1926 (10) TMI 5 - HC - Indian Laws

Summary

Issues Involved:
1. Preliminary objection on the sustainability of the application.
2. Validity of the notification fixing the election date.
3. Compliance with Rule 6 regarding notice of election.
4. Authority and authentication of the notification.
5. Discretionary power of the authorities under Rule 5.
6. Right of voters to nominate candidates.
7. Adequacy of other legal remedies.

Detailed Analysis:

1. Preliminary Objection on the Sustainability of the Application:
The respondent raised a preliminary objection, arguing that the application was for a writ of mandamus, which the High Court no longer had the power to issue under Section 50 of the Specific Relief Act. However, the court found this objection unsubstantial because the application was expressly under Section 45 of the Specific Relief Act, which codified the law relating to mandamus. The court rejected this preliminary objection, noting that the application was properly framed.

2. Validity of the Notification Fixing the Election Date:
The court examined whether the notification fixing the election date for September 30th was valid. The petitioners argued that Rule 5 only allows the Governor-in-Council to fix a fresh date for the election under specific contingencies and does not permit multiple fresh dates. The court interpreted Rule 5 as recognizing the Governor-in-Council's power to fix fresh dates as necessary, not limited to a single instance. However, the court found that the notification did not comply with Rule 6, which requires at least three days' notice of the election.

3. Compliance with Rule 6 Regarding Notice of Election:
The court found that Rule 6 mandates a minimum of three days' notice for all elections, which was not provided in the notification for the September 30th election. The court rejected the respondent's argument that the previous publication of the schedule of candidates sufficed as notice. The court emphasized that the rule's intent is to notify voters of the election date, and without such notice, the election could not be validly held.

4. Authority and Authentication of the Notification:
The court scrutinized whether the notification was issued by the proper authority, as required by Rule 5. The notification did not purport to be by the Governor-in-Council and was not properly authenticated as per Section 49 of the Government of India Act, 1919. The court concluded that the notification was not proven to be issued by the Governor with the ministers, rendering it ineffective for fixing a fresh election date.

5. Discretionary Power of the Authorities Under Rule 5:
The petitioners argued that Rule 5 allows the Governor-in-Council to dispense with procedural rules but not substantive rights, such as the right to nominate candidates. The court disagreed, interpreting Rule 5 as allowing the authorities to dispense with the entire process of nominations if deemed necessary. However, the court noted that the discretion exercised in this case appeared unjust, as it prevented a candidate from being re-nominated.

6. Right of Voters to Nominate Candidates:
The court acknowledged the petitioners' argument that the right to nominate candidates is part of the franchise. The court found that the notification's failure to allow fresh nominations violated this right. The court emphasized that the right to nominate candidates is substantive and cannot be disregarded by procedural dispensations.

7. Adequacy of Other Legal Remedies:
The respondent argued that the petitioners had other adequate legal remedies, such as a suit. The court dismissed this argument, noting that a suit after the election would not be an adequate remedy. The court referenced an unreported decision by the Chief Justice, which held that a mere voter does not have an independent right of suit in such circumstances.

Conclusion:
The court concluded that the notification fixing the election date for September 30th was invalid due to non-compliance with Rule 6 and improper authentication. The court restrained the respondent from holding an election without proper notification by the authorities under Rule 5 and without giving three days' notice as required by Rule 6. The respondent was ordered to pay the petitioners' costs.