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.) Now it is necessary to understand what is the constitutional position of the Governor of a Province under the Government of India Act, 1935. The executive authority of the Province is to be exercised on behalf of His Majesty by the Governor, and the scheme of the Act is that the Governor may act according to the advice of his ministers, or he may act according to his discretion, or he may act exercising his individual judgment. Unless he acts in his discretion a statutory duty is cast upon him to consult his ministers, although when he is acting exercising his individual judgment, he may not agree with the advice tendered to him by his ministers. Section 59(1) of the Government of India Act provides that all executive action of the Government of a Province shall be expressed to be taken in the name of the Governor, and Sub-clause (2) of that section provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the authority of the order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. Now under Sub-clause (2) Business Rules have been framed and Rule 12 provides that all orders and instruments made or executed by or on behalf of the Government of Bombay shall be expressed to be made by or by order of the Governor of Bombay. Rule 13 provides that save in cases where an officer has been specially empowered to sign an order or instrument of the Government of Bombay, every such order or instrument shall be signed by either the Secretary, the Joint Secretary, the Deputy Secretary, the Under-Secretary or the Assistant Secretary to the Government of Bombay and such signature shall be deemed to be the proper authentication of such order or instrument. In this case there is no difficulty about the signing of the order because it is signed by the order of the Governor of Bombay by the Secretary Mr. P.N. Moos. Section 59(2) and Rule 12 are not complied with inasmuch as the notification is not expressed to be made by or by order of the Governor of Bombay. It is in fact expressed to be by the Government of Bombay.