1. On July 9, 1925, the applicant obtained a rule nisi calling upon the second respondent to show cause why an order should, not be passed directing the Taxing Master of the Court not to proceed with the bill of costs of the first respondent-petitioner in the matter of Election Petition No. 2 of 1924, and not to issue the allocatur therein.
2. The proceedings were under Section 45 of She Specific Relief Act.
3. On the argument of the rule the applicant and the first respondent appeared by counsel; the second respondent submitted himself to the Court.
4. The facts leading up to the application are not in dispute and were as follows : At an election held on November 5, 1928, the applicant and another candidate were declared by the returning officer to have been duly elected for the Bombay Legislative Council by the Bombay City Muhammadan Urban constituency. The first respondent was an unsuccessful candidate. Thereafter he presented a petition to the Governor, under Rule 30 of the Bombay Electoral Rules, against the applicant and others to set aside the election. The Governor appointed three persons, Messrs. Chamier, Jhaveri and Kelkar, as Commissioners for the trial of the petitioner.
5. Section 11(1) of Act 39 of 1920 which provides inter alia for the conduct of inquiries, in regard to disputed elections to legislative bodies is as follows:
Costs shall be in the discretion of the Commissioners, and the Commissioners shall have full power to determine by and to whom and to what extent such costs are to be paid and to include in their report all necessary recommendations for the purposes aforesaid. The Commissioners may allow interest on costs at a rate not exceeding six per cent, per annum, and such interest shall be added to the costs.
6. After recording their finding the Commissioners made certain recommendations with regard to the payment of costs under Rule 43(2), which is as follows:
The report shall further include a recommendation by the Commissioners as to the total amount of costs which are payable and the persons by and to whom such costs should be paid. Such recommendations may include a recommendation for the payment of costs to the Advocate-General or a person acting under his instructions attending in pursuance of an order made under Rule 41.
7. Rule 43(3) is as follows:
The report shall be in writing and shall be signed by all the Commissioners. The Commissioners shall forthwith forward their report to the Governor who, on receipt thereof, shall issue orders in accordance with the report and publish the report in the Gazette, and the orders of the Governor shall be final.
8. The Commissioners recommended that the first respondent, Jafferbhoy Abdullabhoy should pay the petitioner Mahomedalli Allabux the costs of setting up the commission and the taxed costs of arid incidental to his petition and the trial thereof.
9. On April 15, the Governor, in accordance with Rule 43(3), ordered that the election of Jafferbhoy Abdullabhoy was void but nothing was said about costs.
10. Mahomedalli, thereupon, took out a summons in the Court to obtain an order to have his bill of costs taxed as on the original side by the Taxing Officer. Jafferbhoy objected and the Chamber Judge very rightly refused to make the order asked for.
11. Mahomedalli then wrote to the Secretary to Government requesting that a supplemental notification should be issued ordering the costs to be paid in accordance with the recommendation of the Commissioners; and on October 31, the Governor issued an order under Rule 43(3) that the costs of the inquiry into the said petition should be paid as directed by the Commissioners in their report. This supplemental order obviously did not solve the difficulty which had arisen. Mahomedalli's solicitors then wrote a letter to the Chief Judge of the Small Cause Court asking him to take on his file the bill of costs and to take such steps in the matter as might be necessary to have the bill of costs taxed to enable their client to apply for execution.
12. It may be noted in passing that, this was a very extraordinary application for Mahomedalli's solicitors to make. How" ever, the Chief Judge forwarded this letter to Government suggesting that Government by a special resolution might direct the Taxing Officer to attend to Mahomedalli's bill of costs on the analogy of the Government Resolution directing the Taxing Officer to tax the bill of costs of parties concerned in proceedings before the Tribunal of Appeal established by the City of Bombay Improvement Trust Act. Government thereupon asked for the opinion of the Chief Justice in the matter, and a reply was sent that the Chief Justice had no objection to the Taxing Officer of the High Court taxing the bill of costs referred to on a remuneration of Rs. 15 per hour.
