Charu Chander Ghose, J.

1. This is an application under Section 45 of the SpecificRelief Act (I of 1877) for an order directing the Honble Mr. H.E.A. Cotton,President of the Bengal Legislative Council, to decide on the admissibility ofa certain motion, being item No. 6 in the list of business to be broughtforward at the session of the Bengal Legislative Council, which commencesto-day at 3 P.M., and to disallow the said motion or to forbear putting thesame at the said session of the Bengal Legislative Council, and for suchfurther or other order as to this Court may seem fit and proper, and for anorder that the said Mr. Cotton and the other respondents do pay the costs ofand incidental to this application. The other respondents are the Honble Mr.A.K. Fazlul Huq and the Honble Mr. A.K. Ghuznavi, being the Ministers incharge of the departments of Education and Agriculture of the Government of Bengal.The Honble Mr. Donald, who is a member of the Executive Council of HisExcellency the Governor of Bengal, in charge of the Finance Department, wasserved with notice of this application under Rule 5 of Chapter XXIX of therules of this Court (Hechles Rules, p. 356,) as it appeared from the list ofbusiness circulated to the members of the Bengal Legislative Council that itwas he who is to move a supplementary demand for a grant of Rs. 1,71,000 forexpenditure under the head "11--General Administration (Transferred)"on account of the salaries of the Ministers.

2. This application was brought on before me on Thursdaylast, when, in view of the urgency of the matter, I directed that it should berenewed before me on Friday morning on notice to the respondents and to thesaid Mr. Donald. This was done and I heard at length on Friday learned Counselfor the applicant and the learned Advocate-General on behalf of therespondents. The arguments were not concluded till after 4 P.M. on Friday and Ithen stated that I would deliver judgment at the earliest possible moment,namely, at 11 oclock this morning.

3. The facts which have given rise to the presentapplication are as follows: At the last session of the Bengal LegislativeCouncil on the 18th day of March 1924, a statement of the estimated annualexpenditure and revenue of the Presidency of Bengal for the year 1924-25,commonly called the budget, was presented and in connection therewith aseparate demand for grant on account of the salaries of the Ministers was madeunder Section 72(d), Sub-clause (2) of the Government of India Act. The saiddemand was for a sum of Rs. 2,20,000 under the head "22 (e)--GeneralAdministration--Ministers (Transferred)." At the said last session of theBengal Legislative Council, to wit, on March 24, 1924, the said demand for agrant on account of the salaries of the Ministers was, on the motion of MaulviMohamed Nurul Huq Chowdhuri, a member of the said Bengal Legislative Council,rejected by the Council, as appears from the official report of the proceedingsof the said Council held on the 24th March 1924. Although the said demand forgrant on account of the salaries of the Ministers was rejected by the saidCouncil, the Ministers have continued to remain in office and are in officenow. On or about June 30, 1924, the applicant received a printed list ofbusiness to be brought forward at the session of the Bengal Legislative Councilwhich commences to-day, signed by J. Bartley, Officiating Secretary to theGovernment of Bengal and Secretary to the Bengal Legislative Council, The saidprinted list included an item being item No. 6, which ran as follows:"Supplementary demands for grants--22 General Administration (Transferred). The Hon. Mr. J. Donald to move that a sum of Rs. 1,71,000 be granted forexpenditure under the head 22--General Administration (Transferred) on accountof the salaries of the Ministers".

4. The applicant states that no estimate can be presented tothe Bengal Legislative Council at the forthcoming session for a supplementaryor additional grant on account of the salaries of the Ministers under Rule 94of the Bengal Legislative Council Rules and Standing Orders. (See p. 266 of theBengal Legislative Council Manual, 1924.) The said rule runs as follows:

(1) An estimate shall be presented to the Council for asupplementary or additional grant when (i) the amount voted in the budget of agrant is found to be insufficient for the purposes of the current year; or (ii)a need arises during the current year for expenditure for which the vote of theCouncil is necessary upon some new service not contemplated in the Budget forthat year.

