Skip to content


Manindra Chandra Nandi Vs. Provas Chandra Mitter and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKolkata
Decided On
Reported inAIR1924Cal761,79Ind.Cas.1042
AppellantManindra Chandra Nandi
RespondentProvas Chandra Mitter and ors.
Cases ReferredRex v. The Board of Education
Excerpt:
- page, j.1. in this case the maharajah of cassimbazar applies by petition to the court under section 54 of the specific relief act (act 1 of 1877) for an order requiring the returning officer for the presidency landholders' constituency to accept as valid the applicant's nomination as a candidate for election to the bengal legislative council and to include the applicant's name in the list of valid nominations, and to publish it rectified as aforesaid, or, in the alternative, for a rule upon the respondent to show cause why the said order or such further or other order should not be made as to the court may seem fit and right, and for incidental relief.2. on the 15th of october mr. justice cuming adjourned the hearing of this application until the 29th october, and granted ad interim.....
Judgment:

Page, J.

1. In this case the Maharajah of Cassimbazar applies by petition to the Court under Section 54 of the Specific Relief Act (Act 1 of 1877) for an order requiring the Returning Officer for the Presidency Landholders' Constituency to accept as valid the applicant's nomination as a candidate for election to the Bengal Legislative Council and to include the applicant's name in the list of valid nominations, and to publish it rectified as aforesaid, or, in the alternative, for a Rule upon the respondent to show cause why the said order or such further or other order should not be made as to the Court may seem fit and right, and for incidental relief.

2. On the 15th of October Mr. Justice Cuming adjourned the hearing of this application until the 29th October, and granted ad interim injunction restraining the Returning Officer and other persons authorised to perform the functions of the Returning Officer from proceeding further with the election until the date fixed for the hearing of this application.

3. The facts are as follows: - The applicant was a member of the Council of State. On the 7th October, 1923, by telegram and letter of that date he tendered his resignation of the office of Member of the Council of State. On the 8th October, pursuant to the Bengal Electoral Rules and Regulations, the applicant duly presented to the Returning Officer three nomination papers in the form and on the date appointed thereunder. Nomination papers were also presented on behalf of the respondents Provas Chandra Mitter and Jotindra Nath Chaudhuri. On the 10th October a telegram from Simla in the following form was received by the applicant.

Simla 10th October (11-30), Governor-General has accepted resignation of your seat Council of State.

Secretary, Legislative Department.

4. On the 11th October, the date fixed for the scrutiny of nomination papers, an objection to the applicant's nomination was made by the respondent Mitter on the ground that at the date of his nomination the applicant was a member of the Council of State. The Returning Officer on the same date after summary enquiry decided the objection which had been made to the applicant's nomination, and rejected his nomination upon the following grounds which the Returning Officer endorsed on the applicant's nomination paper.

I must refuse the nomination of this candidate the Maharaja of Cassimbazar. Under Section 93 of the Government of India Act the seat in the Council of State becomes vacant on the acceptance of the resignation of the member. The Maharajah wired his resignation on the 7th instant and also sent a letter on that day. The only evidence of the acceptance of the resignation is a telegram from Simla from the Secretary, Legislative Department, dated 10th instant. If this evidence is accepted, I must hold that the resignation takes effect from the 10th instant and that on the 8th instant when the nomination papers were filed the Maharaja was still a member of the Council of State Accordingly at the time of his nomination,, be was not eligible for election [see Rule 5(1)(c)] and also the provisions of Rule 11(1) were not complied with The nomination is therefore refused under Regulations XXI(1)(i) and (iii).

J.H. Lindsay,

Returning Officer.

11-10-1923.

In these circumstances the applicant launched the present proceedings.

5. After quoting relevant rules his Lordship proceeded:

On the 11th August, 1923, the Governor in Council made certain Regulations under the powers granted to him under Rule 15. The material regulations are Regulations 20, 21, 22, 23 and 86.

6. Now, it is conceded that no appeal lies from a decision of the Returning Officer under Regulation 21, or from a determination of the Election Commissioners in an election enquiry, and, in my opinion, having regard to Rule 31, the validity of an election can only be questioned by the presentation of an election petition in accordance with the rules prescribed in that behalf. An aggrieved person is not entitled to proceed by way of a suit under Section 9 of the Civil Procedure Code or of a suit under Section 42 or an application under Section 45 of the Specific Relief Act of 1877 or otherwise, 'for the purpose of doing that which they had already provided should not be done except by an election petition.' See the observations of Lord Halsbury in Pritchard v. Mayor of Bangor (1888) 13 A.C. 241.

