Biman Chandra Bose vs Dr. H.C. Mookerjee and Others

Bose, J.—This is an application under Article 226 of the Constitution for a writ in the nature of mandamus directing the respondent No.1, the Governor of West Bengal, to recall nominations of 9 members to the State Legislature Council of West Bengal and for direction upon him to forbear from giving effect to the notification, dated the 4th April, 1952, containing the said nominations and also for suitable directions on the other respondents who are the persons nominated, preventing them from exercising their rights under the said nominations.

The petitioner is a Master of Science, a Master of Arts and a Bachelor of Law and is an Advocate of this Court practising in the Original and Appellate Sides of this Court. The case of the petitioner is that he possess exceptional literary abilities and is the author and publisher of certain books of English poems and Bengali verses which have found place in Bodleian Library, Oxford, Nobel Library, Stockholm, Sahitya Parishad Library, Imperial Library and other libraries at Calcutta. The petitioner also claims to be the author of a book known as "Gandhi Gita", and of a large number of dramas and many epics. On or about 3rd April, 1952, the petitioner addressed a letter to the Governor of West Bengal offering to place his services at the disposal of the State in the event the Governor might be pleased to nominate him or the seat reserved for Literature, Art or Science in the Legislative Council of the State of West Bengal under the provisions of Article 171(3)(e) read with clause 5 of the said Article. On the 4th of April, 1952, there appeared in an extraordinary Issue of the Calcutta Gazette a notification to the following effect: -

NOTIFICATION

No.1577 A.R. - 4th April, 1952 - In exercise of the power conferred by sub-clause (e) of clause 3 of Article 171 of the Constitution of India read with clause 5 of the said Article, the Governor is pleased hereby to nominate the persons, whose names and addresses are given below, as members of the Legislative Council of the State of West Bengal: -

Sri Sankar Nath Banerjee, 7/1, Sunny Park, Calcutta.

Sri Tara Sankar Banerjee, P 171 C.C.O.S. Talla Park, Calcutta.

Sri Guru Gobinda Basu, 16/4, Gariahata Road, Ballygunge.

Sja. Santi Das, 29A & B. Kailash Bose Street, Calcutta.

Sri Narasingha Malla Ugal Sanda Deb, Post Office Jhargram, Midnapore.

Sja. Labanya Prova Dutt, 171, Ramesh Dutt Street, Calcutta.

Janab Musharraff Hosain, 6, Rowdon Street, Calcutta.

Janab Shaikh Md. January, 80, Colutolla Street, Calcutta.

Sri Pannalal Saraogi, 59, Sir Hariram Goenka Street, Calcutta.

By order of the Governor,

S. N. Ray,

Chief Secy. to the Govt. of West Bengal

It is alleged in the petition that although the petitioner fulfils all the conditions required for nomination under Article 171, clause 5, the petitioner''s case was not at all considered by the Governor but the 9 persons, none of whom fulfill the requirements of the Article have been nominated by the Governor. It is not, however, stated in the petition in what respects the nominated persons can be said to be disqualified for the purpose of nominations under Article 171, clause 5 of the Constitution. The petitioner has challenged the validity of the nominations on various grounds set out in the petition. It is stated in the petition that the petitioner''s constitutional right has been immensely prejudiced by the nominations and in making such nominations the Governor has exercised by his discretion arbitrarily and his act is unconstitutional.

The learned Advocate-General who appears for the Governor and respondent No.8 has raised preliminary objections as to the maintainability of this application as against the Governor. It is submitted by him that Article 361 of the Constitution is an absolute bar to the maintainability of the present application. Article 361(1) may be set out hereunder: -

The President or the Governor or Rajpramukh of a State shall not be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:

Provided that the conduct of the President may be brought under review by any Court, Tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under Article 61 :

Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State."

The learned Advocate-General has contended that by purporting to nominate the respondents Nos.2 to 10, the Governor has exercised his power or has purported to act under Article 171(3)(e) read with clause 5 and consequently such nominations cannot be questioned in any Court and the Governor cannot be made answerable for this act.