(2) Supplementary or additional estimates shall be dealtwith in the same way by the Council as if they were demands for grants.

5. The applicant further states that he has been sinceNovember, 1923, and is a member of the Bengal Legislative Council; that he isthe owner of immovable properties in the district of Chittagong, for which hepays Government revenue, and that he has also been assessed for payment ofIncome Tax on the income derived from the exercise of his profession as anAdvocate of this Court. He states also that he wrote, addressed and sent aletter to Mr. Cotton on July 2, 1924, drawing his attention to the facts hereinbeforerecited, and contending that no estimate could be presented to the BengalLegislative Council for a supplementary or additional grant on account of thesalaries of the Ministers in the events which had happened. The applicant wenton to add the following: "As President of the Council it is incumbent onyou to decide on the admissibility of a motion and you have authority todisallow a motion even though such a motion appears in the list of business. Icontend that there can be no doubt whatsoever that the motion of the Hon. Mr.J. Donald, which is item No. 6 in the said printed list of business, does notcomply with the Bengal Legislative Council Rules and Standing Orders andshould, therefore, be disallowed. I therefore call upon you to decide on theadmissibility of the said motion of the Hon. Mr. J. Donald and to delete item 6from the said printed list of business, and to forbear from putting that motionbefore the session of the Council commencing on Monday, July 7, 1924. Unless Ihear from you in reply by 11 oclock to-morrow, I shall assume that you refuseto decide the question of the admissibility of the said motion, or to disallowthe said motion, or to delete it from the said printed list of business, and Ishall take such steps as I may be advised." The applicant states that thesaid letter was delivered at the office of Mr. Cotton and that he alsotelegraphed to Mr. Cotton, who was then at Darjeeling, the substance of thesaid letter.

6. The applicant goes on to add that notwithstanding thedemand made on Mr. Cotton, the latter has declined to decide on theadmissibility of the said motion or to disallow the same, or to move at all inthe matter, and has denied to him the justice to which he alleges he was and isentitled. Lastly, he states that his property, franchise and personal rights asa member of the said Council and otherwise would be injured, unless Mr. Cottonis directed to decide on the lines indicated above, and that he has no otherspecific or adequate) legal remedy in the matter, and that the remedy he praysfor will be complete.

7. Mr. Sircar, who appeared in support of the application,made it clear to me at a very early stage of his vigorous address, that hiscontention was that item No. 6 on the said agenda paper was hit by Rule 94 ofthe said Kales and Standing Orders, and that, therefore, Mr. Cotton had nopower or jurisdiction to include the said item in the said agenda, and that inthe events which had happened, the applicant was entitled to ask the Court todirect Mr. Cotton to forbear from putting the said item No. 6 before the BengalLegislative Council for its consideration, or, in other words, to ask the Courtto direct Mr. Cotton to delete the said item from the said agenda. Mr. Sircarstated that although his first prayer was for an order directing Mr. Cotton todecide on the admissibility of the said motion, being item No. 6 in the saidagenda, his principal prayer was that Mr. Cotton should be directed to deletethe said item as being an item which was hit by Rule 94.

8. As regards the right of the applicant to an order underSection 45 of the Specific Relief Act, Mr. Sircar pointed out that his clientpaid Government revenue which was an essential part of the fund out of whichthe Ministers were to be paid their salaries, and that the money which wastaken from his client could only be used for legitimate purposes as providedfor by law. In the second place, Mr. Sircar contended that having regard to thefact that at the last session of the Bengal Legislative Council, his client hadexercised his right to vote and had voted against the grant of salaries to theMinisters, he would be injured so far an his said right, which, according tohim, was a "franchise", was concerned. In the third place, the applicantscontention was that he, as a member of the Council, had a right to see that thebusiness of the Council was conducted according to the provisions of law.

