The Judgment of the Court was delivered by
Derbyshire, C.J:— This is an appeal from a decision of Mr. Justice McNair given on the 4th of May, 1936, wherein he dismissed the election petition brought by Dhirendra Kumar Mazumdar and Sreemutty Biraj Basini Mitra in the matter of an election held on the 26th of March, 1936, in Ward No. 30 for the purpose of electing representatives to the Corporation of Calcutta. The petition was brought under the Calcutta Municipal Act, 1923. The Respondents are Abdul Latiff Gaffur Chowdhury, J.N Banerji, Jogesh Chandra Ghose and Puilin Behari Sawoo. The petition alleges that certain voting papers issued by the presiding officer at a Polling Station were not marked in accordance with the rules made under the Act and as they were not marked the returning officer in the count rejected them with the result that the election is not a proper election. The Petitioners say that if those voting papers had been included in the count the election result would have been different. Dhirendra is not a resident of the ward although Sreemutty Biraj Basini Mitra is Dhirendra says that he would be elected and that, in the place of Abdul Latiff, Jogesh Chandra Ghose and Pulin Behari Sawoo. If the votes of those papers had been counted, the result would have been that Abdul Latiff would have been elected, that Dhirendra would have been elected and that Pulin Behari Sawoo would have been elected.
The petition was brought under secs. 46 and 47 of the Calcutta Municipal Act, 1923. Sec. 46 provides—
(1) “If there in any dispute as to whether any person whose name is published under sub-sec. (8), of Sec. 29, is qualified to be erected a councilor, or if the validity of any election is questioned, whether by reason of the commission of any corrupt praotice by a candidate or his agent or by any other person or by reason of the improper rejection of a nomination or of the improper reception or refusal of a vote, or for any other cause, any person enrolled in the electoral roll may, at any time within eight days after the said publication, apply to the High Court.” “Provided that no election shall be called in question on the ground that—
(a) the name of any person qualified to rote has been omitted from the electoral roll, or
(b) the name of any person not qualified to vote has been inserted in that roll, or
(c) any direction given by any rule made under sec. 25, sub-sec. (2), or sec. 30, has not been obeyed.”
(2) “If the Court sets aside an election or declares an election to be null and void, a fresh election shall be held.
(3) “Every election not called in question in accordance with the provisions of the section shall be deemed to have been to all intents a good and valid election.”
Sec. 47 reads
“Save as hereinafter provided in this section, if, in any proceeding duly instituted under sec. 46, the High Court is of opinion that—
“(a) the election of a returned candidate has been prcoured or induced, or the result of the election has been materially affected, by a corrupt practice, or
(b) any corrupt practice specified in Part I of Schedule II has been committed, or
(c) the result of the election has been materially affected by any irregularity in respect of a nomination paper, or by the improper reception or refusal of a vote, or, save as is provided in Sec. 46, by any non-compliance with the provisions of this Act or the rules made thereunder, or by any mistake in the use of any form annexed thereto, the election of the returned candidate shall be void.”
There are other provisions in sec. 47 which are not material.
The petition came before Mr. Justice McNair and he dismissed it. From that decision an appeal is brought to this Court.
An objection has been taken that no appeal lies under the circumstances from the decision of Mr. Justice McNair. Now, the circumstances leading up to the determination of this matter are as follows: The election was held on the 26th of March; on the 9th of April notice of a petition was given to the Respondents; the petition was filed in Court on the 20th of April and the matter was heard on the 5th of May. There were seven election petitions in all. Those election petitions were dealt with specially by Mr. Justice McNair who was appointed by the Chief Justice for the purpose of dealing with them, the proceedings relating to them did not stand in the ordinary list to take their turn in the ordinary way, and the appeal to this Court has been specially expedited so that the matter should be dealt with speedily.