7. Further, if nomination, as the respondent Mitter contends, is to be regarded as election within the meaning of that term as used in Rule 31 see on this point, the observations of Mr. Justice Wright in Harford v. Lewis Key (1899) 1 Q.B. 852, in likes manner the validity of a nomination can be questioned only by means of an election petition. Again, although it is not expressly provided that decision of a Returning Officer under Regulation 21 shall be open to review only in an election petition having regard to Rule 30(b), Rule 32(1)(a) and Rule 44(c), it may well be, as the respondent contends, that the legislature intended that election petition should be the only method by which such a decision could be challenged. Otherwise, the view taken by the Court as to the validity of a nomination, might be found to be in conflict with that of the Election Commissioners, in which case the decision of the Commissioners must, under the rules, prevail. A result so inconvenient and undesirable could, I think, have been neither contemplated nor intended.

8. Counsel for the respondent Mitter supported the same contention upon another ground. He urged that the Returning Officer was the person designate to determine the validity of nomination, appointed under the legislative enactments which created the constitution, and 'where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those questions is exclusive. It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for, they never had any; there is no change of the old order of things; a new order is brought into being.' (Per Jenkins, C.J.) Bhaishankar v. Municipal Corporation of Bombay (1907) 31 Bom. 604, see further, on this subject the observations of Lord Tenterden. C.J. in Doe on the demise of the Bishop of Rochester (1831) 1 B. and Ad. 847 (859), and the case of Patwak v. Oswaldwistle Urban Council (1898) A.C. 387. It is however, unnecessary in this case that I should determine the validity of either of these contentions, and I refrain from doing so, because, in my opinion, the order for which application is made in these proceedings must be refused upon another and a more narrow ground.

9. The jurisdiction of the High Court to make orders under Section 45 of the Specific relief Act is discretionary and 'in dealing with an application under Chap. 8 of the Specific Relief Act the principles applicable to a writ of mandamus should, generally speaking, be followed : In Re Provas Chandra Roy (1913) 40 Cal. 588. It is well settled law that, where a public officer neglects or fails to perform a ministerial act which it is his duty as such officer to perform, the, Court will make an order requiring him to do the specific act, and so to implement his public obligation see for example Rex v. Christ's Hospital's Governors (1917) 1 K.B. 19, where, however, a public functionary is entrusted with discretionary powers, the Court will not interfere with the bona fide exercise of the discretion with which he has been invested. 'I do not deny that,, where some authority has been entrusted with a discretion which they decline to exercise, a writ of mandamus is an appropriate writ to remedy such neglect of' duty, though I very much doubt whether the particular form of peremptory mandamus here awarded could ever be justified under this act of Parliament. But it is obvious, that to justify any writ of mandamus, it must be made to appear that the Bishop has not exercised the jurisdiction, which the statute has vested in him. Your Lordships have nothing to do with the question whether this judgment is right, or wrong. Your Lordships would be exceeding your own jurisdiction if you were attempting to review a judgment, the jurisdiction to form which, the Legislature has confided to the bishop and, to the bishop alone.' Per Lord Halsbury. Allcroft v. Lord Bishop of London (1891) A.C. 666. Again, Lord Justice Farwell expressed the same view in Rex v. Board of Education (1910) 2 K.B. 165 'If the tribunal has exercised the discretion entrusted to it bona fide not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the Courts cannot interfere; they are not a Court of appeal from the tribunal, but they have power to prevent the intentional usurpation or mistaken assumption of a jurisdiction beyond that given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of extraneous considerations in arriving at their conclusion, or deciding a point other than that brought before them, in which cases the Courts have regarded them as declining jurisdiction.' See also Sharp v. Wakefield (1891) App. Cas. 173. Further, the Court will not by mandamus order a public officer who is invested with a judicial as distinct from a merely ministerial power to perform a specific act in order to carry out his public duty. In Bex v. Justice of Kingston Exparte Davery (1902) 86 L.T. 590 Lord Alverstone, C.J. observes : 'I think it is quite unusual to direct a judicial tribunal to act in a particular way unless it is quite plain that what they have to do is purely ministerial and is not judicial.' Mr. Justice Channell at page 591 added; 'lam of the same opinion. I think it is an important matter which should be thoroughly understood, that this Court does not by mandamus direct either justices or any public body or any body else upon whom a duty is cast how and in what manner they are to perform their duty. They simply direct thorn by mandamus to perform their duty.' Moreover, where a question within the jurisdiction of a public officer entrusted with judicial powers has been bona fide entertained and decided by such officer the Court will not interfere with his decision merely upon the ground that the decision was erroneous either with respect to facts or in point of law : Ex parte Millner 15 Jur. 1027; R. v. Evans (1890) 17 Cox. C.C. 81; Ex parte Lewis (1888) 21 Q.B.D. 191; R. v. Kinsington Justices 62 J.P. 309; Wright v. Easthouse Corporation 83 L.T. 339; Davis v. Bronaley Corporation (1907) 1 K.B. 970.