13. By Resolution No. 842 of April 8 the Governor in Council was pleased to appoint the Taxing Officer of the High Court of Bombay to tax the petitioner's bill of costs in the Election Petition No. 2 of 1924 and to sanction the payment of a remuneration at the rate of Rs. 15 an hour.
14. Thereafter Mahomedalli lodged his bill in the office of the Taxing Officer and the taxation of the bill proceeded. Before the allocatur was issued the rule nisi of July 9 was granted. At the hearing of the rule it was admitted that the costs of setting up the commission had been paid. A great many of the arguments addressed to the learned Judge and considered by him with most painstaking care appears to me to have been quite unnecessary and wide of the real issues. A very important question arose in limine which hardly seems to have been discussed except in relation to one of the provisions to Section 45, namely, whether Mr. Gillett, in the circumstances of the case, was a person holding a public office, against whom the Court could make an order directing him to forbear from doing the act contemplated by him, namely, the taxation of the bill of costs-under a special resolution of Government not connected with proceedings in the High Court.
15. Section 45 of the Specific Relief Act is, as follows:
16. Any of the High Courts of Judicature at Port William, Madras and Bombay may make an order requiring any specifics 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:
(a) that an application for such order be made by some person whose property, franchise or personal right would be injured by the forbearing or doing (as the case may be) of the said specific act;
(b) that such doing or forbearing launder any law for the time being in force clearly incumbent on such person or Court in his or its public character, or on such corporation in its corporate character;
(c) that in the opinion of the High Court such doing or forbearing is consonant to right and justice;
(d) that the applicant has no other specific and adequate legal remedy; and
(e) that the remedy given by the order applied for will be complete.
Nothing in this section shall be deemed to authorize any High Court
(f) to make any order binding on the Secretary of State for India in Council, on the Governor-General in Council, on the Governor of Madras in Council, on the Governor of Bombay in Council, or on the Lieutenant-Governor of Bengal,
(g)to make any order on any other servant of the Crown, as such, merely to enforce the satisfaction of a claim upon the Crown; or
(h) to make any order which is otherwise expressly excluded by any law for the time being in force.
17. The conditions under headings (a) to (e) of the proviso are cumulative so that no order can be made under the section unless they are all satisfied.
18. Proceedings under this sectiori are in substitution for proceedings by writ of mandamus and writ of prohibition according to English practice.
19. In England the writ of mandamus is a high prerogative writ of a most exclusive remedial nature and is in form a warrant issuing from the High Court of Justice, directed to any person, corporation or inferior Court, requiring him or them to do some particular thing therein specified which appertains to his or their office, is in the nature of a public body and is consonant to right and justice. Its purpose is to supply defects of justice (Halsbury, Vol. X, para. 160).
20. The writ of prohibition is a prerogative writ issuing out of the High Court of Judicature and directed to an ecclesiastical or inferior Court, which forbids such Court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land. The writ of mandamus will not be granted against one who is an inferior or ministerial officer, bound to obey the orders of a competent authority to compel him to do something which is part of his duty in that capacity : The King v. Jeyes  3 Ad. E. 416 and The King v. Bristow  6 T.R. 168.
21. It would not appear, therefore, that a writ of prohibition could be issued directed to any person or corporation requiring him or them to forbear from doing any particular thing which appertained to his or their office.
22. The principles by which the Courts will be guided in such matters are laid down by Lord Cottenham, in Frewin v. Lewis  4 My. And Cr. 249 in the following words (p. 254):
The limits within which this Court interferes with the acts of a body of public functionaries...are perfectly clear and unambiguous. So long as those functionaries strictly confine themselves within the exercise of those duties which are confided to them by the law, this Court will not interfere. The Court will not interfere to see whether any alteration or regulation which they may direct is good or bad; but, if they are departing from that power , which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, this Court no longer considers them as acting under the authority of their commission, bat treats them, whether they be a corporation or individuals, merely as persons, dealing with property without legal authority.
