MAHOMED YASIN NURIE Vs. SHRIPAT AMRIT DANGE

JUDGEMENT

(1.) THIS is an appeal from a judgment of Bhagwati J. by which he directed a writ of certiorari to issue against the Election Tribunal appointed by the Government of Bombay. There was an election for the seat allotted to the Bombay City and Suburban Textile Unions Constituency in the Bombay Legislative Assembly and the election was held in 1946. As a result of that election Mr. Dange was declared successful. Mr. Nurie then presented an election petition to His Excellency the Governor against the said election praying that it may be declared that he, the said Mr. Nurie, had been duly elected a member of the Bombay Legislative Assembly from that constituency and not Mr. Dange. On that petition being presented the Government of Bombay issued a notification dated July 8, 1946,' by which they appointed Sir H. V. Divatia, Mr. D. V. Vyas and Mr. M. S. Noronha Commissioners, with Sir H. V. Divatia as the President of the Tribunal, for the trial of that petition, and it is the validity of this Tribunal that was challenged by Mr. Dange and a petition was filed by him before Bhagwati J. for a writ of certiorari and Bhagwati J. accepted that petition. Before Bhagwati J. various questions were argued as to the maintainability of the application. To Mr. Dange's petition the Commissioners were made party respondents. Mr. Nurie was respondent No.4. Respondents 5, 6 and 7 were the other contesting candidates; the name of respondent No.8 was struck off; the returning officer was joined as respondent No.9. The Commissioners challenged the maintainability of the petition on various grounds and various preliminary issues were tried and decided by the learned Judge all against the contesting respondents, and the learned Judge ultimately came to the conclusion that the notification issued by the Government of Bombay was not a valid notification and that the three members of the Election Tribunal were not duly and properly appointed members. In this appeal we have not gone into the various interesting questions discussed by the learned Judge in his judgment. We have heard Mr. Banaji on the merits of the question, and as we have come to the conclusion that the learned Judge was not right in coming to the conclusion that the notification was not valid and the members of the Tribunal were net validly appointed, it is unnecessary to consider other questions as to the maintainability of the petition.

(2.) NOW the position with regard to the notification is this : Under Section 291 of the Government of India Act, 1935, in so far as provision with respect to the matters therein mentioned is not made by that Act His Majesty-in-Council may from time to time make provision with respect to those matters or any of them, and one of those matters is referred to in Clause (g) of that section, viz. corrupt practices and ether offences at or in connection with elections under the Act. Pursuant to this section an Order in Council was issued by His Majesty which is known as the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, and under Clause 4 of Part III of that Order it was provided that unless the Governor, exercising his individual judgment dismissed a petition for non-compliance with the prescribed requirements, he should, exercising his individual judgment, appoint as Commissioners for the trial of the petition three persons who are or have been or are eligible to be appointed Judges of a High Court and should appoint one of them to be the President. It was under the provision of this clause that the notification dated July 3, 1946, was issued. NOW the notification is challenged on two grounds : It is urged that whereas the Commissioners have to be appointed by the Governor himself exercising his individual judgment, the notification in terms states that the appointment has been made not by the Governor exercising his individual judgment but by the Government of Bombay. The notification is also challenged on the ground that the appointment must be expressed in the notification itself to be by the Governor of Bombay, and inasmuch as that expression is not used, the notification is bad.

(3.) APART from the constitutional position, according to the rules of interpretation to which I shall now refer, it is clear that the Government of Bombay means Governor exercising his individual judgment. An Order in Council was passed called (Adaptation of Indian Laws) Order, 1987, and various Acts were adapted and a list is given of those Acts in the schedule appended to that Order. One of the Acts that were so adapted was the General Clauses Act. This Order brought about two important changes as far as we are concerned in the General Clauses Act. One was to enact Section 4a which provided that the definitions in Section 3 of the various expressions including the one with which we are concerned"provincial Government"shall apply, unless there was anything repugnant in the subject or context, to all Indian laws. It also enacted Clause (27a) to Section 3 which defines "indian Law" asincluding any law, ordinance, order, bye-law, rule or regulation passed or made at any time by any competent Legislature, authority, or person in India. It is important to note that by another Order which was also passed by His Majesty in-Council under the Government of India Act, 1935, it was provided that the Interpretation Act, 1889, which corresponds to our General Clauses Act, and which is usually resorted to in order to interpret expressions appearing in Parliamentary Statutes, shall not be applicable to interpret the Government of India Act, 1985, or the Government of Burma Act, 1935, nor, save as therein mentioned, for the interpretation of any Order in Council made under either of those Acts, notwithstanding that that Order may provide generally that the Interpretation Act, 1889, shall apply for the interpretation thereof, as it applies for the interpretation of the Acts of Parliament. Therefore, although the Order of 1936 did provide that the Interpretation Act of 1889 was to apply for the interpretation of that Order, by reason of this Order of 1937 the effect of that provision was nullified and it is the General Clauses Act which has to be looked to in order to interpret expressions occurring in the Order in Council of 1936. Now under Section 4 (a) of the General Clauses Act the definition of "provincial Government" is to apply to all Indian laws and "indian Law" is defined in the newly added Clause (27a) and the question is whether the Order in Council of 1936 is an Indian law within the meaning of that sub-clause. The question we have to consider is whether any competent Legislature, authority, or person in India refers to a Legislature, authority or person situated in British India, or a Legislature, authority or person which is competent in British India. I must frankly confess that the interpretation is not free from doubt, but, considering the fact that the Interpretation Act is no longer to apply to this Order in Council the better view seems to be that "indian Law" includes the Order in Council of 1936. The same view as to the meaning of Indian law has been taken by the Madras High Court in Venkataratnam v. Secretary of State for India (1929) I. L. R. 53 Mad. 979, where at p. 997 Venkatasubba Rao J. took the view that there was no reason to confine the meaning of "authority in British India" to an authority situate in British India only. Now under the General Clauses Act "provincial Government" is defined as meaning : "in a Governor's Province, the Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment, according to the provision in that behalf made by and under the Government of India Act, 1935"