Mr. Mukunda Bihari Mullick, the learned Advocate appearing for the petitioner, has contended on the other hand that in professing to act under Article 171 for the purpose of making the nominations as contemplated by clause 5 thereof the Governor has to act in his discretion and as it is clear from certain public speeches made by the Governor that he did not know that he had the power to make any nomination the Governor cannot be said to have exercised his discretion in making the nomination. Mr. Mullick has referred to Articles 154, 161, 192 and 213 which confer certain powers upon the Governor. He has also referred to Article 166 of the Constitution and submits that as it does not appear that any rules as contemplated by clause 3 thereof have been framed by the Governor, it must be held that in making nominations under Article 171 the Governor does not act on the advice of his Council of Ministers, but in his discretion. It appears, however, from Article 163 that except in matters the Governor is required to act in his discretion, he is to act on the advice of the Council of Ministers, and the only provision which has been pointed out by the learned Advocate-General which requires the Governor to act in his discretion, is in the 6th Schedule of the Constitution being item 9 thereof relating to licences or leases for the purpose of prospecting for, or extraction of minerals. It may be pointed out that Article 171 does not state that in making nominations the Governor is bound to act in his discretion. This expression "in his discretion" and another expression "in his individual judgment" are expressions which were freely used in the Government of India Act, 1935. Reference may be made to Sections 50, 51, 52(3), 55, 56, 57, 58, 228 and various other sections of the Government of India Act, 1935. Unless a particular article expressly so provides, an obligation to act in his discretion cannot be imposed upon the Governor by mere implication. There is nothing to show that no rules as contemplated by Article 163(3) have been framed by the Governor. Article 163 makes it quite clear that except in cases the Governor is required to act in his discretion, he is to act on the advice of his Ministers and so it must be presumed that in making the impugned nominations he must have acted on the advice of his Council of Ministers. The Court is entitled to presume the regularity of official acts. No materials have been placed before the Court to displace this presumption. The public speech referred to by Mr. Mullick is not on any affidavit. Mr. Mullick read out a portion of the speech from a cutting from the newspaper "Hindusthan Standard". The speech is alleged to have been delivered sometime in March, 1952. There can be no doubt that the Court cannot take any serious notice of such speech, specially when it is not supported by the affidavits of proper persons who can swear to these facts. The statements in paragraph 19 of the petition where there is a reference to such speech are not verified as true to the knowledge of the petitioner but as submission to this Court.

Now, adverting to Article 361 of the Constitution, it appears upon an analysis of this Article that the Governor is not answerable to any Court for the exercise and performance of the powers and duties of his office. In other words, no Court can compel the Governor to exercise any power or to perform any duty nor can a Court compel him to forbear from exercising his power or performance of the duties. He is not amenable to the mandate or writs or directions issued by any Court. These words are wide enough to bar any interference by the Court in respect of the official acts or omission of the Governor. But the framers of the Constitution have taken the precaution of using additional words in the Article with a view to extend the protection even in respect of acts or omissions which can be said to be incidental to the exercise of the power and performance of the duties of the office of the Governor. Consequently, the Article affords immunity not only in respect of the exercise and performance of the powers and duties of the office but also in respect of "any act done or purporting to be done by him" in the exercise and performance of those powers and duties. These words "for any act done, etc.", are commonly used in provisions of statutes having for their object the creation of absolute or partial bar of interference by Courts in respect of certain acts done or purported to be done under such statutes.

A compliance of clause 1 of Article 361 with clause 4 thereof makes it clear that in respect of official acts an absolute bar is created but in respect of acts done in personal capacity a partial bar in the shape of notice for a period of two months prior to institution of civil proceedings is imposed, similar to that to be found in Section 80 of the CPC or Section 198 of the Sea Customs Act and various other statutes.

These words "acts done or purporting to be done" as used in other statutes have been judicially interpreted in numerous decisions, which are not always uniform, but it is not necessary for the purpose of this case to embark upon an examination as to the scope and implications or the correctness or otherwise of these various decisions. The learned Advocate appearing for the petitioner referred to certain observations in the judgment of Sulaiman, J., in the case of Hori Ram Singh v. The Crown [ 43 CWN 50 (F.R.)] and also to certain observations of the Judicial Committee in the case of King Emperor v. Shibnath Banerjee ( 50 CWN 25 at page 32). In Hori Ram''s case (supra), Section 270 of the Government of India Act, 1935, was construed and the observations made in interpreting the said section, no doubt, throw some light on the question of construction that is to be put upon the words "acts done or purporting to be done" as used in Article 361 of the Constitution. The observations, however, made by the Judicial Committee in Shibnath''s case (supra) were made in a different context and I fail to see what relevancy they have to the facts and the points which fall for my consideration in the present case. If the observations are read in the light of the peculiar facts of that case, it will be apparent that the decision of the Privy Council supports the case of the respondents rather than that of the petitioner.

Turning to the facts of the present case it is quite clear that the act impugned is the nomination of certain members of the Legislative Council of the State by the Governor done under clause (3)(e) of Article 171 read with clause 5 thereof. The notification annexed to the petition shows that the Governor has professed to act in pursuance of these clauses of Article 171 of the Constitution. It is impossible, in my view, to divorce this act done by Governor form his official capacity. It has been suggested that the nominations have been made by the Governor arbitrarily and in contravention of the Constitution and for such ultra vires or arbitrary acts, Article 361 affords no immunity. I am unable to accede to this contention. The words "purporting to be done" are of very wide application and even though the act done is outside or in contravention of the Constitution, it comes within the protection of Article 361, if the act is professed to be done in pursuance of the Constitution. If the act is ostensibly done in exercise of the power given under the Constitution and it is not established that the act is done dishonestly or in bad faith or in other words, out of any improper motive, the immunity attaches to the exercise of the power. The protection is intended to be real and not merely illusory. It may be that some of the persons nominated have not the requisite qualifications but it may be that the Governor was misinformed about the qualifications of such persons or it may be that he relied on the advice of his Council of Ministers and as a result of their recommendations, has made no nominations. The nominations may be the result of an erroneous decision or it may be a case of wrong choice, but it cannot be said upon the materials which are before me, that the Governor acted mala fide in exercising his power under Article 171 of the Constitution. In my view Article 361 creates an absolute bar and this application in so far as it seeks any relief against the Governor is wholly incompetent.

A point was made by Mr. Mullick that an affidavit ought to have been made by or on behalf of the Governor placing all materials before the Court relating to the nominations made by him, and reliance was placed on certain observations made by Sinha, J., in 55 CWN 45 at 47, but as I have held that under Article 361, the Governor is not answerable to any Court, it is clear that there was no duty or obligation upon the Governor to make any affidavit in answer to this Rule. Moreover, Sinha, J., laid down that where serious questions of fact are involved and there is allegation of mala fide an affidavit should be made on behalf of the Government placing all materials for assistance of the Court. It may be noted that in the present case there is no real allegation of any bad faith and whatever allegations of arbitrariness have been made are mere submissions to the Court.

A further point was made by Mr. Mullick that although a case is made in the petition that the nominated candidates do not possess the requisite qualifications, there is no denial of this fact by any affidavit made on behalf of the respondents, and as it is open to this Court to go into the question whether the nominated persons are properly qualified or not, this Court should find upon the allegations in the petition that the persons nominated are not duly qualified and so the nominations are invalid. It may be pointed out that this allegation also as to respondents Nos.2 to 10 not possessing the requisite qualifications is not a statement of fact, but a mere submission. Furthermore, the Governor alone is made the sole judge on this point. This Court cannot substitute its opinion or decision in place of the decision of the Governor.

A further point was raised by Mr. Mullick to the effect that the Governor has no power under Article 171 to make the nominations until the elections are over and reference has been made to various clauses (a) to (e) of clause 3 of Article 171 for showing that the scheme of the article is that it is only after the persons contemplated in clauses (a) to (d) are elected that the Governor should make the nominations and adjust his nominations in accordance with the elections of persons in the different categories specified in clauses (a) to (d). It is suggested that if too many or very few persons representing literature or science have been elected in respect of the electorates mentioned in clauses (a) to (d) the Governor should reduce or increase his nominations in respect of those categories accordingly. It appears to me however, upon a plain reading of the Article that there is no indication to be found therein which has the effect of postponing this act of nomination until after the election is over. It is a well-settled rule of interpretation that the provisions of a Constitution should not be construed in a narrow or pedantic sense. As there is no warrant for outing a restriction on the power of the Governor, I do not propose to put any such construction on the Article in question.

The Governor not being answerable to Court by reason of Article 361 it follows that the validity or invalidity of the nominations cannot be enquired into by this Court in the present case. The Governor not being liable to justify the nominations is not bound to disclose any facts relating to such nominations. The other respondents cannot also be properly called upon to support or justify the nominations because they may not know anything about the facts or considerations which led the Governor to make the nominations. The advice tendered by the Ministers to the Governor cannot also be enquired into by the Court by reason of the provisions of Article 163(3) of the Constitution.

