The Judgment of the Court was as follows:—

Ormond, J.:— This matter comes before the Court on the petition of three gentlemen who are members of the Bengal Legislative Council. The relief asked for by them is under sec. 45 of the Specific Relief Act with cl. (4) of the Charter in the way of a writ of mandamus against the two Respondents, the first Respondent being, the Hon'ble The President of the Bengal Legislative Council. The Hon'ble Sir Bejoy Prosad Singh Roy, and the second Respondent being The Hon'ble Member-in-charge of a certain Bill to which I shall refer, The Hon'ble Tulsi Charan Goswami.

2. The matter came before me ex parte on a previous occasion at some minutes after one o'clock on August 2nd, 1944, on which date I was informed that the Council would be sitting that same day at 2-15 p. M. I had not at that time of course heard what the case of the Respondents on the facts would be or how they would put their defence under the Government of India Act or otherwise in law. It was urged before me by Mr. N.C Chatterjee that the status quo was desirable to be maintained. I was, however, averse to issuing any ex parte injunction which might put the Respondent No. 1, The Hon'ble President of the Council, in an invidious position, should it turn out later that he had a good defence either on the merits or on the law. I delivered a short judgment on that occasion. I gave the Petitioners leave to serve short notice of the motion and it was arranged that in forwarding the notice of the motion certain extracts of my remarks in the judgment should be sent to the Respondents to apprise them of the position. This Court, as it has been observed, is the King's Court, and The Hon'ble The President of the Council is President of a Legislature, the members of which including himself as President have taken their oaths of loyalty to the same Crown. I was confident at that time that on receipt of intimation of the position and that the motion had been instituted, he would be unwilling to do anything to change the position to the detriment of any of the parties. It is good to know that that confidence was fully justified. One could also, it might be said, reasonably rely on such fair-mindedness on the part of an officer who has been chosen presumably for the very qualities of fairmindedness to the position which he occupies. The result is that the position to-day for the purposes of this motion is the same as it was when the ex parte application was made. I have now seen the affidavit in opposition of the Respondent No. 1, and the affidavit in reply. I will at once, therefore, turn to the facts as to what has taken place which give rise to this present proceeding. The facts are, with only one exception, on a point to which I shall refer, generally admitted, and common case.

3. On July 31st, 1944, the Bengal Agricultural Income Tax Bill was under consideration by the Council after having been already parsed in the Asser???y or April 27th, 1944. A copy of the Bill has been handed to me. For the convenience of the Court I have by consent of Counsel had it placed among the records of this motion. It will be seen from cl. (3) of the Bill that the Bill, if and when finally passed, is to have retrospective effect from April 1st, 1944, the wording of that clause being “It shall be deemed to have come into force as on the first day of April, 1944.” That clause having al ready been passed by the Council, as the whole Bill had already been passed by the Assembly, that retrospective effect is reasonably certain (unless by delay or other causes the present consideration of the Bill in the Council lapse) to become effective. It follows from this that it makes no real difference in the general effect of the Bill when it is passed, provided for legislative reasons it is passed this session. Government, however, as I have been informed by the learned Advocate-General are desirous of having it passed before the end of the financial year March 31st, 1944, and earlier than that by a date sufficiently ahead of that date to enable the Government Income-tax authorities to complete the work which they would have to Under take to make the Bill effective. For that reason Government are anxious to have this matter disposed of as early as possible.

4. Sub-cl. 10 of the cl. 6 of the Bill as it stood for consideration of the Council on July 31st, read as follows:—

“Any other expenditure of the assessee, not being in the nature of capital expenditure or personal expenditure laid, out wholly and exclusively for the purpose of deriving such agricultural income from such land”.

5. It will be seen there was only one comma in the words in sub-cl. 10. On that day Khan Bahadur Nasiruddin Ahmed moved the following amendment. “That in sub-cl. 10 .…after the words ‘personal expenditure’ ..… a comma be inserted.” No suggestion has been made before me (in view of the general sense) that the effect of this amendment makes the slightest difference to the ultimate sense of sub-cl. 10. The addition of the second comma is no doubt, however, grammatically correct and as a matter of printing or expression a definite improvement; and the Khan Bahadur was no doubt justified in wishing to see the second comma inserted in order to fix grammatically the amount of the sentence governed by the negative. But it is clear that in the result as to their effect on the clause, both or either of these commas could be left out without any change in meaning, and the total effect so far as the meaning of the Bill itself goes, would remain without a second comma unaltered, though less correctly punctuated. The amendment of Khan Bahadur Nasiruddin Ahmed thus comes to nothing more or less than the in sertion of what you might call an ornamental comma.

