TULSI CHARAN GOSWAMI Vs. MAZIZUL HUQUE

JUDGEMENT

(1.) This is an application made by Tulai Charan Goswami, a member of the Bengal Legislative Assembly, in a suit which he has brought against Khan Bahadur M. Azizul Huque, another member of the Bengal Legislative Assembly, for a declaration that the defendant has not been duly and validly elected Speaker of the said Bengal Legislative Assembly and that he was not and is not the Speaker of the said Assembly and was not and is not entitled to act or function as such Speaker; also for an injunction restraining him from so acting or functioning or drawing his salary as such Speaker. The present application is for a temporary injunction.

(2.) The plaintiff's case is founded upon the argument that there was not at the time when the defendant is alleged to have been elected Speaker, and there is not now any person holding the office of Governor of Bengal, that is to say, Sir John Anderson, ceased to be Governor of Bengal on 1 April 1937, when certain provisions of the Government of India Act, 1935 came into force, and has not been properly appointed as Governor of Bengal under the provisions of that Act. That argument is based upon certain sections of that Act to which I will refer.

(3.) Section 2(1) provides that all rights, authority and jurisdiction heretofore belonging to His Majesty the King Emperor of India, which appertain or are incidental to the Government of the territories in India for the time being vested in him, and all rights, authority and jurisdiction exercisable by him in or in relation to any other territories in India, are exercisable by His Majesty, except in so far as may be other-wise provided by or under this Act, or as may be otherwise directed by His Majesty, and Sub-section (2) provides that such rights shall include any rights heretofore exercisable by the Secretary of State, the Secretary of State in Council, the Governor-General, the Governor. General in Council, any Governor or any Local Government, whether by delegation from His Majesty or otherwise. The Act provides for the resumption by His Majesty of such delegated powers and then proceeds to make provision for the future exercise of all those rights, authority and jurisdiction. Section 3 provides that the Governor. General of India is appointed by His Majesty by a Commission under the Royal Sign Manual, whereas under the old Government of India Act a Governor-General in Council was appointed by Warrant. Section 4 provides for a Commander-in-Chief to be appointed by Warrant under the Royal Sign Manual, thus emphasizing a distinction between a Commission and a Warrant.