9. In answer to these contentions the learnedAdvocate-General, on behalf of the respondents, submitted the following pointsfor my consideration:

10. (a) That no Court has ever granted a writ of Mandamus inthe form asked for by the applicant, and that the applicant was not entitled toany order directing Mr. Cotton to decide the question of the admissibility ofthe said motion in a particular manner. (6) That Parliament, in passing theGovernment of India Act and in constituting Legislative Councils thereunder,had kept in view the English constitutional principle, namely, that theLegislature was supreme and that neither the Judiciary nor the Executive shouldinterfere in any way with the conduct of business in the Legislative Councils.(c) That it has not been shown that the demand for justice made by theapplicant has been refused by Mr. Cotton. (d) That the applicant has not shownthat he has some interest in the matter other than such as may belong to thecommunity at large in the question now being debated, it being clear that the"personal right" injury which the Courts aim at preventing orremedying, is a right personal to the individual seeking the remedy, and notmerely such a right in rem, as every member of a society has independently ofany act of his own. (e) That Rule 94 of the Rules and Standing Orders was notexhaustive, and that having regard to Rules 21, 38 and 39 of the said Rules andStanding Orders, taken along with the provisions of Section 72(d) of theGovernment of India Act, Mr. Cotton had sufficient authority to include thesaid item No. 6 in the agenda paper.

11. Before I proceed further, I desire to observe that afterthe conclusion of the arguments in this matter on Friday evening, it wasbrought to my notice that there had been filed on that date a suit in thisCourt against the present respondents by certain persons named Kumar ShankerRoy Chaudhuri and Kiran Shanker Roy Chaudhuri on behalf of themselves and allother persons paying revenue and/or taxes allocated under the Government ofIndia Act to the Government of Bengal as sources of provincial revenue, prayingfor a declaration that the motion contained in item No. 6 in the said agendapaper is incompetent and illegal and ultra vires, and that it cannot in any wayaffect the rights of the said plaintiffs and of the other persons for whom theyare suing; and further praying for a declaration that the two Ministers are notentitled to the status of Ministers and are not legally entitled to dischargeany of the duties of their office as Ministers, and praying for an injunctionrestraining Mr. Cotton from putting the said motion at the session of theBengal Legislative Council; which commences today, and restraining the twoMinisters from drawing any monies by way of salary or otherwise in pursuance ofthe said motion, or from discharging any of the duties of the office of Minister.I have referred to the suit because it may be argued that many of the pointswhich were the subject of debate on this application and in particular thepoints (b) and (e) raised by the Advocate-General are covered by the issueslikely to arise in the said suit, and that a pronouncement on the merits raisedon this application is inadvisable. I cannot, however, anticipate the course ofevents in the said suit and must confine myself to the present application. Andin dealing with the present application, the first question which I have got toconsider is whether the applicant has satisfied the requirements of theStatute.

12. It is well settled that the jurisdiction of the HighCourt to make orders under Section 45 of the Specific Relief Act is entirely discretionaryand in dealing with an application under Chapter VIII of the Specific ReliefAct, the principles applicable to a writ of mandamus should, generallyspeaking, be followed. [See Provas C. Roy, In re I.L.R (1913) Cal 588, Manindrav. Provas I.L.R (1924) 51 Cal 279, 292.] The writ is of very ancient origin,dating back, at any rate, to the time of Edward II. In Bacons Abridgment it issaid to be founded on Magna Charta, by which the Crown was bound neither todeny justice to anybody nor to delay anybody in obtaining justice. It seemsoriginally, according to Mr. High (see High on Extraordinary Legal Remedies),to have been one of that large class of writs or mandates by which theSovereign of England directed the performance of any desired act by hissubjects, the word "mandamus" in such writs or letters missive havinggiven rise to the present name of the writ. These letters missive or mandatesto which the generic term "mandamus" was applied, were in no sensejudicial writs, being merely a command issuing directly from the Sovereign tothe subjects without the intervention of the Courts and they have long becomeentirely obsolete. The term "mandamus" seems gradually to have beenconfined in its application to the judicial writ issued by the Kings Benchwhich has by steady growth developed into writ of mandamus. It is a highprerogative writ and is granted to ampliate justice and to preserve a rightwhere there is no specific legal remedy. And it has been said that the Court,in the exercise of this authority to grant the writ of mandamus, will render itas far as it can be the suppletory means of substantial justice in every casewhere there is no other specific legal remedy for a legal right, and willprovide as effectively as it can that others exercise their duty wherever thesubject matter is properly within its control.