6. The amendment was moved and considered by being discussed and debated in the Council, The question on the amendment was then put on the motion in the ordinary way to the house by Respondent No. 1, the President. This was done in the way in which all motions are put to the house under its ordinary procedure, but since a good deal turns on this procedure, it will not be out of place to refer to it. The procedure briefly for putting a motion to the house is laid down in Standing Order 8 of the Standing Orders of the Council and will be seen to be this:— First The President ascertains the sense of the Council by voices and gives his opinion of the result by saying (if he considers those in favour of the motion have it) “I think the Ayes have it.” He then pauses for a short space to see whether anyone differs from that opinion and desires to take the matter to a division. If no one challenges his expression of opinion, he goes on to say “the Ayes have it.” The precise wording of the second declaration “the Ayes have it” does not appear to have been actually mentioned in Standing Order 8, but it is provided there that he shall announce the re-suit and it is evidently common case that this is the normal practice. In the ordinary course of events the vote of the House is then taken to have been made and the House proceeds to other business. If after he has made the first declaration of his opinion saying “I think the Ayes have it,” a member who is against the motion considers that the Noes have it, or that on a division his party against the motion would succeed, a member is entitled to get up in his seat and challenge the President's declaration of his opinion; and in the event of such challenge the procedure mentioned in sub-cl. 4 of Standing Order 8 then comes into operation. The President announces that there will be a division, the bells are rung, and members reassemble. Then the matter is put to the house again after their reassemblage for a second ascertainment of the sense of the house by voices, and then again if after the first declaration of opinion no one challenges it, the President will give his second declaration of opinion in exactly the same way; and the vote will be taken to have been made on voices at that second stage after the reassemblage without members actually going to the lobbies. If, however, after his first declaration made after the reassemblage a member challenging his opinion or for any other reason desires to have a division, the member gets up in his seat and challenges the opinion, and there is then an actual division in which members pass out into the lobbies and sign the book and the votes are counted. In that case the actual vote of the house is taken as the result of the division. Though not on the affidavit, it may be mentioned that the ordinary way of a member challenging and claiming a division is either, as often happens, that he jumps up and utters the one quick-fired one-word expression “Division,” or possibly, if he is adopting a more orthodox method, he may say “I think the Noes have it, Sir.” Nothing much turns on this, I merely mention it in explanation and it is not disputed; as a good deal turns on the actual sequence of events in this case.

7. The Respondent No. 1, The President, has stated definitely and very clearly and frankly in his affidavit in paragraph 6 that the statement made by him in the first place “I think the Ayes have it” was done by him by inadvertence and a slip of the tongue. That this was not challenged and no division was asked for, so after the usual short pause in accordance with the procedure which I have mentioned, the President proceeded to make the second declaration “the Ayes have it.” He has stated definitely in his affidavit also as to this, that this was made by the same inadvertence and slip of the tongue. This seems to me only natural, for the two expressions of opinion are so linked in action and in the mind that it would be most unnatural for him first to say “I think the Ayes have it,” then after a pause in which nothing has happened, “The Noes have it.” In the ordinary way, of course, the only thing which would come in the way of preventing the second statement being made in the same strain and direction as the first would be if some member jumped up and asked for a division; in that case, of course, the second statement would not be made at all either way. It seems to me natural therefore that if he had made a mistake over the first statement he would easily go on and make a similar mistake as to the second; and indeed no point has been made as to there being a mistake with regard to the two statements. As is well-known in parliamentary practice, the President stands-up in his seat when making a speech or addressing the house, so he would stand up to make the first declaration of opinion and would be expected normally not to resume his seat till resuming other business or until there was a division.

8. It was then and there, on the spot, before resuming his seat, as he would do at once to proceed with the next business, that he realised that he had made the statement the wrong way and had made a mistake; and it was then and there, before even resuming his seat, that he corrected himself before the house and said, “I am sorry, the Noes have it.”

9. It is common case that no division was asked for in relation to either of his first two statements to the effect that “The Ayes have it” or in respect of his correction when he said, “I am sorry, the Noes have it.” It will be noticed that the President did not make any second statement to the effect “The Noes have it.” One good reason for this being that some other event intervened. As soon as he had made his statement of correction “I am sorry, the Noes have it,” a member, Mr. Lalit Chandra Das, at once rose on a point of order and put it to the President that he could not rule that the Noes have it in view of his earlier statement to the opposite effect. This member was thus objecting in effect that on a point of order the President was not entitled then and there to correct his mistake. The President then permitted the house to discuss the point of order; and after the discussion he reserved his decision for further consideration.

10. I have taken this account largely from the affidavit of the Respondent No. 1, the President, because I accept the account of events given by him in his affidavit as completely correct. I shall return to any difference between the account of events in the petition and the account of events in this affidavit in a moment. I will first, however, complete my recital of the facts which are material to the decision of this motion.

11. The motion, as I have said, is brought under sec. 45 of the Specific Relief Act. A perusal of that section shows that certain prerequisites are needed for the Petitioner to succeed under the section. It will be convenient then next to see what is the state of facts on the affidavits as to the qualifications of the Petitioners and as to fulfilment of the pre-requisites necessary under sec. 45 by looking at the petition. The only passages in the petition relevant to this part of the matter appear to be in paragraphs 1, 5, 7, 20, 21 and 22 with the description, which is given in the cause-title. From this it will be seen that the Petitioners are elected representatives representing their respective constituencies in the Bengal Legislative Council, the particular constituencies being mentioned in the petition. That the Petitioners took part in the debate on the amendment moved by Khan Bahadur Nasiruddin Ahmed and expressed then-vote by voice for the “ayes.” Beyond this there is nothing but the bare statement in paragraphs 20, 21 and 22 which is a broad repetition of the wording of sec. 45 to the effect that the Petitioner's franchise, property and | or personal rights would be injured, that the acting or forbearing asked for is clearly incumbent on the Respondents, that it is consonant to right and justice; and that the Petitioners have no other specific and | or adequate legal remedy; and that, the remedy will be complete. That completes the recital, I think, of the facts material to coming to a decision.

12. Before, leaving the facts, there is one thing more concerning the difference, if any, between the petition and affidavit of the first Respondent to which I should refer. The petition without containing actual incorrect statements is vague and has gaps in certain important matters. The word “thereafter” in paragraph 9 is a case in point. It certainly gives the impression when read by itself that the correcttion made or wanted to be made by the President was made considerably afterwards, possibly, after the intervention of other business. The fact is, as stated in the President's affidavit in opposition, that it was made immediately, even before resuming his seat and before other business was taken up. No precise mention is made in the petition, how the correction was stated in the house, or when; and no mention is made in the petition at all as to the point of order raised by Mr. Lalit Chandra Das. Yet, it is clear enough, even from the petition itself, when read after the affidavit in opposition, that these things did happen; otherwise there could not have been the discussion which is referred to in the petition in paragraph 12. And if there had been no point of order and no discussion, the President would not have reserved his decision, as is admitted in paragraph 12. This is of some importance. For, if the petition had, with that complete candour one would have expected from members of the Upper Chamber of the Provincial Legislature of this province, stated clearly and in detail from the first, the whole position in the petition it would only have been necessary, on the view that I take of the matter, for the President to have taken a plea in bar to jurisdiction, without having to put in any affidavit at all on the facts.