10. In my opinion, the duty to be performed by the Returning Officer under Regulation 21 is not ministerial, but judicial, and the function with which he is thereunder entrusted is to entertain all objections duly made to nominations which have been properly presented to him under the rules, and to decide having regard to such objections, whether the nomination impugned is to be accepted or rejected; provided always, that he is not entitled to refuse a nomination except upon one of the grounds specified in Regulation 21. At the scrutiny of nominations on the 11th October the Returning Officer rejected the nomination of the applicant on grounds 1 and 3 of Regulation 21, because he found as a fact, that at the date of his nomination the applicant was a member of the Council of State. In my opinion, whether or not, the applicant at the material time was a member of the Council of State, and, if so, whether his nomination paper ought to be refused, were matters within the ambit of the Returning Officer's jurisdiction, and it was his duty under the rules to decide them.

11. Counsel for the applicant contended first, that the acceptance of the applicant's nomination was a specific act, the doing of which was clearly incumbent on the Returning Officer under Section 45 of the Specific Relief Act. In support of his contention he cited the case of Alcock Ashdown & Co. v. Chief Revenue Authority, Bombay A.I.R. 1923 P.C. 133 (P.C.). But it is to be observed that in that case the Judicial Committee held that it was the duty of the public officer to state a case, for the opinion of the Court, and that he had refused to carry out the duty cast upon him. In their Lordships' view 'to argue that if the Legislature says that a public officer, even a revenue officer, shall do a thing, and he without cause or justification refuses to do that thing yet the Specific Relief Act would not be applicable, and there would be no power in the Court to compel him to give relief to the subject, is to state a proposition to which their Lordships must refuse assent.' It is not contended in this case that if the Returning Officer had declined to exercise the jurisdiction with which he was vested, this Court would not have jurisdiction to order him to perform his duty. But what was his duty? I have already stated, his duty was not to accept any particular nomination, but to decide whether the applicant's nomination ought to be accepted, or rejected. That he has done, and for the reasons which I have set out, in my opinion, there is no substance in the first contention.

12. Counsel for the applicant further contended that it was so obvious that the applicant was not a member of the Council of State at any material time, that the Court ought to come to the conclusion that the Returning Officer must have been acting capriciously, and not in the exercise of the judicial discretion with which he was entrusted, when he expressed an opinion to the contrary effect. I am unable to assent to this contention. I desire to refrain from indicating any opinion which I may hold as to whether the decision which the Returning Officer gave in respect of the validity of the applicant's nomination was correct or not, but, in my opinion, there is no ground whatever to found the suggestion that the Returning Officer in exercising the jurisdiction confer-red upon him, and rejecting the applicant's nomination under Regulation 21, was not acting impartially, and in accordance with the powers with which he was invested. It is open to the applicant if he is so disposed, to challenge the validity of the Returning Officer's decision in refusing his nomination hereafter by way of election petition, but, in my opinion, this application is misconceived, and must be dismissed.

13. I desire to add, having regard to the provisions of the Code of Civil Procedure and Section 53 of the Specific Relief Act, that the Court, in a proceeding instituted under Section 45 of the Specific Relief Act has, in my opinion, no jurisdiction to grant an interim injunction.

14. The application is dismissed with costs, including the costs of the Returning Officer.

15. Against this order, the applicant-appealed under Clause 15 of the Letters Patent.

Sanderson, C.J.

16. This is an appeal by Maharajah Manindra Chandra Nandi of Cassimbazar from the judgment of my learned brother Mr. Justice Page which was delivered on the 2nd of November last.

