JUDGEMENT : SHINDE, J. The petitioner Shri Anand Bihari Mishra advocate and member of the Interim Legislative Assembly Madhya Bharat has filed this petition for the issue of an information in the nature of quo warranto against Shri Ramsahai to enquire by what authority he supported his claim to the office of a speaker of the Legislative Assembly of Madhya Bharat in order that the right to the office may be determined. The petitioner alleges that the body functioning immediately before the Constitution of India as the Legislative Assembly of Madhya Bharat was the Legislative Assembly constituted under the Interim Legislative Assembly Act No. 23 of 1949. Shri Ramsahai was holding the office of a president of that Assembly. On the commencement of the constitution on 26th January, 1950 Interim Legislative Assembly Act terminated and as Art. 385 of the Constitution of India does not make any provision for the President to continue as Art. 382 of the Constitution does, Shri Ram Sahai had no right to be the speaker of the Legislative Assembly of Madhya Bharat. Nevertheless the counter-petitioner had, since the commencement of the constitution, occupied and continues to occupy the speaker's chair. Shri Ram Sahai has also not made and subscribed the oath required by Art. 188 of the Constitution of India. This conduct of Shri Ram Sahai amounts to an illegal usurpation of a public office. 2. In order to fully appreciate the force of Mr. Anand Bihari's arguments it is necessary to outline the history of the Madhya Bharat Legislature immediately before the advent of the Constitution. 3. The Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant whereby they united their territories in one State with a common Executive Legislature and judiciary and named it. "The United State of Gwalior, Indore and Malwa" (Madhya Bharat). By this Covenant which was entered into in 1948, the Rulers agreed to make over the administration of their States to the Raj Pramukh at the latest by the 1st of July 1948. Article X of the said Covenant provided for the formation of a Constituent Assembly to frame a constitution for Madhya Bharat. The said Article also provided for the constitution of an Interim Legislative Assembly which was to be dissolved automatically on the formation of the Constituent Assembly. Article X of the said Covenant provided for the formation of a Constituent Assembly to frame a constitution for Madhya Bharat. The said Article also provided for the constitution of an Interim Legislative Assembly which was to be dissolved automatically on the formation of the Constituent Assembly. In pursuance of this article first an Interim Legislative Assembly Ordinance and then the Interim Legislative Assembly Act No. 23 of 1949 were enacted. Later on the original Covenant was modified by a supplementary Covenant and it was agreed that the Constitution of India adopted by the Constituent Assembly of India would be the Constitution for the United State of Madhya Bharat. Suitable consequential amendments in the original Covenant were also made by this supplementary Covenant. 4. Mr. Anand Bihari contends that at midnight on the 25th January, 1950 the Interim Legislative Assembly Act No. 23 of 1949 ceased to be operative and as Art. 385 does not make any provision for the speaker to continue as Art. 382 does, Mr. Ram Sahai, the President of the Interim Legislative Assembly, ceased to be the President of the New Legislature formed under the Constitution. He further contends that the President of India took the oath at about 10 a.m. and hence the Constitution (Removal of Difficulties) Order No. II issued on the 26th January 1950 could only be issued after 10 a.m. There was thus a vacuum left from the mid-night tin 10 a.m. during which period original Art. 178 came into force. Hence the Madhya Bharat Legislature should have elected a speaker as enjoined by Art. 178. 5. Hence the Madhya Bharat Legislature should have elected a speaker as enjoined by Art. 178. 5. Article 372 lays down that : "Notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." Exception I defines the expression "law in force." It says : "The expression 'law in force' in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas." It is clear that all the law in force in the territory of India immediately before the commencement of the Constitution is to continue in force until altered or repealed subject to the provision of the Constitution. For instance, if any provision of the law in force is inconsistent with any provision of Part III, it will be void tinder Art. 13 (1). Three inconsistencies have been pointed out in the Interim Legislative Act by the petitioner. One is that the Act lays down that it is to be subject to the provisions of the Covenant (Vide S. 3 of the Interim Legislative Assembly Act); the other is that the legislature is to consist of the Raj Pramukh and the Assembly (Vide S. 3 of the Interim Legislative Assembly Act); the third is that the Assembly is to be dissolved on the formation of the Constituent Assembly referred to in Para. 1 of the Art. X of the Covenant (Vide S. 4 of the Interim Legislative Assembly Act). It is true that the Interim Legislative Assembly is to be subject to the provisions of the Covenant. But that provision has not been shown to offend against any provision of the Constitution. 1 of the Art. X of the Covenant (Vide S. 4 of the Interim Legislative Assembly Act). It is true that the Interim Legislative Assembly is to be subject to the provisions of the Covenant. But that provision has not been shown to offend against any provision of the Constitution. Art. 238 (7) lays down : "For every State there shall be a Legislature which shall consist of the Rajpramukh and; (a) in the State of Mysore, two houses; (b) in other States, one Houses." Far from being inconsistent, it is actually in keeping with the provision of the Constitution, Section 4 of the Interim Legislative Assembly Act lays down the duration of the Legislature, Shri Anand Bihari is obviously unaware of the fact that this section is no longer in force. The original Covenant has been modified by a supplementary Covenant. Article 1 of this Supplementary Covenant is as follows : "Article I. Notwithstanding anything contained in the original Covenant, the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the United State of Madhya Bharat, and shall be enforced as such in accordance with the tenor of its provisions; and accordingly all references in the original Covenant to the Constitution framed thereunder shall be construed as references to the constitution of India." Article II reads thus : "Article II. In Art. X of the original covenant : (a) for paragraph (1), the following paragraph shall be substituted and shall be deemed always to have been substituted, namely : "(1) There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly", and (b) in paragraph (3) for the words beginning with the words "Upon the formation" and ending with the words "assent of the Rajpramukh", the words "Until the commencement of the Constitution of India" shall be substituted, and the words "or as the case may be, the Constituent Assembly" shall be omitted" Article III reads thus : "Article III. Schedule III to the original Covenant shall be omitted." It is evident that the Rulers, who were party to the Covenant agreed by this Supplementary Covenant to adopt and enforce the Constitution of India in Madhya Bharat. Schedule III to the original Covenant shall be omitted." It is evident that the Rulers, who were party to the Covenant agreed by this Supplementary Covenant to adopt and enforce the Constitution of India in Madhya Bharat. Paragraph 1 articles X of the Covenant now reads as follows : "There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly." The supplementary Covenant also predicates that this paragraph shall be deemed always to have been substituted. This substitution has the effect that para. (1) of Article X of the old Covenant has never been in existence. As the legislature is to be subject to the provisions of the Covenant according to S. 3 of the Interim Legislative Assembly Act, S. 4 has become superfluous and inoperative. These provisions of Ss. 3 and 4 of the Interim Legislative Assembly Act, therefore, are not inconsistent with any provisions of the Constitution and offer no bar to the continuance of the Interim Legislative Assembly Act under Art. 372 of the Constitution. The Act was passed by a competent authority before the commencement of the Constitution and has not been previously repealed. Hence it continues in force even after the commencement of the Constitution. 6. Having thus come to the conclusion that the Interim Legislative Assembly Act still continues in force, other contentions of Mr. Anand Bihari are deprived of much of their force. I Shall however, deal with them one by one. Hence it continues in force even after the commencement of the Constitution. 6. Having thus come to the conclusion that the Interim Legislative Assembly Act still continues in force, other contentions of Mr. Anand Bihari are deprived of much of their force. I Shall however, deal with them one by one. Art. 385 runs as follows : "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." It lays down that until the House of the Legislature has been duly constituted and summoned to meet for the first session under the provisions of this constitution, the body or authority functioning immediately before the commencement of this constitution as the Legislature snail exercise the powers and perform the duties conferred by the Constitution on the House of the Legislature of the State. This article makes it abundantly clear that the body functioning as the Legislature is to exercise the power and perform duties conferred by the Constitution. This article does not contemplate creating a new body under the Constitution to function as the Legislature. It continues the old one; but it has been empowered to function as the legislature under the constitution until the legislature is duly constituted under the provisions of the constitution. The question of electing a speaker, therefore, does not arise at all. The old body is to continue to exercise the powers under the constitution. The wording of Art. 382 is different. It says the House or Houses of the Legislature shall exercise the powers. The House of the legislature may or may not include a speaker. Besides as the Government of India Act of 1935 and the Indian Independence Act of 1947 by which these legislatures were constituted were repealed, it was necessary to provide for the continuance of the speaker in Part A States. Article 385 states that the body or authority functioning as the legislature is to exercise the powers under the constitution. Besides as the Government of India Act of 1935 and the Indian Independence Act of 1947 by which these legislatures were constituted were repealed, it was necessary to provide for the continuance of the speaker in Part A States. Article 385 states that the body or authority functioning as the legislature is to exercise the powers under the constitution. The body functioning as the legislature includes, in my opinion even the speaker. Article 385 deals with different kinds of legislative bodies. It purports to deal with legislative bodies which may be elected, semi-elected or nominated. In such legislative bodies the speaker may be elected or nominated by a Ruler. Consequently the article contemplates continuing legislatures as they were constituted. Its object is to import into the Union the old legislative machinery in Part B States lock, stock and barrel. Besides the Interim Legislative Assembly Act has continued in force under art. 372 as already stated. Hence the President elected under the Act also continues ipso facto. This argument has, therefore, no force. 7. I would like to clear one point before proceeding to consider other contentions urged by Mr. Anand Bihari. The petitioner argued that the legislature contemplated by Art. 385 is a new legislature and it is this new legislature that is empowered to exercise the powers under the constitution. This argument, in the face of the clear wording of article 385, is not tenable. The article does not create a new legislature. It gives power to the old legislature to exercise powers under the constitution. The opening words "until the House or Houses of the legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this constitution" taken along with the words "the body or authority functioning immediately before the commencement of this constitution as the legislature of the corresponding Indian State" make it amply clear that it is the old legislature that is continued. Besides if the article had contemplated constituting a new legislature under the constitution, it was unnecessary to state that it shall exercise the powers given by the constitution. On the contrary conferment of powers under the constitution denotes that it is the old legislature that is contemplated by article 385. 8. The next contention put forward by Mr. Besides if the article had contemplated constituting a new legislature under the constitution, it was unnecessary to state that it shall exercise the powers given by the constitution. On the contrary conferment of powers under the constitution denotes that it is the old legislature that is contemplated by article 385. 