13. The next question before me is whether I should proceed to give judgment or to report to the Chief Justice under Chap. 5, R. 3 of the 4th Edition of the Rules of this Court. The words of that Chapter are, in effect, as follows:—

“Where it appears tot any Judge …. that it (this motion) involves a substantial question of la-was to the interpretation of the Government of India Act, 1935 or any Order, in Council made thereunder, he shall report to that effect to the Chief Justice, who shall constitute a Beneh of two or more Judges to hear the suit, application or other matter.”

14. That rule has been framed to ensure an effective procedure being followed in order to implement sec. 205 of the Government of India Act. The general effect of that section is that it shall be the duty of every High Court in British India to consider in every case whether or not any substantial question of law is involved as to the interpretation of the Government of India Act or any Order in Council made thereunder, and that if a certificate to this effect is given, a right of appeal shall lie as of right to the Federal Court.

15. The contention of Mr. N.C Chatterji is that I am left no option in this case, but I am bound to make a report to the Chief Justice to the effect that it appears to me that this motion involves a substantial question of law as to the interpretation of the Government of India Act, who, in his turn, will be bound to constitute a Special Bench for the hearing of this motion, It is only fair to Mr. Chatterji to say that, taking this view as he does and having pressed it from the first, he brought it to my notice at the earliest possible stage, and in fact even before any affidavit in opposition had been filed by the Respondents; that is, at a stage between the ex parte hearing and to-day's hearing, when the motion was mentioned by him and the Advocate-General for the usual preliminary directions as to dates. He pressed on me then that I should even at that stage make a report to the Chief Justice under Chap. 5, r. 3, asking for the appointment of a Special Bench. I declined to do so at that stage, as I did not consider I was in a position to come to any just conclusion whether a substantial question of law as to the interpretation of the Act was involved, before I saw the affidavit or affidavits in opposition of the Respondent or Respondents and the affidavit in reply of the Petitioners; so as to be in a better position to judge as to what position arose on the merits and as to what issues arose between the parties.

16. Having now seen the affidavits and heard the arguments of Counsel, I have to-day to decide what course it is right for me to take under Chap. 5, r. 3 in the light of sec. 205. Chapter 5, r. 3 is framed with mandatory words. The words “He shall report” in ordinary English, on the face of the words, mean that I must make the report referred to in the rule, if it once appears to me that this motion involves a substantial question of law as to the interpretation of the Government of India Act. Though these words are grammatically clear, difficulties arise as to the proper method of carrying out their meaning in actual cases.

17. There are of course many different classes of case in which a question of interpretation of the Government of India Act may be involved, and I should not take too much time discussing these. But to make the position clear I would like to take a few illustrations of the kinds of case in which this position may arise.

(1) The question may arise as the sole issue in the case.

(2) It may arise as one only of other parallel issues of law or fact. It may be that the decision of the other issues are dependent wholly or partly on a decision of the issue of the interpretation of the Act.

(3) Or there may be parallel issues, but they may not be inter-related at all. Any one of the issues may or may not be fatal, for example, to the Plaintiff's case. Take as an illustration a case which might be barred for limitation or for want of notice, or a variety of causes.

(4) Or the case may be such that on one view of the facts and merits it will be bound to fail, irrespective of the issue under the Government of India Act, but in another view of the facts it will not.

(5) Or it may be a case which is found to be a completely false case on the merits beyond any doubt, yet, on the pleadings or the issues, as they come before the Court, there may be a definite substantial question of the interpretation of the Government of India Act

(6) Or it may be a case which, though in all respects bona fide, is yet one which is bound in the judgment of the Court to fail on the merits, though there may be raised on the pleadings a definite issue of interpretation of the Government of India Act.

(7) Or it may be a case where the Court holds that it is quite clear that the Court has no jurisdiction and yet if the Court had jurisdiction a question of interpretation arises. There are obviously many more combinations, but these will serve for the present purpose.

18. It will be seen that the effect of r. 3 of Chap-5, if read as an isolated piece of English, without qualification by any overriding principles, will be that, even in a false case, the Court is compelled under the rule to act in such a way that the Defendant may be taken at the whim of the Plaintiff before a Special Bench, and then, after a certificate is granted, before the Federal Court; the Plaintiff is given a clear unrestricted right of appeal, if he wishes to appeal once he gets his certificate. Even if granted his costs, the Respondent will, in all probability, not recover all he has had to spend on such expensive litigation; and there is always the inevitable chance that, even if granted his costs, he may not recover them. So he is put to this very considerable delay and very considerable expense in a suit which may have been a foregone conclusion in his favour from the day it began. From the point of view of his loss of time, anxiety and loss of money, the same remarks should be said to apply to any suit which is not a false suit and may be a perfectly bona fide suit but one of the types that I have mentioned, where the decision of the suit against the Plaintiff is a foregone conclusion.

19. There is no need to mention, of course, the practical detail that frequent appointments of Special Benches entail, Judges being taken off their work in other spheres and a certain amount of dislocation of the business of the Court; which, at certain stages of the legal term, such as the present, is only likely to cause considerable inconvenience to the public.