The Appellants' reply to the objection that there is no appeal from the decision of Mr. Justice McNair is that this was a “judgment” given by a Judge of this Court and that pursuant to clause 15 of the Letters Patent an appeal lies to this Bench and that argument is fortified by an unreported decision given by a Bench of this Court consisting of Sanderson, C.J and Mr. Justice Woodroffe on the 25th of November, 1918. That was an appeal brought from a decision of a Judge dealing with an election petition presented against the election of a ??? Commissioner elected pursuant to the Calcutta Municipal Act of 1899 which, in some respects, but not in others, is similar to the Act of 1923. By sec. 56 of that Act a person who has grounds for presenting an election petition might apply to a Judge of the High Court exercising original jurisdiction and if the Judge sets aside the election or declares the election to be null and void a fresh election shall be held. The Chief Justice in that case held that the appeal could be entertained and he did so on the ground that if the legislature had intended that parties to proceedings under sec. 56 should be deprived of the right of appeal from a decision of a Judge of the High Court exercising Original Jurisdiction given by clause 15 of the Letters Patent it would have been made plain under the provisions of the Calcutta Municipal Act. He says:
“As there is no provision in the Act to that effect, in my judgment the right of appeal under clause 16 of the Letters Patent remains to the appellant under the cironmatances of this case against the decision of the judge of the High Court exercising original jurisdiction under sec. 50, of the Calcutta Municipal Act, 1899”
That Act of course has been repealed and now elections to the Calcutta Corporation are dealt with by the Calcutta Municipal Act of 1923, and secs. 46 and 47 are the sections that deal with proceedings in election petitions. It is to be noted that in sec. 46 of the 1923 Act the words are “any person,” i.e, a person who desires to put in the petition “may apply to the High Court”; there is nothing said about the Original Jurisdiction; and in sec. 47 it is provided that “if, in any proceeding duly instituted under sec. 46, the High Court is “of opinion,” etc., that certain non-compliance with law has occurred “the election of the returned and date shall be void.”
Now, we have to construe secs. 46 and 47 and find out what is the ??? and purport of those sections, is Court hag no authority or jurisdiction under the Letters Patent to deal with disputed elections. It may deal with a number of things therein set out—such as all suits in civil matters, of ordinary civil jurisdiction, matrimonial jurisdiction, matters arising out of admiralty jurisdiction and testamentary jurisdiction; but there is no mention nor would there likely be any mention of election petitions because at that time there were no elections in this country. The jurisdiction that is given to this Court to deal with matters relating to election petitions is that given by secs. 46 and 47 only and we have to decide what the sections intended should be done. In my view the High Court in this instance is appointed to be what in common parlance means to be known as the “election tribunal” and it has to deal with election petitions in the way provided by those two sections. The High Court can only function through one or more of its Judges and in this instance Mr. Justice McNair was appointed to be the Judge to deal with these election petitions; he was the election tribunal and the proceeding that he took part in was under sec. 47 of the Act. In my opinion that is an unusual and special jurisdiction conferred upon a Judge of this Court or a tribunal or Judges of this Court for the purpose of sec. 47 and the question is—does an appeal lie from what he has done?
The rule with regard to appeals was stated long ago by Lord Bramwell in the case of Sanclback Charity Trustees v. North Staffordshire Railway Co..
“An appeal does not exist in the nature of things: a right to appeal from any decision of any tribunal must be given by express enactment.”
Later on in the case of Rangoon Botatoung Company, Limited v. The Collector, Rangoon there was an appeal from the Chief Court of Lower Burma taken to the Privy Council. What had happened there was that the Collector had made an award under the Land Acquisition Act as to the value of land which had been taken for public purposes and two Judges of the Chief Court affirmed it sitting as “the Court” which under the Act meant “a principal Civil Court of Original Jurisdiction” and they also sat as the High Court to which an appeal was given from the award of “the Court.” The Appellants—the Rangoon Company—were dissatisfied with the decision of the High Court and they appealed to the Privy Council and it was held that the appeal to the Privy Council was incompetent; it was not expressly given by the Act and could not be implied; and at page 201 Lord Macnaughten says—he quotes sec. 54— “subject to the provisions of the Code of Civil Procedure applicable to appeals from original decrees, an appeal shall lie to the High Court from the award or from any part of the award of the Court in any proceedings under this Act.” Lord Macnaughten further says:
“That section seems to carry the no further. It any applies to proceedings in the course of an appeal to the High Court. Its force is exhausted when the appeal to the High Court is heard. Their Lordships cannot ??? the argument or suggestion that when one the claiman is admitted to the High Court he has all the rights of an ordinary ??? including the right to carry an award made in an ??? as to the ??? of land taken for ??? purpose up to this Bord as if it were a decree ??? the High Court made in the course of its ordinary jurisdiction.
