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Moti Ram Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberWrit Petn. No. 18 of 1963
Judge
Reported inAIR1966HP25
ActsGovernment of Union Territories Act, 1963 - Sections 14, 54 and 54(2); ;Constitution of India - Article 239A and 239A(2); ;Territorial Councils Act, 1956
AppellantMoti Ram
RespondentUnion of India (Uoi) and ors.
Appellant Advocate Manohar Lal, Adv.
Respondent Advocate Sarvshri K.L. Misra,; R.H. Dhebar and; M.N. Shukla,
DispositionPetition dismissed
Cases ReferredCalcutta Gas Co. (Private) Ltd v. State of West Bengal
Excerpt:
constitution - ultra vires - section 54 of government of union territories act, 1963 and article 14 of constitution of india - petitioner challenges constitutional validity of section 54 and due constitution of legislative assembly under section 54 without holding elections - contended that converting members of territorial council into members of legislative assembly unconstitutional as under article 239 no legislative assembly can be constituted without holding elections - contended that section 54 violative of article 14 - sought declaration of section 54 as unconstitutional - elected members of territorial council if placed in same position in which they would have been placed in legislative assembly then such members can be said to be duly nominated or elected without holding.....orderom parkash, j.1. this writ petition, under aricle 226 of the constitution of india, raises the question of the constitutional validity of section 54 of the government of union territories act, 1963, and of the due constitution of the legislative assembly, himachal pradesh, constituted, under the provisions of that section 2. before the constitution of the present legislative assembly, a territorial council, constituted, under the territorial councils acl, 1956, was functioning in the union terri tory of himachal pradesh respondents nos. 4 to 47 were the members of the last territorial council, constituted on the 3rd august, 1962. respondent no 3 was not a member of that territorial council. he was elected to the present legislative assembly by direct election. 3. in 1953, parliament.....
Judgment:
ORDER

Om Parkash, J.

1. This writ petition, under Aricle 226 of the Constitution of India, raises the question of the constitutional validity of Section 54 of the Government of Union Territories Act, 1963, and of the due constitution of the Legislative Assembly, Himachal Pradesh, constituted, under the provisions of that section

2. Before the Constitution of the present Legislative Assembly, a Territorial Council, constituted, under the Territorial Councils Acl, 1956, was functioning in the Union terri tory of Himachal Pradesh Respondents Nos. 4 to 47 were the members of the last Territorial Council, constituted on the 3rd August, 1962. Respondent No 3 was not a member of that Territorial Council. He was elected to the present Legislative Assembly by direct election.

3. In 1953, Parliament enacted the Government of Union Territories Act, making pro vision for Legislative Assemblies and Councils of Ministers for certain Union territories This Act had come into force on the 1st July, 1963 and had repealed the Territorial Councils Act, 1956 Section 54 of the Government of Union Territories Act contains provisions for the constitution of provisional Legislative Assemblies Cor Union territories until regular Legislative Assemblies are duly constituted and summoned. Clause (c) of Sub-section (2) of that section provides that a member of the Territorial Council shall be deemed to have been elected or nominated, as the case, may be, to the provisional Legislative Assembly and that, accordingly, the Legislative Assembly of a Union territory, shall be deemed to be duly constituted from the commencement of the Acl. The effect of the provisions of Clause (c) was that the members of the Territorial Council, Himachal Pradesh, became the members of the Legislative Assembly and a duly constituted provisional Legislative Assembly for Himachal Pradesh came into existence on the 1st July, 1963.

4. The petitioner, who bad fought election, to the Territorial Council, from Saraj Constituency, in Mandi District, against respondent No. 4, but was defeated, has filed the present writ-petition, challenging the constitutional validity of Section 54 of the Government of Union Territories Act, and the due constitution of the provisional Legislative Assembly on the following grounds:

(1) Parliament had no power, under Article 239A of the Constitution of India, to make a law, providing for the constitution of a Legislative Assemble without holding direct election and hence the provisions of Section 51 converting the members of the Territorial Council into members of the Legislative Assembly without holding election were beyond the legislative competence of Parliament and void.

2. Section 54 is viola live of Article 14 of the Constitution inasmuch as the effect of its provisions is that the voters of Himachal Pradesh have been deprived of their constitutional right to vote and discriminated against.

3. Election, by a fiction of law, brought about by Section 54, is wholly unconstitutional.

4. The provisions of Section 54 offend against the spirit of the Constitution and are a colourable piece of legislation inasmuch as they have converted members of the Territorial Council into members of the Legislative Assembly though the qualifications and disqualifications for membership of the Territorial Council were different from those for membership of the Legislative Assembly.

5. Respondents Nos. 5 to 47, who were members of the Territorial Council, and respondent No. 4, who was its Chairman, were disqualified for being chosen as members of the Legislative Assembly, under Section 14 of the Government of Union territories Act, as they held office of profit under the Government of the Union territory.

5. The prayer of the petitioner, in the writ-petition, is that Section 54 of the Government of Union Territories Act be declared as wholly unconstitutional and ultra vires and a writ of prohibition, quo warranto or such other writ or direction as may be considered appropriate, directing respondents Nos. 1 and 2 to forbear from giving effect to the aforesaid section and also directing respondents Nos. 3 to 47 to forbear from acting, in any manner, as mem-hers of the Legislative Assembly, may be issued.

6. A return, to the writ-petition, was filed only, on behalf of respondent No. 1, the Union of India, respondent No. 3, the Chief Minister, Himachal Pradesh, and the other two Ministers, respondents Nos. 4 and 11. But at the time of arguments, respondent No. 2, the Himachal Pradeah Administration, was also represented by counsel, besides respondents Nos. 1, 3, 4 and 11. Other respondents, though served remained absent. They were proceeded against ex parte. Respondents Nos. 1 to 4 and 11 have been, hereinafter, referred to as the contesting respondents.

7. In the return, filed on behalf of respon-dents Nos. 1, 3, 4 and 11, all the grounds, taken up, against the validity of Section 54 of the Government of Union Territories Act, in the writ petition, have been controverted

It is pleaded that the provisions of the aforesaid section were within the legislative competence of Parliament and were valid. It is pointed out that, under Article 239A of the Constitution, Parliament was competent to create a body, to function as legislature for Himachal Pradesh, without holding direct elec-tion. It is denied that the Constitution confers any right to vote on the people of Himachal Pradesh and that the voters were deprived of any constitutional right. It is pleaded that Section 54 does not create any hostile discrimination against the voters of Himachal Pradesh and is not violative of Article 14 of the Constitution. It is denied that election, by a Action of law, is unconstitutional. It is, further, denied that the provtalona of Section 54 offend against the spirit of the Constitution or are a colourable piece of legislation. It is pleaded that express provisions of law cannot be struck down on the ground that they offend against the spirit of the Constitution. It is, further, pleaded that the Government of Union Territories Act is a complete Code and it is not open to the petitioner to challenge the validity of its provisions, by comparing them, with the provisions of the Territorial Councils Act. The contention of the petitioner, that the members of the Territorial Council were not qualified for being chosen as members of the Legislative Assembly, is refuted. A preliminary objection that the petitioner has no locus standi to file the writ-petition, challenging the validity of Section 54 of the Government of Union Territories Act, as none of his constitutional or legal rights has been infringed, by the provisions of that section, has, also, been taken up.

8. Section 54 of the Government of Union Territories Act, whose constitutional validity has been challenged, in the writ-petition, is (omitting the portions which do not relate to Himachal Pradesh) as follows:

'Provisions as to provisional Legislative Assemblies of certain Union territories:

(1) In this section 'Constituency' means-

(a) in each of the Union territories of Himachal Pradesh,

...............................................

a territorial council constituency, provided in accordance with the provisions of the Territorial Councils Act, 1950 (103 of 1956) for the purpose of elections to a Territorial Council constituted under that Act:

(b) ....................

(2) Notwithstanding anything in this Act, until the legislative Assembly of each of the Union territories of Himachal Pradesh

...............................................

has been duly constituted and summoned to meet for the first session under and in accord-ance with the provisions of this Act, the following provisions shall apply in relation to the Legislative Assembly of each of those Union territories, namely:

(a) Every constituency in existence immediately before the commencement of this Act shall on and from such commencement be deemed to be an assembly constituency of the same name for the purpose of elections to the Legis-tative Assembly of the Union territory under this section;

(b) the scat reserved in any constituency for the scheduled castes in the Union territory of Himachal Pradesh shall be reserved in the assembly constituency of the same name for those castes:

(c) Every person who immediately before the commencement of this Act is a member elected from a constituency to fill a seat in the Territorial Council of Himachal Pradesh shall on and from such commencement repre-sent the assembly constituency of the same nanic in the Legislative Assembly and shall ho deemed to have been elected to the Legislative Assembly from that constituency, and every person who immediately before such commence ment is a member nominated to the Territorial Council by the Central Government shall be deemed to have been nominated to the Legislative Assembly; and accordingly on the commencement of this Act, the Legislative Assembly of the Union territory shall, without any further action or step being taken in this behalf, be deemed to be duly constituted:

Provided .........................................................................

...............................................

(3) The period of five years referred to in Section 5 shall in the case of a Legislative Assembly functioning under this section be deemed to have commenced,

(i) In the case of the Legislative Assembly of the Union territory of Himachal Pradesh, on the 3rd August, 1962;

(ii) .............................................;

(iii) .............................................;

(iv) .............................................;

(4) In other respects the provisions of Part II, shall, so far as may be, apply in relation to a Legislative Assembly functioning under this section as they apply in relation to a Legislative Assembly constituted under and in accordance with the provisions of that Part.'

9. At the time of arguments, the learned counsel for the petitioner, confined his attack, against the constitutional validity of Clause (c) of Sub-section (2), by which, the members of the Territorial Council, Himaehal Pradesh, have been declared to be elected or nominated to the Legislative Assembly and the Legislative Assembly has been declared to be duly consti-tuted, without direcl election or nomination.

His contention was that it was not within the legislative competence of Parliament, under Article 239A of the Constitution, to convert members of the Territorial Council, into members of the Legislative Assembly, and to declare the Legislative Assembly to be duly constituted, without holding direct election or without direct nomination and that the provisions of Clause (c) were wholly unconstitutional. According to the learned counsel, Article 239A empowered Parliament to create a Legislature, by direct election or nomination, and that it could not declare or continue any existing body as a Legislature. In this connection, the learned counsel pointed out that the words, 'create or continue were used in the old Article 240 of the Constitution, while only the word 'create' has been used in Article 239A and the word 'continue' has been omitted. This omission, the learned counsel contended, indicated that the intention was that an existing body should not be continued as a Legislature but a new body should be brought into existence to func tion as such. The learned counsel, also, argued that the principle of election, by a legal fiction.is unconstitutional.

10. The learned counsel, for the contest ing respondents, on the other hand, contended that, under Article 239A of the Constitution, Parliament was competent to create a body to function, as a Legislature for Himachal Pradesh, either by holding direct election or by declaring and recognising the members of an existing body, elected or nominated, to be the members of, and constituting, the Legislature. The learned counsel pointed out that there was nothing in Article 239A to indicate that the powers of Parliament, to create a body to function as a Legislature, were restricted to creation by direct election or nomination. So far as the omission of the word 'continue' from Article 239A was concerned, the learned counsel explained that it was unnecessary to use this word, in that Article, as no Legislative Assembly existed in any of the Union territories at the time of the insertion of the Article in the Constitution and, therefore, no question of continuing any Legislative Assembly could arise. It was, further, contended by the learned counsel that election, by a legal fiction, is not unconstitutional. In support of his contention, the learned counsel placed reliance on Vinod Kumar v. State of Himaehal Pradesh, AIR 1959 SC 223 and Jadab Singh v. Himaehal Pradesh Administration, AIR 1960 SC 1008.

11. Article 239A of the Constitution is as follows:

(1) Parliament may by law create for any of the Union territories of Himaehal Pradesh, Maniptir, Tripura, Goa, Daman and Diu, and Pondicherry-

(a) a body, whether nominated or elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or

(b) a Council of Ministers,

or both with such constitution, powers and functions in each case, as may be specified in the law.

(2) Any such law as is referred to in Clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of Article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.

12. The above Article does not expressly, or by necessary implication, lay down that the body, created to function as a Legislature, must necessarily be directly elected or nominated at the time of the creation. The manner of constitution of the body has been left entirely to the wisdom and discretion of Parliament. It may create the body, by direct election or nomination, or may declare and recognize an existing body, elected or nominated, as a Legislature. There is nothing in the Article to indicate-that there should be direct election or nomination at the time of creation of the body. The validity of the election or nomination of the members of the Territorial Council has not been challenged, in this writ-petition. It is, therefore, to be assumed, for the purposes of this writ-petition, that the members of the Territorial Council were validly elected or nominated. Parliament was competent under Article 239A, to constitute a Legislature, with those members, without resorting to direct election or nomination. Parliament was also competent to insert the deeming provision in Section 54, providing that those members shall be deemed to be elected or nominated to the Legislative Assembly, which shall be deemed to be duly constituted. Clause (2) of Article 239A confers very wide powers on Parliament, in this respect.

The contention of the learned counsel for the petitioner that election, by a legal fiction, is unconstitutional, is not supported by authority. On the other hand, the pronouncements of their Lordships of the Supreme Court, in AIR 1959 SC 223 and AIR 1960 SC 1008, lend support to the contention of the learned counsel for the contesting respondents that election by a legal fiction, is not unconstitutional.

In AIR 1959 SC 223, the facts were that a Bill, which subsequently became the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954, was pending before the Legislative Assembly, Himachal Pradesh, which had been constituted and WHS functioning, under the provisions of the Government of Part C States Act, 1951. Himachal Pradesh. at that time, was a Part C State. Pending the passage of the aforesaid Bill, Bilaspur. another Part C State, was united with Himachal Pradesh, under the provisions of the Himachal Pradesh and Bilaspur (New State) Act, 1954; the new State retaining the name of Himachal Pradesh. Section 15 of the Act read as follows:

'(1) Every sitting member of the Legislative Assembly of the existing State of Himachal Pradesh representing a constituency of the said State shall, on and from the commencement of this Act, represent the constituency of the same name in the new State and shall be deemed to have been elected to the Legislative Assembly of the new State by that constituency.

(2) As soon as may be after the commencement of this Act, there shall be held elections to fill those seals of the Legislative Assembly which have been allotted to the constituencies into which the part of the new State comprising the existing State of Bilaspur shall be divided.'

13. One of the questions, debated in AIR 1959 SC 223, supra, was as to what was the precise implication of Section 15(1), which, by a legal fiction, had made the members of the old Legislative Assembly, to be elected members of the Legislative Assembly of the new State. On that question, their Lordships observed:

'Section 15(1) of the New State Act only provides that each of the 36 members of the old Legislative Assembly of the old Himachal Pradesh shall on and from the commencement of the Act represent the constituency of the same name in the new Himachal Pradesh and shall be deemed to have been elected by that constituency. The purpose of this section is to obviate the necessity for going through the entire process of a fresh election so far as those 36 members were concerned. In other words, these 36 members were exempted from seeking election or from being elected and were bv a statutory fiction, taken as haying been elected to the Legislative Assemblv of the new Himachal Pradesh. By the operation of the deeming provision embodied in Section 15(1) the 30 members have been placed in the same position as they would have been placed in had they gone through the entire process of election and had been returned elected.'

14. The clear inference from the above observations, is that election, by a legal fiction, is not unconstitutional and that members' who are deemed to have been elected are placed in the same position in which they would have been placed had they fought the election and returned elected. The deeming provision in Clause (c) of Sub-section (2) of Section 54 of the Government of Union Territories Act is couched in words, similar to those, used in Section 15(1) above, so far as members are concerned; Clause (c) contains additional words, 'Legislative Assembly. ..... shall, without any further action or step being taken in this behalf, be deemed to be duly constituted' which did not occur in Section 15(1). The observations of their. Lordships, with respect to the deeming provision, contained in Section 15(1), are applicable to the deeming provision, contained in Clause (c). In view of those observations, it is to be held that election, by a statutory fiction is valid and that by the operation of the deeming provision in Clause (c), the members of the Territorial Council are to be taken to have been duly elect-ed or nominated to the Legislative Assembly, as if they bad gone through the entire process of fresh election or nomination and the, Legislative Assemblv is to be laken to have been duly constituted.

15. Though it was held, in AIR 1959 SC 223, that, by the operation of the provisions of Section 15(1), the members of the old Legislative Assembly of the old Himachal Pradesh would be deemed fo have been validly elected to the new Legislative Assembly of the new Himachal Pradesh. yet the Legislative Assembly, itself, was held not to have been duly constituted. The reason was that no notification, under Section 74 of the Representation of the People Act, 1951, had been issued. It was observed, by their Lordships, that Section 15(1) did not say that the 36 members, deemed to have been elected, shall, without more, constitute the Legislative Assembly and that the purpose of that section was not to constitute and bring into being the Legislative Assembly In the present case, the object of Section 54 of the Government of Union Territories Act is to constitute provisional Legislative Assemblies. Clause (c) of Subsection (2) of that section specifically provides that on the commencement of the Act, the Legislative Assembly of the Union Territory shall, without any further action or step being taken in this behalf, be deemed to be duly constituted. Such a provision did not exist in Section 15(1). The only conclusion from the clear language of Clause (c), is that, with the commencement of the Government of Union Territories Act, without any further action or step being taken, a duly constituted provisional Legislative Assembly, with the members of the Territorial Council, as its members, came into being, in Himachal Pradesh,

16. After the pronouncement of their Lordships in AIR 1959 SC 223, that the Legis-lative Assembly, which purported to pass the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954, was not a validly constituted Legislative Assembly and that the aforesaid Act was not a piece of validly enacted legislation, the President issued an Ordinance, validating the constitution and proceedings of the Legislative Assembly. This nance was replaced by Act 56 of 1958. Clauses (a) and (b) of Section 3 of the said Act provided that:

'Notwithstanding anything contained in any law or in any judgment, decree or order of any Court-

(a) the body of persons summoned to meet from time to time as the Himachal Pradesh Legislative Assembly (Himachal Pradesh Vidhan Sabha) during the period commencing on the 1st day of July, 1954, and ending with the 31st day of October, 1956, by the Lieutenant Governor of Himachal Pradesh in the exercise or purported exercise of the powers conferred on him by Section 9 of the Government of Part C States Act, 1951, shall be deemed for all purposes to have been the duly constituted Legislative Assembly of the new State of Himachal Pradesh formed under Section 3 of the Himachal Pradesh and Bilaspur (New State) Act, 1954;

(b) the persons who sat or voted or other wise took part in the proceedings of the new Legislative Assembly shall be deemed to have been entitled so to do as members.'

17. The constitutional validity of the provisions of Section 3 was questioned in AIR 1960 SC 1008. It was contended, before their Lordships, that the members of the old Legislative Assembly could not constitute a legislature for the now State as those persons were not elected or nominated in the manner prescribed by Article 240 of the Constitution, (as it stood before its amendment by the Constitution (Seventh Amendment) Act, 1956) and that Parliament had no authority to form a Legislative Assembly in violation of the terms of that Article.

Their Lordships did not accept the contention and upheld the constitutional validity of Act 56 of 1958 and of the deeming pro vision in Section 3. It was observed that Article 240 of the Constitution did not provide that the Legislative Assembly could not function unless the members thereof were expressly elected or nominated to the Legislative Assembly of it Part C State and that Parliament was competent to enact Act 56 of 1958, under Article 248 of the Constitution. The provisions, contained in Article 240 of the Constitution, as it stood before its amendment by the Constitution (Seventh Amendment) Act, 1956. were substantially the same as those contained in the present Article 239A The observations of their Lordships, made with respect to Article 240, apply with equal force, to Article 239A These observations are a clear authority for holding that Parliament is competent, under Article 239A of the Constitution, to enact a law, declaring that an existing body, elected or nominated, shall be deemed to constitute the Legislative Assembly for Himachal Pradesh and that election, by a legal fiction, is not unconstitutional The omission of the word. 'continue' which occurred in the old Article 240, from Article 239A, does not make any material difference to the above position. The word 'continue' was, possibly, used in the old Article 240, in order to empower Parliament to continue the old Legislative Assemblies which were functioning in some of the areas, which were constituted into Part C Stages, under the Constitution. No Legislative Assembly was functioning in any of the Union territories, at the time of the insertion of Article 239A, in 1962. There was, therefore, no question, at that time, of continuing any Legislative Assembly. In view of this, it might have been considered unnecessary to Use the word 'continue' along with 'create' in Article 239A.

18. The only conclusion, from the above discussion, is that Section 54 of the Government of Union Territories Act, was within the legislative competence of Parliament.

19. It was, next, contended, by the learned counsel for the petitioner, that Section 54 of the Government of Union Territories Act is violative of Article 14 of the Constitution and is void. His argument was that that section has introduced an arbitrary distinction, between the people of Union territories, and the people of States, inasmuch as it has deprived the people of Union territories to elect their Legislative Assemblies while the people of States invariably elect their Legislative Assemblies This arbitrary distinction, according to the learned counsel, infringes the equal protection clause in Article 14,

20. The learned counsel, for the contesting respondents, refuted the aforesaid contention of the learned counsel for the petitioner. Me pointed out that the distinction, between States and Union territories, has not been introduced by Section 54, but has been made by the Constitution itself and that such a distinction does not violate the provisions of Article 14. The learned counsel, also, sought to justify the distinction on historical grounds.

21. The contention of the learned counsel for the petitioner that Section 54 of the Government of Union Territories Act is violative of Article 14 of the Constitution does not appear to be sound. The alleged distinction, between Union Territories and States, on which the learned counsel has based his argument, has not been introduced by Section 54 but is the result of the provisions of Article 239A of the Consti-tution itself. This Article empowers Parliament to nominate, by law, all the members of the body which is to function as a Legislature for a Union Territory. The result of such a nomination will be that the people of the Union territory will be deprived of electing their Legislative Assembly. The Constitution does not confer any right on the people of Union territories to elect their Legislative Assemblies. Besides Article 239A, there are other provisions of the Constitution which make distinction between States and Union Territories. The distinction begins with the very first Article of the Constitution which says that the territory of India shall comprise the territories of States and the Union territories. Article 168 provides that there shall be a Legislature for every State, According to Article 170, the Legislative Assembly of a State shall be chosen by direct election.

The Constitution does not lay down that there shall be a Legislature for a Union territory. As already discussed, Article 239A leaves it to Parliament whether a Legislature should be constituted for a Union territory, and if so, in what manner, and with what powers and functions. Under Article 246(3), the Legislature of a State has exclusive powers to make laws with respect to any of the matters enumerated in the State List. But a Legislative Assembly of a Union territory, even if constituted, will not have any such exclusive powers. Under Article 246(4), Parliament has the power to make laws, with respect to a Union territory, regarding matters, enumerated in the Stale List even. Articles 153 and 151 provide that there shall be a Governor for each State and the executive power of the State shall be vested in the Governor. Article 163 lays down that there shall be a Council of Ministers for each State. A Union territory, according to the Constitution, is to be administered by the President, acting through an administrator, save as otherwise may be provided by Parliament, vide Article 239. The Constitution does not, itself, provide for a Council of Ministers for a Union territory. The matter is left to Parliament. Article 214 lays down that there shall be a High Court for each State. But there is no such provision, in the Constitution, for a Union territory. Article 241 simply empowers Parliament to constitute a High Court for a Union territory or to declare any Court in such territory to be a High Court for all or any of the purposes of the Constitution. A Court of Judicial Commissioner was functioning in Himachal Pradesh at the time of coming into force of the Constitution. That Court was, under the provisions of the Judicial Commissioners' Courts (Declaration as High Courts) Act, 1950, declared as a High Court for certain purposes of the Constitution,

22. It is clear, from the above discussion, that differentiation, between States and Union territories, has been made, in almost all spheres, by the Constitution, Itself. Such a differentiation cannot be struck down, under Article 14, as no provision of the Constitution can be considered as being contravening any other provision of the Constitution, vide Jagdish Dajiba v. Accountant-General of Bombay, AIR 1958 Bom 283. It was held by their Lordships of the Supreme Court in Sri Sunkari Prasad Singh Deo v. Union of India and State of Bihar, 1952 SC R 89: (AIR 1951 SC 458) that 'law' in Article 13 of the Constitution must be taken to mean rules or regulations made in exercise of ordinary legislative power, and not amendments to the Constitution, made in exercise of constituent power. Their Lordships of the Madras High Court observed in S. Anantha krishnan v. State of Madras. AIR 1952 Mad 395 that:

'It, (Article 13 of the Constitution), does not apply to the Constitution itself. It does not enact that the other portions of the Constitution should be void as against the provisions in Part III and it would be surprising if it did, seeing that all of them are parts of one organic whole. Article 13, therefore, cannot be read so us to render any portion of the Const-tution invalid' page 405.

23. The differentiation, resulting, from the provisions of Section 54 of the Governsment of Union Territories Act, between a State and a Union territory, has really been made by the provisions of the Constitution, itself. Such at differentiation cannot be regarded, in view of the principles, enunciated in the authorities, cited above, to offend against the provisions of Article 14 of the Constitution.

24. There is another aspect of the matter. Article 14 of the Constitution forbids class legislation only; but does not forbid reasonable classification for purposes of legisla-lation, vide Ram Krishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538 and Lachhman Das v. State of Punjab, AIR 1963 SC 222. A Legislature has authority to determine whether a particular law should extend to the whole of the territory and to all the citizens, under its jurisdiction, or only to a particular part of the territory and to a particular class of citizens. All that is necessary is that the selection should not be arbitrary or irrational. It was laid down in Ameerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91, that:

'It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not 'per se' amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view', (page 94).

Again, in State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., AIR 1964 SC 1179, it was said:

'All persons who are similarly circumstanced as regards a subject-matter are entitled to equal protection of the law under Article 14 of the Constitution, but is not predicated thereby that every law must have universal application irrespective of dissimilarity of objects or transactions to which it applies, or of the nature or attainments of the persons to whom it relates. The Legislature has always the power to make special laws to attain particular objects and for that purpose has authority to select or classify persons, objects or transactions upon which the law is intended to operate. Differential treatment becomes unlawful only when it is arbitrary or not supported by a rational relation with the object of the statute.'

25. It is settled law that a Legislature has power to make classification or differentiation on account of historical reasons and that such classification or differentiation does not offend against the provisions of Article 14, vide AIR 1963 SC 222 and AIR 1964 SC 1179. As already stated, the learned counsel for the contesting respondents, had sought to justify the differentiation, resulting from the provisions of Section 54 of the Government of Union Territories Act, between States and Union territories, on historical grounds. In this connection, the learned counsel traced the history of the formation of Himachal Pradesh and its legislative set-up, and relying upon that history, contended that, before Independence, supreme legislative power vested in the Rulers of the Indian States, which were subsequently integrated to from Himachal Pradesh and that, after Independence, such power vested in the Central Government or Parliament. Judged against this historical back-ground, the learned counsel argued, the provisions of Section 54 cannot be regarded to have created any arbitrary or hostile discrimination against the people of Himachal Pradesh.

26. In order to appreciate the argument of the learned counsel for the contesting respondents, it appears necessary to note, in brief the history of the formation of Himachal Pradesh and its legislative set-up. Himacha] Pradesh was formed after Independence as a result of the integration of various Indian Hill States. Some of those States were large in area; some were small. The conditions, in those States, were diverse. The States were at different stages of development--social, economic, administrative and political But every State was governed and ruled by a Ruler, who enjoyed absolute powers, qua his State. Legally the Rule was the supreme authority--legislative, executive and judicial in the State; though politically, he was subject to the overriding suzerainty of the Paramount Power, namely, the British Crown, represented by and operating through, the Viceroy and the Political Department.

27. The Government of India Act, 1935, which envisaged a scheme of Federation of India, by federating British India and Indian States, did not affect the status of the Rulers, described above, as no Ruler had acceded to the Federation, which never came into existence

28. On the 15th August, 1947, British India became free. On that date, the suzerainty of the British Crown, over the Indian States, lapsed, vide Section 7(1)(b) of the Indian Independence Act, 1947. The consequence of the lapse of suzerainty was that the Rulers of the Indian States became absolutely independent and sovereign, politically also The Dominion Government had no authority or control over them. But as a result of discussions, between the Dominion Government and the Rulers, Instruments of Accession, with respect to Defence, Foreign Affairs and Communications, were executed by the Rulers, in favour of the Dominion Government Stand-still agreements were also executed.

29. On the 8th March. 1948, the Rulers of Chamba, Sirmur, Suket, Baghal, Baghat, Balsan. Bashahr, Bhajji, Bija, Darkoti. Dhami, Jubbal, Keonthal. Kumarsain, Kunihar. Kuthar, Mahlog, Mangal, Sangri and Tharoch executed agreements, in favour of the Dominion Government, ceding full and exclusive authority, jurisdiction and powers, for and in relation to, the governance of their States, for the formation of one administrative unit of those States. On the basis of the above agreements, the Dominion Government took over the territories and the administration of the above States and integrated them, into one administrative unit, which was named Himachal Pradesh. This was on the 15th April, 1948. In exercise of the powers conferred on it, by Sections 3 and 4 of the Extra-Provincial Jurisdiction Act, the Central Government promulgated the Himachal Pradesh (Administration) Order, 1948, for the administration of Himacha] Pradesh through a Chief Commissioner. The powers for legislation vested in the Central Government. These powers were exercised by promulgating Orders, under Sections 3 and 4 of the Extra-Provincial Jurisdiction Act. Mandi State was integrated with Himachal Pradesh on the 1st May, 1948. This integration did no! bring any change in the administration of Himachal Pradesh. The legislative powers continued to vest in the Central Government. Bilaspur was united with Himachal Pradesh in 1954

30. The administration of Himachal Pradesh, by promulgating Orders, under the Extra-Provincial Jurisdiction Act, was considered to be unsatisfactory The Government of India Act, 1935, under which free India, which used to be British India, was being governed, was amended so as to make provisions, for the administration of the Centrally Administered Areas, like Himachal Pradesh. Section 290A was added to that Act, by Section 6 of the Constituent Assembly Act, No. 1 of 1949. Section 290A provided that whether full and exclusive authority, jurisdiction and powers, for and in relation to, the governance of any Indian State or of any group of such States are for the time being exercisable by the Dominion Government, the Governor-General may by order direct that the State or group of States shall be administered in all respects as if the State or group of States were a Chief Commissioner's Province and that upon the issue of such an Order, all the provisions of the Government of India Act, applicable to the Chief Commissioner's Province of Delhi shall apply to such State or group of States. The Province of Delhi was administered, under Section 94(3) of the Government of India Act. This section provided that a Chief Commissioner's Province shall be administered by the Governor-General acting, to such extent as he thinks fit, through a Chief Commissioner. There was no provision for the constitution of a Legislative Assembly, for the Province of Delhi. The power to legislate vested in the Governor-General and in the Central Government. By an Order, known as the States Merger (Chief Commissioners' Provinces) Order, 1949, issued under Section 290A of the Government of India Act, Himachal Pradesh was made a Chief Commissioner's Province, The powers to legislate vested in the Central Government, as heretofore.

31. The Constitution of India came into force on the 26th January, 1950. Article one of the Constitution provided that the territory of India would comprise the territories of States specified in Parts A, B and C of the First Schedule and the territories specified in Part D of that Schedule. Himachal Pradesh and Bilaspur, which were being administered, as Chief Commissioners' Provinces, under Orders, promulgated, under Section 290A of the Government of India Act, were specified, along with other territories, in Fart C of the First Schedule. They were known as Part C States. Part VIII of the Constitution related to Part C States. This part was comprised of Articles 239 to 242. Article 239 provided that a Part C Slate shall he administered by the President, acting, to such extent as he thinks fit, through a Chief Commissioner or a Lieutenant-Governor Article 240 provided that Parliament may by law create or continue for any Part C State, a body whether nominated, or elected or partly nominated and partly elected to function us a Legislature for the State. It. also, provided for the creation of a Council of Advisers of Ministers. Article 241 empowered Parlia-ment to constitute a High Court for a Part C State or to declare any Court in any such State as a High Court Article 242 related to Coorg.

32. After the coming into force of the Constitution, Parliament enacted the Government of Part C States Act, 1951, for providing Legislative Assemblies and Councils of Ministers, In Part C States, except Bilaspur A Legislative Assembly was constituted, under this Act, in Himachal Pradesh. But the overall powers to legislate, even with respect to the State List, vested in Parliament, vide Article 246(4) of the Constitution Bilaspur, which was a Part C Stale, was united with Himachal Pradesh, under the provisions of the Himachal Pradesh and Bilaspur (New State) Act, 1954 The new State continued to be called Himachal Pradesh and to be administered as a Part C State

33. On the 29th December, 1953, the Government of India appointed a Commission, commonly known as the States Reorganization Commission, to examine the question, and make recommendations, about the reorganization of the States of the Indian Union The Commission submitted its report on the 30th September, 1955. The Commission recommended that the division of the Stales into Part A. Part 15 and Part C States should be abolished and that there should be Stales and Centrally Administered Areas, only. There was a difference of opinion, between the members of the Commission, on the one hand, and its Chairman, on the other, about the future of llimachal Pradesh. The two members of the Commission were of the view that Himachal Pradesh should be merged with Punjab, subject to the Central Government retaining supervisory control over the area with respect to economic development. The Chairman of the Commission was strongly of the view that Himachal Pradesh should retain its separate existence and should be administered as a Centrally Administered Area.

34. To give effect to the various recommendations of the States Reorganization Commission, Parliament enacted the States Reorganization Act, 1956 and the Constitution (Seventh Amendment) Act, 1956. The States Reorganization Act dealt with the reorganization of States. It repealed the Government of Part C States Act, 1961, under which a Legislative Assembly had been set up in Himachal Pradesh. The Constitution (Seventh Amendment) Act made amendments in the Constitution, by which Part A, Part B and Part C States were abolished and the territory of India was to comprise of Slates and Union territories. Himachal Pradesh was made a Union territory, from 1st November, 1956. Part VIII of the Constitution which related to Part C States, was amended, to make provision for the administration of the Union territories. Article 239 was amended, and as amended, it provided that save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator. Article 240 is not relevant to llimachal Pradesh. Article 241 provided for the constitution of a High Court for a Union territory or for the declaration of any Court in such a territory as a High Court. The Constitution, as amended, by the Constitution (Seventh Amendment) Act, did not set up Legislative Assemblies in Union territories. The powers, for legislating for those territories, vested in Parliament.

35. On the repeal of the Government of Part C States Act, by the States Reorganization Act, Parliament enacted the Territorial Councils Act, 1956, for providing Territorial Councils for the Union territories of Himachal Pradesh, Manipur and Tripura. The Territorial Councils had no legislative powers and otherwise too their functions and powers were limited. These bodies did not satisfy the political aspirations of the people and there was a persistent demand for establishing Legislative Assemblies and Councils of Ministers. Consequently. Parliament amended the Constitution, by the Constitution (Fourteenth Amendment) Act, 1962 and inserted Article 239A. This Article generally followed the provisions of Article 240, as it stood, before its amendment, by the Constitution (Seventh Amendment) Act, 1956. As has been noted in an earlier part of this order. Article 239A did not establish any Legislative Assembly for any Union territory, it simply authorized Parliament to create a body to function as a Legislature for a Union territory. Parliament enacted the Government of Union Territories Act, 1963. This Act made provisions for setting up Legislative Assemblies in Union territories. The Legislative Assemblies were not given exclusive powers of legislation, even with respect to matters, enurnerated in the State List.

36. The above brief history of the formation of Himachal Pradesh and its legislative setup lends support to the contention of the learned counsel for the contesting respondents that the differentiation resulting from the provisions of Section 54 of the Government of Union Territories Act, can be justified on the basis of historical reasons. It is to be noted that the provisions, contained in Section 54, are purely of a temporary and transitional nature and that these provisions have brought into existence for the transitional period, a represents live body, to function as a provisional Legislative Assembly for Himachal Pradesh. without the lengthy process of election and the expense, incidental, thereto. Such provisions cannot be characterized as unreasonable or irrational.

37. There is an initial presumption in favour of the constitutionality of an enactment. This initial presumption has a larger sway in case of Article 14 of the Constitution, vide Khyerbari Tea Co. Ltd. v. State of Assam, AIR 1964 SC 925. The provisions of Section 54 of the Government of Union Territories Act are presumed to he constitutionally valid. The burden was on the petitioner to rebut that presumption. That burden was heavy as the petitioner was impugning those provisions on the ground that they were violative of Article 14 The petitioner has failed to discharge that heavy burden.

38. The next contention of the learned counsel for the petitioner was that the provisions of Section 54 of the Government of Union Territories Act offend against the spirit of the Constitution and are, therefore, invalid. The argument of the learned counsel was that Section 54 has deprived the people of Himachal Pradesh of their right to elect their representatives to the Legislative Assembly, and has, thus, violated the spirit of our democratic Constitution. 'An argument', observed their Lordships of the Supreme Court, in Keshavan v. State of Bombay, AIR 1951 SC 128. 'founded on what is claimed to be the spirit of the Constitution is always attractive for it has a powerful appeal to sentiment and emotion; but a Court of law has to gather the spirit of the Constitution from the language of the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view'. In the present case, the Constitution does not lay down that there shall be an elected Legislative Assembly for Himachal Pradesh. On the other hand, as has been pointed out more than once, in this order, the Constitution gives power to Parliament to create a Legislative Assembly, all of whose members may be nominated or to declare an existing body, elected or nominated, to be the Legislature of Himachal Pradesh. The provisions of Section 54 are fully in conso-nance with, and justified by the express provisions of the Constitution. Those provisions cannot be struck down on the ground that they contravene what the learned counsel for the petitioner calls the spirit of the Constitution.