17. The notice of motion was in these terms : 'An application will be made before the Vacation Judge...for an order requiring the Returning Officer to accept the nomination of the applicant as valid and to include the applicant's name in the list of valid nominations and to publish the said-list so rectified as aforesaid in such manner and in such time as to this Hon'ble Court may seem fit and proper, or in the alternative for the issuer of a Rule calling upon the respondents to show cause within a time to be fixed by the Court why the said order or such further or other order or orders as may be deemed fit and proper should not be made.'

18. The facts which it is necessary for ma to state in this case are as follows : The Maharaja, apparently, on the 7th of October had decided that he would stand for election to the Bengal Legislative Council. At that time he was a member of the Council of State and on that date the 7th of October he sent a telegram and a letter to the Governor-General submitting his. resignation as a member of the Council of State. The 8th of October was the date specified for filing the nominations for the election to the Bengal Legislative Council. On that date the Maharaja's nomination was filed. On the 9th, the Maharaja telegraphed to the Governor-General asking that he should receive communication in answer to his application by telegram. On the 10th of October, a telegram was received by the Returning Officer stating that the Governor-General had accepted the resignation tendered by the Maharaja, - a copy of that telegram, as I understand, was communicated to the Maharaja himself. The 11th October was the date fixed for the scrutiny of the nomination. On that date (the 11th of October) an objection was taken by the respondent Mr. Provas Chandra Mitter that the Maharaja was not eligible for election on the ground that on the 8th of October the date of filing the nomination papers - the Maharaja was still a member of the Council of State. The Returning Officer acceded to that objection and came to the conclusion that the Maharaja was not eligible for election, and rejected his nomination. The decision of the Returning Officer was as follows, 'I must refuse the nomination of this candidate the Maharaja of Cassimbazar. Under Section 93 of the Government of India Act the seat in the Council of State becomes vacant on the acceptance of the resignation of the member. The Maharaja wired his resignation on the 7th instant and also sent a letter on that day. The only evidence of the acceptance of the resignation is a telegram from Simla from the Secretary, legislative Department, dated 10th instant. If this evidence is accepted I must hold that the resignation takes effect from this 10th instant and that on the 8th instant when the nomination papers were filed the Maharaja was still a member of the Council of State. Accordingly at the time of his nomination he was not eligible for election [See Rule 5(1)(c)] and so the provisions of Rule 11(1) were not complied with. The nomination is therefore refused under Regulation XXI(1)(I) and (III).'

19. The Maharaja, as I have already stated, then moved this Court, and the learned Judge delivered his judgment dismissing t he motion. It is from that judgment that this appeal has been filed.

20. The scrutiny which was held on the 11th of October was held by the Returning Officer in pursuance of the rules which are called the 'Bengal Electoral Regulations.'

21. The first point which the learned council, who appeared for the Maharaja has urged, is that the question which the Returning Officer ought to have considered and decided was, whether the Maharaja was eligible for election at the date of the scrutiny namely the 11th of October, and that instead of doing that, the Returning Officer had considered the question whether the Maharaja was eligible for election at the date of the filing of the nomination paper, namely the 8th, and that accordingly the Returning Officer had assumed a jurisdiction which he did not possess.

22. The principle upon which, in my judgment, this matter should be approached has frequently been laid down, and there is no doubt about it. The Court is asked to exercise a jurisdiction which has been given to the Court by Section 45 of the Specific Relief Act. If it had been clearly made out that the Returning Officer had assumed a jurisdiction which he did not possess, I should have no doubt that this Court would have power to exercise the jurisdiction given to the Court by Section 45, and to make such order as the Court might think fit. Reference may be made to the words of Lord Justice Farwell in the case cited : Rex v. Board of Education (1910) 2 K.B. 165 the passage being 'If the tribunal has exercised the discretion entrusted to it bona fide, not influenced by extraneous or irrelevant considerations, and not arbitrarily or illegally, the Courts cannot interfere; they are not a Court of Appeal from the tribunal, but they have power to prevent the intentional usurpation or mistaken as sumption of a jurisdiction beyond that given to the tribunal by law, and also the refusal of their true jurisdiction by the adoption of extraneous consideration in arriving at their conclusion or deciding a point other than that brought before them, in which cases the Courts have regarded them as declining jurisdiction.' In my judgment, in this case the Returning Officer has not assumed a jurisdiction which he did not possess. The question for his determination was whether the Maharaja was a person eligible for election, as a member of the Legislative Council; and, to my mind it is clear that he has decided that question. I have read his decision : he said, 'Accordingly at the time of his nomination he was not eligible for election.' Whether he was right or wrong in that conclusion it is not for us to decide in these proceedings, and I express no opinion upon that point: 'The Returning Officer relied upon Rule 5(1)(c) of the Bengal Electoral Rules, and upon Rule 11(1), which are as follows:

5. (1)(c) - 'A person shall not be eligible as a member of the Council, if such person is a member of the Council or of any other legislative body constituted under the Act and has already made the oath or affirmation as such member':

11. (1) - 'Any person may be nominated as a candidate for election in any constituency for which he is eligible for election under these rules.'