In my view looking at the provision of sec. 47 which says that in any proceeding duly instituted under sec. 46, etc., if the Court finds that the election is void, there is an intention that ones the High Court is of the opinion that the election is void, the election is void, and there is an end of the matter. I cannot think that it is the meaning or the purpose of this section that once in application is made to the High Court in the matter of an election petition under this Act that election petition is to be decided in the ordinary way as if it were a suit or an ordinary petition brought within the Ordinary Civil Jurisdiction of this Court. That would mean that it would take its place in the ordinary list unless a special order were made to the contrary. Months—possibly a longer period—would elapse before the matter was decided in the first instance; then the matter might be taken to appeal and a longer period would elapse with the result that the position of all the candidates would be uncertain and it might result in that ward being virtually unrepresented in the Council for that period. That might happen in more than one ward. In my view that was not the meaning and the purpose of the section. In my view the Judge appointed by the High Court to deal with these election petitions was intended to be designated as an election tribunal to hear and determine the position and when he determined the position then that decision should be final. In most enactments there is a specific provision to that effect. It is the purpose of the legislature in all cases in England and in this country too, to make the decision of the electoral tribunal final and generally very definite and specific provisions were inserted in those Acts. It is quite true that those provisions are not in this Act. The sections themselves are not well drafted and might well be the subject of some revision on the part of the legislature; but I am of opinion having regard to the sections as a whole and what appears to be their meaning that it is intended that the decision of the election tribunal, i.e, a Judge of the High Court, shall be final and that no appeal shall lie to any other tribunal.
Under those circumstances I am opinion that this appeal cannot be ??? tertained and it must be dismiss Having regard to the fact that we take the view that no appeal lies here we think the fairest thing will be under the circumstances that there will be no order as to costs.
Costello, J.:— At the time when the application was made to this Court for the fixing of the hearing of this present appeal, I ventured to suggest to the learned Counsel who made the application that no appeal from the decision of Mr. Justice McNair was competent. Learned Counsel replied that the matter had been decided by a judgment of Sir Lancelot Sanderson, the Chief Justice of this Court, in a matter which was described as appeal from Original Order No. 51 of 1918. At that time, that is to say, at the time when the application was made, we had not the opportunity, nor was it necessary, that we should consider the effect of the judgment of Sir Lancelot Sanderson which was given with the concurrence of Mr. Justice Woodroffe.
When this appeal was opened before us two or three days ago, I again expressed the view, with all possible respect to Sir Lancelot Sanderson, I could not agree that there was any appeal to this Bench in a matter which was a matter of an election petition. I expressed that dissent without having realized at the time that the section which Sir Lancelot Sanderson had considered was essentially different in phraseology from the section with which we are now concerned. An examination of the judgment of Sir Lancelot Sanderson will reveal the fact that he based his decision on the precise language of sec. 56 of the Calcutta Municipal Act of the year 1899. The learned-Chief Justice quoted that section, ??? last sentence of which reads as follows:—
??? Any person enrolled in the municipal election may, at any time within eight days after the ??? of the Said list, apply to a Judge of the High Court exercising original jurisdiction”
Sir Lancelot Sanderson's comment on that is this:
“The application in this case was made under that section.”
Then he proceeds
“At the time the Calcutta Municipal Act III of 1399, was passed, the well-known clause of the Letters Patent of 1865, clause 15, was in operation and, it seems to me that if the Legislature had intended that parties to proceedings under sec. 56, should be deprived of the right of appeal from a decision of a Judge of the High court exercising original jurisdiction given by clause 15 of the Letters Patent, it would have been made plain under the provisions of the Calcutta Municipal Act.”
I think that observation is open to these two comments. First of all, it is clear that the learned Chief Justice was basing his decision upon the fact that the application under the Act of 1899 was made to a Judge of this Court exercising Original Jurisdiction. The other comment is this. The learned Chief Justice was looking at the matter, if I may respectfully say so, inversely—because it was not a case of there being necessity for a special Act to take away a right of appeal. The real position was whether the special Act gives a right of appeal because if it does not, the question arises whether there is any other provision in law which confers upon an applicant under the old sec. 56, now sec. 46, a right to apply to a Judge of this Court.