8. The next contention put forward by Mr. Anand Bihari is that the Constitution (Removal of Difficulties) order No. II issued on the 26th January, 1950 came into force after 10 A. M. and thus left a vaccum from mid-night till 10 A. M.; as the constitution came into force at midnight, article 178 became operative; hence the Interim Legislative Assembly should have elected a speaker. This argument proceeds on the assumption that the Interim Legislative Assembly Act or S. 8 of the said Act, which provides for the election of a President, ceased to operate. As already pointed out the Interim Legislative Assembly Act continues in force even after the commencement of the constitution. Section 8 of the said Act also continues in force as it is not repugnant to any of the provisions of the Constitution. Article 178 is attracted only when a Legislative Assembly is constituted under the provisions of the constitution. Article 385 purports to continue the old legislative body as a whole. Hence article 178 has no application. 9. The argument that the Constitution (Removal of Difficulties) Order No. II came into force after 10 A. M. is also fallacious. Article 380 provides that such person as the Constituent Assembly of the Dominion of India shall have elected in that behalf shall be the President of India until a president has been elected in accordance with the provisions contained in chapter 1 of Part V and has entered upon his office. This clearly lays down that a person elected by the Constituent Assembly of the Dominion of India is to be the President of India. The article prescribes no restrictions such as taking of oath as laid down in Art. 60 of the Constitution. The Constitution (Removal of Difficulties) Order No. I however lays down that the person elected shall, before entering upon his office, make and subscribe the oath prescribed in Art. 60. Consequently the President has to take the oath before entering upon his office. Article 367 however provides for the contingency. The Constitution (Removal of Difficulties) Order No. I however lays down that the person elected shall, before entering upon his office, make and subscribe the oath prescribed in Art. 60. Consequently the President has to take the oath before entering upon his office. Article 367 however provides for the contingency. This article makes the General Clauses Act of 1897 applicable to the Constitution. Section 5 (3) of the General Clauses Act states that unless the contrary is expressed a central Act or Regulation shall be construed as coming into operation immediatedly on the expiration of the day preceding its commencement. This implies that the Constitution (Removal of Difficulties) Order No. II issued on the 26th January, 1958 came into force immediately on the expiration of the 25th. In this view of the matter there is no vaccum left. The petitioner referred us to 'Sunil Kumar Bose v. The Chief Secy. to the Govt. of West Bengal', AIR (37) 1950 Cal 274 and 'Brahmeshwar Prasad v. State of Bihar', AIR (37) 1950 Pat 265. In both the cases their Lordships of the Calcutta and Patna High Court were dealing with provisions of enactments, which were void because of their repugnancy to the constitution. They had held that as the president could make no valid order until after 10-15 A. M. on the 26th (when he took the oath), the subsequent order could not vivify the Act, which had become void simultaneously with the constitution coming into force. Both these decisions do not apply to the present case as none of the provisions of the Interim Legislative Assembly Act had become void because of repugnancy. 10. The Constitution (Removal of Difficulties) Order No. II provides that for Art. 178 substitute : "178. The speaker and the Deputy Speaker of the Legislative Assembly : So often as the office of the speaker or Deputy speaker of the Legislative Assembly of a State becomes vacant, the Assembly of a State becomes thereof to be its speaker or Deputy speaker, as the case may be." This provision is to be construed to have come into force at midnight on the 25-1-1950 by virtue of S. 5 of the General Clauses Act. What this order in effect did is to delete the first portion of Art. 178 and to retain the last one. What this order in effect did is to delete the first portion of Art. 178 and to retain the last one. As that part of the article, which requires a Legislative Assembly to choose a speaker, is not in force from the midnight of the 25th, the argument of the petitioner falls to the ground. Election of a speaker is to be held only when there is a vacancy. Therefore even if it be conceded that article 178 is applicable to the Interim Legislative Assembly, election of a speaker is not necessary as the office has not fallen vacant. 11. The petitioner also contends that the President had no power to issue the Constitution (Removal of Difficulties) Order No. II. He argues that in issuing the said order he has exceeded the power conferred by Art. 392 of the Constitution. His first objection is that there was no difficulty to remove and hence the Order should not have been issued. Article 392 runs thus : "1. The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient". The question is whether a subjective test or an objective test is to be applied to see whether there is a difficulty or not. Article 392 gives power to the President to remove the difficulties. Naturally it is the President who has to decide whether there is a difficulty or not. Hence it is the subjective test that is to be applied. If therefore the President was of the opinion that there was a difficulty, he certainly could issue an order under Art. 392. This objection, therefore, has no force. 12. Another objection to the issue of the order is that the President substituted a new article for the original Art. 178 which he has no power to do under Art. 392. Mr. Anand Bihari argues that adaptations can be made only by modification, addition or omission; but not by substitution. The word modify conveys the sense of a partial change and not a complete change. Mr. Anand Bihari argues that adaptations can be made only by modification, addition or omission; but not by substitution. The word modify conveys the sense of a partial change and not a complete change. Now although the Constitution (Removal of Difficulties) Order No. II states that for Art. 178 substitute the following, in actual fact the substituted form is only a modification of Art. 178. As already stated in the earlier part of this judgment, all that the order does is to dispense with the first part and retain the latter. The adaptation of Art. 178 is only by a modification. Consequently there is no room for this objection. 13. The last objection to the issue of the Order is that under Art. 392 power of adaptation is given only to remove difficulties in relation to the transition from the provisions of the Government of India Act, 1935 to the provisions of this Constitution. Article 392 has already been reproduced. It says the president may, for the purpose of removing any difficulties 'particularly' in relation to the transition from the provisions of the Government of India Act 1935 to the provisions of this Constitution, by order direct etc. etc. This language clearly shows that the power is general. The mention of one particular instance in which it can be used does not circumscribe it. Hence this objection also cannot be accepted. 14. The first contention, therefore, cannot be accepted. The Constitution has actually provided by Art. 372 for the continuance of all laws in force as long as they are not repugnant to any of the provisions of the Constitution. Consequently there is no doubt that the Interim Legislative Assembly Act of 1949 continued in force even after the commencement of the constitution. The Interim Legislative Assembly Act therefore continued even after the commencement of the constitution. Article 385 empowers the old legislatures to exercise powers under the Constitution. As Art. 385 intended to continue the entire legislative machinery, it was not necessary to elect a speaker on the commencement of the constitution. Besides Art. 178, by virtue of which election is claimed, being no longer in force since the inception of the constitution, election cannot be claimed under Art. 178. The objections to the issue of the Constitution (Removal of Difficulties) Order No. II are devoid of any force. Besides Art. 178, by virtue of which election is claimed, being no longer in force since the inception of the constitution, election cannot be claimed under Art. 178. The objections to the issue of the Constitution (Removal of Difficulties) Order No. II are devoid of any force. In 'A. Nesamony v. T. M. Varghese', 1950 DLR (Tr) 402, Govinda Pillai, J., observed as follows : "After a careful consideration of the several provisions of the Constitution of India and the subsequent orders passed by the President by virtue of the powers vested to him under the provisions of the Constitution it does not appear to me that the absence of a provision in Art. 385, Constitution of India for the continuance of the speaker of the Legislative Assembly of Travancore-Cochin State would in any way affect his continuance as such. The provisions relating to the same in Arts. 379 and 382 were necessitated because of the repeal of the Acts of 1935 and 1947 referred to already." The first contention, therefore, must be rejected. 15. The second contention of the petitioner is that Shri Ram Sahai did not take the requisite oath and hence his occupation of the office is illegal. Article 188 lays down that every member of the Legislative Assembly shall before taking his seat make and subscribe before the Governor an oath or affirmation according to the form set put for the purpose in the Third Schedule. This article is essentially meant to apply to legislatures constituted under the Constitution. In my judgment it does not apply to old legislatures continued by virtue of Arts. 372 and 385. As already stated it was the old legislative machinery which was continued and was empowered to exercise powers under the Constitution. Besides under Art. 372 the Indian Legislative Assembly Act of 1949 continued in force. If the members or the speaker had taken oath in accordance with the provisions of that Act, they can validly continue to be members or speaker of the said Assembly even after the commencement of the Constitution. It may also be mentioned here that Shri Ram Sahai actually did take the oath. He took the oath in the form prescribed in the third schedule with the modification that instead of calling himself a member he called himself a speaker. There is no special form prescribed for a speaker in the Constitution. It may also be mentioned here that Shri Ram Sahai actually did take the oath. He took the oath in the form prescribed in the third schedule with the modification that instead of calling himself a member he called himself a speaker. There is no special form prescribed for a speaker in the Constitution. This contention, therefore, has no substance. 16. Even if it be conceded that Shri Ram Sahai did not take the requisite oath, can a rule for information in the nature of quo warranto be issued? If the oath is not taken, a member does not cease to be a member. The penalty is prescribed in Art. 193. It states that a member, who, without complying with the requirements of Art. 188, sits or votes, shall be liable in respect of each day on which he so sits or votes to a penalty of Rs. 500/-. Section 11 of the Interim Legislative Assembly Act lays down that if a member fails to make the oath, the Government may by notification in the Gazette declare his seat vacant. Under the Interim Legislative Assembly Act the Government has been given a discretion to declare his seat vacant. But failure to make the oath does not ipso facto render his seat vacant. In these circumstances an information would be futile in its results and hence no information in the nature of a quo warranto would lie. 17-20. The learned Advocate General opposes the petition on the ground that the office of the speaker is not an office under the Crown i.e. the Executive; hence no information in the nature of quo warranto would lie. An information in the nature of quo warranto will lie in respect of any particular office when that office satisfies the following conditions : (1) The office must have been created by charter from the Crown or by Statute. (2) The duties of the office must be of a public nature. (3) The office must be one the tenure of which is permanent' in the sense of not being terminable at pleasure. 4. The person proceeded against has been in actual possession and user of the particular office in question (Vide Halsbury's Laws of England, Vol. X 1909 Edn. pages 129 and 130 and 131). The office of the speaker has been created by statute. 4. The person proceeded against has been in actual possession and user of the particular office in question (Vide Halsbury's Laws of England, Vol. X 1909 Edn. pages 129 and 130 and 131). The office of the speaker has been created by statute. Article 178 of the Constitution and S. 6 of the Interim Legislative Assembly Act of Madhya Bharat provide for it. That the duties of the office of a speaker are of a public nature is not disputed by the Advocate General. The third and the fourth requisite conditions are also fulfilled in the present case. In these circumstances the objection of the Advocate General cannot be sustained. 21. In the result I see no ground to confirm the rule. The rule is, therefore, discharged and the petition is dismissed with costs. Advocate's fee is assessed as Rs. 100/-. 