20. Mr. N.C Chatterji, as I understand him, contends that the rule being worded as it is, I have to make a report for a Special Bench in all cases, where any point of law arises, whether directly or indirectly, and irrespective of the merits of the case in other respects; provided the point of law itself is substantial and irrespectively of whether the case is substantial. The Advocate-General submits that I need not do so in all such cases, and that I need not do so in the present case.

21. Before considering this, I should like to have been able to give myself some standard by which I might come to a decision in what class of cases it is compulsory for me to make a report asking for a Special Bench, or in what cases a Judge has a discretion, or in what cases it is his duty to refrain from making such report. I should like to read the Rule as being subject to an overruling principle that it is not to be used in abuse of justice. But, in any event, before arriving at a decision, it becomes necessary now to look into the merits of the case. For this purpose, in relation to Chap. 5, r. 3, I have to look into the merits to the same extent as if I were now deciding the whole matter.

22. Respondent No. 1 has 2 main defences. Sec. 87 of the Government of India Act, by which he claims to be entirely protected and given an immunity from all proceedings in Court. As is seen from the section, this excludes him completely from the jurisdiction of the Court, it is clear, if he succeeds in coming within sec. 87. The application of that section is restricted to Respondent No. 1. His second defence is in relation to sec. 45; that the petition is either demurrable or in any event cannot succeed on the merits in respect of that section. This defence on sec. 45 is open to both Respondents. I will deal with the matter in relation to sec. 45 first.

23. The relief asked for in the petition is as against the first Respondent, the President, for an order under sec. 45 of the Specific Relief Act in the nature of an order similar to the English writ of mandamus. The relief asked for is couched in terms of an order “to do” what is stated in prayer (a) and “to forbear from doing” what is stated in prayer (b), thus following the wording for both types of relief made available under the terms of sec. 45.

24. It may be noted in passing, that although prayers (a) and (6) are expressed in general terms and only by indirect reference to the opinion first given by Respondent No. 1, the President, on the amendment, (which method of expression maintains the appearance of the matter on a high level of affairs of State of great importance) yet it should not be lost sight of that the ultimate and sole result in this particular case would be, if prayers (a) and (b) were granted, that one ornamental comma would be inserted in the Bill, as I have already explained.

25. There is no question of jurisdiction for sec. 45 itself in this case, since the Legislative Council, where the Acts are to be done or foreborne, is within the local limits of the Ordinary Original Civil Jurisdiction, as required by sec. 45. And there is no question but that the Respondent No. 1, the President of the Council, is a person holding a public office. So the case in all these respects comes well within sec. 45.

26. Then we come to the provisos of sec. 45.

27. As to (a): —Is any one of the Petitioners a person who would be injured by the forbearing or doing of the acts described in prayer (a) either in his property or in his franchise or in any personal right? It is clear, I think, that it cannot be contended that the Petitioners are affected in their property. Nor do I see that it is reasonably arguable that they are affected in their personal rights. It must be remembered that whichever way the declaration of the result of the vote on voices is made, any member of the losing party has always the right to claim a division. The matter of course depends partly on what view you take of the Respondent No. 1's (the President's) right or duty to correct his mistake. But I will come back to that later. Even after the President had corrected his mistake and said “I am sorry. The Noes have it,” it was always open to any one in favour of the Ayes to ask for a division and get the vote of the house in the proper way. Mr. N.C Chatterji himself repeatedly stated a declaration made by the President on the vote by voices is tentative only in any case. It is of course a convenient arrangement to save time when the result is clear, but it can always be put to the test of a division. So I fail to see how there can be any injury to the Petitioner's personal rights. The question then is, is there any injury as to their franchise? At first, I was inclined to think that there was, and it was contended by Mr. Chatterji that, as members of the house, this was a matter affecting the power of their voting. But on looking further into the matter, it would appear that the word “franchise” in sec. 45 does not have any relation to the present case. When it was inserted, its main meaning probably, I take it, was, legally, the principal meaning as given in Stroud's Judicial Dictionary. “A royal privilege belonging either to the Crown or to a subject by virtue of a grant from the Crown,” with the explanation Which follows, (such as a ferry) that is to say, the same meaning as is given in heading 2 (b) in the Oxford Dictionary, 1901 Edition. Even if it is given the political meaning, it appears that the word does not cover the present case, the primary meaning of which in that sense being citizenship or the freedom of or full membership of a body corporate or politic, which is meaning No. 4 in the Oxford Dictionary; or meaning No. 6 in the modern sense, the right or privilege of voting at public elections. In any event, I do not see their full freedom in the Bengal Council can be said to be at all affected by the insertion or omission of this ornamental comma; nor, putting the matter on broader grounds, can I see how their full freedom as members of the Bengal Legislative Council can be said to have been injured by the action of its President of which they complain.

28. As to the proviso (b), that such doing or forbearing should be clearly incumbent on the Respondent No. 1, in stating the facts, I have already recited the events which led up to the President making the slip of the tongue which he made, and the manner in which he corrected it. This being so, in my view, as was the submission of the Advocate-General, with which I fully agree, it was the positive duty of the Respondent No. 1 (the President of the House) to correct his slip of the tongue. For him to do the opposite and to have the inaccurate statement, “The Ayes have it,” left uncorrected as would have been the result of doing or forbearing of the acts prayed for, would certainly, in my view, not be incumbent on the President ??? can well imagine a case in which the Petitioners or others might well have a grievances, either inside the house or outside it, if the President were not to correct a slip of the tongue.