As my Lord the Chief Justice has pointed out, the right of appeal must be given by express enactments. That is a proposition which has been fixed ever since the days of Chief Justice Abbot who so long ago as in the year 1821 in the case of The King v. Hanson made these observations
“For the rule of law is, that altough a certiorari lies, unless expressly taken away, yet an appeal does not lie, unless expressly given by statute. No act of Parliament can be produced giving an appeal in the present case.”
The question before us now is not whether one would have expected the Calcutta Municipal Act to take away a right of appeal, but whether seeing that the Calcutta Municipal Act has not conferred any right, is there any provisions in any other law which does confer a right of appeal? The result is that the Appellant is put in this position: he has to satisfy us that this is a matter which falls within clause 15 of the Letters Patent of this Court, for it is not suggested that there is any other enactment which enables him to come here and ask this Bench to deal with the decision of Mr. Justice McNair.
Now, in a sense, the Letters Patent of this Court is a complete code in itself, that is to say, by the Letters Patent certain rights and a variety of jurisdictions are conferred on the High Court and by clause 15 in certain limited circumstances a right of appeal is given from one Judge of this Court to other Judges of this Court. But, in my opinion, clause 15 can only come into operation as regards matters arising within the jurisdictions which are mentioned in the Letters Patent itself. Therefore, when it is a case of a very special jurisdiction such as we find here, clause 15 of the Letters Patent has no application at all. By sec. 46 and sec. 47 of the Calcutta Municipal Act, 1923, there is, in effect, a special tribunal constituted. An elector, that is to say, a person on the electoral roll if he has a grievance of the kind mentioned in the section may apply to the High Court. I again emphasize the fact that under sec. 46 the wording is different from the wording of the old sec. 56. Nothing is now said as to what part of the High Court or rather in what jurisdiction of the High Court the application; is to be made. We must, therefore, assume that this is a special jurisdiction set up by the Calcutta Municipal Act and in no other way and, therefore, the High Court dealing with an application made under sec. 46 does function, in effect, as a special tribunal. In my opinion, that law is this. If a special tribunal is appointed by any Act of the legislature, or for that matter by any rules made under any Act of the legislature, for the purpose of determining questions as to rights which are the creation of the Act itself then except in so far as it may be expressly provided or necessarily implied in that Act, the jurisdiction of the tribunal which is appointed to adjudicate on those questions is an exclusive jurisdiction and if a special tribunal is set up to determine questions arising in connection with election disputes no other Court has any jurisdiction whatever to entertain further proceedings whatsoever in regard thereto.
In the City of Bombay there is a special tribunal set up under the Bombay Act being Act III of 1888 and under that Act the special tribunal is the Chief Judge of the Small Causes Court. In Rangoon again under the Burma Act (Act VI of 1922) the Chief Judge of the Small Cause Court of Rangoon deals with matters in connection with Municipal elections. In Calcutta it happens to be the High Court and no doubt, in effect, that is a Judge of the High Court by reason of the provisions of sec. 46; but it is a Judge of the High Court sitting not in Ordinary Civil Jurisdiction, or sitting in any jurisdiction which is mentioned or even contemplated by the Letters Patent of this Court. The Judge sits by virtue of the provisions of sec. 46 and nothing else and actually the Judge who deals with the matter is a persona, designata in that he is specially nominated by the Chief Justice for that particular work, i.e, to discharge the functions of a special Court, ??? authorities for the proposition which enunciated a moment ago, I may ??? the cases of Bhaishcmker ??? v. The Municipal Corporation Bombay, Nataraja Mudaliar v. The Municipal Council of Mayabhaban and Nand Ram v. Chote Lal. There is a passage in the report of the Bombay case which is very significant: the passage appears at page 609—as part of the judgment of the Chief Justice Sir Lawrence Jenkins. The learned Chief Justice stated this:
Under section 33 the Chief Judge has jurisdiction to determine the validity of a contested election, and so he is the tribunal appointed by the Act for that purpose.
“But where a special tribunal, out of the ordinary course, is appointed by an Act to determine questions as to rights which are the creation of that Act, then, except so far as otherwise expressly provided or necessarily implied, that tribunal's jurisdiction to determine those, questions is exclusive.
“It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary courts, for they never had any; there is no change of the old order of things; a new order is brought into being.”