22. DIXIT, J. :- This is a petition under Art. 226 of the Constitution of India for the issue of a writ in the nature of quo warranto against the non-applicant Shri Ram Sahay to show cause as to by what authority, he is functioning as the Speaker of the Madhya Bharat Legislative Assembly and is exercising and performing the powers, duties and functions which may be performed or exercised by the Speaker under the Constitution, and for the issue of an injunction restraining the non-applicant from functioning as the Speaker and exercising and performing the powers, duties and functions of the Speaker. The petitioner is an Advocate of this Court and a member of the Madhya Bharat Legislative Assembly. The petitioner is an Advocate of this Court and a member of the Madhya Bharat Legislative Assembly. He states in his application that just before the commencement of the Constitution he and the opponent Ram Sahay were members of the Legislative Assembly constituted under the Covenant entered into on 22-4-1948 by the Rulers of Gwalior, Indore and certain other States of Central India for the formation of the Madhya Bharat and that the non-applicant Ram Sahay was also the Speaker thereof; that this Assembly is, now under Parts VI and VII, the Constitution of India, the Madhya Bharat State Legislature and is empowered under Art. 385 of the Constitution to exercise the powers and perform the duties conferred by the provisions of the Constitution on the Legislature of the State; that under Art. 178, the State Legislature is required to choose a member of the Assembly to be the Speaker thereof and that every member of the Assembly has, before taking his seat, to take an oath or affirmation according to the provisions of Art. 188; but that after the commencement of the Constitution no such election of the Speaker has been held and that the opponent Ram Sahay has not taken an oath or affirmation in the prescribed form and has thus illegally usurped the office of the Speaker. The petitioner, further, states that he questioned the legality of the non-applicant's continuance as the Speaker by raising a point of Order in the Assembly, but that the objection was overruled by the non-applicant. He, further, says that he addressed letters to the Raj Pramukh, the Minister for Law and Justice and the opponent himself seeking redress before approaching this Court for a remedy under Art. 226. 23. In his return to the rule nisi issued by this Court, Shri Ram Sahay does not say that after the coming into force of the Constitution, the Legislature elected him as its Speaker. 23. In his return to the rule nisi issued by this Court, Shri Ram Sahay does not say that after the coming into force of the Constitution, the Legislature elected him as its Speaker. He, however, opposes the petition on the grounds (1) that as he was the duly elected Speaker of the Assembly before the commencement of the Constitution he is entitled under the provisions of the Constitution to continue in the office and to exercise the powers and perform the duties of the Speaker; (2) that the matter of the election of a Speaker and of his continuance as the Speaker is one exclusively pertaining to the internal affairs of the Legislative Assembly and that this Court is precluded from enquiring whether the continuance of the non-applicant as the Speaker of the Assembly is legal; (3) and that as he holds no office under the Government or any office similar to what may be described as an office under the Crown, a writ in the nature of quo, warranto cannot be issued against him and he cannot be ousted in these proceedings from the office, which he is holding. 24. Before stating the contentions of the parties, it seems to me necessary to narrate certain material facts and to refer to the provisions of the Constitutions, relevant to the matter before us. In April 1948, the Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant for the formation of the United State of Gwalior, Indore and Malwa (Madhya Bharat). The Covenant contained provisions for the Union and integration of the several States into one United State and made the present Ruler of Gwalior, the Raj Pramukh during his life time. Article VIII of the Covenant enjoined that the Raj Pramukh shall execute on behalf of the United State an Instrument of Accession in accordance with the provisions of Sec. 6 of the Government of India Act, 1935, and in place of the Instruments of Accession of several Covenanting States. Article X of the Covenant provided for the formation of a Constituent Assembly to frame a Constitution for the United State, and for the Constitution of an Interim Legislative Assembly to function until the formation of the Constituent Assembly. Article X of the Covenant provided for the formation of a Constituent Assembly to frame a Constitution for the United State, and for the Constitution of an Interim Legislative Assembly to function until the formation of the Constituent Assembly. Clause III of the Article gave to the Raj Pramukh the power to make and promulgate Ordinances for the peace and good Government for the United State. This power was subject to certain conditions. The Instrument of accession was accordingly executed by the Raj Pramukh accepting the matters mentioned in List I and List III of the Seventh Schedule to the Government of India Act, 1935 as the matters with respect to which the Dominion Legislature had the power to make laws for the United State. An Interim Legislative Assembly in accordance with the provisions of Art. X of the Covenant was also constituted, and the petitioner and the opponent Shri Ram Sahay became the members of the Assembly. On 30-10-1948, the Raj Pramukh made and promulgated the Interim Legislative Assembly Ordinance (Ordinance No. 18 of 1948) containing provisions about the constitution of the Assembly, its dissolution, sessions, the election of the President, Deputy President and other connected matters. An election of the President was held under Sec. 8 of the Ordinance and the Assembly chose the non-applicant as its President. The provisions of this Ordinance were subsequently embodied in the form of an Act; namely, Interim Legislative Assembly Act (Act No. 23 of 1949) which replaced the Ordinance. Sometime towards the end of 1949, the Rulers of Gwalior, Indore and certain other States entered into a Supplementary Covenant modifying certain Articles of the original Covenant of 22-4-48. Article I of the Supplementary Covenant is in the following terms : "Notwithstanding anything contained in the original Covenant, the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the United State of Madhya Bharat, and shall be enforced as such in accordance with the tenor of its provisions; and accordingly all references in the original Covenant to the Constitution framed thereunder shall be construed as references to the Constitution of India." 25. By Art. II of the Supplementary Covenant, for the provision in the original Covenant relating to the formation of a Constituent Assembly, the following paragraph was substituted with the direction that "it shall be deemed always to have been substituted". By Art. II of the Supplementary Covenant, for the provision in the original Covenant relating to the formation of a Constituent Assembly, the following paragraph was substituted with the direction that "it shall be deemed always to have been substituted". The substituted paragraph is as follows : "(1) There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly." 26. On 24-11-1949, the Raj Pramukh issued a proclamation accepting the Constitution framed by the Constituent Assembly of India as the Constitution for the State and enjoining its enforcement in the State. Thus, just before the commencement of the Constitution of India, the Interim Legislative Assembly was governed by the Interim Legislature Act (Act No. 23 of 49) and the counter petitioner Shri Ram Sahay was the duly elected Speaker of the Assembly under S. 8 of the Act. 27. Coming now to the provisions of the Constitution of India, we find that Part VII of the Constitution contains special provisions governing the Constitution of the States specified in Part B of the First Schedule, as also the modifications subject to which the provisions of Part VI are applicable to Part B States. Article 168 of the Constitution as applied to Part B States says : "For every State there shall be a Legislature which shall consist of the Raj Pramukh and (a) in the State of Mysore, two Houses; (b) in other States one House." Article 178 provides that : "Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be." 28. Under Art. 188 every member of the Legislature of a Part B State must, before taking his seat make and subscribe before the Raj Pramukh or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule. Clause 2 of Art. 189 declares that any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. Clause 2 of Art. 189 declares that any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. Article 193 prescribes the penalty for sitting and voting before making oath or affirmation under Art. 188. The next material and important Article is Article 385. It is as follows : "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of the Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." 29. On the 26th January, 1950, the Constitution (Removal of Difficulties) Order No. II was made by the President in exercise of the powers conferred on him by Clause I of Art. 392. By this Order, it was provided that until both Houses of Parliament and the State Legislatures have been duly constituted and summoned to meet for the first session under the provisions of the Constitution, the Constitution of India shall have effect subject to the adaptations specified in Part I and Part II of the Schedule to the Order. One result of these adaptations is that during the transitional period indicated in the Order, Art. 168 in its applicability to the States specified in Part B of the First Schedule is made to read to this effect, namely, "Subject to the provisions of Art. 385, there shall be for every State a Legislature which shall consist of the Raj Pramukh and (a) in the State of Mysore, two houses; (b) in other States, one House." 30. A new Art. 172 (A) inserted in the constitution by the Order No. 2 makes the provisions of Arts. 169 to 172 inapplicable to the House or Houses of the Legislature of any State functioning under Art. 385. A new Art. 172 (A) inserted in the constitution by the Order No. 2 makes the provisions of Arts. 169 to 172 inapplicable to the House or Houses of the Legislature of any State functioning under Art. 385. The Order also substituted for Art. 178 the following Article : "So often as the Office of Speaker or Deputy Speaker of the Legislative Assembly of a State becomes vacant, the Assembly shall choose a member thereof to be its Speaker or Deputy Speaker, as the case may be." Special provisions have also been inserted in the Constitution by the Order No. 11 rendering inapplicable certain Articles of which Art. 178 is one, to any Part B State which has no House of the Legislature. 31. The petitioner presents before us his case in two aspects. First of all, it is said that the Constitution (Removal of Difficulties) Order No. II in so far as it makes adaptations in the Constitution as applied to the Part B States, is invalid for certain reasons, to which a reference will be made later on. The Petitioner, then, assumes the Madhya Bharat Legislative Assembly which was functioning immediately before the commencement of the Constitution and which has been empowered under Art. 385 to exercise the powers and perform the duties conferred by the provisions of the Constitution on the State Legislature, as the Legislature for the State of Madhya Bharat under Art. 168, and argues that as Art. 385, unlike the preceding Arts. 379 and 382, does not contain any provision for the continuance in the Office of Speaker of any person who was, immediately before the commencement of the Constitution, the Speaker of a Legislative Assembly in a Part B State, the election of the Speaker of the Legislature functioning under Art. 385 must be held in accordance with the provisions of Art. 178. The applicant also says in the alternative that even if it is assumed that the Constitution (Removal of Difficulties) Order No. II is valid, an election of the Speaker must be held under Art. 178 as adapted by the Order. It is argued that there being no provision in the Constitution for the continuance in the Office of Speaker of any person holding that Office immediately before the commencement of the Constitution in a Part B State, the Office must become vacant by the commencement of the Constitution itself. It is argued that there being no provision in the Constitution for the continuance in the Office of Speaker of any person holding that Office immediately before the commencement of the Constitution in a Part B State, the Office must become vacant by the commencement of the Constitution itself. The second way in which the case is submitted before us is that as the non-applicant has not taken an oath or affirmation in the manner prescribed under Art. 188, he is not entitled to take his seat in the Assembly and that, therefore, he cannot continue as Speaker of the Assembly and exercise the powers and perform the duties of the Speaker. 