23. The Returning Officer, in my judgment, considered the question which was for his determination, and in considering that question he had to put an interpretation upon the rules to which I have referred. He may have put a wrong interpretation upon them or he may have put a right interpretation upon them. In these proceedings it is not for us to say whether he was right or whether he was wrong. To my mind, it is clear, that he did not usurp a jurisdiction which he did not possess. He did not refuse a jurisdiction which was vested in him. Nor is it suggested that he was actuated by any mala fides or extraneous circumstances. The result is that in my judgment this Court should not interfere in these proceedings and under these circumstances. In my opinion that point alone is sufficient for the disposal of the appeal.

24. There are however two other matters, to which, I think it is right to refer. The first is, that I am not at all, satisfied that the appellant has no other specific and adequate legal remedy for the purpose of asserting his rights, if he has any, - as to which I express no opinion - within the meaning of Section 45, proviso (d) of the Specific Relief Act.

25. The last point to which I think it is necessary to refer is this : it appears that the election is now proceeding, there being another candidate besides Mr. Provas Chandra Mitter, for one vacancy, and the spoil will be closed on the 15th of November. Even if we were to accede to the application of the Maharaja in this case, I am not at all satisfied that any order, which we might think fit to make in respect of this matter, would not be infructuous.

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

Richardson, J.

27. The objection taken to the Maharaja's nomination was of a technical character and may appear almost ungenerous. On the other hand, it is of course important that an intending candidate should be careful to comply precisely with the rules, if only to avoid subsequent discussion as to the validity of the tenure on which, if elected, he holds his seat. I do not know the circumstances, but at least no reason appears why if the Maharaja was going to stand for election to the Bengal Council he should have postponed the resignation of his seat in the Council of State to the very last minute. In business of an important character, dilatoriness and procrastination are very apt to lead to difficulty.

28. Now, this appeal comes before us at a time when, as it appears, the election is being held and the votes for the candidates whose nomination papers were accepted are being recorded. In a day or two the poll will be closed and in due course one or other of the two candidates in the field will be declared to have been elected. In will then be open to the Maharaja, if he feels that he has a grievance, to endeavour to obtain a remedy by the means which the rules contemplate and provide for. It will be open to him to present an election petition to be heard or decided by a tribunal consisting of three Commissioners whose qualifications the rules are careful to prescribe. I have heard nothing which leads me to suppose that recourse to this remedy would not be as convenient and effectual for the purpose which the Maharaja has in view as the remedy for which he is now seeking. That being so, it is at least doubtful whether the proviso to Section 45 of the Specific Relief Act which makes it a condition precedent to the making of an order under the section, that the applicant should have no other specific and adequate legal remedy, does not apply. 15ut if on a narrow interpretation of the words, the proviso is not applicable for the mare reason that the remedy is not at this moment available, it still remains that the jurisdiction is discretionary. We should still have to consider whether it would accord with sound discretion to exercise the extraordinary jurisdiction of this Court to make an order in the nature of a mandamus - a jurisdiction intended to be of the last resort - when the remedy specifically provided will so very soon be at the Maharaja's disposal.

29. It appears to ma that, even assuming, that the Maharaja makes oat a good case it would be a strange thing to interfere with an election to a popular assembly which is actually in progress.

30. Moreover, as the learned Chief Justice has pointed out, it is not clear whether any order that we might now make would be a complete remedy within the meaning of Clause (e) of Section 45. It is not clear whether the order would bind any authority to stay the election and require the proceedings to be commenced de novo. Some reference has been made in this connection to the power, conferred on the Local Government by Rule 29. I am not at present prepared to say what is the precise extent of the power conferred by that rule or whether the Local Government, which is not a party to these proceedings, would be bound by any order that we might make, to take action under that rule. I will only observe that the power conferred, however wide its scope, appears to be a discretionary power, and that if there be a doubt as to the true intention of Rule 29, that doubt under an other rule, to which I shall come later, is to be resolved by the Governor.