29. As to proviso (c), it seems clear that this sub-section, which refers to the doing or for-bearing being consonant to right and justice, has been inserted in the Act to debar a Court from making an order under sec. 45 on a person ???o do or forbear doing something, which it might be argued was on some highly technical view of the law correct but where the ultimate effect would not be consonant to right and justice; that is to say, right and justice on reasonable equitable considerations. To my mind, this sub-section precisely would debar a Court from issuing an order in terms of prayer (a) or prayer (b) in the present petition. Even if the Court should hold, as I do not hold, that on any technical, legal or hair-splitting construction of the Government of India Act or rules of procedure or Standing Orders, the President might have or should have left the erroneous declaration “The Ayes have it” to stand.

30. As to proviso (d), this hardly arises, in my view, since I hold that the Petitioners have suffered no wrong in any case. So the question of any other remedy for a non-existent wrong hardly arises. If it were necessary to go into it, it might be relied on for the Respondents, that if the President's declaration, “The Noes have it,” Were to have been made operative, they would have had a remedy either by asking for a division or by raising a point of order in the Council:

31. Nothing useful for consideration in this case seems to arise as regards provisos (e) or (f) or (g).

32. Proviso (h) has of course the effect of confirming the applicability of an immunity created under the Government of India Act, when it says that no order should be made which is otherwise expressly excluded by any law for the time being in force.

33. In view of those considerations I come back to the most important part of the consideration in respect of sec. 45, which is, that the grant of relief under the section is discretionary. Not only is this made perfectly clear in direct language by the word “may” in the section, but the issue of a mandamus has always been discretionary, even before the Specific Relief Act was enacted. Apart from other considerations, it would seem almost enough in itself as to this to state again that the result as to the issue of a mandamus in this case would be the insertion of one ornamental comma in the Bill.

34. The case against Respondent No. 2 falls to the ground automatically with the failure of the case against Respondent No. 1.

35. The result on this part of the case is that both Respondents have a good defence on sec. 45; and that relief under sec. 45 should not be granted on the merits. As I understand that no other relief is asked for, that would dispose of the matter on the merits.

36. Now I turn to the question of the proteclion of the Respondent No. 1, the President, under sec. 87. Sec. 87 obviously grants complete immunity to the President for all acts in fact done by him in the actual exercise of his statutory; powers for regulating procedure or the conduct of business or the maintaining of order. Referring to the powers vested in him by or under the Act, it has already been decided by Das, J., in the recent Howrah Municipality case that the words “or under,” which he was construing as used in a precisely similar sense in sec. 16 of the Defence of India Act, include powers granted under the rules made under the Act. In this Das, J., was following Panckridge, J., in the case [S.N Mukerji v. Russell . I.L.R [1941] 2 Cal. 387.].

37. I fully agree with this decision and take the same view. Protection in this case, therefore, under sec. 87 gives immunity to the President for all acts done by him in the exercise of the actual powers given him both under the Government of India Act and under any rules made under, it for the purposes authorised by the. Act, that is, for regulating procedure or the conduct of business or maintaining order.

38. The rule-making powers concerned are in sec. 84 (I) of the Act.

39. The rules which have been made thereunder are, firstly, the Bengal Legislative Council procedure rules, printed in a red book published in 1943. It will be observed that r. 111 of these expressly gives the President power in general terms to make orders not inconsistent with these rules, for which no provision is made in the rules. Rule 38 relates to voting, that is to say, the putting of a motion, which is the same thing, but it does not lay down precisely how votes are to be taken; that is how the question should be put. It expressly clothes the President, however, and him alone, with power to regulate the voting by such orders as he may make. Rule 38 was not referred to in the argument before me, but is, I consider, important.

40. It is under the powers expressly granted to him and him alone by the Council that the President has made the Standing Orders. The Standing Orders are entitled “Standing Orders made by the President under the Bengal Legislative Council Procedure Rules (April, 9th, 1941) and are printed in a pink book published in 1943, Standing Order 8 has obviously been made, directly in connection with procedure Rule 38. It will be seen that the figure 33, in the margin against Standing Order 8 is a misprint. This is clear both from the sequence of Standing Order 8 in the book, since it comes between a Standing Order made in connection with Rule 37 and a Standing Order made in connection with Rule 53, and also because Rule 33 to which it refers has nothing to do with voting. No suggestion has been made that the President, thus expressly authorised by the Council to do so, and whose natural duty under ordinary parliamentary practice would be to make Standing Orders, was not entitled to make them. I proceed, therefore, on the basis that both the Procedure Rules and the Standing Orders are rules vesting in the President statutory powers for the exercise of which he is covered by the immunity given him under sec. 87.

41. It will be seen as to the regulating of the procedure and as to the conduct of business of voting that if the President himself had not made any Standing Orders, he could have regulated the manner of voting, apart from any Standing Orders in the pink book at all, as he might in his full discretion determine under Procedure Rule 38. Standing Order 8 does not anywhere say that he may not correct a mistake, nor does it anywhere say that his announcement as to the result of the voting is to be final in all circumstances, for example, supposing a point of order as to it is raised, or supposing it is made by an inadvertence. If there are any gaps in Standing Order, or any unusual occurrence arises not catered for by Standing Order 8, it seems clear the President was given full power under Procedure Rule 38 for regulating the whole of the procedure for putting the question (that is to say for the voting) as he may determiner It ?s of interest, if no more, to note that I was shown by the Advocate-General a ‘Government publication in regard to meetings of Presidents with a view to standardising procedure in legislative bodies throughout India, in which it had evidently been agreed by that meet mg that errors made over rulings as to voting should be open to be corrected. This has little if any, bearing oh the present case, but it does however show the complete bond fides of the President, since it may be taken to have been his intention or that of his predecessor even prior to the particular incident now under discussion to accept the very same course that he has adopted; on this occasion. Since this Government publication is an ordinary official document, it might be taken also to indicate that if the rules were going to be amplified or perfected at any time, some such rule would be inserted expressly giving the President power to do what he has done in the present case. In my view, however, he was in any event fully authorised to correct his slip of the tongue in view of the general powers given him under Procedure Rule 38.

