any such rules.
36. The learned vakil for the respondent was not in a position to state whether any rule had been passed; and if so, what the rule was. According to the provisions contained in Clause 1 of Section 42 above cited, it is only when an order or proceeding is authenticated in the manner referred to the order or proceeding could not be called into question in a Court of law. I feel therefore constrained to hold that the notification in question has not been proved to be so authenticated as required by the said Section 49 as to save it from being called into question.
37. No doubt if the notification had been properly authedticatated and the authentication was to the effect of the notification having been promulgated by the Governor with the ministers, it would not in the least matter whether, as a matter of fact, the notification was promulgated by the Governor with the ministers or not. It would have been conclusive and not capable of being questioned in a Court of law. But not only is there no proof of any proper authentication; but even the notification does not purport to have been issued by the Governor with the ministers. When I questioned the learned vakil for the respondent with regard to this, he invited my attention to Section 78 of the Evidence Act Clause 1. That section applies only to proof of documents, or in other words it is only a provision for the notification being proved by the production of the Gazette copy. That section cannot help the respondent in any measure in proving that the authority promulgating the notification was the Governor with the ministers when even the notification does not purport to say so. The learned vakil also relied upon an order which he produced showing that the order under which the notification was published was one issued by order of the Government, Ministry of Local self-Government. Though I allowed this order to be filed as an exhibit overruling the objection of the applicants' vakil but subject to argument, it seems to me that the Court cannot look at that order for the purpose of determining whether the notification is as prescribed by the rules. Rule 5 requires that the Governor-in-Council should fix by notification in the Fort St. George Gazette a fresh date, etc.
38. It follows therefore that the notification itself must purport to be by the proper authority. No doubt the letters 'B' and 'N' in the notification may serve to indicate the department of Government to which the notification relates. But even taking the order, filed, that purports to be only by order of the Governor, Ministry of local self-Government. There is nothing in the order to indicate that it was an order of the Governor with the ministers as required by the rule as properly construed. When certain powers are given by statute to the Governor acting with the ministers one of two things, it seems, to me, must be clearly established, either that the power was, as a matter of fact, exercised only by the Governor with the ministers, or else that the power is notified as having been so exercised as to make it incapable of being called into question. The Government may in the course of its administration of executive functions delegate many things to subordinate officers. But no such delegation is proper or possible when the right, more especially in the nature of a discretion, is created and given by statute to a particular body constituted in a particular manner. For aught one can say, the order which purports to be the order of the Government, Ministry of local self-Government, might have, after all been merely the order of be particular Secretary who issued it under His signature and there is nothing even in the order to show that either the minister himself was the authority issuing the order, or much less the Governor acting with the ministers by which I must understand all the ministers. In fact, in a supplemental affidavit filed on behalf of the applicants it was charged that, as a matter or fact, His Excellency the Governor and even the minister for Local self-Government could not have been a party to the order, because both of them were absent from Madras on the date and there was between the hour of communication from the respondent, the Commissioner, and the publication of the notification in the Gazette, no time for an order being issued by the Governor with the ministers.
39. There was no attempt made on the part of the respondent to show (even if it could be shown aliunde, that is to say, apart from the notification itself) that as a matter of fact, the notification was the result of an order made by the Governor with the ministers. When it is remembered that Rule 5 contemplates not merely the fixing of a date but also the exercise of an important judgment with regard to the dispensing with Rules 2, 3 and 4, it seems to me that the requirement of the rule that the dispensing with shall be by the special order of the Governor with the ministers must be strictly carried out. It is not a power that can be delegated or that can be exercised under any departmental rules by any persons other than the persons constituted as the proper authority. In the case of Varadarajalu Naidu v. King-Emperor [l919] 42 Mad. 885 a Full Bench of this Court presided over by Sir John Wallis, C. J., held that a sanction required to be accorded by a Local Government should have been the act of the Government and not by a single member of such Government.
40. I have therefore come to the conclusion that as the notification in question does not purport to be a notification by the Government acting with the ministers and as it is not also shown, as a matter of fact that the Governor with the ministers even ordered or authorized any such notification, the notification would not be effectual for the purpose of fixing a fresh date for election or for the respondent claiming to hold an election on any such date excluding the operation of Rules 2, 3 and 4. In coming to this conclusion I have had less regret, than I might otherwise have had, because I am. satisfied that in the present case and having regard in the technical reason for which the nomination of O. A. O. K. Lakshmanan Chetty became excluded it is not at all likely that if the proper authorities have had to consider the master they would have so deliberately excluded the operation of Rules 2, 3 and 4 thereby refusing to that candidate even a fresh opportunity of being nominated.
41. I have so far dealt with the arguments for the applicants and the answers thereto on behalf of the respondent. There were, however, some contentions put forward on behalf of the respondent which had nothing to do with the arguments or the applicants, but were in form and substance independent arguments why in the present matter the order applied for should not be made. I do not, however, propose to deal with all of them at any great length, but shall content myself with a brief recapitulation of the arguments and a brief statement of my own views thereon. In fact, what the learned vakil for the respondent did was to take every one of the clauses in Section 45 and try to show that this was not a proper case in which the order should be made. He said that the present case could not be regarded as one of any injury to any franchise. That argument, I believe, was advanced on the supposition that on the fresh date of election there was to be merely a nominal election as there was only one candidate. That may be so; but if, as I have found, the notification dispensing with Rules 2, 3 and 4 is not effective for the purpose, then it follows that there was no proper date fixed for election and that fresh nominations should also have been received. The right to nominate a candidate is undoubtedly part of the franchise and I fail to see how a denial of that right does not constitute a denial of the franchise.