32. In these proceedings the State has been permitted by us to intervene. The learned Advocate General has, on behalf of the State, contraverted all the points raised by the petitioner. His argument, which has been adopted by Mr. Shiv Dayal the learned counsel appearing on behalf of the non-applicant Shri Ram Sahay, may be concisely summarised thus: The contention of the petitioner that with respect to the former Indian States who had acceded to the Dominion of India in accordance with the provisions of the Government of India Act, 1935 as adapted after 15th August 1947 and who are now the States specified in Part B of the First Schedule of the Constitution of India, it could not be said that there was a transition from the provisions of the Government of India Act, 1935 to the provisions of the Constitution, is unwarranted and untenable. So also is the contention of the petitioner that for that reason the Constitution (Removal of Difficulties) Order No. II in so far as it adapts the provisions of the Constitution in their applicability to Part B States during the period of transition, is ultra vires. It is said that the Order is valid; it came into force by virtue of Sec. 5 (3) of the General Clauses Act, 1897 from the midnight of 25th January, 1950 and not, as the applicant says, from some time after the President took the oath on 26th January, 1950 at 10-15 a.m. and entered upon his office; and that, therefore, as directed by this Order, Art. 178 does not apply during the transitional period specified in that Order and the Assembly is not required to choose one member as its Speaker. It is, further argued that Art. 385 of the Constitution itself contemplates continuance of the "body or authority functioning immediately before the commencement of this Constitution as the Legislature of the State" without any alteration in its structure. The word 'body' in Art. 385 in relation to a State which has a House of Legislature functioning under Art. 385, includes the Officers of the State Legislature. The Office of Speaker in a House of the Legislature of any State specified in Part B functioning immediately before the commencement of the Constitution does not, therefore, fall vacant by the commencement of the Constitution itself and no election of Speaker is necessary under Art. 178 as adapted by the Constitution (Removal of Difficulties) Order No. II. The learned Advocate General, further contended that as the Interim Legislative Assembly Act of 1949 is a law which was enforced in Madhya Bharat immediately before the commencement of the Constitution, it still continues in force under Art. 372, and that Shri Ram Sahay who was duly elected under that Act as the Speaker of the Assembly must also continue in the Office on the coming into force of the Constitution of India, and that the absence of an express provision in Art. 385 for the continuance of the Speaker of a House of the Legislature of a Part B State does not in any way affect the continuance of the non-applicant in the office. As to the objection that the non-applicant had not taken an oath according to the form set out for the purpose in the Third Schedule, the reply of the learned Advocate General is that Shri Ram Sahay did take an oath before the Raj Pramukh on 26th January, 1950 describing himself as the Speaker of the Legislative Assembly and declaring that he would bear true faith and allegiance to the Constitution of India as by law established and he would faithfully discharge his duties as the Speaker. It is, however, argued that even if Shri Ram Sahay has not taken an oath strictly conforming to the form set out in the Third Schedule, his failure to do so does not render his seat in the Assembly or the office of Speaker, which he is holding, vacant, and that in any case the question whether Shri Ram Sahay should be permitted to take his seat and exercise the powers and perform the duties of the Speaker as he has not taken the prescribed path, was one exclusively pertaining to the internal affairs of the Legislative Assembly which cannot be enquired into by this Court. The learned Advocate General next contended that this application was not maintainable. No writ in the nature of quo warranto could be issued against the opponent, because as the Speaker of the Assembly, he does not hold "what can be described as an office under the Crown". The learned Advocate General also suggested that as under Art. 194 (3) the powers, privileges and immunities of a House of Legislature of a State are at present those of the House of Commons of the Parliament of the United Kingdom, the matter of the continuance or the election of Speaker is one exclusively of the rights and privileges of the Legislature and that, therefore, the jurisdiction of this Court to enquire into the matter is excluded. 33. I now proceed to consider the several points raised by the petitioner. I must say that I feel I have had small success in following the arguments addressed to us by the applicant. The petitioner questioned the validity of the Constitution (Removal of Difficulties) Order No. II by first saying that under the Constitution, the President has no power at all to modify the provisions of the Constitution for the removal of difficulties. The petitioner questioned the validity of the Constitution (Removal of Difficulties) Order No. II by first saying that under the Constitution, the President has no power at all to modify the provisions of the Constitution for the removal of difficulties. When his attention was drawn to the fact that the President derives this authority under the Constitution itself and that Art. 392 in express words gives him the power to remove difficulties by directing that the constitution shall, during such period as may be specified in the Order, have effect subject to such adaptations whether by way of modification, addition or omission as he may deem to be necessary or expedient, the petitioner challenged the validity of the Order on the ground that in respect of the former Indian States, there has been no transition from the provisions of the Government of India Act 1935 to the provisions of the Constitution and that there was no difficulty in holding an election of the Speaker under Art. 178 in a State specified in Part B of the First Schedule having a House of the Legislature. He also attacked the order on the ground that Art. 392 does not give to the President the power to adapt the Constitution by way of substitution, as has been done in the case of Art. 178, and that the Order does not specify the period during which the Constitution shall have effect in the modified form. The last objection may be disposed of by saying that the words "whether by way of modification, addition, or omission" in Art. 392 (1) are sufficiently comprehensive to include an adaptation by way of substitution. For, after all, substitution of one Article of the Constitution by another is in substance nothing but an omission of one Article and the addition in its place of another. The Order also specifies with reference to an event which is reasonably certain, namely, the summoning of the Parliament and the State Legislatures to meet for the first session after they are duly constituted under the Constitution, the time during which the Constitution is to be effective subject to certain adaptations. 34. The Order also specifies with reference to an event which is reasonably certain, namely, the summoning of the Parliament and the State Legislatures to meet for the first session after they are duly constituted under the Constitution, the time during which the Constitution is to be effective subject to certain adaptations. 34. There is no substance in the other objections also as to the validity of the Order, From the material facts already narrated - facts which are now historical and indubitable - there can be no doubt that during the period from 15-8-47 to 26-1-50, the transformation in the status of this state, as of other former Indian States, from that of an Acceded State to the Dominion of India to a State specified in Part B of the First Schedule of the Constitution, the transition is from the provisions of the Government of India Act, 1935 to the provisions of the Constitution, by virtue of the Instruments of Accession executed by the Rulers of the Indian States and subsequently by the Raj Pramukhs and subject to their terms, the Governor General of India, the Dominion Legislature, the Federal Court, and the other Dominion Authorities exercised in relation to the States and in respect of the matters mentioned in List I and List III of the Schedule 7 of the Government of India Act, the functions that were vested in them by or under the Government of India Act, 1935. It is, no doubt, true that outside the limits of the Instruments of Accessions, the autonomy of the States was not affected in any way by the Government of India Act, 1935. But by their accession to the Dominion of India, the scope and character of their sovereignty was affected by the Government of India Act, 1935. It is not necessary to discuss here how the sovereignty of the States was affected by their accession to the Dominion of India. It is sufficient to say that their sovereignty was by their accession to the Dominion of India considerably impaired and wholly transformed, and they became subject to the provisions of the Government of India Act, 1935 to the extent specified in their Instruments of Accession. It is sufficient to say that their sovereignty was by their accession to the Dominion of India considerably impaired and wholly transformed, and they became subject to the provisions of the Government of India Act, 1935 to the extent specified in their Instruments of Accession. I can find no shadow of a justification for contending that in respect of the former Indian States which are now specified in Part B and C of the First Schedule of the Constitution, there has been no transition from the provisions of the Government of India Act, 1935 to the Provisions of Constitution and that, therefore, as regards these states, the Constitution (Removal of Difficulties) Order No. II should not be given effect to. 35. Again, it appears to me from the language of Art. 392 that under that Article, the power of the President to make any adaptations in the Constitution is not limited to the removal of only those difficulties which may arise in relation to the transition from the provisions of Government of India Act, 1935 to the provisions of Constitution. It is wider. The word 'particularly' used in that Article does not limit or cut down the generality of the preceding words, namely, "for the purpose of removing any difficulties". The Constitution is "a contrivance of human wisdom to provide for human wants". As such, it is by no means infallible; for it is beyond the wit of man to devise anything that can be called perfect. Difficulties are, therefore, bound to arise especially in relation to the transition. As the nature of these difficulties, and of the provisions which should be made for meeting them could not have been clearly foreseen at the time of the framing of the Constitution. Art. 392 was included in the Constitution for the purpose of facilitating the transition. In relation to the State Legislatures, with which we are concerned, difficulties arose because of the operation, after the commencement of the Constitution, of the various provisions dealing with the Legislatures, which have not yet come into being and because of the continuance by the Constitution of certain bodies to exercise the powers and perform the duties conferred by the provisions of the Constitution on the Legislatures until the limited period specified in Arts. 382 and 385. 382 and 385. The measure of a difficulty contemplated by Art. 392 is not, as I conceive, whether it is practicable to do a thing required to be done under an article of the Constitution, to wit, whether it is practicable to hold election of the Speaker under Art. 178. It is, whether consistently with the transitional provisions contained in Part XXI of the Constitution it can be done. Judged by this test, the Constitution (Removal of Difficulties) Order No. II which secures, harmony between certain Articles of the Constitution which are material here and the transitional provisions contained in Part XXI of the Constitution cannot on the ground urged by the applicant be held as invalid. 36. Indeed, if the contention of the petitioner that the Order is invalid so far as Part B States are concerned, is accepted, the petitioner is out of Court. For, then there is no provision in the Constitution under which the petitioner can claim that the body, of which he is a member, is required to hold an election of Speaker. He cannot say that the election should be held under the original Art. 178. This Article is applicable only to a Legislature duly constituted under the provisions of the Constitution. That the body of which the petitioner is a member and which has been empowered under Art. 385 to exercise the powers and perform the duties conferred by the provisions of the Constitution, is not a Legislature duly constituted under Chapter III of Part VI as applied to this State, is clear enough. If it was one, there would be no need for the provision in Art. 385 that "It shall exercise the powers and perform the duties conferred by the provision of this Constitution on the House or Houses of the Legislature of the State so specified." It is only with the aid of the Constitution (Removal of Difficulties) Order No. II, which inter alia modifies Art. 168 and suspends the operation of Arts. 169 to 172 that the petitioner can argue that when the modified Art. 168 says that subject to the provisions of Art. 385, there shall be for the State a Legislature, it means that during the limited period specified in the Constitution (Removal of Difficulties) Order No. II, the Legislature for the State shall be, in the manner indicated in Art. 385 and that the substituted Art. 178 applied to such a Legislature. JUDGEMENT : SHINDE, J. The petitioner Shri Anand Bihari Mishra advocate and member of the Interim Legislative Assembly Madhya Bharat has filed this petition for the issue of an information in the nature of quo warranto against Shri Ramsahai to enquire by what authority he supported his claim to the office of a speaker of the Legislative Assembly of Madhya Bharat in order that the right to the office may be determined. The petitioner alleges that the body functioning immediately before the Constitution of India as the Legislative Assembly of Madhya Bharat was the Legislative Assembly constituted under the Interim Legislative Assembly Act No. 23 of 1949. Shri Ramsahai was holding the office of a president of that Assembly. On the commencement of the constitution on 26th January, 1950 Interim Legislative Assembly Act terminated and as Art. 385 of the Constitution of India does not make any provision for the President to continue as Art. 382 of the Constitution does, Shri Ram Sahai had no right to be the speaker of the Legislative Assembly of Madhya Bharat. Nevertheless the counter-petitioner had, since the commencement of the constitution, occupied and continues to occupy the speaker's chair. Shri Ram Sahai has also not made and subscribed the oath required by Art. 188 of the Constitution of India. This conduct of Shri Ram Sahai amounts to an illegal usurpation of a public office. 2. In order to fully appreciate the force of Mr. Anand Bihari's arguments it is necessary to outline the history of the Madhya Bharat Legislature immediately before the advent of the Constitution. 3. The Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant whereby they united their territories in one State with a common Executive Legislature and judiciary and named it. "The United State of Gwalior, Indore and Malwa" (Madhya Bharat). 3. The Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant whereby they united their territories in one State with a common Executive Legislature and judiciary and named it. "The United State of Gwalior, Indore and Malwa" (Madhya Bharat). By this Covenant which was entered into in 1948, the Rulers agreed to make over the administration of their States to the Raj Pramukh at the latest by the 1st of July 1948. Article X of the said Covenant provided for the formation of a Constituent Assembly to frame a constitution for Madhya Bharat. The said Article also provided for the constitution of an Interim Legislative Assembly which was to be dissolved automatically on the formation of the Constituent Assembly. In pursuance of this article first an Interim Legislative Assembly Ordinance and then the Interim Legislative Assembly Act No. 23 of 1949 were enacted. Later on the original Covenant was modified by a supplementary Covenant and it was agreed that the Constitution of India adopted by the Constituent Assembly of India would be the Constitution for the United State of Madhya Bharat. Suitable consequential amendments in the original Covenant were also made by this supplementary Covenant. 4. Mr. Anand Bihari contends that at midnight on the 25th January, 1950 the Interim Legislative Assembly Act No. 23 of 1949 ceased to be operative and as Art. 385 does not make any provision for the speaker to continue as Art. 382 does, Mr. Ram Sahai, the President of the Interim Legislative Assembly, ceased to be the President of the New Legislature formed under the Constitution. He further contends that the President of India took the oath at about 10 a.m. and hence the Constitution (Removal of Difficulties) Order No. II issued on the 26th January 1950 could only be issued after 10 a.m. There was thus a vacuum left from the mid-night tin 10 a.m. during which period original Art. 178 came into force. Hence the Madhya Bharat Legislature should have elected a speaker as enjoined by Art. 178. 5. Hence the Madhya Bharat Legislature should have elected a speaker as enjoined by Art. 178. 5. Article 372 lays down that : "Notwithstanding the repeal by this Constitution of the enactments referred to in Art. 395 but subject to the other provisions of this Constitution all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." Exception I defines the expression "law in force." It says : "The expression 'law in force' in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas." It is clear that all the law in force in the territory of India immediately before the commencement of the Constitution is to continue in force until altered or repealed subject to the provision of the Constitution. For instance, if any provision of the law in force is inconsistent with any provision of Part III, it will be void tinder Art. 13 (1). Three inconsistencies have been pointed out in the Interim Legislative Act by the petitioner. One is that the Act lays down that it is to be subject to the provisions of the Covenant (Vide S. 3 of the Interim Legislative Assembly Act); the other is that the legislature is to consist of the Raj Pramukh and the Assembly (Vide S. 3 of the Interim Legislative Assembly Act); the third is that the Assembly is to be dissolved on the formation of the Constituent Assembly referred to in Para. 1 of the Art. X of the Covenant (Vide S. 4 of the Interim Legislative Assembly Act). It is true that the Interim Legislative Assembly is to be subject to the provisions of the Covenant. But that provision has not been shown to offend against any provision of the Constitution. 1 of the Art. X of the Covenant (Vide S. 4 of the Interim Legislative Assembly Act). It is true that the Interim Legislative Assembly is to be subject to the provisions of the Covenant. But that provision has not been shown to offend against any provision of the Constitution. Art. 238 (7) lays down : "For every State there shall be a Legislature which shall consist of the Rajpramukh and; (a) in the State of Mysore, two houses; (b) in other States, one Houses." Far from being inconsistent, it is actually in keeping with the provision of the Constitution, Section 4 of the Interim Legislative Assembly Act lays down the duration of the Legislature, Shri Anand Bihari is obviously unaware of the fact that this section is no longer in force. The original Covenant has been modified by a supplementary Covenant. Article 1 of this Supplementary Covenant is as follows : "Article I. Notwithstanding anything contained in the original Covenant, the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the United State of Madhya Bharat, and shall be enforced as such in accordance with the tenor of its provisions; and accordingly all references in the original Covenant to the Constitution framed thereunder shall be construed as references to the constitution of India." Article II reads thus : "Article II. In Art. X of the original covenant : (a) for paragraph (1), the following paragraph shall be substituted and shall be deemed always to have been substituted, namely : "(1) There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly", and (b) in paragraph (3) for the words beginning with the words "Upon the formation" and ending with the words "assent of the Rajpramukh", the words "Until the commencement of the Constitution of India" shall be substituted, and the words "or as the case may be, the Constituent Assembly" shall be omitted" Article III reads thus : "Article III. Schedule III to the original Covenant shall be omitted." It is evident that the Rulers, who were party to the Covenant agreed by this Supplementary Covenant to adopt and enforce the Constitution of India in Madhya Bharat. Schedule III to the original Covenant shall be omitted." It is evident that the Rulers, who were party to the Covenant agreed by this Supplementary Covenant to adopt and enforce the Constitution of India in Madhya Bharat. Paragraph 1 articles X of the Covenant now reads as follows : "There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly." The supplementary Covenant also predicates that this paragraph shall be deemed always to have been substituted. This substitution has the effect that para. (1) of Article X of the old Covenant has never been in existence. As the legislature is to be subject to the provisions of the Covenant according to S. 3 of the Interim Legislative Assembly Act, S. 4 has become superfluous and inoperative. These provisions of Ss. 3 and 4 of the Interim Legislative Assembly Act, therefore, are not inconsistent with any provisions of the Constitution and offer no bar to the continuance of the Interim Legislative Assembly Act under Art. 372 of the Constitution. The Act was passed by a competent authority before the commencement of the Constitution and has not been previously repealed. Hence it continues in force even after the commencement of the Constitution. 6. Having thus come to the conclusion that the Interim Legislative Assembly Act still continues in force, other contentions of Mr. Anand Bihari are deprived of much of their force. I Shall however, deal with them one by one. Hence it continues in force even after the commencement of the Constitution. 6. Having thus come to the conclusion that the Interim Legislative Assembly Act still continues in force, other contentions of Mr. Anand Bihari are deprived of much of their force. I Shall however, deal with them one by one. Art. 385 runs as follows : "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding Indian State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." It lays down that until the House of the Legislature has been duly constituted and summoned to meet for the first session under the provisions of this constitution, the body or authority functioning immediately before the commencement of this constitution as the Legislature snail exercise the powers and perform the duties conferred by the Constitution on the House of the Legislature of the State. This article makes it abundantly clear that the body functioning as the Legislature is to exercise the power and perform duties conferred by the Constitution. This article does not contemplate creating a new body under the Constitution to function as the Legislature. It continues the old one; but it has been empowered to function as the legislature under the constitution until the legislature is duly constituted under the provisions of the constitution. The question of electing a speaker, therefore, does not arise at all. The old body is to continue to exercise the powers under the constitution. The wording of Art. 382 is different. It says the House or Houses of the Legislature shall exercise the powers. The House of the legislature may or may not include a speaker. Besides as the Government of India Act of 1935 and the Indian Independence Act of 1947 by which these legislatures were constituted were repealed, it was necessary to provide for the continuance of the speaker in Part A States. Article 385 states that the body or authority functioning as the legislature is to exercise the powers under the constitution. Besides as the Government of India Act of 1935 and the Indian Independence Act of 1947 by which these legislatures were constituted were repealed, it was necessary to provide for the continuance of the speaker in Part A States. Article 385 states that the body or authority functioning as the legislature is to exercise the powers under the constitution. The body functioning as the legislature includes, in my opinion even the speaker. Article 385 deals with different kinds of legislative bodies. It purports to deal with legislative bodies which may be elected, semi-elected or nominated. In such legislative bodies the speaker may be elected or nominated by a Ruler. Consequently the article contemplates continuing legislatures as they were constituted. Its object is to import into the Union the old legislative machinery in Part B States lock, stock and barrel. Besides the Interim Legislative Assembly Act has continued in force under art. 372 as already stated. Hence the President elected under the Act also continues ipso facto. This argument has, therefore, no force. 7. I would like to clear one point before proceeding to consider other contentions urged by Mr. Anand Bihari. The petitioner argued that the legislature contemplated by Art. 385 is a new legislature and it is this new legislature that is empowered to exercise the powers under the constitution. This argument, in the face of the clear wording of article 385, is not tenable. The article does not create a new legislature. It gives power to the old legislature to exercise powers under the constitution. The opening words "until the House or Houses of the legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of this constitution" taken along with the words "the body or authority functioning immediately before the commencement of this constitution as the legislature of the corresponding Indian State" make it amply clear that it is the old legislature that is continued. Besides if the article had contemplated constituting a new legislature under the constitution, it was unnecessary to state that it shall exercise the powers given by the constitution. On the contrary conferment of powers under the constitution denotes that it is the old legislature that is contemplated by article 385. 8. The next contention put forward by Mr. Besides if the article had contemplated constituting a new legislature under the constitution, it was unnecessary to state that it shall exercise the powers given by the constitution. On the contrary conferment of powers under the constitution denotes that it is the old legislature that is contemplated by article 385. 8. The next contention put forward by Mr. Anand Bihari is that the Constitution (Removal of Difficulties) order No. II issued on the 26th January, 1950 came into force after 10 A. M. and thus left a vaccum from mid-night till 10 A. M.; as the constitution came into force at midnight, article 178 became operative; hence the Interim Legislative Assembly should have elected a speaker. This argument proceeds on the assumption that the Interim Legislative Assembly Act or S. 8 of the said Act, which provides for the election of a President, ceased to operate. As already pointed out the Interim Legislative Assembly Act continues in force even after the commencement of the constitution. Section 8 of the said Act also continues in force as it is not repugnant to any of the provisions of the Constitution. Article 178 is attracted only when a Legislative Assembly is constituted under the provisions of the constitution. Article 385 purports to continue the old legislative body as a whole. Hence article 178 has no application. 9. The argument that the Constitution (Removal of Difficulties) Order No. II came into force after 10 A. M. is also fallacious. Article 380 provides that such person as the Constituent Assembly of the Dominion of India shall have elected in that behalf shall be the President of India until a president has been elected in accordance with the provisions contained in chapter 1 of Part V and has entered upon his office. This clearly lays down that a person elected by the Constituent Assembly of the Dominion of India is to be the President of India. The article prescribes no restrictions such as taking of oath as laid down in Art. 60 of the Constitution. The Constitution (Removal of Difficulties) Order No. I however lays down that the person elected shall, before entering upon his office, make and subscribe the oath prescribed in Art. 60. Consequently the President has to take the oath before entering upon his office. Article 367 however provides for the contingency. The Constitution (Removal of Difficulties) Order No. I however lays down that the person elected shall, before entering upon his office, make and subscribe the oath prescribed in Art. 60. Consequently the President has to take the oath before entering upon his office. Article 367 however provides for the contingency. This article makes the General Clauses Act of 1897 applicable to the Constitution. Section 5 (3) of the General Clauses Act states that unless the contrary is expressed a central Act or Regulation shall be construed as coming into operation immediatedly on the expiration of the day preceding its commencement. This implies that the Constitution (Removal of Difficulties) Order No. II issued on the 26th January, 1958 came into force immediately on the expiration of the 25th. In this view of the matter there is no vaccum left. The petitioner referred us to 'Sunil Kumar Bose v. The Chief Secy. to the Govt. of West Bengal', AIR (37) 1950 Cal 274 and 'Brahmeshwar Prasad v. State of Bihar', AIR (37) 1950 Pat 265. In both the cases their Lordships of the Calcutta and Patna High Court were dealing with provisions of enactments, which were void because of their repugnancy to the constitution. They had held that as the president could make no valid order until after 10-15 A. M. on the 26th (when he took the oath), the subsequent order could not vivify the Act, which had become void simultaneously with the constitution coming into force. Both these decisions do not apply to the present case as none of the provisions of the Interim Legislative Assembly Act had become void because of repugnancy. 10. The Constitution (Removal of Difficulties) Order No. II provides that for Art. 178 substitute : "178. The speaker and the Deputy Speaker of the Legislative Assembly : So often as the office of the speaker or Deputy speaker of the Legislative Assembly of a State becomes vacant, the Assembly of a State becomes thereof to be its speaker or Deputy speaker, as the case may be." This provision is to be construed to have come into force at midnight on the 25-1-1950 by virtue of S. 5 of the General Clauses Act. What this order in effect did is to delete the first portion of Art. 178 and to retain the last one. What this order in effect did is to delete the first portion of Art. 178 and to retain the last one. As that part of the article, which requires a Legislative Assembly to choose a speaker, is not in force from the midnight of the 25th, the argument of the petitioner falls to the ground. Election of a speaker is to be held only when there is a vacancy. Therefore even if it be conceded that article 178 is applicable to the Interim Legislative Assembly, election of a speaker is not necessary as the office has not fallen vacant. 11. The petitioner also contends that the President had no power to issue the Constitution (Removal of Difficulties) Order No. II. He argues that in issuing the said order he has exceeded the power conferred by Art. 392 of the Constitution. His first objection is that there was no difficulty to remove and hence the Order should not have been issued. Article 392 runs thus : "1. The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient". The question is whether a subjective test or an objective test is to be applied to see whether there is a difficulty or not. Article 392 gives power to the President to remove the difficulties. Naturally it is the President who has to decide whether there is a difficulty or not. Hence it is the subjective test that is to be applied. If therefore the President was of the opinion that there was a difficulty, he certainly could issue an order under Art. 392. This objection, therefore, has no force. 12. Another objection to the issue of the order is that the President substituted a new article for the original Art. 178 which he has no power to do under Art. 392. Mr. Anand Bihari argues that adaptations can be made only by modification, addition or omission; but not by substitution. The word modify conveys the sense of a partial change and not a complete change. Mr. Anand Bihari argues that adaptations can be made only by modification, addition or omission; but not by substitution. The word modify conveys the sense of a partial change and not a complete change. Now although the Constitution (Removal of Difficulties) Order No. II states that for Art. 178 substitute the following, in actual fact the substituted form is only a modification of Art. 178. As already stated in the earlier part of this judgment, all that the order does is to dispense with the first part and retain the latter. The adaptation of Art. 178 is only by a modification. Consequently there is no room for this objection. 13. The last objection to the issue of the Order is that under Art. 392 power of adaptation is given only to remove difficulties in relation to the transition from the provisions of the Government of India Act, 1935 to the provisions of this Constitution. Article 392 has already been reproduced. It says the president may, for the purpose of removing any difficulties 'particularly' in relation to the transition from the provisions of the Government of India Act 1935 to the provisions of this Constitution, by order direct etc. etc. This language clearly shows that the power is general. The mention of one particular instance in which it can be used does not circumscribe it. Hence this objection also cannot be accepted. 14. The first contention, therefore, cannot be accepted. The Constitution has actually provided by Art. 372 for the continuance of all laws in force as long as they are not repugnant to any of the provisions of the Constitution. Consequently there is no doubt that the Interim Legislative Assembly Act of 1949 continued in force even after the commencement of the constitution. The Interim Legislative Assembly Act therefore continued even after the commencement of the constitution. Article 385 empowers the old legislatures to exercise powers under the Constitution. As Art. 385 intended to continue the entire legislative machinery, it was not necessary to elect a speaker on the commencement of the constitution. Besides Art. 178, by virtue of which election is claimed, being no longer in force since the inception of the constitution, election cannot be claimed under Art. 178. The objections to the issue of the Constitution (Removal of Difficulties) Order No. II are devoid of any force. Besides Art. 178, by virtue of which election is claimed, being no longer in force since the inception of the constitution, election cannot be claimed under Art. 178. The objections to the issue of the Constitution (Removal of Difficulties) Order No. II are devoid of any force. In 'A. Nesamony v. T. M. Varghese', 1950 DLR (Tr) 402, Govinda Pillai, J., observed as follows : "After a careful consideration of the several provisions of the Constitution of India and the subsequent orders passed by the President by virtue of the powers vested to him under the provisions of the Constitution it does not appear to me that the absence of a provision in Art. 385, Constitution of India for the continuance of the speaker of the Legislative Assembly of Travancore-Cochin State would in any way affect his continuance as such. The provisions relating to the same in Arts. 379 and 382 were necessitated because of the repeal of the Acts of 1935 and 1947 referred to already." The first contention, therefore, must be rejected. 15. The second contention of the petitioner is that Shri Ram Sahai did not take the requisite oath and hence his occupation of the office is illegal. Article 188 lays down that every member of the Legislative Assembly shall before taking his seat make and subscribe before the Governor an oath or affirmation according to the form set put for the purpose in the Third Schedule. This article is essentially meant to apply to legislatures constituted under the Constitution. In my judgment it does not apply to old legislatures continued by virtue of Arts. 372 and 385. As already stated it was the old legislative machinery which was continued and was empowered to exercise powers under the Constitution. Besides under Art. 372 the Indian Legislative Assembly Act of 1949 continued in force. If the members or the speaker had taken oath in accordance with the provisions of that Act, they can validly continue to be members or speaker of the said Assembly even after the commencement of the Constitution. It may also be mentioned here that Shri Ram Sahai actually did take the oath. He took the oath in the form prescribed in the third schedule with the modification that instead of calling himself a member he called himself a speaker. There is no special form prescribed for a speaker in the Constitution. It may also be mentioned here that Shri Ram Sahai actually did take the oath. He took the oath in the form prescribed in the third schedule with the modification that instead of calling himself a member he called himself a speaker. There is no special form prescribed for a speaker in the Constitution. This contention, therefore, has no substance. 16. Even if it be conceded that Shri Ram Sahai did not take the requisite oath, can a rule for information in the nature of quo warranto be issued? If the oath is not taken, a member does not cease to be a member. The penalty is prescribed in Art. 193. It states that a member, who, without complying with the requirements of Art. 188, sits or votes, shall be liable in respect of each day on which he so sits or votes to a penalty of Rs. 500/-. Section 11 of the Interim Legislative Assembly Act lays down that if a member fails to make the oath, the Government may by notification in the Gazette declare his seat vacant. Under the Interim Legislative Assembly Act the Government has been given a discretion to declare his seat vacant. But failure to make the oath does not ipso facto render his seat vacant. In these circumstances an information would be futile in its results and hence no information in the nature of a quo warranto would lie. 17-20. The learned Advocate General opposes the petition on the ground that the office of the speaker is not an office under the Crown i.e. the Executive; hence no information in the nature of quo warranto would lie. An information in the nature of quo warranto will lie in respect of any particular office when that office satisfies the following conditions : (1) The office must have been created by charter from the Crown or by Statute. (2) The duties of the office must be of a public nature. (3) The office must be one the tenure of which is permanent' in the sense of not being terminable at pleasure. 4. The person proceeded against has been in actual possession and user of the particular office in question (Vide Halsbury's Laws of England, Vol. X 1909 Edn. pages 129 and 130 and 131). The office of the speaker has been created by statute. 4. The person proceeded against has been in actual possession and user of the particular office in question (Vide Halsbury's Laws of England, Vol. X 1909 Edn. pages 129 and 130 and 131). The office of the speaker has been created by statute. Article 178 of the Constitution and S. 6 of the Interim Legislative Assembly Act of Madhya Bharat provide for it. That the duties of the office of a speaker are of a public nature is not disputed by the Advocate General. The third and the fourth requisite conditions are also fulfilled in the present case. In these circumstances the objection of the Advocate General cannot be sustained. 21. In the result I see no ground to confirm the rule. The rule is, therefore, discharged and the petition is dismissed with costs. Advocate's fee is assessed as Rs. 100/-. 22. DIXIT, J. :- This is a petition under Art. 226 of the Constitution of India for the issue of a writ in the nature of quo warranto against the non-applicant Shri Ram Sahay to show cause as to by what authority, he is functioning as the Speaker of the Madhya Bharat Legislative Assembly and is exercising and performing the powers, duties and functions which may be performed or exercised by the Speaker under the Constitution, and for the issue of an injunction restraining the non-applicant from functioning as the Speaker and exercising and performing the powers, duties and functions of the Speaker. The petitioner is an Advocate of this Court and a member of the Madhya Bharat Legislative Assembly. The petitioner is an Advocate of this Court and a member of the Madhya Bharat Legislative Assembly. He states in his application that just before the commencement of the Constitution he and the opponent Ram Sahay were members of the Legislative Assembly constituted under the Covenant entered into on 22-4-1948 by the Rulers of Gwalior, Indore and certain other States of Central India for the formation of the Madhya Bharat and that the non-applicant Ram Sahay was also the Speaker thereof; that this Assembly is, now under Parts VI and VII, the Constitution of India, the Madhya Bharat State Legislature and is empowered under Art. 385 of the Constitution to exercise the powers and perform the duties conferred by the provisions of the Constitution on the Legislature of the State; that under Art. 178, the State Legislature is required to choose a member of the Assembly to be the Speaker thereof and that every member of the Assembly has, before taking his seat, to take an oath or affirmation according to the provisions of Art. 188; but that after the commencement of the Constitution no such election of the Speaker has been held and that the opponent Ram Sahay has not taken an oath or affirmation in the prescribed form and has thus illegally usurped the office of the Speaker. The petitioner, further, states that he questioned the legality of the non-applicant's continuance as the Speaker by raising a point of Order in the Assembly, but that the objection was overruled by the non-applicant. He, further, says that he addressed letters to the Raj Pramukh, the Minister for Law and Justice and the opponent himself seeking redress before approaching this Court for a remedy under Art. 226. 23. In his return to the rule nisi issued by this Court, Shri Ram Sahay does not say that after the coming into force of the Constitution, the Legislature elected him as its Speaker. 23. In his return to the rule nisi issued by this Court, Shri Ram Sahay does not say that after the coming into force of the Constitution, the Legislature elected him as its Speaker. He, however, opposes the petition on the grounds (1) that as he was the duly elected Speaker of the Assembly before the commencement of the Constitution he is entitled under the provisions of the Constitution to continue in the office and to exercise the powers and perform the duties of the Speaker; (2) that the matter of the election of a Speaker and of his continuance as the Speaker is one exclusively pertaining to the internal affairs of the Legislative Assembly and that this Court is precluded from enquiring whether the continuance of the non-applicant as the Speaker of the Assembly is legal; (3) and that as he holds no office under the Government or any office similar to what may be described as an office under the Crown, a writ in the nature of quo, warranto cannot be issued against him and he cannot be ousted in these proceedings from the office, which he is holding. 24. Before stating the contentions of the parties, it seems to me necessary to narrate certain material facts and to refer to the provisions of the Constitutions, relevant to the matter before us. In April 1948, the Rulers of Gwalior, Indore and certain other States in Central India entered into a Covenant for the formation of the United State of Gwalior, Indore and Malwa (Madhya Bharat). The Covenant contained provisions for the Union and integration of the several States into one United State and made the present Ruler of Gwalior, the Raj Pramukh during his life time. Article VIII of the Covenant enjoined that the Raj Pramukh shall execute on behalf of the United State an Instrument of Accession in accordance with the provisions of Sec. 6 of the Government of India Act, 1935, and in place of the Instruments of Accession of several Covenanting States. Article X of the Covenant provided for the formation of a Constituent Assembly to frame a Constitution for the United State, and for the Constitution of an Interim Legislative Assembly to function until the formation of the Constituent Assembly. Article X of the Covenant provided for the formation of a Constituent Assembly to frame a Constitution for the United State, and for the Constitution of an Interim Legislative Assembly to function until the formation of the Constituent Assembly. Clause III of the Article gave to the Raj Pramukh the power to make and promulgate Ordinances for the peace and good Government for the United State. This power was subject to certain conditions. The Instrument of accession was accordingly executed by the Raj Pramukh accepting the matters mentioned in List I and List III of the Seventh Schedule to the Government of India Act, 1935 as the matters with respect to which the Dominion Legislature had the power to make laws for the United State. An Interim Legislative Assembly in accordance with the provisions of Art. X of the Covenant was also constituted, and the petitioner and the opponent Shri Ram Sahay became the members of the Assembly. On 30-10-1948, the Raj Pramukh made and promulgated the Interim Legislative Assembly Ordinance (Ordinance No. 18 of 1948) containing provisions about the constitution of the Assembly, its dissolution, sessions, the election of the President, Deputy President and other connected matters. An election of the President was held under Sec. 8 of the Ordinance and the Assembly chose the non-applicant as its President. The provisions of this Ordinance were subsequently embodied in the form of an Act; namely, Interim Legislative Assembly Act (Act No. 23 of 1949) which replaced the Ordinance. Sometime towards the end of 1949, the Rulers of Gwalior, Indore and certain other States entered into a Supplementary Covenant modifying certain Articles of the original Covenant of 22-4-48. Article I of the Supplementary Covenant is in the following terms : "Notwithstanding anything contained in the original Covenant, the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the United State of Madhya Bharat, and shall be enforced as such in accordance with the tenor of its provisions; and accordingly all references in the original Covenant to the Constitution framed thereunder shall be construed as references to the Constitution of India." 25. By Art. II of the Supplementary Covenant, for the provision in the original Covenant relating to the formation of a Constituent Assembly, the following paragraph was substituted with the direction that "it shall be deemed always to have been substituted". By Art. II of the Supplementary Covenant, for the provision in the original Covenant relating to the formation of a Constituent Assembly, the following paragraph was substituted with the direction that "it shall be deemed always to have been substituted". The substituted paragraph is as follows : "(1) There shall be a Legislature for the United State consisting of the Raj Pramukh and a Legislative Assembly." 26. On 24-11-1949, the Raj Pramukh issued a proclamation accepting the Constitution framed by the Constituent Assembly of India as the Constitution for the State and enjoining its enforcement in the State. Thus, just before the commencement of the Constitution of India, the Interim Legislative Assembly was governed by the Interim Legislature Act (Act No. 23 of 49) and the counter petitioner Shri Ram Sahay was the duly elected Speaker of the Assembly under S. 8 of the Act. 27. Coming now to the provisions of the Constitution of India, we find that Part VII of the Constitution contains special provisions governing the Constitution of the States specified in Part B of the First Schedule, as also the modifications subject to which the provisions of Part VI are applicable to Part B States. Article 168 of the Constitution as applied to Part B States says : "For every State there shall be a Legislature which shall consist of the Raj Pramukh and (a) in the State of Mysore, two Houses; (b) in other States one House." Article 178 provides that : "Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be." 28. Under Art. 188 every member of the Legislature of a Part B State must, before taking his seat make and subscribe before the Raj Pramukh or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule. Clause 2 of Art. 189 declares that any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. Clause 2 of Art. 189 declares that any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do, sat or voted or otherwise took part in the proceedings. Article 193 prescribes the penalty for sitting and voting before making oath or affirmation under Art. 188. The next material and important Article is Article 385. It is as follows : "Until the House or Houses of the Legislature of a State specified in Part B of the First Schedule has or have been duly constituted and summoned to meet for the first session under the provisions of the Constitution, the body or authority functioning immediately before the commencement of this Constitution as the Legislature of the corresponding State shall exercise the powers and perform the duties conferred by the provisions of this Constitution on the House or Houses of the Legislature of the State so specified." 29. On the 26th January, 1950, the Constitution (Removal of Difficulties) Order No. II was made by the President in exercise of the powers conferred on him by Clause I of Art. 392. By this Order, it was provided that until both Houses of Parliament and the State Legislatures have been duly constituted and summoned to meet for the first session under the provisions of the Constitution, the Constitution of India shall have effect subject to the adaptations specified in Part I and Part II of the Schedule to the Order. One result of these adaptations is that during the transitional period indicated in the Order, Art. 168 in its applicability to the States specified in Part B of the First Schedule is made to read to this effect, namely, "Subject to the provisions of Art. 385, there shall be for every State a Legislature which shall consist of the Raj Pramukh and (a) in the State of Mysore, two houses; (b) in other States, one House." 30. A new Art. 172 (A) inserted in the constitution by the Order No. 2 makes the provisions of Arts. 169 to 172 inapplicable to the House or Houses of the Legislature of any State functioning under Art. 385. A new Art. 172 (A) inserted in the constitution by the Order No. 2 makes the provisions of Arts. 169 to 172 inapplicable to the House or Houses of the Legislature of any State functioning under Art. 385. The Order also substituted for Art. 178 the following Article : "So often as the Office of Speaker or Deputy Speaker of the Legislative Assembly of a State becomes vacant, the Assembly shall choose a member thereof to be its Speaker or Deputy Speaker, as the case may be." Special provisions have also been inserted in the Constitution by the Order No. 11 rendering inapplicable certain Articles of which Art. 178 is one, to any Part B State which has no House of the Legislature. 31. The petitioner presents before us his case in two aspects. First of all, it is said that the Constitution (Removal of Difficulties) Order No. II in so far as it makes adaptations in the Constitution as applied to the Part B States, is invalid for certain reasons, to which a reference will be made later on. The Petitioner, then, assumes the Madhya Bharat Legislative Assembly which was functioning immediately before the commencement of the Constitution and which has been empowered under Art. 385 to exercise the powers and perform the duties conferred by the provisions of the Constitution on the State Legislature, as the Legislature for the State of Madhya Bharat under Art. 168, and argues that as Art. 385, unlike the preceding Arts. 379 and 382, does not contain any provision for the continuance in the Office of Speaker of any person who was, immediately before the commencement of the Constitution, the Speaker of a Legislative Assembly in a Part B State, the election of the Speaker of the Legislature functioning under Art. 385 must be held in accordance with the provisions of Art. 178. The applicant also says in the alternative that even if it is assumed that the Constitution (Removal of Difficulties) Order No. II is valid, an election of the Speaker must be held under Art. 178 as adapted by the Order. It is argued that there being no provision in the Constitution for the continuance in the Office of Speaker of any person holding that Office immediately before the commencement of the Constitution in a Part B State, the Office must become vacant by the commencement of the Constitution itself. It is argued that there being no provision in the Constitution for the continuance in the Office of Speaker of any person holding that Office immediately before the commencement of the Constitution in a Part B State, the Office must become vacant by the commencement of the Constitution itself. The second way in which the case is submitted before us is that as the non-applicant has not taken an oath or affirmation in the manner prescribed under Art. 188, he is not entitled to take his seat in the Assembly and that, therefore, he cannot continue as Speaker of the Assembly and exercise the powers and perform the duties of the Speaker. 