23. Mr. Gillett in his capacity of Taxing Officer of the High Court may be said to be a person holding a public office as his salary is paid out of the public revenues, and as such his duty is to tax bills of costs in proceedings in the High Court under the orders issued by Judges of the High Court. In this case it was not necessary that a special resolution should have been passed by Government authorizing him to tax the bill of costs receiving the special remuneration fixed.
24. The Governor might have asked Mr. Gillett to tax the bill on his own intiative. But in any event Mr. Gillett when taxing the bill, whether under the directions of a special resolution of Government, or at the request of the Governor, would not be acting as a person holding a public office. He would be acting in his capacity as a private individual with a special knowledge with regard to the taxation of bills of costs according to the High Court rules.
25. Proviso (h) to the section, set out above, clearly shows that the forbearing; from the act complained of must be incumbent on the person holding a public-office in his public character.
26. This would be sufficient for a decision, on our part that the application under Section 45 of the Specific Belief Act was not competent. But assuming that Mr. Gillett was a person holding a public office when taxing this bill of costs, and that can only be on the basis that the proceedings on the election petition were analogous to proceedings in the High Court, and that the Commissioners recommendation that Jafferbhoy should pay the taxed cost of Mahomedalli was analogous to an order of the High Court that the losing party should pay the taxed costs of the successful party, it is obvious that the proviso to Section 45 must be applied to the circumstances of the case in a similar manner. It cannot be imagined for a moment that after a decree had been passed by the High Court directing the taxed costs of the successful party to be paid by the losing party, an application to prohibit the Taxing Officer from taxing the bill would have the slightest chance of success.
27. No doubt the obligation to pay the costs when taxed would cause an injury to the person who had to pay them, but that would not be the kind of injury which is included within proviso (a). Nor could the case possibly come within any of the other provisos, so that with all due respect we cannot agree with the learned Judge that the conditions of Section 45 have been fulfilled. The learned Judge appears to have been led away by purely irrelevant considerations. We are not concerned with the difficulties which may arise owing to the defective nature of the electoral rules which appear to have been drafted by some one devoid of imagination. Rule 43(2) contemplates the Commissioners deciding themselves on the total amount of costs payable in proceedings before them, without giving them any direction as to how that total was to be calculated, and the Commissioners, when making their recommendation, could not have applied their minds to a strict interpretation of the rule; but again that is no concern of ours, while it would clearly be outside our functions to refer to any action taken by the Governor under Rule 43(3). In effect we are asked to make an order preventing the Governor from ascertaining in a manner which seems to him proper the amount of costs payable by the losing party in an electoral inquiry, which is forbidden by proviso (f) to Section 45.
28. The note taken of the arguments of the applicant's counsel appearing at page 18 shows very clearly that they went far astray from the real issues owing to the failure to recognize that the matters I have referred to above were beyond the cognizance of the Court.
29. The result was that the provisos to Section 45 were looked upon from the wrong point of view.
30. Ordinarily speaking it was in consonance with justice that Jafferbhoy should pay Mahomedalli's costs. I cannot agree, because the rules were defective, and, such as they were, had not been duly regarded by the Commissioners, so that the Governor was in a difficulty when seeking to give effect to their recommendations, that any attempt on the part of the Governor to solve the difficulty was to be treated by the Court as causing an injury to Jafferbhoy, and that it should be considered consonant with right and justice to give him a complete and effective remedy which would deprive Mahomedalli of any chance of getting the costs to which he was rightly entitled. That would be a very strange result for the High Court to have in view when exercising its jurisdiction under Section 45.
31. In my opinion it would be entirely outside the functions of this Court to interfere in a matter with which it has no concern and the rule, should be discharged with costs throughout.