1. This is an appeal by the Maharaja Manindra Chandra Nandi of Cassimbazar from the judgment of my learned brother, Mr. Justice Page, which was delivered on the 2nd of November last.
2. 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 issue 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'.
3. The facts which it is necessary for me 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 might receive a 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 of October was the date fixed for the scrutiny of the nominations. 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 1 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).'
4. The Maharaja, as I have already stated, then moved this Court, and the learned Judge delivered his judgment dismissing the motion.
5. It is from that judgment that this appeal has been filed.
6. 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.'
7. The first point which the learned Counsel, 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 so, 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.
8. 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. The Board of Education  2 K.B. 165, the passage being at page 179, 'If the tribunal has exercised the discretion 'entrusted to it bonafide, 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 consideration, in arriving at their conclusion or deciding a point other than 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.'
9. 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.
10. 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.
11. The last point to which I think it is necessary to refer is, that it appears that the election is now proceeding, there being another candidate besides Mr. Provas Chandra Mitter, for one vacancy, and the poll 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.
12. For these reasons, in my judgment, this appeal must be dismissed with costs.
13. 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.
14. 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. It 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. But if on a narrow interpretation of the words, the proviso is not applicable for the mere 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.
15. It appears to me that even assuming that the Maharaja makes out a good case it would be a strong thing to interfere with an election to a popular assembly which is actually in progress.
16. 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 another Rule, to which I shall come later, is to be resolved by the Governor.
17. 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.
18. 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 decided 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  2 K.B. 165, 179, 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.
19. 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 fulfills 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.
20. 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.
21. 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 a 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.
22. 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.
23. 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.