31. Learned Counsel has said to-day that we ought not to take into consideration the circumstance that an election is in progress. But the circumstance is before us by affidavit, and I cannot follow the learned counsel when he says that we ought to shut our eyes and leave it out of consideration.

32. There are, however, not wanting other considerations which at least induce hesitation. In this case the function of the Returning Officer was in the nature of a judicial function and his decision was in the nature of a judicial decision. No shadow of suggestion is made that the, Returning Officer, who heard argument, on behalf of the parties interested, did not act bona fide to the best of his judgment and to the best of his ability. The contrary is frankly and fully conceded. No man upon whom a statutory duty is, cast, can be expected to do more and in, such a case it should certainly not be easy, if at all possible, to obtain an order in the nature of a mandamus for the purpose of setting aside the decision which has been thus given, and obtaining a fresh decision. I quite appreciate the argument of the learned Counsel Mr. Chaudhuri Learned Counsel said, that the Returning Officer decided the point which arose on materials which it was not competent to him to consider and not on the materials which he ought to have considered. The Returning Officer ought, it is argued, to have had regard to the eligibility of the Maharaja, for election not on the day on which-the nomination paper was handed in, to the Returning Officer, but on the day on which the paper was scrutinized. As I have said, I quite> appreciate the argument. If the Returning Officer did not decide the question which it was his duty under the rules to decide and decide some other question, it may well be that, in the absence of other remedy, this Court would have power not to decide anything for him, but to make an order that he should decide the question which he ought to have decided. The case of Rex v. The Board of Education (1910) 2 K.B. 165 which has been cited, would appear to support the learned counsel's argument to that extent, but no further. If we were to make an order under Section 45 the most, as it appears to me, that we could do, would be to direct the Returning Officer to decide whether the Maharaja was eligible for election, on the day of the scrutiny That is to say, a fresh decision by the Returning Officer would be necessary, and very probably in the meantime, before another decision could be obtained, the poll would be closed.

33. But apart from that, it is not, as it seems to me, so clear as to be beyond all dispute that the rules do not require that a candidate should be actually eligible for election when nominated Rule 11(1), to which the Returning Officer has referred, says that 'any person may be nominated as a candidate for election in any constituency for which he is eligible for election under these Rules.' It may be, though I am not to be taken as in any way expressing an opinion on the point that a candidate is to be regarded as eligible for election, if he fulfils the prescribed conditions, when his nomination paper is scrutinized or even when the poll is taken. But it cannot, I think, be said that no reasonable being could understand the words of rule 11 in the sense in which the Returning Officer understood them. On a debatable question, we are not to substitute our opinion for that of the Returning Officer. That position is amply supported by authorities cited by Page, J., in the course of his judgment.

34. If, as the Returning, Officer thought, the nomination was invalid and the Maharaja was not properly nominated, it would follow that the Maharaja was not eligible for election. It appears to me that the point is at least arguable and if there be any doubt on the point of law arising on the construction of the rules as to the time or times to which the Returning Officer was to look in determining the Maharaja's eligibility, clearly this Court ought not to interfere. It is idle to ask for a mandamus when there has been no refusal to perform a statutory duty, and the question whether in point of law it was properly performed is in doubt.

35. In the second place, the rules themselves provide the method by which questions of doubt or difficulty as to their interpretation are to be solved. Rule 48 prescribes that: 'if any question arises as to the interpretation of these Rules otherwise than in connection with an election enquiry held thereunder, the question shall be referred for the decision of the Governor, and his decision shall be final.' It seems that the Returning Officer was asked to make reference under this rule, but the request does not appear to have been pressed and the application which has since been made to the High Court, and which is now before us in appeal, is not that the Returning Officer should be compelled to make a reference. If in a proper case the Returning Officer should decline to make a Reference or, speaking with the very greatest respect in regard to a contingency so improbable, if the Governor should decline to decide a Reference properly made to him, it would then be time enough to have recourse to the provisions of Section 45 of the Specific Relief Act.

36. For these reasons, I agree with the learned Chief Justice that the application was rightly dismissed by Page, J. and that this appeal must also be dismissed, and with costs.

37. I may add that we did not consider it necessary to hear the learned Counsel for the respondents. I desire also to say that there has been no discussion before us on a question which has been adverted to in the course of the proceedings, namely, whether, when the Court grants a Rule under Section 45, to show cause why an order applied for under that section should not be made it has or has not the power to grant an ad interim injunction or to make an order in the nature of a suspensory order.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //