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Prem NaraIn Tandon Vs. State of Uttar Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberWrit Petition No. 16 of 1959
Judge
Reported inAIR1960All205
ActsUttar Pradesh Universities Ordinance, 1959; Constitution of India - Articles 200, 213 and 226
AppellantPrem NaraIn Tandon
RespondentState of Uttar Pradesh and anr.
Appellant AdvocateB.K. Dhaon, Adv.
Respondent AdvocateAdv.-General, ;Standing Counsel and ;U.S. Srivastava, Adv.
DispositionWrit petitions dismissed
Excerpt:
(i) constitution - validity of ordinance - articles 200 proviso and 213 proviso of constitution of india and u. p. universities ordinance, 1959 - ordinance passed during pendency of case before high court - affecting rights of parties - will not derogate powers of high court. (ii) power of governor to promulgate ordinance - article 213 of constitution of india - governor promulgated ordinance on being satisfied of need for ordinance - ordinance cannot be challenged in court. (iii) writ petitions - article 226 of constitution of india - issuing writs is exclusive and distinctive jurisdiction of high court - allowing of writ petition is a total discretion of high court. - - ' it is, therefore, hit by article 213 read with article 200. article 213 of the constitution of india provides as.....v.d. bhargava, j.1. these are three connected writ petitions filed by three members two of whom, that is, anand nartin and sidh nath misra petitioners in writ petitions nos. 222 and 232 of 1958 had been elected as members of the court of the lucknow university, while prem narain tandon petitioner in writ petition no. 16 of 1959 was nominated by the chancellor as member of the executive council of the lucknow university. petitioner anand narain had been elected on 7-8-1956 for three years and his term expires on6-8-1959. petitioner sidh nath misra was elected on 4-8-1956 for a period of three years and his term expires on 3-8-1959. prem narain tandon was nominated on 9-10-1956 for a period of three years and his term expires on 8-10-1959.2. lucknow university act (act v of 1920) is the.....
Judgment:

V.D. Bhargava, J.

1. These are three connected writ petitions filed by three members two of whom, that is, Anand Nartin and Sidh Nath Misra petitioners in writ petitions Nos. 222 and 232 of 1958 had been elected as members of the Court of the Lucknow University, while Prem Narain Tandon petitioner in writ petition No. 16 of 1959 was nominated by the Chancellor as member of the Executive Council of the Lucknow University. Petitioner Anand Narain had been elected on 7-8-1956 for three years and his term expires on

6-8-1959. Petitioner Sidh Nath Misra was elected on 4-8-1956 for a period of three years and his term expires on 3-8-1959. Prem Narain Tandon was nominated on 9-10-1956 for a period of three years and his term expires on 8-10-1959.

2. Lucknow University Act (Act V of 1920) is the main Act which had been amended several times later. The important amendment in question is the amendment of the Lucknow University Act by Act VI of 1955, which came into force on 23-3-[1955. According to that Act as amended by Removal of Difficulties Orders of the State Government and statutes framed thereunder fifteen members were to be elected for the court of the University from amongst those donors, who had given donations between Rs. 500/- and Rs. 20,000/-, thirty members were to be elected from the constituency of registered graduates and five members to be nominated to the Executive Council of the University by the Chancellor.

Anand Narain petitioner was one of those who had been elected from the donors' constituency, Sidh Nath Misra from the registered graduates constituency while Prem Narain Tandon had been nominated to the Executive Council. There have been about six orders named as Removal of Difficulties Order, they being called first, second, third, fourth, fifth) and sixth order. Among them Removal of Difficulties (Fourth) Order was issued by the respondent No, 1, the State Government by which the Removal of Difficulties 2nd Order was amended to the extent that the authorities constituted prior to the commencement of Act VI of 1958, shall continue not later than 15-1-1959, notwithstanding the provisions of the Act or the Statutes in force before 7-5-1958. 7-5-1958 is the date on which the Statutes were framed under Lucknow University (Amendment) Act No. 6 of 1958.

The effect of this order was that so far as Anand Narain was concerned, he was not to continue as a member of the court after 15-1-1959. Similarly Sidh Nath Misra was also not to continue as a member after that date. As new elections had to be made under the new set up, on 14-10-1958, respondent No. 2, that is, the Registrar of the Lucknow University, issued a notice calling for nominations under the new Statutes and Act VI of 1958 and fixed 29-10-1958 as the last date for filing nomination papers far the donor's constituency and by another notice dated 16-10-1958, the Registrar issued a notice calling for nominations under the new Statutes and Act VI of 1958 and fixed 31-10-1958 as the last date for filing nomination papers from the Registered Graduates Constituency. The petitioners Anand Narain and Sidh Nath Misra came to this Court with writ petitions on 24th October and 28th October respectively, and got an interim stay order from this Court staying the elections of the new members.