The only writ which could be asked for against the respondents 2 to 10 was a writ in the nature of quo warranto, but that has not been asked for in this application. Even if it had been specifically asked for, the notification annexed to the petition would be relied upon by the respondents as their warrant. So long as the notification stands it will be a complete answer to a writ of quo warranto. As I have already held that this Court cannot declare the nomination as invalid on the grounds urged on behalf of the petitioner, this application must fail also against respondents Nos.2 to 10.

It was contended by the learned Advocate-General that the petitioner has no locus standi to maintain this application as no right or interest of his has been infringed by the impugned nominations. The Advocate-General relies on the two unreported decisions of the Madras High Court, dated the 7th April, 1952, and 15th May, 1952. the first decision is a Bench decision of Rajamannar, C.J., and Venkatarama Ayyar, J. In this case the petitioner who had been elected a member of the Madras Legislative Assembly challenged the validity of the nomination of Sri Chakravarti Rajagopalachari made by the Governor under Article 171(3)(e) and (5) of the Constitution on various grounds. The learned Judges held that the petitioner had no such interest as to be competent to maintain the application under Article 226 of the Constitution and observed: -

"Our power under Article 226 of the Constitution can only be invoked at the instance of a person who has a personal grievance against any act of the State in its executive capacity which inflicts a legal injury on him."

It was suggested that but for the nomination it would have been possible for the petitioner along with other members of his party to have formed a new Ministry and to have the nominations made on the advice of the members of that Ministry. But this was considered as a very remote consequence of the nomination.

The other decision was of a single Judge, Chandra Reddi, J., who held that a petition by a member of the Legislative Council questioning the same nomination of Sri Rajagopalachari and asking of a writ of quo warranto was not maintainable as the petitioner had not sufficient interest to present the petition. These were much stronger cases than the case before me and yet it was held that the application was not sustainable at the instance of the petitioners concerned in those cases.

In the case before me it is submitted that the petitioner had the fundamental right to have his case considered for nomination and he is seeking to enforce that right. How can such a right be characterized as a fundamental rights passes my comprehension. The petitioner had at the most a mere chance of a nomination. I cannot find any infraction of any individual or personal right of the petitioner. The petitioner''s case is that his letter reached the Governor on the 3rd April, 1952, but as the nominations were published on the 4th April, 1952, it is clear that his case was not considered. No such inference, to my mind, can be positively drawn from these facts. It is not altogether unlikely that the Governor did also consider the letter of the petitioner on the 3rd April, 1952, but he found that he had no reasons for changing his decision as to the nominations already made by him or did not think that the petitioner was a person deserving nomination.

Mr. Mullick relied on the well-known decision in Rex v. Speyers and Cassell [ (1916) 1 KB 595] to show that if a private relator can maintain an application for a writ of quo warranto challenging the validity of appointments of Privy Councillors, the petitioner before me can also maintain this application. It is to be noted, however, that in the present case the application is not for the issue of a writ in the nature of a quo warranto against the nominated persons. Further in the English case of Rex v. Speyer (supra), the petitioner Sir George Makgill brought the matter to Court on public grounds. But here, no such case is made in the petition. If proper grounds had been laid in the petition and the application had asked for a writ of information in the nature of a quo warranto against the nominated persons as respondents, I would have held in favour of the maintainability of such an application at the instance of the petitioner. I would further like to point out in this connection that I find myself unable to agree with the reasonings and conclusion of Chandra Reddi, J., to the effect that unless a person''s personal right is infringed or unless he has suffered a legal injury, he cannot maintain an application for quo warranto. This conclusion is in my view clearly erroneous. As this application before me fails on other grounds it is not necessary to dilate on this point any further or to deal at any length with the judicial decisions which support the maintainability of applications for quo warranto at the instance of persons who have no personal grievance of interest in the matter. It is sufficient to point out that an application for a writ of quo warranto challenging the validity of an appointment to an office of a public or substantive nature is maintainable at the instance of any private person even though he is not seeking enforcement of any fundamental right under the Constitution or any legal right of his or of any legal duty towards him.

Having regard to my findings on the other points, this petition must fail. The Rule is accordingly discharged. The petitioner must pay two sets of costs to the contesting respondents - one set of costs to be paid to the learned Advocate-General''s clients and the other set, to the other respondents jointly. Hearing fee for each set is assessed at 3 gold mohurs.