42. If he had powers to make orders in a general manner, it would seem reasonable that from this it should be taken to follow that he had powers in an unforeseen occurrence, as in this particular case, to give an ad hoc ruling.

43. In my view, the act of correction was just as much an act done in connection with the declaration by the President as to the result of the voting by voices as his original incorrect announcement. The act of inadvertence or slip of the tongue was such and the manner and time of correcting it was such that it clearly has to be treated as an act done in the actual exercise of the actual statutory powers vested in the President.

44. I would emphasise the manner and time in which the correction was notified to the house by the President. There was no change involved in anyone's position between the time of the incorrect declaration and the time of the correct one, there was no injury to anyone and there was no compensation needed to put anything back as it was before. It may not be out of place to refer to the case of Hood of Avalon (Lady) v. Mackinnon . [1909] 1 Oh. 476., though this was not cited in argument. Reference is there made to the proposition that equity will give relief as; to mistakes either where full compensation can be given or when no compensation is needed. The Court allowed in that case the Plaintiff to correct her mistake and go back to the position she had intended to adopt, even though this entailed the recission of an appointment made by deed some considerable period of time before. It is inconceivable to me that I should not hold it open to the President in the circumstances of this case to correct his bond fide inadvertent mistake as he did do on the spot and before any alteration in the position affecting anyone at all.

45. The result, therefore, is that in my view the Respondent No. 1, the President, is protected by sec. 87 on its plain primary meaning, the meaning clearly carried by its words on their face as they stand; without the necessity of his reading any secondary meaning into the words to make the words “exercise of power” cover the same ground as the “purported exercise of power. And if my view of the right and duty of the President to make the correction of the slip of the tongue is correct and that the making of the correction is as much an act directly made under the actual powers conferred on him as the inadvertently erroneous declaration which is sought to correct, then it is clear that there is a good defence under sec. 87 on its primary meaning even without any question as to its interpretation arising.

46. The result of that of course is that this Court has no jurisdiction against the Respondent No. 1, the President, at all to entertain these proceedings.

47. I have now therefore come to the position where I should decide as to the course I should take in my view of the matter as to Ch. 5, r. 3 and sec. 205 also.

48. Since, in my view, the acts of the President come within the primary meaning of sec. 87 as in the actual exercise of powers directly vested in him, no question arises as to the interpretation of the Government of India Act, and there is no room for any suggestion that it does not apply. The matter therefore is not affected by Ch. 5, r. 3 or by sec. 205, and neither of those provisions apply to this case. On this basis I have no duty to make any report to the Chief Justice under Ch. 5, r. 3 for a Special Bench, nor is it necessary for me to consider the grant of a certificate under sec. 205. I would normally then proceed to deal with the matter in this Court and to pass orders. In view however of the possibility of a different view being taken of the matter and in view of the fact that the question does raise interesting and possibly in other cases, important issues of constitutional law, I have considered that I will take a certain course which I shall explain in a moment. It will probably be desirable first for me to state here my views on other parts of the case which were argued before me since the points were raised and might conceivably arise on any different view of the matter.

49. On the contention of Mr. N.C Chatterjee that the act by the President in correcting his mistake was not an act for the exercise of which statutory powers were directly vested in him, there was considerable argument as to whether the correct construction of sec. 87 was that the words should cover the “purported exercise” of the powers. Mr. N.C Chatterjee strongly contended that the words should be taken to mean what they say. In this I fully agree with his contention. The reason in support of his contention may be stated as follows:—

50. He relied in the first place on the framework of the section and he contended that the opposite meaning will entail giving no meaning at all to the final words in the section “in respect of the exercise by him of those powers” and it would have been just as easy to put a full stop before those words. If the meaning given to the section by the learned Advocate-General is adopted, that is to say, that no Officer of a Provincial Legislature in whom powers are vested by or under this Act shall be subject to the jurisdiction of any Court in respect of the exercise or purported exercise of those powers, these last words become surplusage and it would have been just as easy to say “no officer of a Provincial Legislature in whom powers are vested by or under this Act shall be subject to the jurisdiction of any Court.” It could hardly be suggested, Mr. Chatterji means, I suppose, to imply, that he would be given an immunity over acts completely unconnected with the vested powers and not purporting at least to be done under his powers.

51. The second reason put forward by Mr. Chatterjee was the well-established principle that there is the presumption against ouster of jurisdiction of Courts and that when statutory enactments are being construed they must be read strictly before they are taken to entail an ouster of jurisdiction. Authority, if required, for this is to be found in Craies on Statutes, 11th Ed., pp. 114-115.

52. Another consideration in favour of the view urged by Mr. Chatter jee is that similar wording in sec. 16 of the Defence of India Act has been before the Courts for construction and has been adjudicated upon more than once. One case directly in point is the case of The Lahore Electric Supply Co., Ltd. v. The Province of Punjab . I.L.R [1943] Lah. 41.. That is supported by the judgment of Lord Thankerton in Hori Ram Singh v. King-Emperor . L.R 67 I.A 122. The material passages in the Lahore report are at pages 44-45. I need not read them. The recent decision of the Special Bench in this High Court in the Howrah Municipality case has taken the same line in deciding that a colourable exercise of statutory powers is not protected by the immunity of sec. 16 of the Defence of India Act.