3. The nomination of Prem Narain Tandon was determined by the Removal of Difficulties (Sixth) Order of 1959 issued on 5-1-1959, which determined all nominations with effect from 16-1-1959. Petitioners Anand Narain and Sidh Nath Misra challenge the validity of the Removal of Difficulties (Fourth) Order of 1958 while the petitioner Prem Narain Tandon challenges the validity of the Removal of Difficulties (Sixth) Order of 1959.

4. At the outset it may be noticed that there are only just a few days left till when Sidh Nath Misra and Anand Narain are to continue as members of the court. As already mentioned Sidh Nath Misra's membership expires on 3-8-1959, and that of Anand Narain on 8th August. The right of Prem Narain also, to be a member of the Executive Council, would expire soon after, that is, on 8-10-1959-The writ petitions of Anand Narain and Sidh Nath Misra had been filed in October, 1958, and for about nine months, they have succeeded in their attempt by means of an interim stay order.

Since the period of Anand Narain and Sidh Nath Misra is about to expire, their writ petitions have no particular practical utility. Prem Narain Tandon also, in spite of the fact that his membership had been terminated from 16-1-1959 has continued to be a member by means of an ad interim stay order. To a great extent all the three petitions have succeeded virtually in their attempt to continue to be the members practically till the end of their term without their writs being decided,

5. By a notification No. 1422/XVII-246-1959 dated 22-6-1959 the Governor was pleased to issue the U. P. Universities Ordinance No. 1 of 1959 which) had been promulgated by the Governor on 22-6-11959. That amended the English translation of the Uttar Pradesh Vishwavidyalaya Adhyadesh, 1959 (Uttar Pradesh Adhyadesh Sankhya I of 1959), The said ordinance amended certain sections of the different Universities of the Uttar Pradesh including that of the Lucknow University, Allahabad University, Agra University and Gorakhpur University. In the present case we are concerned only with the amendment so far as Lucknow University is concerned. By Clause 4 of that ordinance the Lucknow University (Amendment) Act, 1957 was amended by making the following alterations :

(1) In Sub-section (2) of Section 11 for the word 'twelve' the word 'thirty' shall be substituted;

(2) after Section 11 the following shall be added as a new Section 11-A:

'11-A. The term of --

(i) any member elected or nominated to any Authority or Body of the University under the provisions of the Principal Act, or this Act or the Statutes framed under any of the said two Acts, or

(ii) any officer of the University and any member holding office in, or membership of an Authority or Body of, the University, as the case may be, by rotation in order of seniority or in order of preference in accordance with the provisions of the aforementioned Acts and Statutes, shall be, and be deemed to have been, determined with effect from the date or dates mentioned in the orders and notifications issued, or purporting to have been issued in this behalf by the State Government under this Act or the Statutes framed thereunder as if this Act had been in force on all material dates; anything contained in any law applicable to the University to the contrary notwithstanding;' and

(3) for Sub-section (1) of Section 12, the following shall be substituted :

(1) The State Government may, for the purposes of removing any difficulty particularly in relation to the transition from the provisions of the PrincipalAct to the provisions of that Act as amended by this Act, by order published in the official Gazette --

(a) direct that the Principal Act or the Principal Act as amended by this Act shall during such period as may be specified in the order, lake effect subject to such adaptations, whether by way of modification, addition, or omission, as it may deem to be necessary or expedient; or

(b) direct by whom and in what manner the powers, duties and functions of the University Authorities shall be exercised or discharged, as the case may be, till such time as they are constituted according to the Statutes framed under Section 11; or

(c) make such other temporary provisions as it may deem to be necessary or expedient: Provided that no such order shall be made after thirty months from the date of commencement of this Act.'

6. This ordinance has in effect given legality to the different Removal of Difficulties Orders that had been passed before that date. In any event, the new Section 11-A determined the term of all elected and nominated members with effect from the date mentioned in the orders and notifications issued on behalf of the State Government under the Lucknow University (Amendment) Act, 1957 or the statutes framed thereunder, that is to say it legalised those orders and unless the validity of this ordinance is challenged on the ground of being beyond the jurisdiction of the Governor or being ultra vires or unconstitutional or on any other ground, the writ petitions have no force. It is now, after the issuance of this' ordinance, not open to the petitioners to challenge the orders which had been passed previously.