42. The respondent's vakil also argued that there was no breach of duty by the Commissioner. On my findings it is perfectly clear that if the notification was not valid and he purported to act on the strength of that notification there was breach of duty. In any case, the provision in Rule 6 is perfectly clear that notice of three days should be given and the omission to give it is a clear omission to do that which was incumbent on him.
43. It was also attempted to be argued on behalf of the respondent that the petitioners had other adequate and legal remedy such as by suit. I do not propose to discuss this question at any great length. There is a decision, though unreported, by the present Chief Justice to the effect that a mere voter as such has no independent right of suit in such circumstances. But apart from that decision altogether I fail to see how a remedy by suit after the election is held, can be regarded as an adequate remedy. The right of suit which the vakil for the respondent referred to was a right of suit after the election is allowed to be held and a Councillor is elected and I for my part venture to think that there could be no.such right of suit. All the cases referred to by the vakil for the respondent were suits by the defeated candidates themselves. Mr. Rangasawmi Aiyangar also advanced an argument at one stage that the effect of making an order as applied for will be to contravene other sections of the Act. But my attention has not been drawn to any such sections. The only argument of the learned vakil for the respondent which pressed me somewhat had reference to the clause in Section 45 of the Specific Relief Act which is to the following effect. 'Nothing * * * * * * * * * * * * * * * * Bengal'
44. Mr. Rangasawmi Aiyangar argued that even though the order in this case may only be directed to the Commissioner restraining him from holding the election on a particular date, since the Government has fixed the date, any such order restraining him must be regarded as an order binding on the Government and therefore not capable of being passed by the Court. The expression 'binding on the Government' is a somewhat curious expression. It is not quite clear that by that expression the Legislature intended anything more than merely orders passed against the Government, following in that respect the English Law. When we speak of an order being passed binding on a person, it can only be because he was a party to the order or else is so otherwise circumstanced as to have obligation cast on him by reason of the order to carry it out. When an order does not purport to be against a party and cannot of its own force oblige any party to do any act or to refrain from doing any act, it cannot be said that the order is binding on such party. So understood, it seems to me, that any order that the Court may pass restraining the respondent from holding an election on a particular date cannot be said to be binding on the Government; because the Government are under no obligation by reason of the order to do anything or to omit to do anything. If, however, any other construction of the expression should be adopted, it will result in the Court being unable in most matters to make any order against any public servant of Government who may also be under statutory obligations towards the public as in this case to conduct himself in a particular manner. The order, if and when made, will only be against the Commissioner requiring him to do an act or refrain from doing an act and it is impossible to see that such an order can be regarded as an order binding on the Government, except in the sense that the Government may have no power to direct the Commissioner to the contrary.
45. The learned vakil for the respondent urged in conclusion the usual argument in all such cases, that whatever might be the rights and wrongs of the matter, the Court should not in the exercise of its discretion pass the order applied for. But as have already observed there would have been considerable force in such an argument if all that had to be done in the fresh election was only to hold a nominal election uncontested with only one candidate and requiring only a few formal votes to be recorded. As already indicated by me if I have come to such conclusion, I should certainly have been prepared to refuse the order applied for in spite of the fact that according to my view three days' notice of every election was bound to be given under Rule 6. But the notification of the 28th of September being in my view not a proper or valid notification for the purposes of Rule 5 and in any case the 30th September having passed it follows that the Commissioner has no power hereafter either to hold an election on that date or to dispense with the operation of Rules 2, 3 and 4 for the purpose of the election. The provisions in Rules 2, 3 and 4 are substantive provisions and are calculated to affect materially the election in question. I did not understand the learned vakil for the respondent to contend that even if according to my view there was a right in the voters to make fresh nominations, and the respondent was denying such right. I should still in the exercise of my discretion refuse the order.
46. The date for fresh election fixed in the notification was the 30th of September. That day is now passed. No question now arises of the election being held without another date being fixed by the proper authority under Rule 5. In the view I have taken of Rule 6, at least three days' notice of the election should be given as provided therein even in respect of an election for which a fresh date is fixed under Rule 5. It will be a matter for the proper authorities hereafter to consider whether having regard to all the circumstances they would make a special order under Rule 5 dispensing with Rules 2, 3 and 4 or content themselves with fixing a suitable date so as to allow of the operation of those rules. In view of the fact that the 30th of September the date fixed by the notification referred to for the holding of the election is now unavailable for the purpose there is now no necessity to pass any order with regard to it, and I think the requirements of the case will now be met by my making an order that the respondent be restrained from holding an election on any fresh date without having such date fixed by notification by the proper authorities under Rule 5 or without three days' notice of the date fixed for election under Rule 6. And I direct accordingly. The respondent will pay the petitioners the taxed costs of the application.