Skip to content


Laxman Limbraj Rankhamb and ors. Etc. Vs. State of Maharashtra and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberWrit Petns. Nos. 2783 and 2859 of 1980
Judge
Reported inAIR1981Bom175a; (1981)83BOMLR166; 1981MhLJ566
ActsConstitution of India - Articles 163(3), 213, 213(1), 213(2) and 213(4); Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 - Sections 10, 10(2) and 10(3); Constitution of India (44th Amendment) Act, 1978; Government of India Act; President's Act, 1969
AppellantLaxman Limbraj Rankhamb and ors. Etc.
RespondentState of Maharashtra and ors.
Appellant AdvocateBhimrao N. Naik,;B.N. Deshmukh,;P.M. Vyas and;V.N. Thorat, Advs.
Respondent AdvocateD.S. Chopra, Asstt. Govt. Pleader,;Adv. General,;C.J. Sawant and;M.B. Mehera, Advs.
Excerpt:
.....form the power of the governor to legislate by an ordinance is made co-extensive with that of the state legislature except the fact that the ordinance can have only limited duration. hence the object which can be achieved by means of regular legislation by the legislature can also be achieved by an ordinance. therefore an ordinance may enact provisions, the effect of which may continue even after the expiry of the ordinance. therefore, by an ordinance the term of the zilla parishad can be extended even beyond the life of the ordinance itself.;haran chandra v. state of west bengal [1952] a.i.r. cal. 907, agreed with. ;state of orissa v. bhupendra kumar [1962] a.i.r. s.c. 945, referred to.;in view of the provisions of article 163(3) of the constitution of india the court cannot enquire..........form the power of the governor to legislate by an ordinance is made co-extensive with that of the state legislature except the fact that the ordinance can have only limited duration. hence the object which can be achieved by means of regular legislation by the legislature can also be achieved by an ordinance. therefore an ordinance may enact provisions, the effect of which may continue even after the expiry of the ordinance. therefore by an ordinance the term of the zilla parishad can be extended even beyond the life of the ordinance itself. a similar view seems to have been taken by the calcutta high court in : air1952cal907 haran chandra v. state of west bengal. while dealing with such a contention this is what the calcutta high court observed in paragraph 27 of the said decision.....
Judgment:

Dharmadhikari, J.

1. In these two writ petitions the Ordinance issued by the Governor viz. the Maharashtra Ordinance No. VIII of 1980 providing for the dissolution of Osmanabad and Parbhani Zilla Parishads, temporary postponement of elections and appointment of Administrator is challenged by the office bearers as well as Councillors of the Osmanabad and Parbhani Zilla Parishads. The main challenge to this Ordinance is based on the legislative competence of the Governor to issue such an Ordinance which provides for postponement of the General Elections to these two Zilla Parishads up to and inclusive 30th June, 1981 i.e. beyond six weeks from the reassembly of the Legislature which is scheduled to assemble on 8th Dec., 1980. The said Ordinance is also challenged on the ground that it is issued in the mala fide exercise of the power conferred upon the Governor by Article 213 of the Constitution of India.

2. It is an admitted position that these two Zilla Parishads were constituted some time in the year 1974 and their tenure as prescribed by Section 10 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (hereinafter called 'the Zilla Parishad Act') expired by end of March 1980. Thereafter the State Government exercised its power under Sub-section (3) of Section 10 of the Zilla Parishad Act and initially extended the period up to 30th June 1980 vide Order dated 24th March, 1980. This period was subsequently extended up to 30th Sept., 1980. Thereafter on 25th September, 1980 the Governor of Maharashtra in exercise of the power conferred upon him under Article 213 of the Constitution of India, promulgated an Ordinance No. VIII of 1980 postponing the elections till 30th June, 1981 as well as for making a provision for appointment of an Administrator. Thus, admittedly the term of office of the Councillors came to an end by the 1st of April, 1980 and under the second proviso to Sub-section (2) of Section 10 of the Zilla Parishad Act it was not open for the Government to extend the term of Councillors beyond six months, and this seems to be the occasion for issuing the impugned Ordinance. It is an admitted position that both the Houses of the Legislature were not in session when the impugned Ordinance was issued. However, it is contended by Mr. Deshmukh as well as Mr. Bhimrao Naik, the learned Counsel appearing for the petitioners that under Article 213 of the Constitution of India and particularly in view of the provisions of Sub-article (2) of the said Article it was not open to the Governor to postpone the elections beyond the expiration of six weeks from the re-assembly of the Legislature which is scheduled to be held on 8th December 1980. Thus, according to the learned Counsel the postponement of the elections up to and inclusive of 30th June, 1981 is ultra vires the powers conferred upon the Governor under Article 213 of the Constitution of India, which only confers a power upon the Governor to issue an Ordinance to make a transitory provision when both the Houses of the Legislature are not in session.