Even if for the sake of argument it be accepted that those orders were unconstitutional or illegal, but since the notifications issued under those orders have been now legalised by this ordinance, we do not think it is open to the petitioners to argue their petitions on the original grounds. Therefore, Sri B.K. Dhawan counsel for the applicants rightly conceded that the original grounds on which the petitions were filed have ceased to exist and further conceded that in case this ordinance cannot be challenged, he has no right to ask for the issue of a writ. He, however, attempted to challenge this ordinance on grounds inter alia that this ordinance is unconstitutional, that it is not a bona fide act on behalf of the Governor, that this ordinance is not retrospective and, in any event, cannot affect the vested rights of the petitioners in a pending proceeding in a court of law.

7. The first ground on which this ordinance was attacked was that 'it has been promulgated without instructions from the President.' It is, therefore, hit by Article 213 read with Article 200. Article 213 of the Constitution of India provides as follows :

'If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in sessions, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action he may promulgate such Ordinances as the circumstances appear to him to require :

Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if --

(a) .......

(b) .......

(c) An Act of Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.'

It was argued that it was one of those Legislations, which did require the assent of the President

because it would come under the second proviso of: Article 200 which is in the following words :

'Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.'

The learned counsel for the applicants contended that the Legislature has, in effect, taken away the powers of the High Court and had made it helpless on account of this Ordinance and, therefore, it derogated the High Court from the powers, which it possessed under the Constitution, and it being an Ordinance of such a nature by proviso (c) to Article 213 it should have received instructions from the President before it could be promulgated.

8. We are unable to agree with this contention. This Ordinance in no way purports to affect the powers of the High Court. It may have Effected the rights of a parly before the High Court but the powers of the High Court have remained the same. If an Act is passed during the pendency of a case which affects the rights of the parties, it cannot be said that there has been any derogation from the powers of the High Court which endangers the position of that Court which by the Constitution it is designed to fill. This argument, therefore, does not affect the validity of the Ordinance.

9. It was urged that this Ordinance is not a bona fide one. The Legislature had their sittings some time before this Ordinance was passed and they were again going to sit in the month of July and, it is only a few days before the session of the Assembly was to start, that this Ordinance was passed and, therefore, the Governor had abrogated the-powers of the Legislature. It was further argued that there did not appear to be any particular necessity for passing any Ordinance at that particular time and there was no occasion for the Governor on 22-6-1959 to promulgate that order. The validity of an Ordinance promulgated by a Governor on the ground that there was sufficient reason for promulgating the Ordinance cannot be questioned in a court of law.

By Article 213 it is the Governor, who is to be satisfied that circumstances exist which render it necessary for him to take immediate action and we cannot substitute the satisfaction of the Governor with the satisfaction of the Court. The only condition by which a Governor is restricted and which is an absolute condition, is that the Legislature must not be in session at that time. Even if the Legislature is in session the Governor may prorogue the Legislature and thereafter make the ordinance.

10. Lakhi Narayan Das v. Province of Bihar, AIR 1950 FC 59, was a case under Section 88(1) of the Government of India Act (1935), which section was equivalent to Article 213. It was held there that:

'The language of Section 88(1) shows clearly that it is the Governor and the Governor alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an Ordinance. The existence of such a necessity is not a justiciable matter which the Courts could be called upon to determine by applying an objective test.' In Emperor v. Benoarilal, 72 Ind App 57: (AIR 1045 PC 48) arid in Bhagat Singh v. Emperor , their Lordships of the Privy Council had held on a similar provision for the Governor General, that the emergency which calls' for immediate action has to be judged by the Governor General alone. On promulgating an Ordinance, the Governor-General is not bound as a matter of law to expound reasons therefor, nor is he bound to prove affirmatively in a Court of law that a state of emergency did actually exist. In our opinion, Article 213 of the Constitution postulates only one condition, namely, the satisfaction of the Governor as to the existence of justifying circumstances which is not liable to be challenged in a Court of Law.

11. It is true that there are also some authorities for the principle of law that abuse of the power is no exercise of the power and it has been often held with the approval of the Privy Council that an order made mala ride under the powers given by an Act or Ordinance is no exercise of such powers. This was conceded by their Lordships of the House of Lords in Liversidge v. Anderson, 1942 AC 206, but in that case there should be definite evidence of mala fides. There is no material upon which we could hold that the orders were mala fide. Simply because they had been passed when the Legislatures were not in session or because they might affect the rights of parties in a pending litigation would be no ground to hold that the Ordinance was a mala fide one.

12. Apart from the fact that the circumstances in which an Ordinance is passed is not justiciable, we think that this Ordinance cannot be termed to be a mala fide one. It has been passed not only affecting the Lucknow University about which writ petitions are pending in this Court, but it has also amended Allahabad, Agra and Gorakhpur Universities Acts. It had been promulgated on 22-6-59 when the session of the University soon thereafter was going to start and that would be the right and proper time, if any change was required to be introduced, so that there may be a new set up of administration from the very beginning of the session.

13. The main theme of the argument of the learned counsel for the petitioners was that this Ordinance actually did not affect a pending petition. Reliance has been placed on the general principles of interpretation of a Statute. Reliance was also placed on the following Authorities by the learned counsel

for the applicants. The first case is United Provinces' v. Mt. Atina Begum where Sulaiman J. had held:

'Undoubtedly, an Act may in its operation be retrospective, and yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute does not compel them to do so. It is a well recognised rule that statutes should,, as far as possible be so interpreted, as not to affect vested rights adversely, particularly when they are being litigated. When a statute deprives a person of his right to sue or affects the power or jurisdiction of a Court in enforcing the law as it stands, its retrospective character must be clearly expressed. Ambiguities in it should not be removed by Courts, nor gaps filled up in order to widen its applicability. It is a well established principle that such statutes must be construed strictly and not given a liberal interpretation.'

There can be no dispute with the proposition laid down by the Federal Court and we most respectfully agree not only with these observations, but also with other observations which had been made in other cases, which had been cited by the learned counsel for the petitioners,

14. Another case on which reliance was placed is Sudkya Ramji v. Mahammed Issak : AIR1950Bom236 , wherein it was held that :

'Where the statute is passed pending an action as distinct from 'after the date of the cause of action' it has been held that strong and distinct words are necessary to alter the vested rights of either litigant as they stood at the commencement of action.'

Thus according to this decision we must interpret the statute itself in order to see whether there are distinct and strong words or not, which have altered the vested rights of the petitioners. If they are, it is open to Legislature to do so, in spite of the fact that they are affected in a pending suit. The distinction between the rights in a pending suit and other rights is usually drawn, when the Legislature passes a Statute which affects the rights of bringing a suit or a Statute affecting the right of appeal or affecting jurisdiction of a Court. In that event, there may be a pertinent question which may arise as to whether the rights to proceed with the suit or appeal without the Act being made specially retrospective, would affect the pending suits or the right of appeal.

But if a Statute takes away a certain right from a certain party retrospectively, in our opinion, his rights would be deemed to have been taken away, whether they are involved in a pending suit or not. The other cases, as we shall presently see, cited by the learned counsel, are also cases where it was the right of suit or appeal or the jurisdiction of the Court, which had been affected and the Court was called upon to see whether the right of suit or appeal was affected. These cases in our opinion do not directly apply to the facts of the present case.

15. The case of Sylhet Loan and Banking Co. Ltd. v. Syed Ahmad Majtoba, AIR 1946 Cal 337, is again a case in which the right of suit had been affected and in that case it was held that unless there was a clear intention of the Legislature to the effect that the pending suit would also be affected, new legislation would not affect the pending cases. By an amending act of Assam Money Lenders Act, it was provided 'that no money lender shall, in respect of any loan made before or after the commencement of the Act recover, on account of interest and principal, whether through Court or otherwise a sum greater in aggregate than double the principal of the loan.' On these terms their Lordships had held that the section was not retrospective and it was only to affect suits which were filed after the Act. It was on interpretation of language of that Statute that the Court had come to that conclusion.

16. The case of Sheopujan Rai v. Bishunath Rai : AIR1930All706 , cited by the learned counsel, was a case, where the Agra Pre-emption Act had been amended retrospectively and affected the pending suits and a Bench of this Court had held :

'It is well settled that a new enactment passed during the pendency of an action has not a retrospective effect unless either it expressly says so or it lays down a mere rule of procedure which it is the duty of Courts to follow. On the other hand, if the amendment relates to substantive rights, as distinct from the adjective law, it cannot affect vested rights and, therefore, would not be applicable to pending actions.'

On the basis of this observation it was argued thatsince this present Legislation is not a change in theadjective law but in the substantive law affectingvested rights therefore, it should not be deemed tobe retrospective. Their Lordships in that case cameto the conclusion : ,

'The Act before us is nothing like either of these two enactments and there is absolutely nothing -either in the body of the Act, its title, preamble, or marginal notes which would indicate that it was intended to have a retrospective effect.'

In the present case if we read Clause 4 of the Ordinance it is clear that it is meant to have a retrospective effect. It has been clearly mentioned there, that the term of a member 'shall be, and be deemed to have been determined with effect from the date or dates mentioned in the orders and notifications.' Therefore, this Ordinance was to come retrospectively into effect from the date on which the previous notifications had been issued. There cannot be any manner of doubt, that, so far as the reading of this Ordinance was concerned, it was a piece of legislation which retrospectively affected a vested right and there had been no reservation of the rights of a petitioner in any pending action. Since in our opinion there are clear words in the Ordinance which snow that they are of a retrospective nature and they take away the rights of the petitioners, we need not cite further authorities relied upon by the learned counsel for the petitioners.

Every decision has laid down the general proposition that unless a Legislation makes an Act specifically retrospective, it shall not affect an existing vested right and if according to our interpretation the present Ordinance has not only impliedly and by its intention but expressly taken away the rights retrospectively, then, by no manner of interpretation of Statutes, it can be said that the vested rights have been preserved. It is only when a Statute does not specially and in clear words take away a vested right that a Statute will be deemed to be prospective. It is open to a Legislature to take away a vested right by legislation, particularly if it had been vested by a legislation itself.

17. The only case which to us appears to he on the point is K.C. Mukherjee v. Mt. Ramratan Kuer . That was a case where during the pendency of the appeal before the Privy Council a legislation was passed which took away the vested rights of the appellant before the Privy Council and their Lordships said:

'In these circumstances it appears to their Lordships that unless some saving can be implied as regards occupancy holdings which at the date of the commencement of the Act are in question in a pending suit, Sections 26 (N) must be applied to the present case and the plaintiff's appeal must fail in limine. Their Lordships are of opinion that no such saving can be implied.'

In that case their Lordships had made it clear that legislations which affect suits are different from those in which vested rights are directly taken away. They have further observed:

'Section 26(N) is not a provision to the effect that no action shall lie in certain circumstances, nor has it any reference directly to litigation. Its provision is that every person claiming an interest as a landlord shall be deemed to have given his consent to every transfer made before 1-1-1923. This is retrospective. .....'

The present legislation also is not about certain action being brought in certain circumstances, nor it has any reference directly to any litigation. In the circumstances we are definitely of opinion that after the coming into force of this Ordinance the petitioners have no right left and, therefore, the petitions must be dismissed.

18. Apart from this Ordinance, winch his taken away the rights, we must bear in mind that the jurisdiction given under Article 226 of the Constitution is a special and peculiar right. It is for the enforcement of fundamental rights conferred by Part III of the Constitution or for any other purpose. So far as the enforcement of the fundamental rights is concerned, it may be that the petitioner might, insist, as of right, on their enforcement but so far as other matters are concerned, it is purely in the discretionary jurisdiction of the High Court, whether it would grant it or refuse it. Their Lordships of the Supreme Court have In very clear terms explained the jurisdiction of this Court. In Sangram Singh v. Election Tribunal, Kotah : [1955]2SCR1 , they observed :

'That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, and should not, act us Courts of appeal under Article 226. Their powersare purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of cases unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense..... .Therefore, writ petitions should not be lightly entertained in this class of case.'

Universities are autonomous bodies and the Courts should be reluctant, as far as possible, to interfere with the internal administration of the University. There should be no occasion for any interference unless there is a palpable violation of law, which has occasioned injustice in a broad and general sense. In the present case we do not think that the rights of the petitioners were such which needed any interference by this Court, when their terms were determined.

19. It is not a case where the petitioners alone had been removed and certain other persons had been substituted. The entire body of management including the Court and the executive council was to be overhauled. The present petitioners had every right and possibly would have been again elected or nominated, particularly if they had rendered useful service on the bodies of the University, We think that as in case, the entire management was desired to be changed, this Court should hesitate to interfere in the management of an autonomous educational body.

20. Another ground on which, at the present moment, we should not grant a relief is that in any event, even if the rights of the petitioners had not been taken away (sic) retrospectively, they, at least, had been taken away from the date of the Ordinance^ that is, 22-6-1959. At the present moment granting, any relief would be virtually ineffective and merely of academic interest. The Courts should be reluctant: to grant such reliefs. This was the view also taken by a single Judge of the Calcutta High Court in Subodh Kumar Bose v. Commissioner of Krishna-nagar Municipality : AIR1956Cal393 .

21. No other arguments were urged before us.

22. We see no force in any of the writ petitions, which, we, accordingly, dismiss with costs andassess the costs of the opposite parties at Rs. 100/-in each petition, which the (sic) they are entitled toreceive from the petitioners.


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