Now, it seems to me that is precisely the position which has arisen here under the provisions of the Calcutta Municipal Act. There is no ouster of the Ordinary Jurisdiction of this Court, because it never had any Ordinary Jurisdiction in connection with election matters and certainly never had any jurisdiction under the Letters Patent. The only jurisdiction which the Court has got is that conferred or imposed upon it by sec. 16 of the Act of 1923. This Bombay case was referred to with approval by a Full Bench of the Allahabad High Court in the case of Abdur Rahman, son of Ismail v. Abdur Rahman, son of Zahuri and Muhammad Amir. The head-note is a very short one and reads as follows:
“There is no right of appeal against the order a Commissioner on an election petition presented him under the provisions of the United Provinses Municipal Act, 1916. Neither will any suit lie in a Civil Court for a declaration that the result of a municipal election has been wrongly declared and that the Plaintiff is the person entitled to be declared elected.”
The actual facts of this case are not very material for our present purpose. There is a passage in the judgment of the Full Bench at page 532 which reinforces what I have already said. The passage is as follows:—
“The ordinary rule is that where the statute which creates the right also prescribes a specific remedy, the person aggrieved in limited to the remedy be prescribed. As this Court observed in Sham Lal v. Bindo(8) with reference to a similar contention under the Guardians and Wards Act a separate suit, if permitted, might result in two opposite decisions, equally final and equally binding, one declaring an election valid and the other declaring it invalid. The matter was well put by Sir Lawrence Jenkins, Chief Justice of Bombay High Court, in Bhaishankar Nanabhai v. The Municipal Corporation of Bombay”.
Then the learned Judges cited from the Bombay case the passage which I have already quoted. They continue thus:
“The case of Ashby v. White(9) which is the foundation of the judgment in Municipal Board of Agra v. Asharfi Lal(10) relied on by the Appellants has no application here. In that case Ashby, as a burgess of the borough of Aylesbury, was awarded damages on the ground of wrong done to him by the refusal of the Defendants to allow him to record his vote at a preliminary election. The judgment of Chief Justice Holt, which was affirmed by the House of Lords, was based on the principle that where a legal right has been infringed, the law must provide a remedy, and the only remedy open to the Plaintiff was by means of an action at Law. That case cannot be cited as an authority for the proposition that a right of suit must lie in all cases, notwithstanding that a special remedy is provided by statute.”
That passage in that judgment seems to me to lend support to the proposition that I have advanced, namely, that where there is a remedy provided by a special Act it cannot extend beyond the limits prescribed by that Act. As my Lord has already pointed out, it seems quite obvious that the language of sec. 47 of the Act of 1923 of itself indicates that what the Judge has decided immediately becomes effective and is not open to any further challenge. The material part of the section may be put thus: if in any proceeding duly instituted under sec. 46 the High Court is of opinion that certain things have happened, the election of the returned candidate shall be void. I agree with my Lord the Chief Justice in his view that indicates that it was not the intention of the legislature that what was done by him as a Special Court so designated should be challenged in appeal.
There is another reason why, in my opinion, no appeal lies in this matter— and that is a fundamental one—that the decision given by Mr. Justice McNair cannot, by the application of any of the tests laid down in the many and conflicting authorities of this and other Courts, properly be described as a “judgment” within the meaning of that expression as used in clause 15 of the Letters Patent. Put concisely, therefore, in my view the position is this: there was a special jurisdiction conferred upon this Court by the Act of 1923 and its predecessor. Under the precise language of secs. 46 and 47 it is indicated that there shall be one application to the Court and not more than one application, that application shall be dealt with by a Judge or Judges designated ad hoc for that purpose and no other purpose and the Judge or Judges dealing with the matter constitute a special tribunal or a special Court exercising a special jurisdiction conferred on this Court by the Act of 1923 and not otherwise, and, therefore, the matter does not fall within the ambit of the Letters Patent either as regards jurisdiction or as regards the existence of a right of appeal. In any event, the decision given by the Judge constituting a special tribunal does not amount to a judgment within the meaning of clause 15 of the Letters Patent.
I think, therefore, that this appeal does not lie and, therefore, it must be dismissed.
Solicitors: Mitter & Ghose for the Appellant; B.N Bose & Co. for the Respondent.
R.C