3. It is not possible for us to accept this contention. Article 213(1) of the Constitution of India confers a power upon the Governor to promulgate an Ordinance during the recess of the Legislature when he is satisfied that circumstances exist which render it necessary for him to take immediate action. The power conferred upon the Governor is subject to the conditions referred to in Sub-article (2) of Article 213 of the Constitution which reads as under:

'(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance--

(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and

(b) may be withdrawn at any time by the Governor.

Explanation.-- Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dales, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void :

Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.'

Sub-article (2) in terms lays down that the Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor. Therefore, the power of the Governor to issue an Ordinance is co-extensive with the power conferred upon the Legislature of the State.

4. It is not disputed before us, nor it could be disputed that it is open to the Legislature to postpone the elections to any date inclusive of 30th June 1981. If this is so, then in our opinion it is also open to the Governor to exercise the same power by promulgating an Ordinance, obviously subject to the conditions laid down in Sub-article (2) of Article 213 of the Constitution of India, viz. that the said Ordinance will have to be laid before the Legislative Assembly or the Council before the expiration of six weeks from the reassembly of the Legislature, etc. The Assembly is to reassemble on 8th Dec., 1980 and in the normal course this Ordinance will be placed before the Legislature. So far as the competence of the Governor in the matter of issuing of an Ordinance is concerned, as there is no prohibition in Article 213(1) of the Constitution of India in this behalf, in our opinion, it was quite competent for the Governor to postpone the elections even beyond the expiration of the six weeks from the reassembly of the Legislature. This is more so in view of Sub-article (2) of Article 213 of the Constitution of India which in specific terms lays down that the Ordinance promulgated shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor. In this connection a reference could also be made to the provisions of Clause (3) of Article 213. Under that clause, if and so far as an Ordinance under this Article makes any provisions which would not be valid, if enacted in an Act of the Legislature of the State, assented to by the Governor, it shall be void. Thus both in negative and positive form the power of the Governor to legislate by an Ordinance is made co-extensive with that of the State Legislature except the fact that the Ordinance can have only limited duration. Hence the object which can be achieved by means of regular legislation by the Legislature can also be achieved by an Ordinance. Therefore an Ordinance may enact provisions, the effect of which may continue even after the expiry of the Ordinance. Therefore by an Ordinance the term of the Zilla Parishad can be extended even beyond the life of the Ordinance itself. A similar view seems to have been taken by the Calcutta High Court in : AIR1952Cal907 Haran Chandra v. State of West Bengal. While dealing with such a contention this is what the Calcutta High Court observed in paragraph 27 of the said decision :

'27. It was also contended by Mr. Sen that the proviso to Section 6 of the Ordinance 3 of 1948 is ultra vires as the Governor had no power by an Ordinance to make a provision which would endure beyond the life of the Ordinance. Consequently the provision that the term of office of members of the District Board may extend up to two years is bad. This argument also appears to me to have no substance. As I have pointed out before, there is no limitation put upon the Ordinance-making power of the Governor and so he can legislate by Ordinance in any manner in which the Provincial Legislature can legislate subject to this that the duration of the Ordinance shall be limited as prescribed in the Government of India Act.'

We are in respectful agreement with these observations of the Calcutta High Court.

5. In this context a reference could also be usefully made to a decision of the Supreme Court in State of Orissa v. Bhupendra Kumar Bose, : AIR1962SC945 , wherein the Supreme Court has upheld the validity of the Orissa Municipal Election Validation Ordinance. By this Ordinance the election held to the Cuttack Municipality which had been declared invalid by the High Court by its earlier judgment was validated. While negativing the contention that as soon as the Ordinance expired the validity of the election came to an end and their invalidity was revived, the Supreme Court held that the rights created by the Ordinance endure and last even after the expiry of the Ordinance. Therefore there is no substance in this contention raised on behalf of the petitioners.

6. The petitioner have also challenged this Ordinance on the ground that it has been issued in colourable exercise of the powers vested in the Governor and is actuated by the corrupt motive and bad faith. In substance it is the contention of the petitioners that the Ordinance is issued by the Governor at the instance and on the advice given by the Ministry headed by Congress (I) Group. It is also alleged that the reasons given for issuance of the Ordinance viz. that due to the monsoon season and other administrative difficulties, it has not been convenient and feasible to hold the general elections before 30th September 1980 and thereafter the Collectors and their staff and other concerned Officers in these two districts are now required to direct their efforts towards discharging their duties connected with the 1981 Census of India operations, can hardly stand to reason, and are also false.

