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Tulsi Charan Goswami Vs. M. Azizul Huque - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata
Decided On
Reported inAIR1938Cal163
AppellantTulsi Charan Goswami
RespondentM. Azizul Huque
Excerpt:
- .....the defendant is alleged to have been elected speaker, and there is not now any person holding the office of governor of bengal, that is to say, sir john anderson, ceased to be governor of bengal on 1st april 1937, when certain provisions of the government of india act, 1935 came into force, and has not been properly appointed as governor of bengal under the provisions of that act. that argument is based upon certain sections of that act to which i will refer.3. section 2(1) provides that all rights, authority and jurisdiction heretofore belonging to his majesty the king emperor of india, which appertain or are incidental to the government of the territories in india for the time being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation to any.....
Judgment:
ORDER

Williams, J.

1. This is an application made by Tulai Charan Goswami, a member of the Bengal Legislative Assembly, in a suit which he has brought against Khan Bahadur M. Azizul Huque, another member of the Bengal Legislative Assembly, for a declaration that the defendant has not been duly and validly elected Speaker of the said Bengal Legislative Assembly and that he was not and is not the Speaker of the said Assembly and was not and is not entitled to act or function as such Speaker; also for an injunction restraining him from so acting or functioning or drawing his salary as such Speaker. The present application is for a temporary injunction.

2. The plaintiff's case is founded upon the argument that there was not at the time when the defendant is alleged to have been elected Speaker, and there is not now any person holding the office of Governor of Bengal, that is to say, Sir John Anderson, ceased to be Governor of Bengal on 1st April 1937, when certain provisions of the Government of India Act, 1935 came into force, and has not been properly appointed as Governor of Bengal under the provisions of that Act. That argument is based upon certain sections of that Act to which I will refer.

3. Section 2(1) provides that all rights, authority and jurisdiction heretofore belonging to His Majesty the King Emperor of India, which appertain or are incidental to the Government of the territories in India for the time being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation to any other territories in India, are exercisable by His Majesty, except in so far as may be other-wise provided by or under this Act, or as may be otherwise directed by His Majesty, and Sub-section (2) provides that such rights shall include any rights heretofore exercisable by the Secretary of State, the Secretary of State in Council, the Governor-General, the Governor. General in Council, any Governor or any Local Government, whether by delegation from His Majesty or otherwise. The Act provides for the resumption by His Majesty of such delegated powers and then proceeds to make provision for the future exercise of all those rights, authority and jurisdiction. Section 3 provides that the Governor. General of India is appointed by His Majesty by a Commission under the Royal Sign Manual, whereas under the old Government of India Act a Governor-General in Council was appointed by Warrant. Section 4 provides for a Commander-in-Chief to be appointed by Warrant under the Royal Sign Manual, thus emphasizing a distinction between a Commission and a Warrant.

4. It is clear therefore that the position and mode of appointment of a Governor. General under the new Act are somewhat different from those under the old Act, and it is admitted that the present Governor. General has been appointed afresh under the new Act by a Commission under the Royal Sign Manual. Similarly, alterations have been made with regard to the position and mode of appointment of the Governor of a province. Section 46 provides for Governors' Provinces including the province of Bengal. The old presidencies, with all their glamour and romance, were presumably a source of offence to the neat and tidy official mind, and have been quietly eliminated by a stroke of the pen. Section 48 provides that the Governor of the province is appointed by His Majesty by a Commission under the Royal Sign Manual, and Section 49 provides that the executive authority of a province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him. In the old Act, Section 46 pro. vided that the presidencies of Fort William in Bengal, Fort St. George, and Bombay, and the provinces known as the United Provinces, the Punjab, Bihar and Orissa, the Central Provinces, and Assam, should each be governed, in relation to reserved subjects, by a Governor in Council, and in relation to transferred subjects by the Governor acting with his Ministers appointed under the Act. Sections 50 and 51 provide for a Council of Ministers to aid and advise a Governor, and Section 52 for certain special responsibilities which are imposed upon him.

5. It is clear therefore, that the position of a Governor of Bengal under the Act of 1935 is different from his position under the old Act. The office of Governor under the new Act is created by Letters Patent, and the appointment to that office is made by a Commission under the Royal Sign Manual. Section 53 of the Act of 1935 provides for the issue of certain documents called Instruments of Instructions which may be issued by His Majesty to the Governor of a province. It is admitted that Letters Patent have been issued creating the office of Governor of Bengal under the Government of India Act, 19(5. It is also admitted that no Commission has been issued under the Royal Sign Manual, appointing Sir John Anderson to the office of Governor of Bengal. Further it is admitted that an Instrument of Instructions passed under the Royal Sign Manual has been issued to the Governor of Bengal, dated 8th March 1937.

6. This provides inter alia that the Governor, with all due solemnity, shall cause the Commission under the Royal Sign Manual appointing him, to be read and published in the presence of the Chief Justice for the time being, or, in his absence, any other Judge of the High Court of the province, namely this High Court. Further, that the Governor shall take the oath of allegiance and the oath for the due execution of the office of Governor of Bengal, and for the due and impartial administration of justice, which oaths the Chief Justice for the time being, or, in his absence, any Judge of the High Court, shall tender and administer to him. It is admitted that Sir John Anderson has not caused the Commission to be read nor taken either of these oaths as provided by the Instrument of Instructions.

7. With regard to the Provincial Legislature, Section 60 provides that there shall be for every province a Provincial Legislature, which shall consist of His Majesty represented by the Governor, and in the province of Bengal two Chambers. This also shows that the Governor's position under the new Act is different from his position under the old Act, because under the new Act he is part of the Legislature, whereas under the old Act, Section 72 (a) expressly pro-vided that the Governor was not a member of the Legislature. Section 62 provides that the Chamber or Chambers of each Provincial Legislature shall be summoned to meet once at least in every year, and gives power to the Governor from time to time to summon the Chambers or either Chamber to meet at such time and place as he thinks fit. In accordance with the provisions of this section, Sir John Anderson summoned the Bengal Legislative Assembly to meet on 7th April 1937. Section 65 (1) provides that every Provincial Legislative Assembly shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof, and Sub-section (3) provides that while the offices of Speaker and Deputy Speaker are vacant, the duties of the office of Speaker shall be performed by such member of the Assembly as the Governor may in his discretion appoint for the purpose.

8. In accordance with the provisions of this section, Sir John Anderson appointed a member of the Assembly, Mr. Brio Studd, to act temporarily as Speaker, and the first meeting of the Legislative Assembly was held on 7th April 1937, at which the defendant was elected Speaker. On behalf of the applicant it has been contended that none of these acts, either the summoning of the Legislative Assembly, or the appointment of Mr. Eric Studd as temporary Speaker, or the election of the Speaker was valid, because Sir John Anderson, when he acted as he did, was not the Governor of Bengal within the meaning of the Government of India Act, 1935, not having been appointed to that office in the manner provided. In my opinion the answer to the whole of this argument is to be found in Section 321 which is as follows:

The Government of India Act shall be repealed and the other Acts mentioned in Schedule 10 to this Act shall also be repealed to the extent specified in Col. 3 of that Schedule : Provided that : (a) Nothing in this section shall affect the Preamble to the Government of India Act, 1919; (b) Without prejudice to any other provisions of this Act, to the provisions of the Government of Burma Act, 1935, and to the provisions of the Interpretation Act, 1889, relating to the effect of repeals, this repeal shall not affect any appointment made under any enactment so repealed to any office, and any such appointment shall have effect as if it were an appointment to the corresponding office under this Act or the Government of Burma Act, 1935.

9. The meaning of Prov. (b) is quite clear, and is to the effect that, without prejudice to any provisions of the Act other than the provision which is made specifically in this section, the repeal effected by the section shall not affect any appointment to any office made under any of the enactments so repealed, including the old Government of India Act, and further it provides that any such appointment, including any appointment made under the provisions of the old Act, shall have effect as if it were an appointment to the corresponding office under the Act of 1935. It has been con-tended on behalf of the applicant that the meaning of the section is that it is to apply only without prejudice to the sections to which I have referred which provide for the mode of appointment to the office of Governor of Bengal, but such a construction would, in my opinion, make the section self-contradictory, and cannot have been intended. Under the old Act, Section 130, being the section which dealt with the question of repeal, provided that the Acts specified in the Schedule were repealed, provided that the repeal should not affect (b) the validity of any appointment made under any enactment thereby repealed, and it has bean contended that the different wording adopted in Section 321 of the new Act shows that the draftsman meant something different to what was provided in Section 130 of the old Act.

10. I agree that the present section is per-laps not very happily worded, but there are various provisions in other parts of the Act which would have been affected by this section if the first line of Prov. (b), namely 'without prejudice to any other provisions of this Act', had not been inserted. And though it might be contended that the first part of the proviso is not very easy to construe, in my opinion, its meaning taken as a whole, and in so far as it affects the question which I have now to determine, is clear and certain, because of the precise words at the end of the proviso, namely 'any such appointment shall have effect as if it were an appointment to the corresponding office under this Act'. Nothing could be clearer than the intention shown by these words.

11. Finally it has been contended that the office of Governor of Bengal created under the provisions of the Government of India Act, 1935 is not an office corresponding to the office of Governor, either in Council or with Ministers, created under the provisions of the old Act. I cannot agree with this contention. If the words had been 'similar' or 'the same' office, some weight might have been given to it, but; the use of the word 'corresponding' in my opinion shows that when the English Legislature referred by inference to the office of Governor of Bengal, it intended to refer to the office of Governor of Bengal created by the Government of India Act, 1935, that being an office corresponding to the office of Governor of Bengal under the old Act.

12. A preliminary point was raised in the affidavit in opposition to the effect that the plaintiff's suit is not maintainable. That contention, I understand, is based inter alia upon the provisions of Sections 53 and 87 of the Act, but it is unnecessary for me to deal with this point owing to the conclusion which I have reached on the main question raised on behalf of the applicant. The effect of that conclusion is that this application must be dismissed with costs.


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