13. The writ of mandamus being a high prerogative writ, itfollows that it cannot be demanded ex debito justitiae, but that it issues onlyin the discretion of the Court. [See the observations of Cockburn C.J. in R. v.Garland (1870) L.R. 5 Q.B. 272 and also of Lord Chelmsford in R. v. All Saints,Wigan (1876) 1 A.C. 620.] It follows from the discretionary character of theprocess that the rights to be enforced must be of a public nature; affectingthe public at large and also those, which although of a public nature,specially affect the rights of individuals. The person applying must show thathe has a real and special interest in the subject matter under specific legalright to enforce. [See R. v. Guardians of Lewisham Union [1897] 1 Q.B. 498.] Inaddition to these conditions precedent to the issue of the writ, it has beenlaid down from very early times that there must be a sufficient demand toperform the act sought to be enforced and a refusal to perform it. It is notindeed necessary that the word "refuse" or any equivalent to itshould be used, but that there should be enough to show that the partywithholds compliance and distinctly determines not to do what is required ofhim. There must also be the possibility of effective enforcement of the writand the writ will not issue if alternative remedies, or, remedy are and is opento the applicant.

14. These being the principles applicable to a writ ofmandamus, let us turn to Section 45 of the Specific Relief Act, which in Indiaembodies these principles. Five conditions are laid down, in the section, beingprovisos (a) to (e) which the applicant invoking the jurisdiction must satisfy.These conditions are cumulative, and all of them must be fulfilled. The Courtis invested with very large powers, and the remedy is of a summary nature andcoercive in its character. And it is elementary that the wider the power, thegreater must be the caution with which the power is exercised.

15. In view of the importance of the questions raised onthis application, I have very anxiously considered the facts to which myattention has been drawn in order to determine if and by how far the applicanthas succeeded in; bringing his case within the purview of Section 45 of theSpecific Relief Act. In doing this, I am relieved of the necessity ofconsidering the questions raised in provisos (c, (d) and (e), because noargument was raised is respect thereof. Provisos (a) and (6) prescribe theambit of controversy in this case. Provisos (a) requires that the applicantmust be some person whose "property", "franchise" or"personal right" would be injured by the forbearing or doing (as thecase may be) of the specific act to be done or forborne. Proviso (b) lays downthat the applicant must also show that such doing or forbearing is, under anylaw for the time being in force, clearly incumbent on the respondents.

16. Has the applicant; here shown that his"property" or "franchise" or "personal right"would be injured As to injury to property, it has been stated before me thatthe applicant pays Government revenue in respect of his immovable properties inthe district of Chittagong, and that the money so paid by him being part of thefund out of which the salaries of Ministers are met, his "property"would be injured if in pursuance of Mr. Donalds motion, the supplementarydemand is acceded to by the Bengal Legislative Council. I am clearly of opinionthat what has been shown by the applicant in this connection is insufficient tomake him a competent relator. The applicant pays Government revenue, it istrue; but he pays it along with thousands of other people, a fact of which I amentitled to take judicial notice. This by itself cannot in my opinion constitutesuch "injury" to the applicants "property" as the provisocontemplates.