7. During the course of arguments it was contended by the learned Counsel that if the assembly bye-elections could be held during this period, these are hardly reasons for postponement of Zilla Parishad elections. An allegation is also made in the petition that the Ordinance is issued as a result of the pressure brought by the Congress (I) workers and M.L.As. in the District. The petitioners have made a reference to certain facts from which according to the petitioners it is deal that every attempt was made by the Congress (I) workers to remove the present office bearers and ultimately when they could not succeed, they thought it fit to resort to the remedy of issuing Ordinance through the Governor of Maharashtra. The petitioners further alleged that the concerned Ministry has not apprised the Governor of all the facts and, therefore, it was not possible for the Governor to apply his mind to the relevant facts before issuing the Ordinance and he is only guided by the advice given to him by the concerned Ministry which is actuated by corrupt motives. It is also alleged by the petitioners that because of the rising prices and the failure of the Government to administer the State properly, the ruling party is not sure of success in the election and, therefore, they have resorted to the method of ruling the State by Ordinances and the present Ordinance is the outcome of this political manoeuvring. It is not possible for us to accept any of these contentions.

8. From the bare reading of these allegations it is quite obvious that no specific allegations are made against the Governor in his personal capacity. These allegations are denied by fee respondent in the affidavit filed on their behalf. The Under Secretary to the Government of Maharashtra in the Rural Development Department as well as the Collectors of the Districts have filed the affidavits in reply. The Under Secretary has denied the allegation that the Ordinance is motivated by bad faith or corrupt motive. He had also denied that there has been any mala fides on the part of the Ministers of ministry concerned. According to the Under Secretary, the Administrative staff would be busy with the Census work from September 1980 to December 1980. He has also stated in his affidavit that all the relevant facts were placed before the Governor before the impugned Ordinance was issued. He has further clarified the position by saying that the Councillors of these Zilla Parishads have already enjoyed full term of six years, and therefore, there could be no complaint. According to him as the staff required for holding elections is busy with the Census operations which are of national importance and bad to be completed within the prescribed time limit, it is not possible for the State to hold fresh elections immediately. The Government also came to the conclusion that at the full term is already enjoyed by the Councillors of the Zilla Parishads, it would not be feasible nor desirable to give them any further extension. According to the Under Secretary the elections held after the Census work is over and when the Administrator is in charge of the Zilla Parishad, would be more democratic and would reflect the views of the people in better manner. He denied the allegations that pressure of any nature was brought on the Governor for issuing the Ordinance. He has further stated on oath that in any event this Ordinance will be placed before the next Session of the Assembly and the Council to be held at Nagpur. Thus in substance all the allegations made in the petition are denied by the respondents.

9. It cannot be forgotten that in view of the provisions of Article 163(3) of the Constitution of India, this Court cannot enquire into the question as to whether any and if so what advice was tendered by the Ministers to the Governor. From the recitals of the Ordinance itself it is quite clear that after applying his mind the Governor came to the conclusion that as the Collectors and their staff and other concerned officers of the District are required to direct their efforts towards discharging their duties connected with the 1981 census till the middle of March 1981, it would not be practicable to hold general elections and to complete all the singes thereof before the end of June 1981. As to why the elections could not be completed before 30th of September 1980, it is stated in the Ordinance that due to the monsoon season and other administrative difficulties it has not been convenient and feasible to hold the elections before that day. The existence of these circumstances is not disputed. Further, the burden of proving the mala fides heavily lies on the petitioners. The petitioners have obviously not discharged the said burden. Further it is well established that mere allegations of mala fides would not be enough. The burden to establish the said mala fides is upon the person who alleges. The allegations of mala fides are often made very easily and light-heartedly without placing any material in support of such plea. Normally the very seriousness of the allegations demands credible proof of high order in support of such allegations. Such proof is wholly lacking in the present case.

10. In view of the proviso to Sub-section (2) of Section 10 of the Zilla Parishad Act, if the further extension of the terms was not possible then issuance of an Ordinance was obviously necessary for making a provision for postponement of elections. If while making such a provision the Governor thought it expedient in the interest of the administration of the Zilla Parishad that a provision should be made for dissolution of the Zilla Parishad and also for appointment of the Administrator, then these provisions could safely be termed as consequential to achieve the main object of the Ordinance itself. The appointment of an Administrator will obviously be helpful in holding of fresh elections in a free and fair atmosphere. It is no doubt true that the bye-elections to the Legislative Assembly are being held during this period but it cannot be forgotten that the authority to hold these elections is not vested in the State Government, or Governor. These elections are held by the Election Commission upon which the State Government had no direct control, therefore, fop that reason only it cannot be said that the Ordinance is issued in the colourable exercise of the power.

11. Shri C.J. Sawant, the learned Counsel for the respondents has also contended before us that it is not open to this Court to enquire into the motive behind the issuance of the Ordinance. In this context Shri Sawant has placed strong reliance upon the decisions of the Supreme Court in R.C. Gajapati Narayan Deo v. State of Orissa, : [1954]1SCR1 as well as R.M.D.C. Pvt. Ltd. v. State of Mysore, : [1962]3SCR230 . Relying upon these decisions it is contended by Shri Sawant that if the Governor was competent to issue the impugned Ordinance then the motives which impelled him to act are really irrelevant. He has also placed reliance upon the following observations of the Supreme Court in S.K.G. Sugar Pvt Ltd. v. State of Bihar, : [1975]1SCR312 :

'15. We shall take the last contention first. Barring those cases where the Governor has to obtain previous instructions from the President, the Governor's power to promulgate Ordinances under Article 213 is subject to two conditions, namely:

(a) that the house or houses, as the case may be of the State Legislature must not be in session when the Ordinance is issued; and

(b) the Governor must be satisfied as to the existence of circumstances which render it necessary for him to take immediate action.

16. There is no dispute with regard to the satisfaction of the first condition. Existence of condition (b) only is questioned. It is however well settled that the necessity of immediate action and of promulgating an Ordinance is a matter purely for the subjective satisfaction of the Governor. He is the sole Judge as to the existence of the circumstances necessitating the making of an Ordinance. His satisfaction is not a justiciable matter. It cannot be questioned on ground of error of judgment or otherwise in Court. The contention is devoid of merit. Moreover, after the coming into force of the President's Act 8 of 1969, this question had become merely academic.'

12. On the other hand reliance was placed by Shri Bhimrao Naik the learned Counsel appearing for the petitioner upon certain observations of the Supreme Court in State of Rajasthan v. Union of India : [1978]1SCR1 . According to Shri Naik from this decision of the Supreme Court it is quite clear that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, then this Court has jurisdiction to examine it, because in that case there is no satisfaction in regard to the matter regarding which the Governor is required to be satisfied. The Ordinance cannot be issued unless the Governor is satisfied about the circumstances existing which render it necessary for him to take immediate action of promulgating an Ordinance. When the satisfaction is challenged on the ground of mala fides then in the eye of law there is no satisfaction at all, and therefore it is open to the petitioners to challenge the Ordinance on the grounds of mala fides. Shri Naik has further contended that this position is made further clear by the legislature itself by omitting Sub-article (4) of Article 213 of the Constitution of India by Constitution (44th Amendment) Act, 1978. According to Shri Naik this amendment to Sub-article (4) of Article 213 makes the intention of the legislature very clear. According to the learned Counsel in view of the deletion of Sub-article (4) of Article 213 the law laid down by the Supreme Court in S.K.G. Sugar Pvt. Ltd. v. State of Bihar : [1975]1SCR312 , is no more good law. In the view which we have taken it is not necessary for us to probe into this question any further.

13. It is also not possible for us to accept the contention of the petitioner, that to avoid normal course of legislation by Legislature the Government is indulging in rule of ordinances only, so as to avoid debate or scrutiny, before the enactment is passed by the houses of Legislature. It was strenuously contended by the petitioners, that by dissolving the Zilla Parishads and thereafter by making appointments of the Administrators the Government wants to approach the Legislature with a fait accompli, leaving no alternative for the Legislature but to approve the action. According to the petitioner any debate which can now take place before the Legislature will be in the nature of postmortem. It is not possible for us to accept this contention in view of the peculiar facts of this case. In the present case it cannot be forgotten that the petitioners have enjoyed then full term of six years as Councillors or office bearers. Not only this, they have also enjoyed the extended term of six months beyond which in no case the said term could be extended in view of the proviso to Sub-section (2) of Section 10 of the Zilla Parishad Act. Therefore, as a matter of fact the petitioners could have no complaint. It is no doubt true that under Sub-section (3) of Section 11 the terms of the outgoing Councillors is deemed to extend to and expire with, the day before the first meeting of the Zilla Parishad; but, if the present Ordinance was not issued, it was obligatory on the part of the concerned authorities to hold the elections before the expiry of the extended period. Holding of such an election was not possible for the reasons disclosed in the Ordinance itself. Therefore at least in this case it cannot be said that the Ordinance was wholly unwarranted.

In the result therefore the petition must fail. Hence Rule is discharged in both the petitions. However, in the circumstances of the case there will be no orders as to costs.

14. Petition dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //