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S.N. Halder Vs. S.N. Mallik and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1924Cal454
AppellantS.N. Halder
RespondentS.N. Mallik and anr.
Excerpt:
- .....holding a public office...provided (d) that the applicant has no other specific and adequate legal remedy and (e) that the remedy given by the order applied for will be complete' and one of the exemptions from such power is as follows:(h) 'nothing in this section shall be deemed to authorise any high court to make any order which is otherwise expressly excluded by any law for the time being in force.' it has been admitted by the learned counsel, who argued this case, that it will be open to his client to present an election petition based upon the allegations upon which he now relies. it seems to me, therefore, that the applicant has another specific and adequate legal remedy.2. further, it seems to me that if we were to allow this appeal and make the order, which my learned brother was.....
Judgment:

Sanderson, C.J.

1. After stating the facts of the case His Lordship proceeded as follows:

In my judgment this appeal must be dismissed on the following grounds:

The application, upon which the rule was founded, was made under Section 45 of the Specific Relief Act. It is not necessary for me to refer at any length to the provisions of that section as they are all well known and there have been many decisions in this Court in respect thereof. It is sufficient for me to say, in the first place, that the jurisdiction which is given to the Court under that section is a discretionary jurisdiction : and, in the second place, that jurisdiction is limited by the provisos and exemptions which are set out in the section. I desire to refer to three of these, viz., (d), (e) and (h). The section provides that the Court may ' make an order requiring any specific act to be done or forborne...by any person holding a public office...provided (d) that the applicant has no other specific and adequate legal remedy and (e) that the remedy given by the order applied for will be complete' and one of the exemptions from such power is as follows:

(h) 'Nothing in this section shall be deemed to authorise any High Court to make any order which is otherwise expressly excluded by any law for the time being in force.' It has been admitted by the learned Counsel, who argued this case, that it will be open to his client to present an election petition based upon the allegations upon which he now relies. It seems to me, therefore, that the applicant has another specific and adequate legal remedy.

2. Further, it seems to me that if we were to allow this appeal and make the order, which my learned brother was asked to make and direct that the Returning Officer should accept Mr. Haider's nomination paper, the remedy, which we should be able to give would not be complete because we have no power in these proceedings to set aside the election which has been declared and the result might be to reduce these proceedings to an absurdity inasmuch as we should be directing the Returning Officer to receive the nomination paper of Mr. Haider after he has declared Mr. Mallik to be duly elected-a declaration, with which this Court in these proceedings has no jurisdiction to interfere.

3. There is a further ground, namely, that by rule 31 of the Bengal Electoral Rules land Regulations it is provided that 'no election shall be cancelled in question except by an election petition presented in accordance with the provisions of this part.' The learned Counsel has admitted that that rule may be said to be 'a law for the time being in force' and one of the exemptions from the provisions of Section 45 of the Specific Belief Act, as I have stated, is that ' Nothing in this section shall be deemed to authorise any High Court to make any order which is otherwise expressly excluded by any law for the time being in force.'

4. For these reasons, in my judgment, this appeal must be dismissed with costs.

Richardson, J.

5. I am entirely of the same opinion.


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