The Governor's nominations to the Legislative Council under Article 171(3)(e) are protected from judicial review by Article 361 of the Constitution, which grants absolute immunity to the Governor for acts done or purporting to be done in the exercise of his powers and duties.

( 1 ) THIS is an application under Article 226 of the Constitution for a writ in the nature of Mandamus directing respondent l, the Governor of West Bengal, to recall nominations of 9 members to the State Legislative Council of West Bengal and for direction upon him to forbear from giving effect to the notification dated 4-4-1952 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.

( 2 ) THE petitioner is a Master of Science, a Master of Arts and 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 possesses 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 3-4-1952 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 for 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 or the said Article. On 4-4-1952 there appeared in an extraordinary issue of the Calcutta Gazette a notification to the following effect: notification. No. 1577' A. R.-4-4-1952. In exercise of the power conferred by sub-cl. (e) of 01. 3 of Article 171, Constitution of India read with 01. 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.

NO. Name. Address.

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

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

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

4.

Sjta Santi Das 29 A&b, Kailash Bose

Street, Calcutta .

5.

Sri Narasingha Malla Ugal Sanda Deb Post Office Jhargram,

Midnapore.

6.

Sja. Labanya Pros a Dutta 171 Ramesh Dutta Street ,

Calcutia.

7.

Janab Musharraff Hossain 6. Rawdon Street ,

Calcutta .

8.

Janab Shaikh Md. Jan 80, Calcutta Street ,

Calcutta .

9.

Sri. Pannalal Saraogi 59, Sir Hariram Goenka

Street, Calcutta .

By Order of the Governor,

S. N. Roy.

Chief Secy, to the Govt. of

West Bengal. . .

( 3 ) 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 fulfil 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 his descretion arbitrarily and his act is unconstitutional.

( 4 ) THE learned Advocate-General who appears for the Governor and respondent 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 (l) may be set out hereunder. "the President or the Governor or Rajpramukh of a State shall not be