39. It was also, argued by the learned counsel for the petitioner, that Section 54 of the Government of Union Territories Act is a colourable piece of legislation and, hence, ultra vires of the ConsliUition. This argument has got no substance in it The doctrine of colourable legislation postulates that legislation attempts to do indirectly what it cannot directly do. vide Sonapur Tea Co Ltd. v. Deputy Commr. and Collector of Kamrup, AIR 1962 SC 137 and K.C. Gajapali Naravan Deo State of Orissa, AIR 1953 SC 375. The Parliament was competent, under Article 239A of the Constitution, to enact Section 54. It has not. directly or indirectly, transgressed the limits of its constitutional powers, bv enacting that section Section 64 is not a colourable piece of legislation

40. The learned counsel for the petitioner drew the attention of the Court to Sections 6 and 7 of the Territorial Councils Act, 1956 and to Sections 4 and 14 of the Government of Union Territories Act, 1963 and pointed out that qualifications and disqualifications, with respect to membership of the Territorial Council and those with respect to membership of the Legislative Assembly, were different and that it was possible that some mem-bers of the Territorial Council were not qualified to he members of the Legislative Assembly. To declare even such members of the Territorial Council to be members of the Legislative Assembly, as has been done by Section 54, the learned counsel contended, was ultra vires and illegal.

This contention of the learned counsel is misconceived. The Government of Union Territories Act. as is clear from a perusal of its various provisions, is a complete Code, in itself, so far as the constitution and the functioning of the Legislative Assembly is concerned. A Code is exhaustive of the matters dealt with therein. It is not permissible to adjust the validity of the provisions of the Government of Union Territories Act, by comparing them with those of the Territorial Councils Act. In this view of the matter, the contention of the learned counsel for the petitioner, that some voters were unable to cast their votes at the time of election of the members of Ihe Territorial Council and that the Territorial Council had no legislative powers and could not be converted into a Legislative Assembly can have no relevancy to the determination of the validity of Section 54. Equally irrelevant is the contention of the learned counsel for Ihe petitioner that members of the Territorial Council were disqualified, under Section 14 of the Government of Union Territories Act, from being chosen as members of Ihe Legislative Assembly, as they were holding office of profit, under the Government of the Union territory and could nol be converted into members of Ihe Legislative Assembly. Sections 14 and 54 relate to different situations and operate in different fields. Section 14 relates to the constitution of a regular Legislative Assembly while Section 54 relates to the constitution of a provisional Legislative Assembly until a regular Legislative Assombly is constituted and summoned

Further, it is crystal clear, from the opening words, 'Notwithstanding anything in this Acl', of Sub-section (2) of Section 54 and the provisions of Sub-section (4) of that section that so far as the constitution of the provisional Legislative Assembly is concerned, the provisions of Section 54 override he provisions, in the Act, relating to the constitution of a regular Legislative Assembly. It follows that if there be any conflict between the provisions of Section 54 and those of Section 14. the former will prevail. Resides being irrelevant, the aforesaid contention of the learned counsel for the petitioner, is also not sound Neither the Chairman, nor the members of the Territorial Council were holding any office, under the Government, as they had neither been appointed nor could be removed, by the Government, but had been elected by the voters.

41. Lastly, it was contended, by the learned counsel for the petitioner, that the provisions of Section 54 go beyond the terms of the preamble of the Government of Union Territories Act and, hence, should be struck down. This contention is devoid of any merit The preamble of that Act recites. 'An Act to provide for Legislative Assemblies and Councils of Ministers for certain Union territories and for certain other matters' Section 54 is directed towards the constitution of a provisional Legislative Assembly until a regular Legislative Assembly is duly constituted and summoned. The section does not go beyond the terms of the preamble. Even if there be any conflict between Section 54 and the preamble, the express provisions of that section are to be given full effect and the preamble is to be disregarded. Reference, in this connection, may be made to Burrakur Coal Co Ltd. v. Union of India. AIR 1961 SC 954

42. A preliminary objection, that the petitioner has no locus standi to file the writ-petition as none of his constitutional or legal rights has been infringed by the provisions of Section 54 of the Government of Union Territories Act, was taken up in the return, filed Bill this objection was not pressed at the time of arguments. The objection does not appear to be well founded.

Respondents Nos. 3 to 47 are holding office of a public nature, in Himachal Pradesh, by virtue of the provisions of the Government of Union Territories Act enacted bv Parliament, and being enforced bv respondents Nos 1 and 2 The petitioner, a resident of Himachal Pradesh was entitled to challenge, bv a writ petition under Article 226 of the Constitution, whether respondents Nos. 3 to 47 were validly holding their offices irrespective of the fact whether his personal right had been infringed or not. It was observed in Calcutta Gas Co. (Private) Ltd v. State of West Bengal AIR 1962 SC 1044 that though the existence of a legal right and its infringement is the foundation of the exercise of jurisdiction, under Article 226 of the Constitution, yet this rule mav have to be relaxed or modified in the case of a writ of quo warranto The question, whether a person whose right has not been infringed, is entitled to file a writ petition for the issue of a writ of quo-warranto was considered in Rajendrakumar Chandanmal v Govt. of State of M.P. AIR 1957 Madh Pra 60. It was held that

'For the issue of a writ of quo warranto, no special kind of interest in the relator in needed nor is it necessary that any of his specific legal right be infringed. It is enough for its issue that the relator is a member of the public and acts bona fide and is not a mere pawn in the game having been set up bv others.'

43. The petitioner, in the present case, is a resident of Himachal Pradesh 'He had fought election to the Territorial Council, against respondent No 4 This fact should dispel any doubt about his bona fides, in filing the writ-petition. The petitioner was entitled to file the present writ-petition. The preliminary objection, which was not pressed, is overruled.

44. Though, the petitioner could maintain the present writ-petition, yet as he has failed to prove that Section 54 of the Government of Union Territories Act is unconstitutional or otherwise Invalid or that respondents Nos. 3 to 47 were illegally holding their offices, the writ-petition is to be dismissed. It is, accordingly, dismissed with costs, which are assessed at Rs. 200. of the contesting respondents.


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