RAI BAHADUR MANI LAL NAHAR Vs. MOWDAD RAHAMAN

JUDGEMENT

(1.) This is an appeal by Rai Bahadur Mani Lal Nahar against the judgment of my learned brother Mr. Justice Chaudhuri. The matter came before the learned Judge by way of a petition under Section 45 of the Specific Relief Act by one Mowdad Rahaman, who was a candidate for election as a Municipal Commissioner for Ward No. 14 at the Sixth Municipal Election, and upon that petition it was ordered that the Chairman of the Corporation of Calcutta and Rai Bahadur Mani Lal Nahar, another candidate for election as a Municipal Commissioner for the said ward at the said election should show cause why he should not declare the nomination paper of the said Rai Bahadur Mani Lal Nahar invalid. The Rule was made absolute by the learned Judge, who delivered the following judgment: "This application has been made at a very late stage and I am strongly inclined to hold that it is the result of the decision of this Court in a similar matter which has been before me and the Appellate Court, but it must be said at the same time that no other remedy is open to the applicant. It has been held in a similar case that want of description of a candidate in a nomination paper is a fatal objection. The title such as Rai Bahadur which a man may hold is not his description." The learned Judge then said that he, therefore, held that the nomination paper in question ought not to have been accepted. He then referred to a decision of Mr. Justice Norris reported as Rajendra Lal Mittra. In the matter of 19 C.195 n : 9 Ind. Dec. (N.S.) 575, and following the precedent of that case be directed that the nomination of Rai Bahadur Mani Lal Nahar should be expunged from the list.

(2.) The facts are as follows: The appellant sent in his nomination paper on the 4th of March in this year. The last day for sending in the nomination papers was the 5th of March 1918, and, - according to the affidavit of the appellant, it appears that he was informed by Mr. Sen, Solicitor to the Corporation, that the applicant, that is to say, Mowdad Rahaman, or any candidate for election could have seen the nomination paper at any time thereafter. On the 16th of March a list of the candidates who had been nominated was published. On the 18th of March my learned brother Mr. Justice Woodroffe and I delivered a judgment in the election case appeal between Narendra Nath Mitter v. Radha Ckaran Pal Bahadur 48 Ind. Cas. 314 : 22 C.W.N. 943 : 28 C.L.J. 289, a case, which I shall have reason to say later on, was of a very different nature from the present one. On the afternoon of the same day the applicant in this case applied to the Chairman of the Corporation to reject the nomination paper of Rai Bahadur Mani Lal Nahar, the appellant in this case. The grounds for that application were that the nomination paper did not contain any description of the said; Rai Bahadur Mani Lal Nahar, and that he had been seconded by one Rai Sahib Hara-dhan Basu who was not a voter in the said Ward No. 14, as appeared from the printed copy of the Election Roll prepared and published by the Chairman. The Chairman of the Corporation declined to entertain this application on the ground that it was too late. On the 19th, the following day, a petition was presented before my learned brother Mr. Justice Chaudhuri and the order nisi which I have already read was made, at 11 o clock in the morning. The hearing of the Rule was fixed for 4 P. M. on the same day, and at or about that time the learned Judge made the order absolute upon the grounds which are stated in the judgment which I have already read. The next, day, the 20th, was the day for the election., On that day Mr. Avetoom, the learned Counsel for the appellant, applied to this Court for leave to serve short notice of appeal upon the respondent, and this Court granted him that leave and directed that notice should be served upon the respondent for the hearing of the appeal on the following day, namely, the 21st. On the 21st, the day after the election had taken place, this appeal was heard by my learned brother Mr. Justice Woodroffe and myself; it was adjourned for further argument until yesterday, and on that occasion we reserved judgment until this morning. These are the facts of the case.

(3.) Now, the section under which this application was made was Section 45 of the Specific Relief Act, I of 1877. Before I read that section it is necessary to refer to Section 30 which provides: "Neither the High Court nor any Judge thereof shall hereafter issue any writ of mandamus." But by Section 45 certain powers are given to the High Court which the High Court can exercise, subject to the conditions which are specified in the proviso. Section 45 runs as follows: "Any of the High Courts of Judicature at Fort William, Madras, and Bombay may make an order requiring any specific act to be done or forborne, within the local limits of its Ordinary Original Civil Jurisdiction, by any person holding a public office, whether of a permanent or a temporary nature, or by any Corporation or inferior Court of Judicature",