1. This is a rule obtained by the plaintiff, Mr. Bhupendra Nath Basu, calling on Moharaja Ranajit Singh Bahadur and Mr. Surendra Nath Banerjea, defendants in the suit, to show cause why an injunction should not be awarded against them restraining them, until the ??? determination of the suit and until ??? orders, from exercising the powers ??? functions as non-official additional ??? of the Council of the Governor-General in India.
2. The case has been argued by Mr. C.R Das on behalf of the plaintiff and ??? good many interesting and difficult questions have been raised during the course of the argument. In my opinion his application must fail upon the facts. The question as to the jurisdiction of His Excellency the Governor-General in Council and to what extent he can make regulations under Section 6 of the India Councils Act, 1909, so as to exclude the jurisdiction of the civil Court is one of considerable importance and, in my opinion, it is not necessary to decide that in the present case. But assuming that the jurisdiction does exist, what are the rights of the plaintiff in this case? The plaintiff was a candidate at the election held on 14th February last. In that election defendant 2 stood at the head of the poll, defendant 1 standing second and the plaintiff was the third, being only one vote behind defendant 1. Acting under the terms of the regulation that had been framed by the Governor-General in Council, the plaintiff preferred an appeal to His Excellency the Governor-General in Council asking that he should declare the election to be void on the ground that two of the electors, who have given their votes in the election, had not taken their oath of allegiance as required by the terms of the regulation. The Governor-General in Council, having received in writing the case of the plaintiff as also having seen the case of the defendants, decided that the two defendants were duly elected members of the Council. It seems to me that on those facts it is impossible to ask the Court to exercise jurisdiction which is a discretionary jurisdiction in the Court.
3. I altogether dissent from Mr. C.R Das's argument that under Section 9 of the CPC, he has got the right ex debita justitia to have an order from the Court declaring that the two defendants were not duly elected as members of the Council of the Governor-General. Section 9 of the CPC, deals with the Courts, not with the rights of the parties, to find what is the jurisdiction of the Court and what civil suit the Court may try unless you are barred by some provisions of the law. The rights which the plaintiff has got in this case, if any, are governed by the Specific Relief Act. As to that, I have no doubt that the rights that he has got in a suit come under Ch. 6, Specific Relief Act, S. 42, which provides that any person entitled to any legal character may institute a suit against any person denying or interested to deny his title to such character and the Court may in its discretion make therein a declaration that he is entitled and the plaintiff need not in such a suit ask for any further relief. The plaintiff in this case, as a matter of fact, asks for a declaration that the election of the two defendants is void and he has only asked for other relief consequential on that declaration. Mr. C.R Das stated that the rights of the plaintiff in a suit instituted under the provisions of Section 42 of the Specific Relief Act, are such that he is entitled to as a matter of course. To that view I am altogether unable to agree. Whatever the decisions, that, he says, had been given on that section, nothing can get out of the expressed words of the section, namely that the Court may in its discretion therein make a declaration and in no case can do away with the express words used by the legislature in enacting that section. If that was not so, we have got this absurd result: that the period of limitation for a suit of this nature under the Limitation Act is for six years. The Council of the Governor-General is elected for three years and therefore three years after the Council ceased, the Court might be going on trying suits under S. 42, as to who were properly elected to the Council that ceased to exist three years before. That is, in my opinion, not a reasonable nor a proper construction to place upon S. 42.
4. In my opinion, in a suit of this nature, what you have got to do is this: You have got to apply the principles of the Court of common law in granting or refusing the prerogative writs of mandamus. Those were reasonable rules which were found to act not only many years but many centuries. Those were the rules which govern elections of all bodies other than the two houses of Parliament, which is not subject to the jurisdiction of any other Court, but decides for itself who are elected and who have got the right to sit in either of those two houses. But in all other bodies the right of election in which the Court has jurisdiction to interfere is governed by the principles by which the Courts of common law grant or refuse the prerogative writs. If you apply those principles in this case and assume that the regulation made by the Governor-General in Council were ultra vires, you have not much difficulty in dealing with this case. Ton have got to consider first of all the conduct of the plaintiff and first that he deliberetely elected to carry his appeal to the Governor-General in Council whereas he knew that the Governor-General in Council's decision was according to his views, of no validity. Secondly, you have got to consider the very serious delay that has been occasioned in this matter by reason of the plaintiff having preferred his appeal to the tribunal, that be said, has no jurisdiction in this matter. The two defendants both, sat and voted in the Council of the Governor-General for the whole sessions. Moreover it may be a case of serious prejudice to the defendants for ought I know that the electorate might not be the same; the majority by which both of them were elected over the plaintiff is a comparatively narrow one and it may be, as electors do sometimes, that some of the electors may have changed their view with regard to the one or other of the defendants, which if the plaintiff had come here more promptly, might not have been the case. It seems to me under those circumstances that even assuming that this Court had jurisdiction to interfere—as to which I desire to express no view—on the facts of this case the Court ought not to interfere. I am not satisfied if the Court had jurisdiction and did interfere that the two defendants by reason of the conduct of the plaintiff having carried the appeal to the Governor-General and then stating that he is not bound by the decision of the Governor-General might not have suffered serious injury in their chances of being re-elected. On those grounds, I think that the Court will be wrong to interfere at any rate by means of interlocutory order to restrain the two defendants from exercising the functions they claim their rights to exercise. Moreover, I am not satisfied that the view the Government as to the taking of the oath of allegiance is not a correct one Doubtless the English cases that are referred to, In re Mayor of Penryn1 at Rex v. Swyer . 10 B. & C. 486, have decided that a person is admitted to a public off which requires oath of allegiance on when the oath of allegiance is taken. That does not get rid of the difficult that arises on these regulations. These regulations constitute an electoral college of elected members of the lord. Council to elect two persons to be matters of the Council of His Excellent the Governor-General. I am not satisfied on the regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letters for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected as a member of the electoral college only. It is only for the purpose of exercising the legislative functions governed by the regulations and by the Act that the oath of allegiance is required. Moreover, as the learned Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat. Under Regulation 8(1)(b), the discretion is given to the Governor-General as to his declaring a seat to be void if the person elected fails to take an oath of allegiance. In my opinion, in this case the rule fails and must be discharged and discharged with costs.
5. Mr. Chakravarti: We are entitled to two sets of costs.
Mr. Fletcher, J.:— Yes.
V.B/R.K
6. Rule discharged.