32. In these proceedings the State has been permitted by us to intervene. The learned Advocate General has, on behalf of the State, contraverted all the points raised by the petitioner. His argument, which has been adopted by Mr. Shiv Dayal the learned counsel appearing on behalf of the non-applicant Shri Ram Sahay, may be concisely summarised thus: The contention of the petitioner that with respect to the former Indian States who had acceded to the Dominion of India in accordance with the provisions of the Government of India Act, 1935 as adapted after 15th August 1947 and who are now the States specified in Part B of the First Schedule of the Constitution of India, it could not be said that there was a transition from the provisions of the Government of India Act, 1935 to the provisions of the Constitution, is unwarranted and untenable. So also is the contention of the petitioner that for that reason the Constitution (Removal of Difficulties) Order No. II in so far as it adapts the provisions of the Constitution in their applicability to Part B States during the period of transition, is ultra vires. It is said that the Order is valid; it came into force by virtue of Sec. 5 (3) of the General Clauses Act, 1897 from the midnight of 25th January, 1950 and not, as the applicant says, from some time after the President took the oath on 26th January, 1950 at 10-15 a.m. and entered upon his office; and that, therefore, as directed by this Order, Art. 178 does not apply during the transitional period specified in that Order and the Assembly is not required to choose one member as its Speaker. It is, further argued that Art. 385 of the Constitution itself contemplates continuance of the "body or authority functioning immediately before the commencement of this Constitution as the Legislature of the State" without any alteration in its structure. The word 'body' in Art. 385 in relation to a State which has a House of Legislature functioning under Art. 385, includes the Officers of the State Legislature. The Office of Speaker in a House of the Legislature of any State specified in Part B functioning immediately before the commencement of the Constitution does not, therefore, fall vacant by the commencement of the Constitution itself and no election of Speaker is necessary under Art. 178 as adapted by the Constitution (Removal of Difficulties) Order No. II. The learned Advocate General, further contended that as the Interim Legislative Assembly Act of 1949 is a law which was enforced in Madhya Bharat immediately before the commencement of the Constitution, it still continues in force under Art. 372, and that Shri Ram Sahay who was duly elected under that Act as the Speaker of the Assembly must also continue in the Office on the coming into force of the Constitution of India, and that the absence of an express provision in Art. 385 for the continuance of the Speaker of a House of the Legislature of a Part B State does not in any way affect the continuance of the non-applicant in the office. As to the objection that the non-applicant had not taken an oath according to the form set out for the purpose in the Third Schedule, the reply of the learned Advocate General is that Shri Ram Sahay did take an oath before the Raj Pramukh on 26th January, 1950 describing himself as the Speaker of the Legislative Assembly and declaring that he would bear true faith and allegiance to the Constitution of India as by law established and he would faithfully discharge his duties as the Speaker. It is, however, argued that even if Shri Ram Sahay has not taken an oath strictly conforming to the form set out in the Third Schedule, his failure to do so does not render his seat in the Assembly or the office of Speaker, which he is holding, vacant, and that in any case the question whether Shri Ram Sahay should be permitted to take his seat and exercise the powers and perform the duties of the Speaker as he has not taken the prescribed path, was one exclusively pertaining to the internal affairs of the Legislative Assembly which cannot be enquired into by this Court. The learned Advocate General next contended that this application was not maintainable. No writ in the nature of quo warranto could be issued against the opponent, because as the Speaker of the Assembly, he does not hold "what can be described as an office under the Crown". The learned Advocate General also suggested that as under Art. 194 (3) the powers, privileges and immunities of a House of Legislature of a State are at present those of the House of Commons of the Parliament of the United Kingdom, the matter of the continuance or the election of Speaker is one exclusively of the rights and privileges of the Legislature and that, therefore, the jurisdiction of this Court to enquire into the matter is excluded. 33. I now proceed to consider the several points raised by the petitioner. I must say that I feel I have had small success in following the arguments addressed to us by the applicant. The petitioner questioned the validity of the Constitution (Removal of Difficulties) Order No. II by first saying that under the Constitution, the President has no power at all to modify the provisions of the Constitution for the removal of difficulties. The petitioner questioned the validity of the Constitution (Removal of Difficulties) Order No. II by first saying that under the Constitution, the President has no power at all to modify the provisions of the Constitution for the removal of difficulties. When his attention was drawn to the fact that the President derives this authority under the Constitution itself and that Art. 392 in express words gives him the power to remove difficulties by directing that the constitution shall, during such period as may be specified in the Order, have effect subject to such adaptations whether by way of modification, addition or omission as he may deem to be necessary or expedient, the petitioner challenged the validity of the Order on the ground that in respect of the former Indian States, there has been no transition from the provisions of the Government of India Act 1935 to the provisions of the Constitution and that there was no difficulty in holding an election of the Speaker under Art. 178 in a State specified in Part B of the First Schedule having a House of the Legislature. He also attacked the order on the ground that Art. 392 does not give to the President the power to adapt the Constitution by way of substitution, as has been done in the case of Art. 178, and that the Order does not specify the period during which the Constitution shall have effect in the modified form. The last objection may be disposed of by saying that the words "whether by way of modification, addition, or omission" in Art. 392 (1) are sufficiently comprehensive to include an adaptation by way of substitution. For, after all, substitution of one Article of the Constitution by another is in substance nothing but an omission of one Article and the addition in its place of another. The Order also specifies with reference to an event which is reasonably certain, namely, the summoning of the Parliament and the State Legislatures to meet for the first session after they are duly constituted under the Constitution, the time during which the Constitution is to be effective subject to certain adaptations. 34. The Order also specifies with reference to an event which is reasonably certain, namely, the summoning of the Parliament and the State Legislatures to meet for the first session after they are duly constituted under the Constitution, the time during which the Constitution is to be effective subject to certain adaptations. 34. There is no substance in the other objections also as to the validity of the Order, From the material facts already narrated - facts which are now historical and indubitable - there can be no doubt that during the period from 15-8-47 to 26-1-50, the transformation in the status of this state, as of other former Indian States, from that of an Acceded State to the Dominion of India to a State specified in Part B of the First Schedule of the Constitution, the transition is from the provisions of the Government of India Act, 1935 to the provisions of the Constitution, by virtue of the Instruments of Accession executed by the Rulers of the Indian States and subsequently by the Raj Pramukhs and subject to their terms, the Governor General of India, the Dominion Legislature, the Federal Court, and the other Dominion Authorities exercised in relation to the States and in respect of the matters mentioned in List I and List III of the Schedule 7 of the Government of India Act, the functions that were vested in them by or under the Government of India Act, 1935. It is, no doubt, true that outside the limits of the Instruments of Accessions, the autonomy of the States was not affected in any way by the Government of India Act, 1935. But by their accession to the Dominion of India, the scope and character of their sovereignty was affected by the Government of India Act, 1935. It is not necessary to discuss here how the sovereignty of the States was affected by their accession to the Dominion of India. It is sufficient to say that their sovereignty was by their accession to the Dominion of India considerably impaired and wholly transformed, and they became subject to the provisions of the Government of India Act, 1935 to the extent specified in their Instruments of Accession. It is sufficient to say that their sovereignty was by their accession to the Dominion of India considerably impaired and wholly transformed, and they became subject to the provisions of the Government of India Act, 1935 to the extent specified in their Instruments of Accession. I can find no shadow of a justification for contending that in respect of the former Indian States which are now specified in Part B and C of the First Schedule of the Constitution, there has been no transition from the provisions of the Government of India Act, 1935 to the Provisions of Constitution and that, therefore, as regards these states, the Constitution (Removal of Difficulties) Order No. II should not be given effect to. 35. Again, it appears to me from the language of Art. 392 that under that Article, the power of the President to make any adaptations in the Constitution is not limited to the removal of only those difficulties which may arise in relation to the transition from the provisions of Government of India Act, 1935 to the provisions of Constitution. It is wider. The word 'particularly' used in that Article does not limit or cut down the generality of the preceding words, namely, "for the purpose of removing any difficulties". The Constitution is "a contrivance of human wisdom to provide for human wants". As such, it is by no means infallible; for it is beyond the wit of man to devise anything that can be called perfect. Difficulties are, therefore, bound to arise especially in relation to the transition. As the nature of these difficulties, and of the provisions which should be made for meeting them could not have been clearly foreseen at the time of the framing of the Constitution. Art. 392 was included in the Constitution for the purpose of facilitating the transition. In relation to the State Legislatures, with which we are concerned, difficulties arose because of the operation, after the commencement of the Constitution, of the various provisions dealing with the Legislatures, which have not yet come into being and because of the continuance by the Constitution of certain bodies to exercise the powers and perform the duties conferred by the provisions of the Constitution on the Legislatures until the limited period specified in Arts. 382 and 385. 382 and 385. The measure of a difficulty contemplated by Art. 392 is not, as I conceive, whether it is practicable to do a thing required to be done under an article of the Constitution, to wit, whether it is practicable to hold election of the Speaker under Art. 178. It is, whether consistently with the transitional provisions contained in Part XXI of the Constitution it can be done. Judged by this test, the Constitution (Removal of Difficulties) Order No. II which secures, harmony between certain Articles of the Constitution which are material here and the transitional provisions contained in Part XXI of the Constitution cannot on the ground urged by the applicant be held as invalid. 36. Indeed, if the contention of the petitioner that the Order is invalid so far as Part B States are concerned, is accepted, the petitioner is out of Court. For, then there is no provision in the Constitution under which the petitioner can claim that the body, of which he is a member, is required to hold an election of Speaker. He cannot say that the election should be held under the original Art. 178. This Article is applicable only to a Legislature duly constituted under the provisions of the Constitution. That the body of which the petitioner is a member and which has been empowered under Art. 385 to exercise the powers and perform the duties conferred by the provisions of the Constitution, is not a Legislature duly constituted under Chapter III of Part VI as applied to this State, is clear enough. If it was one, there would be no need for the provision in Art. 385 that "It shall exercise the powers and perform the duties conferred by the provision of this Constitution on the House or Houses of the Legislature of the State so specified." It is only with the aid of the Constitution (Removal of Difficulties) Order No. II, which inter alia modifies Art. 168 and suspends the operation of Arts. 169 to 172 that the petitioner can argue that when the modified Art. 168 says that subject to the provisions of Art. 385, there shall be for the State a Legislature, it means that during the limited period specified in the Constitution (Removal of Difficulties) Order No. II, the Legislature for the State shall be, in the manner indicated in Art. 385 and that the substituted Art. 178 applied to such a Legislature.