53. Possibly, an almost greater argument in favour of the words being restricted to their plain meaning is to be found in this, that the word “purporting” has been used in analogous sections in this very same Government of India Act (193s), when it is desired to extend the immunity to acts not only actually authorised but to purported exercise of the act authorised by statute. One example is sec. 270 which deals with immunity granted to servants of the Crown. Another is sec, 306 which deals with the protection granted to the Governor-General, Governor or Secretary of State. The effect of the use of the word “purported” is well known in Indian statutes. It is in common operation under the protection given in the Civil Procedure Code to public officers in the sections between 80 and 82. It is found again in the Criminal Procedure Code in sec. 197, in the protection given to Judges and public servants against criminal proceedings. And furthermore, if any extended meaning had been intended to be given to sec. 87, even if the word “purported” were not used, a phrase could have been used similar to that used in the “Judicial Officers Protection Act,” being Act XVIII of 1850, where it is there put as “provided that he at the time in good faith believed himself to have jurisdiction to do or order the act complained of.”

54. The arguments of the learned Advocate-General against this interpretation, as I understand them, amount broadly to two, firstly, he says, that words such as those have been interpreted in revenue cases such as the case reported in Babui Rajeswari Kuer v. Babui Khunkhuna Kuer . 48 C.W.N 73 at p. 76 1943.. Also the case reported in Spooner y. Juddow6. The result of those cases I understand to be that even where revenue is sought to be collected by Government on powers which exceed the powers that have been actually given by statute, it will come under the term “Revenue.” That, I think, is hardly enough to support the contention that in the present case, quite irrespective of revenue, “exercise of powers” means “exercise or purported exercise of powers.” The second argument as advanced by the learned Advocate-General is, that if the words are not given this additional meaning there would be no point in having any protection at all; since a man is already free from all liability for doing an act which he is legally entitled and authorised by statute to do. That view has been put forward in the cases cited by the learned Advocate-General.

55. 47. With regard to sec. 87 and similar sections giving protection to public servants or officers I do not, however, agree that this is so. The protection given by sec. 87, it is to be observed, takes away from the Court jurisdiction entirely. This gives, as I think has been found in practice in this country, a definitely useful protection to a public officer; because it enables him to raise a plea in bar at the very outset of the proceedings, and to have the proceedings stopped before they have begun. And it prevents the necessity of his calling possibly many witnesses, it prevents the necessity for his incurring the expenses of a protracted trial, it saves him the anxiety of having to fight the case on the merits, and it saves him, and possibly, Government all the work of collecting and preparing a defence. It is also to be borne in mind that in a false case this is a very considerable safeguard; and is in fact a safeguard which must relieve persons to whom it is granted of considerable anxiety. It is for those reasons and those considerations that my view is that sec. 87 should be taken to mean what it says. If the legislature had intended it to give the extended protection of an immunity for “purported exercise” of statutory powers in addition to the actual exercise of statutory powers, in my view they should and would have said so.

56. I am still in process of giving my views only on a series of points which were raised in the case but which on the view I take of it, have nothing to do with my decision.

57. Mr. Chatterjee argued that on the Standing Order 8 and the General Procedure in the House, once the President had made the declaration of the effect of the voting by voice, that was final and could not be re-opened. In regard to that he cited the cases, one in Ghuznavi v. The Allahabad Bank Ld.* . I.L.R 44 Cal. 929 1917.. [The Mayor and Assessors of the City and Borough of Rochester v. The Queen . 120 Eng. Rep. 791 at 794]. On the view that I take of the President's right and duty to correct a slip of the tongue, I do not consider those cases govern this matter.

58. I should probably have mentioned in regard to the point as to whether these proceedings lie, as a general question, the two case's that were cited (both being decisions of C.C Ghose, J.) the one in J. M. Sen Gupta v. H.E.A Cotton . I.L.R 51 Cal. 874 1924. which was on an application for a mandamus under sec. 45, similar to the present case, against the President of the Council, cited to me by the Advocate-General, and the other case of the suit concerning a similar matter reported in Kumar Shankar v. Mr. H.E.A Cotton . 40 C.L.J 515 1924.. It will be seen that this case has followed to a large extent the argument and observations in the mandamus matter. The matters raised in the other case, the suit, I think, hardly apply in the present case.

59. In regard to the question whether I was bound to report to the Chief Justice under Ch. 5, r. 3, Mr. Chatterjee urged the necessity for this on the basis that the rule and the section were mandatory, and referred to the case in Ashgar Reza v. Hyder Reza . I.L.R 16 Cal. 287 at p. 292 1889.. He also cited J. M. Sen Gupta v. H.E.A Cotton. It will be seen on the view I take of the matter that all the actions from beginning to end by the Respondent No. 1, the President, were within the meaning of sec. 87 as it stands on the face of it in its primary meaning which is not in dispute or in question. I have no need for my own purpose to consider whether I should be bound to make a reference to the Chief Justice on the ground that a question of interpretation of the Government of India Act arose in other circumstances, I therefore need deal no further with that.

60. Now I come therefore to what I propose to do in the present case. As I said, on the view that I take, it would normally be for me now to pass orders dismissing the motion and ending the matter. In view of the matters that have been raised, however, I do not propose to take that course outright. I propose to place this judgment before the Acting Chief Justice, although it will be seen that my view is that no Special Bench is necessary. If the Chief Justice considers that in these circumstances a Special Bench is necessary he will appoint a Special Bench. In the event of the Chief Justice not appointing a Special Bench as soon as I receive intimation to that effect, I shall proceed to pass orders finally in the matter. In the event of his appointing a Special Bench this, judgment of mine may go forward as nothing more than a report to the Chief Justice on which a Special Bench is appointed.

61. I would like to add that had it been necessary for me to consider the grant of a certificate myself, then in view of the fact of the subject matter being so small, I should have considered the question of not granting any such certificate except to the appealing party on the terms that were made in Spooner v. Juddow where interesting observations will be seen to have been, made by Lord Langdale, in which case their Lordships of the Privy Council gave leave to the East India Company to appeal to the Privy Council only on the basis that the Company should pay both partie's costs in any event.

