Calcutta High Court
S.N. Halder vs S.N. Mallik And Anr. on 12 November, 1923
Equivalent citations: 82IND. CAS.930, AIR 1924 CALCUTTA 454
JUDGMENT Lancelot Sanderson, C.J.
1. This is an appeal from a judgment of my learned brother Mr. Justice Page.
2. I need not deal with the first Rule which was issued, because, as I understand, that was discharged by my learned brother Mr. Justice Cuming, who thereupon issued another Rule. That Rule was issued on the 15th of October 1923. The Rule called upon Mr. S.N. Mallik and the Returning Officer to show cause why the Returning Officer should not accept the nomination paper of Surendra Nath Haider and include the name of the said Surendra Nath Haider in the list of valid nominations which he was preparing and why he should not reject the nomination paper of the said S.N. Mallik and exclude his name from the list of valid nominations and why they should not pay to the said Surendra Nath Haider his costs.
3. Mr. Justice Cuming, as we have been informed, made an ad interim injunction restraining the Returning Officer from preparing the list or from taking any further steps in the election.
4. The Rule was heard by my learned brother Mr. Justice Page on the 29th of October. He reserved judgment and continued the ad interim injunction until the date of delivery of his judgment. On the 2nd of November by his judgment he discharged the Rule and set aside the ad interim injunction.
5. This is an appeal from that judgment. The facts which it is necessary for me to state for the purpose of my judgment are as follows: These two gentlemen Mr. S.N. Haider and Mr. 8. N. Mullik desired to be candidates for a particular seat in the election for the Bengal Legislative Council. Mr. Haider presented his nomination paper on the 8th of October 1923. The nomination paper contains a paragraph which is to be filled in by the Returning Officer as follows: "This nomination paper was delivered to me in my office at (date and hour...)." The Returning Officer filled in the date and hour and signed his own name. In the presence of the Returning Officer Mr. Haider signed what is called "declaration by candidate" which runs as follows: "I hereby declare that I agree to this nomination." Mr. Haider signed that declaration on the 8th of October last in the presence of the Returning Officer. He did not fill in the date upon which he signed the declaration. When the time came for investigating the validity of the nomination papers, namely, on the 11th of October 1923, a point was taken by or on behalf of Mr. Mallik that the nomination paper of Mr. Haider was not valid because the declaration signed by Mr. Haider did not bear a date, though, as I have said, he signed it on the 8th October actually in the presence of the Returning Officer. The Returning Officer decided that the ground that the declaration of Mr. Haider did not bear a date, was sufficient to invalidate the nomination paper and he rejected the nomination paper of Mr. Haider.
6. It is not necessary for me to express any opinion as to whether the Returning Officer's decision on this point was a correct decision or not and I express no opinion in respect thereof. The point has not been argued before us and it would not be right for me in any shape or form to express an opinion thereon.
7. Mr. Haider apparently took an objection to Mr. Mallik's nomination paper. The argument in respect of that objection has not been elaborated in this Court but I understand that the ground was that Mr. Mallik was a Government Official. The Returning Officer, as I have been informed, came to the conclusion that he had no jurisdiction to decide that question and accepted Mr. Mallik's nomination paper.
8. After the judgment of my learned brother Mr. Justice Page was delivered on the 2nd of November by which, as I have already stated, he discharged the Rule and dissolved the injunction, the Returning Officer under Rule 14(2) of the Bengal Electoral Rules declared Mr. Mallik to be elected. Rule 14(2) runs as follows: "If the number of such candidates is equal to the number of vacancies, all such candidates shall be declared to be duly elected." The result of the Returning Officer's rejecting Mr. Haider's nomination paper and accepting Mr. Mallik's nomination paper was that there was one vacancy and one candidate; and, therefore, on the 2nd November, after Mr. Justice Page's judgment had been delivered, he declared Mr. Mallik to be elected. Under date the 5th November this notice appears in the Gazette: "It is hereby notified in pursuance of Rule 14(9) of the rules for the election and nomination of members to the Bengal Legislative Council that Mr. Surendra Nath Mallik has been declared under Rule 14(2) of the aforesaid rules to have been duly elected by the Calcutta South (Non-Muhammadan) Constituency to be a member of the Bengal Legislative Council."
9. These are the facts which, in my judgment, it is necessary for me to state.
10. In my judgment this appeal must be dismissed on the following grounds:
11. 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:
12. (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.
13. 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. Halder'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. Halder after he has declared Mr. Mallik to be duly elected--a declaration, with which this Court in these proceedings has no jurisdiction to interfere.
14. There is a further ground, namely, that by Rule 31 of the Bengal Electoral Rules and Regulations it is provided that "no election shall be called 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 Relief 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."
15. For these reasons, in my judgment, this appeal must be dismissed with costs.
Lancelot Richardson, J.
16. I am entirely of the same opinion.