17. Next let us see whether his "franchise" wouldbe injured. What is the franchise which the applicant claims He contends thathaving regard to the fact that he was one of those who at the last session ofthe Bengal Legislative Council had succeeded by their votes in turning down thedemand for grant for Ministers salaries, the effect of the said vote of theCouncil in which the applicant had participated would be entirely nullified ifMr. Cotton be not directed to delete the said item No. 6 or to forbear fromputting the same before the Council. I am not at all sure that the word"franchise" includes the right to vote in the Legislative Council.The right to vote at the election for Parliament, or for the IndianLegislative; Assembly, or for the various provincial Legislative Councils iscertainly a "franchise", but I know of no instance where the word hasbeen held to include the power to vote on matters coming before a legislativebody. The term "franchise" is defined by Blackstone, following olderauthorities, as a royal privilege or a branch of the Kings prerogative in thehands of the subject. It is also said to be synonymous with the term"liberty", though the latter is usually applied to the class offranchises, conferring immunity of jurisdiction. Franchises are of variouskinds and an excellent account of their origin will be found in Pollock andMaitlands History of English Law. The term "franchise" in itselectoral sense denotes both the right of voting at elections and thequalifications upon which that right is based.

18. But assume I am wrong in the construction I am puttingon the word "franchise", has there been any injury in the applicantsfranchise such as it is The "injury" to "franchise" mustbe some act interfering with the exercise of the applicants franchise, namely,his right to vote. How can I say that there will be interference with theapplicants franchise, or right to vote, by Mr. Cotton putting before theLegislative Council for its consideration the motion of Mr. Donald I amentitled to assume that the proceedings of the Council will be conducted inaccordance with the traditions of the Houses of Parliament and that there willbe no interference with the rights and privileges of the members of theCouncil. No question of any injury to the "franchise" or rightexercised, in the part can be gone into by me on this application, nor is itpossible for me to foreshadow what may happen in the future, nor am I satisfiedthat even in the event of Mr. Donalds present motion being accepted by theBengal Legislative Council there will accrue, of a certainty, injury to theapplicants franchise in the manner suggested by him.

19. Let us next see if there will be any injury to theapplicants "personal right". What is his personal right He saysthat it is his undoubted right to see that the business of the BengalLegislative Council is conducted in accordance with the provisions of the law.This right the applicant enjoys along with 139 other members of the LegislativeCouncil, the present strength of the Council being 140. Can I say that theapplicant has shown to my satisfaction any special circumstances within themeaning of the rule laid down in the case of In re Rasul I.L.R (1913) Cal 518 The answer to my mind is in the negative.

20. It seems to be clear, therefore, that there is no injurythreatened to the present applicant. The applicant seeks for a direction on Mr.Cotton to disallow or delete from the agenda item No. 6 or to forbear fromputting the same before the Council. Suppose Mr. Cotton is not so directed,what follows How would the applicant be hurt Except that it will hurt theapplicants notion of what is legal or illegal under the Rules and StandingOrders, except that it will offend against his view that the motion in questionis ultra vires, I cannot see what injury will be caused to the applicantsproperty, franchise and personal right within the meaning of that; section.

21. The conclusion, therefore, I come to on an examinationof the applicants contentions under the head "Proviso (a)" is thatthe applicant has failed to satisfy the requirements of the Statute.

22. There is another ground upon which the application mustfail. The applicant has no doubt made his demand of justice, but I am notsatisfied that there has been any denial thereof. I have already said that itis not necessary that the word "refuse" or any equivalent to itshould have been used, and I accept the applicants contention that refusal maybe inferred from conduct. The facts and the dates I have set out negative, tomy mind, the argument that Mr. Cotton has been guilty of conduct which showsthat he has distinctly determined not to do what has been required of him.Whether there has been a denial of justice or not is a mixed question of lawand fact and taking into consideration the entire facts and circumstances ofthe case, and being not unmindful of the grounds of urgency urged on behalf ofthe applicant, I hold that there has been no denial of justice on the part ofMr. Cotton.

23. In view of what I have said above, I must reserve forthe present any discussion on the merits of the applicants case as bearing onproviso (6) of Section 45, or of the intensely interesting questions ofconstitutional law and procedure suggested by learned Counsel on both sides. Ata proper time and on a proper occasion I shall not fail to express my opinionthereon.

24. The result, therefore, is that this application failsand must be dismissed with costs.

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J.M. Sen Gupta vs.H.E.A. Cotton and Ors. (07.07.1924 -CALHC)