62. I will place this judgment as a report before the Chief Justice leaving it open, if he thinks fit, but not otherwise, to appoint a Special Bench. The matter should be put in the list so as to come before me again on Monday for final disposal in this Court.

[The application was subsequently dismissed and thereupon the present appeal was brought.]

N.C Chatterjee, S.B Sinha, K.K Basu and B.N Banerjee for the Appellants.

S.M Bose, Advocate-General, J.N Mazumdar, Standing Counsel and H. Rahman, Junior Standing Counsel, for the Respondents.

The Judgment of the Court was as follows:—

63. Henderson, J.:— This is an appeal against an order of Mr. Justice Ormond by which he refused an application made by the Appellants for an order on the first Respondent directing him to act upon a declaration which he had made as President of the Bengal Legislative Council and for an order on the second Respondent directing him to proceed with a certain bill on the basis that a certain amendment was carried.

64. The facts are really very simple. A certain amendment was proposed in the Bengal Legislative Council of which the three Appellants are members. The President expressed the opinion that the Ayes had it. According to the President, and we have no hesitation in accepting what he says, this was really a mistake. He thought that the Noes had it. He then corrected this mistake. The Appellants raised a point of order to the effect that when once the President had said the Ayes had it, there was an end of the matter and it must be taken that the amendment was carried.

65. At the hearing before Mr. Justice Ormond an objection was taken to the effect that he ought not to dispose of the matter but should make a report to the Chief Justice in accordance with one of the rules of this Court. So far as the Appellant's case was concerned, no question of the interpretation of the Government of India Act, 193s, could possibly arise. The Respondents however did raise such a point in their defence. Now, eventually Mr. Justice Ormond dismissed the application. Clearly, we cannot refuse to hear this appeal. No useful purpose would be served by our setting aside the order of Mr. Justice Ormond and directing him to make a report to the Chief Justice. We are quite clear that it is for the learned Judge who deals with the case to decide whether it appears to him that there is any matter which requires a report to the Chief Justice and, inasmuch as-the learned Judge has himself disposed of the case, we can only assume that he was satisfied that there was no such question before him.

66. The first Respondent raised a defence under sec. 87 of the Government of India Act. His contention was that he was absolutely protected and that this Court could not interfere with anything that he did. There are, of course, very weighty reasons why the legislature should be independent of other branches of the administration and it was not disputed that this section does protect the President from interference by this Court when he is acting in accordance with powers conferred upon him. But we entirely agree with the learned Judge that it would not protect him if he was acting in defiance of the provisions of the statute and the rules made thereunder or if he were exercising some power which he does not possess.

67. On the merits, the contention made by Mr. Chatterji is that the President had no power to alter his original announcement. The learned Judge thought that such a power was conferred by Rule 38 of the rules made by the Legislative Council for its procedure.

68. Under that rule “the question on a motion shall be put in such manner as the President may, by orders made in this behalf, determine.” In our opinion, a mere ad hoc decision is not an order regulating the procedure. No doubt, the President might make an order dealing with this particular matter: but in fact he has not done so.

69. Now, it is clearly necessary to distinguish between a case in which the President thinks that the “Ayes have it” and then alters his opinion and a case in which he always thinks that the “Ayes have it” but by mistake or slip of the tongue says “No” instead of “Aye.” In view of the affidavit filed by the President, this case comes within the latter category. In our opinion, Standing Order No. 8 made by the President means that he must give his real opinion.

70. In the present case he has given his real opinion and, therefore, he was complying with the Standing Orders as they are.

71. Even, however, if the President was not acting strictly in accordance with the rules and Standing Orders, we are clearly of opinion that this is a case in which the Court ought not to interfere.

72. In the first place it would merely mean that there was a lacuna in the rules. It is quite absurd that a mere verbal mistake should lead to the insertion of a clause in an Act. Where the President is doing a thoroughly sensible thing, there is no reason why this Court should interfere with him.

73. Then, in the second place, I am not satisfied with the bond fides of the Appellants. If the President made a verbal mistake, obviously anybody who wished to challenge the opinion of the President could not be deprived of his right to do so by this verbal mistake. I wonder why the Appellants, instead of raising a point of order to the effect that the matter was final, did not raise a point of order to the effect that as a result of the real opinion of the President, they were entitled to demand a division. I have no doubt whatever that the President would have acceded to that demand. I suspect that the reason was that they were a small party of loud shouters who knew that they would be defeated on a division. Nothing would induce me to make an order which might have the possible effect of allowing the will of the minority to prevail over the will of the majority.

74. Then, in the third place, the matter is absolutely trumpery. The amendment was merely for an insertion of a comma. Whether it was carried or defeated, the legal effect would be absolutely nil. It is quite obvious that the Appellants do not bother about this comma. They are really hoping to derive some advantage from the effect that will flow from the passing of an amendment. Where there is no real objection to the amendment itself, we should certainly not make an order to enable the Appellants to attain some other end.

75. The appeal is accordingly dismissed with costs including the reserved costs.

Certified for two Counsel.

Das, J.:— I agree with the order proposed by ???ny learned brother and the reasons in support ???hereof. I desire only to add that I wholly dis???ciate myself with the reasonings adopted by the learned Judge in the Court below in his interpretation of Chapter V, Rule 3. I do not consider that it is permissible, in interpreting a statute or a rule of Court, to introduce considerations which are rather for the rule-making authority to consider. I, however, am prepared to proceed on the basis that it appeared to the learned Judge that no serious question of interpretation of the Government of India Act, 1935, was involved in this application.

Sharpe, J.:— I agree.

C.C